Occupational therapist may be entitled to new job after BOCES takeover

On Board Online • December 13, 2010

By Kimberly A. Fanniff
Associate Counsel

An occupational therapist whose job was eliminated when a school district contracted with a BOCES for those services may be entitled to employment with the BOCES, according to a recent decision of the Appellate Division of state Supreme Court, Fourth Department.

Under the Education Law, instructional employees are entitled to transfer rights when a BOCES “takes over” a program from a school district. An occupational therapist – a non-instructional employee – was deemed to have transfer rights in Hellner v. Board of Education of Wilson CSD et al.,

The Education Law is silent on the transfer rights of non-instructional employees, but Hensler was successful in a claim pursuant to the provisions of the Civil Service Law. The Court of Appeals, the state’s highest court, previously ruled that employees can be entitled to protections under Civil Service Law section 70 upon the “transfer of a function” from one governmental entity to another.

Relying on this precedent, the Appellate Division concluded that the transfer of occupational therapy services from the district to the BOCES constitutes the “transfer of a function.”

Under the law, only employees who are necessary to carry out the transferred function are entitled to immediate employment; others are placed on preferred hiring lists.

The court was unable to determine if Hellner was entitled to immediate employment as the record did not indicate whether BOCES had a sufficient number of occupational therapists when Hensler position was transferred. The Appellate Division returned the case to the lower court to determine this issue and ordered Hensler to join as necessary parties other occupational therapists whose employment may be jeopardized.