Public Employee Press

Highest state court nixes job rights for provisionals

In a May 1 decision that dismayed experienced practitioners of civil service law and public-sector labor relations, the state’s highest court overruled a contract negotiated by the Civil Service Employees Association that gave provisional workers tenure after one year of service.

The 12 provisionals involved worked for the city of Long Beach on Long Island, NY. The state Court of Appeals ruled that the contractual provision could not protect them from being fired because they had been employed as provisionals longer than the state Civil Service Law’s nine-month limit on provisional service.

While the ruling applies directly to a dozen workers from a different city, DC 37 General Counsel Eddie Demmings wrote: “The decision is very troubling because it plainly opens the door to invalidating the sections of DC 37’s contracts with the city that provide due process rights to provisionals in disciplinary matters.”

Working with other unions and the city, DC 37 is taking steps to amend Section 65 of the Civil Service Law to protect the contractual rights of provisional employees in DC 37 locals, Demmings said.

When Long Beach terminated the 12, CSEA grieved the firings, citing the provision in their contract that gives tenure to all employees with at least one year of service, regardless of civil service status.

Long Beach argued that the tenure provision violated public policy with respect to provisionals. The state’s lower courts ruled in favor of Long Beach, and the Court of Appeals, the state’s highest court, agreed with them in May, when it decided that the tenure section of the CSEA contract, as it applied to provisionals, is a violation of public policy.

New York City employs more than 26,000 provisional workers, and many of them have worked for the city longer than the nine-month time limit.

It would be almost impossible for the city to hold examinations for so many, and any action similar to Long Beach’s firings would seriously disrupt the essential services DC 37 members provide, Demmings said. But the DC 37 Legal Dept. is working to preserve the contractual disciplinary rights of members who are provisional employees; however, these rights do not provide job security for provisionals in the event of layoffs or the movement of civil service lists, he pointed out.

DC 37’s Legal and Political Action departments worked with a coalition of unions and New York City attorneys to craft legislation to overturn the consequences of the Long Beach decision. The state Senate and Assembly passed the bill in June, and it awaited the gover­nor’s signature at PEP press time.

—Diane S. Williams