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Disability Rights and Benefits - Other Issues

     A correctional employee suffered serious injuries when the vehicle she was driving rolled over while she was going to pick up a prisoner. She was awarded a partial impairment award, after which she applied for permanent total disability benefits. After her application was denied, the Wyoming Supreme Court reversed, finding that she had presented a prima facie case that she was unemployable in her community as a result of her injuries. The defendants failed to rebut that evidence by showing that there was gainful employment she could qualify for within a reasonable geographical distance. Stallman v. State ex rel. Wyo. Workers' Safety & Comp. Div., #S-12-0172, 2013 WY 28, 2013 Wyo. Lexis 32.

Disciplinary Interviews & Compelled Reports - Weingarten Rights

     When a firefighter was called into a meeting with the fire chief for an interview concerning a personnel complaint the chief had filed against him, he asked to have a representative from his union present. The request was denied and the interview continued with no representative present. He was suspended for five days. He and the union argued in a lawsuit that the right to have a union representative present during such an interview was granted by a state statute. The Texas Supreme Court held that the statute in question did not give public employees in the state the right to have a union representative present at an investigative interview that the employee reasonably believes could subject him to disciplinary action. City of Round Rock v. Rodriguez, #10-0666, 2013 Tex. Lexis 266.

FLSA - Standby Time

     Police officers claimed that a town's on-call policy for their jobs was so onerous before 2009 that they had been unable to engage in personal activities between shifts and should, therefore, have been paid for all time spent on call, rather than just for calls outs. The Montana Supreme Court upheld a trial court jury verdict for the town, based on the plaintiffs' failure to demonstrate that the jury's verdict was inherently impossible to believe or that the verdict was completely unsupported by the evidence. Stubblefield v. Town of W. Yellowstone Court, #12-0207, 2013 MT 78, 2013 Mont. Lexis 96

First Amendment

     A police officer who led the officers' union helped lead the union in criticizing the police chief and holding a vote of no confidence in him. He claimed that the chief delayed his salary increase in retaliation for his First Amendment protected free speech activity. A federal appeals court agreed, finding that the speech involved was on issues of public concern, the police chief's performance of his duties, and the delay in the pay hike could be seen as an adverse employment action. Summary judgment in favor of the chief was reversed on claims against the chief. The appeals court upheld, however, summary judgment on a municipal liability claim. Ellins v. City of Sierra Madre, #11-55213, 2013 U.S. App. Lexis 5731 (9th Cir.).

Pay Disputes - In General

     A firefighters union was entitled to a judgment in its favor when it presented evidence to support its interpretation of the collective bargaining agreement that the city was required to give step pay increases to all eligible firefighters. The City failed to present any real evidence to the contrary. The lawsuit was filed when the city refused to give pay increases to five firefighters who qualified for a step increase in pay. Sheridan Fire Fighters Local No. 276 v. City of Sheridan, #S-12-0108, 2013 WY 36, 2013 Wyo. Lexis 40.

Pensions

     An employee who retired from federal service agreed to get a reduced annuity, naming his wife to receive a survivor annuity. Later, they divorced and he married another woman. He received annual notices telling him that if he wanted to have survivor benefits paid to a spouse he married after retirement, he had to send in a signed request within two years of the marriage. He sent in such a request four years after the marriage, and it was denied as untimely. He was then told to send in his divorce decree from his first marriage to change or eliminate the prior survivor election. He waited four more years before doing that, and was told that the change had been made. When he died, the first wife's application for survivor's benefits was denied and the second's wife's application was granted. The Merit System Protection Board held that the benefits should go to the first wife. The Court of Appeals for the Federal Circuit reversed, finding that the award to the first wife was not supported by substantial evidence. Dachniwskyj v.Office of Pers. Mgm., #11-3158, 2013 U.S. App. Lexis 6550 (Fed. Cir.).

     The highest court in New York ruled that, after a collective bargaining agreement with a firefighters' union expired, current law did not allow the firefighters to retain their non-contributory retirement benefit plan. Therefore, an arbitration award ordering the city to keep providing that benefit had to be vacated, since the arbitration award now conflicted explicitly with state law.  In the Matter of City of Oswego v. Oswego City Firefighters Association, #49, 2013 N.Y. Lexis 578, 2013 NY Slip Op 2163

Political Activity/Patronage Employment

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

     A number of correctional officers were members of a specialized Special Operations Response Team (SORT) that guarded inmates in the Cook County Jail’s Abnormal Behavioral Observation Unit (ABO). When six violent felons escaped from that unit, an officer confessed to allowing them to escape and named three other officers as either having advance knowledge of the planned escape or asssisting him. The SORT team was disbanded and the plaintiffs were investigated and reassigned. In a lawsuit, they claimed that they had been retaliated against because of their political support for a particular candidate for sheriff. A federal appeals court rejected this claim, noting that there had been probable cause for the investigation, so other motivations for investigating them were less relevant. It was clearly objectively reasonable to conduct an investigation of officers believed to have been involved in a multiple-felon jailbreak. Hernandez v. Cook Cnty. Sheriff's Dep't, #12-1941, 2013 U.S. App. Lexis 6417 (7th Cir.).

Reinstatement and Alternative Remedies

      Rejecting a claim for reinstatement, an intermediate California appeals court held that an officer was properly terminated for unofficer-like conduct including allegations of check fraud and lack of cooperation with a search of her home regardless of its legality. The exclusionary rule does not apply in California police disciplinary proceedings. The termination was not excessive or an abuse of discretion. Richardson v. City & County of San Francisco, #A133300, 214 Cal. App. 4th 671; 2013 Cal. App. Lexis 206

Retaliatory Personnel Action

     Three jail employees claimed that the defendants, who were supervisors or officials at the jail, took retaliatory adverse employment actions against them in violation of their First Amendment rights in response to a parody that only one of them created which suggested that the defendants were corrupt and to the plaintiffs later filing a lawsuit based on the alleged retaliation. A federal appeals court found that none of the conduct for which the plaintiffs claimed to have been retaliate against was protected by the First Amendment as it did not involve matters of public concern, but rather was about their employment and supposed corruption involving preferential hiring and staffing, selective enforcement in matters of employee discipline and other forms of favoritism. Singer v. Ferro, #11-3919, 2013 U.S. App. Lexis 6576 (2nd Circuit).

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