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Collective Bargaining -- In General

     A union representing IRS employees wanted to changes its collective bargaining agreement to allow probationary employees to utilize the contract's grievance procedures to oppose removals arguably in violation of an employee's statutory rights. The IRS declined to negotiate on the issue, saying that allowing this would give probationary employees more procedural protections than the law allows. The FLRA agreed and so did a federal appeals court, saying that a decision to the contrary would ignore the regulatory and statutory framework developed by Congress, fly in the face of around 30 years of settled public employment practices and create a split in the rulings of the federal circuit courts of appeal. National Treasury Employees Union v. Federal Labor Relations Authority, #12-2574, 2013 U.S. App. Lexis 24298 (4th Cir.),

Disciplinary Punishment

     A deportation officer with the Department of Homeland Security frequently testified in court and in grand jury proceedings. During an Office of Professional Responsibility investigation, he admitted having lied in the course of a police investigation. A removal proceeding was begun and three of five charges were sustained, resulting in a 124 day suspension. Two years later, it was determined that this disciplinary record meant that he would not be allowed to testify in court because his credibility as a witness had been compromised. He could also no longer swear out complaints. A second removal procedure followed and led to his demotion as he could no longer carry out the full range of his duties. A federal appeals court upheld this, rejecting arguments that either he had been subject to double punishment or that his due process rights had been violated. Nguyen v. Dep't of Homeland Sec., #13-3024, 2013 U.S. App. Lexis 24398 (Fed. Cir.).

First Amendment Related

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

     A federal appeals court upheld a $1.1 million jury award in favor of a terminated deputy on a claim that he suffered retaliation for exercising his First Amendment rights. After he used pepper spray and physical force to subdue a motorcyclist fleeing from a fellow officer, he submitted his report. Allegedly alarmed that the incident could result in a civil damages lawsuit, officers in the upper echelon of the chain of command supposedly authorized detectives to interrogate him aggressively and also ordered him to revise his report. The deputy opposed this order, regarding it as legally and factually unwarranted. After he broadly publicized this to numerous public officials, the media, and others, representing this as showing corrupt and unlawful practices occurring in the sheriff's office, the sheriff fired him. A federal appeals court ruled that the sheriff was not entitled to qualified immunity and therefore upheld the jury award. Terminating him for publishing documents from the office's grievance proceedings violated his clearly established First Amendment rights. Durham v. Jones, #12-2303, 2013 U.S. App. Lexis 24507 (4th Cir.).

Injuries to Employees

     A city firefighter suffered an on-the-job injury in 1988. He entered into a settlement agreement with the city under which he would receive lifetime medical expenses and agree to release the city from any further claims for the injury. Later, in 2004, the city decided to stop paying his medical expenses, contending that they were not necessary or reasonable. He sued the city for breach of the settlement agreement, and a jury awarded him $127,500 in damages. The Texas Supreme Court found that the trial court had lacked jurisdiction to hear the case, since the plaintiff had failed to first exhaust his available administrative remedies before suing, as required by statue. He should have presented his claim to the Division of Workers' Compensation. City of Houston v. Rhule, #12-0721, 2013 Tex. Lexis 951.

Pensions

     A federal bankruptcy judge has ruled that the city of Detroit's retiree pensions can be cut as part of the city's bankruptcy. The city's largest employee union has filed an appeal to a federal district court, and also reportedly plans to ask the bankruptcy court for permission to take the case directly to the U.S. Court of Appeals for the Sixth Circuit. In Re: City of Detroit, Michigan, Debtor, Chapter 9, #13-5386, U.S. Bankruptcy Court (E.D. Mich. Dec. 3, 2013).

Retaliatory Personnel Actions

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

     A police officer argued that the city and his superiors unlawfully retaliated against him in violation of his First Amendment rights by firing him because he kept expressing concerns about work-related safety issues to his supervisors. A federal appeals court rejected this claim, ruling that the evidence presented did not establish a First Amendment retaliation claim. A government employee, in reporting safety concerns to his supervisors, acting under a duty to do so, was not expressing himself as a private citizen so that his expression was not protected by the First Amendment. The defendants were entitled to judgment as a matter of law. Hagen v. City of Eugene, #12-35492, 2013 U.S. App. Lexis 24029 (9th Cir.).

     A prosecutor filed felony charges against a correctional officer who took his cell phone inside a facility in violation of departmental policies and Illinois law, making 30 calls from work. Another officer spread the news of this to fellow employees. A casework supervisor called the prosecutor, urging him to drop the charges and let the matter be handled in the employee disciplinary process. Internal affairs learned of this and investigated the supervisor, who was reprimanded and suspended for five days. He sued, claiming he was subjected to unlawful retaliation for protected speech. A federal appeals court upheld a ruling that the defendants were entitled to qualified immunity from liability as no clearly established rights were violated. Further, the plaintiff had not proven his case as a matter of law. His speech was not constitutionally protected since the interests in maintaining workplace order and security outweighed the plaintiff's interests in expressing his opinion on a work-related prosecution. Volkman v. Ryker, #12-1778, 2013 U.S. App. Lexis 24000 (7th Cir.).

Search and Seizure

     A New York City Police Department order requires that any officer who fires his weapon and such firing results in injury or death to be administered a breathalyzer. Rejecting a Fourth Amendment challenge to the order, a federal appeals court found that the order was aimed at both personnel management and bolstering public confidence in the police, and thereby fell within the definition of "special needs" when analyzing the reasonableness of the search under the Fourth Amendment. These concerns were different from ordinary law enforcement concerns, so the warrant and probable cause requirements applicable to law enforcement searches did not apply. These warrantless suspicionless tests were reasonable as a matter of law since the special needs involved outweighed any privacy interests of the officers concerning whether they had consumed alcohol. Lynch v. City of New York, #12-3089, 2013 U.S. App. Lexis 23074 (2nd Cir.).

Whistleblower Requirements and Protection

     The Executive Director of the Idaho Peace Officer Standards and Training Council (POST) was terminated for allegedly failing to comply with directives regarding budget difficulties POST was having or certain personnel management issues, and how to address issues raised in an audit report. He sued, claiming that his firing violated two provisions of a state whistleblower's act involving good faith communication regarding a violation or suspected violation of the law, or refusal to carry out what an employee believes to be an unlawful directive. Finding that he had not engaged in protected activity, the trial court granted summary judgment to the defendant. The ruling was affirmed by the Idaho Supreme Court, which found that the plaintiff's belief that some of the directives given to him were illegal simply were not objectively reasonable. . Black v. Idaho State Police, #39822, 2013 Ida. Lexis 334.

Workers' Compensation - In General

     The highest court in New York ruled that, under the state's workers' compensation law, the State Insurance Fund was entitled to a credit against the proceeds a workers' comp claimant received in a civil rights lawsuit settlement against co-employees and her employer for injuries arising from the same incident that was the basis of her workers' comp claim. The incident was her kidnapping, assault and rape by a resident at the secure juvenile detention facility where she worked. Beth V. v. State Office of Children & Family Servs., #202, 2013 N.Y. Lexis 3158, 2013 NY Slip Op 7657.

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