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Arbitration Procedures

     An arbitrator’s award that concludes the City violated its own personnel rules and directing the employee to be made whole, without more, is an enforceable award. “As sometimes happens, the arbitrator ordered the parties to work out the details of the make-whole remedy, which they did not do.” The appropriate action is not to vacate the award but to remand the dispute back to the arbitrator to fashion a more definitive remedy. Mossman v. City of Oakdale, #F054983, 2009 Cal. App. Lexis 40 (5th Dist).

Bargaining Unit Determinations

     Massachusetts Employment Relations Board finds that while full-time firefighters may perform additional duties, they share a community of interest with paid-on-call firefighters; both are engaged to fight fires and respond to other emergencies. Although the union contended that on-call firefighters have different interests than the full-time firefighters because their main occupation is not firefighting, “we decline to exclude the eligible call firefighters on such speculative grounds.” Town of Boxford and Prof. F/F L-3250, Case No. MCR-06-5239 (Mass. Emp. Rel. Bd. 2008).

     A canine captain and lieutenant “are supervisory employees who should be placed in a separate bargaining unit from the canine sergeants and canine officers whom they supervise.” Bristol Co. Sheriff and Natl. Corr. Emp. Union, SCR-08-2270 (Mass. Emp. Rel. Bd. 2009).

Collective Bargaining - Duty to Bargain

     With one exception, the D.C. Circuit finds that facial hair policies for customs officers are not negotiable because they safeguard CBP uniformed officers “by ensuring that they are readily identifiable to the public and by increasing the officers’ ability to effectively employ law enforcement techniques.” NTEU v. FLRA, #08-1015, 2008 U.S. App. Lexis 25581 (D.C. Cir.).

Conflicts of Interest

     President Obama adopts a strict ethics pledge regarding lobbyist activities.

Disciplinary Hearings - Loudermill Rights

     Terminated public employee was entitled to a name-clearing hearing after the disclosure of stigmatizing information. Punitive damage awards of $15,000 were set aside, and compensatory damages were reduced from $250,000 to $50,000. Hemmah v. City of Red Wing, #0:06-cv-3887, 2008 U.S. Dist. Lexis 104808 (D. Minn.).

Discovery, Publicity and Media Rights

     Police reports don’t lose their status as public records simply because they are converted into a database. File processing information, called metadata, is not a public record. “We do not question that metadata may contain valuable information, but we reject [the] contention that electronic evidence is legally equivalent to a public record.” Lake v. City of Phoenix, CV #07-0415, 2009 WL 73256 (Ariz. App. Div. 1).

FLSA - Overtime - in General

      Federal court rejects the claims of a federal officer who sought overtime for the period spent while commuting to work in a agency vehicle; “time spent by law enforcement officers driving to and from work in government-owned police vehicles [is] not compensable under the FLSA.” Wolfen v. U.S., #03-2665C, 84 Fed. Cl. 662, 2008 U.S. Claims Lexis 345.

      Corrections employees hired by a private prison-management organization were entitled a conditional certification of a class action consisting of corrections officers, corrections counselors, case managers, and clerical employees where they alleged that management regularly required them to work off-the-clock before and after their shifts. Barnwell v. Corrections Corp. of Amer., # 2:2008-cv-02151, 2008 U.S. Dist. Lexis 104230 (D. Kan.).

Firearms - Restrictions on Wearing

     Second Circuit concludes that a NYPD officer lacks a property interest in carrying firearm while on duty. The commissioner disarmed him following his acquittal in a controversial shooting. Moreover, his liberty interest claim also failed because he was not terminated and he retained the opportunity to earn a promotion and overtime. Boss v. Kelly, #07-4104-cv, 2009 U.S. App. Lexis 520 (Unpub. 2nd Cir.).

      Note: This topic was fully discussed in the Feb. 2009 Monthly Law Journal. See “Management’s Right to Restrict or Forbid an Officer from Carrying Firearms.”

First Amendment Related

     Police officer who was transferred and suspended for 15 days sued the commissioner, claiming that he was disciplined more harshly because he had pleaded “not guilty” and opted to challenge the charges against him before the Board of Inquiry. A federal appeals panel has held that a plea of not guilty is not protected speech under the First Amendment. While “lawsuits and grievances directed at a government employer or public officials ... are protected petitions under the First Amendment, even where they only address matters of private concern,” merely entering a plea is not protected because it is a response, and not the initiation of legal proceedings. Hannan v. City of Philadelphia, #07-4548, 2009 U.S. App. Lexis 829 (Unpub. 3rd Cir.).

Free Speech

     Nebraska Supreme Court overturns disciplinary action against a police officer who criticized the city’s methods of handling 911 cases in a union publication. The statements, while intemperate, abusive and insulting rhetorical hyperbole, it fell short of deliberate or reckless untruthfulness. “Flagrant misconduct includes, but is not limited to, statements or actions that (1) are of an outrageous and insubordinate nature, (2) compromise the public employer’s ability to accomplish its mission, or (3) disrupt discipline.” Omaha Police Union Local 101, IUPA v. City of Omaha, #S-07-1245, 276 Neb. 983, 2009 Neb. Lexis 1.

Heart Problems

     A N.Y. court officer was entitled to the statutory presumption that his heart attack was job-related. Proof of a specific accident or event is unnecessary. In Matter of Warshawsky v. DiNapoli, #3625-08, 2008 N.Y. Misc. Lexis 7146 (Sup. Ct. Albany Co.).

Homosexual & Transgender Employee Rights

     Male employee who wore long hair, makeup, and nail polish in violation of the employer’s dress code and grooming policy did not establish a prima facie a claim that employer terminated him for failing to meet masculine stereotypes. The employer applied its dress code and grooming policy uniformly to all employees and there was no proof of intentional discrimination. Creed v. Family Express, #3:06-CV-465, 2007 WL 2265630, 2009 U.S. Dist. Lexis 237, Pacer Doc. 19 (N.D. Ind.).

Jurisdictional / Multiunion Disputes & Work Erosion

     Labor board upholds a management rights clause, and the chief could transfer a traffic officer who was performing clerical duties to field services, and to assign the clerical duties to non-unit civilian personnel. Newton Police Assn. and City of Newton, Case No. MUP-02-3634 (Mass. Emp. Rel. Bd. 2008).

Pay Disputes - In General

     Police chief lacked standing to challenge a new ordinance that effectively reduced his pay. The suit did not advance a public aim or seek to enforce a public right. State ex rel. Simeone v. City of Niles, #2008-T-0059, 2008-Ohio-7000, 2008 Ohio App. Lexis 5856 (11th Dist.).

Race and Sex Discrimination

     Federal appeals court rejects the discrimination and retaliation claims of a terminated African-American sheriff’s investigator. The retaliation claims failed because management had legitimate reasons for her discharge, including citizen complaints, disciplinary problems, and performance deficiencies. Ramsay v. Broward Co. Sheriff’s Office, #08-10474, 2008 U.S. App. Lexis 25406 (Unpub. 11th Cir.).

Resignations and Constructive Discharge   

      In adjudicating claims of coerced resignations, a party must show that he or she was deprived of free choice and had no option but to resign. To prevail, a party needs to prove (1) the resignation or retirement was based on threats of adverse action; or (2) the resignation or retirement was based on “alleged misinformation and deception;” or (3) the resignation or retirement was coerced through “working conditions so intolerable” that the employee was forced to leave. Russell v. M.S.P.B., #2008-3265, 2008 U.S. App. Lexis 24504 (Unpub. Fed. Cir.).

     A sergeant was not constructively discharged when he resigned to protest his transfer out from a patrol position; an alleged death threat he received on his voice mail was incoherent and was made by unidentifiable caller. Potts v. Davis County, #07-4139, 2009 U.S. App. Lexis 40 (10th Cir.).

Retaliatory Personnel Action

     Federal appeals panel declines to dismiss a suit brought by a sergeant who claimed that management denied him a promotion because he testified against his agency and reported multiple instances of misconduct. Whether the agency treated misconduct complaint seriously was a matter of public concern. Robinson v. Co. of Los Angeles, #07-56312, 2009 U.S. App. Lexis 458 (Unpub. 9th Cir.).

     Eighth Circuit declines to dismiss a retaliation action brought by five county employees that they were reassigned or transferred to less desirable jobs soon after they complained of race discrimination.Although management claimed that the plaintiffs were reassigned to adjust intra-agency workloads, the fact is that workload variations had never resulted in their reassignments in prior years. Betton v. St. Louis County, #07-1634, 2009 U.S. App. Lexis 957 (Unpub. 8th Cir.).

Retirement Rights and Benefits

     A federal employee for 20+ years, who cashed out $30,000 in retirement contributions following his termination, was not entitled to collect monthly retirement benefits. By electing to receive his contributions in cash, he waived any future retirement annuity. Martin v. OPM, #2008-3324, 2008 U.S. App. Lexis 24657 (Unpub. Fed. Cir.).

     “Although pension plans are subject to mandatory vesting under ERISA, welfare-benefit plans are not. Retiree healthcare-benefit plans ... are welfare benefit plans; vesting only occurs if the parties so intended when they executed the applicable labor agreements.” Cole v. ArvinMeritor, #06-2224, 2008 U.S. App. Lexis 25762, 185 LRRM (BNA) 2654, 2008 FED App. 0447P (6th Cir.).

     EEOC challenges a fire district policy that disallowed credit toward a pension for firefighters over 65. The district amended its program in late 2006 to allow firefighters to earn service credit without regard to age, but did not allow retroactive credits. EEOC v. Eaton’s Neck Fire Dist., #08-5089, complaint (E.D.N.Y. 12/18/08).

Sexual Harassment - In General

     An employee of a contract mental health service provider for the D.C. Dept. of Corrections could not bring a sexual harassment claim against the D.C Government. For Title VII purposes, she was not an employee of the DoC. Simms v. Dist. of Col. Govt., #06-2178, 2008 U.S. Dist. Lexis 96496 (D.D.C.).

Sick Leave & Abuse

     Federal court rejects a suit challenging a municipal sick leave policy, which effectively required 24-hour home confinement, because a newly-instituted policy was constitutional. Moreover, because the detective had also filed a complaint with the state’s Division of Human Rights, she was barred by a statute that required an election of remedies. Borum v. Vil. of Hempstead, #CV 08-1488, 2008 U.S. Dist. Lexis 103891 (E.D.N.Y.).

     Federal appeals panel upholds the termination of a county employee who violated a policy requiring employees on indefinite sick leave to call in every day, even during FMLA leave. Bacon v. Hennepin County Med. Ctr., 08-1168, 2008 U.S. App. Lexis 26101, 14 WH Cases2d 583 (8th Cir.).

Transfers - Non Disciplinary/Punitive

     Although a police union argued that a grievant was subject to ridicule by other officers as a result of his transfer from the detective bureau to patrol, “the subjective opinions of co-workers expressed in casual office banter do not demonstrate that the transfer at issue was adverse within the meaning of the Law.” City of Holyoke and IBPO L-388, #MUP-05-4503 (Mass. Emp. Rel. Bd. 2009).

     Federal appeals court rejects the constructive discharge suit filed by a sheriff’s officer who quit, following his reinstatement (after challenging his termination). He was reassigned to court security duties instead of patrol duties, and lost the opportunity to earn differential pay. He was not entitled to be restored to his former assignment as a patrol officer or to receive preferential pay. Potts v. Davis County, #07-4139, 2009 U.S. App. Lexis 40 (10th Cir.).

Union and Associational Activity

     In a dues check-off case, the Supreme Court concludes that the First Amendment permits a local union to charge nonmembers for national litigation expenses as long as the subject matter is related to collective bargaining rather than political activities, and the charge is reciprocal. Locke v. Karass, #07-610, 2009 U.S. Lexis 590.

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RESOURCES

     Safety Equipment: OSHA clarifies employer responsibilities to provide respirators or other protective equipment and relevant training. Employer Duty to Provide Personal Protective Equipment and Train Each Employee, Docket No. OSHA-2008-0031, 73 Federal Register 75568-589 (Dec. 12, 2008).

Reference:

     • Abbreviations of Law Reports, laws and agencies used in our publications.
     • AELE's list of recently noted employment law resources.  
     • Discrimination Laws plus EEOC Regulations and Policy Guidance