Policy Bulletin No. 1998-01

Sections 21.9 & 21.12 & Appendix A - July 6, 1998

TO: Attendance and Leave Manual Recipients
FROM: Robert W. DuBois
SUBJECT: Amendments to the Rules for Employees in New York State Departments and Institutions
DATE: July 6, 1998

Effective February 4, 1998, the Attendance Rules for Employees in New York State Departments and Institutions were amended to bring State policy for overtime exempt employees into conformance with requirements under the Fair Labor Standards Act for positions designated as overtime ineligible.

The Second Circuit Court of Appeals, in Yourman v. Dinkins, affirmed a decision of the District Court which held that certain high salaried New York City employees, who would
otherwise be exempt from the provisions of the FLSA, were overtime eligible because they were subject to personnel policies and rules which, among other things, required charge to leave credits for absences for temporary military duty in excess of 30 days and appearances in court as a witness where the employee is a party to the action.

The State's Attendance Rules contain provisions almost identical to those of New York City which the Court held violated the "salary basis" test. To bring our Rules regarding military leave and witness leave in conformance with Yourman, the following amendments were made to the Attendance Rules.

These amendments provide additional paid leave for certain temporary military duty for overtime ineligible employees who have exhausted paid leave under Section 242 of the
Military Law and also provide paid leave for overtime ineligible employees for certain ordered court appearances regardless of whether the employee is a party to the action.

Specifically, new sections - Section 21.16 of the Non-Managerial Confidential
Attendance Rules and Section 28-1.18 of the Managerial Confidential Rules - were added to provide that when employees who are designated as overtime ineligible have exhausted their military leave with pay entitlement under Section 242 of the New York State Military Law, they must be granted leave with pay without charge to leave credits for any period of less than a workweek during which they are ordered to temporary military duty.

Additionally, Section 21.9 of the Non-Managerial Confidential Attendance Rules and
Section 28-1.9 of the Managerial Confidential Attendance Rules were amended to provide that an overtime ineligible employee who appears as a witness in response to a subpoena or other order of a court or quasi judicial body for any period of less than a workweek is entitled to paid leave regardless of whether the employee is a party to the action (i.e., defendant or plaintiff).

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These amendments, which are applicable only to overtime ineligible employees and only for absences of less than a workweek, remove the restriction that paid leave for court appearance cannot be granted if the employee is a party to the action. For absences of a full workweek, paid leave continues to be available only if the employee is not a party to the action.

The term "workweek" referred to in these Sections is based on the Thursday through Wednesday payroll workweek and includes all days in the employee's normal work schedule that fall within that Thursday through Wednesday workweek period. The following examples relate to military leave; however, the same principle applies to absences for ordered appearance as a witness when the employee is a party to the action.

An overtime ineligible employee who works a normal Monday through Friday schedule and has exhausted his entitlement to paid military leave under Section 242, receives military orders for Friday through Monday. This employee is eligible for paid leave for Friday and Monday in accordance with these amendments since the absence was for less than a workweek.

A month later, the same employee receives another set of military orders for a period that runs from Monday through Friday. This employee is entitled to paid leave for this entire five-day period since three days (Monday through Wednesday) fall in one workweek and two days (Thursday and Friday) fall in the second workweek. The employee was absent on military duty for less than a full workweek in two separate workweeks.

If this employee later receives military orders which run from Thursday through Wednesday, the employee would not be entitled to any leave with pay for this period because the absence was for an entire workweek. If the military orders run from Thursday through the following Thursday (a workweek and a day), the employee is not eligible for paid leave under these provisions for the full workweek but is eligible to receive paid leave for the one-day absence in the second workweek.

The same principle applies to employees who work fewer than five days per week (for example, employees on compressed workweeks or part-time employees subject to the Attendance Rules who work fewer than five days per week). For example, the overtime ineligible employee who works a four-day compressed workweek from Monday through Thursday and who receives military orders for this same period is eligible for paid leave for this period since three days fall in one.workweek and one day falls in a second workweek, resulting in military duty for less than a full workweek in two separate workweeks.

Questions about these amendments should be directed to the Employee Relations Unit of this Department at (518) 457-2295. A copy of these amendments is attached. [Not attached here]

Attachment [Not attached here]

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