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Collective Bargaining Agreements

     A lawsuit was filed over a dispute about whether a collective bargaining agreement governed a controversy over the city refusing to hire a member of the FOP Labor Council to operate a snow plow when he was off duty. The contract stated that only grievances concerning an express provision would be subject to submission to arbitration. Accordingly, not every police officer grievance could be arbitrated. The city was not obligated to arbitrate the immediate dispute since there was no contract provision saying that any officer could arbitrate a failure to hire him to run a snowplow while off duty. City of Naperville v. Illinois Fraternal Order of Police, 2013 IL App (2d) 121071, 2013 Ill. App. Lexis 654.

Disciplinary Procedures - In General

     The federal government has adopted procedures to punish credit card abuse. Memo M-13-21, "Implementation of the Government Charge Card Abuse Prevention Act" (Sep. 2013).

Family, Medical & Personal Leave

     A county employee filed suit under the Family Medical Leave Act, 29 U.S.C. Sec. 2601, claiming that she was improperly demoted in retaliation for having left work to take care of her ill uncle. The trial court granted summary judgment to the defendants. On appeal, the court rejected the plaintiff's argument that the employer was equitably estopped from disputing her eligibility for leave because her manager had approved it. Assuming for the purposes of argument that equitable estoppel under federal common law applied to the Family Medical Leave Act, the plaintiff failed to assert a valid case for estoppel in this case. She failed to show that she relied on any misrepresentation. Dawkins v. Fulton County, #12-11951 2013 U.S. App. Lexis 19918 (11th Cir.).

First Amendment Related

     After the plaintiff was fired from the police department for violating a number of policies, he filed a federal civil rights lawsuit against the city and other defendants. Upholding summary judgment for the defendants, the appeals court agreed that the plaintiff had not proven that any of the disciplinary, personnel, or internal affairs decisions that he complained about were made by a final policymaker for the city, barring municipal liability. Additionally, he failed to show that his First Amendment rights were violated, since he could not demonstrate that his speech on any topic played a significant role in the decisions to start internal affairs investigations concerning him or to terminate him. The court also rejected the plaintiff's false imprisonment, false arrest, and malicious prosecution claims as he could not show that they had been carried out without probable cause, or that there was any connection between them and the defendants' actions. Carter, Jr. v. City of Melbourne, FL, #12-15337, 2013 U.S. App. Lexis 19450 (11th Cir.).

Handicap/Abilities Discrimination - Accommodation

     A former state assistant attorney general claimed that she was subject to disability discrimination because her employer failed to provide her with a free on-site parking space as an accommodation for her disability. She also claimed that she was fired in retaliation for filing discrimination claims with the EEOC. The trial court ruled erroneously on the parking space issue because it required that the plaintiff show a connection between the requested accommodation and her job's essential functions. The retaliation claim, however, was properly rejected because the employer came forward with a non-retaliatory reason for the firing and the plaintiff failed to present any evidence that this was just a pretext. Feist v. State of Louisiana, #12-31065 2013 U.S. App. Lexis 19133, 119 Fair Empl. Prac. Cas. (BNA) 1724 (6th Cir.).

National Security Issues and Security Clearances

     The Merit Systems Protection Board was barred under Department of the Navy v. Egan, 484 U.S. 518 (1988), from reviewing the merits of a Defense Department national security determination on the eligibility of the plaintiff to be in a position that was sensitive and implicates national security. Kaplan v. Conyers, #11-3207, 2013 U.S. App. Lexis 17278, 36 I.E.R. Cas. (BNA) (Fed. Cir.).

Pay Disputes - General

     Police unions challenged a wage freeze imposed on county employees in 2011 by an interim finance authority. They argued that the freeze violated the Contracts Clause of the Constitution and that the finance authority powers to impose a freeze had expired under a state statute. The trial court granted the unions summary judgment on the basis of their state law claim without reaching the constitutional issue. The federal appeals court found that the trial court had erred in doing so, since doing it required it to interpret, for the first time, an important state legislative scheme enacted to prevent the fiscal fail;ure of the county. The ruling was therefore vacated and remanded for further proceedings. Carver v. Nassau County Interim Finance, #13-801 2013 U.S. App. Lexis 19366 (2nd Cir.).

Political Activity

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

     Six employees of a sheriff's office claimed that they lost their jobs after expressing support for the sheriff's opponent in an upcoming election. Some of them did so by "liking" or commenting on the opponent's Facebook page. A federal appeals court found that expressing likes on Facebook is protected free speech, and the "Internet equivalent of displaying a political sign in one's front yard." The defendant sheriff was entitled, however, to qualified immunity on three employee's claims seeking damages against him individually as well as Eleventh Amendment immunity against claims seeking money damages against him in his official capacity. No Eleventh Amendment immunity was available, however, on three employee's claims seeking reinstatement in their jobs. Bland v. Roberts, #12-1671, 2013 U.S. App. Lexis 19268 (4th Cir.).

Retaliatory Personnel Action

     A California public employee is required to exhaust the administrative remedy established in Labor Code §98.7 before filing a suit in a state trial court alleging a retaliatory discharge in violation of §1102.5 and §6310. In this case, the plaintiff claimed that they were fired in retaliation for complaining about illegal smoking in the workplace. His claims were properly dismissed as he failed to exhaust his administrative remedies before filing suit. McDonald v. State of California, #C069646, 219 Cal. App. 4th 67, 161 Cal. Rptr. 3d 520, 2013 Cal. App. Lexis 683.

Wrongful Termination

     A nurse who had worked as an independent contractor for California's correctional department sued over her termination without explanation and her inability to find other work within the department because of negative job references. The federal appeals court ruled that the department had not created any constitutionally protected interests in continued employment by merely setting performance review procedures in place. There was no affirmative grant of tenure to the plaintiff or any assurance of future employment. Any liberty interest, further, would have been in her profession as a nurse not a placement with a particular employer. Blantz v. Cal. Dep't of Corr. & Rehab., #11-56525, 2013 U.S. App. Lexis 16940, 36 I.E.R. Cas. (BNA) 671 (9th Cir.).

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     Body Cameras: "Police Body-Mounted Cameras: With Right Policies in Place, a Win For All," by Jay Stanley, ACLU Senior Policy Analyst (October 2013).

     Same-sex marriages: The U.S. Dept. of Labor has issued guidance to employee benefit plans on the definition of "spouse" and "marriage" under ERISA and the Supreme Court's decision in United States v. Windsor. DOL Technical Release No. 2013-04.

    Security Clearance:  Security Clearance Process: Answers to Frequently Asked Questions, Congressional Research Service, #R43216 (Sep. 9, 2013).

     Sleep Cycles: The Centers for Disease Control has reported that during 2007–2010, 60.4% of U.S. adults aged =20 years slept 7–9 hours at night, 37.3% slept 6 hours or less, and 2.3% slept 10 hours or more. Non-Hispanic black adults were less likely to report sleeping 7–9 hours and more likely to report sleeping 6 hours or less than non-Hispanic white and Hispanic adults. View report, 62 (36) Morbidity and Mortality Weekly Report 755 (9/13/2013).

Reference:

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AELE Seminars:

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

Jail and Prisoner Legal Issues
In two modules:
Module One – Operational and Administrative Legal Issues
Jan. 20-21, 2014 – Las Vegas
Module Two - Security and Incident Liability
Jan. 22-23, 2014 – Las Vegas

Management, Oversight and Monitoring of Use of Force
– Including ECW Post-Incident Forensics
Mar. 3-5, 2014 – Las Vegas

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