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Age Discrimination

     Employees of the Veterans Administration were not selected to fill patient aligned care team pharmacist positions, and were denied opportunities to train and qualify for those positions. They sued for employment discrimination, asserting claims for age discrimination, as well as gender discrimination. A federal appeals court upheld summary judgment for the employer, since the plaintiffs were not objectively qualified to perform the duties of the positions. They had no experience providing mid-level care with independent prescription authority. Trask v. Secretary, Dept. of VA, #15-11709, 2016 U.S. App. Lexis 6168 (11th Cir.).

Collective Bargaining -- In General

     A California county implemented a new policy that required technology employees represented by the Service Employees International Union, Local 721 to undergo and pass a background check. An employee's failure to pass the background check was cited as grounds for termination. The county and union negotiated over the effects of the policy, but failed to reach an agreement. The union declared an impasse, but the county turned down an offer to mediate. The union then submitted a request to the Public Employment Relations Board for fact-finding, a request the Board granted over the county's objection. The county went to court, arguing that the fact-finding provisions of the statute empowering the Board applied only to an impasse from negotiations for a new or successor contract, not to discrete constitutional violations. It also argued that the statute's fact-finding provision's violated its constitutional right to set employee compensation. An intermediate state appeals court rejected these arguments, finding that the fact-finding provisions applied to impasses that occur during negotiation over any bargainable matter, and the fact-finding provisions, since they did not divest a county or city of any final decision-making authority, were constitutional. Co. of Riverside v. Public Employment Relations Bd., #D069065, 2016 Cal. App. Lexis 244.

     A union representing 40,000 Illinois state employees negotiated a multi-year collective bargaining agreement providing for certain raise at intervals throughout the life of the contract. Because of declining state revenues and potential layoffs, the union and state agreed to $300 million in cost savings, including deferring one raise. After adoption of a final state budget, a state Department of Central Management notified agencies and labor relations administrators that wage increases could not be implement in 14 agencies because of insufficient appropriations. An arbitrator issued an award in favor of the union, based on the raises mandated in the collective bargaining agreement. The Illinois Supreme Court vacated the award, finding that it violated state public policy as reflected in the appropriations clause of the state Constitution and the state Public Labor Relations Act. The award was contrary to public policy and unenforceable because it ordered immediate payment without regard to the existence of appropriations. Illinois v. Am. Fed'n of State, County & Mun. Employees, Council 31, #118422, 2016 IL 118422, 2016 Ill. Lexis 279.

FLSA -- Overtime -- In General

     Employees of a private food processing plant who worked in certain department were required to wear protective gear. The employer compensated some, but not all, employees for donning and doffing the gear, and did not record the time each employee spent on these activities. Employees who were not compensated sued under both federal and state wage laws. A jury awarded approximately $2.9 million in overtime, based on a study by an industrial relations expert who videotaped observations of how long various donning and doffing activities took, and estimated an average of 8 minutes a day for two departments and 21.5 minutes for a third. The U.S. Supreme Court upheld the result and the methodology, holding that because a representative sample could be the only feasible way to establish liability, it could not be regarded as improper solely because the claim was brought as a class action. Had each class member brought an individual action, they could have relied on the study to establish liability. Tyson Foods, Inc. v. Bouaphakeo, #14-1146, 194 L. Ed. 2d 124, 2016 U.S. Lexis 2134.

FLSA -- Overtime -- Roll Call and Meal Periods

     Two investigators for a state Department of Child Services sued for alleged violations of the federal Fair Labor Standards Act, claiming that they were required to work through lunch and remain on call after their shifts, while only being paid for 40 hours per week. A federal appeals court upheld the dismissal of the claims based on Eleventh Amendment immunity, finding that Indiana had not expressly waived sovereign immunity. A state, to lose such immunity to a suit in federal court must explicitly waive sovereign immunity. Nunez v. Ind. Dep't of Child Servs., #15-2800, 2016 U.S. App. Lexis 6209 (7th Cir.).

Handicap/ Abilities Discrimination -- Accommodation -- In General

     A juvenile detention officer sued a county for disability discrimination as well as for retaliation in violation of federal and state disability discrimination statutes and the Family Medical Leave Act (FMLA). The county fired her because she could not meet the job requirement of lifting 40 pounds. The requirement was related, the employer maintained, to protecting juveniles from harming themselves or others. A federal appeals court upheld summary judgment for the employer. The plaintiff was not an otherwise qualified individual because she could not perform the essential functions of her job with or without reasonable accommodation. Because this was still the case at the end of her FMLA leave period, the county did not violate the FMLA by firing her after her leave expired. Scruggs v. Pulaski County, #15-1248, 2016 U.S. App. Lexis 5970 (8th Cir.).

Handicap/ Abilities Discrimination -- Light Duty

     An employee of a county sheriff's office was placed in a temporary light duty assignment as a result of disabilities suffered from a work related injury. The employer did not offer permanent light duty assignments, and she was ultimately terminated. A federal appeals court rejected a disability discrimination claim. The employer was not required to create a permanent light-duty job especially for the plaintiff. The plaintiff did not support her request for a reassignment with evidence that there was a specific full duty vacant position that she was qualified for. The court also rejected the plaintiff's retaliation claim, since the evidence was that she was fired solely because she was unable to return to full duty when her eligibility for light duty expired. Frazier-White v. Gee, #15-12119, 2016 U.S. App. Lexis 6318 (11th Cir.).

Pensions

     A provision of the Illinois state Constitution provides that "Membership in any pension or retirement system of the State, any unit of local government or school district, or any agency or instrumentality thereof, shall be an enforceable contractual relationship, the benefits of which shall not be diminished or impaired." The state legislature passed a law reducing certain pension benefits provided by four City of Chicago employee pension plans, based on the fact that contributions from employees and the city were inadequate to provide the promised benefits. The Illinois Supreme Court declared that law unconstitutional and unenforceable in violation of the state constitutional pension provision. Jones v. Mun. Employees' Annuity & Benefit Fund, #119618, 2016 IL 119618, 2016 Ill. Lexis 276.

Retirement Rights and Benefits

     A trial court should not have directed the Board of the Los Angeles Department of Fire and Police Pension Commissioners to set the maximum subsidy contributed by the city to retired firefighters and police officers insurance premiums without regard to later ordinances freezing the subsidy. The ordinances did not show that there was a legislative intent to create a vested right to a Board determination of the amount of the subsidy. The city council retained the final authority to control the amount of the subsidy. Fry v. City of L.A., #B259791, 245 Cal. App. 4th 539, 2016 Cal. App. Lexis 175.

     A retired police sergeant was issued a retired officer identification card with no expiration date upon his retirement in 2004. In 2011, he applied for a replacement card since his had broken. The city's police commissioner denied the request, stating that the plaintiff had not met the "standard set by the Department." The Massachusetts Supreme Judicial Court ruled that the plaintiff was entitled to receive a replacement ID card since the commissioner had abused his discretion in finding that he had not met the standard for the card. The plaintiff had been cleared of any wrongdoing in connection with the citizen complaint that was pending when he retired. Frawley v. Police Comm’r of Cambridge, #SJC-11903, 473 Mass. 716, 46 N.E.3d 504 (2016).

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     Law Enforcement Management: The Responsibilities of Command: Doing the Right Thing for the Right Reasons, by Cynthia L. Lewis, FBI Law Enforcement Bulletin (April 2016).

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