In Matter of Port Auth. Police Benevolent Assn., Inc. v. Anglin , Barry McCarthy sued New York State and its Local Police and Fire Retirement System (NYSLPFRS) for the recalculation of his "final average salary."
McCarthy worked as a Port Authority Sergeant for thirty years and, after 9/11, McCarthy was required to work on vacation days but was paid at an enhanced rate as determined by a collective bargaining agreement. When McCarthy retired, the Deputy Comptroller opted to exclude McCarthy's paid vacation days from his "final average salary."
When his request for a salary recalculation was denied, McCarthy filed a special proceeding with the Albany County Supreme Court, which transferred the matter to the Appellate Division, Third Department.
The AD3 was of the view McCarthy's lost vacation days didn't amount to "overtime" -- payments made for work performed beyond regular hours -- but were compensation for "the loss of time when he would not have worked."
Justice Kavanagh -- a lone dissenter -- didn't agree with the distinction. Since McCarthy had no choice whether or not to work on what would have been his vacation days, his hours were "in excess of [his] regularly established hours of employment," and should have been part of the NYSLPFRS's calculation.
Since it granted leave just a few weeks ago , it's now going to be up to our state's highest court to figure this one out.
To download a copy of the Appellate Division's decision, please use this link: Matter of Port Auth. Police Benevolent Assn., Inc. v, Anglin