'Explosion' in New York City teacher probes may lead to hiring of more investigators

Richard Condon

Now I see what is going on at Tweed. Someone mentioned to the higher ups that the so-called "investigators" at SCI, OSI, and OEO are incompetent and are making the NYC Department of Education look bad. 

I have watched these agents come into 3020-a hearings for 9 years, and as an investigative reporter, I have to say that these people scare me. Not because they worked for the New York City Police Department for 20 years, then retired, but because these people (most of them) worked for the NYPD for 20 years and never learned a thing about how to investigate anything!!!

Then there are the newly hired folk who dont know what they are doing. Take OEO (Office of Equal Opportunity)  "investigator" Nancy Pak, for example. She is the new breed of agent: young, inexperienced, pretty, and learning how to create a false claim against someone. Her first case was to "investigate" a boy's basketball coach who allegedly said something nasty to the coach at another school when his team lost the game.

The accused coach was, by all accounts, a terrific coach and the best math teacher the school ever had. He was given his charges by the AP at the school one day after the school received notice from the EEOC that he had made a complaint against the AP for physically abusing kids in the school.

Nancy Pak was assigned to "investigate". She went to the other school, had the three accusing students come into the principal's office, asked them if the statements that she handed them with their names signed at the bottom were their signatures, and left. She substantiated the charge, and testified to this at the subsequent 3020-a hearing against the accused coach, defending the charge against him based on her 5-minute conversation with the students, all of whom were asked to write their statements by their coach. The DOE brought in one student as proof that the charge was valid. The Arbitrator ruled that the Respondent, my client, was completely innocent of the allegations and must be returned to his position at the school within 15 days. A huge win (thank you, Arbitrator Robert Grey).

 Anyone can substantiate anything in today's New York City world of "false claims can be proven true if you want them to be and you work for Mayor Bloomberg". REMEMBER: outside of any agency funded by Mayor Bloomberg and the New York State, New York City Board/Departments of Education, or any major media, a person is presumed innocent unless they have been convicted and found guilty in a court of law.

Please keep this in mind when you read stories in the newspapers about teachers,  staff of schools, parents!

 See below for hiring information.  If this is you, then read the article about how Condon needs more of the people I just described following the job announcement, and I'll be writing about you:

Job Details

Office of Special Investigations (OSI) Attorney

Tracking Code 7052

Position Summary: Under the supervision of the Director of the Office of Special Investigations, with latitude for independent action, performs reviews of investigative reports related to highly confidential and sensitive investigations concerning the corruption, misconduct, or other illegal, unethical, or improper activities of agency officials or employees, and the development and implementation of plans and programs for the control, tracking and prevention of such corruption, misconduct, or other illegal, unethical or improper practices. Performs related work.

Reports to: Director of the Office of Special Investigations

RESPONSIBILITIES

• Reviews investigative reports, both substantiated and unsubstantiated, to ensure that all allegations have been addressed, all necessary witnesses have been interviewed, and that the investigation was thoroughly conducted.
• Reviews investigative files to ensure that all necessary documentation has been filed in accordance with Office of Special Investigations (OSI) investigative policies and procedures.
• Provides guidance to investigative staff regarding report quality and content.
• Conducts comprehensive searches of the OSI database.
• Confers with Department of Education (DOE) subject matter specialists, technical experts, and administrative trial attorneys.
• Conducts research and prepares legal briefs and memoranda on education law issues.
• Reviews complex, important, or highly technical laws, rules or regulations.
• Acts as liaison with executives within the DOE and with other City agencies.

Applications will only be accepted through the New York City Department of Education Career Opportunities website at:

http://tinyurl.com/4tzwne

Applicants must submit a cover letter and resume to be considered for this position.

Resumes will be reviewed on an ongoing basis. We encourage applicants to apply as soon as possible.

NOTE: The filling of all positions is subject to budget availability.

Requirements

Minimum Requirements

Admission to the New York State Bar AND three (3) years of progressively responsible United Sates legal experience subsequent to admission to any state bar.

NOTE: Selected candidates must remain members of the New York State Bar in good standing for the duration of their employment.

Preferred

• Overall knowledge of the NYC school system and ability to advise and render legal opinions on educational policies and practices.
• Demonstrated written and verbal communication capabilities and interpersonal skills.
• Highly organized.

AN EQUAL OPPORTUNITY EMPLOYER

It is the policy of the Department of Education of the City of New York to provide educational and employment opportunities without regard to race, color, religion, creed, national origin, alienage and citizenship status, age, marital status, disability, prior record of arrest or conviction (except as provided by law), sexual orientation, gender (sex), and to maintain an environment free of discriminatory harassment, including sexual harassment, or retaliation as required by civil rights law. Inquiries regarding compliance with this equal opportunity policy may be directed to: Office of Equal Opportunity, 65 Court Street, Room 923, Brooklyn, New York 11201, or visit the OEO website at http://schools.nyc.gov/OEO

Job Location - 65 Court Street

Position Type Full-Time/Regular

Salary $75,962+ US Dollar (USD)

 

'Explosion' in New York City teacher probes may lead to hiring of more investigators

Special Investigation Commissioner Richard Condon says it's his 'busiest three months in 10 years'

Comments

BY BEN CHAPMAN / NEW YORK DAILY NEWS

Sunday, April 15, 2012, 4:00 AM

 

LINK

The special schools investigator may need to hire extra staff to help probe the “explosion” in reports of wrongdoing by teachers, aides and administrators this year, he told the Daily News.

“It’s the busiest three months I’ve seen in 10 years,” said Special Commissioner of Investigation Richard Condon, a former commissioner of the NYPD who was tapped to keep an eye on city schools in 2002.

In the first three months of 2012, whistleblowers came forward to report misbehavior to Condon’s office 1,275 times — up from 967 cases during the corresponding period in 2011.

The result is that his office is looking into 34% more cases than it did last year. Condon said he has no idea what’s caused the dramatic jump in the number of cases.

Condon’s team investigates all manner of wrongdoing in the city’s public school system, from aides who fake illness to teachers who are accused of sexually abusing students.

Most of his tips come from city school staffers who notice bad behavior on the part of their co-workers — and want to put a stop to it.

“There’s been a lot of publicity as to the kind of allegations that we deal with, but I don’t know if that’s (leading to the spike in cases),” said Condon, who added that the number of employees and students in the system has remained stable.

The rise in investigations by Condon’s office mimics a dramatic increase in the number of Education Department employees arrested so far in 2012.

At least 18 department workers have been collared by cops this year, including at least seven workers who were arrested for alleged sexual abuse of children.

The number of Education Department workers arrested in 2012 already dwarfs the number of employees arrested in 2011, when at least 13 workers were pinched, the Daily News reported last month.

City education officials can’t explain the disturbing increase, but agency spokeswoman Barbara Morgan urged whistleblowers to continue coming forward.

“We firmly believe that our students deserve a safe learning environment, and we encourage any family who suspects misbehavior from staff to report it to their principal immediately,” said Morgan.

The United Federation of Teachers declined to comment.

bchapman@nydailynews .com

Reading, writing & Rikers! City Education Department staffers arrested 14 times in 2012

Eddie Calderon-Melendez, Former Believe High Schools Network CEO, Indicted For Tax Fraud, Evidence Tampering, Grand Larceny

School CEO a ‘tax cheat’

By YOAV GONEN Education Reporter, NYPOST

Last Updated:6:40 AM, April 13, 2012

Posted:2:37 AM, April 13, 2012

WOE! Eddie Calderon-Melendez, named in a Post exposé, allegedly failed to pay $70,000 in taxes.

LINK

A troubled Brooklyn charter group’s CEO raked in more than $1.4 million in salary without paying a dime in state income tax — and even used public money for a lavish European vacation, the state attorney general charged yesterday.

The investigation of former Believe High Schools Network CEO Eddie Calderon-Melendez — sparked last year after inquiries by The Post — found that he allegedly cheated the state out of more than $70,000 in unpaid taxes between 2005 and 2010.

The charter chief even allegedly tried to cover his tracks by filing false income-tax returns after authorities launched a probe into his network’s financial dealings.

Calderon-Melendez was arraigned in Brooklyn Supreme Court on 11 felony charges that include tax fraud, evidence tampering and grand larceny — for an $1,800 European jaunt he allegedly expensed with a school credit card.

“He compounded his crime by creating false evidence to throw investigators off his trail,” said Attorney General Eric Schneiderman.

Calderon-Melendez did not respond to a message left on his cellphone and later told a reporter outside his apartment, “You got the wrong guy.” His lawyer did not return a call seeking comment.

The charter champ’s questionable financial practices were first exposed last May when The Post reported that his network had charged the Williamsburg Charter HS an exorbitant $2.3 million in management fees.

He had founded Williamsburg Charter HS in 2003, opened two more charter high schools in the same neighborhood in 2009 — and then promoted himself to CEO of a network that ordered the three schools to cough up sky-high fees for support.

As head of the network, Calderon-Melendez took in more than $500,000 in 2009 alone — an enormous take-home for a network that was overseeing just three schools. He accepted a pay cut the following year but still took in at least $378,000, according to city Department of Education records.

Under his guidance, the Williamsburg Charter HS entered into an untenable $79 million, 30-year lease — shelling out more than $2 million annually — and paid consultants more than $750,000 in a single year.

Additional reporting by Ikimulisa Livingston

yoav.gonen@nypost.com

Here is more on this guy from 2004 (are all education officials asleep?):

Dirty job: charter teachers janitors

By YOAV GONEN Education Reporter

Last Updated: 7:05 AM, May 9, 2011

Posted: 1:50 AM, May 9, 2011

LINK

School Official Charged: Charter Schools Founder Accused of Tax Fraud, Billing Network for Europe Trip

Ohanian Comment: This is the thug who sent me threatening e-mails after I asked this question. He was notorious for mistreating teachers . 

Here's the New York Times opening paragraph:

When state investigators demanded last year to see personal tax returns filed by Eddie Calderon-Melendez, the founder and chief executive of a troubled network of charter high schools in Brooklyn, he produced them. One problem, according to the investigators, was that those state tax returns were falsified and had never been filed.

And here's the kicker: Almost all of the money to operate the three schools came from public financing. 

By Sophia Hollander and Aaron Rutkoff 

The founder and former chief executive of a troubled charter-school network in Brooklyn was indicted Thursday on charges that he repeatedly failed to pay income taxes, embezzled money from his schools and created phony records. 

Eddie Calderon-Melendez, the ex-CEO of the Believe High Schools Network, failed to pay taxes on more than $1.4 million in compensation between 2005 and 2010, prosecutors allege. During that period, Mr. Calderon-Melendez never filed a tax return and failed to pay more than $70,000 in state and city taxes, the indictment claims. 

"While earning a six-figure salary funded largely by taxpayer dollars, the defendant robbed the state of New York of much-needed revenue when he failed to pay his taxes for six years in a row," Attorney General Eric Schneiderman said in a statement. "He then compounded his crime by creating false evidence to throw investigators off his trail." 

Mr. Calderon-Melendez, who pleaded not guilty at an afternoon arraignment, couldn't be reached for comment. No one answered the door at his Brooklyn home, and his lawyer, Jeffrey Udell, didn't respond to requests for comment. 

The indictment handed down in Brooklyn Supreme Court charged Mr. Calderon-Melendez with 11 felony counts, including tax fraud, grand larceny and falsifying records. 

Among the accusations, prosecutors allege that in 2009, Mr. Calderon-Melendez charged more than $1,800 in expenses from a personal trip to Europe on a credit card connected to one of the schools. 

It was another setback for the three struggling Williamsburg, Brooklyn-based schools that form the Believe network, which Mr. Calderon-Melendez founded in 2009. 

In January, education officials announced that they planned to shutter all three schools this summer—which would have been the first time officials closed an entire New York City charter-school network. 

Though charter-school closures are generally traced to poor academic performance, in this case officials cited fiscal and governance problems. Mr. Calderon-Melendez was central to many of their complaints, including Williamsburg Charter High School's decision to rehire Mr. Calderon-Melendez as CEO without considering other applicants and failure to address concerns about his leadership. 

Some board members accused him of using his school credit card to purchase personal items, including alcohol. 

All three schools failed to disclose conflict of interest among its board members and had struggled to recruit board members and students, according to officials. A state audit of the 2009-10 school year found more than $80,000 in overpayments to the network and hundreds of thousands of dollars in mishandled expenses. 

After the revocation threats, one school, Northside Charter High School, successfully appealed to have its charter revocation reversed. The school is now on probation. 

"They're doing everything that the state Education Department has asked them to do to comply with the charter," said Sharon McCarthy, the attorney for the schools in connection with the attorney general's investigation. "They're very devoted to the children and making sure the kids have a place to go to school in the fall." 

The other two schools are still slated to close, but in a letter posted on the website of Williamsburg Charter High School, the board of trustees vowed to challenge the revocation of the charter in court, calling it "heartbreaking news." 

Williamsburg Charter High School severed its ties with Mr. Calderon-Melendez in January, Ms. McCarthy said. 

Mr. Calderon-Melendez founded Williamsburg Charter High School in 2004 and became the school's CEO. Two years ago, the state approved Southside and Northside to join the newly created Believe High Schools Network, which Mr. Calderon-Melendez also headed. He stepped down from that position in January. 

But according to prosecutors, the problems started almost immediately. Mr. Calderon-Melendez failed to file taxes in 2005, they allege, despite earning up to $500,000 a year in salary and consultant fees. After receiving a subpoena, he "produced false New York tax returns" for years 2005 through 2008, the complaint states. 

—Lisa Fleisher contributed to this article. 

Write to Sophia Hollander at sophia.hollander@wsj.com and Aaron Rutkoff at aaron.rutkoff@wsj.com 

— Sophia Hollander and Aaron Rutkoff
Wall Street Journal

2012-04-13

http://online.wsj.com/article/SB10001424052702304356604577340122552899452.html?mod=djemITP_h

Did 3020-a Arbitrator Randi Lowitt Violate Section 201-d of Labor Law in Terminating Christino Rubino?

Section 201-d of New York State Labor Law reads as if an employee cannot be 
terminated for engaging in recreational activities as  follows (2(c)):
"an  individual's legal recreational activities outside work hours, 

 off of the  employer's  premises  and  without  use  of 

the  employer's equipment or other property;" 
Kauff McGuire & Margolis LLP also have a description of this Law 

on their website (1992)
  My reading of this Law says that Randi Lowitt, the Arbitrator who 

terminated Christine Rubino for Rubino's comments on her 

'private' Facebook page  while she was at home, may have 

not abided by this law. I will be sure to post her new 

decision in the Rubino case after she issues it (Barbara 

Jaffe,New York State Supreme Court judge who vacated Lowitt's decision 

of termination).

 §  201-d. Discrimination against the engagement in certain activities.
  1. Definitions. As used in this section:
    a. "Political activities" shall mean (i) running  for  public  office,
  (ii)   campaigning   for   a  candidate  for  public  office,  or  (iii)
  participating in fund-raising activities for the benefit of a candidate,
  political party or political advocacy group;
    b. "Recreational  activities"  shall  mean  any  lawful,  leisure-time
  activity,  for  which the employee receives no compensation and which is
  generally engaged  in  for  recreational  purposes,  including  but  not
  limited  to sports, games, hobbies, exercise, reading and the viewing of
  television, movies and similar material;
    c. "Work hours" shall mean, for purposes of this  section,  all  time,
  including  paid and unpaid breaks and meal periods, that the employee is
  suffered, permitted or expected to be engaged in work, and all time  the
  employee  is  actually  engaged  in  work.  This definition shall not be
  referred to in  determining  hours  worked  for  which  an  employee  is
  entitled  to  compensation  under  any law including article nineteen of
  this chapter.

 2. Unless otherwise provided by law, it  shall  be  unlawful  for  any
  employer  or  employment agency to refuse to hire, employ or license, or
  to discharge  from  employment  or  otherwise  discriminate  against  an
  individual in compensation, promotion or terms, conditions or privileges
  of employment because of:
    a.  an individual's political activities outside of working hours, off
  of the employer's premises and without use of the  employer's  equipment
  or other property, if such activities are legal, provided, however, that
  this paragraph shall not apply to persons whose employment is defined in
  paragraph  six of subdivision (a) of section seventy-nine-h of the civil
  rights law, and provided further that this paragraph shall not apply  to
  persons  who  would  otherwise  be prohibited from engaging in political
  activity pursuant to chapter 15 of title 5 and subchapter III of chapter
  73 of title 5 of the USCA;
    b. an individual's legal use  of  consumable  products  prior  to  the
  beginning  or after the conclusion of the employee's work hours, and off
  of the employer's premises and without use of the  employer's  equipment
  or other property;
    c.  an  individual's legal recreational activities outside work hours,
  off of the  employer's  premises  and  without  use  of  the  employer's
  equipment or other property; or
    d.  an  individual's  membership  in a union or any exercise of rights
  granted under Title 29, USCA, Chapter 7 or under article fourteen of the
  civil service law.
    3. The provisions of subdivision two of  this  section  shall  not  be
  deemed to protect activity which:
    a.  creates  a material conflict of interest related to the employer's
  trade secrets, proprietary information or other proprietary or  business
  interest;
    b.  with respect to employees of a state agency as defined in sections
  seventy-three and seventy-four of the public officers law  respectively,
  is  in  knowing  violation of subdivision two, three, four, five, seven,
  eight or twelve of section seventy-three or of section  seventy-four  of
  the  public  officers law, or of any executive order, policy, directive,
  or other rule which has been issued by the attorney  general  regulating
  outside  employment  or  activities  that could conflict with employees'
  performance of their official duties;
    c. with respect to employees of any employer  as  defined  in  section
  twenty-seven-a  of  this chapter, is in knowing violation of a provision
  of a collective bargaining agreement  concerning  ethics,  conflicts  of

  interest,  potential  conflicts  of interest, or the proper discharge of
  official duties;
    d.  with  respect  to  employees of any employer as defined in section
  twenty-seven-a  of  this  chapter  who  are  not  subject   to   section
  seventy-three  or seventy-four of the public officers law, is in knowing
  violation of article eighteen of the general municipal law or any  local
  law,  administrative  code  provision,  charter  provision  or  rule  or
  directive of the mayor or any agency head of a city having a  population
  of  one  million  or  more,  where  such  law,  code  provision, charter
  provision, rule or directive concerns  ethics,  conflicts  of  interest,
  potential  conflicts  of  interest,  or the proper discharge of official
  duties and otherwise covers such employees; and
    e. with respect to employees other  than  those  of  any  employer  as
  defined in section twenty-seven-a of this chapter, violates a collective
  bargaining   agreement   or   a  certified  or  licensed  professional's
  contractual obligation to devote his or her entire  compensated  working
  hours to a single employer, provided however that the provisions of this
  paragraph  shall  apply  only  to professionals whose compensation is at
  least fifty thousand dollars for the year  nineteen  hundred  ninety-two
  and  in  subsequent  years  is an equivalent amount adjusted by the same
  percentage as the annual increase or  decrease  in  the  consumer  price
  index.
    4.  Notwithstanding  the  provisions  of  subdivision  three  of  this
  section, an employer shall not be in violation of this section where the
  employer  takes  action  based  on  the  belief  either  that:  (i)  the
  employer's  actions  were  required by statute, regulation, ordinance or
  other governmental mandate, (ii) the employer's actions were permissible
  pursuant to  an  established  substance  abuse  or  alcohol  program  or
  workplace   policy,   professional  contract  or  collective  bargaining
  agreement, or (iii) the individual's actions were deemed by an  employer
  or  previous  employer  to  be  illegal or to constitute habitually poor
  performance, incompetency or misconduct.
    5. Nothing  in  this  section  shall  apply  to  persons  who,  on  an
  individual  basis, have a professional service contract with an employer
  and the unique nature of the services provided is such that the employer
  shall be permitted, as part of such professional  service  contract,  to
  limit   the  off-duty  activities  which  may  be  engaged  in  by  such
  individual.
    6. Nothing in this section shall prohibit an organization or  employer
  from offering, imposing or having in effect a health, disability or life
  insurance  policy that makes distinctions between employees for the type
  of  coverage  or  the  price  of  coverage  based  upon  the  employees'
  recreational  activities  or  use  of consumable products, provided that
  differential premium rates charged employees reflect a differential cost
  to the employer and that employers provide employees  with  a  statement
  delineating  the  differential  rates  used  by  the  carriers providing
  insurance for the employer, and provided further that such  distinctions
  in  type  or price of coverage shall not be utilized to expand, limit or
  curtail the rights or liabilities of any party with regard  to  a  civil
  cause of action.
    7.  a.  Where a violation of this section is alleged to have occurred,
  the attorney general may apply in the name of the people of the state of
  New York for  an  order  enjoining  or  restraining  the  commission  or
  continuance  of  the  alleged unlawful acts. In any such proceeding, the
  court may impose a civil penalty in the amount of three hundred  dollars
  for  the  first  violation  and five hundred dollars for each subsequent
  violation. 

 b. In addition to any other penalties or actions otherwise  applicable
  pursuant  to  this chapter, where a violation of this section is alleged
  to have occurred, an aggrieved individual may  commence  an  action  for
  equitable relief and damages.

Section:  Previous  Article 7  200  200-A  201  201-A  201-B  201-C  201-D  201-E  201-F  202  202-A 202-B  202-C  202-D  Next

Last modified: March 30, 2010

I also ask the reader to look at this on the website of Kauff McGuire & Margolis LLP:

New Law Protects New York Employees From Discrimination Based on Legal Off-Duty Conduct

October 1, 1992

Under a new statute, New York employers may not take adverse employment actions against employees or applicants for employment on the basis of their legal, off-duty conduct. The new law, section 201-d of the Labor Law, which takes effect on January 1, 1993, grew out of efforts by the tobacco lobby to prevent employers from discriminating against employees who smoke. The final version of the law, however, goes beyond merely protecting smokers. The statute broadly defines a variety of legal activities that, if engaged in on an employee's own time and without the use of company property or equipment, may not form the basis for adverse employment decisions.

The law creates four areas of "protected" employee activities: (1) political activities, such as campaigning or fund-raising; (2) legal recreational activities, broadly defined to include virtually all non-compensated leisure time activity; (3) the legal use of consumable products, off company property and outside of working time; and (4) membership in a union or the exercise of rights related to union activity. It is unlawful for an employer to "refuse to hire, employ or license, or to discharge from employment or otherwise discriminate against" an employee because of the employee's protected activities. An aggrieved employee may file suit for equitable relief and damages, or the Attorney General may sue for injunctive relief and for a civil fine. The statute does not provide for recovery of attorney's fees by a prevailing plaintiff.

As with many broadly worded anti-discrimination statutes, this new law is subject to several exceptions. Employers should be wary, however, when seeking to take advantage of the exceptions to the law because the courts have not yet had the opportunity to interpret the sometimes ambiguous terms. The major exceptions to the law's scope are: (i) professional journalists, and civil servants who are prohibited by law from engaging in political activity, are excluded from the protection for political activity; (ii) off-duty conduct is not protected where engaging in the activity "creates a material conflict of interest related to the employer's trade secrets, proprietary information or other proprietary or business interest" or, as to any public employee, would violate local ethics or conflict of interest regulations; (iii) an employer does not violate the statute if actions are taken in accordance with obligations imposed under a collective bargaining agreement or a personal services contract with a professional employee; and (iv) an employer does not violate the statute if actions are taken against an employee "based on the belief" that the action is "required by statute, regulation, ordinance, or other governmental mandate" or is warranted based on behavior "deemed by an employer to constitute habitually poor performance, incompetency or misconduct."

Of particular concern to employers is the application of the new law to employee anti-smoking rules, drug and alcohol abuse programs, anti-dating and anti-moonlighting rules, and employee benefit plans. First, despite the origins of the statute as a protection for employees who smoke, it is critical to note that the statute only protects activity that occurs off company property and outside of working time. Therefore, a company policy prohibiting smoking either during working hours or on the company's premises is permitted under the new statute. Similarly, compliance with local ordinances concerning smoking in public places may be observed without running afoul of the new law.

The statute also specifically authorizes actions taken by employers under an established substance abuse program or workplace policy, including such provisions in a collective bargaining agreement. Thus, a workplace rule prohibiting the consumption of alcoholic beverages before reporting to work may be exempt from the new law's protection. Of course, any employee's conduct while on working time (such as being under the influence of alcohol) is clearly outside the protection of this new law. Of greater concern are employer-sponsored drug testing programs. Although the use of illegal drugs is not protected by the new law, the use of legal drugs (such as prescription medication) is protected. Consequently, any drug testing program that does not effectively differentiate between an employee's legal and illegal drug use may be in violation of the law.

The new law has no application to an anti-moonlighting rule, because only non-compensated leisure time activities are protected. An employer's policy prohibiting dating between co-workers, however, may be prohibited by the statute, depending on whether the courts interpret dating to be a "recreational" activity (although, even then, an employer could argue that a particular dating relationship creates such a serious conflict of interest that it would fall within one of the exceptions to the law's prohibitions discussed above).

Finally, with respect to employee benefit plans, the law specifically permits an employer to maintain a health or benefit plan "that makes distinctions between employees for the type of coverage or the price of coverage based upon the employees' recreational activities or the use of consumable products." Thus, medical insurance may be charged to a smoker at a higher rate than to a non-smoker, without violating the new law.

For most employers, the impact of this new law on the day-to-day operation of the company will be limited. Unless an employer has an established policy prohibiting dating between co-workers or of not hiring smokers (whether or not they smoke on the job), democrats, or employees who have high-risk hobbies, the new law may be of little practical consequence. Nevertheless, the new law represents a significant limitation on the traditional New York rule of employment-at-will, and employers should be sensitive to the possible ramifications of the new law for employment actions based on employee conduct that occurs off the job.