OATH Recent Decisions

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Personnel

ALJ Seon Jeong Lee recommended a 49-day suspension for an assistant deputy warden who ordered a correction officer under her command to perform personal errands for her. The ALJ found that respondent had directed her employee to make health juice for her and her boyfriend, shop for and deliver items to her home, and scan and transfer files onto a USB drive to assist her boyfriend’s work. The ALJ dismissed two charges against respondent for failing to report to work on time and coercing an officer to partake in and conceal her misconduct, finding that the record does not support these allegations and that they are time-barred. Based on respondent’s lack of disciplinary history and petitioner’s failure to prove all charges, the ALJ recommended suspension in lieu of petitioner’s requested penalty of termination of employment. Dep’t of Correction v. Martinez, OATH Index No. 1899/23 (Nov. 3, 2023), modified on penalty, Comm’r Dec. (Nov. 22, 2023) (49-day penalty adopted but modified to vacation days or compensatory time rather than suspension).

ALJ Tiffany Hamilton recommended a five-day suspension for a correction officer who used profane language toward a person in custody. Petitioner brought disciplinary charges against two officers, respondents Larry and Young, alleging that Young’s failure to properly escort a person in a custody resulted in an altercation in which Larry used excessive force. The ALJ dismissed all charges, except for a charge against Larry for using profane language. The ALJ found that Larry had struck the head of the person in custody once in self-defense and that petitioner failed to establish a second head strike or neck restraint. The ALJ also dismissed the improper escort charge against respondent Young, finding petitioner failed to establish Young’s escort fell short of Department standards or that he acted unreasonably. The ALJ further dismissed false reporting charges against both officers. Dep’t of Correction v. Larry & Young, OATH Index Nos. 3280/23 & 3289/23 (Oct. 30, 2023), adopted, Comm’r Dec. (Nov. 20, 2023).

Licensing

ALJ Astrid B. Gloade recommended continuing the license suspension of a taxi driver arrested for failing to register as a sex offender. In 2015, respondent was convicted of indecent assault, among other charges, and was designated a level two sex offender. This designation required him to register his address with the police and periodically update his photograph and contact information. Respondent alleged he had twice attempted to register in 2021, but each time was turned away by a security guard who informed him that the offices were closed due to COVID-19. The ALJ rejected respondent’s argument that he had made every effort to update his registration as a sex offender, finding respondent made no attempts to comply with the registration requirement for the past two years. The ALJ found respondent’s duties as a taxi driver placed him in direct, confined contact with members of the public and his failure to register as a sex offender implicated the safety of the riding public. The seriousness of the offense and absence of compelling mitigation outweighed respondent’s evidence regarding his driving record and character. Taxi & Limousine Comm’n v. Saini, OATH Index No. 592/24 (Nov. 21, 2023), adopted, Comm’r Dec. (Nov. 28, 2023).

Worker Protection

ALJ Kara J. Miller recommended penalties against an employer for numerous violations of the Earned Sick and Safe Time Act (“ESSTA”). The ALJ found that respondents, joint owners of a hair and nail salon, failed to maintain a written sick time policy, failed to notify employees of their rights under the ESSTA, failed to provide employees with information about sick time accrual, did not pay employees for sick leave, required employees to find another coworker to cover their shifts when calling out sick, retaliated against complainant for using sick leave, and failed to provide information requested by petitioner. The ALJ recommended a total civil penalty of $16,200 be assessed, plus monetary relief totaling $8,355 to three employees who were not permitted to use paid sick leave. Dep’t of Consumer and Worker Protection v. KC Beauty Corp.,OATH Index No. 271/22 (Nov. 3, 2023).