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Drug Screening

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

     Six City of Boston police officers fired for testing positive for cocaine have been ordered reinstated with back pay by the Massachusetts Civil Service Commission which held that “the present state of hair testing for drugs of abuse ... does not meet the standard of reliability necessary to be routinely used” to terminate a public employee. In Re: Boston Police Depart. Drug Testing Appeals, #D-01-1409, Massachusetts Civil Service Commission (March 2013).

FLSA - Overtime - Canine Officers

     A police officer worked as a canine handler for around the last five years of his employment. He claimed that the department wiilfully failed to pay him overtime for many hours he spent off duty caring for a canine. The federal trial court noted that the statute of limitations for such overtime claims is two years, but held that it could be extended to three years in instances of willful violations, which the plaintiff was alleging. Claims older than three years, however, were ordered dismissed. Manning v City of Scottsboro, #5:2012-cv-04108, 2013 U.S. Dist. Lexis 12188 (N.D. Ala. 2013).

Handicap/Abilities Discrimination - Accommodation -- In General

     A city employee's severe disability of schizophrenia required treatment that resulted in him being unable to get to work at a consistent daily time. A federal appeals court vacated a trial court order granting summary judgment to the city, since it was not clear that arriving in a timely manner at work was an essential job function, provided that the employee could make up for the time missed and work additional hours to get the actual essential job functions done. For a number of years, the court noted, the employee's late arrivals were either implicitly or explicitly approved, and the city's flex-time policy indicated that punctuality and being on the job at precise times might not be essential. The trial court had failed to conduct a sufficiently detailed analysis of these issues. McMillan v. City of New York, #11-3932, 2013 U.S. App. Lexis 4454 (2nd Cir.).

Handicap/Abilities Discrimination - Specific Disabilities - Other

     A correctional clerical employee's job involved looking for coded gang messages in inmate mail. She filed a lawsuit under Americans with Disabilities Act (ADA), 42 U.S.C. 12112(a), and the Family Medical Leave Act (FMLA), 29 U.S.C. 2612(a)(1)(D), claiming that her allergic reaction to the use of scented candles and wall plug-ins around her work area constituted a disability. A federal appeals court held that this did not qualify as a disability under the ADA and that her employer had not received her FMLA certification before an applicable deadline, so that her rights under that statute were not violated. Milton v. Texas Dept. of Criminal Justice, #12-20034, 2013 U.S. App. Lexis 4177 (5th Cir.).

First Amendment Related

     Present or former sergeants with the Jersey City Police Department claimed they had been passed over for promotion to lieutenant, despite having passed the civil service exam for the position, in retaliation and for political reasons, based, in part, on the support one of them gave to the mayor's opponent. Summary judgment for the defendants was overturned as the retired sergeant who had supported the mayor's opponent had presented sufficient evidence that the reasons given for her non-promotion may have been pretextual. There was a genuine issue as to whether her political conduct had been a motivating factor on the decision not to promote several other sergaents. Montone v. City of Jersey City, #11-2990, 2013 U.S. App. Lexis 4720 (3rd Cir.).

Health Insurance and Benefits

     An association of retired county employees sued to try to prove that the county breached obligations to provided vested health insurance benefits in "perpetuity." The complaint in the lawsuit was properly dismissed for failing to state a claim. In light of a recent California Supreme Court decision, Retired Employees Ass'n of Orange County, Inc. v. County of Orange, 52 Cal. 4th 1171; 266 P.3d 287; 134 Cal. Rptr. 3d 779 (Cal. 2011) recognizing that, in certain cases a county could form a contract with implied terms, the plaintiffs should still be granted leave to amend their complaint. Sonoma Cnty. Ass'n of Retired Emp. v. Sonoma Cnty, #10-17873, 2013 U.S. App. Lexis 3856 (9th Cir.).

Pensions

     The widow of a Baltimore firefighter began receiving survivor benefits from his pension. She later filed a dependent's claim for death benefits under workers' compensation. The city argued that a statute reducing workers comp death benefits by the amount of a pension applied, while the widow argued that another statute, allowing firefighters' dependents to collect both the workers' compensation and the pension, up to the total amount that had been the firefighter's salary applied. The highest court in Maryland ruled that the widow had no preexisting right to dual benefits, as the statute that now allowed such benefits was amended after her husband had already died. Because this change was substantive, it did not apply retroactively. Johnson v. Baltimore, #45/12, 2013 Md. Lexis75.

Probationary Employment

    A Milwaukee police recruit was in her probationary period and was required to have 16 months of "actual active service" to become a full officer. She was assigned to clerical duties, however, when she injured her knee during training. She was placed in a new recruit class but before graduating, again injured her knee. The city did not consider her clerical assignment "actual active duty," even though she was considered a law enforcement officer under state law. She was placed back in a clerical assignment and it was not considered that her probation had ended. She sued, but after the trial court rejected her lawsuit and while an appeal was pending, accepted a settlement. The appeal was dismissed as moot, as the union lacked standing to pursue the lawsuit on its own. Milwaukee Police Assoc. v. Bd. of Fire & Police Comm'rs, #11-2314, 2013 U.S. App. Lexis 3884 (7th Cir.).

Race: Reverse Discrimination

     A white male employed as a police captain claimed the failure to promote him to inspector, despite his eligibility, was impermissibly motivated by race. He argued that he had been discriminated against on the basis of race because the results of a civil service exam were replaced by the results of an updated version of the test. A federal appeals court held that he had failed to show the racial motivation for this, and that the defendants were already in the process of preparing a revised exam and eligibility list when the inspector position became available. Maraschiello v. City of Buffalo Police Dept., #12-1006, 2013 U.S. App. Lexis 4057 (2nd Cir.).

Whistleblower Requirements and Protection

     A county employee claimed that she had been fired from her job as director of the county's 911 department in violation of a state whistleblower protection statute after she questioned the transfer of county funds from the county's ambulance funds and raised concerns about the ambulance service provided to the county. The Michigan Supreme Court held that the plaintiff had presented sufficient evidence so that reasonable people could differ as to the true motivation for eliminating her job. The defendants, therefore, should not be granted summary judgment, Debano-Griffin v. Lake County, #143841, 2013 Mich. Lexis 146.

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     Budget Cutbacks: "Policing and the Economic Downturn: Striving for Efficiency is the New Normal," Police Executive Research Foundation (PERF) (Feb. 2013).

Reference:

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AELE Seminars:

Management, Oversight and Monitoring of Use of Force
-- Including ECW Operations and Post-Incident Forensics
Apr. 2-4, 2013 -- Las Vegas

Lethal and Less Lethal Force
Oct. 7-9, 2013 -- Las Vegas

Public Safety Discipline and Internal Investigations
Dec. 16-18, 2013 -- Las Vegas

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