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Arbitration Procedures

     Ninth Circuit finds that a court, not the arbitrator, must decide the threshold question of arbitrability when a party challenges an arbitration agreement as unconscionable. Jackson v. Rent-a-Center, #07-16164, 2009 U.S. App. Lexis 20133 (9th Cir.).

     Boston’s sheriff must arbitrate a union grievance over changes to assignments, scheduled days off and vacation schedules. Sheriff of Suffolk County v. AFSCME Council 93, Local 419, #07-P-885, 75 Mass. App. Ct. 340, 914 N.E.2d 124, 2009 Mass. App. Lexis 1176.

Arbitration Punishment Awards – Right of Courts to Interfere

     Washington’s Supreme Court concludes that in order to vacate an arbitrator’s decision as contrary to public policy, “the public policy must be explicit, well defined, and dominant.” The arbitrator had reinstated a deputy sheriff who was charged with 29 documented incidents of misconduct, including untruthfulness. Split by a 4-3 holding, the state’s Supreme Court held that the arbitrator’s decision did not violate an explicit, well defined, and dominant public policy. Kitsap Co Deputy Sheriff’s Guild v. Kitsap Co., #80720-5, 2009 Wash. Lexis 979. Dissent.

     Florida appellate court affirms an arbitration award that overturned the termination of a corrections employee. The award “was well within the submission to the arbitrator, violated no law or rule, and should be given effect.” AFSCME C-79 v. Florida Dept. of Corrections, #1D08-162, 2009 Fla. App. Lexis 16874 (1st Dist.).

Disciplinary Hearings - Tenured/General

     West Virginia Supreme Court overturns the demotion of a sheriff’s corporal who sought, and was denied, a prediscipinary hearing required by state statute. Burgess v. Moore, #34587, 2009 W. Va. Lexis 82.

Disciplinary Punishment - In General

     Appellate court upholds the termination of a corrections officer who failed to search a laundry truck leaving the jail; an inmate was hiding in a laundry basket and escaped. Malinowski v. Cook County Sheriff’s Merit Board, #1-08-1828, 2009 Ill. App. Lexis 1065 (1st Dist).

Discovery, Publicity and Media Rights

     The Illinois’ Freedom of Information Act, 5 ILCS 140/7, does not compel disclosure of the criteria or standards used to evaluate the physical abilities tests administered to firefighter applicants. “The disclosures sought have no connection to the city’s hiring practices but rather would merely serve to assuage plaintiff’s own disbelief that he actually failed the physical examination.” Kopchar v. City of Chicago, #1-08-1835, 2009 Ill. App. Lexis 1066 (1st Dist.).

Domestic Partners Rights

     New York’s highest court rejects a taxpayer suit challenging a decision to pay health insurance benefits for the same-sex spouses of public employees. Although New York does not (yet) offer same-sex marriages, it recognizes the validity of same-sex marriages performed in Canada, Connecticut, Massachusetts, Iowa and Vermont. Godfrey v. Spano, #147, 2009 NY Slip Op 08474, 2009 N.Y. Lexis 4050.

E-Mail/Internet - Legal Issues

     Federal judge finds that the government is not required to notify the sender of e-mail when the content is seized by a search warrant served on an e-mail provider. “When a person uses the Internet … the user’s actions are no longer in his or her physical home; in fact he or she is not truly acting in private space at all ... Rule 41 allows the copy of the warrant and the receipt to be given to the person from whose premises the property at issue was seized, even if that person is not the owner of the property. There is no separate requirement that the officer provide the warrant, a receipt, or any other form of notice to the owner of the property.” In re United States, #08-9131, 2009 U.S. Dist. Lexis 100630, 2009 WL 3416240 (D. Ore. 2009).

FLSA - 7K Exemption

     Although assigned as a full-time arson investigator, the plaintiff was not entitled to mandatory overtime. Fire investigators satisfy the statutory definition of employees in fire protection activities, set forth in 29 U.S. Code §203(y). Cremeens v. City of Montgomery, #2:08-cv-546, 2009 U.S. Dist. Lexis 93897 (M.D. Ala.).

Free Speech

     Federal court rejects a free speech claim brought by a terminated police employee. She continued to disrupt the workplace after the police chief had been exonerated of misconduct, which created disharmony. Iglesias v. Wolford, #5:07-CV-437, 2009 U.S. Dist. Lexis 104402 (E.D.N.C.).

Grievance Procedures

     Federal labor board concludes that a private prison operator did not violate federal labor relations laws when it discharged a nurse, who had engaged in the protected concerted activity of pursuing discrimination grievances, after she exhibited antagonistic behavior that provoked two registered nurses to resign. Corrections Corp. of America and Nelson, #26–CA–23180, 354 NLRB No. 105, 2009 NLRB Lexis 359 (NLRB 2009).

Hearing (Audio) Impairment

     In a DoJ settlement agreement, the city of Wilmington, NC, police department agreed to implement a Policy Statement on Effective Communication with People Who are Deaf or Hard of Hearing and to distribute to all police officers a Guide for Law Enforcement Officers When in Contact with People Who are Deaf or Hard of Hearing. U.S. v. City of Wilmington (E.D.N.C.). The agreement is the 171st reached under the DoJ’s “Project Civic Access.”

Injuries to Employees

     Third Circuit affirms a summary judgment for the city in an action brought by a police officer and his spouse, claiming that the city exposed him to dangerous conditions in violation of his due process rights. A governmental employer owes no constitutional obligation to provide its employees with minimum levels of safety and security in the workplace. Additionally, the officer failed to prove that his injuries were caused by a municipal policy or custom. Rodriquez v. City of Philadelphia, #08-4784, 2009 U.S. App. Lexis 21929 (Unpub. 3rd Cir.).

Minimum Staffing Requirements - Firefighters

     Arbitrator finds that management violated the bargaining agreement when the fire chief unilaterally discontinued the use of overtime to maintain minimum staffing levels mandated by the agreement.  La Pine Rural Fire Prot. Dist. and IAFF L-3387, 126 LA (BNA) 1583 (Reeves, 2009).

Past Practices, Precedents & Zipper Clauses

     Connecticut Supreme Court rejects a thirty-year past practice claim involving a promotion. Because the position of police captain was outside the bargaining unit, the bargaining agreement was not applicable and the town had the discretion to promote any candidate from the promotional list, irrespective of their examination score. Honulik v. Town of Greenwich, #SC 18046, 293 Conn. 641, 980 A.2d 845, 2009 Conn. Lexis 394 (2009).

Personnel Manuals

     A state university’s student/personnel handbook did not a create property interest in a formal disciplinary process for non-tenured employees. “Grievance procedures in a handbook will not override an at-will employment status where that status has been expressly stated in the contract between the employer and employee.” Moreover, “the policy, by its plain language, creates a reporting and resolution structure for the victim of discrimination, not for the accused.” Nichols v. University of Southern Mississippi, #2:08cv128, 2009 U.S. Dist. Lexis 99736 (S.D. Miss.).

Privacy Rights

     Appellate court requires the disclosure of officer’s private mobile phone records to criminal defense attorneys arising from a DUI traffic stop. The defendant claimed that part of the dash-cam video was missing. State v. Ortiz, #27,544, 2009 NMCA 92, 215 P.3d 811, 2009 N.M. App. Lexis 104.

Promotional Rights, Procedures, & Performance Appraisals

     NYPD lieutenant could judicially appeal his removal from the promotional list for captain after he had copied several questions and his answers to the civil service exam without authorization, and then disclosed them to others. Raganella v New York City Civ. Serv. Cmsn., 2009 NY Slip Op 07206, 86 N.Y.S.2d 681, 2009 N.Y. App. Div. Lexis 7001 (1st Dept.).

Psychological Exams and Standards - Conduct Justifying a Required Exam

     Requiring a woman firefighter, who had complained of sexual harassment, to submit to a psychological evaluation did not violate the ADA because the examination was shown to be job-related and consistent with business necessity. Coffman v. Indianapolis Fire Dept., #08-1642, 106 FEP Cases (BNA) 1793, 22 AD Cases (BNA) 360, 2009 U.S. App. Lexis 18717 (7th Cir.).

• Note: To view another outcome, see Denhof v. City of Grand Rapids, 494 F.3d 534, (Unpub. 6th Cir. 2007); prior rulings at 2003 U.S. Dist. Lexis 23125 and 23135.

Resignations

     Eleventh Circuit declines to overturn an allegedly coerced resignation of a sheriff’s detective for untruthfulness and conduct unbecoming. She sued, claiming sexual harassment and retaliation for reporting the harassment. However, fifteen witnesses observed her engage in sexually inappropriate behavior while off duty at a retirement party. She was not coerced; she resigned to avoid a blemish on her employment record, and her choice was made with the assistance of counsel and a union representative. Rademakers v. Scott, #09-11076, 2009 U.S. App. Lexis 23735 (Unpub. 11th Cir.).

Retaliatory Personnel Action

     Chicago Police management transferred or detailed a sergeant, who had filed a retaliation lawsuit in 2002, ten times among seven different units. Nevertheless, the Seventh Circuit found that she failed to rebut management’s assertion that she was borderline insubordinate, had a confrontational attitude, and suffered from an inability to conduct street operations that jeopardized the safety of an undercover officer. The three-judge panel affirmed the city’s motion for summary judgment. She could not rely on her competency in other areas of her job to bolster her claim of repetitious retaliation. O’Neal v. City of Chicago, #09-1716, 2009 U.S. App. Lexis 25177 (7th Cir.).

     Have you read the three articles on retaliation in the AELE Monthly Law Journal?

• Retaliatory Personnel Action Part One – Statutory Remedies (Sep. 2009)
• Retaliatory Personnel Action Part Two – Reporting Coworkers (Oct. 2009)
• Retaliatory Personnel Action Part Three – What constitutes employer retaliation? (Nov. 2009)

     AELE also has a specimen policy prohibiting retaliation. You can view it here (and save or print it.)

Union and Associational Activity

     Federal labor board sustains the termination of a private sector employee who intimidated a management official, by following him at night in a group that was shouting at and taunting him, and making intimidating statements such as, “We know where you live.” The employee lost the protection of the National Labor Relations Act. Starbucks Corp. and L-660, IWW, #2–CA–37548, 354 NLRB No. 99, 2009 NLRB Lexis 343.

• Note: Although NLRB decisions are not legally binding on state public employment labor relations boards, they are viewed frequently as persuasive authority and often are adopted.

Whistleblower Requirements and Protection

     First Circuit confirms a jury award against Boston’s sheriff of $360,000 in compensatory damages and $250,000 in punitive damages, plus attorney’s fees and costs in the amount of $275,437. The plaintiff, a nurse, was barred from the jail after she reported the physical abuse of an inmate to the FBI. The jury had “significant evidence” indicating that a substantial factor in the sheriff’s decision to bar the plaintiff from the House of Corrections was her communications with the FBI. They found the sheriff’s conduct to be “reprehensible” Porter v. Cabral; Cabral v. Suffolk Co. Sheriff’s Dept., #07-1633 & 07-1640, 2009 U.S. App. Lexis 24811 (1st Cir.).

Workers’ Compensation - Claim Validity

     Appellate court sustains the denial of compensation benefits to an off-duty housing authority police officer who was shot while acting as a civilian, and not while responding as an officer. Graves v. W.C.A.B. (Philadelphia Housing Auth.), #142 C.D. 2009, 2009 Pa. Commw. Lexis 1541.

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Reference:

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CROSS REFERENCES
Disciplinary Punishment – see: Arbitration Punishment Awards
Disciplinary Punishment – see: Grievance Procedures
Discovery – see: Privacy Rights
E-Mail/Legal Issues – see: Disciplinary Searches
Promotional Rights – see: Past Practices Clauses
Retaliatory Personnel Action – see: Grievance Procedures

AELE Seminars:

Jail and Prisoner Legal Issues
Jan. 11-13, 2010 – Las Vegas

Lethal and Less Lethal Force
Mar. 08-10, 2010 – Las Vegas

Public Safety Discipline and Internal Investigations
Dec. 13-15, 2010 – Las Vegas

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