AELE Seminars:
The Biometric, Psychological and
Legal Aspects of Lethal and Less Lethal Force
and the Management, Oversight, Monitoring, Investigation and Adjudication of
the Use of Force
April 3-6, 2017 - Orleans Hotel, Las
Vegas
Public Safety Discipline and Internal Investigations
Oct. 2-5, 2017– Orleans Hotel, Las Vegas
Click here for more information about all AELE Seminars
© Copyright, 2017 by A.E.L.E., Inc.
Contents may be downloaded, stored, printed or copied,
but may not be republished for commercial purposes
Search the Case Law Digest
ISSN 0164-6397
An employment law publication for
law enforcement,
corrections and the fire/EMT services
Cite this issue as:
2017 FP February
Click here to view information on the editor of this publication.
Access the multiyear Employment Law Case Digest
Return to the monthly publications menu
Report non-working links here
Some links are to PDF files - Adobe Reader™
can be used to view contents.
Disciplinary Interviews & Compelled Reports
Drug Testing
Fair Labor Standards Act: Overtime in General
First Amendment Related (2 cases)
Handicap/Abilities Discrimination – Accommodation In General
Injuries to Employees
Occupational Safety & Disease
Retirement Rights and Benefits (2 cases)
Report non-working links here
AELE Seminars:
The Biometric, Psychological and
Legal Aspects of Lethal and Less Lethal Force
and the Management, Oversight, Monitoring, Investigation and Adjudication of
the Use of Force
April 3-6, 2017 - Orleans Hotel, Las
Vegas
Public Safety Discipline and Internal Investigations
Oct. 2-5, 2017– Orleans Hotel, Las Vegas
Click here for more information about all AELE Seminars
Some of the case digests
do not have a link to the full opinion.
• Most Federal District Court opinions can be accessed via PACER. Registration is
required; nominal fees
• BNA arbitration awards can be obtained for a fee, from BNA Plus
Disciplinary Interviews & Compelled Reports
****Editor's Case Alert****
A police officer employed by one city applied for a job in another city’s department. During the hiring process, he disclosed that he had kept a knife he obtained during his employment with the first department. He was conditionally offered a job by the second city, but first required to report his acquisition of the knife and return it to the first department. He did so, and was ordered by the police chief to submit a written report concerning the knife, which he complied with by submitting a “vague” one sentence report. An internal investigation was opened and he was ordered to provide a more detailed statement.
Based on this second statement and other evidence uncovered as a result of it, the chief had the Kansas Bureau of Investigation open a criminal investigation. This caused the second department to withdraw its job offer. The officer faced two state law felony charges, but they were dismissed for lack of probable cause. He sued, claiming that his constitutional rights were violated because his compelled statements were used:
(1) to start an investigation leading to the discovery of additional evidence concerning the knife;
(2) to initiate a criminal investigation;
(3) to bring criminal charges;
and (4) to support the prosecution during the probable cause hearing.
He argued that these uses of compelled statements violated his right against self-incrimination. For alleged Fifth Amendment violations he sued both cities and four officers. The federal appeals court held that the Fifth Amendment is violated when criminal defendants are compelled to incriminate themselves and the incriminating statement is used in a probable cause hearing, but that the individual officers were entitled to qualified immunity. The second city did not compel Vogt to incriminate himself, but he stated a plausible claim for relief against the first city. Vogt v. City of Hays, #15-3266, 2017 U.S. App. Lexis 102 (10th Cir.).
Drug Testing
A police department’s use of a hair drug test with a disparate impact on black officer’s was proper, as the test was accurate in the vast majority of cases, even if not 100 percent reliable. Use of the test was consistent with the important business need for a drug-abstaining police. However, a disputed material dispute of fact barred summary judgment for the defendant city. The officers presented sufficient evidence of an alternative test using the hair drug test in addition to a urinalysis regimen for those who tested positive under the hair drug test, but factual issues remained concerning whether the department, by continuing to administer the challenged hair test, necessarily refused to adopt the alternative made available to it. Jones v. City of Boston, #15-2015, 2016 U.S. App. Lexis 23354 (1st Cir.)..
Fair Labor Standards Act: Overtime in General
The Kansas Bureau of Investigation’s (KBI) official overtime policy provides one-and-a-half times the normal hourly rate for hours worked in excess of eighty hours in a two-week period. A former KBI agent claimed that the employer applied pressure on employees to work overtime hours without claiming overtime in violation of state and federal laws. He also argued that he was unlawfully fired in retaliation for complaining about this. The Kansas Supreme Court found the complaint about unpaid overtime sufficient to preclude summary judgment on whether the plaintiff engaged in protected activity. The court stated that state law recognizes retaliatory discharge as a cause of action when an employee is fired for asserting rights under the Fair Labor Standards Act or the Kansas Minimum Wage and Maximum Hours Law. Further proceedings were ordered on the employee’s claim. Lumry v. State, #108425, 2016 Kan. Lexis 604
First Amendment Related
The president of a union local representing jail employees received complaints that jail staff members felt intimidated by management’s tactics during an investigation into alleged misconduct at the jail. He worked with a sergeant (the subject of the investigation) to draft a memo to inform staff members of their rights. It stated, in part, “I am in no way advising you not to cooperate with management, just advising you of your rights. It is your responsibility to ask for the representation.” The day after the memo was posted, the sheriff summoned the union president to ask him who wrote it. He also allegedly told him: “I can have you prosecuted for interfering with an ongoing investigation.” The sergeant was terminated based on video footage showing officers playing cards, damaging jail property, conducting outside business, not monitoring security cameras, and other violations of department policy at a time when the sergeant was their supervisor. The union president was also subsequently fired over alleged sexual misconduct with a female inmate. Upholding rejection of the two plaintiffs’ First Amendment retaliation claim, a federal appeals court held that whether or not the memo was protected speech on matters of public concern, the plaintiffs’ interest in free speech were outweighed by the defendants’ interest in getting compliance from correctional officers during the investigation. The sheriff and the department could reasonably have believed that the memo could disrupt legitimate law enforcement interests at the jail. The memo encouraged officers not to cooperate with the investigation and to ignore their superiors' confidentiality orders. Gillis v. Miller, #16-1249, 2017 U.S. App. Lexis 271 2017 Fed. App. 0002P (6th Cir.).
A city fired the administrative secretary of its police department. She sued, claiming that her termination was retaliation for her having voluntarily provided an affidavit in support of a former police officer's wrongful-termination claim against the department. The trial court found that the city’s interest as a public employer outweighed the plaintiff’s interest in her speech regarding the former employee’s claim. Individual defendants were also entitled to qualified immunity. Helget v. City of Hays, #15-3093, 844 F.3d 1216 (10th Cir. 2017).
Handicap/Abilities Discrimination – Accommodation In General
An employee of the Tennessee Valley Authority (TVA) working as a plant officer had maintained the medical clearance such employees were required to have. In 2013, the TVA started requiring a pulmonary function test for clearance, and he failed it and was fired because he had chronic obstructive pulmonary disorder. He sued for disability discrimination and Failure to reasonably accommodate under the Americans with Disabilities Act and the Rehabilitation Act. The TVA argued that Title VII’s national-security exemption applies to the Rehabilitation Act and precluded the court from reviewing the physical-fitness requirements imposed by the Nuclear Regulatory Commission in the interests of national security or reviewing the TVA’s determination that the employee lacked the physical capacity to fulfill his job duties because this decision was one of national security. A federal appeals court rejected these arguments, and rejected the TVA’s appeal of the denial of its motion to dismiss. Hale v. Johnson, #16-5475, 2016 U.S. App. Lexis 23369, 2016 Fed. App. 302P (6th Cir.).
Injuries to Employees
A sheriff’s deputy was seriously injured during a training exercise conducted at a U.S. Navy military base. The injury occurred when she jumped from the training structure onto a set of mats and landed in a gap between them. She sued the federal government under the Federal Tort Claims Act (FTCA), 28 U.S.C. 2671 et seq., claiming that Navy officers negligently allowed the structure to remain in a dangerous condition and failed to warn her of the dangerous gap between the mats. A federal appeals court ruled that the challenged Navy actions or inactions fell within the FTCA’s “discretionary function exception” and therefore that Congress had not waived sovereign immunity for plaintiff's claim. Dismissal of the lawsuit was upheld as the Navy’s decisions regarding the maintenance of its military bases for use by civilian law enforcement involved policy judgments that Congress sought to shield from tort liability under the FTCA. Wood v. United States, #15-2106, 2017 U.S. App. Lexis 106 (4th Cir.).
Occupational Safety & Disease
A firefighter successfully obtained an occupational disease disability pension under an Illinois state statute by showing that he was a firefighter with five or more years of service who was unable to perform his duties due to heart disease resulting from his service as a firefighter. The city paid his health insurance premiums through February 2008, as required by an ordinance, and the plaintiff sought continuing health insurance benefits under Section 10 of the Illinois Benefits Act, which provides premium-free health insurance benefits for a public safety employee, his spouse, and dependent children, when the employee is catastrophically injured or killed in the line of duty under specified circumstances, 820 ILCS 320/10. The city argued that receipt of an occupational disease disability pension did not establish that plaintiff suffered a catastrophic injury. Agreeing, the Illinois Supreme Court held that a Section 10(a) “catastrophic injury” is synonymous with an injury resulting in a Section 4-110 line-of-duty disability pension. In this case, the court concluded that “catastrophic injury” is not synonymous with an injury resulting in an occupational disease disability pension. Bremer v. City of Rockford, #119889, 2016 IL 119889, 2016 Ill. Lexis 1518.
Retirement Rights and Benefits
California firefighters and the union representing them sued the California Public Employees’ Retirement System (CalPERS) to continue to allow eligible public employees to purchase at cost up to five years of non-qualifying service credit (airtime) to increase pension benefits paid in retirement, by increasing their service credit. A state statute eliminated this right as of January 1, 2013. The plaintiffs argued that this violated the contracts clause of the state constitution. An intermediate state appeals court rejected this claim. The changes in the statute governing airtime service credit were wholly reasonable and carried “some material relation to the theory of a pension system and its successful operation.” The plaintiffs were entitled only to a “reasonable” pension, not one providing fixed or definite benefits immune from modification or elimination by the governing body, and did not show that elimination of their right to purchase airtime credit cost them their right to a reasonable pension. Cal Fire Local 2881 v. California Public Employees' Retirement System, #A142793, 2016 Cal. App. Lexis 1151.
A County Correctional Officers Association (CCOA) appealed a judgment in favor of a county in a dispute over pensions payments, specifically, cost-of-living adjustments (COLAs), for its members. Under the California Public Employees’ Pension Reform Act of 2013 (PEPRA), limits on any government contributions to pensions take effect after 2018. After the county reduced the COLA contributions it had been making, CCOA contended, in effect, that PEPRA shielded its members from any such reductions until 2018. Rejecting this argument, an intermediate state appeals court said that "PEPRA was intended to rein in what was perceived by the Legislature to be overly generous retirement packages for public employees, but delayed the effective date of some provisions to ease the transition and allow some changes to be negotiated gradually. It was not designed to shield compensation packages that were already subject to reduction under prior laws, specifically” a 1937 statute, the County Employees Retirement Law (CERL) under which a county had the power to change the cost-of-living adjustment (COLA) before 2012. San Joaquin County Correctional etc. v. County of San Joaquin, #CO79413, 2016 Cal, App. Lexis 1111.
• Contents menu.
• Report non-working links here
Labor Relations: Police Union Contracts, by Stephen Rushin, Duke Law Journal (2016) (abstract).
Police Reform: Importance of State Law in Police Reform, by Roger L. Goldman, Saint Louis University Law Journal, Vol. 60, No. 363, 2016.
Reference:
- Abbreviations of laws, law reports and agencies used in our publications.
- AELE’s list of employment law resources
Report non-working links here
Racial Discrimination – See also, Drug Testing
Retaliatory Personnel Action – See also, Fair Labor Standards Act: Overtime in General
Retaliatory Personnel Action – See also, First Amendment Related (both cases)
AELE Seminars:
The
Biometric, Psychological and Legal Aspects of Lethal and Less Lethal Force
and the Management, Oversight, Monitoring, Investigation and Adjudication of
the Use of Force
April 3-6, 2017 - Orleans Hotel, Las
Vegas
Public Safety Discipline and Internal Investigations
Oct. 2-5, 2017– Orleans Hotel, Las Vegas
Click here for more information about all AELE Seminars
Return to the Contents menu.
Return to the monthly
publications menu
Access the multiyear Employment Law Case Digest
List of links to court websites
Report non-working links here.
© Copyright 2017 by A.E.L.E.,
Inc.
Contents may be downloaded, stored, printed or copied,
but may not be republished for commercial purposes.
Library
of Employment Law Case Summaries