We fill the communication gap between representative/lawyer and client by working on a set-fee basis, not an hourly rate, and by giving unlimited time to research and to discuss the facts and issues. Our goal is to assure each client that he or she has someone in their corner at all times and that the arguments presented are accurate and comprehensive. We keep all parties on the same page.

That's what Due Process Advocacy is all about: preserving the right to be heard and to have relevant facts considered.

Friday, April 15, 2022

The Dignity of Work and the Rights of Workers - The United States Conference of Catholic Bishops (USCCB)


I am not a member of the Catholic Church, but I respect the people who are, and who claim that their religious beliefs prohibit them from getting vaccinated against COVID-19. The Catholic Church abhors abortion, and any vaccine that uses cells from a fetus. However, the conclusion the Church has reached is that the urgency of the pandemic takes precedence over any moral question, and therefore all Catholics should take the vaccine.

I believe that everyone must make an individual choice, one that they can live with. It seems to me that efforts to create or continue the remote work of someone who cannot be vaccinated because of their sincere religious beliefs, are not that difficult to plan and implement, in many cases.

The City of New York should make accommodations for anyone with a request for a religious exemption from getting the vaccine, and stop the nonsense of how these individuals are creating an "undue hardship" for asking for telework. 

Prove it, Mayor Adams.

Betsy Combier

Editor, ADVOCATZ.com
Editor, ADVOCATZ Blog

The Dignity of Work and the Rights of Workers
The United States Conference of Catholic Bishops (USCCB)

The economy must serve people, not the other way around. Work is more than a way to make a living; it is a form of continuing participation in God’s creation. If the dignity of work is to be protected, then the basic rights of workers must be respected--the right to productive work, to decent and fair wages, to the organization and joining of unions, to private property, and to economic initiative.


Genesis 2:1-3
God rests on the seventh day.

Genesis 2:15
God settles man in the garden of Eden to cultivate and care for it.

Deuteronomy 5:13-15
The Sabbath is for everyone—all are allowed to rest from their work.

Deuteronomy 14:28-29
The Lord blesses our work so that we may share its fruits with others.

Deuteronomy 24:14-15
Do not withhold wages from your workers, for their livelihood depends on them.

Sirach 34:26-27
To deprive an employee of wages is to commit murder.

Isaiah 58:3-7
To observe religious practices, but oppress your workers is false worship.

Jeremiah 22:13
Woe to him who treats his workers unjustly.

Matthew 20:1-16
All workers should be paid a just and living wage.

Mark 2:27
The Sabbath was made for people, not people for the Sabbath.

Luke 3:10-14
Practice integrity in your work.

Luke 12:13-21
One’s worth is not determined by an abundance of possessions.

James 5:1-6
Those who become rich by abusing their workers have sinned against God.

Work should be the setting for this rich personal growth, where many aspects of life enter into play: creativity, planning for the future, developing our talents, living out our values, relating to others, giving glory to God. It follows that, in the reality of today's global society, it is essential that "we continue to prioritize the goal of access to steady employment for everyone," no matter the limited interests of business and dubious economic reasoning. We were created with a vocation to work. The goal should not be that technological progress increasingly replace human work, for this would be detrimental to humanity. Work is a necessity, part of the meaning of life on this earth, a path to growth, human development and personal fulfillment. Helping the poor financially must always be a provisional solution in the face of pressing needs. The broader objective should always be to allow them a dignified life through work. (Pope Francis, On Care for Our Common Home [Laudato Si'], nos. 127-28)

Growth in justice requires more than economic growth, while presupposing such growth: it requires decisions, programs, mechanisms and processes specifically geared to a better distribution of income, the creation of sources of employment and an integral promotion of the poor which goes beyond a simple welfare mentality. I am far from proposing an irresponsible populism, but the economy can no longer turn to remedies that are a new poison, such as attempting to increase profits by reducing the work force and thereby adding to the ranks of the excluded." (Pope Francis, The Joy of the Gospel [Evangelii Gaudium], no. 204)

I would like to remind everyone, especially governments engaged in boosting the world's economic and social assets, that the primary capital to be safeguarded and valued is man, the human person in his or her integrity: "Man is the source, the focus and the aim of all economic and social life." (Pope Benedict XVI, Charity in Truth [Caritas in Veritate], no. 25, quoting Second Vatican Council, The Church in the Modern World [Gaudium et Spes], no. 63)

The economic sphere is neither ethically neutral, or inherently inhuman or opposed to society. It is part and parcel of human activity and precisely because it is human, it must be structured and governed in an ethical manner. (Pope Benedict XVI, Charity in Truth [Caritas in Veritate], no. 36)

In many cases, poverty results from a violation of the dignity of human work, either because work opportunities are limited (through unemployment or underemployment), or "because a low value is put on work and the rights that flow from it, especially the right to a just wage and to the personal security of the worker and his or her family." (Pope Benedict XVI, Charity in Truth [Caritas in Veritate], no. 63)

The obligation to earn one's bread by the sweat of one's brow also presumes the right to do so. A society in which this right is systematically denied, in which economic policies do not allow workers to reach satisfactory levels of employment, cannot be justified from an ethical point of view, nor can that society attain social peace. (St. John Paul II, The Hundredth Year [Centesimus Annus], no. 43)

All people have the right to economic initiative, to productive work, to just wages and benefits, to decent working conditions, as well as to organize and join unions or other associations. (United States Conference of Catholic Bishops, A Catholic Framework for Economic Life, no. 5)

Work is, as has been said, an obligation, that is to say, a duty, on the part of man. . . Man must work, both because the Creator has commanded it and because of his own humanity, which requires work in order to be maintained and developed. Man must work out of regard for others, especially his own family, but also for the society he belongs to, the country of which he is a child, and the whole human family of which he is a member, since he is the heir to the work of generations and at the same time a sharer in building the future of those who will come after him in the succession of history. (St. John Paul II, On Human Work [Laborem Exercens], no. 16)

Work is a good thing for man-a good thing for his humanity-because through work man not only transforms nature, adapting it to his own needs, but he also achieves fulfillment as a human being and indeed, in a sense, becomes "more a human being.” (St. John Paul II, On Human Work [Laborem Exercens], no. 9)

All these rights, together with the need for the workers themselves to secure them, give rise to yet another right: the right of association, that is to form associations for the purpose of defending the vital interests of those employed in the various professions. These associations are called labor or trade unions. (St. John Paul II, On Human Work [Laborem Exercens], no. 20)

As the Church solemnly reaffirmed in the recent Council, "the beginning, the subject and the goal of all social institutions is and must be the human person." All people have the right to work, to a chance to develop their qualities and their personalities in the exercise of their professions, to equitable remuneration which will enable them and their families "to lead a worthy life on the material, social, cultural and spiritual level" and to assistance in case of need arising from sickness or age. (Blessed Paul VI, A Call to Action [Octogesima Adveniens], no. 14)

Friday, January 28, 2022

President Biden's Secret Charter Flights For Immigrants on the Southern Border Must Be Exposed and Stopped


Police Sgt. Michael Hamborsky rightfully questioned federal contractors who were releasing 
undocumented immigrants at Westchester County Airport.
                                                                 [NY POST]

When the American people elect someone for President of the United States of America, they give this person a great amount of trust. This trust is more than a wish and more than an expectation, but is a demand that the laws of the country are upheld. Fortunately, we have a so-called "free press" which can be a good thing if an elected President is committing fraud or lying to the public. Everyone will find out who did what to whom the minute that the crime is committed. Exposing the "bad guys" is what makes the internet so powerful and dangerous at the same time.

Miranda Devine and the NY POST have done excellent work in the past week on what seems to be a secret government of the USA. Good work and congratulations for the shocking news that immigrants are being flown to various states for a stay that is undefined (unlimited?) while at the same time the same government of the United States is sending troops to Ukraine to protect the borders from any invasion by Russia.

President Biden heading up a secret government should be held accountable for his actions.

We think an investigation of the "clandestine invasion of America across the Southern border" exposed in the NY POST's Miranda Devine is called for.

Do it now,
Attorney General Garland.

Betsy Combier

‘Betraying the American people’: Leaked video reveals Joe Biden’s ‘hush hush’ migrant invasion


While Joe Biden and Nancy Pelosi go all out to protect Ukraine’s national sovereignty, at the same time they are orchestrating a clandestine invasion of America across the southern border.

Two million illegal immigrants from dozens of countries crossed over from Mexico last year, and the Biden administration is facilitating the cartels’ people-smuggling operation — at taxpayer expense.

Under cover of darkness, every night the federal government is transporting illegal migrants as fast as it can away from the border on secret charter flights into unsuspecting communities around the country. Officials have lied and obstructed the few journalists who have tried to reveal the truth.

This is nothing short of a betrayal of the American people.

And that’s not just me saying it — those are exactly the words of one federal government contractor employed to transport migrants from the southern border to the airport in White Plains.

“The government is betraying the American people,” the contractor told a Westchester County police officer in a conversation that was recorded on the cop’s bodycam on the tarmac of the county airport on Aug. 13, 2021. The men were standing beside a Boeing 737 flown in from Fort Bliss, Texas, by iAero Airways under charter by the federal government.

Damning footage

The 51-minute footage was obtained under a Freedom of Information Act request by former Westchester County Executive Rob Astorino, a Republican candidate for governor in 2022.

Throughout the footage, police Sgt. Michael Hamborsky expresses frustration that local police have been given no information about the flights arriving after curfew at the airport, in breach of security protocols.

“You’re on a secure facility here; we really don’t know anything and we’re in charge of security,” he tells one of the federal contractors.

“This is anti all our security stuff.”

The iAero flight that so puzzled Hamborsky that night was just one of the almost nightly charter flights that began shuttling migrants into the suburban Westchester airport after curfew from places like McAllen, El Paso and Houston, Texas, last year beginning at least as far back as Aug. 8. The flights stopped only after The Post revealed their existence in late October.

The bodycam footage shows Hamborsky courteously but persistently questioning a dozen federal contractors who are bustling around the tarmac overseeing migrants disembarking and boarding American Dream charter buses waiting on the tarmac between about 6:15 and 7 a.m.

Hamborsky ascertains that the plane arrived at 11:48 p.m. the previous night with 142 migrants on board.

Also on board were 12 “chaperones” — employees of MVM Inc., a controversial private security firm that was a major contractor for the CIA and the NSA in Iraq, and which last year signed a $136 million contract with the federal government to transport illegal migrants and unaccompanied children around the country.

The bodycam begins in the pre-dawn darkness at 6:09 a.m. when Hamborsky parks his squad car on the airfield next to the hangar of Ross Aviation, whose employees are assisting with refueling the plane.

Hamborsky asks to see the ID of the MVM contractors.

“I can give you my state ID,” replies one man, “but work IDs we’re not allowed to.”

Hamborsky tells the contractors: “I’m just trying to figure out what’s what, who’s who and how I’m supposed to keep this secure.”

The contractors start giving him the lanyards from around their necks.

One says: “We’re not allowed to have our picture taken when we get on base.”

“Un-f–king-believable,” Hamborsky replies. “And who’s that by? DHS [Department of Homeland Security]?”

“Yes, and the United States Army,” is the reply. “You’re on a federal installation but DHS wants everything on the down-low.”

Hamborsky asks another contractor why they come to a small airport like Westchester.

“You don’t want to be in somewhere the spotlight is,” is the reply. “You want to try and be as down-low as possible. A lot of this is just down-low stuff that we don’t tell people because what we don’t want to do is attract attention. We don’t want the media. Like we don’t even know where we’re going when they tell us.”

Another contractor tells Hamborsky: “Listen, my thing is I like to comply but technically we’re not supposed to show IDs or anything. Like I said, everything is supposed to be hush-hush.”

Hamborsky replies, with good-natured but mounting exasperation: “And if you don’t, I could just not let you out …

“I don’t care if it’s military or not … we gotta know who people are. The way TSA [the federal Transportation Security Administration] works is we’re supposed to have a certain designated number [of passengers] for each chaperone. Well, there’s 60 kids out here and there’s two guys.

“Two [migrants] grab their bags out here and next thing you know we could be playing tag all night.

“I have to take my shoes off when I get on a plane. These guys are grabbing their bags and getting on buses.”

One of the bus drivers waiting for his migrant passengers to board tells Hamborsky he has no idea of his destination.

“They didn’t tell you where it’s going?” asks the cop.

The driver replies: “They never do.”

Security problem

Hamborsky learns from one of the MVM contractors that Delaware and Virginia are two destinations. Later he is told two more buses are heading for Madison, NJ, with one continuing to Maryland.

“You’re trying to figure out what this is?” asks one of the bus drivers. “Good luck with that.”

Hamborsky replies: “You’re on a secure facility here and we don’t ­really know anything and we’re in charge of security. Hence why we’re having a problem here.”

The driver sympathizes: “Yeah … I used to pick up basketball teams that have more security.”

“One hundred percent,” agrees Hamborsky. “We still don’t know really what’s happening, how they’re getting here.”

Meanwhile, in the background, migrants can be seen picking up identical bags laid out on the tarmac and heading toward buses. Most look to be in their middle to late teens, although there are a few older adult males. They can be heard speaking Spanish.

The drivers say usually the buses are waiting when the migrant flights arrive. But this night, “someone dropped the ball.”

One says his boss rang him “in a panic” at 12:24 a.m., saying “we need four buses right away.”

“We’re a family-owned business,” explains one driver. “We’re subcontractors of a government contractor … It’s one of those things you can’t turn down because once you sign the contract, you’re a slave to the grind.”

Later in the bodycam recording, a contractor tells Hamborsky: “I get the whole secrecy and all that s–t but this is even above my f–king pay grade … the f- -k, you know what I mean?”

Hamborsky replies: “And why? You know why?”

The contractor replies: “You know why, look who’s in office. That’s why, come on.”

Hamborsky says: “But what’s the big secret?”

Contractor: “You know why. Because if this gets out, the government is betraying the American people.”

He knows. Everyone knows that Americans don’t want their country to be invaded by millions of illegal migrants. Hence the secrecy and lies from the Biden administration.

Wednesday, December 8, 2021

Young Americans for Liberty Blocks COVID-19 Tracking App with Student Rights Campaign

 In Internet and privacy rights issue of the post-internet world, we must re-examine individual freedom and Community health.

Betsy Combier


For Immediate Release
December 7th, 2021
Young Americans for Liberty
Media Contact: Luka Ladan

Young Americans for Liberty Blocks COVID-19 Tracking App at University of Nebraska

YAL defeats Bluetooth tracking and COVID-19 checkpoint policies with Student Rights Campaign

Austin, TX — Today, Young Americans for Liberty (YAL) celebrated a victory at the University of Nebraska-Lincoln, where the campus no longer allows COVID-19 tracking apps or Bluetooth tracking writ large. It marks the first Student Rights Campaign (SRC) victory for YAL, which currently oversees nearly 70 SRCs across the country. In blocking Nebraska’s tracking app, the organization successfully defended the privacy rights of more than 26,000 students. 

A recent YAL social media post, celebrating the victory, can be accessed here.

In January 2021, Nebraska Chancellor Ronnie Green announced the use of a new COVID-19 app on campus, broadly known as the “Safer Community” app. The app stored students’ testing and vaccination status with color-coding, while students were required to open the app and “show their papers” to access university buildings. By August 2021, YAL state chair Zachary Gale had planned out an SRC for Nebraska at the organization’s Revolution 2021 conference, preparing a petition to circulate on campus.

On October 20th, Gale officially launched the SRC petition (see here), targeting the requirement of an app-based status check to access university buildings and usage of the app’s contact tracing system that sent “tokens” from phone to phone via Bluetooth to expand contact tracing. By the end of November, Gale had collected more than 500 signatures. Shortly thereafter, on December 1st, Chancellor Green announced that the “Safer Community” app will no longer be required to enter Nebraska’s university buildings.

“I was just trying to warn people about the university’s threat to student liberty, from Bluetooth contact tracking to ‘papers-please’ status check apps for entering buildings,” said Gale. “Thankfully, Nebraskans care deeply about their freedoms, and our petition to end the so-called ‘Safer Community’ app garnered enough support to put an end to our university’s tyrannical COVID-19 guidelines.”

“A year-and-a-half into ’15 days to slow the spread,’ students are standing up to demand their privacy and autonomy,” said YAL Director of Free Speech JP Kirby. “Zach and his team reached their classmates, confronted Nebraska’s board of regents, and took the action necessary to take their rights back. This victory for the Student Rights Campaign shows what can happen when students realize the only way to preserve their own freedoms are to answer the call to action and take bold, decisive steps to wrestle them from the hands of bureaucrats.”

You can follow YAL on Twitter @YALiberty. To schedule an interview, please contact Luka Ladan at Luka.Ladan@ZenicaPR.com or (617) 932-9120.

Safer Community App

The Safer Community app is available to support the university community during the COVID-19 pandemic. Safer Community offers the most convenient, most secure and most direct tool for managing your COVID-19 testing and building access. Use of the app is strongly recommended for all students, faculty and staff.

Built to Protect Your Privacy

The safety and privacy of our faculty, staff and students is our top priority. We have built this app with privacy at its foundation. It collects as little data as possible and has strong data security. For more information about how we have prioritized privacy and security, visit the Safer Community Privacy Statement.

Safer Community Privacy Statement

This Application Privacy Statement applies to the Safer Community application, available on Android, iOS and the web.

NU is committed to respecting individuals’ privacy. By choosing to continue to use the Safer Community application, you agree to NU’s collection and use of personal information and non-personal information as described in this Application Privacy Statement. This Application Privacy Statement only governs the use and disclosure of information collected through the Safer Community application.

Collection of Information

You are not required to provide the personal information requested by the Application; however, you may not be able to use some of the features offered by the Application if you choose not to provide your personal information. By providing us with your personal information, you are consenting to our use of it in accordance with this Privacy Statement.

The Safer Community app uses GPS to provide the user with interactive maps and outdoor geofenced notifications to find test locations.

The Safer Community app uses SSID/BSSID (WiFi) to provide geofenced notifications to indoor test locations where GPS does not work.

The Safer Community app uses Photos and Cameras to allow a user to import their personal encryption key (QR code) into the app and to allow reporting of a test result from a non-UNL testing center.

The Safer Community app uses Videos and Cameras to allow a user to import their personal encryption key (QR code) into the app and to allow reporting of a test result from a non-UNL testing center.

The Safer Community app uses Files to allow a user to import their personal encryption key (QR code) into the app and to allow reporting of a test result from a non-UNL testing center.

Personally Identifiable Information (“PII”). “Personally Identifiable Information” for purposes of this Privacy Statement means information that can be used to identify, contact, or locate an individual, as well as test results and reported symptoms. The Application collects the following PII from you, from University information systems, and from your healthcare provider: your name, your email address, your phone number, your local physical address, your NUID, student registration information, your test results, information required by the Lincoln-Lancaster County Health Department, any voluntarily reported symptoms, and your building access status.

Use of Information

NU will only use your personal data on a lawful basis to fulfill a legitimate interest of the University of Nebraska. NU may use information collected from your visit to this application in the following ways:

Notification to state or local health department

Contact tracing

Building access status

Compliance measures related to Student Code of Conduct

Ability to make public-health related decisions

Disclosure or Sharing of Information

NU may use third party service providers and suppliers to facilitate this application or the services NU provides. Those providers and suppliers may have access to the information NU collects in order to fulfill their obligations to NU. NU is a state agency, and as such may disclose or share information in compliance with applicable state, federal, or international laws.

Data Protection

NU is bound by certain privacy rules that protect data regarding students, faculty, and staff. Student information is subject to FERPA (Family Educational Rights and Privacy Act) regulations. Faculty and staff data is treated as personnel information, which is covered under NU Board of Regents Policy 6.7. All data systems involved in the analysis and reporting of your test results, including this application, are designed with the highest standards of encryption and security protocols for maintaining data classified with this level of sensitivity.


If you have questions about the collection or use of information, you should contact the COVID task force by emailing covid19@unl.edu.

Changes to this Online Privacy Statement

NU may periodically update this Application Privacy Statement.

Updated November 17, 2021

From Editor Betsy Combier:

See Parentadvocates.org

How One College Student Fought His School's 'Free Speech Zone' - And Won

Monday, November 29, 2021

Pro Bono Litigation is a Noble Practice


We agree with Alan Feigenbaum who wrote the article below published in the NY Law Journal and on his firm's website Blank Rome that lawyers should do Pro Bono legal work.

Getting a person into a Court of Law should not be reserved for only those who are wealthy and/or powerful. Let's help the little guy and gal. 

Betsy Combier

President and Founder, ADVOCATZ
Editor, NYC Rubber Room Reporter
Editor, Parentadvocates.org
Editor, New York Court Corruption
Editor, National Public Voice
Editor, NYC Public Voice
Editor, Inside 3020-a Teacher Trials

Unmasking the Beauty of an Enforceable Pro Bono Obligation

Alan Feigenbaum

During this continuing pandemic, we have seen people from all walks of life rise to the occasion and contribute their time and efforts to noble causes. Our health care workers are burning the candle at both ends. Our teachers are setting foot in schools daily to educate children who remain unvaccinated. The list goes on and on.

Amidst the noteworthy contributions being made by many of our fellow citizens, as we emerge from the depths of the pandemic this author is compelled to take a detour from my traditional focus (the practice of family law) to question how, if at all, the role of the lawyer—when it comes to trying to facilitate equal access to justice—is in need of improvement.

While we ordinarily refer to lawyers as officers of the court with certain obligations that come with that role, there is one component of that role which remains not only unclear, but in a post-pandemic world, somewhat underwhelming at best. I’m talking about the role that lawyers have, or should have, when it comes to pro bono service.

Rule 6.1 of the New York Rules of Professional Conduct provides that lawyers are “strongly” encouraged to provide pro bono legal services. Specifically, the Rule states that “every” lawyer “should aspire” to provide at least 50 hours of pro bono legal services every year to “poor persons.” Lawyers should indeed aspire to do many things, however the encouragement, on paper, of an aspiration leaves more to be desired.

This author does not recall the words “pro bono” being uttered in law school. If those words were uttered, they were dwarfed by the seemingly unending amount of time spent discussing International Shoe Co. v. Washington, a Supreme Court case that I have never encountered in all my years of practice.

The suggested aspiration in Rule 6.1 is precisely the type of mixed message that I received when I commenced employment straight out of law school. Attorneys were encouraged to do pro bono work, but not required to do it. The message was never crystal clear: Was pro bono work something attorneys in the private sector should do, consider doing, or something else? It is that mixed message which opens the door to an unfortunate outcome: Lawyers who do not incorporate pro bono work into their practices.

When you are told that part of what it means to be a lawyer is to view pro bono work as a duty, as opposed to “charity”—a deeply unfortunate label that, based on the literature that exists on this subject, continues to prevail—you begin to appreciate the value of pro bono service in a more meaningful way.

In 2012, then Chief Judge of the New York Court of Appeals, the Honorable Jonathan Lippman, announced that New York would be the first state to require bar applicants to complete 50 hours of pro bono service as a prerequisite to bar admission. Judge Lippman explained: “If pro bono is a core value of our profession, and it is—and if we aspire for all practicing attorneys to devote a meaningful portion of their time to public service, and they should—these ideals ought to be instilled from the start, when one first aspires to be a member of the profession.”

In my professional home, pro bono work is mandatory. The instruction that pro bono work is required, versus suggested, has been a breath of fresh air. I have been working with Kathy Ochroch, Esq. and Krystal Kane, Esq. to continue to facilitate the growth of my professional, pro bono relationship with The Veterans Consortium, thereby incorporating military discharge upgrade matters into my practice. Needless to say, the work is profoundly meaningful.

Attorneys in New York are required to fulfill certain continuing legal education thresholds in order to maintain themselves in good standing with the Bar. They are not, however, required to incorporate equal access to justice into their practices.

U.S. Supreme Court Justice Sonia Sotomayor said in 2016 that she believed in “forced labor” when it came to equal access to justice. Justice Sotomayor said: “If I had my way, I would make pro bono service a requirement.” Speaking on the identity of the attorney as it relates to pro bono service, she went on to explain that pro bono work “has to become part of their being.”

While much of my pro bono hours are spent on weekends and nights, it is of no moment. After what we have collectively been through the last year and a  half, if lawyers are still questioning when they will find the time to do pro bono work, then we haven’t been paying attention to the need to pay it forward as we hopefully step out of this pandemic world. The academic opposition to Justice Sotomayor’s comments as somehow endorsing involuntary servitude is antiquated at best as we approach the year 2022.

The real question now is whether or not Judge Lippman’s vision will be applied to practicing lawyers. Perhaps it is high time we begin to clean the dust off of Rule 6.1 and redefine what it means to be an officer of the court.

Tuesday, October 19, 2021

CSEA Wins Improper Practice Charge Against the NYS Unified Court System For Unilateral Imposition of a COVID-19 Vaccine Requirement Without Proper Negotiation


UPDATE November 29, 2021

Federal judge blocks 'boundary-pushing' vaccine mandate

UCS Enjoined, Restrained From Implementing Mandatory Vaccination Requirement:

Matter of Civil Serv. Emp. Ass'n v. N.Y.S. Public Emp't Relations Bd.
New York Law Journal, October 19, 2021 at 12:00 AM

Practice Area: Employment Litigation
Date filed: 2021-09-24
Court: Supreme Court, Albany

Attorneys: for plaintiff: For Petitioner: Steven M. Klein, of counsel, Daren J. Rylewicz, Esq., Civil Service Employees Association Inc., Albany, New York.; for defendant: For Respondent: Anthony Perry, Esq. and Lisa Evans, Esq., Office of Court Administration, New York, NY. For New York State Public Employment Relations Board: Michael Fois, Esq., Albany, New York.

Judge: Justice Christina Ryba
Case Number: 908328-21


Petitioner CSEA filed an improper practice charge against the NYS Unified Court System claiming its unilateral imposition of a mandatory COVID-19 vaccination requirement absent proper negotiation with CSEA violated its CBA. PERB found reasonable cause to believe UCS's unilateral implementation of the requirement was an improper practice, authorizing CSEA to commence this suit for injunctive relief and restraining UCS from implementing the requirements until PERB was able to issue a decision on the merits. CSEA argued the requirement constituted a new work rule changing terms and conditions of employment, thus UCS's unilateral imposition constituted an improper practice. The court agreed finding reasonable cause to believe UCS's unilateral imposition of the requirement was an improper practice violating CSL §209-a(1)(d). It also found UCS's imposition of the requirement before receiving PERB's decision on the improper practice charge would result in immediate and irreparable injury to UCS employees and CSEA, granting its application for temporary injunctive relief and enjoining UCS from applying the requirement.


On September 3, 2021, petitioner Civil Service Employees Association Inc., Local 1000, AFSCME, AFL — CIO (hereinafter CSEA), the bargaining unit for certain non-judicial employees of respondent New York State Unified Court System (hereinafter UCS), filed an improper practice charge against UCS alleging that its unilateral implementation of a mandatory COVID-19 vaccination requirement without proper negotiation with CSEA violated its collective bargaining obligations under Civil Service Law §209-a (1) (d)

Given the impending September 27, 2021 effective date of the mandatory vaccination requirement, CSEA sought injunctive relief from the New York State Public Employment Board (hereinafter PERB) pending a decision on the improper practice charge. 

In a determination dated September 13, 2021, PERB found reasonable cause to believe that UCS’s unilateral implementation of the mandatory vaccination requirement was an improper practice and that immediate and irreparable injury would occur absent an injunction. Accordingly, PERB authorized CSEA to commence the instant proceeding pursuant to Civil Service Law §209-a (4) for injunctive relief enjoining and restraining UCS from implementing the mandatory vaccination requirement until PERB is able to issue a decision on the merits of the underlying improper practice charge. 

The matter is presently before the Court as Acting Part 1 Justice for consideration of CSEA’s application for temporary injunctive relief enjoining USC from implementing the mandatory vaccination requirement — which is scheduled to commence on September 27, 2021 — pending the outcome of the underlying improper practice charge filed with PERB.

The Court conducted oral argument on the request for temporary injunctive relief with counsel for all parties via Teams on September 23, 2021, and the matter is now ripe for determination. Pursuant to Civil Service Law §209 — a (4), a party may file an improper employer practice charge to petition the Court for injunctive relief where PERB finds “that (i) there is reasonable cause to believe an improper practice has occurred, and (ii) where it appears that immediate and irreparable injury, loss, or damage will result thereby rendering a resulting judgment on the merits ineffectual necessitating maintenance of or return to, the status quo to provide meaningful relief”. 

When such a petition is filed, Civil Service Law §209-a (4) (d) permits the Court to grant the necessary injunctive relief pending the determination of the underlying improper practice charge upon a finding “that there is reasonable cause to believe an improper practice has occurred and that it appears that immediate and irreparable injury, loss or damage will result thereby rendering a resulting judgment on the merits ineffectual necessitating maintenance of, or return to, the status quo to provide meaningful relief.” Civil Service Law §209-a (4) (d) further provides that “[s]uch relief shall expire on decision by an administrative law judge finding no improper practice to have occurred, successful appeal or motion by respondent to vacate or modify pursuant to the provisions of the civil practice law and rules, or subsequent finding by the board that no improper practice had occurred.”

Here, the mandatory vaccination requirement that forms the basis of CSEA’s improper practice charge against UCS was first enunciated in an emailed directive of Chief Administrative Judge Lawrence Marks, dated August 25, 2021, advising that UCS was implementing a mandatory COVID-19 vaccination requirement for all non-judicial employees that would take effect on September 27, 2021, with full details to follow in a forthcoming announcement. Those specific details were later set forth in a Memorandum entitled “Mandatory Vaccination Requirement”, which was disseminated via email to all nonjudicial personnel on September 10, 2021. 

The Memorandum, which was jointly authored by UCS’s Chief of Operations, Nancy J. Barry, and Chief of Administration, Justin A. Barry, directs in relevant part as follows:
All non-judicial personnel must be fully vaccinated against COVID-19 by September 27, 2021, or as soon thereafter as medically practicable provided they have received at least one dose of a COVID-19 vaccine by such date.
To this end, no later than September 27, 2021, all-non-judicial personnel must either submit proof that they: (1) are fully vaccinated; or (2) have received at least one dose of any COVID19 vaccine.

The Memorandum proceeds to outline acceptable forms of proof of vaccination, the procedures for submitting such proof, the requirement that partially vaccinated employees submit to regular mandatory COVID-19 testing until fully vaccinated, and the manner in which an employee may seek a medical or religious exemption to the mandatory COVID-19 vaccination requirement. The Memorandum further delineates the consequences to be imposed upon employees who fail to comply with the mandatory vaccination requirement as follows:
Employees who fail to comply with the provisions of this Policy are prohibited from reporting to work and may be considered absent without authorization for which approval to charge accruals may be denied until they have taken steps to remedy their non-compliance. Continued failure to comply may result in disciplinary action, up to and including termination.

CSEA contends that the mandatory vaccination requirement constitutes a new work rule which changes the terms and conditions of employment, and that therefore UCS’s unilateral promulgation and implementation of the mandatory vaccination requirement without prior negotiation constitutes an improper practice in violation of Civil Service Law §209-a.1 (d). Under the Taylor Law (Civil Service Law §200 et seq.), a public employer is obligated to negotiate in good faith with the bargaining representative of its current employees regarding “terms and conditions of employment” (Civil Service Law §204 [2]), and the failure to do so constitutes an improper employment practice (see, Civil Service Law §209 — a [1] [d]).

Thus, an employer is prohibited from unilaterally imposing a work rule affecting the “terms and conditions of employment” absent a clear legislative intent permitting the unilateral change without prior negotiation (see, Matter of City of Schenectady v. New York State Pub. Empl. Relations Bd., 85 NY2d 480, 486 [1995]). Whether a particular issue is a new work rule affecting the “terms and conditions of employment”, and is thus a mandatory subject of negotiation, is a matter within PERB’s primary jurisdiction to determine (see, Matter of Town of Carmel Police Benev. Ass’n v. Public Empl. Rels. Bd. of the State of NY, 267 AD2d 858, 859 [1999]). However, work rules involving the possibility of discipline or termination have been found to affect the terms and conditions of employment (see, Matter of Levitt v. Board of Collective Bargaining of City of NY, 79 NY2d 120 [1992]).

Upon a full review of the record and consideration of the contentions advanced by the parties during oral argument, the Court concludes that there is reasonable cause to believe that UCS’s unilateral imposition of the mandatory vaccination requirement is an improper practice that violates Civil Service Law §209-a (1) (d). The mandatory vaccination requirement potentially implicates a variety of terms and conditions of employment requiring mandatory negotiation, including but not necessarily limited to possible discipline and termination for non-compliance (see, Town of Carmel Police Benev. Ass’n Inc. v. Pub. Emp. Rels. Bd. of State of NY, 267 AD2d at 859 [1999]). While the requirement for mandatory bargaining may be circumvented where a clear legislative intent grants the employer authority to impose the unilateral change in question (see, Matter of City of Schenectady v. New York State Pub. Empl. Relations Bd., 85 NY2d at 486 [1995]), UCS has failed to identify any statute which specifically permits the imposition of a mandatory COVID-19 vaccination requirement without prior negotiation. Moreover, UCS has failed to produce any Executive Order or administrative regulation which would authorize the mandatory vaccination requirement it seeks to impose.

To the extent that UCS argues that its authority to unilaterally impose a mandatory vaccine requirement upon its employees is derived from Judiciary Law §211, the Court is not persuaded. Although that statute permits the Chief Judge to establish administrative policies for general application to UCS personnel, Judiciary Law §211 (1) (d) expressly requires that such standards “be consistent with the civil service law” — which as previously noted requires UCS to negotiate in good faith with the bargaining representative of its current employees regarding “terms and conditions of employment” (Civil Service Law §204 [2] ). Moreover, to the extent that UCS relies upon a recent decision of the Honorable Lawrence L. Love in New York City Municipal Labor Committee v. The City of New York (Supreme Court, New York County, Sept. 22, 2021) lifting a temporary injunction relating to mandatory vaccinations, that case is distinguishable because, unlike this case, authority for the mandatory vaccination order therein was premised upon an emergency Executive Order and various administrative regulations authorizing the adoption of vaccination measures to control the spread of COVID-19. Similarly, this case is distinguishable from Matter of Serafin v. New York State Department of Health (Index No. 908296-211) inasmuch as the mandatory vaccination requirement, in that case, was premised upon statutory and regulatory authority.

Next, the Court also determines that UCS’s imposition of the mandatory vaccination requirement on September 27, 2021, before receiving PERB’s decision on the improper practice charge, will result in immediate and irreparable injury to UCS employees and CSEA. Indeed, if PERB ultimately deems UCS’s mandatory vaccination requirement improper, CSEA-represented employees who unwillingly complied with the directive will have no recourse because they will suffer a harm that is not compensable by money damages. In addition, CSEA will suffer irreparable harm to its fundamental purpose and diminish the trust of those it represents if UCS is allowed to even temporarily circumvent the collective bargaining requirements required by the Civil Service Law while the underlying improper practice charge is pending before PERB.

In view of the Court’s finding that there is reasonable cause to believe an improper practice has occurred and that irreparable injury will result unless the status quo is maintained, CSEA’s application for temporary injunctive relief is hereby granted.

For the foregoing reasons, it is hereby

ORDERED that respondent New York State Unified Court System is hereby enjoined and restrained from applying the mandatory vaccination requirement, scheduled to commence on September 27, 2021, to non-judicial employees represented by CSEA, and it is further

ORDERED that the Administrative Law Judge in the underlying improper practice proceeding is directed to issue a decision on the merits of the charge within 60 days of this decision.

This constitutes the Decision of the Court, the original of which is being transmitted to the Albany County Clerk for electronic filing and entry. Upon such entry, counsel for petitioner shall promptly serve notice of entry on all other parties (see, Uniform Rules for Trial Courts [22 NYCRR §202.5-b [h] [1], [2]).

Dated: September 24, 2021

See previous action posted on NYC Rubber Room Reporter :

NYC Rubber Room Reporter, September 23, 2021

UPDATE September 24, 2021

CSEA filed a petition seeking restraining order; hearing set for Oct. 1

CSEA files lawsuit to block New York vaccine mandate

The petition is one of at least three that seek to halt the mandate set to take effect Monday [September 27, 2021]

, Times Union, Sept. 23, 2021

ALBANY — The state Civil Service Employees Association has filed a petition on behalf of roughly 5,600 members who work in the state's court system seeking an injunction to halt the vaccine mandate that is scheduled to go into effect on Monday.

A similar petition was also filed in state Supreme Court in Albany this week on behalf of a group of Buffalo-area physicians, nurses and a nursing home administrator. Assemblyman David DiPietro, an Erie County Republican, is also listed as a plaintiff in that case.

The legal action is unfolding as Gov. Kathy Hochul's administration has not backed down from a mandate that was announced in July by former Gov. Andrew M. Cuomo. It requires a multitude of public-facing workers, mainly in hospitals, nursing homes and other long-term care facilities, to receive at least their first vaccination by Sept. 27 — and for others a deadline of Oct. 7 — or risk being suspended or terminated from their jobs.

The mandate affects both public and private health care facilities. Thousands of nurses and other medical professionals have declined to be vaccinated; officials with hospitals and group homes that care for the disabled said a staffing crisis that existed before the coronavirus pandemic will be exacerbated if many of those workers are off the job next week.

Many hospitals are reducing or eliminating elective surgeries and some are diverting patients to other hospitals to deal with the staffing issues.

Hochul's office on Wednesday did not answer questions about whether the governor might delay the mandate or has a plan in place if large numbers of nurses and other health care professionals are suspended from their jobs beginning Monday.

At a news conference Thursday morning, the governor said she "will be announcing a whole series of initiatives to be prepared for a situation on Monday that I hope doesn't happen.

"These are obviously very caring people or they obviously would not have chosen this profession," she said. "Every single person who ends up in your care has the right to know ... that there is no chance they will be infected by the person charged with protecting them and their health. ... Those who have done the right thing don't want to be with people who are not vaccinated ... they're entitled to a safe workplace as well."

Health care industry officials, including many private hospitals, are separately making plans for a potential staffing crisis.

“The science is clear, vaccines work, and we need as many people vaccinated as soon as possible. But this could turn out to be the paradox of the mandate,” Michael Balboni, executive director of the Greater New York Health Care Facilities Association, said in a statement issued Thursday morning. “We want to make staff and residents safer through vaccination, but if people start walking off the job and there aren’t enough workers to take care of residents, we actually put them in jeopardy.”
Balboni, who is not calling for the mandate to be rescinded or delayed, said his organization and industry administrators are calling for a staffing emergency plan, which may include mutual-aid requests, increased distribution of personal protective equipment, real-time monitoring by the state’s health department and increased testing.

Hochul's administration this week was locked in negotiations with multiple state labor unions, who have said the state's mandate should have been subject to collective bargaining and not simply imposed under a provision of state health law.

In the case filed by CSEA this week, they said the Public Employment Relations Board had determined the state Unified Court System's vaccination mandate for judges and nonjudicial employees "constitutes an improper practice" and authorized the union to file for a temporary injunction in state Supreme Court. CSEA is seeking a stay of the mandate until an administrative law judge issues a decision in their PERB case.

In the case filed on behalf of the Buffalo-area medical professionals, they assert that the U.S. Food and Drug Administration earlier this month reported a "1,000 percent increase" in adverse reactions to coronavirus vaccines at a meeting where it recommended against requiring booster shots for people under 65.

That petition also states the mandate does not provide exemptions for religious beliefs or for those "that were previously infected with COVID-19 and who have natural immunity."

Natural immunity "is at least as effective as vaccination at preventing future COVID-19 infections," the petition states, adding that a person who gets vaccinated to keep their job but suffers an adverse reaction "will be without any legal recourse for any such injuries or damages they suffer as a result of vaccination."

Late Wednesday, after the Times Union asked the governor's office for comment, it issued a statement saying that separate agreements with CSEA and the Public Employees Federation would allow nurses and other health care professionals at state-run hospitals to be eligible to work overtime at 2.5 times the normal rate of salary, up from 1.5 times. But that incentive, which would be retroactive to Sept. 16 and last through the end of the year, is not tied to the vaccine mandate.

Three people familiar with the negotiations between Hochul's administration and multiple labor unions said the incentive being offered by the administration is for affected health care employees to receive a half-day of vacation if they are vaccinated. That offer, however, is contingent on the unions agreeing that their members would not have contractual rights to use accrued time, such as sick or vacation days, to offset any lost hours while they are suspended.

None of the unions had agreed to the proposal by late Wednesday.

Even before the coronavirus pandemic, hospitals and other medical providers and long-term care facilities were facing a staffing crisis  — including group homes for disabled individuals, where some nurses are being forced to work 24-hour shifts.

The state Department of Health estimated this week that about 81 percent of hospital employees have been fully vaccinated. The mandate set to take effect on Monday requires the workers to have at least one COVID-19 vaccination shot.

Last week, a federal judge in Utica issued an order temporarily restraining employers from enforcing the state vaccine mandate on health care workers who have sought a religious exemption.

The ruling by U.S. District Judge David N. Hurd was handed down in a case filed against Hochul, health Commissioner Dr. Howard Zucker — whose resignation was announced Thursday — and state Attorney General Letitia James on behalf of 17 medical professionals. It is scheduled to be argued next week.