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Age Discrimination - Promotion/Assignment

     An age discrimination lawsuit was filed by San Francisco police officers over 40 years old who qualified for consideration for promotion to Assistant Inspector based on a 1998 exam. They claimed that a police department policy abandoning that exam as the basis for certain assignments constituted age discrimination on the basis of disparate impact. A federal appeals court found that the trial court's denial of the certification of a class in the lawsuit amounted to an abuse of discretion. The trial court improperly addressed the merits of the plaintiffs' claims and also disregarded the presence of common questions of law and facts. Stockwell v. City and County of San Francisco, #12-15070, 2014 U.S. App. Lexis 7694 (9th Cir.).

Collective Bargaining Agreements

     Public employees of the state of Illinois have a statutory right to non-association with a union based on bona fide religious tenet or teachings of church or religious body of which such employees are members. They are entitled to pay an amount equal to their fair share dues to a non-religious charity rather than to a union. The plaintiff, a public employee whose coworkers were represented by the Teamsters, notified the union that he did not wish to join the union and wanted to donate his union dues to a charity. The union failed to respond to his email and took receipt of his fair-share dues, failing to put them into escrow. The court held that the collective bargaining agreement failed to safeguard the plaintiff's right of non-association, and that this failure constituted an unfair labor practice by both the union and the employer. Trygg v. The Illinois Relations Board, 2014 IL App (4th) 130505.2014 Ill. App. Lexis 299.

Drug Screening

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

     Ten African-Americans presented evidence sufficient from which to conclude that a Boston Police Department drug testing program, using hair samples, resulted in a disparate impact on the basis of race. The plaintiffs include a former cadet and former officers who were fired after testing positive for cocaine, a current officer who tested positive and underwent rehabilitation as an alternative to termination, and a former applicant whose contingent job offer was revoked after a positive test. Further proceedings will examine whether the test used is reliable or whether it results in too many false positives among African-American test subjects. Also to be examined is whether the drug testing program is job-related and consistent with business necessity. A summary judgment for the defendants on a Title VII race discrimination claim was vacated, and the denial of the plaintiff's motion for partial summary judgment on the prima facie case of disparate impact was reversed. Jones v. City of Boston, #12-2280, 2014 U.S. App. Lexis 8560 (1st Cir.).

FLSA - Overtime - in General

     The U.S. Department of Labor claimed that the Washington State Department of Social and Health Services engaged in both overtime and recordkeeping violations under the Fair Labor Standards Act (FLSA). The plaintiff provided proof of the claimed violations supported by 400 employee signatures, but 350 of the signatures were obtained after the lawsuit was filed. The trial court ordered the plaintiff to answer three interrogatories that would disclose those 350 employees' names, ruling that they did not qualify as "informants" whose identities were protected from discovery by the government's informants privilege, because of when their signatures were obtained. The appeals court found that the trial judge had erroneously limited the scope of the informants' privilege and that the defendant agency did not have a compelling need for the identities or identifying information of the 250 employees who would not be witnesses at trial, and who said that they wished to remain anonymous. Perez v. U.S. District Court, #13-72195, 2014 U.S. App. Lexis 7301 (9th Cir.).

Family, Medical & Personal Leave

     An investigator for a county prosecutor's office who had peace officer status and carried a weapon took leave under the Family and Medical Leave Act (FMLA) because of emotional difficulties and severe depression that she was experiencing following the death of her brother-in-law. A California intermediate appeals court ruled that when the employer was not satisfied with the employee's health care provider's certification that she was able to resume work, the employer could restore the employee to the job, but then seek its own independent evaluation of her fitness for duty at its own expense. The employer was concerned because of instances in which her depression had caused her to put her safety in danger, called into question her ability to react properly in tactical situations, and caused her to provide unprofessional, and conceivably false testimony in a criminal proceeding. White v. County of Los Angeles, #B243471, 225 Cal. App. 4th 690, 2014 Cal. App. Lexis 336.

     An Illinois correctional officer's wife suffered from mental health problems relating to opiate dependency. He submitted a Family and Medical Leave Act (FMLA) form seeking leave to take off work intermittently or to work less than a full schedule to care for her, based on recommendations from his wife's psychiatrist, who believe that the need for the leave would continue for an "unknown" period of time. The leave request was approved, and no further medical documentation was asked for, and the employer paid its share of his health insurance costs. After 130 days of absence were recorded, he was told that his FMLA leave had expired, but that he could take up to a year of unpaid leave under a state program, the Illinois Family Responsibility Leave program, but that the state would only contribute to his health insurance cost for six months. After he took 29 absences under that program, a request for two more days off was denied by a warden. He was later notified that the state mistakenly continued to pay for his health insurance beyond the time to which he was entitled, and started withholding 25% of his pay until he had refunded $8,291.83. He sued the state, claiming interference with FMLA rights. A jury returned a verdict in favor of the state. The trial judge, however, entered a judgment notwithstanding the jury's verdict finding that the plaintiff's FMLA leave should have lasted one additional month, and awarding him, therefore $1,222.10 for that one month's medical benefits cost, a ruling the appeals court upheld. Holder v. IL Dep't of Corrs., #12-1456, 2014 U.S. App. Lexis 8431 (7th Cir.).

     A former postal employee was not required to resolve her claims arising under the Family and Medical Leave Act (FMLA) through arbitration because her union's collective bargaining agreement with the employer did nor clearly and unmistakably require her to do so. The collective bargaining agreement's incorporation of the federal Rehabilitation Act's prohibitions on disability discrimination, however, was sufficiently clear and unmistakable enough to waive her right to sue for claims under that statute in federal court. Because the plaintiff had subsequently retired, she lost her standing to seek injunctive relief, as she could not realistically face a continuing threat of violation of her rights under the FMLA. Gilbert v. Donahoe, #13-40328, 2014 U.S. App. Lexis 8182 (5th Cir.).

Privacy Rights

     A think tank concerned with public issues, including public pension reform, sought information about retired public school teachers receiving benefits from state and city retirement systems. The highest court in New York found that the state Freedom of Information Law only exempted from disclosure the home addresses of retired public employees receiving benefits, but not their names. Retired employees' beneficiaries (family members), however, had privacy protection under the law for both their names and their home addresses. Empire Center for New York State Policy v. Teachers' Retirement System of the City of New York, #77, 2014 N.Y. Lexis 948, 2014 NY Slip Op 3193.

Retirement Rights and Benefits

     An emergency manager appointed by Michigan's governor because of a city's significant economic difficulties made modifications to the collective bargaining agreements of retired city workers and severance benefits, including pension benefits, for retirees not covered by the collective bargaining agreements. These modifications would, among other things, modify or eliminate some retiree health care benefits. Further proceedings were ordered to determine whether provisions of the bankruptcy code could bind the retirees without their consent and whether state sovereignty precluded the application of the federal bankruptcy law in this manner. Also to be considered on remand were whether the emergency manager's orders were legislative acts under the Contract Clause of the U.S. Constitution, and whether it was "necessary and reasonable" under the Contract Clause to reduce and/or eliminate the retiree health care benefits at issue, as well as whether the retirees stated a viable due process claim and whether the collective bargaining agreements created protected property rights. City of Pontiac Retired Emps. Ass'n v. Schimmel, #12-2087, 2014 U.S. App. Lexis 8392, 2014 Fed App. 0094P (6th Cor.).

Sexual Harassment - In General

     A female African-American employee of the Merit Systems Protection Board (MSPB), the federal entity charged with addressing the grievances of federal workers challenging discriminatory employment practices, claimed that her supervisors had created a hostile work environment discriminating against her on the basis of both race and sex. Upholding summary judgment for the employer, a federal appeals court found that while the supervisors' actions "may have been unprofessional, uncivil, and somewhat boorish, they did not constitute an adequate factual basis for the Title VII claims presented here." The court found that alleged selective enforcement of a time and attendance policy was not severe or pervasive enough to create a hostile working environment. Further, the employee's performance reviews were not uniformly negative, and criticisms of her had some legitimate basis, for which areas of improvement were recommended. An "outburst" by a supervisor and coworker was an isolated expression of frustration, even if ill-mannered and tactless. The plaintiff's complaint also failed to clearly raise a retaliation claim. Brooks v. Grundmann, #12-5171, 2014 U.S. App. Lexis 6942, 122 Fair Empl. Prac. Cas. (BNA) 661 (D.C. Cir.).

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     Officer Safety: Improving Officer Safety and Citizen Support: Solving the Puzzle, by Mike Masterson, FBI Law Enforcement Bulletin (May 2014).

     Technology: Body-Worn Cameras for Criminal Justice: Market Survey, National Institute of Justice (Mar. 2014).

     Training: Educating Police Executives in a New Community Problem-Solving Era, by Michael J. Jenkins and John DeCarlo, FBI Law Enforcement Bulletin (May 2014).

Reference:

• Abbreviations of laws, law reports and agencies used in our publications.
• AELE’s list of employment law resources

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