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Alcohol Abuse, Testing & Rehabilitation

     Although management required a police officer to attend AA meetings and obtain counseling as a condition of retaining his job, the time spent in those activities was not compensable for FLSA purposes. Todd v. Lexington Fayette Urban County Government, #5:08-295, 2009 WL 4800052, 2009 U.S. Dist. Lexis 115183 (E.D. Ky. 2009).

Civil Liability

     City escapes having to pay a million dollar judgment to a former firefighter for violation of his FMLA rights. The firefighter filed for bankruptcy but concealed the FMLA verdict from his creditors. The principle of judicial estoppel prevents a party from asserting contrary positions in separate legal actions. Reed v. City of Arlington, #08-11098, 2010 U.S. App. Lexis 19319 (5th Cir.).

Collective Bargaining - In General

     New York appellate court affirms an arbitration award that found that management unreasonably withheld paid release time for union officials to prepare for upcoming contract negotiations. Management's justification of reducing overtime costs was unreasonable, absent evidence of financial exigency. Arbitration betw. Monroe Co. Sheriff's Office and Deputy Sheriffs Assn, #1576-CA-10-01338, 2010 N.Y. App. Div. Lexis 10001, 2010 NY Slip Op 9797 (4th Dept.).

Demotions

     Demotion of 25 Memphis police captains for economic reasons did not violate the Due Process Clause because they lacked a protected property interest. Aldridge v. City of Memphis, #08-6046, 2010 U.S. App. Lexis 25642, 2010 FED App. 0756N (Unpub. 6th Cir.).

     Sergeants, who were temporarily demoted because of budgetary restraints, were not automatically reinstated as sergeants when positions opened. "Under federal law, the limitations clock begins to run when the claimants know or should have known that the defendant violated their rights, ... which occurs when the claimants learn of an illegal action, not when the claimants feel the effects of the action." Hebron v. Shelby Co. Govt., #09-6241, 2010 U.S. App. Lexis 26028, 2010 FED App. 0782N (Unpub. 6th Cir.).

Disciplinary Evidence - Exclusionary Rule

     The fact that hair drug testing was deemed to be an improper practice at the time of an officer's disciplinary trial does not render the use of such evidence unlawful. At the time that the testing occurred it was lawful. Goldin v. Kelly, #3351, 2010 NY Slip Op 07262, 77 A.D.3d 475, 908 N.Y.S.2d 678, 2010 N.Y. App. Div. Lexis 7450.

Disciplinary Hearings - Tenured/General

     In a case where a detective was accused of stealing drugs, departmental charges that provided only a general time frame that spanned two entire years was not reasonably specific so as to satisfy due process requirements. Wolfe v. Kelly, #1974, 2010 NY Slip Op 8847, 911 N.Y.S.2d 362, 2010 N.Y. App. Div. Lexis 8957.

Disciplinary Hearings - Untenured

     A probationary police officer is not entitled to a termination hearing. Allegations of animosity against him on the part of some police department personnel are irrelevant without an indication they were involved in the termination decision. Bienz v. Kelly, #2750, 2010 NY Slip Op 04035, 73 A.D.3d 489, 2010 N.Y. App. Div. Lexis 3954, 901 N.Y.S.2d 199.

FLSA - Overtime - Canine Officers

     Time spent by canine officers administering medications, feeding and training their dogs, and cleaning the kennel are compensable under the FLSA and must be paid as regular overtime. The fact that canine officers were paid an additional $1000 per year did not constitute an agreement between the parties. Lewallen v. Scott County, #3:08-cv-520, 724 F.Supp.2d 893, 2010 U.S. Dist. Lexis 69807 (E.D. Tenn. 2010).

Hairstyle and Appearance Regulations & Discrimination

     Federal court finds that management had made good faith effort to accommodate a Muslim officer's religious belief by allowing him to grow a one-quarter inch beard - the same length allowed those with a medical condition. Wallace v. City of Philadelphia, #06-4236, 2010 WL 1730850, 2010 U.S. Dist. Lexis 42437, 109 FEP Cases (BNA) 401 (E.D. Pa. 2010).

Moonlighting (Secondary Employment)

     Affirming a lower court holding, the Third Circuit upholds a New Jersey law banning state troopers from engaging in the practice of law. State Troopers Non-Commissioned Officers Assn. v. State of New Jersey, #09-3296, 2010 U.S. App. Lexis 22735 (Unpub. 3rd Cir.).

National Origin Discrimination

     Jury finds for the FBI in a discrimination and retaliation suit brought by an Egyptian born former agent. Judge refuses the plaintiff's request for a new trial because "the jury's verdict was not against the weight of the evidence." Youssef v. Fed. Bur. of Investigation, #03-1551, 2011 U.S. Dist. Lexis 9832 (D.D.C. 2011); prior ruling at 541 F. Supp. 2d 121 (D.D.C. 2008).

Political Activity/Patronage Employment

     Management's refusal to reinstate a Tennessee state trooper who had voluntarily left his position to seek election as mayor did not violate the First Amendment. Sain v. Mitchell, #09-5726, 376 Fed. Appx. 582, 2010 U.S. App. Lexis 9685, 2010 FED App. 0285N. (6th Cir. 2010).

Privacy Rights

     Federal court rejects Privacy Act claims [5 U.S.C. § 552a] brought by the DEA agent who was video recorded shooting himself in the foot during a training session. The plaintiff was unable to name the source of the video that was leaked to the news media and viewed on the Internet. "Given that the incident occurred in a public forum, in front of fifty parents and children while [the] plaintiff was on duty at a DEA sponsored presentation and involved a public shooting incident, the incident was a matter of public concern," wrote the judge. Paige v. DEA. #CV 1:06-644, Pacer Doc 63 (D.D.C. 12-29-2010).

     "Case law makes clear" that "the interest in the privacy of medical information will vary with the condition." Fibromyalgia is not a condition that gives rise to a constitutionally-protected privacy right. Matson v. Bd. of Ed. of City of N.Y., #09-3773-cv, 2011 U.S. App. Lexis 514 (2nd Cir.).

     In rejecting privacy claims, appellate holds that "the qualifications of firefighters are a public safety matter and, therefore, a matter of public concern." Smith v. Bor. of Dunmore, #07-4534, 2011 U.S. App. Lexis 1461 (3rd Cir.).

Race Discrimination - In General

     Appeals panel rejects a racial bias complaint filed by a firefighter who was next in line for promotion when a new eligibility list was published. The existing list was obsolete, and had been in existence longer than prior lists. Moreover, the individual who made decision to generate new eligibility list was unaware that the plaintiff was next in line to receive promotion on the existing list. Stinnett v. City of Chicago, # 09-3626, 2011 U.S. App. Lexis 17, 111 FEP Cases (BNA) 167 (7th Cir.).

Reductions in Force

     A California city is not required to bargain with the firefighters' union before deciding that firefighters must be laid off as a cost-saving measure. "A public employer must, however, give its employees an opportunity to bargain over the implementation of the decision, including the number of employees to be laid off, and the timing of the layoffs, as well as the effects of the layoffs on the workload and safety of the remaining employees." IAFF L-188 v. PERB (City of Richmond), #S172377, 2011 Cal. Lexis 516.

Religious Discrimination

     Third Circuit affirms a $100,000 award to a part-time police officer who was laid off due to budget constraints. The chief had made adverse comments about the officer's church attendance and there was an earlier effort to prohibit him from wearing of a cross pin. Risk v. Burgettstown Borough, Pa., #08-4746, 364 F. Appx. 725, 2010 U.S. App. Lexis 2906, 108 FEP Cases (BNA) 1040 (Unpub. 3d Cir. 2010).

Resignations and Constructive Discharge

     Georgia firefighter was not coerced into offering his resignation. He was given advance notice of a hearing, was informed of the alleged violations, the intent to terminate him, and an opportunity to defend against the accusations. Ross v. City of Perry, #09-15392, 2010 U.S. App. Lexis 19662 (11th Cir.).

Retaliatory Personnel Action

     Supreme Court extends Title VII's anti-retaliation protection to third parties. It "must be construed to cover a broad range of employer conduct... A reasonable worker obviously might be dissuaded from engaging in protected activity if she knew that her fiancé would be fired." Thompson v. North American Stainless, #09-291, 2011 U.S. App. Lexis 913.

     Dismissal of a retaliation suit brought by state troopers is affirmed by the Second Circuit. "In sum, Plaintiffs do not allege having suffered any negative consequences ... beyond vague and unspecific descriptions of their own perceptions of their work." Nixon v. Blumenthal, #3:08-cv-1933, 2010 U.S. Dist. Lexis 22408 (D. Conn.); affirmed, #10-1084-cv, 2010 U.S. App. Lexis 25693 (Unpub. 2nd Cir.).

Retirement Rights and Benefits

     In cases where a retiree sues because his benefits are too small, the statute of limitations begins when pension payments begin. "In financial affairs, many citizens take a good deal on faith: not everyone zealously checks his bank statement every month, carefully updates insurance policies to account for new conditions, or scrutinizes the apartment lease to ascertain rights and obligations. But concern about stale claims lies on the other side of the balance, ... and the discovery rule only protects those who do exercise reasonable diligence." McNamara v. City of Nashua, #10-1322, 2011 U.S. App. Lexis 654 (1st Cir.).

Untruthfulness & Resume Fraud - Job Application Omissions

     Appellate court affirms the termination of a NYPD officer, who, during the hiring process, concealed the fact that he had been a suspect in a criminal homicide while in the army and had associated with members of a gang that had committed a homicide. Walsh v. Kelly, #3916, 2010 NY Slip Op 9346, 912 N.Y.S.2d 406, 2010 N.Y. App. Div. Lexis 9416.

Whistleblower Requirements and Protection

     Under the federal Whistleblower Act, a disclosure will not be protected if it is made as part of an employee's normal duties reported through normal channels or if the disclosure is made to the wrongdoer. Lane v. Dept. of Homeland Security, #DC-1221-10-0231-W-1, 2010 MSPB 245.

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Collective bargaining:

• Federal Collective Bargaining Legislation for State and Municipal Public Safety Personnel, 78 The Police Chief 12-13 (Jan. 2011). Legislative oversight:

Reference:

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CROSS REFERENCES
Collective Bargaining - Duty to Bargain - see: Reductions in Force


FLSA - Overtime - see: Alcohol Abuse & Rehabilitation
Religious Discrimination - see: Hairstyle Regulations

AELE Seminars:

Legal, Psychological and Biomechanical Aspects of
Officer-Involved Lethal and Less Lethal Force
Oct. 10-12, 2011 – Las Vegas

Public Safety Discipline and Internal Investigations
Dec. 12-14, 2011 - Las Vegas

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