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FLSA - Overtime in General

     A federal appeals court upheld a jury verdict for a city in an overtime lawsuit under the Fair Labor Standards Act (FLSA), 29 U.S.C. 207(a) brought by fifty-four fire suppression lieutenants. The city raised an affirmative defense under the executive exemption to the overtime provisions, and judgment as a matter of law for the plaintiffs was properly denied because a reasonable jury could find, based on the evidence, that each category of disciplinary suspensions and deductions was permissible as falling under either a workplace conduct rule or a safety rule of major significance. The plaintiffs' proposed instructions on wait time, which the trial court declined to give, was not an accurate statement of the law. Watkins v. Montgomery, Alabama, #13-11718, 2014 U.S. App. Lexis 24416 (11th Cir.).

     Michigan correctional officers had to perform several activities before and after their shifts, including punching a time clock, waiting in line for security, and walking to their assigned locations, but they were not paid for the time expended in doing these things. The officers and their union sued under the Fair Labor Standards Act (FLSA) and state law, seeking compensation. A federal appeals court upheld the dismissal of the lawsuit on sovereign immunity grounds. Absent a past of imminent future violation of the Fourteenth Amendment, Congress had no remedial power under Sec. 5 of the Fourteenth Amendment to abrogate the state's immunity from suit, so the federal courts lacked jurisdiction to address these claims against the Department of Corrections, a state agency. Once the federal claims were dismissed, the state law claims were dismissed without prejudice, and might be pursued in state court. Mich. Corrs. Org. v. Mich. Dep't of Corr., #14-1028, 2014 U.S. App. Lexis 23761, 2014 Fed App. 294P (6th Cir.)

E-Mail/Internet - Legal Issues

     In a case involving a private employer, the National Labor Relations Board (NLRB) ruled the employees, once granted access to company email systems, can use them to contact other employees for union organizing and other workplace-related purposes, provided that they do so on their own time, rather than during working hours, and do not hinder productivity or office discipline. Purple Communs., Inc., 2014 NLRB Lexis 952, 201 L.R.R.M. (BNA) 1929, 361 N.L.R.B. No. 126 (Dec. 11, 2014).

Handicap/ Abilities Discrimination - Accommodation in General

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

     A former emergency dispatcher for a city claimed that her ex-employer had refused to accommodate her disability of avascular necrosis (involving the death of bone tissue due to a lack of blood supply"), and that she was terminated for sing too much leave after her femur fractured while she was at work. A federal appeals court upheld summary judgment for the defendant city, as the plaintiff failed to present any medical evidence that avascular necrosis substantially limited any of her major life activities, such as walking, standing or lifting. The employee's own statements about how her condition limited her concerned matters beyond the realm of common experience and required the special skill and knowledge of an expert witness. Felkins v. City of Lakewood, #13-1415, 2014 U.S. App. Lexis 23981 (10th Cir.).

     A man had been a city employee for approximately 13 years. He claimed that his termination was disability discrimination based on his hearing impairment, as well as retaliatory for his having filed an EEOC complaint and requested accommodation of his hearing disability. Rejecting these arguments, a federal appeals court found that the evidence showed that he was actually fired for nonperformance of duty, including conducting and soliciting personal business at work, excessive personal phone calls, disparaging remarks and intimidation of coworkers through threats of violence. Curley v. City of North Las Vegas, #12-16228, 772 F.3d 629 (9th Cir. 2014).

Political Discrimination

     A sergeant employed by a county sheriff's department also served as the chairman of a law enforcement political action committee (PAC). The sheriff, up for reelection in a contested race, approached him while he was on duty and told him the PAC should support him. The sergeant replied that the sheriff would be treated just the same as any candidate and that the PAC's members would vote on whom to endorse. The sheriff allegedly told the sergeant that he would be transferred to jail duties if the PAC failed to support his reelection. The sheriff allegedly knew that the sergeant supported his opponent. The PAC did not endorse the sheriff, and three weeks later, the sheriff transferred the sergeant to a job at the jail that was "extremely less desirable" than his former duties, according to a lawsuit for political discrimination. He continued working at the jail for a year before being fired after disseminating a recording allegedly containing the sheriff's threat against another officer. The sheriff was not entitled to qualified immunity on the retaliatory transfer claim as the sergeant sufficiently alleged that he was demoted in violation of his First Amendment rights for failing to endorse the sheriff. The sheriff was entitled to qualified immunity on the claim that the sergeant was terminated due to protected activities as there were no details supporting an inference that the sergeant was involved in the recording that he was allegedly fired for disseminating, and therefore no causal connection between protected activities and the firing. Burnside v. Nueces Cnty., #13-41344, 2014 U.S. App. Lexis 23126 (5th Cir.).

Race Discrimination

     A white male employee of a state highway and transportation department claimed that his firing constituted race and sex discrimination. Rejecting these claims, the federal appeals court found sufficient evidence that the employer fired him for violations of its sexual harassment policy. The plaintiff failed to show that this was a pretext or that the defendants believed or should have known that the sexual harassment allegations were false. Moody v. Vozel, #13-3772, 771 F.3d 1093 (8th Cir. 2014).

Retaliatory Personnel Action

     A woman employed by a state corrections department as a substance abuse counselor for 19 years lost her job when her employer contracted out its counseling program to a private company. She claimed that the private company's decision not to hire her stemmed from an incident a year before when she and a coworker complained that their desks were being used after hours to have sex on. She claimed that she was told that it was "just" staff members, not inmates, having sex on the desks, and that she could simply wash down her desk. It later was discovered that her coworker and the Major in charge of custody were having an affair, which led to both of them being fired, but the Major quickly returning to work at the prison on a contract basis. When the coworker filed a sex discrimination lawsuit, the plaintiff supported her. She now claimed that the failure to hire her back once counseling was contracted out constituted sex discrimination, age discrimination, and unlawful retaliation. Upholding summary judgment for the defendant employer, the private company providing counseling at the prison, the federal appeals court found that the plaintiff was merely the "unfortunate victim" of a reduction in workforce, rather than retaliation or discrimination. Ripberger v. Corizon, Inc., #13-2070, 2014 U.S. App. Lexis 23186, 125 Fair Empl. Prac. Cas. (BNA) 760 (7th Cir.).

Retirement Benefits

     A Wisconsin county paid pensions to its retired employees that were calculated by multiplying their final salary by a percentage known as a multiplier and then multiplying the result by the employee's years of service. An ordinance passed in 2011 reduced the multiplier to 1.6 percent from 2 percent for all county service performed on or after its effective date. A county employee and her union claimed that this was a breach of contract because she had a vested right to have the higher multiplier applied to her post-2011 service, and that she did not consent to the reduction. The Wisconsin Supreme Court rejected these arguments, because the amended ordinance only applied to future service credits not yet earned, and any benefits already accrued were protected and not diminished. Suzanne Stoker v. Milwaukee County, #2012AP2466, 2014 WI 130, 2014 Wisc. Lexis 950.

Union and Associational Activity

     A union representing Los Angeles police officers sued to attempt to invalidate a departmental order limiting the individual discretion of officers as to when to impound cars driven by unlicensed drivers. The union believed that the order conflicted with state statutes, resulted in fewer such cars being impounded, and could lead to civil liability for its members for failing to carry out mandatory duties required by state statutes. Rejecting these arguments, an intermediate state appeals court found that the order was within the broad discretion of the police chief, did not conflict with state statutes, and did not create new law, but merely implemented the state statutes. The union had no standing to challenge it in court, and had not shown that it fell within the topics of hours, wages, and working conditions that constituted the scope of its representation. Los Angeles Police Protective League v. City of Los Angeles, #B251796, 2014 Cal. App. Lexis 1180.

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     Social Media: Social Media: Legal Challenges and Pitfalls for Law Enforcement Agencies, by Michael T. Pettry, FBI Law Enforcement Bulletin (December 2014).

     Terrorism: Increasing Terrorism Preparedness of Law Enforcement Agencies, by Jeremy W. Francis, FBI Law Enforcement Bulletin (December 2014).

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