NYS Supreme Court judges rule for PEF on out-of-title work
By SHERRY HALBROOK
PEF was successful late in 2018 in getting the state Supreme Court to order a state agency to pay a PEF member, who had been working out-of-title for years, for the four-grade difference between the salary grade 20 pay she had received and the salary grade 24 work she had been doing.
In fact, the 2018 case was very similar to another one that PEF won in 2017 for four other members at that same state agency who had been doing the same grade 24 work while they, too, were still in the grade 20 job title.
The five members were all in the title of engineering geologist 1 (EG1) while doing the work of engineering geologists 2 (EG2).
After PEF took up their fight, all five of the members were eventually promoted to the EG2 title.
Under the PS&T contract, the state is obliged to pay them for out-of-title work during the 15 days before their grievances were filed and forward until they were promoted to the higher title. Although the member, whose court case was successful in October 2018, has yet to receive any of the back pay, the Governor’s Office of Employee Relations (GOER) issued an order January 9 for the award to be paid. PEF estimates it could be as much as $20,000. It will cover the out-of-title work she performed between July 12, 2014, and July 25, 2016, when she was promoted to EG2.
In the case for the first four members, the agency argued that they were not doing the work of the grade 24 position because they were not supervising lower grade engineering geologists. However, PEF refuted that by showing there were no lower grade engineering geologists on their projects for them to supervise. The members were supervising field contractors, subcontractors, and other consultants. The court in that case found the requirement that they supervise lower-level engineering geologists to be “arbitrary” and “irrational.”
The state contended the fifth PEF member should not be paid at the grade 24 level because the projects she managed were not sufficiently “complex.” In this case, PEF showed that neither the agency, nor the state Department of Civil Service has a standard to define complexity for the EG2 title.
Acting Judge Judith Hard ruled, “In light of the fact that (the member) spent 100 percent of her time managing project sites – some of which were complex – and all other performance requirements of an EG2 appear to have been met, as set forth in (the member’s) grievance … the court finds that GOER’s determination that (the member) was not performing out-of-title work was arbitrary and without a rational basis in the record.”
Although the member asked not to be identified, she expressed her gratitude to PEF and to its legal staff who helped her pursue the case through the four-step grievance process and then to court.
The ultimate win, she said, “probably wouldn’t have happened” without the union’s help. “It also helped that there was always a process to resolve this. Even when the agency and GOER kept saying, ‘No,’ there was always a next step. And the PEF lawyer, Nathaniel Nichols, was great the whole time. He spent a lot of hours working on this and he was always honest with me about what was going on. He explained everything.”