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Arbitration Procedures

     A union representing federal employees at an army depot and an arsenal filed grievances challenging the furloughing of bargaining unit employees for six discontinuous days as a result of an automatic process of federal agency spending known as sequestration. An arbitrator ruled that the furloughs of the employees at the army base were in accordance with the law, but that the furloughs of security employees at the arsenal were not, although the furloughs of non-security employees there were lawful. A federal appeals court upheld both rulings. There was substantial evidence that the arbitrator relied on that the upheld furloughs were reasonable management solutions to the budget limitations imposed by the sequester. Nat'l Fed'n of Fed. Employees v. Dep't of the Army, #14-3175, 2015 U.S. App. Lexis 18136 (Fed. Cir.).

Family, Medical, and Personal Leave

     An account technician working for a state correctional agency was fired based on a rule that authorized termination for those accumulating 12 unauthorized absences. Such absences were automatically expunged when an employee had a clean attendance record for 4 consecutive months. The employee's absences accrued over a seven year period. She claimed that three of the absences were protected by the Family and Medical Leave Act (FMLA), 29 U.S.C. Sec. 2601, as they were for family or medical care. A federal appeals court rejected a FMLA claim, and upheld the dismissal, because the lawsuit was time barred by a two year statute of limitations that began to run each time the employer denied the requests for leave and classified the absences as unauthorized, not at the time that she was fired years later as a result of her overall long term attendance record. Barrett v. Ill. Dep't of Corrs., #13-2833, 2015 U.S. App. Lexis 18144 (7th Cir.).

First Amendment Related

     A public employee union filed a lawsuit asserting a First Amendment challenge to an Alabama state statute that “prohibit[s] a state or local government employee from arranging by payroll deduction or otherwise the payment of any contribution to an organization that uses any portion of those contributions for political activity.” The union argued that the subjective motivations of state lawmakers in passing the law was to retaliate against the union for political speech on education policy. As part of pursuing this claim, the plaintiff union used subpoenas seeking the files of four state legislators. A federal appeals court reversed the trial court's refusal to quash the subpoenas. It noted that when a statute was facially constitutional, as this one was, a free speech challenge cannot be based on the subject motivation of the lawmakers, their purpose in passing the law. In re: Mike Hubbard, #13-10281, 2015 U.S. App. Lexis 17863 (11th Cir.).

Promotional Rights and Procedures

     A police officer was not selected for an open sergeant position. Two candidates with lower scores on the sergeant's examination for selected for appointment instead. He challenged the failure to appoint him on the basis of a Massachusetts state law providing that when a candidate for such a job appointed is other than the candidate who scores highest on the exam for the position, the appointment does not go into effect until the statement of reasons for the bypass are received by the administrator. He argued that the administrator may not delegate that function to the town's appointing authority. The highest court in Massachusetts ruled that the administrator could delegate the administrative task of receiving a statement of reasons, and that the trial judge erred in not carrying out his own review of whether the decision to bypass him was supported by substantial evidence, so further proceedings were required. Malloch v. Town of Hanover, #SJC-11713, 472 Mass. 783, 37 N.E.3d 1027 (2015).

     A town appointed three candidates to police sergeant positions who had lower scores on the examination than the plaintiff. The highest court in Massachusetts upheld the Civil Service Commission's dismissal of the plaintiff's appeal. The court found that there was substantial evidence to support a reasonable justification for the town's decision, and the evidence in the case did not support the argument that the town's procedure for selecting candidates departed from basic merit principles. The decision to bypass the plaintiff despite his higher examination score was supported by the overall low score the interview panel awarded him compared to the other candidates. Sherman v. Town of Randolph, #SJC-11711, 472 Mass. 802, 37 N.E.3d 1043 (2015).

Retaliatory Personnel Action

     When a woman from Saudi Arabia started to work at a county court, her clothing marked her as a Muslim. When she was assigned to child care duties, she was the only employee in that position who was an Arab or a Muslim. Her superior was an allegedly vocal Christian, and the employee filed internal complaints about his behavior, contending that he established a hostile working environment for her. Her superior said he was tired of her complaints and she was transferred to the court reporter's office, an assignment in which she wass allegedly treated badly and subjected to retaliation because she had filed EEOC complaints. She sued under Title VII and 42 U.S.C. Sec. 1983, asserting that her First and Fourteenth Amendment rights had been violated. A federal appeals court found that the plaintiff adequately stated a claim for a hostile work environment and that her superiors were not entitled to qualified immunity for their alleged actions of retaliation. The employee had engaged in protected conduct in complaining about alleged religious and national origin harassment. Her complaints about abusive conduct including screaming, prayer circles at work, social shaming, implied criticism of non-Christians expressed at work, and "uniquely bad treatment" of her were plausible. Huri v. Office of the Chief Judge, Cook County, #12-2217, 2015 U.S. App. Lexis 18296 (7th Cir.).

     A fire department employee told a co-worker that "he wanted to kill somebody, all of them," and also said that his children were going to "go over there" and "tune them up" in a context that made it apparent that he was talking about his superiors and co-workers. The fire chief investigated the statements and terminated the employee, and the Board of Fire and Police Commissioners voted to uphold the termination, largely on the basis of a co-worker's testimony that he had heard the troubling statements. A federal appeals court upheld the termination, noting that the Board's decision was made after a full and independent evidentiary hearing. It rejected the plaintiff's argued "cat's paw" theory of liability that discrimination and unlawful retaliation had taken place because the fire chief, an allegedly biased person lacking ultimate decision making powers deliberately uses the formal decision maker, in this case the Board, as a dupe to carry out a discriminatory action. But the Board, in this case, relied on the co-workers' testimony and that co-worker did not harbor any discriminatory animus. Woods v. City of Berwyn, #13-3766, 2015 U.S. App. Lexis 17913, 128 Fair Empl. Prac. Cas. (BNA) 129 (7th Cir.).

Retirement Rights and Benefits

     A city tried to terminate a retired employee's health plan coverage and require him to accept Medicare based on the adoption of an ordinance mandating that all retirees had to apply for Medicare when they reached the age of 65. The Louisiana Supreme Court ruled that the city could not do this as the plaintiff had a vested right under his contract with the city to continue to participate in the health plan and he retired before the effective date of the ordinance. His retirement benefits were a form of deferred compensation for the services he gave the city. Born v. City of Slidell, #2015-C-0136, 2015 La. Lexis 2184.

Search and Seizure

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

     A detective at a Veterans Administration medical center placed a hidden surveillance camera in the ceiling of an office at the center which female officers used as a changing area, capturing images of female officers dressing and undressing. A female officer learned that images of her changing were captured, and she sued the detective for unconstitutional search in violation of her Fourth Amendment rights. A federal appeals court upheld a ruling that the detective was not entitled to qualified immunity as the right of employees to be free from such unreasonable searches was clearly established. The court rejected the argument that the Civil Service Reform Act (CSRA) and the Federal Employees' Compensation Act (FECA) were the appropriate remedies instead for the plaintiff's claims, as FECA did not cover lawsuits against co-employees and the installation of the camera illegally was hard to characterize as an "injury by accident," or a "disease proximately caused by employment." The detective's actions were also not a "personnel action" covered by the CSRA. Gustafson v. Adkins, #15-1055, 2015 U.S. App. Lexis 17972 (7th Cir.).

Workers' Compensation -- In General

     A salaried peace officer who suffered injuries to his face and body in the line of duty argued that a state statute providing the maximum indemnity levels under workers' compensation to volunteer peace officers also applied to regularly sworn salaried officers. The California Supreme Court unanimously rejected this argument. The injured officer was entitled to workers' compensation, but not to the maximum indemnity levels of benefits provided to volunteer officers injured on the job. Larkin v. Workers’ Comp. Appeals Bd., #S216986, 2015 Cal. Lexis 8129.

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• Report non-working links here

     Employment Contracts: Employment Contracts & Separate Agreements for Chiefs, by John Collins, visual presentation at the IACP Legal Officers' Section, Chicago, Illinois (October, 2015).

     Employment Law: Employment Law Update, by Jody M. Litchford, presentation at the IACP Legal Officers' Section, Chicago, Illinois (October, 2015).

     Family and Medical Leave Act: The New Age of Dept. of Labor FMLA Audits, by Jenna Bedsole, visual presentation at the IACP Legal Officers' Section, Chicago, Illinois (October, 2015).

Reference:

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

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