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Bill of Rights Laws

     A California Firefighters Procedural Bill of Rights Act, Gov. Code section 3250 et seq. gives a firefight the right to review and respond to any negative comment entered in their personnel file "or any other file used for any personnel purposes by the employer." The California Supreme Court ruled that this right did not apply to negative comments written in a supervisor's daily log, which amounted to notes on the supervisor's thoughts and observations concerning the employee which the supervisor could use as a memory aid while preparing performance plans and review. This was because the log was not shared with or available to anyone else other than the supervisor who wrote it. These comments would only adversely affect the plaintiff employee if and when they were placed in a personnel file, at which time there would be a right to respond to them. Poole v. Orange County Fire Authority, #S215300, 61 Cal. 4th 1378, 354 P.3d 346, 191 Cal. Rptr. 3d 551 (2015).

Disability Rights and Benefits - Other Issues

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

     A woman employed by the California state Department of Justice as a Special Agent Supervisor received industrial disability retirement for a spinal condition because of on-the-job injuries. Subsequently, the Board of Administration of the California Public Employees' Retirement System, based on an orthopedic evaluation, determined that she was no longer incapacitated and was eligible for reinstatement. The former employer offered to employ her again on the condition that she complete medical and psychological evaluations and a background evaluation. She rejected this offer. An intermediate California appeals court ruled that the former employer had a mandatory duty under state law to reinstate the employee following disability retirement once the Board determined that she was no longer incapacitated, and could not require her to comply with conditions prior to reinstatement. CA DOJ v. CalPERS, #B257492, 2015 Cal. App. Lexis 1011.

Discovery, Publicity and Media Rights

     A union representing county sheriffs deputies sought to enjoin a newspaper from publishing newspaper articles about the sheriff's department's hiring of officers who used to work for the county's Office of Public Safety. The union claimed that the newspaper had information and documents from the job applications and background checks of the deputies, including accusations about past acts of misconduct. An intermediate California appeals court granted the newspaper's anti-SLAPP (strategic lawsuit against public participation) motion, because the public possessed a strong interest in learning about the conduct and qualifications of the deputies. There is a strong constitutional prohibition against prior restraint of publication under the First Amendment, and the injunction sought was not content neutral. The complaint seeking the injunction was stricken. Assn. for LA Deputy Sheriffs v. LA Times, #B253083, 239 Cal. App. 4th 808, 191 Cal. Rptr. 3d 564 (2015).

Fair Labor Standards Act - Overtime - Roll Call and Meal Periods

     A corrections officer at a county prison sought to bring a class action claiming that the county failed to pay her and other similarly situated officers for overtime in violation of the Fair Labor Standards Act (FLSA). She claimed that a portion of officers' meal periods was compensable under the statute. A federal appeals court found that there was no provision of the statute that directly addressed this issue. Other federal appeals courts adopted one of two approaches--the first of which, adopted by two federal circuits, looked at whether or not employees had been relieved of all duties during mealtimes, and the other, more widely adopted, looked to the party which received the "predominant benefit" of the mealtime. The Third Circuit adopted the later test and upheld the trial court's determination that the officers received the predominant benefit of the meal periods and therefore the meal periods were not compensable. Babcock v. Butler County, #14-1467, 2015 U.S. App. Lexis 20393 (3rd Cir.).

Genetic Privacy and Testing

      The plaintiff presented no real evidence that a fire department requested, required, or purchased his genetic information, or discriminated against him on the basis of genetic information in violation of the federal Genetic Information Nondiscrimination Act (GINA), 42 U.S.C. 2000ff-1. The trial court did not erroneously conclude that the employer's actions in placing him in administrative duty assignments were motivated by his refusal to take a stress test, and not in unlawful retaliation for his opposition to practices prohibited by GINA. The motivation was ensuring compliance with the department's Wellness Program and furthering its goals, and was also not motivated by national origin discrimination. Summary judgment in favor of the employer was upheld. Ortiz v. City of San Antonio Fire Dept. #15-50341 2015 U.S. App. Lexis 20014 (4th Cir.).

Race/National Origin Discrimination

     Former employees of a Federal Emergency Management Agency (FEMA) service center in Puerto Rico failed to prove that the employer engaged in national origin discrimination or unlawful retaliation by implementing a rotational staffing plan at the facility and eventually closing it. These changes were job-related and consistent with business necessity and were not adopted to retaliate for any protected activity engaged in by the employees, since over 14 months elapsed between employee complaints about pay and the implementation of the rotational staffing system.. The plaintiffs also failed to show that FEMA had alternatives available that would have both served its legitimate needs and would have had less disparate impact. The facility needed extensive and expensive repairs and the remainder of the system could absorb this facility's workload. Abril-Rivera v. Johnson Docket: 14-1316 2015 U.S. App. Lexis 19908 (1st Cir.).

Retaliatory Personnel Action

     A white employee of the county sheriff's office claimed that he was fired in retaliation for testifying in favor of race discrimination complaints by African-American officers. The employer argued that he was actually fired for taking money from a detainee's wallet. A federal appeals court upheld summary judgment for the employer. While alleged evidence of harassment after the testimony "says something" about the context in which the investigation of the alleged theft started, it did not, without further evidence, support the conclusion that the firing was retaliatory, and no reasonable jury could find that the investigation constituted a pretext to fire the plaintiff in retaliation for his testimony. Harden v. Marion Cnty. Sheriff's Dept. #14-1713, 799 F.3d 857 (7th Cir. 2015).

     An occasional employees of the Federal Emergency Management Agency (FEMA), which is an agency of of the Department of Homeland Security (DHS), filed an administrative claim of race, age, and sex discrimination with the DHS, based on Title VII. In a subsequent lawsuit, the trial court granted the employer's motion for judgment on the pleadings on an unlawful retaliation claim based on the failure to exhaust available administrative remedies because she did not amend her original administrative complaint to add the retaliation claim. A federal appeals court reversed the dismissal of the claim, finding that it was the EEOC's fault that the retaliation claim did not become part of the original case, as the EEOC's Office of Field Operations failed to consolidate her separate retaliation claim with the original complaint. Moreland v. Johnson, #15-1291, 2015 U.S. App. Lexis 20505 (7th Cir.).

     An employee of a public housing authority offered her resignation, but before her employment had ended, she testified against the employer's Executive Director, asserting claims of sexual harassment. She then tried to rescind her resignation, but the Executive Director rejected this. Overturning a trial court's summary judgment for the employer on an unlawful retaliation claim, a federal appeals court found that rejecting the rescission of the resignation could constitute an adverse employment action, and there was a substantial conflict of evidence as to whether the employer would have rejected the resignation rescission "but for" the testimony regarding sexual harassment. Porter v. Houma Terrebonne Hous. Auth. Docket: 14-31090 2015 U.S. App. Lexis 19938 (5th Cir.).

Search and Seizure

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

     A number of police officers claimed that two other officers violated their Fourth and Fourteenth Amendment rights when they complied with a court order to obtain DNA samples from them to exclude them as possible contributors of DNA at a crime scene. The samples were of saliva, obtained by use ol a mouth swab. A federal appeals court ruled that the court order in question satisfied the Warrant Clause of the Fourth Amendment, and that no undue intrusion occurred as the use of buccal swabs was brief and minimal, intrusions that involve almost no risk, trauma, or pain. As to a reasonable expectation of privacy, it was reasonable to require officers to produce such samples to to demonstrate that DNA left at a crime scene was not theirs and was not the result of inadvertent contamination of the crime scene by on-duty officers. Bill v. Brewer, #13-15844, 799 F.3d 1295 (9th Cir. 2015).

• Contents menu.

• Report non-working links here

     First Amendment: Employee First Amendment – A Case Study, by Karen Kruger, visual presentation at the IACP Legal Officers' Section, Chicago, Illinois (October, 2015).

     Law Enforcement Leadership: Human Factors in Law Enforcement Leadership, by Darius H. Bone, Anthony H. Normore, and Mitch Javidi, FBI Law Enforcement Bulletin (December 2015).

     Police Chaplains: Police Chaplains: An Integral Part of Law Enforcement, by Jack L. Rinchich, FBI Law Enforcement Bulletin (December 2015).

Reference:

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

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