Final Report (Redacted) Special Counsel Albert Matter November 19, 2018 LEMIRE Table of Contents I. INTRODUCTION ...................................................................................................1 II. EXECUTIVE SUMMARY .....................................................................................2 III. BACKGROUND AND APPLICABLE POLICIES ................................................3 IV. A. Background ..................................................................................................3 B. Erie County Sexual Harassment Policy .......................................................4 APPLICABLE SEXUAL HARASSMENT LAWS ................................................7 A. Federal Law .................................................................................................7 B. New York State Law ....................................................................................8 V. COOPERATION BY THE ERIE COUNTY DEPARTMENT OF LAW ............10 VI. APPLICABLE PROCEDURES AND FACTUAL BACKGROUND ..................11 VII. A. Applicable Procedures ...............................................................................11 B. Factual Background ...................................................................................13 FINDINGS .............................................................................................................23 A. Formal Claims or Complaints Related to Dr. Dirschberger Made During Tenure at DSS ................................................................................23 B. Complaints Related to Dr. Dirschberger That Were Known or Should Have Been Known Prior to Hiring.............................................................24 C. Informal Claims or Complaints Related to Dr. Dirschberger ....................25 D. Written Procedures Followed by Other Counties as to Similar Complaints Made Against Supervisors ......................................................26 E. Whether any Complaints or Claims Were Sent to, Were Required to be Sent to, or Should Have Been Sent to Anyone in the Equal Employment Office, the Personnel Office, or the County Attorney’s Office .......................................................................................34 i F. Was the County Negligent in the Hiring and Supervision of Dr. Dirschberger ....................................................................................34 G. Was Anyone in County Government Aware of Sexual Harassment and/or Abuse by Al Dirschberger While He Was Employed by Erie County and Allowed Said Conduct to Continue Unabated ..........35 H. Was the County Negligent in Their Duty to Protect Employees from Al Dirschberger, Or Instances of Sexual Harassment of Assault .....35 I. Was the County Negligent in Failing to Protect Employees from the Dangers Posed by Al Dirschberger .............................................35 J. Who Had, or Should Have Had, Actual or Constructive Notices of the Prior Actions of Al Dirschberger, Specific to Sexually Harassing and/or Abusing Employees in his Charge .................................36 ii I. INTRODUCTION On December 28, 2017, Dr. Albert Dirschberger resigned as Commissioner of Erie County Department of Social Services (“DSS”) at the request of Erie County Executive Mark Poloncarz. His resignation was prompted by an internal investigation which revealed that Dr. Dirschberger had violated Erie County policies during a workrelated trip to Albany, New York, during December 5-6, 2017. The investigation also revealed that the Albany Police Department was conducting a criminal investigation into allegations of rape against a subordinate employee (“Jane Doe”1) during that workrelated trip. Dr. Dirschberger was later indicted by an Albany Grand Jury on two felony counts – Rape in the Third Degree and Criminal Sexual Act in the Third Degree. Jane Doe subsequently filed a Notice of Claim against Erie County (the “County”) which contained several claims, including allegations that the County knew of sexual harassment and/or abuse by Dr. Dirschberger, that it negligently failed to take necessary actions to protect employees, and that it allowed a hostile work environment to exist. At the direction of the Erie County Legislature, The Lemire Law Firm (“Lemire” or “Lemire Law”) was retained as Special Counsel to conduct a thorough and objective investigation regarding the allegations against Dr. Dirschberger and the related allegations against Erie County by Jane Doe. The Legislature specifically sought to determine whether there is any validity to the claims against Erie County and whether the process for reporting abusive behavior is “broken” within the County. To meet these goals, Lemire conducted a thorough, objective, multi-faceted investigation. This report summarizes the investigation conducted by Lemire Law, as well as findings. As set forth more fully below, Lemire Law conducted interviews of current and former employees of Erie County agencies and departments who had a broad range of perspectives and knowledge. Lemire Law interviewed individuals with knowledge of Jane Doe’s allegations, individuals with knowledge of formal complaints or claims made within Erie County, individuals with knowledge of the working environment within DSS during Dr. Dirschberger’s tenure, and individuals with knowledge of Dr. Dirschberger’s previous work experience. Lemire Law also reviewed documentary evidence (including personnel files, email correspondence, and calendar entries), Erie County sexual harassment policies and procedures, and sexual harassment policies and procedures utilized in neighboring counties. This Report has been redacted in certain respects in order to protect the confidentiality of certain witnesses and information provided. This Report will refer to the complainant described in the sealed indictment as “Jane Doe” in order to maintain the confidentiality of her identity. 1 II. EXECUTIVE SUMMARY This section provides an overview of Lemire Law’s investigation. Our review consisted of interviews, reviews of electronic communications and calendars, reviews of policies and procedures, and reviews of other relevant materials. As part of our review, we interviewed several dozen individuals with knowledge of Dr. Dirschberger’s conduct at DSS and/or previous employment, Erie County’s sexual harassment policies and procedures, and whether any claims or complaints had been made against Dr. Dirschberger. Included among those individuals interviewed were current and former employees of DSS, Erie County Personnel Department, Erie County Office of the County Executive, Erie County Equal Employment Opportunity Office, Erie County Department of Law, and Erie Community College. Pursuant to an agreement with the Albany County Assistant District Attorney’s Office, we did not interview any person who the Albany County District Attorney’s Office intended to call as a witness in its pending criminal case against Dr. Dirschberger. Those persons include Jane Doe, Witness 1, and Witness 2. We understand from the assigned prosecutor that the criminal trial is scheduled to commence December 10, 2018. Also, as part of our investigation, we reviewed hundreds of documents relating to Dr. Dirschberger’s tenure at Erie County DSS, including reports, files, and memoranda prepared and maintained by Erie County employees, written sexual harassment policies and procedures, New York State guidance on sexual harassment policies and procedures, court dockets, and social media accounts. Among these materials, we reviewed personnel files, email correspondence, calendar entries, summaries of critical incident reports, complaints filed with the Erie County Equal Employment Opportunity Office, internal reports, and transcripts and recordings. 2 III. BACKGROUND AND APPLICABLE POLICIES A. Background On December 28, 2017, Erie County Executive Mark Poloncarz announced that Dr. Albert Dirschberger resigned from his position as Commissioner of Erie County DSS after County Executive Poloncarz learned that Dr. Dirschberger was a person of interest in a criminal investigation. At that time, County Executive Poloncarz stated that the criminal investigation involved allegations of inappropriate behavior towards a subordinate female staff member during a work-related conference in Albany, New York, on December 5 and 6, 2017. County Executive Poloncarz also stated that his office conducted an internal investigation which led to his decision to request that Dr. Dirschberger resign his position. On January 22, 2018, Dr. Dirschberger was arraigned in Albany County Supreme Court on one count of Rape in the Third Degree and one count of Criminal Sexual Act in the Third Degree. The indictment alleges that during the late evening of December 5, 2017, and early morning of December 6, 2017, while located in a hotel in Albany, New York, Dr. Dirschberger engaged in sexual intercourse with an adult female victim (Jane Doe), who was known to him, without her consent. In addition, the indictment alleges that Dr. Dirschberger engaged in oral sexual conduct with the same victim without her consent. On or about January 30, 2018, a Notice of Claim was filed against Erie County on behalf of Jane Doe alleging, among other things, that Erie County (1) was negligent in hiring and supervising Dr. Dirschberger, (2) was aware of sexual harassment and/or abuse by Dr. Dirschberger while employed by Erie County and negligently allowed the conduct to continue unabated, (3) negligently failed to protect employees from Dr. Dirschberger, (4) negligently failed to alert Jane Doe to the danger regarding Dr. Dirschberger, (5) negligently failed to take the necessary actions to protect co-employees, including Jane Doe, and (6) allowed a hostile work environment to exist in the Department of Social Services for the County of Erie. The Erie County Legislature (the “Legislature”) retained The Lemire Law Firm as Special Counsel, pursuant to the Legislature’s resolution, Intro. 6-10, to investigate: (1) Formal claims or complaints related to Dr. Dirschberger, whether made during his tenure as Social Services Commissioner or complaints that were known or should have been known prior to his hiring; (2) The procedure followed for each complaint or claim made during the Commissioner’s tenure as head of Social Services, and any corrective actions taken; 3 (3) Written procedures followed by other counties as to similar complaints made against supervisors; (4) Whether any complaints or claims were sent to, were required to be sent to, or should have been sent to anyone in the Equal Employment Office, the Personnel Office, the County Attorney’s Office, or the Executive’s Office; (5) Was the County negligent in the hiring and supervision of Dr. Dirschberger; (6) Was anyone in County government aware of sexual harassment and/or abuse by Al Dirschberger while he was employed by Erie County and allowed said conduct to continue unabated; (7) Was the County negligent in their duty to protect employees from Al Dirschberger, or instances of sexual harassment or assault; (8) Was the County negligent in failing to protect employees from the dangers posed by Al Dirschberger; and (9) Who had, or should have had, actual or constructive notice of the prior actions of Al Dirschberger, specific to sexually harassing and or abusing employees in his charge. Erie County Legislature, Meeting No. 6, March 15, 2018, Resolution No. 73. B. Erie County Sexual Harassment Policy The Erie County Employee Handbook, which is provided to all newly hired employees of Erie County, contains the Harassment Policy of Erie County. 2 The Harassment Policy sets forth the procedure an employee should follow if he or she wants to raise an allegation of sexual harassment.3 The Harassment Policy is also posted on the website of Erie County’s Equal Employment Opportunity Office.4 The Harassment Policy contains the following procedures for reporting harassment: 2 A copy of the Erie County Employee Handbook, 2016 Edition (Revised 10/2016), is attached hereto as Exhibit A. 3 See Exhibit A, pp.9-14. 4 See http://www2.erie.gov/eeo/index.php?q=harassment-policy. 4 IV. Reporting Illegal Harassment While the County encourages individuals who believe they are being harassed to firmly and promptly notify the offender that his or her behavior is unwelcome, the County also recognizes that such a confrontation may be uncomfortable or even impossible. In the event that such informal, direct communication between individuals cannot be accomplished for any reason, or is ineffective or inappropriate given the circumstances or severity of the situation, the following steps should be taken to file a formal harassment complaint: 1. Notify Appropriate Staff Individuals who believe they have been sexually harassed…should immediately report the incident to his or her direct supervisor. If the supervisor is the alleged harasser or the employee is uncomfortable reporting the alleged harassment to his or her supervisor, the incident should be reported directly to his or her Department Head. In the event that the circumstances of the situation make it inappropriate to report the incident should [sic] the individual’s supervisor or to his or her Department Head, the incident should be reported to another Department Head, or to the County’s Equal Employment Opportunity Director at 858-7542. Employees may also file a complaint on line at www.erie.gov/depts/eeo. Employees, supervisors, and managers must report any incident of sexual harassment…they may observe or become aware of, even if they are not the target or victim of such harassment. 2. Prepare Written Report of Misconduct An accurate record of objectionable behavior or misconduct is needed to resolve a formal complaint of harassment. Even [sic] reports of harassment must be submitted to the Equal Employment Opportunity Officer for investigation. Individuals who believe they have been or currently are being harassed should maintain a record of objectionable conduct in order to prepare effectively and to substantiate their allegations. 5 3. Promptly Report the Complaint The County of Erie encourages a prompt reporting of complaints so that a rapid response and appropriate action may be taken. A prompt report not only aids the complainant, but also helps to maintain an environment free from discrimination for all employees. Such reports will be handled according to the policy for reporting such incidents as directed by the County Executive.5 Exhibit A, pp. 12-13 (IV(1)-(3)). We were advised by the Erie County Attorney’s Office that the “policy for reporting such incidents” in section IV(3) above, refers to the preceding portions of the Harassment Policy setting forth how to proceed, specifically section IV, entitled “Reporting Illegal Harassment,” and sections IV(1) and (2). 5 6 IV. APPLICABLE SEXUAL HARASSMENT LAWS A. Federal Law Title VII of the Civil Rights Act of 1964 prohibits workplace discrimination on the basis of race, color, national origin, religion, and sex.6 Specifically, Title VII makes it “an unlawful employment practice for an employer . . . to discriminate against any individual with respect to his [or her] compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.”7 Title VII applies to employers with 15 or more employees, including federal, state, and local governments.8 The U.S. Supreme Court has held that the prohibition against sex discrimination reaches sexual harassment in the workplace,9 including samesex workplace harassment.10 The federal Equal Employment Opportunity Commission (“EEOC”) defines sexual harassment as “[u]nwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when (1) submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment, (2) submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual, or (3) such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment.”11 The EEOC and federal courts recognize two forms of sexual harassment under Title VII: quid pro quo and “hostile work environment.” These terms do not appear in the text of Title VII, however, the EEOC and federal courts have interpreted Title VII to include harassing behavior that has a tangible impact on employment (quid pro quo) and an intangible impact (hostile work environment).12 The terms “quid pro quo” and “hostile work environment” illustrate the distinction between cases involving a threat which is carried out and offensive conduct in general.13 For the latter to be actionable, it must be severe or pervasive.14 Under federal law, an employer is strictly liable for harassment by a supervisor that results in a negative employment action such as termination, failure to promote or hire, and loss of wages. If the supervisor’s harassment results in a hostile work 6 42 U.S.C. § 2000e et seq. 42 U.S.C. § 2000e-2 (a)(1). 8 42 U.S.C. § 2000e (b). 9 Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 64 (1986). 10 Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 79 (1998). 11 29 C.F.R. 1604.11 (a) (2018). 12 Meritor, 477 U.S. at 64-66; 29 C.F.R. 1604.11(a)(3) (2018). 13 Burlington Indus. v. Ellerth, 524 U.S. 742, 753 (1998). 14 Ellerth, 524 U.S. at 753-54. 7 7 environment, the employer can avoid liability only if it can prove that: 1) it reasonably tried to prevent and promptly correct the harassing behavior; and 2) the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer.15 An employer will be liable for harassment by non-supervisory employees or non-employees over whom it has control (e.g., independent contractors or customers on the premises), if it knew or should have known about the harassment and failed to take prompt and appropriate corrective action.16 B. New York State Law Sex discrimination is unlawful pursuant to the New York State Human Rights Law. Sexual harassment is a form of sex discrimination and while the provisions of the Human Rights Law generally apply to employers with four or more employees, the sexual harassment provisions apply to all employers in New York State, regardless of the number of employees.18 17 Under New York law, sexual harassment can occur between males and females, or between persons of the same gender. Sexual harassment that occurs because the victim is transgender is also unlawful.19 The same standard of proof is required for claims under section 296 of the New York State Human Rights Law as for Title VII of the Civil Rights Act of 1964. 20 Quid pro quo sexual harassment occurs when a person in authority tries to trade job benefits for sexual favors. This can include hiring, promotion, continued employment or any other terms, conditions, or privileges of employment. In general, only supervisors and managers are able to engage in quid pro quo sexual harassment, because co-workers generally do not have the authority to grant or withhold benefits.21 Sexual harassment in the form of a hostile work environment consists of words, signs, jokes, pranks, intimidation, or physical violence which are of a sexual nature, or which are directed at an individual because of that individual’s sex. Sexual harassment also consists of any unwanted verbal or physical advances, sexually explicit derogatory statements, or sexually discriminatory remarks made by someone in the workplace that (1) are offensive or objectionable to the recipient, (2) which cause the recipient discomfort or humiliation, or (3) which interfere with the recipient’s job performance. A 15 Ellerth, 524 U.S. at 765. See https://www.eeoc.gov/laws/types/harassment.cfm. 17 NY CLS Exec § 296.1. 18 NY CLS Exec § 292.5. 19 NY CLS Exec § 296. 20 Quinn v. Green Tree Credit Corp., 159 F.3d 759, 765 (2d Cir. 1998) (stating that New York courts require the same standard of proof for claims brought under section 296 of the Human Rights Law as for those brought under Title VII). 21 See Bouveng v. Nyg Capital LLC, 175 F. Supp. 3d 280, 311 (S.D.N.Y. 2016). 16 8 hostile work environment can be created by anyone in the workplace, including coworkers, supervisors, managers, contractors, clients, vendors, or visitors.22 A single incident of inappropriate sexual behavior may rise to the level of a hostile work environment, depending on the severity of such incident. The law requires that the behavior be severe or pervasive, and therefore a standalone joke or comment may not support a claim of sexual harassment, depending on the circumstances.23 New York State recently broadened its sexual harassment laws. Among other requirements, the newly-enacted laws require every employer in New York State to establish a sexual harassment prevention policy that “equals or exceeds” the form policy provided by the New York State Human Rights Commission.24 The law also requires every New York State employer to provide all employees with annual sexual harassment prevention training utilizing the New York State model training program or one that “equals or exceeds” the instruction in the model program.25 Under New York law, employers are strictly liable for harassment of an employee by an owner or high-level manager. Employers may also be strictly liable for harassment by a lower-level manager, or by a supervisor if that supervisor has a sufficient degree of control over the working conditions of the victim. Employers may also be liable for the harassment of an employee by a co-worker, if the employer knew or should have known about the harassment. Therefore, the employer will be liable if the employer was negligent in preventing or stopping harassment.26 Further, if an employee complains of harassment to any supervisor or manager, the knowledge of the supervisor or manager will be imputed to the employer.27 22 Guidance on Sexual Harassment for All Employers in New York State, Division of Human Rights, https://dhr.ny.gov/sites/default/files/pdf/guidance-sexual-harassment-employers.pdf. 23 See, e.g., San Juan v. Leach, 717 N.Y.S.2d 334, 336 (2nd Dep’t 2000). 24 NYS Labor Law § 201-g; see also https://www.ny.gov/sites/ny.gov/files/atoms/files/SexualHarassmentPreventionModelPolicy.pdf for the New York State Sexual Harassment Prevention Model Policy. 25 NYS Labor Law § 201-g. 26 Guidance on Sexual Harassment for All Employers in New York State, Division of Human Rights, https://dhr.ny.gov/sites/default/files/pdf/guidance-sexual-harassment-employers.pdf. 27 Guidance on Sexual Harassment for All Employers in New York State, Division of Human Rights, https://dhr.ny.gov/sites/default/files/pdf/guidance-sexual-harassment-employers.pdf. 9 V. COOPERATION BY THE ERIE COUNTY DEPARTMENT OF LAW In conducting our investigation, we received full cooperation from the Erie County Department of Law. Michelle Parker, First Assistant County Attorney, provided prompt attention and assistance to our requests. All documents requested were provided to the extent they were not protected by the attorney-client privilege and/or other valid confidentiality concerns. All of our requests to interview Erie County employees were promptly scheduled. 10 VI. APPLICABLE PROCEDURES AND FACTUAL BACKGROUND A. Applicable Procedures There are two formal reporting avenues within Erie County for allegations of sexual harassment: (1) according to the procedures outlined by the Erie County Equal Employment Opportunity Office; and/or (2) through an investigation initiated by the Personnel Department in response to an incident report. Each avenue is discussed more fully below. i. Erie County Equal Employment Opportunity Office (“EEO Office”) Jesse Burnette, Director of the EEO Office, runs the EEO and Affirmative Action programs for Erie County. According to Mr. Burnette, the Erie County Affirmative Action Plan outlines the procedure for filing complaints. Mr. Burnette explained that the process has been adopted from the federal model with modifications tailored to Erie County. The process typically commences with an informal complaint by an employee. Mr. Burnette then assigns the claim to an investigator, who arranges an in-person consultation for the complainant. Once an informal complaint is filed, the investigator has 30 days to conduct an investigation and interview witnesses. The investigator informs the respondent of the complaint and explains that he or she is not to retaliate against the complainant. Mr. Burnette stated that the investigators try to ensure anonymity of the complainant, if preferred, but they cannot guarantee it, depending on the circumstances. According to Mr. Burnette, the investigators attempt to identify a possible resolution to the complaint within 30 days. However, investigators are also given an opportunity to request additional time, and will inform the complainant accordingly if additional time is needed. Upon expiration of 30 days, if the complaint is not resolved, the complainant is given a Notice of Right to File a Formal Complaint, which must be filed within 15 days. The complainant is also informed of the right to file a complaint with the New York State Division of Human Rights and the federal EEOC. Once a formal complaint is received by the EEO office, Mr. Burnette and his investigators discuss the facts of the case, and Mr. Burnette makes the final determination for each formal complaint. Mr. Burnette stated that he relies on the federal EEOC processes to formulate decisions. Mr. Burnette stated that he in some instances may recommend proceeding with a formal investigation, at the conclusion of which he drafts the agency decision, or he may close the case and draft the agency decision, based on the facts collected by his investigators in the course of the 30-day informal investigation. Mr. Burnette stated that his investigators “do a good job of identifying facts surrounding 11 complaints,” and based on that, he determines whether a further formal investigation should be completed. According to Mr. Burnette, there have been times when his office proceeded with a formal investigation. Mr. Burnette explained that these decisions are based on the facts of the case and the EEOC-issued guidelines. In each case, Mr. Burnette drafts the decision letter, which includes supplemental information that supports the reasons for not moving forward with a formal investigation. Agency decisions are sent to the complainant and his/her supervisor. Mr. Burnette stated that he does not interact or share information with the federal EEOC. He indicated that if a federal complaint is filed with the federal EEOC, it would be sent by the EEOC to the Erie County Department of Law, which would reach out to Mr. Burnette to determine whether his staff previously investigated the complaint. In such cases, Mr. Burnette prepares a copy of the investigative file for the Erie County Department of Law. Mr. Burnette stated that some employees file a federal complaint without going through the County process first. ii. Personnel Department According to Commissioner Palmer, the Personnel Department often reviews and responds to complaints of alleged violations of law by employees or third parties, which are typically initiated by an incident report. In these cases, a Critical Incident Report is filed and submitted to the relevant employee’s department and to Commissioner Palmer for review. Commissioner Palmer also receives and reviews workplace violence reports to ensure that the involved department acts appropriately and to evaluate whether the County Sheriff should be alerted. According to Commissioner Palmer, these reports, such as an employee bullying another employee, generate an investigation in the Personnel Department. Commissioner Palmer often assigns Patricia Bramer, Human Resources Training Coordinator, to conduct investigations, but he also sometimes involves the EEO Office. According to Commissioner Palmer, when a complaint needs to be investigated, he reviews it first, and then calls Ms. Bramer with details. Upon completion of the investigation, Ms. Bramer provides Commissioner Palmer with copies of conducted interviews, findings, and recommendations, and Commissioner Palmer prepares a response to the complaint. Commissioner Palmer stated that if the investigation results in a finding, the affected department is directed to have the person against whom the complaint was filed undergo corrective training. 12 B. Factual Background i. Dr. Dirschberger’s Appointment as Commissioner of DSS Dr. Dirschberger first applied for a position with the Erie County DSS in or about 2014 as Director of Youth Services. County Executive Poloncarz stated that while Dr. Dirschberger was a strong candidate, he was not ultimately hired because he did not have experience with secured residential housing for youth. At that time, Dr. Dirschberger was in a senior manager position at GatewayLongview, Inc. (“Gateway-Longview”), a not-for-profit organization that supports children from birth through age 21 through 18 various programs, including foster care and adoption, behavioral health clinics, supervised independent living for young adults, special education for grades K-12, and residential care for youth aged 12-18.28 On or about January 20, 2015, Dr. Dirschberger became Executive Director of Journey’s End Refugee Services (“Journey’s End”). Several people we interviewed with knowledge of Dr. Dirschberger’s tenure at Gateway-Longview stated that he resigned from the organization because he was not appointed President & CEO when the position became available. Shortly thereafter, the then-current Commissioner of DSS, Carol Dankert-Maurer, completed her term appointment and was not re-appointed by County Executive Poloncarz. Erie County conducted a search for a new Commissioner of DSS and Dr. Dirschberger applied. Commissioner Palmer was responsible for collecting resumes and conducting initial candidate screenings for the position. Commissioner Palmer advertised the position on local and nationwide websites. Commissioner Palmer stated to us that the search for a new Commissioner of DSS was challenging and there were not many candidates since DSS at that time was facing significant scrutiny in connection with child deaths. Commissioner Palmer stated that he conducted an initial review of candidates’ resumes to ensure that minimum qualifications were met and passed along viable candidate resumes to County Executive Poloncarz and his staff to review further and conduct interviews. Commissioner Palmer stated that Dr. Dirschberger underwent a criminal background check conducted through the Erie County Sheriff’s Department upon receipt of a conditional offer of employment. Commissioner Palmer explained that he would review a candidate’s criminal background check if the results report a prior criminal 28 See generally www.gateway-longview.org. 13 history. Commissioner Palmer stated that in Dr. Dirschberger’s case, the search came back with no results, and therefore, Commissioner Palmer never reviewed the results.29 Likewise, County Executive Poloncarz stated that prior to Dr. Dirschberger’s appointment, the County ran a criminal background check and Dr. Dirschberger had no criminal history. County Executive Poloncarz also spoke to the former head of GatewayLongview, James Sampson, and to one member of the board of directors at Journey’s End. He heard from Dr. Dirschberger’s references that he excelled at implementing new technologies and new ideas. He received no negative feedback with regard to Dr. Dirschberger. County Executive Poloncarz stated that he sought a Commissioner who would “go into the field,” and not be in the “ivory tower.” County Executive Poloncarz believed that Dr. Dirschberger would work in this manner. Witness 3 stated that Witness 3 and Ms. Hibit conducted reference checks on Dr. Dirschberger. Witness 3 indicated that upon being instructed to do so by the County Executive, Witness 3 called three or four references. The references for Dr. Dirschberger included two Board members of organizations in which he was previously employed, two former colleagues, and two employees. Witness 3 stated that Witness 3 received only positive feedback from the references. Witness 3 indicated that Witness 3 was not aware of any outstanding issues with Dr. Dirschberger before he was hired by the County. Witness 3 did note that, subsequent to Dr. Dirschberger’s resignation as Commissioner of DSS, Witness 1 shared with Witness 3 that Dr. Dirschberger previously told her that an allegation had been made against him at Gateway-Longview, but that he was cleared because the allegation had no merit. Witness 3 indicated that this information was not available before Dr. Dirschberger was appointed Commissioner, and Witness 3 only learned about it after Dr. Dirschberger resigned from DSS. Dr. Dirschberger’s counsel represented to us that Dr. Dirschberger asserted there were no complaints made against him at Gateway-Longview. As discussed below, the current President & CEO of Gateway-Longview ultimately declined to speak with us; therefore, we were not able to determine whether any complaints were made against Dr. Dirschberger during his tenure at Gateway-Longview. We also reviewed Dr. Dirschberger’s DSS personnel file maintained in DSS Human Resources Department; this file does not contain any derogatory or negative information. 29 Lemire Law also conducted a statewide criminal background search for Dr. Dirschberger through the New York State Office of Court Administration, which revealed only the pending criminal matter in Albany, New York, described herein. 14 ii. Dr. Dirschberger’s Tenure as Commissioner of DSS Witness 4 stated that when Dr. Dirschberger was appointed Commissioner of DSS, the Department was under scrutiny for high-profile fatalities of children. Reports of the fatalities received widespread media attention. Witness 4 stated that the main challenge Dr. Dirschberger faced was creating a plan to make changes to the Child Protective Services (“CPS”) department while working with the community to improve community relations. Other managers in CPS and the Children Services (“CS”) department indicated that there was a high turnover rate within those departments because of high caseloads, long hours, and relatively low salaries. Witness 4 stated that it was well-known within DSS that Dr. Dirschberger, whose office was located on the 8th floor of 95 Franklin Street, Buffalo, New York (also known as the “Rath Building”), had an “open-door” policy for all employees. It was also known that Dr. Dirschberger, at certain times during his tenure, utilized as a satellite office a vacant administrative office at 478 Main Street, Buffalo, New York, where CPS and CS employees maintain offices. In particular, Witness 4 noted, Dr. Dirschberger spent time at the satellite office when Witness 1, had been out of the office. Witness 5 stated that Dr. Dirschberger indicated that he wanted to be more involved with the CPS and CS departments in order to learn how to improve staff morale and decrease the caseload that ballooned after CPS had undergone scrutiny for the highprofile child deaths in 2013. Witness 5 stated that Dr. Dirschberger became directly involved with resolving some longstanding cases. Previous Commissioners did not involve themselves in this manner, Witness 5 told us. Mr. Burnette also stated that Dr. Dirschberger had been “going around to different areas in his department,” interviewing people about matters, and trying to “get a handle on the workforce and his employees.” According to Mr. Burnette, Dr. Dirschberger sought to identify areas of employee concerns, such as the perceived lack of diversity in the CPS workforce, in part because minority employees complained of racial discrimination. More specifically, some employees claimed they were wrongfully terminated during the probationary period of employment. Mr. Burnette stated that the number of these complaints was “alarming” and, therefore, he discussed the matter with Commissioner Palmer and Dr. Dirschberger. Upon review of the available information, such as numbers of non-minority and minority candidates and any privileges given to either group, Mr. Burnette stated that he determined there were no discriminatory practices. Commissioner Palmer stated that approximately three months prior to Dr. Dirschberger’s resignation, he met with Dr. Dirschberger because Dr. Dirschberger was receiving complaints from CPS workers about being unfairly and poorly treated by upper-level management. Commissioner Palmer characterized the complaints as symptomatic of a “morale problem” within DSS and he understood that Dr. Dirschberger was trying to improve the work environment at CPS. Commissioner Palmer also stated 15 that Dr. Dirschberger would offer to meet employees outside of the office to talk about issues within DSS. Jennifer Hibit, Chief of Staff to the County Executive, stated that Dr. Dirschberger had commented to her that some employees of DSS did not feel comfortable speaking to him in the office, so he met them for coffee outside of the office. Ms. Hibit indicated that she did not find these off-site meetings odd at the time because there were many challenging issues at CPS, and she understood employees may not feel comfortable speaking freely in the office. CPS and CS managers that we spoke to expressed confusion to us about why Dr. Dirschberger privately met with and revealed sensitive hiring and firing information to some lower-level employees in DSS. Some managers reported to us that Dr. Dirschberger’s interactions with “line-level” staff undermined their authority. Witness 4 noted that CPS employees expressed more resistance to Dr. Dirschberger than those in other departments of DSS, especially when he began to make changes to CPS. Witness 4 stated that some employees liked the changes, while other did not approve. Witness 4 noted that subsequent to his resignation, some in DSS confided to others that Dr. Dirschberger “had the creep factor.” Indeed, our investigation revealed that Erie County employees described Dr. Dirschberger as “creepy,” “douchey,” “egotistical,” “a scumbag,” “shady,” and “full of himself.” iii. January 2017 NYPWA Conference We interviewed two DSS employees, Witnesses 8 and 9, who attended a New York Public Welfare Association (“NYPWA”) Conference with Dr. Dirschberger from January 24-27, 2017. They both told us other DSS employees had also attended, but neither could recall the identity of the other attendees from DSS. Both Witnesses stated that Dr. Dirschberger drove them to and from the conference, and they all stayed in a hotel just outside of Albany. Witness 8 stated that on one of the nights of the conference, Dr. Dirschberger dined with the women from DSS who attended the conference at a restaurant near the hotel. After dinner, Dr. Dirschberger invited Witnesses 8 and 9 to join him at a bar. Witness 8 stated that she is not sure whether anyone else joined them at the bar. She stated that Dr. Dirschberger opened a tab at the bar and purchased drinks, including shots of alcohol during the evening. She also stated that they sang karaoke at the bar. Witness 8 stated that they all went back to the hotel together – either by car or by hotel shuttle. Witness 8 stated that they all had their own rooms on different floors at the hotel, and when she exited the elevator to go to her room, Dr. Dirschberger invited Witness 8 and Witness 9 to his room, stating that he had a bottle of Tito’s Vodka they could drink. Witness 8 stated to us that she was on her cell phone at the time with her 16 boyfriend, and she declined the offer and went into her hotel room. Witness 8 was unsure whether Witness 9 accepted or declined Dr. Dirschberger’s invitation. Witness 8 told us that when the conference concluded, Dr. Dirschberger drove Witness 8 and Witness 9 home. Witness 8 stated that she worked during the car ride and did not engage in conversation with the others. We interviewed Witness 9, who, when asked about the conference and her interactions with Dr. Dirschberger, became defensive and appeared reluctant to discuss these matters with us. For example, she refused to provide us with an estimate of the number of one-on-one interactions she had with Dr. Dirschberger during his tenure at DSS. Witness 9 did state that on one night during the January 2017 NYPWA conference, Dr. Dirschberger invited all of the DSS attendees out to dinner at the Cheesecake Factory, after which Witness 8, Witness 9, Dr. Dirschberger, and another DSS employee went to a bar. The unnamed DSS employee left the bar before everyone else. Witness 9 stated that at the bar, Dr. Dirschberger was drinking something with Coke in it, but could not say whether alcohol was also in his drink. Witness 9 stated that she, Witness 8, and Dr. Dirschberger went back to the hotel, and had drinks at the hotel bar. Witness 9 stated that they all then went to Witness 8’s room to drink vodka which, according to Witness 9, Witness 8 provided in her room. She further stated that she and Dr. Dirschberger left Witness 8’s room at the same time and went to their own respective rooms. Witness 8 became openly antagonistic toward us and defensive when we asked about her preparation for our interview. When asked, Witness 8 stated that she met with Witness 10 and that they only discussed her rights with respect to the interview, and not her potential answers to our questions. Witness 8 was confrontational in response to our questions. Her responses to our questions suggested that she was not being candid or forthcoming in her answers with respect to her interactions with Dr. Dirschberger, specifically with respect to the NYPWA conference, and with respect to her preparation for the interview. Although we found no evidence that Dr. Dirschberger’s behavior at the NYPWA conference was reported to a supervisor or manager, his behavior was known within the DSS Legal Affairs department since we were initially alerted to the matter by a confidential source cultivated by a Lemire Law senior investigator. The confidential source did not attend the conference, but heard about Dr. Dirschberger’s offer to drink vodka in his hotel room from DSS employees in the Legal Affairs office. iv. December 5-6, 2017, Permanency Summit Content redacted. 17 v. Albany Criminal Investigation According to a memorandum dated December 27, 2017, written by Witness 1 to County Executive Poloncarz and Commissioner Palmer (the “Memo”), on December 20, 2017, Witness 1 received a telephone call from a Detective of the Albany Police Department who inquired about who had invited Jane Doe to the Summit. The Detective also asked questions about Jane Doe’s character. Witness 1 stated, according to the Memo, that Dr. Dirschberger was in Witness 1’s office at the time that the Detective called Witness 1, and Dr. Dirschberger told Witness 1 to inform Detective that Witness 1 had invited Jane Doe to the conference, rather than Dr. Dirschberger. At the end of the phone call, Dr. Dirschberger asked Witness 1 not to tell anyone about the call, “especially the 16th floor.” (The County Executive’s Office is located on the 16th floor of the Rath Building.) According to the Memo, Witness 1 called the Detective later that day and explained that Witness 1 had not been able to talk freely during their first telephone call because Dr. Dirschberger was in Witness 1’s office at the time. Witness 1 further stated to the Detective that Dr. Dirschberger had invited Jane Doe to the Summit. Witness 1 then answered the Detective’s questions about the relationship between Dr. Dirschberger and Jane Doe. Witness 1 told the Detective that during the previous summer, Witness 1 received a phone call from Witness 5 who told Witness 1 that Jane Doe had approached Witness 5 and stated that Dr. Dirschberger would “continually come to her office and spend time talking with her.” The Memo further states that the content of the conversation with Dr. Dirschberger was not work-related and caused Jane Doe to feel uncomfortable. Witness 1 wrote that Witness 5 had also told Witness 1 that Jane Doe had stated that the frequency and length of the contact by Dr. Dirschberger were causing Jane Doe to feel uncomfortable. Witness 1 noted in the Memo that the Detective requested that Witness 1 not discuss the investigation with anyone until the Detective completed the interviews; Witness 1 agreed not to speak to the County Executive, but asked the Detective to notify Witness 1 when Witness 1 could speak about what they had discussed. vi. Knowledge of County Executive Office It appears that although several DSS employees, including Witness 1 and other DSS employees who were contacted by the Detective, knew about the December 5, 2017, allegations against Dr. Dirschberger, no one from the County Executive’s Office or the Department of Law’s Office learned of the allegations until December 23, 2017. County Executive Poloncarz stated that he first learned about the allegations on December 23, 2017, when he received a call from Jennifer Hibit, Chief of Staff to the Erie County Executive, informing him that she had just spoken to Witness 1 and was informed that Dr. Dirschberger was the subject of a criminal investigation involving rape of a subordinate employee. 18 Ms. Hibit, for her part, stated that on Saturday, December 23, 2017, she received two missed calls and a text message from Witness 3 stating that Witness 1 needed to get in touch with her. Ms. Hibit called Witness 1, who informed her about the allegations against Dr. Dirschberger. Ms. Hibit indicated that Witness 1 told her that Witness 1 had been in the office with Dr. Dirschberger when Witness 1 first received a call from an Albany detective. According to Ms. Hibit, Witness 1 had told the Detective that Witness 1 could not talk freely at the time, and called the detective back later when Witness 1 was alone. Witness 1 told Ms. Hibit that the detective had told Witness 1 that there was a rape allegation against Dr. Dirschberger and had asked Witness 1 not to share this information while the Detective was conducting his investigation. Ms. Hibit further stated that Witness 1 informed her that the detective had told Witness 1 on the morning of December 23, 2017, that Witness 1 could inform the County Executive about the allegations against Dr. Dirschberger. Ms. Hibit then informed County Executive Poloncarz about her conversation with Witness 1. County Executive Poloncarz called Witness 1 on Witness 1’s personal telephone number and Witness 1 informed him of the conversations with the Detective, and stated that Witness 1 had been asked by the Detective to refrain from telling County Executive Poloncarz until the Detective’s investigation was complete. Witness 1 stated that the Detective had given Witness 1 clearance to inform the County Executive on December 23, 2017. After County Executive Poloncarz spoke with Witness 1, he asked Ms. Hibit to gather Commissioner Palmer, County Attorney Michael Siragusa, Deputy County Executive Maria Whyte, and Press Secretary Peter Anderson at 2:00 p.m. that day at the Rath Building, to discuss a plan of action. Ms. Hibit told us that Dr. Dirschberger was an appointment termed Commissioner whose term ended on March 16, 2020. The County administration had never terminated an appointee with a term, and thus needed to determine how to do so. Ms. Whyte explained to us that the Commissioner’s position was intended to outlive the term of the County Executive in order to create consistency in important government functions independent of political divisions. Ms. Hibit stated that she spoke with County Executive Poloncarz, Mr. Siragusa, Mr. Anderson, and Ms. Whyte (by phone) at 2:00 p.m. that day. Commissioner Palmer was on vacation abroad at the time. Ms. Hibit stated that at that meeting, the participants discussed Erie County policies that Dr. Dirschberger might have violated and the process for terminating an appointed Commissioner. County Executive Poloncarz stated that he wanted the County to investigate whether any policies were violated and how the County Executive could terminate Dr. Dirschberger, if necessary. Later that day, County Executive Poloncarz also spoke with the Detective, who confirmed that Dr. Dirschberger was a person of interest in an investigation. 19 According to Ms. Hibit, the meeting attendees communicated via text messages over the course of the next two days. In particular, Ms. Hibit was in contact with Messrs. Palmer and Siragusa, who were tasked with identifying the Erie County policies that Dr. Dirschberger might have violated if the allegations proved true. Ms. Whyte explained to us that the Erie County Department of Law initiated legal research to evaluate the procedures to be undertaken before removing a term-appointed Commissioner prior to the end of his term. Mr. Siragusa sought advice from outside counsel to assist the County in the event that Dr. Dirschberger refused to resign from his position voluntarily, in which case the County would have to go through a hearing process. Ms. Whyte stated that on December 26, 2017, Commissioner Palmer joined a conference call with Ms. Whyte, County Executive Poloncarz, Ms. Hibit, and Mr. Siragusa. At that time, Mr. Siragusa reported that he had engaged an outside law firm to conduct legal research with regard to the ability to remove an appointed term Commissioner. According to Ms. Whyte, it was also decided at that time that Ms. Hibit and Ms. Whyte would interview Witness 1 about Witness 1’s recollections of what had happened on December 5-6, 2017. Dr. Dirschberger was on vacation at that time. Ms. Whyte and Ms. Hibit interviewed Witness 1 on December 26, 2017. Witness 1 indicated to Ms. Whyte and Ms. Hibit that during the week of December 18, 2017, Dr. Dirschberger was in Witness 1’s office for a meeting, when Witness 1 received the initial call from the Detective, and learned of the criminal investigation. Witness 1 indicated to Ms. Whyte that during the phone call, Dr. Dirschberger tried to “feed answers” to Witness 1. Witness 1 stated to Ms. Whyte and Ms. Hibit that when Dr. Dirschberger left Witness 1’s office, Witness 1 called the detective back and explained that Witness 1 did not “feel free to discuss the [matter] with him” during the previous call because Dr. Dirschberger had been in Witness 1’s office. Witness 1 went on to recount much of her conversation with the Detective, including that the Detective asked Witness 1 not to disclose the investigation to others. After Ms. Whyte and Ms. Hibit interviewed Witness 1, Ms. Whyte and Ms. Hibit believed that there was sufficient detail to demonstrate that Dr. Dirschberger violated the County policies, and the Administration would be able to move forward with Dr. Dirschberger’s suspension and/or removal. Ms. Whyte stated that Mr. Siragusa then prepared a memo for the County Executive citing County policies that he had researched with Commissioner Palmer’s assistance. Ms. Whyte stated the decision was made to call Dr. Dirschberger on December 28, 2017, since he was still out of the office on vacation, but that he appeared to delay the conversation. County Executive Poloncarz, Ms. Hibit, Mr. Siragusa, and Ms. Whyte were all present when Dr. Dirschberger responded to attempts to contact him by telephone. During the call, County Executive Poloncarz asked Dr. Dirschberger whether he had intercourse with Jane Doe, a subordinate. Dr. 20 Dirschberger answered affirmatively. County Executive Poloncarz then advised Dr. Dirschberger that he had violated Erie County policies, in particular the Erie County Fraternization Policy, and asked for Dr. Dirschberger’s resignation. Dr. Dirschberger agreed to tender his resignation. (A recording of the December 28, 2017, telephone call between County Executive Poloncarz and Dr. Dirschberger was provided to Lemire Law.) By email dated December 28, 2017, at 11:59 a.m., Dr. Dirschberger submitted his resignation to County Executive Poloncarz, Ms. Hibit, Ms. Whyte, and County Attorney Siragusa. vii. Personnel Department Investigation Commissioner Palmer stated that the County Executive and the County Attorney asked him to conduct an internal investigation to, in part, ensure that there were “no signs that should have been recognized before.” In March 2018, Commissioner Palmer interviewed employees who may have had information about Dr. Dirschberger and Jane Doe. He stated that he allocated one hour or more for each interview. Commissioner Palmer did not interview Jane Doe. Commissioner Palmer explained that after he had left a message on the phone number he had for Jane Doe, her attorney returned the call, informing Commissioner Palmer that all further communication should go through him. Commissioner Palmer stated that he had reached out to Dr. Dirschberger via a personal email address, but Dr. Dirschberger refused to speak with Commissioner Palmer. Commissioner Palmer interviewed the following DSS employees: Witness 1, Witness 2, Witness 5, and Witness 7. Commissioner Palmer stated that he did not interview Witness 6 and was unaware that Witness 6 may have been a witness in connection with the allegations. Commissioner Palmer stated that Witness 1 had thought that Jane Doe complained to Witness 5 that Dr. Dirschberger had made Jane Doe feel uncomfortable. However, according to Commissioner Palmer, Witness 5 characterized Jane Doe’s remark as a “statement,” and not a formal complaint about unwanted behavior. Commissioner Palmer stated to us that Witness 5 told him that Jane Doe had expressed confusion over Dr. Dirschberger’s visits to her office. According to Witness 5’s statements to Commissioner Palmer, Jane Doe had remarked to Witness 5 that Jane Doe questioned the visits but did not say the visits caused her to feel uncomfortable. Commissioner Palmer stated that when he asked Witness 7 about improper behavior or harassment by Dr. Dirschberger, Witness 7 stated that Witness 7 had not observed inappropriate conduct. Witness 7 saw Dr. Dirschberger in Jane Doe’s office occasionally, but stated that she had never complained to Witness 7 that Dr. Dirschberger 21 made her feel uncomfortable. Commissioner Palmer further stated to us that he did not deem Dr. Dirschberger’s visits with CPS workers unusual. Commissioner Palmer stated that he found no prior reported complaints by Jane Doe regarding Dr. Dirschberger. Commissioner Palmer stated that he had asked Witness 7 and Witness 5 during his investigation whether Jane Doe expressed concerns about Dr. Dirschberger’s behavior, and they both indicated that she did not. Commissioner Palmer memorialized the interviews in notes and then prepared a summary for the County Executive Office. Commissioner Palmer informed the County Executive that his review did not reveal any prior red flags regarding Dr. Dirschberger. 22 VII. FINDINGS Lemire Law Firm was retained as Special Counsel to investigate nine specific issues, as specified by the Legislature’s resolution, Intro. 6-10. In this section, we address separately each issue within our mandate. A. Formal Claims or Complaints Related to Dr. Dirschberger Made During Tenure at DSS We did not find any evidence that any employee or third parties made formal claims or complaints of sexual harassment or gender discrimination against Dr. Dirschberger during his tenure at DSS, other than the December 2017 allegations that led to Dr. Dirschberger’s resignation. Mr. Burnette stated to us that there were no complaints filed against Dr. Dirschberger with the EEO Office during his tenure as Commissioner of DSS. This was also confirmed by Ms. Parker. Commissioner Palmer stated that he was not aware of any complaints or rumors of workplace misconduct by Dr. Dirschberger. He also stated that, according to his investigation conducted at the direction of the County Executive, he discovered no complaints about unwanted behavior. According to Ms. Parker, there have been no complaints made by or against Dr. Dirschberger filed with the Office of Personnel, the County EEO Office, or DSS. In addition, the Department of Law has no record of employee complaints by or against Dr. Dirschberger filed with any outside agencies, including the New York State Division of Human Rights and the U.S. Equal Employment Opportunity Commission. Three litigation matters were identified that include Dr. Dirschberger’s name in the caption. Each of these matters are Article 78 Petitions directed to Dr. Dirschberger as the Commissioner of DSS with respect to carrying out policy, including: 1. A petition directed to (1) Sharon Devine, the Executive Deputy Commissioner of the NYS Office of Temporary and Disability Assistance and (2) Al Dirschberger, as Commissioner of the Erie County Department of Social Services. This matter was filed by an applicant for services who, through the Empire Justice Center, challenged a state policy with respect to distribution of benefits. 2. An action directed to (1) Howard Zucker, acting Commissioner of the New York State Department of Health and (2) Al Dirschberger, Commissioner, Erie County Department of Social Services. This matter involved a nursing 23 home challenging the denial of its patient/resident’s application for Medicaid benefits. 3. An action directed to (1) Albert Dirschberger, Commissioner of DSS and (2) Samuel Roberts, Commissioner of New York State Office of Temporary Disability Assistance. This matter arose from DSS’ denial of an application by the petitioner for a restaurant allowance. B. Complaints Related to Dr. Dirschberger That Were Known or Should Have Been Known Prior to Hiring We did not find any credible evidence that there were any complaints related to sexual harassment or workplace discrimination made against Dr. Dirschberger that were known or should have been known prior to his hiring. i. Erie Community College We spoke to Tracey Cleveland, Vice President of Human Resources, Equity, and Inclusion at Erie Community College (“ECC”), who stated that Dr. Dirschberger was hired as a professor at ECC in 2008, and indicated that he took a leave of absence sometime in 2015 when he became the Commissioner at DSS. Ms. Cleveland stated that Dr. Dirschberger’s leave of absence was due to expire at the end of August 2018, but indicated that Dr. Dirschberger expressed his intention to reinstate his employment prior to that date. When asked whether she was aware of any allegations against Dr. Dirschberger during his tenure at ECC, Ms. Cleveland stated that she previously heard rumors that Dr. Dirschberger was removed from a class in the middle of a semester, and that all students in the class were subsequently given A-grades. She was unable to find evidence to substantiate the rumors. Ms. Cleveland explained that she looked into these allegations when attorneys from Goldberg Segalla, a law firm retained by ECC raised the allegations. Ms. Cleveland told us that she asked the ECC Director of Registration, Paul Lamanna, to review his records in connection with Dr. Dirschberger’s status at ECC. Ms. Cleveland stated that Mr. Lamanna found no record of the allegations. Ms. Cleveland indicated that she was not aware of any complaints of inappropriate behavior or sexual harassment against Dr. Dirschberger during his tenure at ECC. She explained that if someone made a complaint against Dr. Dirschberger in the past, the complaint would be included in his personnel file in her office. Ms. Cleveland indicated that once she learned about the Albany criminal matter against Dr. Dirschberger, she reviewed the files and did not find any claims or complaints against Dr. Dirschberger. 24 ii. Gateway-Longview We contacted Carolyne DeFranco, current President and CEO of GatewayLongview, where Dr. Dirschberger was previously employed. Upon her request, we provided her with a brief list of questions and topic areas we wanted to address with her. Ms. DeFranco thereafter declined to respond to our request for information and an interview. We did speak with one former employee of Gateway-Longview and with other Erie County employees who had a history of interacting with employees at GatewayLongview. Each person interviewed stated that they were not aware of any complaints or rumors of misconduct on the part of Dr. Dirschberger during his tenure at GatewayLongview. C. Informal Claims or Complaints Related to Dr. Dirschberger Our investigation revealed that Jane Doe may have complained about Dr. Dirschberger’s conduct prior to December 5, 2017. The nature of the complaint is disputed and since we were unable to interview Jane Doe or Witness 1, it is difficult to determine whether a complaint was made that required a response from Erie County. As detailed above, in the Memo, Witness 1 wrote that Witness 1 informed the Detective that, over the summer of 2017, Witness 1 received a phone call from Witness 5, who informed Witness 1 that Jane Doe had approached Witness 5 and said that Dr. Dirschberger “would continually come to [Jane Doe’s] office and spend time talking with [Jane Doe]. The content of the conversation was not work[-]related and [Jane Doe] was feeling uncomfortable.” Witness 1 reported in the Memo that Witness 1 had asked Witness 5 whether Jane Doe stated that Dr. Dirschberger had said anything that upset Jane Doe, and Witness 5 responded in the negative, but did say the frequency and length of the office contact was making Jane Doe feel uncomfortable. During our interview, Witness 5 stated that the Detective had asked whether Witness 5 had knowledge of Dr. Dirschberger spending time in Jane Doe’s office. Witness 5 indicated that Witness 5 had told the detective that Dr. Dirschberger had started spending time in the CPS offices while Witness 1 was out of the office, and had added that although Jane Doe had wondered why the Commissioner was coming to talk to her, she had “never expressed discomfort” about Dr. Dirschberger visiting her office. Witness 5 stated to us that Witness 5 had told the detective that Witness 5 shared this information with Witness 1 during an in-person meeting. Witness 5 further stated to us that, in late winter 2017, Witness 5 worked on a complex adoption case with Witness 1 and Dr. Dirschberger. Witness 5 stated to us that Witness 7 had questioned why Dr. Dirschberger was visiting Jane Doe’s office often, that Witness 7 thought that it was “strange” and that it was happening because Jane Doe was “a young pretty girl.” Witness 5 stated that when Witness 7 had reported this information 25 to Witness 5, Witness 5 had then shared the information with Witness 1. Witness 5 told us that Witness 5 did not know whether Witness 1 had taken any action in response. Witness 7 stated to us that Witness 7 had witnessed Dr. Dirschberger, alone, in Jane Doe’s office about five or six times during 2017. In one instance, Witness 7 stated to us that the door was either closed or slightly open, and when Witness 7 had opened it, Witness 7 had seen Dr. Dirschberger sitting in Jane Doe’s office. Witness 7 stated that Witness 7 and Jane Doe had discussed Dr. Dirschberger’s visits to her office and Jane Doe had told Witness 7 that Dr. Dirschberger had told her things that she did not need to know in the course of her job, such as how well particular employees performed. Jane Doe also told Witness 7 that Dr. Dirschberger discussed with Jane Does whether he was considering terminating particular employees, and also discussed employee paygrades. Witness 7 stated to us that Jane Doe had asked Witness 7 what Witness 7 thought about these conversations, which clearly were not relevant to Jane Doe’s role at CPS. When we asked Witness 7 whether Jane Doe had expressed any feelings of discomfort or unease in connection with her interactions with Dr. Dirschberger, Witness 7 stated to us that although Jane Doe had thought Dr. Dirschberger was “creepy,” she had not appeared uncomfortable with regard to their interactions. Witness 5 further stated to us that Witness 5 could not recall the exact timeframe, but during the time that Witness 1 was on medical leave, Jane Doe had asked Witness 5 why Dr. Dirschberger was talking to her since she was “six levels below” him. Witness 5 stated to us that Jane Doe did not indicate that she felt uneasy about these interactions. Witness 5 stated that Witness 1 told Witness 5 that Witness 1 had discussed with Jane Doe whether she had any concerns about going to Albany when Dr. Dirschberger had invited Jane Doe to attend the Summit. According to Witness 5, Witness 1 had stated that Jane Doe was looking forward to attending the conference and “was honored to be asked.” Because we are unable to interview Witness 1, we are unable to determine the accuracy of her memory as compared to Witness 5. D. Written Procedures Followed by Other Counties as to Similar Complaints Made Against Supervisors We analyzed publicly-available harassment policies utilized in multiple counties in New York State, including the counties of Albany, Broome, Clinton, Erie, Essex, Genesee, Niagara, Ontario, Rockland, Suffolk, Tioga, Ulster, Westchester, and New York. We compared similarities and differences in policies, procedures, and training requirements utilized by each of the counties.30 Our analysis focused on the options available to employees for reporting sexual harassment, the investigative process of 30 County policies were retrieved online from their respective County websites. Analyses were therefore performed on the most recently accessible policy at the time of our review. 26 sexual harassment claims, safeguards to protect sexual harassment claimants, as well as the sexual harassment training requirements for all New York State employees. i. Reporting Sexual Harassment We found that procedures for reporting harassment differ by county, as some counties expect employees to submit a formal written complaint (e.g., Suffolk, Erie, Broome), while others allow employees to submit a verbal or written complaint (e.g., New York, Westchester, Tioga, Clinton, Rockland). Ulster, Ontario, Niagara, and Essex County policies do not specify the method for employees to file a complaint. Some counties explicitly encourage employees to notify the alleged offender that his or her behavior is unwelcome (Erie, Tioga), while most county policies encourage employees to report complaints initially to a supervisor. If the employee feels uncomfortable doing so, or if the supervisor is the alleged harasser, then the employee should report to the Department Head (Erie, Westchester, Ontario, Tioga), the Compliance Officer (Essex), the Personnel Director (Clinton), the Personnel Officer (Tioga), or the Director of Personnel and Labor Relations (Suffolk). Most policies provide alternative reporting channels, including reporting to another department’s head or the County’s EEO Director (Erie), an alternative administrator (Essex), the Deputy County Executive (Suffolk), the EEO Compliance Officer (Westchester), the Director of Human Resources or the County Compliance Officer (Ontario), or the County Administrator or his/her designee (Clinton). Ulster, Rockland, and Niagara county policies provide employees with other reporting options. Ulster County policy states that any employee who feels that he or she has been the subject of harassment should immediately report the situation to the Personnel Officer or the Director of Employee Relations. Niagara County instructs employees to report the complaint directly to his or her Human Resources Representative, but also allows employees to report to a manager who is not the subject of the complaint. Rockland County allows employees to file the complaint with any department executive, supervisor, manager, or the Office of Employee Rights. Similarly, New York County urges individuals to report the incident to his or her supervisor or manager; to agency personnel supervising the application, testing, and interviewing process; directly to the EEO office at the agency where the violation occurred; or to the employer of the alleged harasser. While counties differ in the procedures for employees to file a complaint, the majority suggest that employees report a complaint immediately, or as soon as possible, to allow for a timely investigation. Essex County serves as an outlier, imposing a deadline, 90 days, for the filing of complaints. Similarly, New York County requires the complaint to be filed within one year of the conduct at issue. 27 ii. The Investigative Process We found that the county policies we reviewed utilize different approaches and processes to investigate a sexual harassment complaint. Some county policies contain very specific guidelines, including designated timelines for sexual harassment investigations, while several counties do not provide a clear process for investigating sexual harassment complaints. Since the approaches by the counties we reviewed vary widely, we have provided below summaries of the investigative process for each county policy. Broome The Personnel Officer, within five days of receipt of a complaint, must send an acknowledgement letter to the complainant to advise him or her of the right to be represented in the complaint process. The Personnel Officer may meet with the complainant within 15 days from the date of receipt of written allegations, to conduct a preliminary investigation and to discuss the circumstances underlying the allegations, and attempt informally to resolve the issues. If the complaint cannot be resolved informally, the Personnel Officer must advise the complainant within 15 days of receipt of the complaint. Clinton The Personnel Director or his/her designee is required to investigate each complaint or appoint a third-party investigative officer to conduct an investigation. The investigative process is not detailed in the policy; however, the policy states that the amount of time needed to complete an investigation depends on the particular circumstances of the case. An investigative report is written with the findings from the Personnel Director or appointed investigator. At the end of the investigation, the Personnel Director creates an investigation file separate from the personnel files. The file contains the complaint, or in the event of an oral complaint, a written description of the complaint, the investigation documents, the complaint’s resolution, and any follow-up documentation, including the resolution. The Clinton County policy does not provide details regarding the retention requirement of this file. Essex Once a complaint is received, the Personnel Officer conducts the investigative process, and interviews the complainant, the accused, and any witnesses, reviews any relevant documents, and assists in the completion of a written complaint form, which is filed with the Clerk of the Board. The Personnel Officer informs all parties to the complaint about the factual allegations and allows the parties an opportunity to respond to the charges and the evidence. Next, the Personnel Officer prepares a written report, 28 including recommendations for the Board of Supervisors, within 30 working days after the filing of the written complaint with the Clerk of the Board. Once the report and recommendations are received, the Board of Supervisors has 60 working days to issue a final decision in writing to the parties concerned, including any disciplinary actions. Genesee Upon receipt of a written complaint, the County Human Resources Director (“HR Director”) arranges for a prompt investigation. Before the investigation begins, the HR Director notifies the victim’s and the alleged harasser’s Department Head that an investigation will occur. The HR Director/Affirmative Action Officer (“AAO”) conducts the investigation, which includes a written record of testimony of both the alleged victim and the alleged harasser, interviews with witnesses, and any other relevant information or documentation. The HR Director/AAO notifies both parties in writing of the findings of the investigation. The HR Director/AAO then recommends appropriate corrective and/or disciplinary action to the County Manager, if applicable. If either party is unsatisfied with the final report and recommendations, he or she may appeal. Rockland To initiate the investigation, the Office of Employee Rights communicates with the complainant and meets with the alleged harasser (the respondent) to discuss the allegations. At that time, the respondent receives a written copy of the formal complaint and he or she can respond in writing within ten business days. The respondent can also provide the names of any witnesses to aid in his or her defense. The sexual harassment investigation includes conferring with the parties involved and witnesses, as well as examining evidence (i.e., physical evidence, documentary evidence, personnel records, administrative policies and processes, investigation of other allegations or violations that may be discovered during the investigation, etc.). At the end of the investigation, the Office of Employee Rights issues its findings of fact and recommendations within 60 calendar days from receipt of the complaint. The Department Head shall determine, after receiving the recommendations of the Office of Employee Rights, what, if any, action to take. Suffolk The Director of Personnel and Labor Relations (“Director”) investigates the allegations by interviewing witnesses and employees, and conducts a formal hearing on any findings within the investigation. The Director has 90 days to conduct the investigation and issue a written decision including both the findings and conclusion. Copies of the complaint and the written report are sent to the complainant, the alleged harasser, the relevant department head(s), the County Executive, and the Chairman of the Legislative and Personnel Committee of the County Legislature. A copy is also stored in the personnel files of the relevant employees. If either the claimant or the alleged 29 harasser is unsatisfied with the Director’s findings or decision, the decision may be appealed within 90 days after the issuance of the findings. Westchester Upon receiving the complaint, the investigator, assigned by the Office of Equal Employment Opportunity/Affirmative Action (“EEO/AA”), conducts a prompt and thorough investigation. The investigation may include interviewing the parties involved and any witnesses, as well as reviewing relevant documentation. Employees who have been accused of harassment are afforded the opportunity to present information in their defense. Upon the completion of the investigation, the investigator prepares and submits a written confidential summary of the complaint, including the response and the facts of the investigation, to the Office of EEO/AA. The investigator should attempt to complete the investigation and submit the report within seven business days, but the Office of EEO/AA is able to grant an extension, as necessary. The Office of EEO/AA then issues a final, written fact-finding determination and recommends appropriate disciplinary or corrective action. At that time, the head of any relevant department shall independently determine if it is appropriate to initiate a disciplinary proceeding or to take other corrective action. If the Department Head does not find it appropriate, he or she can contact the Office of the EEO/AA. If the claimant or alleged harasser is unsatisfied with the findings of the investigation, the decision may be appealed within seven business days of receipt of the report. The counties listed below differ from the others, as their sexual harassment policies are vague, and do not specify the investigative process or provide involved parties with guidelines and expectations for the investigation: Albany31 According to its policy, Albany County takes all reasonable steps to prevent and eliminate sexual harassment. Specific details regarding the investigative process or timing guidelines are not included in the policy. Erie Once a complaint has been reported, a written report is submitted to the EEO Office to initiate an investigation. While the Erie County policy states that the prompt reporting aids in the investigation for a rapid and timely response, the policy only states that “such reports will be handled according to the policy for reporting such incidents as directed by the County Executive.” The policy does not outline any investigative process or timeline guidelines. The policy does state that at the conclusion of the investigation and depending on the nature and seriousness of the offense, the County imposes Albany County’s sexual harassment investigative procedures are incorporated in its Title VI/Discrimination Complaint Procedures. 31 30 appropriate discipline, up to termination against any manager, supervisor, or employee found to have engaged in sexual harassment. Tioga Complaints are investigated as promptly as possible and resolved within a reasonable time after the receipt of the complaint. The Office of the County Attorney, with the oversight of the Personnel Officer, coordinates an investigation of the complaint. Following the investigation, the County Attorney may issue a written report of findings and conclusion. If the evidence indicates that harassment is found, the County may take disciplinary action in accordance with the provisions of applicable collective bargaining agreements and/or state law. The Tioga County sexual harassment policy does not provide details concerning the investigative process or the timing for such investigations. Ulster An investigation consists of questions to the complainant, the alleged harasser, and any witness. Results of the investigation are communicated to the complainant and the alleged harasser as expeditiously as possible. According to the policy, appropriate action is taken against any person who violates the sexual harassment policy. Ulster County does not provide details concerning the investigative process or the timing of such investigations. iii. Safeguards to Protect Employees Who Report Sexual Harassment All county policies we reviewed explicitly prohibit retaliation against any employee who brings a written or verbal complaint of sexual harassment or who assists or participates in the investigation. In addition, all of the policies include a confidentiality disclaimer to ensure that all individuals involved in the investigation will be held as confidential as possible. Some county policies allow individuals, including the claimant, to file an appeal after the initial investigation concludes its findings (Essex, Westchester, Genesee, Clinton). Each county differs in the timeframe for an appeal to be filed, but all are approximately one to two weeks after the findings of the investigation are disseminated. Another safeguard includes monitoring employees who engaged in unlawful behaviors. In Westchester County, the Office of EEO/AA will monitor the conduct of the employee accused of harassment for approximately ninety days to ensure compliance with the proposed recommendation of the investigative report. The employee who reported the harassment can request a longer period of oversight. Similarly, Ulster County will perform a subsequent review to ensure that any violation has ceased. Essex County preserves records of the sexual harassment investigation and complaints for at least six years in the Personnel Department. In instances where cases 31 are unresolved, the records are maintained indefinitely until resolution has been reached or until all parties are no longer employees of the County. Similarly, Suffolk County retains a copy of the complaint and the findings of a sexual harassment investigation in the personnel files of both the complainant and the accused. iv. Required Training and Education of Sexual Harassment Four counties provide information regarding the training of sexual harassment in their policies, as detailed below. In Erie County, training is provided by the Department of Personnel to County employees and supervisors regarding harassment, discrimination, and retaliation. In Tioga County, the County conducts annual training on its Sexual Harassment Prevention Policy. In Genesee County, at the beginning of each fiscal year, employees receive information regarding the County’s sexual harassment policy and/or procedures. Each employee is required to acknowledge receipt of such information. Periodically throughout the year, additional educational material regarding sexual harassment is distributed to Department Heads for their dissemination to employees. Furthermore, during new employee rotation, Genesee County emphasizes the County’s Sexual Harassment Policy; all new employees receive a copy of the County’s policy and must acknowledge receiving and understanding the policy with his or her signature. In Clinton County, education and training is provided for all levels of employees. As part of general orientation, each employee is given a copy of the County’s Discriminatory Policy and Regulations and is requested to read them and sign an acknowledgement. Each supervisor is trained in the administration of the sexual harassment policy and training is refreshed as necessary. In addition, the Personnel Director or his or her designee will explain orally at least one time per year at departmental staff meetings, or other such appropriate times, the County’s commitment to elimination and prevention of sexual harassment. Furthermore, the Personnel Director attends training sessions and will attend training seminars conducted by experienced discrimination and harassment educators and/or investigators to teach them about the problems of harassment in the workplace and techniques for identifying, investigating, and addressing discrimination and harassment. In New York County, employers with 15 or more employees must provide their employees with annual sexual harassment training. The training must be interactive (i.e., must include some form of participatory teaching or trainer-trainee interaction), define sexual harassment, provide examples of conduct that would constitute sexual harassment, provide information on applicable state and federal laws, along with the remedies available to victims. Furthermore, the training must address bystander intervention, and provide a description of the complaint process. New employees who work 80 or more 32 hours per year must be trained after 90 days of hire, unless the employee received training within the same annual cycle from a prior employer. v. New York State Sexual Harassment Laws Sexual harassment laws in New York State have been updated recently and require, among other things, that all employers in New York State adopt a sexual harassment prevention policy and provide all employees with sexual harassment prevention training on an annual basis. All New York employers must adopt a sexual harassment prevention policy that meets or exceeds minimum standards, and must meet the following qualifications: • prohibit sexual harassment consistent with guidance issued by the Department of Labor in consultation with the Division of Human Rights; • provide examples of prohibited conduct that would constitute unlawful sexual harassment; • include information concerning the federal and state statutory provisions concerning sexual harassment, remedies available to victims of sexual harassment, and a statement that there may be applicable local laws; • include a complaint form; • include a procedure for the timely and confidential investigation of complaints that ensures due process for all parties; • inform employees of their rights of redress and all available forums for adjudicating sexual harassment complaints administratively and judicially; • clearly state that sexual harassment is considered a form of employee misconduct and that sanctions will be enforced against individuals engaging in sexual harassment and against supervisory and managerial personnel who knowingly allow such behavior to continue; and • clearly state that retaliation against individuals who complain of sexual harassment or who testify or assist in any investigation or proceeding involving sexual harassment is unlawful. All New York State employers must provide to its employees training that meets or exceeds minimum standards, including the following requirements: • be interactive; 33 E. • include an explanation of sexual harassment consistent with guidance issued by the Department of Labor in consultation with the Division of Human Rights; • include examples of conduct that would constitute unlawful sexual harassment; • include information concerning the federal and state statutory provisions concerning sexual harassment and remedies available to victims of sexual harassment; • include information concerning employees’ rights of redress and all available forums for adjudicating complaints; and • include information addressing conduct by supervisors and any additional responsibilities for such supervisors. Whether any Complaints or Claims Were Sent to, Were Required to be Sent to, or Should Have Been Sent to Anyone in the Equal Employment Office, the Personnel Office, or the County Attorney’s Office There is no evidence that any complaints about Dr. Dirschberger relating to workplace misconduct, including sexual harassment, were sent to the Erie County EEO Office, the Personnel Office, or the County Attorney’s Office. It is unclear whether any complaints or claims were required to be sent to or should have been sent to anyone in the EEO Office, the Personnel Office, or the County Attorney’s Office. We note that we received conflicting information about the content of the comments made by Jane Doe in the summer of 2017 regarding Dr. Dirschberger’s behavior toward her, namely the frequent office visits. If Jane Doe reported to Witness 5 that she felt uncomfortable with Dr. Dirschberger’s interactions with her, under the Harassment Policy, the complaint should have been reported by a manager and investigated. We are unable to conclude, however, whether Jane Doe described Dr. Dirschberger’s conduct as causing her to feel uncomfortable. F. Was the County Negligent in the Hiring and Supervision of Dr. Dirschberger Our investigation did not uncover anything to suggest that Erie County was negligent in the hiring and supervision of Dr. Dirschberger. We did uncover behavior by Dr. Dirschberger that was troubling at off-site work events; however, it is not clear that anyone with supervisory and/or management responsibility had knowledge of this behavior. Dr. Dirschberger’s pattern of meeting line-level employees at coffee shops during the workday certainly raises red flags, and his offer to drink shots of vodka in his 34 hotel room with female subordinate employees is troubling, but there is no evidence that anyone complained of unwanted or unwelcomed behavior. A necessary element of a cause of action alleging negligent hiring or negligent supervision of an employee is that the “employer knew or should have known of the employee’s propensity for the conduct which caused the injury.” Kenneth R. v. Roman Catholic Diocese of Brooklyn, 229 AD2d 159, 161 (2d Dept 1997). Based on the information available, it does not appear that Erie County knew or should have known that Dr. Dirschberger had a “propensity” for sexual assault. G. Was Anyone in County Government Aware of Sexual Harassment and/or Abuse by Al Dirschberger While He Was Employed by Erie County and Allowed Said Conduct to Continue Unabated Our investigation found no evidence that anyone in Erie County government was aware of sexual harassment and/or abuse by Dr. Dirschberger while he was employed by Erie County and allowed such conduct to continue unabated. There is evidence of questionable behavior, such as inviting female employees to his hotel room to drink vodka; however, it is unclear whether anyone in a supervisory and/or managerial position was aware of such conduct. H. Was the County Negligent in Their Duty to Protect Employees from Al Dirschberger, Or Instances of Sexual Harassment or Assault Our investigation did not uncover anything to suggest that Erie County was negligent in its duty to protect employees from Dr. Dirschberger or instances of sexual harassment or assault. We did uncover behavior by Dr. Dirschberger that was troubling at off-site work events; however, it is not clear that anyone with supervisory and/or management responsibility had knowledge of this behavior. Dr. Dirschberger’s pattern of meeting junior employees at coffee shops during the workday certainly raises red flags, and his offer to drink shots of vodka in his hotel room with female subordinate employees is troubling, but there is no evidence that anyone complained of unwanted or unwelcomed behavior. I. Was the County Negligent in Failing to Protect Employees from the Dangers Posed by Al Dirschberger Our investigation did not uncover anything to suggest that Erie County was negligent in failing to protect employees from the dangers posed by Dr. Dirschberger. As described above, we did uncover behavior by Dr. Dirschberger that was troubling, but we found no evidence that anyone complained of unwanted or unwelcomed behavior. 35 J. Who Had, or Should Have Had, Actual or Constructive Notice of the Prior Actions of Al Dirschberger, Specific to Sexually Harassing and/or Abusing Employees in his Charge We found no credible evidence that anyone had or should have had actual or constructive notice of prior actions by Dr. Dirschberger specific to sexually harassing and/or abusing employees in his charge because we found no evidence that there were prior actions of Dr. Dirschberger specific to sexually harassing and/or abusing employees in his charge. While there is evidence of questionable behavior, as described above, we found no evidence that anyone in a supervisory or managerial position was aware of such conduct. 36 Exhibit A Ill \i - ERIE COUNTY EMPLOYEE HANDBOOK 2016 EDITION (Revised 10/2016) 000149 Dear County Employee: Your appointment to your position as an Erie County employee carries with it certain duties, responsibilities, rights and privileges. This Employee Handbook is designed to inform you in detail of many of the personnel policies and procedures that apply to all County employees. I urge you to read this Handbook thoroughly. It is designed to help you to be more successful in your job. We are pleased you have joined our team and wish you a rewarding and fulfilling public service career. Sincerely MARK POLONCARZ County Executive EDWARD A. RATH COUNTY OFFICE BUILDING 95 FRANKLIN STREET, BUFFALO, NEW YORK 14202 i 000150 TABLE OF CONTENTS INTRODUCTION .................................................................................... 1 FOREWORD ............................................................................................ 2 PURPOSE ................................................................................................. 2 ERIE COUNTY AND ITS GOVERNMENT .......................................... 3 BACKGROUND ...................................................................................... 4 MEETING THE PUBLIC ........................................................................ 4 RESIDENCY ............................................................................................ 5 CODE OF ETHICS .................................................................................. 5 IDENTIFICATION CARDS .................................................................... 6 EMPLOYEE ASSISTANCE PROGRAM ............................................... 6 DIRECT DEPOSIT .................................................................................. 6 FLEXIBLE BENEFITS ............................................................................ 7 TELEPHONES ......................................................................................... 7 CELLULAR PHONES ............................................................................. 7 POLITICAL ACTIVITY .......................................................................... 8 AGENCY SHOP ...................................................................................... 8 PERSONNEL FILES................................................................................ 8 ERIE COUNTY EQUAL EMPLOYMENT OPPORTUNITY OFFICE . 9 HARASSMENT POLICY OF ERIE COUNTY ...................................... 9 WORKPLACE VIOLENCE POLICY ................................................... 15 FAMILY AND MEDICAL LEAVE ACT OF 1993 .............................. 15 AMERICANS WITH DISABILITIES ACT AND NEW YORK EXECUTIVE LAW ................................................................................ 18 PHYSICAL EXAMINATIONS ............................................................. 19 SALARY PLAN ..................................................................................... 19 MERIT INCREMENTS ......................................................................... 20 PAY DAYS ............................................................................................ 21 EMERGENCY & TEMPORARY ASSIGNMENTS ............................. 21 PROMOTIONS ...................................................................................... 21 REASSIGNMENT WITHIN TITLE AND GRADE ............................. 21 PROBATIONARY TERMS ................................................................... 22 ATTENDANCE & RECORDING ATTENDANCE ............................. 23 COMPENSATORY TIME POLICY ..................................................... 23 TARDINESS POLICY ........................................................................... 24 ii 000151 FLEXIBLE TIME AT START OF SHIFT ............................................ 24 EMERGENCY CLOSINGS ................................................................... 24 REMOVAL AND OTHER DISCIPLINARY ACTION ........................ 25 RULES .................................................................................................... 25 GROUP A ............................................................................................... 25 GROUP B ............................................................................................... 27 GROUP C ............................................................................................... 28 EMPLOYEE BENEFITS ....................................................................... 29 HEALTH, HOSPITALIZATION AND DENTAL INSURANCE ........ 29 NOTIFICATION PROCEDURE ........................................................... 31 DENTAL INSURANCE ........................................................................ 32 WAIVERS OF BENEFITS .................................................................... 32 FEDERAL COBRA MEDICAL/DENTAL INSURANCE LAW ........ 33 VACATIONS ......................................................................................... 34 PERSONAL LEAVE.............................................................................. 35 SICK LEAVE ......................................................................................... 35 CALL-IN PROCEDURES TO REPORT NECESSARY ABSENCE FROM WORK ........................................................................................ 36 ABUSE OF SICK LEAVE ..................................................................... 37 MATERNITY LEAVE ........................................................................... 38 EXTENDED SICK LEAVE ................................................................... 39 CANCER SCREENING ......................................................................... 40 SAFETY AND HEALTH....................................................................... 40 ON THE JOB INJURY .......................................................................... 42 LEAVES OF ABSENCE WITHOUT PAY (GENERAL) ..................... 43 MILITARY LEAVE OF ABSENCE ..................................................... 43 VETERANS EDUCATIONAL LEAVE ................................................ 43 LEAVES WITHOUT PAY FOR OTHER REASONS .......................... 44 RETIREMENT BENEFITS ................................................................... 44 BEREAVEMENT LEAVE .................................................................... 46 LEAVE FOR JURY DUTY ................................................................... 46 UNEMPLOYMENT INSURANCE ....................................................... 46 TRAVEL EXPENSES ............................................................................ 47 COMPUTER INFORMATION SECURITY ......................................... 47 INTERNET ACCESS POLICY ............................................................. 48 E-MAIL POLICY ................................................................................... 48 iii 000152 BLOOD DONATION POLICY ............................................................. 49 SMOKING POLICY .............................................................................. 49 DRUG FREE WORKPLACE ................................................................ 49 DUAL EMPLOYMENT ........................................................................ 50 CLASSIFIED RULES ............................................................................ 50 COMPETITIVE CLASS TRANSFER ................................................... 50 LAY-OFF/RETRENCHMENT FOR COMPETITIVE CLASS POSITIONS ............................................................................................ 51 COMPETITIVE CLASS PREFERRED LISTS RESULTING FROM LAY-OFF ............................................................................................... 52 RESIGNATIONS ................................................................................... 54 REINSTATEMENT ............................................................................... 54 iv 000153 INTRODUCTION This 2010 edition of the Erie County Employee Handbook supersedes any previous handbooks. The policies, procedures, and rules described in this Handbook are subject to change, modification, or suspension at the County’s discretion and with the approval of the Erie County Legislature and/or the agreement of Erie County labor bargaining units, as required. New policies, procedures, and rules will be disseminated to the holders of this Handbook, as applicable. This Handbook is not intended to be comprehensive or to address all County policies or all the possible applications of, or exceptions to, the policies, procedures, and rules described herein. If, after reviewing this Handbook, employees have any further questions concerning eligibility for a particular benefit, or the applicability of a policy, procedure, or rule, they should first consult the Erie County Personnel Policies and Procedures Manual (available on Sharepoint) and their collective bargaining agreement, if applicable. Remaining questions and/or issues requiring further clarification should be addressed with the Erie County Personnel Department. The Erie County Handbook does not provide employees with additional rights not provided by any applicable collective bargaining agreement or law. 8/2010; Rev. 9/2015, 10/2016 1 000154 FOREWORD To those of you first entering public service with Erie County, Welcome! To our present employees, many thanks for your hard work and dedication in helping to provide the varied and necessary services to the citizens of Erie County. We sincerely hope that each of you finds with Erie County the opportunities and challenges that will provide for your personal and professional growth. PURPOSE This handbook is furnished to provide an introduction to County employment, to summarize briefly what you may expect from employment with Erie County and some of the things your department will expect of you. It is also meant to answer some of the more common questions asked by both newer and more established employees in County service. Hopefully this book will direct you to the offices and sources most likely to provide answers to other questions that may arise during the course of your employment. This book is also available on the Erie County SharePoint intranet site. NOTE: PLEASE SAVE THIS HANDBOOK FOR READY REFERENCE ON QUESTIONS THAT MAY ARISE CONCERNING COVERED ASPECTS OF YOUR EMPLOYMENT. 2 000155 ERIE COUNTY AND ITS GOVERNMENT Erie County, New York, came into being on April 21, 1821, with the division of the then Niagara County into two parts: the present Erie and Niagara Counties.* Legally, Erie County is a municipal corporation. It was one of the first in the State to adopt a Home Rule Charter with a strong elective form of government. The offices of Comptroller, District Attorney, Sheriff and County Clerk are elective, as is that of the County Executive. In March, 1967, the voters approved an amendment to the Charter which divided the County into twenty equally-populated districts, and created a County Legislature composed of a Legislator from each of the districts. Since 2012, the number of legislators has been reduced to 11. The Legislators are elected for two-year terms in oddnumbered years. The duties of the Legislature include making appropriations, levying taxes and incurring indebtedness, confirming certain appointments made by the County Executive, as well as other various duties and responsibilities. The County Executive is elected from the County at large for a four-year term, and is the Chief Executive officer and Administrative Head of the County Government. The County Executive appoints to serve at his pleasure heads of every department, administrative unit and agency, as well as the officers and employees in his own office. Erie County is a charter form of government. The present Erie County Charter was first adopted in 1959. It defines the general functions and organization of the County, and provides for an elected County Executive, Comptroller, Board of Supervisors, and the District Attorney, Sheriff and County Clerk. The stated purposes of the Charter are to maximize Home Rule and the efficiency of the government, and to separate clearly the administrative and legislative functions of government. In 1960, the Board of Supervisors adopted an Administrative Code which sets forth the details of administration in the County. This code provides rules governing the duties of the offices, institutions and departments of the County and ways in which these duties shall be carried out. It prescribes, for example, the manner in which the County Executive appoints department heads. *Some of this material is taken from ERIE COUNTY, a study by the League of Women Voters. 3 000156 BACKGROUND Unlike businesses in the private sector, government has no owner or owners. Government is owned by and represents all people. Therefore, in government, every person is an employee who is elected, appointed or hired to perform a specific job or function. Many of the conditions and procedures that cover our employment are specifically authorized or required by Law, statute or collective bargaining agreement. Examples include, but are not limited to, the New York State Civil Service Law; New York State Public Officers Law; New York State General Municipal Law; County Law; “The Rules for the Classified Service of Erie County.....,” which has the force and effect of law; the Erie County Charter; the Erie County Administrative Code; and other state and federal laws that apply to all employment, both public and private. Laws, statutes and work rules change over a period of time. For these reasons this handbook is specifically meant only to supplement these other sources. Anything contained herein that might inadvertently be in conflict with any law, statute, or labor agreement will be void. In case of a conflict, the applicable legal source will take precedence. By the same token, this handbook does not grant any employee, whether “at will” or union, with any rights other than those provided by New York State or Federal laws. MEETING THE PUBLIC The public views the quality of County services by the courtesy and efficiency shown to them by the County employees with whom they come in direct contact. The public supports our services with their taxes, and our job is to provide them with the services they need. The public has every right to be treated with courtesy and respect, and to expect appropriateness in dress and manner from each of us. In performing your job, you may come in contact with a person who is discourteous for a variety of reasons. Most often he or she may not understand why something cannot be done, or in other cases why something must be done. A most important aspect of your job is to be as polite and helpful as possible in spite of any such occasional difficulty. 4 000157 RESIDENCY An applicant for original appointment to County service must be a legal resident of Erie County for at least one month immediately preceding the date of examination and must be legal residents of Erie County at the time of appointment. The Commissioner of Personnel may make exception to this requirement for situations where qualified applicants cannot be found within the County. Erie County residence is not required for promotional appointment or for competitive class promotional exams. CODE OF ETHICS In 1989, the County Legislature passed an updated Code of Ethics by passing Local Law l0-1989. The Law was amended in 1994 by Local Law 41994. The following individuals must file: All elected officials, department heads, heads of administrative boards including members of: Sewer District Board of Managers, ECMC Board Members, Community College Board Members, Library Board Members, Chairman of County committees of political parties, Candidates for elective County office and all employees in a policy-making position in County government. Policymaking employees include all deputies to the County Executive or a department or division (but not a deputy sheriff), the assistant to a head of a department or administrative unit, and other employees who through their regular duties are able to make County policy. Examples of employees in policy-making positions are those who are authorized to commit the County to a binding agreement, such as a contract, or hold regulatory authority over private interests. It is the responsibility for each department head to determine which employees in his/her unit are required to file the ethics disclosure form. All persons subject to file disclosure forms must do so by May 15th. PROHIBITED ACTIVITIES: Under Local Law 10-1989 as amended by Local Law 4-1994, no elected official, County officer or employee shall: directly or indirectly solicit any gift, or accept or receive any gift having a value of seventy-five dollars or more, whether in the form of money, service, loan, travel, entertainment, hospitality, thing or promise, or in any other form under circumstances in which it could reasonably be 5 000158 inferred that the gift was intended to influence him, or could reasonably be expected to influence him in the performance of his official duties, or was intended as a reward for any official action on his part; Other prohibited activities are listed under the local law. IDENTIFICATION CARDS An identification card has been issued to all County employees. Employees are expected to wear their identification card at or above the waist, and present it upon legitimate request. Identification cards will be used for swiping in and out of work at the time clocks and for designated door access. If the identification card is lost, it is the responsibility of the employee to obtain a replacement. Identification cards must be returned when an employee leaves County service. EMPLOYEE ASSISTANCE PROGRAM Erie County has contracted with a private firm to provide assistance to employees who are experiencing personal problems. The Employee Assistance Program (EAP) provides comprehensive counseling and referral to County employees who seek assistance for a variety of personal reasons. All employee requests for assistance are handled in a sensitive and confidential manner. If you are experiencing personal problems related to drug or alcohol abuse or other personal or financial problems that are affecting your work or personal relationships with family, friends and/or co-workers, you are encouraged to contact the EAP Contact information can be found on the Erie County Sharepoint Intranet site or in the Personnel Department. Your participation in this program will be kept strictly confidential. DIRECT DEPOSIT The County offers a direct deposit program for all employees. The program allows employees to directly deposit their paycheck into any ABA participating bank or credit union in the United States (maximum of five banks). Check with your department payroll division for more information. 6 000159 FLEXIBLE BENEFITS Employees may participate in a Flexible Benefits Program approved under Sections 125 and 132 of the Internal Revenue Code. This program allows employees to reduce their Federal, State and Social Security tax bases for miscellaneous qualified medical, dependent care, adoption, health/disability premium, and parking expenses, by using pretax dollars to cover these expenses. There are limits on the amounts that employees can reduce their tax base and employees should contact the Personnel Department for further information. Employees can make pre-tax deductions for qualified medical, dependent care expenses and up. Health insurance premiums paid by employees may also qualify under the plan. Enrollment forms are distributed to all employees in November of each year. TELEPHONES Business phones are absolutely necessary for the conduct of public business. They are to be used with discretion, not abused. Employees should limit their calls to the conduct of County business. Personal calls into, or out of the County or between County departments are prohibited. Emergencies such as illness or death of a family member, etc., may require your receiving immediate telephone notification. Such obvious emergency situations are not considered personal calls under this rule. CELLULAR PHONES Cellular phones that are issued by the County are to be used for County business. Usage of County provided cellular telephones should follow the same guidelines as stated in the policy for landline desk phones issued by the County. Personal cellular phones should be kept out of sight, and used only for emergencies or on breaks or lunches. Personal cellular phones should not be used on County time; this includes both talking and text messaging. Ringtones should be kept on silent in order to avoid disruptions. 7 000160 POLITICAL ACTIVITY There is often confusion about the political restrictions on public employees. The laws which limit political activity are a Federal Law known as the Hatch Act as well as certain provisions of the New York Labor Law. The Hatch Act applies to local government employees whose activities are largely funded by the Federal government or to employees who work in connection with a federally funded activity. For example, the Hatch Act applies to all employees of the Department of Social Services, and anyone whose salary is paid through a grant provided by the Federal government. Many of the earlier restrictions provided by the Hatch Act have been removed. The following remain: Covered employees may not be candidates for any elective office in a partisan election, and they also may not use official authority for the purpose of interfering with or affecting the result of an election. Employees whose employment is covered by the Hatch Act must resign their positions if they decide to become a candidate for elective office. Further information regarding the Hatch Act can be found at www.osc.gov/hatchact.htm. AGENCY SHOP The Public Employees Fair Employment Act (the Taylor Law) specifically prohibits any requirement that an employee must become a member of any labor organization. However, provisions of a state law passed in l978 permits Agency Shop provisions to be written into labor contracts. The contents of an employees personnel file are governed by New York State and Federal Laws, as well as any collective bargaining agreement if the employee is a member of a union. Agency Shop provisions are included in all Erie County bargaining agreements. PERSONNEL FILES Individual personnel files are maintained for each County employee. Contained in these files are copies of the necessary data, forms, evaluations, records, etc., relating to their employment. 8 000161 The contents of an employee’s personnel file are governed by New York State and Federal Laws, as well as any collective bargaining agreement if the employee is a member of a union. ERIE COUNTY EQUAL EMPLOYMENT OPPORTUNITY OFFICE It is Erie County’s policy to provide Equal Employment Opportunity in every aspect of employment to all applicants and employees including Vietnam era and disabled veterans, without regard to age, race, creed, color, national origin, sexual orientation, military status, sex, disability, predisposing genetic characteristics, marital status, or domestic violence victim’s status, and any other basis protected by New York State or Federal Laws. In an attempt to reaffirm, strengthen and reinforce its commitment to this policy, the County has developed a positive, continuing program known as the Affirmative Action Plan for Equal Employment Opportunity. The County Equal Employment Opportunity Office (EEO) was established in 1974 in accordance with Title VII of the Civil Rights Act of 1964 as amended by the Equal Employment Opportunity Act of 1972. One of the office’s primary purposes is to assure that all persons in County government are treated equally in employment matters such as hiring, transfer, layoff, termination, promotion or recall. Any person who believes that his or her rights have been wrongfully denied for any of the reasons listed above, should contact the EEO Office for counseling at 858-7542 or at www.erie.gov/depts/eeo. Should you wish to file a complaint of discrimination, you should contact the EEO office at 858-7542 or at www.erie.gov/depts/eeo. The office will fully investigate your complaint, a determination will be made, and corrective action initiated where warranted. HARASSMENT POLICY OF ERIE COUNTY I. Statement of Philosophy The County of Erie is committed to maintaining a work environment free of unlawful discrimination and harassment, and will not tolerate harassment of its employees by any supervisor, coworker, patient, vendor, client, or any other person. 9 000162 In accordance with applicable law, the County of Erie prohibits all forms of harassment which includes any unwelcome conduct, whether verbal, physical, or visual, that is based upon a person's gender, race, color, national origin, ancestry, religion, creed, physical or mental disability, marital status, age, sexual orientation, genetic predisposition, military status, domestic violence victim status or any other basis protected by federal, state or local law. Such conduct is unlawful and prohibited whenever it affects tangible job benefits, unreasonably interferes with an individual's work performance, or creates an intimidating, hostile, or offensive working environment. II. Forms of Harassment Sexual harassment consists of unwelcome sexual advances, requests for sexual favors, and other verbal, visual, and physical conduct of a sexual nature whenever: 1. Submission to the conduct is made either an explicit or implicit condition of employment; 2. Submission to or rejection of the conduct is used as the basis for an employment decision affecting the harassed employee; or 3. The harassing conduct unreasonably interferes with an employee's work performance or creates an intimidating, hostile, or offensive working environment. Sexual harassment can involve an almost infinite variety of conduct and can occur between individuals of the same sex. Some examples include: 1. Unwelcome physical contact with sexual overtones, such as touching, patting, pinching, repeatedly "brushing" against someone, or impeding the movement of another person 2. Sexually offensive comments such as slurs, jokes, epithets, and innuendos 3. Sexually oriented "kidding" or "teasing," or sexually oriented "practical jokes" 4. Suggestive or obscene written comments in notes, letters, invitations, or e-mail 5. Inappropriate, repeated, or unwelcome sexual flirtations, advances, or propositions 6. Offensive visual contact such as staring, leering, gestures, or displaying obscene objects, pictures, or cartoons 10 000163 7. Inappropriate or suggestive comments about another person's physical appearance or dress 8. Exchanging or offering to exchange any kind of employment benefit for a sexual concession, e.g., promising a promotion or raise in exchange for sexual favors 9. Withdrawing or threatening the withdrawal of any kind of employment benefit for refusing to grant a sexual favor, e.g., suggesting that an individual will receive a poor performance review or be denied a raise unless she [he] goes out on a date with a supervisor 10. Any action taken because of individual's gender that alters the terms, conditions or privileges of employment. Some other examples of prohibited harassment include: 1. Offensive comments such as racial or ethnic slurs, jokes, epithets, and innuendos. 2. Conduct oriented "kidding" or "teasing," or "practical jokes" based on a person’s race, color, national origin, ancestry, religion, creed, physical or mental disability, marital status, age, sexual orientation, genetic predisposition, military status, domestic violence victim status or any other basis protected by federal, state or local law. 3. Harassing conduct based on gender, race, color, national origin, ancestry, religion, creed, physical or mental disability, marital status, age, sexual orientation, genetic predisposition, or military status, domestic violence victim status or any other basis protected by federal, state or local law that unreasonably interferes with an employee's work performance or creates an intimidating, hostile, or offensive working environment. 4. Any action taken because of individual's gender, race, color, national origin, ancestry, religion, creed, physical or mental disability, marital status, age, sexual orientation, genetic predisposition, or any other basis protected by federal, state or local law that alters the terms, conditions or privileges of employment. III. Applicability of Policy The prohibition against harassment applies to everyone -- managers, supervisors, salaried and hourly workers, temporary employees, contractors, customers, patients, suppliers, visitors, guests, elected officials and appointed administrative officials. The County of Erie will not tolerate harassment of any kind by anyone. 11 000164 IV. Reporting Illegal Harassment While the County encourages individuals who believe they are being harassed to firmly and promptly notify the offender that his or her behavior is unwelcome, the County also recognizes that such a confrontation may be uncomfortable or even impossible. In the event that such informal, direct communication between individuals cannot be accomplished for any reason, or is ineffective or inappropriate given the circumstances or severity of the situation, the following steps should be taken to file a formal harassment complaint: 1. Notify Appropriate Staff Individuals who believe they have been sexually harassed or subject to harassment because of race, color, national origin, ancestry, religion, creed, physical or mental disability, marital status, age, sexual orientation, genetic predisposition, military status, domestic violence victim status, or any other basis protected by federal, state or local law, should immediately report the incident to his or her direct supervisor. If the supervisor is the alleged harasser or the employee is uncomfortable reporting the alleged harassment to his or her supervisor, the incident should be reported directly to his or her Department Head. In the event that the circumstances of the situation make it inappropriate to report the incident should the individual's supervisor or to his or her Department Head, the incident should be reported to another Department Head or to the County's Equal Employment Opportunity Director at 858-7542. Employees may also file a complaint on line at www.erie.gov/depts/eeo. Employees, supervisors, and managers must report any incident of sexual harassment or harassment because of race, color, national origin, ancestry, religion, creed, physical or mental disability, marital status, age, sexual orientation, genetic predisposition, military status, domestic violence victim status, or any other basis protected by federal, state or local law they may observe or become aware of, even if they are not the target or victim of such harassment. 2. Prepare Written Report of Misconduct An accurate record of objectionable behavior or misconduct is needed to resolve a formal complaint of harassment. Even reports of harassment must be submitted to the Equal Employment Opportunity Officer for investigation. Individuals who believe they have been or currently are being harassed should maintain a record of objectionable conduct in order to prepare effectively and to substantiate their allegations. 12 000165 3. Promptly Report the Complaint The County of Erie encourages a prompt reporting of complaints so that a rapid response and appropriate action may be taken. A prompt report not only aids the complainant, but also helps to maintain an environment free from discrimination for all employees. Such reports will be handled according to the policy for reporting such incidents as directed by the County Executive. V. Investigating the Complaint 1. Confidentiality Any allegation of harassment will be promptly investigated. Confidentiality will be maintained throughout the investigatory process to the extent practical and appropriate under the circumstances. 2. Investigation Process The County of Erie will thoroughly and quickly investigate any incident of sexual harassment or harassment because of race, color, national origin, ancestry, religion, creed, physical or mental disability, marital status, age, sexual orientation, genetic predisposition, military status, domestic violence victim status, or any other basis protected by federal, state or local law and will try to take the wishes of the complainant under consideration, keeping the complainant informed as to the status of the investigation. VI. Discipline for Engaging in Harassment Depending on the nature and seriousness of the offense, the County will impose all appropriate discipline, up to and including termination, against any manager, supervisor, or employee found to have engaged in sexual harassment or other forms of harassment. When a customer, guest, patient or other person not employed by the County is found to have engaged in harassment against a County of Erie employee, the County will advise the person and his or her employer if applicable of the County's policy against such harassment, and will take such other action as is appropriate under the circumstances. VII. Protection Against Retaliation The County of Erie will not in any way retaliate against an individual who makes a complaint of harassment or against any participant in the investigation, nor will it permit any supervisor/manager or employee to do so. Retaliation is defined as treating any employee or applicant differently because he or she opposed an unlawful employment practice or made a charge, testified, assisted, 13 000166 or participated in any manner in an investigation, proceeding, or hearing. Retaliation is a serious violation of this harassment policy and should be reported immediately. Any person found to have retaliated against another individual for reporting any harassment will be subject to the same disciplinary action described above (see §VI). Examples of retaliation are: Treating someone who has reported an incident of harassment or participated in an investigation differently than other employees (i.e. "cold shoulder") and/or differently than you treated the individual in the past. Disciplining an individual without justification, making negative comments, reducing individual's responsibility, denying a transfer, requiring a transfer, giving unfavorable evaluations or work schedules, scrutinizing an individual's work, etc. (without justification) after that person reported an incident of harassment or participated in an investigation. 1. Encouraging or ordering other staff to retaliate on your behalf against an individual who has reported an incident of harassment or participated in an investigation. 2. Subjecting an individual to any adverse employment action for reporting an incident of harassment or participating in an investigation. 3. Failing to respond to a co-worker’s call for help or assistance. 4. Starting to discipline a complainant or witness for conduct that was not previously subject to discipline. 5. Engaging in other behavior that can reasonably be construed to be retaliatory. VIII. Legal Remedies for Harassment Employees or job applicants who believe they have been harassed or retaliated against in violation of this policy should first file an internal complaint with their supervisor, department head and/or the Director of the Equal Employment Opportunity office at 858-7542. If an employee or job applicant is dissatisfied with the response he or she may file a complaint with the Equal Employment Opportunity Commission at (716)551-4441 and/or the New York State Division of Human Rights (716)847-7632, which are authorized to investigate the allegations in the complaint. Employees or applicants may also contact a private attorney or union representative should they believe they have been subjected to any form of harassment or retaliation. 14 000167 WORKPLACE VIOLENCE POLICY In 2006, New York State enacted legislation requiring public employers to perform a workplace/risk evaluation and develop programs to prevent and minimize workplace violence. Erie County is committed to providing a safe and secure environment for its employees and the customers whom it serves. Violence prevention is an on-going process. Erie County has taken and continues to take measures to identify and remediate areas of risk in its physical sites and other factors that could place its workers and customers at increased risk of violence. As additional resources become available, the County will continue to address areas of concern. The complete Workplace Violence Policy and Incident Report Form can be found on the Erie County Intranet (Sharepoint) or in the County Personnel Department. Should any employee wish to file a complaint under the Workplace Violence Policy, please consult Sharepoint for a Workplace Violence Incident Report Form or speak with your supervisor. FAMILY AND MEDICAL LEAVE ACT OF 1993 The Family and Medical Leave Act of 1993 (FMLA) was enacted on February 5, 1993. Amendments subsequently have been made to the original FMLA language. The U.S. Department of Labor’s wage and hour division administers and enforces FMLA for all private, State and local government employees, and some Federal employees. FMLA entitles eligible employees to take up to 12 weeks of unpaid, job-protected leave each year for specified family and medical reasons, or up to 26 weeks of unpaid leave for certain military caregiver responsibilities. The law contains provisions relating to employer coverage; employee eligibility for the benefits of the law; entitlement to leave, maintenance of health benefits during leave, and job restoration after leave; notice and certification of the need for FMLA leave; and protections for employees who request or take FMLA leave. In addition, the law includes certain employer record keeping provisions. 15 000168 I. Employee Eligibility To be eligible for FMLA benefits, an employee must: • have worked for the County for at least 12 months; and • have worked at least 1,250 hour over the previous 12 months. II. Reasons for taking Leave under the FMLA If an employee is eligible, unpaid leave must be granted for any of the following reasons: 1) For the birth and care of a newborn child of the employee; or 2) For placement with the employee of a son or daughter for adoption or foster care; or 3) To care for an immediate family member (spouse, child, or parent) with a serious health condition; or 4) To take medical leave when the employee is unable to work because of a serious health condition; or 5) For qualifying exigencies arising out of the fact that the employee’s spouse, son, daughter, or parent is on active duty or call to active duty status as a member of the National Guard Reserves in support of a contingency operation. A covered employee also must grant an eligible employee who is a spouse, son, daughter, parent or next of kin of a current member of the Armed Forces, including a member of the National Guard or Reserves, with a serious illness or injury up to a total of 26 workweeks of unpaid leave during a “single 12-month period” to care for the service member. At the County of Erie’s or employee’s option, certain kinds of paid leave may be substituted for unpaid leave. In other words, the County of Erie may require an employee taking FMLA leave to exhaust any accrued time during the leave. III. Advance Notice and Medical Certification: The employee may be required to provide advance leave notice and medical certification. Taking of leave may be denied if requirements are not met. 1) The employee ordinarily must provide 30 days advance notice when the leave is “foreseeable”, and such notice is practicable. 2) The County of Erie may require medical certification to support a request for leave because of a serious health condition, and may require 16 000169 second or third opinions (at the County of Erie’s expense) and a fitness for duty report to return to work. IV. Job Benefits and Protection 1) For the duration of FMLA leave, the County of Erie must maintain the employee’s health coverage in accordance with the existing pre-leave arrangement under any “group health plan.” 2) Upon return from FMLA leave, most employees must be restored to their original job or an equivalent job with equivalent pay, benefits and other employment terms. 3) The use of FMLA leave cannot result in the loss of any employment benefits that accrued prior to the employee’s leave. V. Harassment Because of Use of FMLA Leave FMLA makes it unlawful for any employer to: 1) Interfere with, restrain or deny the exercise of any right provided under FMLA 2) Discharge or discriminate against any person for opposing any practice unlawful by the FMLA or because of involvement in any proceeding relating to FMLA. VI. Remedies for Harassment under the FMLA Employees who believe they have been harassed or retaliated against as a result of taking time under the FMLA or for engaging in other activity protected by the FMLA should first file an internal complaint with their supervisor, department head or Director of Equal Employment Opportunity office at 8587542. Alternatively, the employee may file a complaint online at www.erie.gov. The Supervisory Commissioner and/or Department Head shall then notify the County Equal Employment Opportunity Office. Employees or job applicants who believe they have been harassed or retaliated against in violation of this policy may also file a complaint with the United States Department of Labor, at the nearest office of the Wage and Hour division, listed in most telephone directories under U.S. Government, Department of Labor. An employee may also contact a private attorney or union representative should he/she believe they have been subjected to any form of harassment or retaliation in violation of this policy. 17 000170 VII. Enforcement The United States Department of Labor is authorized to investigate and resolve complaints of violations. An eligible employee may bring a civil action against the County of Erie for violations. FMLA does not affect any federal or state law prohibiting discrimination or supersede any State or local law or collective bargaining agreement which provides greater family or medical leave rights. For further information on the Family Medical Leave Act, contact your department’s personnel/human resources office. AMERICANS WITH DISABILITIES ACT AND NEW YORK EXECUTIVE LAW The federal Americans with Disabilities Act (ADA) and New York State Executive Law, Article 15 (the NYS Human Rights Law) are antidiscrimination statutes designed to remove barriers which prevent qualified individuals with disabilities from enjoying the same employment opportunities that are available to persons without disabilities. The ADA was subsequently revised as the ADA Amendment Act, effective January 1, 2009. Pursuant to the ADA and NYS Human Rights Law, the County of Erie will not discriminate against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment. A qualified individual with a disability means an individual with a disability who satisfies the requisite skill, experience, education, and other jobrelated requirements of the employment position such individual holds or desires, and who, with or without a reasonable accommodation, can perform the essential functions of such position. Under the ADA, disability is defined as 1) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; 2) a record of such an impairment; or 3) being regarded as having such an impairment. Furthermore, the County of Erie will not retaliate or take any adverse employment action against any applicant, employee or former employee who 18 000171 complains of an act of discrimination, seeks a reasonable accommodation or participates in any investigation concerning a complaint of discrimination. Any employee who believes he needs a reasonable accommodation in order to perform the essential functions of his job should contact the Executive Director of the Office for the Disabled at 858-6233. If any applicant, employee or former employee believes he has been discriminated against based on a disability or retaliated against for filing a complaint or participating in an investigation relating to disability, he should immediately report such incident to his immediate supervisor or to the Equal Employment Opportunity Office at 858-7542. PHYSICAL EXAMINATIONS Employees should consult the Personnel Policies and Procedures Manual, their respective collective bargaining agreement, NYS Civil Service Law, and/or any applicable department – specific rules regarding physical examinations or medical evaluations. SALARY PLAN Erie County has formal plans for class titles and salary/wage ranges (job groups) which are administered according to Salary and Increment Rules incorporated into existing bargaining agreements. Nearly every County title has been formally assigned to a job group or has been assigned an hourly rate. The Commissioner of Personnel determines where each title is allocated in relation to other titles, so that salaries can be administered effectively and equitably. Employees who receive flat salaries and employees in seasonal or nonregular employment are excluded from the regular salary rules. The salary ranges and the overall plan are administered by the County Personnel Department, but modifications to the plan, as applied to employees covered by union contracts, are negotiated with the collective bargaining agents. Any modifications must then be approved by the County Legislature before formal adoption. 19 000172 MERIT INCREMENTS Normally new employees are hired at the lowest step of the job group to which their titles have been assigned. When recruiting is difficult for a specific title, the Commissioner of Personnel, with other necessary approval, may authorize a variable minimum. This means that a new employee may be hired at a step higher than step 1 for the job group. Regular increment dates are January 1 and July 1 of each year. Newly appointed employees are eligible for the first increment (salary increase) on the first increment date after completion of six months of actual service in their positions. Bargaining unit employees’ eligibility for consideration for subsequent increments is determined by their bargaining unit language. Granting of increments is not automatic. Erie County requires that the actual on-the-job performance of each employee must be formally evaluated by the immediate supervisor at least once during the anniversary year, and that each formal evaluation must be reviewed by one level of supervision or administration. Unless otherwise provided by labor contract, increments will be granted only to employees receiving overall performance evaluations of standard (i.e. meets expectations) or better. Increments must be requested by the appropriate level of supervision, based on job performance, and must then be approved by the Department Head and by the County Personnel Department, unless other specific provision is made by labor contract. For specifics concerning the granting of increments for your own bargaining unit refer to the applicable labor agreement. A leave(s) without pay totaling three months or more during a single increment year constitutes an interruption of actual service for computing increment eligibility. An employee who has served for five (5) years at the highest step of his job group, and who has completed a minimum of nine (9) years of continuous County service is automatically eligible for the first longevity increment. There are provisions for additional automatic longevity increments, to be granted at intervals specified in the labor agreements for service in the same job group, under either the same or a different title. Some bargaining units may have different longevity increment rules and employees should consult their collective bargaining agreement for further information. 20 000173 PAY DAYS The County pays its employees bi-weekly. Pay days are on Friday. If that day is a holiday, the pay day is the preceding work day. Erie County makes every reasonable effort to pay those persons working second and third shifts on the day prior to the day that first shift employees are paid. EMERGENCY & TEMPORARY ASSIGNMENTS An employee who is temporarily assigned to a higher level encumbered position during temporary emergencies is not eligible for a salary increase immediately. After he has performed the duties of the higher position for a specified period, he will be paid for temporary promotion according to the normal promotion rules. (See PROMOTIONS, below, and the collective bargaining agreement for your unit.) PROMOTIONS Upon promotion to a position in a higher job group bargaining unit, members receive a salary at the increment step in the higher job group provided by promotion schedules incorporated into the respective bargaining agreements. The White Collar promotion schedule is employed for Managerial/Confidential promotions for positions not specifically covered by an authorized variable minimum. Hourly rated employees whose job titles are not assigned to a specific job group will receive promotions as outlined in the bargaining agreement with Local 1095 and Council 66, AFL-CIO. REASSIGNMENT WITHIN TITLE AND GRADE Applicants are normally interviewed and hired to fill a specific position in a specific work unit, under a specific title. There is a popular misconception that this hiring process confers upon an incumbent a permanent claim to that particular position in that particular work unit. This is not the case. While efforts are made to provide continuity of operations and personnel in each work unit, the needs of the hiring department and the circumstances of the individual may change over a period of time. This 21 000174 sometimes requires that an employee be reassigned to another operation or work unit, or even to a different department. PROBATIONARY TERMS Every original appointment to a permanent position in the Competitive Class and every original and permanent appointment to a position in the NonCompetitive and Labor Classes are subject to satisfactory completion of a probationary period of not less than eight nor more than twenty-six weeks, unless a longer probationary period is specifically provided in the Appendices to the Classified Rules. All promotional Competitive Class titles require probationary periods. The minimum probationary period of 8 weeks will automatically extend to 26 weeks, unless the appointing authority gives earlier written notice to the employee that probation has been successfully completed, or that service is unsatisfactory and that the probationer’s services are to be terminated. A probationer’s services may be terminated anytime between the 8th and 26th week after one week written notice to the probationer. Alternatively, the appointing officer may notify the probationer in writing anytime between the 8th and 26th week that the probationary period has been satisfactorily completed. Upon request, a probationer being terminated shall be granted an interview with the Department Head or a designee. Time served under provisional or temporary appointment does not count toward completion of probation under that specific title. Competitive Class probationary employees who are not retained in their positions upon completion of their probationary periods may petition the Commissioner of Personnel to reinstate their names to the eligible lists for their titles. Such requests must be in writing, and will be considered upon their individual merits. Please refer to the appropriate collective bargaining agreement for units encompassing positions in the Unclassified Service, such as the Faculty Federation of Erie Community College and the Administrators’ Association of Erie Community College. 22 000175 ATTENDANCE & RECORDING ATTENDANCE Because Erie County employees render a wide variety of services in many locations under many conditions, scheduled work hours may vary. Each employee will be personally advised of your own shift times by your department. A normal shift is eight consecutive hours for full-time employees. Full-time employees are scheduled by their supervisors for a lunch period during each full work day and are entitled to a paid break period for each half-day worked. Scheduled lunch and break periods cannot be changed without the specific permission of the supervisor. Every employee is expected to record his/her hours actually worked. This can be done either on a time clock/swipe card reader where provided, or on official sign-in/sign-out time sheets provided by the department. These time sheets/cards are monitored closely. Abuses of Time and Attendance rules are grounds for disciplinary action, and any falsification of time records, including the recording of time or punching/swiping a card for someone other than yourself, will be considered a serious offense and grounds for immediate termination. Collective Bargaining Agreements explain hours of work in greater detail. COMPENSATORY TIME POLICY Compensatory time is time granted to an employee in lieu of pay for time worked in excess of the normal work week or normal work day. It is also granted for working a holiday, according to the provisions of the Federal Fair Labor Standards Act and the Collective Bargaining Agreements. Overtime or holiday work for which compensatory time is granted must be approved in advance by the Department Head or designee. Compensatory time records are maintained by Employee Self Service (ESS) system. Efforts will be made to grant compensatory time off at times mutually agreeable to the employee and the supervisor. However, such time off must be approved by the supervisor before it can be taken, and departmental staffing needs must take precedence. 23 000176 TARDINESS POLICY Employees must be at their work sites at designated starting times unless otherwise excused. Failure to be there is considered tardiness. Tardiness also includes early leave or late return from lunch or break periods, and departure from the work station prior to the designated quitting time. Employees are not permitted to work through part of a lunch hour or work through “coffee breaks” in order to make-up for tardiness at the beginning of a work day or after a break or lunch period. In exceptional situations and only after supervisory approval, employees may work up to 30 minutes past the end of their normally scheduled work shift to “make-up for” tardiness. Please refer to County Policy and Procedures Manual, Chapter VI, Section 6, for more information. FLEXIBLE TIME AT START OF SHIFT Employees are expected to be at their work stations at their designated start time and they are expected to remain at their work station until their scheduled end time. Employees are not permitted to swipe in more than seven (7) minutes prior to their scheduled start time. If an employee swipes in up to seven minutes early, these minutes will be unpaid, non-work time, and the employee’s shift will begin at their normal start time. However, five minutes of flexibility has been built into the timekeeping system. If an employee arrives to work within five (5) minutes after the normal start time for their scheduled shift, they can swipe in, begin work immediately, and then at the end of their shift they stay and work the same number of minutes past their normal quitting time to make for a full shift. (For example, an employee whose shift starts at 8:00 a.m. and ends at 4:00 p.m. swipes in at 8:03 a.m., begins work immediately, then swipes for shift end at 4:03 p.m.). EMERGENCY CLOSINGS In the event that the County Executive declares the closing of certain County facilities, operations and/or services due to flood, fire, power failure, uncontrollable weather conditions or other emergency, you may be required to charge the resulting time off from work against your accumulated accruals (i.e., sick leave, personal leave, vacation, etc.). Please consult your Collective Bargaining Agreement for detailed information. 24 000177 REMOVAL AND OTHER DISCIPLINARY ACTION The orderly and efficient operation of County business and services requires that all employees observe certain minimum standards of behavior and performance. The rules listed below are to ensure proper conduct by all employees so that employees’ health, safety and property are protected and the delivery of necessary services is not interrupted. We believe you will find the rules reasonable and easy to follow. However, some will fail to follow the rules. Therefore, unsatisfactory work performance or violation of the rules will result in disciplinary action. For union employees, Erie County endorses the policy of Progressive Discipline. Normal steps in this process are oral warning, written warning, suspension from duty, and finally discharge. The policy of Progressive Discipline does not necessarily apply for more serious violations or offenses, where immediate discharge, or suspension, in line with due process, may be required. General work rules that apply in all County units are listed below and are arranged in three groups, by type or seriousness of violation. The list is not all-inclusive. Every possible situation for which discipline may result cannot be set forth in a list. Other work rules may be required for individual locations, work units, or types of activities. For example, a particular work rule that may be necessary and appropriate in a medical setting might not be appropriate for the Correctional Facility or the County Highways Division. RULES The following acts are prohibited: GROUP A (Violations may result in immediate discharge) 1. Fighting, provoking a fight or disorderly conduct of any kind, specifically including, but not limited to, striking a patient, client, member of the public, or co-worker. 2. Drinking, possessing alcoholic beverages or narcotic substances (other than medical prescriptions) on County premises, or reporting to work under the influence of alcohol or drugs. 3. Immoral conduct or indecency of any kind. 25 000178 4. Violation of any criminal law or the commission of an offense which involves moral turpitude. 5. Threatening, intimidating or coercing any fellow employee or member of the public in any manner, including violations of the County’s workplace violence policy. 6. Willful or deliberate violation of safety rules and practices which could endanger you, a co-worker, or any member of the public. 7. Insubordination or failure to follow the reasonable direction or order of a supervisor. NOTE: Even if you have reservations concerning a specific order or direction, carry it out as directed, unless doing so would create a definite health hazard to another, or would result in an illegal action. If, after having carried out the order/direction, you still seriously question its appropriateness, file a grievance concerning the action and have the matter settled through appropriate channels. 8. Deliberately restricting or interfering with the work performed by your department or work unit, or that performed by another person. 9. Destruction or theft of property, tools or equipment belonging either to the County or to any other employee or person. 10. Falsification of or making any material change to any County record, letter or document submitted to the County. 11. Falsification of any time record, including swiping an identification card, punching time card or signing or making an entry on any sign in/sign out time sheet for anyone other than yourself. 12. Failure to report to work without authorization for extension after expiration of an approved sick leave or other leave of absence. 13. Unauthorized use and/or removal of County property, records, or any other materials from County premises. 14. Unauthorized possession of firearms, explosives, or other weapons, either on employee’s person while performing County duties, or on County property. 15. Sale of drugs or intoxicants on County property. 16. Soliciting or accepting any financial or non-financial reward in return for special consideration in the purchase or providing of goods or services, or the awarding of any contract. 26 000179 17. Gambling on County property. 18. Leaving an essential work post (e.g. a guard at the Holding Center) premises during working hours without notifying supervisor and receiving specific authorization to do so. 19. Engaging in acts of discrimination or retaliation in violation of the County’s Harassment policy, or otherwise engaging in acts that violate the County’s Harassment Policy. 20. Failure to report to work for a period of time without following procedures for reporting sick, requesting leave, etc. 21. Misrepresentation or false information reported on a job application or application for benefits, including, but not limited to, health insurance. GROUP B (Violations that may result in suspension. Gravity of a single violation, or repeated violations of either a single rule or combination of rules may also result in discharge.) 1. Horseplay of any kind. This action can result in serious injury. 2. Abuse of tools or equipment belonging either to the County or another employee. 3. Leaving the work premises during working hours without permission of the supervisor. 4. Leaving the work area during working hours without permission of the supervisor. 5. The circulation of malicious or slanderous rumors, documents, or remarks concerning any employee, County government, its services, or the County’s bargaining agents. 6. Gambling of any nature on County premises, including the unauthorized sale of lottery or raffle tickets, betting slips, etc. NOTE: Sale of New York State Lottery tickets by licensed vendors such as candy and sundries stands operated by the blind are exempt from this rule. 7. Posting of any material on County bulletin boards without County permission. Additionally, altering, defacing or removing authorized notices appearing on County bulletin boards. 27 000180 8. Personal use of County materials, tools or equipment without proper permission. 9. Performing personal business during County working hours. 10. Unreasonable number of absences, or repeated failure to report absences, or any unauthorized absence. 11. Sleeping during working hours. 12. Repeated unauthorized extension of rest breaks or lunch periods. 13. Repeated and excessive tardiness. 14. Neglect of job duties or responsibilities. 15. Transporting, picking up or delivering unauthorized passengers, or any other unauthorized use of County vehicles for personal business. 16. Negligence, carelessness or willful acts which result in damage to County property, or to the property of another employee or public citizen. 17. Incompetence or inability to perform assigned work. 18. Discourteous treatment of the public or co-workers, or any other conduct that does not warrant public trust. 19. Failure to follow job instructions, directions, or departmental policies and procedures. 20. Using abusive, profane, or threatening language to a supervisor or a fellow employee, or otherwise threatening, intimidating or coercing any other employee or member of the public. 21. The unauthorized use of any login, password or access code to gain access to a computer, voice mail or other County information system. 22. Using the County’s E-mail system or accessing the internet during working hours for non-County business, other than incidental use. 23. Excessive personal phone calls or texting on County provided cell phones or personal cell phones during working hours. GROUP C (Violation may result in written reprimand or repeated violations may result in other disciplinary action, such as suspension or even discharge.) 1. Leaving work area early, prior to wash-up or quitting time. 28 000181 2. Failure to use safety equipment which is provided. 3. Failure to report any personal injury to the supervisor. 4. Repeated failure to punch own time card, or to sign in or out on sign in/sign out sheets, or swipe identification card in swipe card reader. 5. Failure to maintain reasonable productivity and workmanship. 6. Misuse of County time such as loitering in halls, rest rooms or cafeterias, interfering with other employees’ work routines, engaging in prolonged conversations which are not work related, etc. NOTE: Refer to your collective bargaining agreement for more specific guidelines regarding discipline, as your collective bargaining agreement supersedes the Employee Handbook. EMPLOYEE BENEFITS In addition to the actual wages or salary earned, there are other substantial benefits that may be provided to you or for you, or for which you become eligible when you become an employee of Erie County. These important benefits include: Hospitalization and Health Insurance, membership in the New York State Retirement System, paid Sick Leave, Holidays, Vacations, Bereavement Pay, Personal Leave Days, time off to take Civil Service exams, leaves of absence without pay for certain specified reasons, along with Unemployment Insurance and Social Security payments which are made on your behalf by the County. For employees who are covered by a bargaining agreement, the way in which other than legally required benefits are provided is governed by that bargaining agreement. Therefore, refer to the labor agreement for your own bargaining unit on questions concerning entitlement to any specific benefits. HEALTH, HOSPITALIZATION AND DENTAL INSURANCE Erie County offers eligible employees the choice of several levels of health insurance coverage through a single healthcare provider. Complete 29 000182 information for each of the plans is available from the County Personnel Department. Once each year, during open enrollment any employee enrolled in any Erie County Employee Health Benefit Group may choose to transfer to one of the other optional standard plans. During this selection period, ability to transfer between plans is guaranteed, free of waiting periods or pre-existing condition clauses. Applications for option transfer may be made only during the designated open enrollment period. Any change in the type of coverage you elect will become effective on the first day of the month immediately following the close of the open enrollment period. Because insurance provisions are necessarily quite detailed, please refer to the actual copies of insurance documents that are provided to you in order to determine the specifics of the coverage provided. Some employees may be required to contribute toward their health insurance premium, depending on their status (e.g. full-time vs. regular part-time), the type and level of coverage they’ve selected, and whether they are covered by a collective bargaining agreement. Employees belonging to a bargaining unit should consult their union contract for further information. Those not covered by a collective bargaining agreement should contact their personnel representative. Health insurance plans may be modified from time to time to meet prevailing needs and conditions. A word of caution: Health Insurance coverage is NOT automatic upon your starting employment with Erie County, nor does coverage EVER resume automatically when previously covered employees have allowed their coverage to lapse either on lay-off status, or while on unpaid leave of absence. It is necessary for the employee to complete a new application for coverage in each of these instances in order to establish any coverage at all. Prompt completion of the application forms at the time of employment or when you return to active service is YOUR responsibility, and is for YOUR protection. Further, all changes affecting employee coverage including marital status (marriage, divorce, or separation), birth or adoption of a child, change of address, death of a spouse or family member, employee or spouse attaining age 65 and becoming eligible for enrollment in the Federal Medicare/Medicaid programs, or a dependent reaching an insurer’s cut-off age, must be reported by the covered employee to his department. This information must then be transmitted by the department to the Erie County Personnel Department within five days of occurrence. 30 000183 Change of employment status from part-time to full-time or vice versa may also affect eligibility for Health Insurance Coverage. All of these changes may affect either eligibility for coverage or the type of coverage you and your family need. Failure to make inquiry and/or to record changes in status promptly CAN RESULT IN LACK OF ADEQUATE COVERAGE FOR YOU AND YOUR FAMILY. Of course, any falsification of insurance records is cause for disciplinary action up to and including termination. Your employer wants every eligible employee who needs coverage to have it. However, Health Insurance is costly, and the County cannot continue to pay premiums for needless or unauthorized coverage. For continuation of coverage during disability due to accident or illness, see the Health Insurance Section of your Collective Bargaining Agreement or contact the Personnel Department. Health Insurance coverage terminates for any laid-off employee on the last day of the calendar month in which lay-off becomes effective. Eligible employees will be offered continued coverage through the Consolidated Omnibus Reconciliation Act (COBRA). See the COBRA section of this Handbook. NOTIFICATION PROCEDURE When County Personnel approves an application for Leave of Absence without pay the employee is advised of the duration of the approved leave. If the total leave of absence extends beyond the period of County paid coverage a letter is sent to the employee, advising them of the need to begin making premium payments in order to continue their health insurance coverage, and the amount of premium charged. Should a permanent County employee die, for whom the County was providing family health insurance coverage, the employee’s health insurance shall be continued for the employee’s survivors during the month the death occurs and for two calendar months thereafter. Questions concerning types of coverage or correct monthly premiums should be directed to the Employee Benefits Section, Erie County Personnel Office, telephone number 858-7911. The Health Insurance Program is administered through departmental representatives. Any questions regarding claims or whether specific services are covered must be addressed directly to your own health care insurance company. 31 000184 DENTAL INSURANCE A dental insurance plan is available to Erie County employees under the same conditions as the various health care insurance plans. Employees can get full details from the Personnel Department. The current plan provides a list of covered dental procedures and the amount of payment that is provided by the insurer for each. Payment is provided ONLY FOR THE PROCEDURES LISTED, not for any others. A list of participating dentists is also provided. If a subscriber or dependent receives a covered dental treatment from a PARTICIPATING dentist, that dentist will accept the amount listed on the insurer’s payment schedule as payment in full. However, if a subscriber/dependent receives covered dental care from a NON-PARTICIPATING dentist the subscriber is personally responsible for payment of the dentist’s total billing. Upon receiving a fully completed dental claims form, the insurer will forward a check for the amount listed on the payment schedule directly to the subscriber. Claim forms may be obtained from the Personnel Department. WAIVERS OF BENEFITS County employees eligible for paid medical and dental insurance may waive coverage and receive a cash payment in-lieu-of these benefits. To waive coverage an employee must complete, sign and date appropriate waiver forms, which can be secured from any departmental health insurance representative. A waiver may be completed and submitted to a departmental representative any work day of the year. Any person whose waiver of benefits is received by Personnel on or before the 15th day of any month will start eligibility for cash payment the first day of the following month. If received after the 15th of any month, eligibility for cash payment will start the first day of the second month after the waiver is received. Once approved, a waiver remains in effect indefinitely until it is withdrawn in writing, or until the employee leaves County service. 32 000185 A waiver of benefits can be withdrawn at any time during a calendar year with appropriate written notice. Completion of a new application for group health insurance is required. Eligible employees may now elect to subscribe for or to continue dental insurance by having the total dental premium deducted from their paychecks, and still collect the monthly cash allowance under the waiver. These payments are treated as ordinary income and subject to withholdings for FICA, federal and state income tax. Such payments are not considered part of your salary or wages by the New York State Retirement System. Therefore, no contributions are made to the Retirement System for these payments, either by the employer or by the individual employee. FEDERAL COBRA MEDICAL/DENTAL INSURANCE LAW The federal COBRA insurance law is now in effect for all insured Erie County employees and their dependents. Briefly, COBRA provides that employees who are currently covered under any Erie County group medical/dental insurance plan, and who leave Erie County service for any reason other than death or gross misconduct, or who become ineligible for group insurance coverage through reduction in hours, must be offered the opportunity to continue the same health/dental coverage for eighteen (18) months, or until one of the following occurs: a) they become covered under another group medical/dental insurance plan; b) they become eligible for Medicare; c) their coverage is canceled for non-payment of any premium. Further, COBRA provides that any person who is enrolled as a dependent of an employee subscriber under any Erie County group health or dental plan on the day before the date of any qualifying event, which would otherwise result in the dependent losing coverage, must be offered continuation coverage under the employer’s group plan(s) for up to thirty-six (36) months, or until one of the circumstances listed above occurs. Qualifying events include: a. death of the employee subscriber b. divorce or legal separation 33 000186 c. dependent reaching the insurer’s cut-off age d. dependent ceasing to be a legal dependent e. any other event that would otherwise result in loss of coverage, other than non-payment of premium by the subscriber A subscriber or a family member must notify the County Personnel Department of any of the above within 60 days of the date of the qualifying event or eligibility coverage for COBRA will be lost. Within fourteen (14) days after the end of the month in which an employee leaves County employment or within fourteen (14) days after County Personnel is notified of any other qualifying event by a family member, County Personnel will mail full particulars and forms for electing continuation coverage to COBRA eligibles. Any COBRA eligible has 60 days from the date of the qualifying event or 60 days from the date of receipt of full particulars and necessary COBRA forms (whichever is later) during which to formally elect continuation coverage and to forward the first full monthly premium payment. A COBRA subscriber must pay the entire premium cost for the coverage selected directly to the insurance carrier. This only “highlights” COBRA procedures. For full details contact COBRA, County Department of Personnel, Room 604, 95 Franklin Street, Buffalo, New York 14202. VACATIONS Vacations are earned and may be taken by employees according to the schedules and rules negotiated with each of the several bargaining agents (see the bargaining agreement for your unit), or according to policies established for Management/Confidential employees. A few general rules apply to the use of vacation time for all County employees: Vacation can be taken only in the minimum units provided in the labor agreements, or in policies for Management/Confidential employees. Vacation Accruals are normally credited bi-weekly, as they are earned. They must be earned before they can be taken. The scheduling of vacations must be approved by the department head or designee in advance, and such approval is subject to 34 000187 the work requirements of the department or work unit. While sincere efforts are made to try to schedule vacation times desired by the employee, staffing requirements of the work unit must take precedence. PERSONAL LEAVE Most full-time and regular part-time employees are credited with personal leave (in accordance with the provisions of labor agreements) or policy for Managerial/Confidential employees on their first anniversary date. Thereafter, they receive the same number of personal leave days for each succeeding year of employment. (Personal leave is granted only if the employee is on active pay status for at least six (6) months of service in an anniversary year). There is no pro-rated personal leave. Either it is granted in full or not granted at all. Personal leave is not cumulative from year to year. It must be used within the anniversary year following the year in which it is earned, or the unused day or days will be added to the employee’s sick leave bank. (This does not increase the maximum number of days permitted in the employee’s bank as specified in Labor Agreements and Managerial/Confidential policies). Application for 3 days or less of personal leave should be made to the department head three working days in advance and five days in advance for more than three days of leave. Personal leave must be used prior to separation from County service. (Provisions covering personal leave are contained in the respective collective bargaining agreements and Managerial/Confidential policies). SICK LEAVE Sick leave is a negotiable item and the procedures for accrual and use is included in each of the collective bargaining agreements. Sick leave is strictly for the following reasons: a) sickness or injury b) serious illness in the employee’s immediate family or household c) quarantine regulations d) emergency Medical or dental visits that must be made during work hours 35 000188 e) maternity disability or f) any other reason authorized by Erie County Policy or applicable collective bargaining agreement. In most instances sick leave is credited bi-weekly, as earned, for each pay period in which an employee is on full pay status for 50% or more of the pay period. Employees may accrue unused sick leave up to the maximum allowed in the labor agreements or in policies designated for Managerial/Confidential employees. Accrued unused sick leave provides very valuable “insurance” against unexpected loss of earnings during illness or injury. In cases of absence due to illness or injury for periods longer than those stated in the labor contracts, employees must provide a statement from their attending physicians showing incapacity and inability to perform their duties. Every use of sick leave requires a written application for approval of use of leave (PO-19), which must be approved by the immediate supervisor and the department head or designee. CALL-IN PROCEDURES TO REPORT NECESSARY ABSENCE FROM WORK (1) Each day that absence is necessary under the Sick Leave Provisions and established practices, employees shall report same to their department heads (or the specific designee of the department head) within ½ hour before the start of the employees’ shift. In institutions and positions requiring a replacement, the time for reporting absence is one hour before the start of the employees’ assigned shift. The daily call-in report shall include, insofar as possible, the apparent nature of the illness or injury (or in the case of illness in immediate family, the relationship and nature of illness) and anticipated return date. Daily call-in is required each and every day, except: (a) When illness is of anticipated short duration not exceeding five days, employees must state, at time of initial call-in, the anticipated duration of absence and nature of illness or injury. If they fail to do so, they are expected either to report to work the following workday or call-in on a daily basis. Further, employees shall call in the day before their previously reported anticipated return date and report their present status. 36 000189 (b) When absence is the result of accident or serious illness and at the time of call-in (which in such cases is often made by a member of the employee’s family) there is no indication of duration of absence, it is expected that the employee or member of family will report more definite information secured from the attending physician regarding the apparent nature of illness or injury and anticipated return date within three days after the initial call-in. (c) When absence is the result of accident or serious illness and the attending physician indicates that an employee cannot return to work until a specified time, the requirement of daily call-in is suspended and the employee is expected to return to duty on the date indicated. Employees shall promptly submit to their department head a certificate from their attending physician indicating the nature of illness and anticipated return date. In the event of any change in condition or change in anticipated return date from that previously reported, a new certificate from the attending physician shall be submitted. (d) When employees call in and report that their attending physician has informed them that they will be unable to work indefinitely due to extended illness, the daily call-in is suspended, but the employees shall promptly submit to their department head a certificate from the attending physician indicating the nature of illness and anticipated return date. In the event of any change in condition or a change in the anticipated return date from that previously reported, a new certificate from the attending physician shall be submitted. It is essential that the call-in be made directly to the department head, or the specific designee(s) and that no other person(s) be authorized to accept call-in reports of absence. Information regarding employee illnesses and injuries is confidential and will only be shared with others who have a legitimate business need to know. Employees shall be required to submit such physician certification forms, other documentation and any other reasonably requested information relating to, or supporting the use of, sick leave as may be requested by their department head or the specific designee(s). ABUSE OF SICK LEAVE A doctor’s certificate or affidavit ordinarily will not be required for employees’ absence due to illness for less than five consecutive work days 37 000190 (unless a different number of days is set forth in the applicable Collective Bargaining Agreement), unless the absence is a qualified absence under the Family and Medical Leave Act (“FMLA”). In such a case, additional paperwork may be required from the employee and/or the physician as authorized by the FMLA. However, general County policy is that where employee absences are such that the County has reasonable grounds to believe that an abuse of sick leave may exist, employees will be notified in writing of the suspected abuse, and thereafter may be required, regardless of duration of absence due to illness, to submit a doctor’s certificate or affidavit indicating the specific nature of the disability and its duration (see the provisions of the respective collective bargaining agreements). It should be noted that abuse of sick leave is grounds for disciplinary action, including possible suspension and/or discharge from employment. MATERNITY LEAVE Employees who are unable to perform the duties of their positions due to pregnancy will be granted Maternity Leave for the period of pregnancy disability. Maternity Leave is treated exactly the same as any other Medical Disability Leave. The period of pregnancy disability begins the date the employee’s personal physician indicates that the employee may no longer work, and for a normal delivery ends 6 weeks (42 calendar days) after the actual date of delivery, or in case of Caesarean Section, Leave for Disability ends 8 weeks (56 calendar days) after actual delivery date. An employee may also be entitled to take additional time off after the pregnancy disability period for Maternity Leave or to otherwise care for his or her newborn child under the Family Medical Leave Act of 1993 or as provided in his or her Collective Bargaining Agreement. An employee wishing to take off additional time under the Family and Medical Leave Act of 1993 should see her department head or designee(s) to determine eligibility. Accumulated Sick Leave credits may be used during the period of pregnancy disability and during the use of any time taken under the Family and Medical Leave Act of 1993 if the time taken is due to illness of the employee or immediate family member, in accordance with the procedures for use of sick leave in Erie County. In addition, an employee may be forced to use accumulated vacation time or compensatory time during the period he or she has taken off pursuant to the Family and Medical Leave Act. If Sick Leave and other benefits are exhausted before expiration of the Maternity Leave or time 38 000191 taken under the Family and Medical Leave Act, employees will be granted Leave Without Pay for the remainder of the disability period, or time taken under the FMLA. When an employee is ready to go out on a Maternity Leave, she will complete a request for Leave of Absence form PO18 and form B-4290 Physician’s Certificate should be completed by her physician, When the employee applies for leave under the FMLA, she may be given additional forms to be completed by the physician and/or employee. EXTENDED SICK LEAVE Certain bargaining unit employees who have completed fifteen (15) years of continuous service may receive such Extended Sick Leave with pay as may be recommended by the employees’ department heads and approved by the Commissioner of Personnel. No such additional sick leave shall be approved by the Commissioner of Personnel in excess of a period of 5 months (in addition to sick leave already accumulated by such employees). Some labor agreements provide that employees with ten (10) or more years, but less than fifteen (15) years, of continuous service may be eligible for up to a cumulative total of three (3) months of Extended Sick Leave With Pay. When this ten year provision applies, it cannot, under any circumstances, extend the cumulative maximum allowance of five months of Extended Sick Leave With Pay for which employees may become eligible during their entire working career with Erie County. In every case, refer to the labor agreement for your bargaining unit for specifics concerning eligibility. No credits for sick leave, personal leave or vacation shall be earned during periods of Extended Sick Leave with pay. Approval for such leave must be applied for separately for each month or portion of a month of continuous absence. Each application for the original 30 days benefit, and for each subsequent extension of an initial leave, must be separately approved by the Department Head and by the Commissioner of Personnel. Form PO-302 Request for Extended Sick Leave must be submitted with a medical stating diagnosis and estimated date of return to work. All accrued time, i.e., vacation, sick time, personal leave, compensatory time, etc., must be exhausted before approval of any such Extended Leave. 39 000192 This benefit is intended solely for the protection of long service career employees when illness or recuperation from injury extends for a long period, but who are fully expected to be able to return to their career employment and to function effectively. It is NOT INTENDED as a prelude to retirement. Abuse may result in discharge. The County retains the right to confer with the attending physician during such extended leave, and/or to request that any employee granted such leave be examined by a County physician. CANCER SCREENING All employees will receive excused paid leave time to allow for breast and prostate cancer screening. Such excused leave shall not exceed four (4) hours for breast cancer screening and four (4) hours for prostate cancer screening on an annual, calendar year basis. A Cancer Screening Request Form can be found on Sharepoint and should be submitted with appointment letter. SAFETY AND HEALTH Erie County is very concerned about the safety and health of its employees. Each department will provide a place to work that is as free from hazards as possible. The employee safety slogan for our County, “Safety Today for a Healthy Tomorrow”, illustrates our commitment to a sound safety and health program. Occupational accidents and illnesses can cause suffering and financial loss to both the employee and employer alike. Therefore, it is important for each employee to conduct himself in a safe manner, to abide by the established work rules and standard practices and to call to the attention of supervision either unsafe conditions or unsafe behavior by individuals. If you do not understand procedures, instructions, or the rules, you should seek clarification from your supervisor. Efficiency of County operations can be directly influenced by our ability to minimize accidental injuries and property losses. Remember, most accidents are avoidable! The New York State Public Employee Safety and Health Act of 1980 (PESH) provides job safety and health standards for workers. This law embraces the Federal Occupational Safety and Health Act of 1970, known as OSHA. A complimentary State statute, applicable to both public and private employees, is the New York State Toxic Substance Law, which is frequently 40 000193 referred to as the “Right to Know Law.” Under “Right to Know” employers in New York State must inform their employees about the health effects of toxic substances found at their work sites. An appropriate notice advising employees of their right to information about these toxic substances and the name of a County contact person must be conspicuously posted. Toxic materials information is available through the County contact person. SAFETY RULES - SAFETY COMMITTEES In addition to the laws, regulations, and general safety rules applicable to all County operations, specific complementary rules have also been adopted by some departments. All employees should be familiar with the rules that apply specifically to their own operations and department. Safety committees composed of employees and management representatives meet regularly to discuss safety and health issues. All employees have the opportunity to make recommendations and seek information from the committee having oversight responsibility for their departments. EMPLOYEE RESPONSIBILITIES Accident prevention requires teamwork, cooperation and commitment from everyone. This includes employees, supervisors and department heads equally. The County is committed to the use of proper protective clothing and equipment. Required protective clothing and equipment shall be properly used and cared for by all employees. Failure to properly care for and use these items will result in disciplinary action. Safety and health practices must and will take precedence over expediency or short cuts. It is management’s responsibility to properly instruct employees and to ensure that they know how to perform their duties in an acceptable manner. Employees are encouraged to request instruction in those tasks or in the operation of equipment with which they are not familiar. Employees should inform their supervisor immediately if they detect or even suspect an imminent danger. This term is defined by Federal regulations “as a condition where there is reasonable certainty that a danger exists that can be expected to cause death or serious physical harm immediately, or before the danger can be eliminated through normal enforcement or corrective measures.” Of course, less critical conditions should also be routinely reported. All employees should know their exact duties in case of an accident, fire or other catastrophe. Awareness of emergency phone numbers, evacuation procedures, and knowing how to seek emergency help is the responsibility of 41 000194 every employee. Housekeeping plays an important role in accident prevention. It is the employees’ responsibility to keep their own work areas clean and free of known hazards. ON-THE-JOB ACCIDENTS Each employee is responsible for reporting all accidents immediately. Complete records of employee accidents and injuries are maintained by each department. Procedures for reporting on-the-job accidents and the Workers’ Compensation reporting requirements can be found in this handbook under the title “On the Job Injury” and also in detail in the Erie County Personnel Policy/Procedure Manual, Chapter IX, Section 5. It is the policy of Erie County that each department will make a reasonable effort to facilitate the return-to-work of injured employees. Erie County has an ongoing employee assistance program (see the Employee Assistance Program section of this Handbook) to help employees with their health problems relating to stress and chemical dependence. ON THE JOB INJURY Accidents do occasionally happen. While most work related injuries are infrequent and minor, the potential for more serious injury certainly exists. The proper course of action for an injury during working hours necessarily depends on its type and severity. For any serious injury, the first step is always to get medical attention/treatment as quickly as possible. For a minor injury or accident, the supervisor should be contacted (circumstances permitting), then first aid or medical treatment (as appropriate) should be secured, preferably through First aid or the Employee Health Offices. Every job related injury must be reported in writing to the department head or designee at the earliest possible time that circumstances permit. Prompt reporting protects you! When a job-related accident or illness causes an employee to miss work time and/or results in a bill for medical services, the department is required by law to immediately complete and forward a Workers’ Compensation Board standard C-2 form (EMPLOYER’S REPORT OF INJURY). The form includes the necessary personal and earnings data for the employee, the nature of the injury as well as the time, date and pertinent details of its occurrence. 42 000195 Completion of the C-2 establishes that an injury has been reported/treated, and if time away from the job becomes necessary, it enables the claims agent to promptly start payment to the employee. Under present regulations, no Workers’ Compensation benefits are paid for the first five normally scheduled working days after an injury is sustained. After the eleventh lost time day, payment becomes retroactive to the first day of lost work time. If injury results in loss of time from work and/or possible residual impairment, the Workers’ Compensation Board makes a determination as to eligibility for and the amount of benefits to cover medical expenses, loss of wages, etc. LEAVES OF ABSENCE WITHOUT PAY (GENERAL) An application for leave of absence without pay must be made to the Department Head on the prescribed form PO18. With the exception of maternity and military leave, leave without pay is granted only to permanent employees. You should check with your department regarding the exact procedures to be followed. MILITARY LEAVE OF ABSENCE Employees entering active military duty are entitled to leaves of absence from their positions, while engaged in, going to and returning from military duty. The right to this leave is provided for in the Military Law and is not at the discretion of the appointing officer. This provision also applies to reservists, draftees and volunteers equally. Employees who are ordered to active duty in the National Guard or any reserve force are entitled to remain on active pay status for a total of thirty calendar days or twenty-two work days (whichever is greater) in any calendar year. Form PO18 and a copy of the Military Orders must be submitted with the leave request. VETERANS EDUCATIONAL LEAVE Veterans who are qualified to receive education, training or vocational rehabilitation under the law shall be granted leave without pay for this purpose, 43 000196 provided that school attendance precludes employment in their County positions. Such leave will be granted for a maximum of four years and will terminate before that time if employees stop attending school or exhaust their veterans’ benefits. Form PO18 should be submitted for this request. LEAVES WITHOUT PAY FOR OTHER REASONS Request for leave without pay for reasons other than those discussed above shall be approved by a Department Head only under exceptional circumstances. Such requests must then be submitted along with Form PO18 to the Commissioner of Personnel, with the recommendation of the Department Head for final approval. Check with the applicable sections of the labor agreement for your bargaining unit. RETIREMENT BENEFITS All County employees have the right to join the New York State Employees Retirement System. Permanent full time employees are required to join. The system provides for service retirement and also for benefits in the event of death or disability. Membership applications may be obtained from your own department’s personnel or payroll section. There are five separate classes of Employees’ Retirement System membership, depending on system enrollment date. Tier 1 members are those persons who last became members on or before June 30, 1973. Generally, Tier 2 members are those who last became members on or after July 26, 1973. Tier 3 members are those persons who last became members on or after July 27, 1976 and Tier 4 covers all members who last entered the system on or after September 1, 1983, and Tier 5 covers members entering the system on or after January 1, 2010. Tier 3, Tier 4, and Tier 5 members must contribute 3% of their gross pay to the retirement system. Tier 3 and Tier 4 employees contributions cease after 10 years. Tier 3 and 4 members may withdraw their own contributions to the system if they separate from service prior to serving 10 years. The individual or one acting for a deceased member’s estate, must specifically apply for withdrawal of these contributions. There are variations in the retirement plan for each tier with respect to employee contributions, benefits, minimum retirement age and so forth. 44 000197 Membership in the Retirement System is not automatic upon being employed. Application must be made by the individual employee on the forms available in each County Department. Erie Community College Faculty may choose the Employee’s Retirement Plan, the TIAA-CREF Retirement Plan or the New York State Teachers Retirement Plan. An employee must be in the Retirement System for five years to become vested or for 10 years if a member of Tier 5. Being vested means you are entitled to receive benefits at retirement age even though you may have left government employment covered by the New York State Employees’ Retirement System. The system is complicated, and employees should consult with the New York State and local retirement system and/or the Erie County Personnel Department for information pertaining to benefit payment options. Some Sheriff’s Deputies engaged directly in criminal law enforcement activities are covered by special plans of the Retirement System. Sheriff’s Deputies now entering County employment are covered under the standard current plan. The State Retirement System views all matters concerning an individual’s retirement status as personal matters between the employee and the Retirement System. They will not release any retirement information to anyone other than the employee or persons legally authorized to act for the employee. Therefore, employees who have questions about their retirement status should address their questions in writing to the New York State Employees’ Retirement System, Governor Smith State Office Building, Albany, NY 12244. A field representative of the State Retirement System is located at the State Office Building, 65 Court Street, from 9 to noon and 1 to 4 on the first, second, third and fourth Monday, Tuesday, Wednesday and Thursday of each month. Visitors who wish to meet with a representative must schedule an appointment. The toll free number is 1-866-805-0990. NOTES: 1) All permanently appointed new employees other than regular part-time and part-time workers must become members of the Retirement System at the time of appointment (mandatory). 2) Foreign nationals holding certain visas, who are by law exempt from paying into Social Security, may also be excluded from the Retirement System. All visa information must be furnished by the employee at the 45 000198 time of appointment and this information must be forwarded to the Erie County Personnel Department. 3) Regular part-time, part-time, temporary and provisional employees MAY JOIN the Retirement System but are not required to do so. However, once employees join the system, they CANNOT withdraw from membership, so long as they are employed in any capacity by New York State government or any of its municipalities. BEREAVEMENT LEAVE An employee on active pay status who have a death in his immediate family or another relative who is an actual member of the employee’s household, will receive bereavement leave, without loss of pay, up to the maximum number of consecutive calendar days provided by the applicable collective bargaining agreement. However, pay will not be granted for any consecutive calendar days that are the employee’s regularly scheduled days off. (See the collective bargaining agreement for your unit for specifics.) LEAVE FOR JURY DUTY Leave of absence will be granted to employees who are called for jury duty or must attend court for other than personal reasons. County pay during jury duty is provided to the extent set forth in the respective collective bargaining agreements. Employees must present proof of the need for jury service or court attendance, and that they were actually in attendance on the days claimed. (For details please refer to the collective bargaining agreement for your unit.) UNEMPLOYMENT INSURANCE The primary purpose of Unemployment Insurance is to provide temporary financial assistance to workers who may become unemployed through no fault of their own, until they can locate other suitable employment. Persons who are laid off must serve an unpaid waiting period equivalent to one full week of employment benefits. The conditions under which persons may be eligible for Unemployment Insurance payments, the amount of individual payments, and the maximum 46 000199 period of payments are all determined by the New York State Department of Labor, and are subject to amendment or change. Therefore, questions concerning Unemployment Benefits must be directed to the New York State Unemployment Insurance office. If you are laid off from County employment, you will be given a partially completed Record of Employment form at the time of termination. You should present this form at the time you file a claim for Unemployment Insurance Benefits. All County Unemployment Insurance matters are administered directly through the Erie County Personnel Office on the sixth floor of the Rath Building. TRAVEL EXPENSES County employees who are required to use their private vehicles during the course of their employment must have prior approval from their department head. All mileage requests must be made on the proper form. Each department has copies of the forms for use. The policies and procedures covering expenses for employees conducting official County business are reflected in the rules and regulations issued by and amended by the County Comptroller. COMPUTER INFORMATION SECURITY Information critical to the operation of the County, regardless of its format is an asset of the County and measures shall be taken to protect this asset from unauthorized modification, destruction, or disclosure, whether accidental or intentional. All County employees, users, contractors, or other personnel are responsible for complying with County security policies, standards, processes, and procedures. This includes building, configuring, operating, and maintaining networks and systems in accordance with these policies, standards, processes, and procedures. Anyone becoming aware of violations of this policy should immediately bring this to the attention of his or her immediate supervisor and the appropriate department and agency authority. 47 000200 For more information see the “County of Erie Enterprise Information Technology Security Policy” at http://sharepoint.erie.gov/policies/Technology. INTERNET ACCESS POLICY Erie County's Internet connection is an Erie County Network service provided by the Division of Information and Support Services that enables participating County departments, agencies and personnel to access Internet resources. Use of the Erie County Internet connection will be for the sole purpose of conducting County business. It is to be used with discretion. To establish Internet access for any County employee, department head approval is required. Erie County reserves the right to monitor Internet access and usage for the same reasons and purposes any County computer device or electronic information is subject to review. These reasons include, but are not limited to, maintenance, repair, and “help" functions, troubleshooting and suspected abuses of Internet access privileges. Any employee who is using the internet for non-County business or personal use during work hours may be subject to discipline. All files and communication created by County employees by using the County Internet connection will remain the property of Erie County. Any problems, difficulties or unauthorized use should be immediately reported to the Help Desk. E-MAIL POLICY Erie County’s electronic mail (e-mail) is a County Network software service provided by the County that enables participating departments, agencies, personnel and other authorized users to send and receive messages and utilize related utilities. It is for County business use only. It is to be used with discretion. E-mail is an electronic replacement for paper memoranda and as such, is similar in purpose, use and security. Erie County reserves the right to monitor the system for the same reasons and purposes any County computer device or electronic information is subject to review. These reasons can include maintenance, repair, “help” functions, troubleshooting and suspected abuses of email privileges. Any employee who uses the County email system for nonCounty businesses or personal use may be subject to discipline. 48 000201 Any problems, difficulties or unauthorized use should be immediately reported to the Help Desk. For further information, employees should refer to the Erie County Internet Access/Electronic Mail policy. BLOOD DONATION POLICY In keeping with Erie County Policy and New York State law, employees are given time to donate blood. Each year Erie County government participates in the blood collection programs which are conducted by the Local agencies such as the Buffalo Chapter of the American Red Cross. In order to support this program employees will be given time to make a donation. Time off to donate blood must be cleared through your supervisor. SMOKING POLICY All smoking by employees of Erie County is prohibited in any and all offices, buildings, vehicles and/or facilities owned, rented or leased by the County of Erie. There are no exceptions. (Employees found violating this policy are subject to disciplinary action.) Persons who smoke outside of affected buildings may do so only during their normal break or lunch periods. Employees who wish to smoke outside during their authorized break or lunch periods should check the Smoking Law policy in the Personnel Policies and Procedures manual and/or consult their supervisor for further information regarding permissible smoking areas at their work site. DRUG FREE WORKPLACE Erie County is committed to providing a drug free workplace. The unlawful manufacture, distribution, disposition, possession or use of controlled substances during working hours and at any County workplace is prohibited, and any employee engaging in such conduct shall be discharged in accordance with applicable employee bargaining unit contracts and County policies. 49 000202 Counseling for employees with substance abuse problems is available through the Employee Assistance Program. DUAL EMPLOYMENT Two concurrent full-time appointments are not permitted for any individual in County service either in a single department, or in any combination of departments. While Erie County does not encourage dual employments, a full or part-time employee may, under certain circumstances, concurrently hold another different part-time or seasonal position under another title, SO LONG AS THERE IS NEITHER A CONFLICT IN HOURS FOR THE SEPARATE EMPLOYMENTS, NOR ANY CONFLICT WITH THE OVERTIME PROVISIONS OF THE FAIR LABOR STANDARDS ACT. Under no circumstances will dual compensation be paid to any employee for the same hours. CLASSIFIED RULES Civil Service Law (Section 20) requires that “each municipal Civil Service Commission shall prescribe, amend and enforce suitable rules for carrying into effect” the provisions of the State Civil Service Law. Said rules must be approved by the State, and after such approval they have the force and effect of law. These rules are published periodically by the County Personnel Department as “Rules for the Classified Civil Service of the County of Erie.....” Copies of the rules are available for review at either the Erie County Personnel Department, or at the departmental Personnel Office of each County department. They also can be found on the Erie County Intranet site (Sharepoint). COMPETITIVE CLASS TRANSFER Employees with permanent status in Competitive Class positions can transfer to positions under the same titles in another County department. Such transfers require the permission of the head of the department to which transfer is sought, the Commissioner of Personnel and the employee being transferred. 50 000203 Transfer under the same title between departments does not affect the Civil Service status of transferees in any way. They may be permitted to transfer accrued benefits with them to the new department. Such use or transfer of benefits should be worked out with the respective departments prior to the actual transfer, so as to avoid possible misunderstandings or confusion. Transfers may be made either intra-departmentally (within the same department), or inter-departmentally (between two separate departments), as indicated in the first paragraph of this section. There are provisions to cover each type of transfer in the several collective bargaining agreements. Please refer to the appropriate agreement(s) if you contemplate requesting either type of transfer. Transfer cannot be made to a competitive class position for which a preferred list exists. Civil Service transfers are sometimes possible even between jurisdictions, such as from County service to the service of one of the towns or villages, etc. Such inter-jurisdictional transfers are complex, and should be undertaken only after direct consultation with the County Personnel Department. LAY-OFF/RETRENCHMENT FOR COMPETITIVE CLASS POSITIONS The County will continue to make any necessary reductions in workforce or programs through attrition (resignations, retirement, etc.). If this is not possible, lay-offs may be necessary in accord with Section 80 of the Civil Service Law and with the provisions of applicable collective bargaining agreements. A Competitive Class employee’s retention rights are based on seniority, which dates from the first date of permanent appointment in the classified service. Those with temporary or provisional appointments, who have not previously had permanent status and continuous service since, are not entitled to re-call or to re-instatement under Civil Service Law. Section 80 governs lay-off of permanent employees in the Competitive Class. For these employees, the lay-off unit is the County department or other designated unit. If they cannot “bump” within the department from which they are laid-off, their names are then put on preferred lists according to seniority, for recall as positions become available (See Competitive Class PREFERRED LISTS RESULTING FROM LAY-OFF). 51 000204 FOR NON-COMPETITIVE AND LABOR CLASS POSITIONS: The collective bargaining agreements prescribe the method for lay-off of Non-Competitive and Labor Class employees. The agreements describe the “bumping” procedures in detail, along with the methods for determining retention rights for other than Competitive Class employees. (In all cases refer to the Collective Bargaining Agreement for your particular bargaining unit.) NOTE: Some labor agreements provide that a person whose job is affected and who has enough seniority to “bump” another can elect to take layoff rather than exercise bumping privileges. Persons laid-off through no fault of their own are usually entitled to Unemployment Compensation benefits. Eligibility for Unemployment Insurance may be affected if a person voluntarily elects this lay-off rather than “bump”. Check carefully with your personnel department and the New York State Department of Labor if at any time you consider this option. Section 85 of the Civil Service Law provides that war time veterans serving in permanent competitive class positions shall be granted additional retention rights in the event of retrenchment or lay-offs: (1) Blind Veterans are granted absolute rights to retention; (2) Otherwise, disabled veterans shall have sixty (60) months added to their actual seniority dates; (3) Non-disabled veterans shall have thirty (30) months added to their actual seniority dates. Persons with prior military service who believe they are or may be eligible for veteran’s status should request forms from the County Personnel Department to ensure that their veteran’s status is properly recorded. Such status must be verified by copies of Military Discharge papers. COMPETITIVE CLASS PREFERRED LISTS RESULTING FROM LAY-OFF Persons serving under permanent Competitive Class appointment, who are laid-off as a result of retrenchment, will have their names placed on preferred lists for their respective titles in inverse order of their lay-off dates. As positions become available, re-call to these or comparable titles will be offered in the same order that the names of the laid-off employees appear on 52 000205 the preferred lists; i.e., the person with the greatest seniority first, the person with the second greatest seniority second, etc. A preferred list takes precedence over any other eligible list for any Competitive Class appointment, unless a permanently encumbered position has been re-classified to a higher title. In that situation, the permanent incumbent under the lower title is entitled to participate in a promotion examination for the higher, re-classified title. Persons on preferred lists will have their names certified for appointment to the same or to comparable titles, either in their original departments or in other County departments. Only the Commissioner of Personnel may determine when job duties under different titles are equivalent or similar enough to warrant certification from a preferred list. Preferred list applicants may decline appointment to a position in a department other than their original lay-off department. However, they will not thereafter be canvassed for any future vacancies except those occurring in their original lay-off department. Preferred list applicants who decline appointment to the same or comparable titles in their original lay-off department will have their names stricken from that preferred list. Only under extremely unusual circumstances (other than the foregoing) may appointment from a preferred list be declined without the decliner’s name being automatically removed from the preferred list. Reasons for such declinations must be submitted in writing and must be approved or disapproved on their individual merits by the Commissioner of Personnel. A preferred list remains in effect for four years (or longer if approved by legislative action) from the date it is established. If a preferred list appointment has not been offered to laid-off employees within this period, their preferred list rights cease. FOR RETRENCHMENT IN OTHER THAN COMPETITIVE CLASS POSITIONS: Preferred lists are established only for Competitive Class titles under the provisions of Civil Service Law. They should not be confused with Recall Lists, which are based on seniority, and are established in accordance with the provisions of collective bargaining agreements. (See the LAY-OFF and RECALL sections of your particular bargaining agreement). 53 000206 RESIGNATIONS Rule XIX of the “Rules for the Classified Civil Service ----” provides: (1) Resignation in Writing: Except as otherwise provided herein, every resignation shall be in writing. (2) Effective Date: If no effective date is specified in a resignation, it shall take effect upon delivery to or filing in the office of the appointing authority. If an effective date is specified in a resignation, it shall take effect on the date specified. However, if a resignation is submitted while the employee is on leave of absence without pay, the resignation, for the purpose of determining eligibility for reinstatement, shall be deemed to be effective as of the date of the commencement of such absence. Notwithstanding the provisions of this section, when charges of incompetency or misconduct have been or are about to be filed against an employee, the appointing authority may elect to disregard a resignation filed by the employee and to prosecute those charges; and, in the event that the employee is found guilty of those charges and dismissed from the service, the termination will be recorded as a dismissal rather than a resignation. (3) Withdrawal or Amendment: A resignation may not be withdrawn, canceled or amended after it is delivered to the appointing authority, without the consent of the appointing authority. REINSTATEMENT TO COMPETITIVE CLASS POSITIONS: Permanent Competitive Class employees who have resigned from their positions may be reinstated by the appointing authority without further Civil Service examination. Any request for reinstatement must be initiated by the applicant, and must be submitted in writing directly to the appointing authority (Department Head). Reinstatement may be granted to the position(s) from which employee 54 000207 resigned, if vacant, or to different position(s), for which the employee was eligible for transfer or reassignment at the time of resignation. Reinstatement after absence of more than one year requires the approval of the Commissioner of Personnel. TO OTHER THAN COMPETITIVE CLASS POSITIONS: For resignation and re-instatement to other than Competitive Class positions and/or titles, refer to the labor agreement for your bargaining unit. 55 000208 INDEX ABUSE OF SICK LEAVE ......................................................................... 37 AGENCY SHOP ........................................................................................ .8 AMERICANS WITH DISABILITIES ACT AND NEW YORK EXECUTIVE LAW .................................................................................... 18 ATTENDANCE & RECORDING ATTENDANCE ................................. 23 BACKGROUND ........................................................................................ .4 BEREAVEMENT LEAVE ........................................................................ 46 BLOOD DONATION POLICY ................................................................. 49 CALL-IN PROCEDURES TO REPORT NECESSARY ABSENCE FROM WORK ............................................................................................ 36 CANCER SCREENING ............................................................................. 40 CELLULAR PHONES ............................................................................... .7 CLASSIFIED RULES ................................................................................ 50 CODE OF ETHICS .................................................................................... .5 COMPENSATORY TIME POLICY ......................................................... 23 COMPETITIVE CLASS PREFERRED LISTS RESULTING FROM LAY-OFF ................................................................................................... 52 COMPETITIVE CLASS TRANSFER ....................................................... 50 COMPUTER INFORMATION SECURITY ............................................. 47 DENTAL INSURANCE ............................................................................ 32 DIRECT DEPOSIT .................................................................................... .6 DRUG FREE WORKPLACE .................................................................... 49 DUAL EMPLOYMENT ............................................................................ 49 E-MAIL POLICY ....................................................................................... 48 EMERGENCY & TEMPORARY ASSIGNMENTS ................................. 21 EMERGENCY CLOSINGS ....................................................................... 24 EMPLOYEE ASSISTANCE PROGRAM ................................................. .6 EMPLOYEE BENEFITS ........................................................................... 29 ERIE COUNTY EQUAL EMPLOYMENT OPPORTUNITY OFFICE ... .9 56 000209 EXTENDED SICK LEAVE ....................................................................... 39 FAMILY AND MEDICAL LEAVE ACT OF 1993 .................................. 15 FEDERAL COBRA MEDICAL/DENTAL INSURANCE LAW ............. 33 FLEXIBLE TIME AT START OF SHIFT ................................................ 24 FLEXIBLE BENEFITS .............................................................................. .7 GROUP A ................................................................................................... 25 GROUP B ................................................................................................... 27 GROUP C ................................................................................................... 28 HARASSMENT POLICY OF ERIE COUNTY ........................................ .9 HEALTH, HOSPITALIZATION AND DENTAL INSURANCE ............ 29 IDENTIFICATION CARDS ...................................................................... .6 INTERNET ACCESS POLICY ................................................................. 47 INTRODUCTION ...................................................................................... .1 LAY-OFF/RETRENCHMENT FOR COMPETITIVE CLASS POSITIONS ................................................................................................ 51 LEAVE FOR JURY DUTY ....................................................................... 46 LEAVES OF ABSENCE WITHOUT PAY (GENERAL) ......................... 43 LEAVES WITHOUT PAY FOR OTHER REASONS .............................. 44 MATERNITY LEAVE ............................................................................... 38 MEETING THE PUBLIC .......................................................................... .4 MERIT INCREMENTS ............................................................................. 20 MILITARY LEAVE OF ABSENCE ......................................................... 43 NOTIFICATION PROCEDURE ............................................................... 31 ON THE JOB INJURY .............................................................................. 42 PAY DAYS ................................................................................................ 21 PERSONAL LEAVE ................................................................................. 35 PERSONNEL FILES ................................................................................. .8 PHYSICAL EXAMINATIONS ................................................................. 19 POLITICAL ACTIVITY ............................................................................ .8 PROBATIONARY TERMS ....................................................................... 22 PROMOTIONS .......................................................................................... 21 57 000210 REASSIGNMENT WITHIN TITLE AND GRADE ................................. 22 REINSTATEMENT ................................................................................... 54 REMOVAL AND OTHER DISCIPLINARY ACTION ............................ 25 RESIDENCY .............................................................................................. .5 RESIGNATIONS ....................................................................................... 53 RETIREMENT BENEFITS ....................................................................... 44 RULES ....................................................................................................... 25 SAFETY AND HEALTH........................................................................... 40 SALARY PLAN ......................................................................................... 19 SICK LEAVE ............................................................................................. 35 SMOKING POLICY .................................................................................. 49 TARDINESS POLICY ............................................................................... 24 TELEPHONES ........................................................................................... .7 TRAVEL EXPENSES ................................................................................ 47 UNEMPLOYMENT INSURANCE ........................................................... 46 VACATIONS ............................................................................................. 34 VETERANS EDUCATIONAL LEAVE .................................................... 43 WAIVERS OF BENEFITS ........................................................................ 32 WORKPLACE VIOLENCE POLICY ....................................................... 15 58 000211