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Alcohol Abuse, Testing & Rehabilitation

     Federal Merit Board sustains the demotion of two Border Patrol supervisors who were drinking alcohol while on duty. There was no merit to their claims that they were authorized to consume alcohol by their supervisor.  Canada v. Dept. Homeland Security, # SF-0752-09-0460, 2010 MSPB 69.

Attorneys’ Fees, Sanctions and Legal Defense Rights

     Supreme Court affirms a District Court award of attorney’s fees to a disabled worker who initially was denied benefits under an employer-provided long-term disability insurance policy. Hardt v. Reliance Std. Life Insur. Co., #09-448, 2010 U.S. Lexis 4164.

Background Investigations

     In an unlawful detention lawsuit, “a reasonable jury could find that [the town] did not adequately investigate [the officer’s] military service, conduct a psychological fitness for duty evaluation, or adequately follow up on [his] references. Given the information about [his] propensity toward anger, his spotty employment history, and the facts surrounding his other-than-honorable discharge from the Navy, the plaintiffs have sufficiently alleged genuine issues of material fact on their claims of negligent hiring and retention.” Woods v. Town of Danville, WV, #2:09-cv-0036, 2010 U.S. Dist. Lexis 47666 (S.D. W. Va.).

Civil Service

     White House directs all executive branch agencies to streamline the hiring process, eliminating essay-style questions and to use a “category rating” approach. Presidential Memorandum, Improving the Federal Recruitment and Hiring Process, 75 (33) Federal Register 27157-27159 (5/14/2010).

Demotions

     A sworn California peace officer is not entitled to an administrative appeal to contest his demotion from a supervisory position during the “promotional” probationary period. Guinn v. County of San Bernardino, #E047532, 2010 Cal. App. Lexis 692 (4th Dist.).

Disability Rights and Benefits
 - Hearing Procedures and Appeals

     Burden of proof: New York court rules that when a firefighter is on paid disability leave as a result of a duty-related injury, the city has the burden of proof of showing that the claimant is fit for full duty. Connerton v. Ryan, #2010-0476, 2010 NY Slip Op 20174, 2010 N.Y. Misc. Lexis 1017 (Broome Co. Sup. Ct.).

Disciplinary Offenses - Insubordination

     Federal court rejects a gender bias claim raised by a TSA employee who was fired after not attending mandatory training on two occasions. She failed to meet her burden of showing that TSA’s reasons for her termination were pretextual. Wilson v. Chertoff, #09-10119, 2010 U.S. Dist. Lexis 31609 (D. Mass.).

FLSA - Overtime - in General

     Treatment for alcoholism, while off-duty, was non-compensable. “The Court cannot find that while in treatment, [the plaintiff] learned any skills that enabled him to become a more effective or valuable police officer.” Attendance at AA meetings and psychiatric evaluations, although mandated by his employer, “does not constitute compensable ‘work’ under the FLSA.”  Todd v. Lexington Fayette Urban County Government, 2009 U.S. Dist. Lexis 115183 (E.D. Ky.).

Handicap Laws / Abilities Discrimination - Accommodation - General

     Detroit pays $100,000 to settle an accommodation claim raised by a “chemically sensitive” city worker, who alleged that a coworker’s perfume and room deodorizer caused her to experience migraines, nausea and coughing. McBride v. City of Detroit, #2:07-cv-12794 (E.D. Mich. 2010); prior order (2007).

Health Insurance & Benefits

     U.S. Departments of Treasury, Labor, and Health and Human Services publish rules under H.R. 3590 (2010), the Affordable Care Act (P.L. 111-148), requiring plan sponsors to amend their healthcare plans to redefine the term “dependent,” for purposes of eligibility of adult children under age 27. Interim Final Rules for Group Health Plans, 75 (92) Federal Register 27122-27140, 29 CFR Part 2590 (5/13/2010).

Personnel Manuals

      A reference in a state agency’s employment manual to “reasonable grounds” for a termination decision does not create an implied employment contract because of the manual’s explicit statement that employment was at-will. Although a pretermination hearing could be provided at the employer’s discretion, such language does not give rise to an inference that a non-binding hearing changes the at-will nature of the employment. Gosline v. Sisneros, #09-2087, 2010 U.S. App. Lexis 674 (Unpub. 10th Cir.).

Privacy Rights

     In an ACLU sponsored action, a federal court has struck down a Florida law that made it a misdemeanor to publish or disseminate the residential address or personal telephone number of a law enforcement officer. The city agreed to a $25,000 settlement with the named plaintiff. Brayshaw v. City of Tallahassee, #4:09-cv-00373, PACER Doc. 61 (N.D. Fla. 2010).

Race Discrimination - In General

     In adjudicating discrimination claims, courts must give effect to the laws Congress has enacted, not assess the consequences of each approach and adopt the one that produces the least mischief. “Congress allowed claims to be brought against an employer who uses a practice that causes disparate impact, whatever the employer’s motives and whether or not he has employed the same practice in the past. If that effect was unintended, it is a problem for Congress, not one that federal courts can fix.” Lewis v. City of Chicago, #08-974, 2010 U.S. Lexis 4165.

Reductions in Force

     Federal judge grants a preliminary injunction against planned layoffs, wage reductions and a benefits freeze for thousands of New York state workers. The legislature violated Art. 1 §10 of the U.S. Constitution, the “Obligation of Contracts Clause.” Donohue v. Patterson, #1:10-CV-00543, PACER Doc. 29; prior T.R.O. at 2010 U.S. Dist. Lexis 50733 (N.D.N.Y. 2010).

Retaliatory Personnel Action

****Editor's Case Alert****

     Appellate panel reject claims raised by the estate of a N.J. state trooper who committed suicide, alleging coworker harassment because of his objections to a perceived practice of profiling motorists. “... the record fails to provide a basis for a reasonable inference that any of the actions that [the defendants] took were in retaliation against [the deceased] for complaining about racial profiling.” The officer’s “experience in the New Jersey State Police was undoubtedly negative, and his story is tragic. Yet we cannot find that he has a right to relief unless he can establish that his various statutory causes of action can be sustained according to their requirements or establish that the District Court abused its discretion in denying him leave to amend his complaint. He has not done so...” Estate of Oliva v. Dept. of Law & Pub. Safety, #09-2082, 2010 U.S. App. Lexis 9142, 109 FEP Cases (BNA) 367 (3rd Cir.).

     Divided federal appeals panel rejects the retaliation claims raised by two police officers after they cooperated with an investigation into alleged police misconduct. Chamberlin v. Town of Stoughton, #08-1289, 601 F.3d 25, 2010 U.S. App. Lexis 6783 (1st Cir.).

     Seventh Circuit rejects a failure to promote claim raised by a federal employee. Although he had testified on behalf of two other employees there was no proof that action was a factor in the employment decision. Poer v. Astrue, #09-3473, 2010 U.S. App. Lexis 10800 (7th Cir.).

     A police sergeant received a negative evaluation after reporting a supervisor for improper conduct, and then filed suit. A federal court has rejected his retaliation claim, because he was not speaking as a citizen on a matter of public concern, but as an employee pursuing a work-related grievance against a coworker with whom he had a contentious relationship. O’Brien v. Robbins, #08-CV-11672, 679 F.Supp.2d 212, 2010 U.S. Dist. Lexis 3512 (D. Mass.).

Sexual Harassment - In General

    Appeals panel rejects a sexual harassment claim brought by an employee of an emergency dispatch authority. Although the alleged harasser was an outside legal advisor to the agency, he was employed by the district attorney’s office and he had no authority over her. McCans v. City of Truth or Consequences, #09-2116, 2010 U.S. App. Lexis 796, 108 FEP Cases (BNA) 350 (Unpub. 10th Cir.).

Sexual Harassment - By Inmates in Correctional Facilities

     Eleventh Circuit affirms a judgment for female correctional officers. A reasonable jury could have found that Florida prison officials should have enforced the inmate dress policy, which required inmates to wear pants when female staff were in the close management dorms. Beckford v. Dept. of Corrections, #09-11540, 2010 U.S. App. Lexis 9452, 109 FEP Cases (BNA) 360 (11th Cir.)

Sexual Harassment - Verdicts, Settlements & Indemnity

     Former secretary to a suburban Chicago chief deputy sheriff accepts $188,000 to settle her sexual harassment and wrongful termination claims. Easi v. Randall, #1:08-cv-07024 (N.D. Ill. 2009).  View complaint.

Union and Associational Activity 

     Where a fire district is authorized, but not required, to engage in collective bargaining, a firefighter has a First Amendment right to vigorously support unionization, and may not be terminated for such activities. To prevail, management must prove that it had just cause to terminate the firefighter in the absence of his pro union support. Kodish v. Oakbrook Terrace Fire Prot. Dist., #08-1976, 2010 U.S. App. Lexis 9511, 188 LRRM (BNA) 2513 (7th Cir.).

Whistleblower Requirements and Protection

     Federal appeals panel sustains three charges against the former chief of the U.S. Park Police, who claimed that she was terminated because of her whistleblower-protected public statements. Only one charge against her was protected by the Whistleblower Protection Act.  The Merit Systems Protection Board must reconsider whether removal remains a reasonable penalty. Chambers v. Dept. of Interior, #2009-3120, 602 F.3d 1370, 2010 U.S. App. Lexis 8209 (Fed. Cir.).

Workers’ Compensation - Exclusive Remedy

     Workers’ Comp is the exclusive remedy for jail nurses, who were held hostage by inmates, including one who was shot by a police officer during the recapture of the inmates. Hunt v. CCA, #1D09-1260, 2010 Fla. App. Lexis 6661 (1st Dist.).

     Workers’ Comp is the exclusive remedy for a corrections officer who was assaulted by an inmate. Abrams v. Dept. of Reh. & Corr., #2006-04679, 2010-Ohio-1530, 2010 Ohio Misc. Lexis 30 (Ohio Ct. Cl.).

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English Only Rules

• OSHA Memorandum requires employers to instruct workers in workplace safety “using both a language and vocabulary” that employees can understand; if an employee does not speak or comprehend English, “instruction must be provided in a language the employee can understand.”

Occupational Safety & Disease:

• Toxicology: OSHA website now provides chemical exposure health data.

Reference:

• Abbreviations of laws, law reports and agencies used in our publications.
• AELE’s list of employment law resources

Suicide:

• Police Suicide: Are You at Risk? Orlando Ramos, Ph.D., FBI Law Enf. Bulletin (May 2010).

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CROSS REFERENCES
Alcohol Abuse & Rehabilitation – see: FLSA - Overtime
Disciplinary Punishment – see: Alcohol Abuse
Injuries to Employees – see: Workers’ Compensation
Psychological Exams – see: Background Investigations
Suicide Related – see: Retaliatory Personnel Action

AELE Seminars:

Lethal and Less Lethal Force
Oct. 11-13, 2010 - Las Vegas

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

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