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Back Pay Claims and Awards

     Two government employees were reinstated after challenging their termination, and were awarded back pay and benefits, including merit salary adjustments and physical fitness incentive pay (PFIP), and that award was offset by the amount of money they had earned from other employers, not including overtime pay, during the four-year period between their dismissals and their reinstatement. A California intermediate appeals court ruled that overtime earned from other employers had to be included in the offset amount, and that state law authorized the inclusion of a merit salary adjustment and physical fitness incentive pay in the award and compensation at a salary range that the employees would have been at if they had not been terminated. Dept. of Corrections & Rehabilitation v. State Personnel Board, #H038027, 2014 Cal. App. Lexis 617

F.L.S.A. - Overtime - In General

    A police union failed to show that a township violated the Fair Labor Standards Act by failing to pay proper overtime, pay compensation for muster time, and provide compensation for time spent putting on and taking off uniforms. The township qualified for the Sec. 207(k) exemption from overtime by adopting a valid work period requiring that officers work either a seven day or a nine day period on a regularly recurring basis. The court found that officers were compensated for muster time as a component of their negotiated salaries, and that there was a custom or practice under the collective bargaining agreement of not compensating officers fo time spent donning and doffing clothes. The officers had the burden of showing that they performed work for which they were not properly compensated, and failed to do so. Rosano v. Township of Teaneck, #13-1263, 754 F.3d 177, (3rd Cir. 2014).

Family, Medical, & Personal Leave

     A county employee who took various time off after suffering injuries in an accident claimed that she was fired in retaliation for taking leave under the Family and Medical Leave Act. Rejecting this claim, the appeals court found that even taking the evidence in the light most favorable to the plaintiff, the county established that she would have been fired regardless of her request for leave. Reasons given for her termination included failure to timely submit Fanily and Medical Leave Act forms in a timely manner, untruthfulness regarding the extent of her injury and her ability to work, abuse of sick leave, personal use of a county digital camera, and failure to schedule a requested independent medical examination (IME). Dalpiaz v. Carbon County, Utah, #13-4062, 2014 U.S. App. Lexis 14165 (10th Cir.).

Privacy Rights

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

     The California Supreme Court upheld the denial of a police union's request fo an injunction barring the release of the names of officers involved in specified on-duty shootings. The court found that no exemption under the state public records law applied, and in weighing the competing interests, the balance tipped strongly in favor of disclose over an individual officer's privacy. This left open the presenting of evidence that the disclosure of a particular officer's name would compromise the safety of the officer or their family. Long Beach Police Officers Assn. v. City of Long Beach, #S200872, 59 Cal. 4th 59, 325 P.3d 460, 2014 Cal. Lexis 3757.

Privatization of Public Safety Functions

     A union representing certain California county employees sued, claiming that the county's Community Development Commission did not have legal authority to enter into a contract with a private company to carry out housing inspection service formerly conducted by public employees. The Commission was free to contract with private entities. Applicable state statutes provided no impediment. Service Employees International Union v. County of Sonoma, #A138637, 227 Cal. App. 4th 1168, 2014 Cal. App. Lexis 605.

Race Discrimination

     While the plaintiff, a black male detective, properly had his unlawful retaliation claims rejected, summary judgment should not have been granted on his race discrimination claim based on his failure to be transferred to the Connecticut Department of Public Safety's Major Crimes Van. Detectives in that unit dealt with homicides, and in the relevant five year period, all detectives assigned to that unit were white. Abrams v. Dept. of Public Safety, #13-111, 2014 U.S. App. Lexis 13582 (2nd. Cir.).

Race and Sex Discrimination

     An African-American woman serving in the U.S. Coast Guard Housing Office at an air station claimed that she was denied a promotion to the job of housing manager there because of her race and her gender. The defendant was entitled to summary judgment because the plaintiff failed to create a genuine issue of material fact on her claim that the non-discriminatory reason given for choosing another candidate for the job was a pretext. Based on the evidence presented no reasonable jury could come to the conclusion that the plaintiff's qualifications so outweighed those of the white male who got the job that it was more likely than not that discriminatory animus on the basis of race and gender clinched the job for him. Her qualifications were, indeed, superior to his in some areas, but his were also superior to hers in other areas. Hicks v. Johnson, #13-1741, 2014 U.S. App. Lexis 11664; 123 Fair Empl. Prac. Cas. (BNA) 473 (1st Cir.).

Retaliatory Personnel Action

     A former police officer claimed that he was not fired, as the department claimed, for working through lunch without requesting overtime, but rather in retaliation for testifying in a lawsuit brought by a fellow officer concerning a FLSA claim. His retaliation claim was not precluded by the police department's board of rights' recommendation that he be fired for insubordination fo not claiming overtime. The evidence in the case did not support the city's claim that the firing was based on the content of his testimony rather than the mere fact that he testified. The officer was awarded $50,000 in liquidated damages and $579,000 in attorneys' fees, and the appeals court affirmed this award. Avila v. LAPD, #12-55931, 2014 U.S. App. Lexis 13052, 22 Wage & Hour Cas. 2d (BNA) 1612 (9th Cir.).

     A forensic psychologist who worked as a consultant for the county public defender's office claimed that his hours were reduced and that he was later fired in retaliation for providing testimony about a state court judge, which he argued was constitutionally protected speech. Summary judgment for the defendant was vacated when a reasonable fact finder could find that the subjective motivation for the reduction in hours and a motivating factor in the subsequent termination had, in fact been the testimony. The defendant was entitled, however, to qualified immunity in his individual capacity where the evidence showed both unlawful and lawful motivations for the defendant's actions. Prevailing law did not require, under these facts, that the merits of the case had to be decided in the plaintiff's favor. Brannon v. Finklestein, #12-15988, 754 F.3d 1269 (11th Cir. 2014).

Untruthfulness and Resume Fraud - Lying to Superiors

     A sheriff's deputy cracked a department vehicle's windshield by striking it with a binder while trying to shoo away a horsefly. He initially reported that the cracked windshield was the result of it being struck by a rock, but he later admitted his responsibility after another deputy reported the truth. He was fired after an investigation for untruthfulness. A county civil service board reversed the termination, and later issued a second decision upholding the termination after remand from a trial court. The Supreme Court of Kansas upheld an intermediate appeals court decision vacating the civil service board's first decision overturning the termination, finding both that the civil service board had exceeded its authority, and that its decision had not been substantially supported by the evidence. Denning v. Johnson County Sheriff's Civil Serv. Bd., #104318, 2014 Kan. Lexis 421.

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     Excited Delirium: Excited Delirium and the Dual Response: Preventing In-Custody Deaths, by Brian Roach, Kelsey Echols, and Aaron Burnett, .FBI Law Enforcement Bulletin (Jul. 2014).

     Mental Illness: Encountering Mentally Ill People and Potential Liability under the ADA, by Michael J. Oh, Police Chief (Jul. 2014).

     Polygraphs: The Concealed Information Test: An Alternative to the Traditional Polygraph, by Blake McConnell and Timothy J. Weber, FBI Law Enforcement Bulletin (August, 2014).

     Pregnancy Discrimination: EEOC's New Pregnant Worker Guidelines: What Employers Need to Know, by Daniel Taylor, Fibdlaw, July 6, 2014.

     Pregnancy Discrimination: EEOC Guidelines on Pregnant Employees (2014).

Reference:

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