Employer Allowed To Reduce Firefighter Disability Supplement

In 2011, the City of Newburgh, New York entered into a new collective bargaining agreement with active firefighters. The agreement called for a 5% salary reduction for the period from January 14, 2011, and June 30, 2013, a reduction that was applicable to all “bargaining unit members except as otherwise required by law.”

When the wage reduction went into effect, the City also reduced the amount of supplemental pay received by disabled employees. Under a New York statute, an employer is required to supplement disability benefits to bring the firefighter up to the full amount of “regular salary or wages.” Payments continue until the disability ceases, the disabled firefighter is granted a disability retirement, or the firefighter either performs, or refuses to perform, light-duty work. The phrase “regular salary or wages” has been construed to include prospective salary increases given to active firefighters subsequent to the award of an accidental disability retirement allowance or pension.

A group of disabled firefighters sued the City, arguing that they were not “bargaining unit members” and that the City thus had no right to reduce the supplemental pay to reflect the wage decrease received by active firefighters. A New York court disagreed, and upheld the City’s actions.

The Court ruled that the City “has not acted to demote or otherwise reclassify the disabled firefighters. The action at issue is not alleged to be discriminatory in intent or effect. Rather, the salary decrease is applicable to all active firefighters. The disabled firefighters have proffered no persuasive argument why they should not be subject to the same salary decrease as active firefighters.

“This is especially true given that they benefit from any subsequent increases. Indeed, allowing the decrease will assure that a disabled firefighter’s regular salary or wages is calculated based on the current salary or wages of an active firefighter at the same grade the disabled firefighter held upon retirement. Our courts have held that allowing a disabled firefighter’s benefits to exceed an active firefighter’s salary or wages is contrary to underlying legislative intent. Finally, the Court does not find the issue of whether or not petitioners are ‘bargaining unit members’ within the meaning of the CBA to be controlling.”

Whitted v. City of Newburgh, 2013 WL 387918 (N.Y. Sup. 2013).