BCB Finds ACS Can’t Impose 3-Year Rule For New Attorneys

By DAN ROSENBLUM | Posted: Monday, June 15, 2015 5:00 pm

The Board of Collective Bargaining has struck down a three-year job commitment for newly hired attorneys instituted last year by the Administration for Children’s Services.

The employees’ union, the Civil Service Bar Association, alleged that ACS violated collective-bargaining laws and a 2000 Board order when it imposed the length-of-service guarantee for non-managerial attorneys in its Family Court Legal Services division last July. In the decision, the seven-member panel found that such a policy was a “mandatory subject of bargaining.”

Handle Neglect, Abuse Cases

The CSBA, an affiliate of Teamsters Local 237, represents Attorney and Attorney Intern titles at ACS. FCLS lawyers frequently prosecute cases of neglect or abuse, and seek the removal of children from parents, protection orders or other legal interventions.

In a July 2014 memo directed to its staffers, agency officials said the division “expects new attorney hires to do whatever is necessary to fulfill these commitments and any failure to complete a commitment to remain with FCLS for three years will be noted in the employee’s personnel file.”

The union said there were never negotiations about the time commitment and that no other city attorneys were subject to such a rule.

In a Jan. 15 hearing, the CSBA contended that because the 2014 Three-Year Commitment Policy was a condition of the job, not a qualification for initial employment, it was subject to collective bargaining. It also said that the mission and the procedures of the department hadn’t changed substantially since an earlier precedent was set for negotiations.

“Indentured Servitude”

CSBA President Saul Fishman said the May 28 decision struck down a rule he called “tantamount to indentured servitude” for a crop of younger attorneys who were often recent law-school graduates. He said about 60 members at FCLS were affected by ACS’s policy.

“They made a conscious choice to ignore their obligation to bargain with us in good faith on the matter clearly within the scope of collective bargaining,” he said. “In committing this flagrant improper practice, they decided that they could ignore the law and bully new attorneys to stay with ACS on fear of having their reputation damaged and future job references negatively impacted.”

The title has a high turnover rate. Between January 2012 and October 2014, 107 of fewer-than 220 non-managerial lawyers resigned, which resulted in roughly 5,000 cases being reassigned, according to the panel.

City: Promoted Stability

Attorneys for the de Blasio administration argued those reassignments led to a duplication of work and adjourned hearings, causing six-month delays in the average fact-finding case. They added that the three-year guarantee helped ensure the agency was “able to maintain an experienced and stable workforce of attorneys who can respond quickly and effectively to situations where children are in danger from abuse and neglect.”

Still, the Board found that neither the attrition problem nor recent changes to FCLS procedures turned the commitment into a condition for employment.

“We also recognize that attrition has serious and significant ramifications for any employer but we find, as did PERB, that “[e]fforts to retain staff, however, whether by positive inducements such as increased compensation or negative inducements to the employer, cannot be imposed unilaterally when, as here, they involve terms and conditions of employment,” the Board wrote.

ACS attorneys also said the commitment was outside the scope of bargaining because it was similar to a licensing requirement, an argument the panel also rejected.

“Like Repaying a Debt”

“Unlike a license, work experience or education, the 2014 Three-Year Commitment Policy does not define either a level of achievement or a special status, nor does it indicate any pre-existing skill or character trait,” the board wrote.”Instead, it is analogous to a requirement that newly hired employees repay a debt in that it solely concerns obligations required to be fulfilled after employment commences.”

The BCB ordered ACS and the CSBA to bargain over any specific commitment for attorneys and interns, that employees be formally notified that there is no existing policy, and that negative citations be removed from personnel files of employees who violated the rule.

Mr. Fishman said he hadn’t yet heard from the department or city officials since the hearing.

“We are currently reviewing our options with respect to this case and will discuss the matter with the city’s Office of Labor Relations before making any decisions on how to proceed,” said Chris McKniff, an agency spokesman.