International Association of Chiefs of Police
www.theiacp.org
Legal Officers Section Annual Conference
Jody.Litchford@ci.orlando.fl.us
Chief Assistant City Attorney
October, 2002
Return to List of Conference Papers
TITLE VII
Title VII of the Civil Rights Act of 1964 (Title VII), which prohibits employment discrimination based on race, color, religion, sex, or national origin. The Age Discrimination in Employment Act of 1967 (ADEA), which protects individuals who are 40 years of age or older.
Under Title VII and the ADEA, it is illegal to discriminate in any aspect of employment, including:
hiring and firing;
compensation, assignment, or classification of employees;
transfer, promotion, layoff, or recall;
job advertisements;
recruitment;
testing;
use of company facilities;
training and apprenticeship programs;
fringe benefits;
pay, retirement plans, and disability leave; or
other terms and conditions of employment.
Other Discriminatory practices:
harassment on the basis of race, color, religion, sex, national origin, disability, or age;
retaliation against an individual for filing a charge of discrimination, participating in an investigation, or opposing discriminatory practices;
employment decisions based on stereotypes or assumptions about the abilities, traits, or performance of individuals of a certain sex, race, age, religion, or ethnic group; and
denying employment opportunities to a person because of marriage to, or association with, an individual of a particular race, religion, or national origin. Title II also prohibits discrimination because of participation in schools or places of worship associated with a particular racial, ethnic, or religious group.
Title VII's broad prohibitions against sex discrimination specifically cover:
Sexual Harassment - This includes practices ranging from direct requests for sexual favors to workplace conditions that create a hostile environment for persons of either gender, including same sex harassment. (The "hostile environment" standard also applies to harassment on the bases of race, color, national origin, religion, age, and disability.)
Pregnancy Based Discrimination - Pregnancy, childbirth, and related medical conditions must be treated in the same way as other temporary illnesses or conditions.
National Railroad Passenger Corp. v. Morgan, 122 S.Ct. 2061 (2002) - A Title VII claim of discrete discriminatory or retaliatory act must be filed within the appropriate 180 or 300-day period, but a claim of hostile work environment will not be time barred if one relevant act falls within the filing period.
Campos v. City of Blue Springs, Missouri, 289 F.3d 5446 (8th Cir. 2002) Plaintiff resigned from her position as a crisis counselor with the Blue Springs Police Departments Youth Outreach Unit after being treated poorly by her supervisor who made verbal statements that she wanted a Christian in the job. Plaintiff awarded $79,20 plus $90,500 in fees and $11,800 in costs.
Duffy v. McPhillips, 276 F.3d 988 (8th Cir. 2002) Minor shifts in work responsibilities of Deputy Chief Probation Officer did not constitute actionable adverse action. [N]ot everything that makes an employee unhappy is an actionable adverse action.
Spain v. City of Winston-Salem, 199 F.Supp.2d 354 (M.D.N.C. 2002) Three internal affairs investigations against Plaintiff, pending at the time of her resignation, amount neither to adverse employment actions sufficient to establish sexual discrimination nor to constructive discharge.
MacLean v. City of St. Petersburg, 194 F.Supp.2d 1290 (M.D. Fla. 2002) - Initial denial of overtime pay (subsequently granted) and refusal to allow employee to withdraw resignation did not constitute adverse employment action for purpose of Title VII case. Additionally addressed First Amendment claims holding that testimony adverse to City in police officers pension case not public speech.
Hilt-Dyson v. City of Chicago, 282 F.3d 456 (7th Cir. 2002) Male lieutenants touching of female officers back and shoulder on two occasions and a negative evaluation of her uniform during a routine uniform inspection did not constitute either sexual harassment nor adverse employment action. Taken separately or together, incidents were not severe or pervasive.
Longstreet v. Illinois Department of Corrections, 276 F.3d 379 (7th Cir. 2002) Plaintiff sought damages from her employer based on two acts of crude behavior by co-workers, at least one of whom had been previously disciplined for harassment. The Court found that simply the failure of previous discipline to deter future acts is not a basis for liability. Moreover, the Court held that negative performance evaluations and being required to substantiate her illness-related absences did not constitute adverse employment action.
Durkin v. City of Chicago, 199 F.Supp.2d 836 (N.D.Ill. 2002) A single incident of indecent exposure by a classmate occurring at the training academy was not sufficient to constitute sexual harassment of a female police trainee.
Griffin v. City of Opa-Locka, 261 F.3d 1295 (11th Cir. 2001) - Citys tolerance of gross sexual harassment, its failure to take remedial action despite actual and constructive knowledge of the problem and lack of any sexual harassment policy or complaint procedure constitute policy or custom of ignoring or tolerating sexual harassment sufficient to subject it to liability under s. 1983 (upholding $500,000 award).
Walton v. Johnson & Johnson Services, Inc., 203 F.Supp.2d 1312, 2002 U.S. Dist. Lexis 9741, 89 FEP Cases (BNA) 55 (M.D. Fla. 2002) - Existence of sexual harassment policy defining and prohibiting harassment, including identification of alternatives to reporting misconduct that involves supervisors, along with evidence that an annual letter regarding sexual harassment in the workplace, sent to all employees, sufficient to establish Ellerth/Faragher defense, relieving employer of liability.
Samedi v. Miami-Dade County, 206 F.Supp.2d 1213, 2002 U.S. Dist. Lexis 16333 (S.D. Fla. 2002) - County, which provides sexual harassment training to supervisors, posts its policy with complaint procedure on a public bulleting board and has a separate department to receive and investigate complaints established Ellerth/Faragher defense (notwithstanding Plaintiffs allegations that she had never seen policy and that English was not her primary language and the policy was not posted in foreign languages).
Escalante v. IBP Inc., 199 F.Supp.2d 1093 (D. Kan. 2002) - Employer failed to establish Ellerth/Faragher defense where policy provided only one person to report discrimination claims to, that person was located in another state, was only accessible by telephone number (and the policy did not state the hours or days of availability) and the policy did not address any mechanism for supervisors to report complaints by employees.
Spina v. Forest Preserve District of Cook County, 207 F.Supp.2d 764 (N.D.Ill. 2002) Plaintiff, a police officer for the Forest Preserve District, was assigned as the first female in a particular area. She alleged that she was subject to numerous acts of harassment. The court found that the defendants failed to have in place procedures for preventing and addressing sexual harassment and failed to take appropriate measures to remedy the harassment once it was brought to its attention and directed a verdict in Plaintiffs favor (upheld on appeal with a remittitur of the $3 million jury verdict to $300,000).
Millbrook v. IBP, Inc., No. 01-1189, 280 F.3d 1169, 2002 U.S. App. Lexis 2597, 88 FEP Cases (BNA) 297 (7th Cir. 2002) Reversed jury finding of racial discrimination in promotion, adopting standards followed by the 2d, 10th, 11th and D.C. circuits, finding that [h]iring decisions are often difficult and sometimes require companies to make close calls, but those decisions are for the employer to makenot the court and not the juryunless there is evidence of illegal discrimination. Whether the employers decision was the correct one, or the fair one, or the best one is not a question within the jurys province to decide.
Cotter v. City of Boston, 193 F.Supp.2d 323 (D. Mass. 2002) Court upheld race-based selection criteria in promotional process for rank of sergeant. Applying a strict scrutiny analysis, the Court held that a desire for diversity to assist in operational objectives did not constitute a compelling interest, but that in this case, the department was able to justify its promotional decisions based on a compelling interest in remedying past discrimination.
Reynolds v. City of Chicago, 296 F.3d 524 (7th Cir. 2002) Upheld the affirmative-action promotions of black and female officers to the ranks of lieutenant and captain based on remedying past discrimination. Also upheld the affirmative-action promotion of one Hispanic officer based on nonremedial operational justifications.
Cloud v. Chicago, No. #88 CV 3773, 2002 U.S. Dist. Lexis 9817 2002 WL 1160930 (N.D. Ill. 2002) - $2.3 million award to nine white firefighters passed over for promotion because of Citys race norming by using a formula to boost the scores of minority test takers. Previous jury award of $2.2 million to ten white firefighters with similar complaints.
Grutter v. Bollinger, 288 F.3d 732 (6th Cir. 2002) Upheld state university law schools use of race and ethnicity in admissions process, holding the objective of achieving a diverse student body to constitute a compelling state interest.
Jerelds v. City of Orlando, 194 F. Supp.2d 1305 (M.D. Fla. 2002) - African-American firefighters who brought unsuccessful discrimination suit against City ordered to pay over $250,000 in attorneys fees.
Stinnett v. Iron Works Gym/Executive Health Spa, 301 F.3d 610 (7th Cir. 2002) Male employee of Defendants allegation of sexual harassment failed based on his inability to prove that defendant had 15 or more employees for each day in 20 or more weeks of the current or preceding year. The task of proving the number of employees was insurmountable because, as the court noted, the Executive Health Spa was a house of prostitution and criminal enterprises rarely keep accurate personnel or payroll records. Summary judgment granted to defendants affirmed by court of appeals.
THE AMERICANS WITH DISABILITIES ACT
Excerpts from DOJ Guidance
A qualified individual with a disability is a person who meets legitimate skill, experience, education, or other requirements of an employment position that s/he holds or seeks, and who can perform the essential functions of the position with or without reasonable accommodation. Requiring the ability to perform "essential" functions assures that an individual with a disability will not be considered unqualified simply because of inability to perform marginal or incidental job functions. If the individual is qualified to perform essential job functions except for limitations caused by a disability, the employer must consider whether the individual could perform these functions with a reasonable accommodation. If a written job description has been prepared in advance of advertising or interviewing applicants for a job, this will be considered as evidence, although not conclusive evidence, of the essential functions of the job.
The ADA prohibits discrimination in all employment practices, including job application procedures, hiring, firing, advancement, compensation, training, and other terms, conditions, and privileges of employment. It applies to recruitment, advertising, tenure, layoff, leave, fringe benefits, and all other employment-related activities.
Employment discrimination is prohibited against
"qualified individuals with disabilities." This includes applicants
for employment and employees. An individual is considered to have a
"disability" if s/he has a physical or mental impairment that
substantially limits one or more major life activities, has a record of such an
impairment, or is regarded as having such an impairment. Persons discriminated
against because they have a known association or relationship with an
individual with a disability also are protected.
The first part of the definition makes clear that the ADA applies to persons
who have impairments and that these must substantially limit major life
activities such as seeing, hearing, speaking, walking, breathing, performing
manual tasks, learning, caring for oneself, and working. An individual with
epilepsy, paralysis, HIV infection, AIDS, a substantial hearing or visual
impairment, mental retardation, or a specific learning disability is covered,
but an individual with a minor, nonchronic condition of short duration, such as
a sprain, broken limb, or the flu, generally would not be covered.
The second part of the definition protecting individuals with a record of a
disability would cover, for example, a person who has recovered from cancer or
mental illness.
The third part of the definition protects individuals who are regarded as
having a substantially limiting impairment, even though they may not have such
an impairment. For example, this provision would protect a qualified individual
with a severe facial disfigurement from being denied employment because an
employer feared the "negative reactions" of customers or co-workers.
Title I of the Americans with Disabilities Act of 1990 (the "ADA") requires an employer to provide reasonable accommodation to qualified individuals with disabilities who are employees or applicants for employment, unless to do so would cause undue hardship. "In general, an accommodation is any change in the work environment or in the way things are customarily done that enables an individual with a disability to enjoy equal employment opportunities." There are three categories of "reasonable accommodations":
"(i) modifications or adjustments to a job application process that enable a qualified applicant with a disability to be considered for the position such qualified applicant desires; or
(ii) modifications or adjustments to the work environment, or to the manner or circumstances under which the position held or desired is customarily performed, that enable a qualified individual with a disability to perform the essential functions of that position; or
(iii) modifications or adjustments that enable a covered entity's employee with a disability to enjoy equal benefits and privileges of employment as are enjoyed by its other similarly situated employees without disabilities."
The duty to provide reasonable accommodation is a fundamental statutory requirement because of the nature of discrimination faced by individuals with disabilities. Although many individuals with disabilities can apply for and perform jobs without any reasonable accommodations, there are workplace barriers that keep others from performing jobs which they could do with some form of accommodation. These barriers may be physical obstacles (such as inaccessible facilities or equipment), or they may be procedures or rules (such as rules concerning when work is performed, when breaks are taken, or how essential or marginal functions are performed). Reasonable accommodation removes workplace barriers for individuals with disabilities.
Reasonable accommodation is available to qualified applicants and employees with disabilities. Reasonable accommodations must be provided to qualified employees regardless of whether they work part-time or full-time, or are considered "probationary." Generally, the individual with a disability must inform the employer that an accommodation is needed.
There are a number of possible reasonable accommodations that an employer may have to provide in connection with modifications to the work environment or adjustments in how and when a job is performed. These include:
making existing facilities accessible;
job restructuring;
part-time or modified work schedules;
acquiring or modifying equipment;
changing tests, training materials, or policies;
providing qualified readers or interpreters; and
reassignment to a vacant position.
There are several modifications or adjustments that are not considered forms of reasonable accommodation. An employer does not have to eliminate an essential function, i.e., a fundamental duty of the position. This is because a person with a disability who is unable to perform the essential functions, with or without reasonable accommodation, is not a "qualified" individual with a disability within the meaning of the ADA. Nor is an employer required to lower production standards -- whether qualitative or quantitative -- that are applied uniformly to employees with and without disabilities. However, an employer may have to provide reasonable accommodation to enable an employee with a disability to meet the production standard. While an employer is not required to eliminate an essential function or lower a production standard, it may do so if it wishes.
An employer may not ask or require a job applicant to take a
medical examination before making a job offer. It cannot make any
pre-employment inquiry about a disability or the nature or severity of a
disability. An employer may, however, ask questions about the ability to
perform specific job functions and may, with certain limitations, ask an
individual with a disability to describe or demonstrate how s/he would perform
these functions.
For example, at the pre-offer stage, an employer may not ask:
An employer may require applicants to take a physical fitness test, but may not measure an applicants physiological or biological responses to performance or ask medical questions in conjunction with the testing.
An employer may condition a job offer on the satisfactory
result of a post-offer medical examination or medical inquiry if this is
required of all entering employees in the same job category. A post-offer
examination or inquiry does not have to be job-related and consistent with
business necessity.
However, if an individual is not hired because a post-offer medical examination
or inquiry reveals a disability, the reason(s) for not hiring must be job-related
and consistent with business necessity. The employer also must show that no
reasonable accommodation was available that would enable the individual to
perform the essential job functions, or that accommodation would impose an
undue hardship. A post-offer medical examination may disqualify an individual
if the employer can demonstrate that the individual would pose a "direct
threat" in the workplace (i.e., a significant risk of substantial harm to
the health or safety of the individual or others) that cannot be eliminated or
reduced below the direct threat level through reasonable accommodation. Such a
disqualification is job-related and consistent with business necessity. A
post-offer medical examination may not disqualify an individual with a disability
who is currently able to perform essential job functions because of speculation
that the disability may cause a risk of future injury.
Employees
After a person starts work, a medical examination or inquiry of an employee
must be job-related and consistent with business necessity. Employers may
conduct employee medical examinations where there is evidence of a job
performance or safety problem, examinations required by other Federal laws,
examinations to determine current fitness to perform a particular job, and
voluntary examinations that are part of employee health programs.
A police or fire department can require officers to report
when they are taking medications that could affect their ability to perform
essential functions. Similarly, police and fire departments can conduct
periodic medical examinations limited to determining whether officers are fit
to perform the essential functions of their jobs.
Information from all medical examinations and inquiries must be kept apart from
general personnel files as a separate, confidential medical record, available
only under limited conditions.
Tests for illegal use of drugs are not medical examinations under the ADA and
are not subject to the restrictions of such examinations.
Toyota Motor Manufacturing v. Williams, 534 U.S. 184 (January 8, 2002) - U.S. Supreme Court held that carpal tunnel syndrome did not limit Plaintiffs major life activity of performing manual tasks.
U.S. Airways Inc. v. Barnett, 122 S.Ct. 1516 (April 29, 2002) - The Court held that an employer could treat a unilaterally imposed seniority system that prohibited the filling of vacancies except on seniority as a bar to reassigning a disabled employee to that vacant position as a form of reasonable accommodation.
Chevron USA, Inc. v. Echazabal, 122 S.Ct. 2045 (June 10, 2002) - Under the ADA, an employer may impose, as a qualification standard, that the employee not constitute a direct threat to the health or safety of others in the workplace. The Supreme Court upheld the EEOC regulation which interpreted this as applying to threats to the health or safety of the employee (or applicant) as well.
-Reassignment
Maldonado v. Municipality of Ponce, 206 F.Supp. 198 (D.Puerto Rico) Police officer who was injured while on National Guard duty returned to a short period of light duty assigned. He thereafter requested a permanent light duty position in the police department or elsewhere in the City as a reasonable accommodation under the ADA. Because of his lower back problems, Plaintiff was unable to perform patrol duties. The court held plaintiff unable to perform the essential functions of the job of police officer and further that the City had no obligation to create a job for him.
Willis v. Pacific Maritime Association, 236 F.3d 1160 (9th Cir. 2001) Employer is not required to accommodate a worker with a disability if the accommodation would violate provisions of a collective bargaining agreement. Ninth circuit joined the majority of circuits in finding an accommodation which conflicts with the union contract per se unreasonable.
-Discipline
Wascura v. City of South Miami, 257 F.3d 1238 (S.D. Fla. 2001) - Summary Judgment to City upheld where City offered legitimate reasons to support the termination of City Clerk only months after she had advised City of her need to take time off to care for her son who had been diagnosed with a terminal illness.
Aldrup v. Caldera, 274 F.3d 282 (5th Cir. 2001) Plaintiff, a firefighter, after being terminated for insubordination, sued alleging, among other things discrimination based on his disability of depression caused by the stress and anxiety of having to work with certain employees. The Court held that such a condition would merely show the inability to perform a single job at a specific location, and would not constitute a disability protected by the ADA.
Fountain v. New York State Dept. of Correctional Services, 190 F. Supp. 335 (N.D.N.Y. 2002) Sick leave policy that allows supervisors to require medical documentation, including a diagnosis for absences as short as one day, violates the ADA.
Hernandez v. Hughes Missile Systems Company, 292 F.3d 1038 (9th Cir. 2002) Employers unwritten policy against rehiring former employees terminated for misconduct violates the ADA as applied to rehabilitated drug addicts terminated based on a positive drug screen while employed.
Soledad v. U.S. Dept. of Treasury, No. 00-51300, ___F.3d ___, 2002 U.S. App. Lexis 18710 (5th Cir. 2002) Liability may rest under the ADA for discrimination because of a disability, but under section 504, liability will only rest if the discrimination was solely because of the disability.
THE FAMILY AND MEDICAL LEAVE ACT
Excerpts from the DOL Guidelines
The FMLA entitles eligible employees to take up to 12 weeks of unpaid, job-protected leave in a 12-month period for specified family and medical reasons. The employer may elect to use the calendar year, a fixed 12-month leave or fiscal year, or a 12-month period prior to or after the commencement of leave as the 12-month period.
FMLA applies to all:
To be eligible for FMLA benefits, an employee must:
(1) work for a covered employer;
(2) have worked for the employer for a total of 12 months;
(3) have worked at least 1,250 hours over the previous 12 months; and
(4) work at a location in the United States or in any territory or possession of the United States where at least 50 employees are employed by the employer within 75 miles.
A covered employer must grant an eligible employee up to a total of 12 workweeks of unpaid leave during any 12-month period for one or more of the following reasons:
Spouses employed by the same employer are jointly entitled to a combined total of 12 work-weeks of family leave for the birth and care of the newborn child, for placement of a child for adoption or foster care, and to care for a parent who has a serious health condition.
Leave for birth and care, or placement for adoption or foster care must conclude within 12 months of the birth or placement.
Under some circumstances, employees may take FMLA leave intermittently which means taking leave in blocks of time, or by reducing their normal weekly or daily work schedule.
Also, subject to certain conditions, employees or employers may choose to use accrued paid leave (such as sick or vacation leave) to cover some or all of the FMLA leave.
The employer is responsible for designating if an employee's use of paid leave counts as FMLA leave, based on information from the employee.
"Serious health condition" means an illness, injury, impairment, or physical or mental condition that involves either:
(1) A health condition (including treatment therefor, or recovery therefrom) lasting more than three consecutive days, and any subsequent treatment or period of incapacity relating to the same condition, that also includes:
(2) Pregnancy or prenatal care. A visit to the health care provider is not necessary for each absence; or
(3) A chronic serious health condition which continues over an extended period of time, requires periodic visits to a health care provider, and may involve occasional episodes of incapacity (e.g., asthma, diabetes). A visit to a health care provider is not necessary for each absence; or
(4) A permanent or long-term condition for which treatment may not be effective (e.g., Alzheimer's, a severe stroke, terminal cancer). Only supervision by a health care provider is required, rather than active treatment; or
(5) Any absences to receive multiple treatments for restorative surgery or for a condition which would likely result in a period of incapacity of more than three days if not treated (e.g., chemotherapy or radiation treatments for cancer).
A covered employer is required to maintain group health insurance coverage for an employee on FMLA leave whenever such insurance was provided before the leave was taken and on the same terms as if the employee had continued to work. If applicable, arrangements will need to be made for employees to pay their share of health insurance premiums while on leave.
In some instances, the employer may recover premiums it paid to maintain health coverage for an employee who fails to return to work from FMLA leave.
Upon return from FMLA leave, an employee must be restored to the employee's original job, or to an equivalent job with equivalent pay, benefits, and other terms and conditions of employment.
In addition, an employee's use of FMLA leave cannot result in the loss of any employment benefit that the employee earned or was entitled to before using FMLA leave, nor be counted against the employee under a "no fault" attendance policy.
Under specified and limited circumstances where restoration to employment will cause substantial and grievous economic injury to its operations, an employer may refuse to reinstate certain highly-paid "key" employees after using FMLA leave during which health coverage was maintained. In order to do so, the employer must:
A "key" employee is a salaried "eligible" employee who is among the highest paid ten percent of employees within 75 miles of the work site.
Employees seeking to use FMLA leave are required to provide 30-day advance notice of the need to take FMLA leave when the need is foreseeable and such notice is practicable.
Employers may also require employees to provide:
When intermittent leave is needed to care for an immediate family member or the employee's own illness, and is for planned medical treatment, the employee must try to schedule treatment so as not to unduly disrupt the employer's operation.
Recent Cases
Ragsdale v. Wolverine World Wide, Inc., No. 00-6029, 122 S.Ct. 1155, 2002 U.S. Lexis 1936 (2002) - The U.S. Supreme Court held invalid a DOL regulation that provides that FMLA leave did not count toward the 12-week requirement until the employer so notifies the employee.
McBride v. Citgo Petroleum Corp., 281 F. 3d 1099 (10th Cir. 2002) The Court held that the FMLA does not protect an employee from performance problems caused by the condition for which FMLA leave is taken, nor does it require that an employee be given an opportunity to show improved job performance when not ill.
Smith v. BellSouth, 273 F.3d 1303 (11th Cir. 2001) - Former employee who is denied a job (rehire) can sue under the FMLA for retaliation.
Darby v. Bratch, 287 F.3d 673 (8th Cir. 2002) Disciplinary action for use of unpaid leave and denial of promotional opportunities because of excessive absences issued to dispatcher who had requested FMLA for a thyroid condition created genuine issue of fact as to whether employer violated the FMLA.
THE FAIR LABOR STANDARDS ACT
Excerpts from the DOL Guidelines
The FLSA requires employers to:
Under certain prescribed conditions, employees of State or local government agencies may receive compensatory time off at a rate of not less than one and one-half hours for each overtime hour worked, instead of cash overtime pay. Police and fire fighters, emergency response personnel, and employees engaged in seasonal activities may accrue up to 480 hours of comp time; all others, 240 hours.
Certain employees in the following examples may be exempt from the overtime requirements of the FLSA:
Special Exemptions for Employees Engaged in Fire Protection and Law Enforcement Activities:
Note: the FLSA does not require:
vacation, holiday, severance, or sick pay;
meal or rest periods, holidays off, or vacations;
premium pay for weekend or holiday work;
pay raises or fringe benefits; and
a discharge notice, reason for discharge, or immediate payment of final wages to terminated employees.
Also, FLSA does not limit the number of hours in a day or days in a week an employee may be required or scheduled to work, including overtime hours, if the employee is at least 16 years old.
(a) Section 13(a)(1) of the Fair Labor Standards Act, as amended,
exempts from the wage and hour provisions of the act ``any employee
employed in a bona fide executive, administrative, or professional capacity
29 C.F.R. 541.118
(a) An employee will be considered to be paid ``on a salary basis''
within the meaning of the regulations if under his employment agreement
he regularly receives each pay period on a weekly, or less frequent
basis, a predetermined amount constituting all or part of his
compensation, which amount is not subject to reduction because of
variations in the quality or quantity of the work performed. Subject to
the exceptions provided below, the employee must receive his full salary
for any week in which he performs any work without regard to the number
of days or hours worked. This policy is also subject to the general rule
that an employee need not be paid for any workweek in which he performs
no work.
***
(5) Penalties imposed in good faith for infractions of safety rules
of major significance will not affect the employee's salaried status.
Safety rules of major significance include only those relating to the
prevention of serious danger to the plant, or other employees, such as
rules prohibiting smoking in explosive plants, oil refineries, and coal
mines.
II. Training Time
29 C.F.R. 785.27
Attendance at lectures, meetings, training programs and similar
activities need not be counted as working time if the following four
criteria are met:
(a) Attendance is outside of the employee's regular working hours;
(b) Attendance is in fact voluntary;
(c) The course, lecture, or meeting is not directly related to the
employee's job; and
(d) The employee does not perform any productive work during such
attendance.
29 C.F.R. 785.29
The training is directly related to the employee's job if it is
designed to make the employee handle his job more effectively as
distinguished from training him for another job, or to a new or
additional skill. For example, a stenographer who is given a course in
stenography is engaged in an activity to make her a better stenographer.
Time spent in such a course given by the employer or under his auspices
is hours worked. However, if the stenographer takes a course in
bookkeeping, it may not be directly related to her job. Thus, the time
she spends voluntarily in taking such a bookkeeping course, outside of
regular working hours, need not be counted as working time. Where a
training course is instituted for the bona fide purpose of preparing for
advancement through upgrading the employee to a higher skill, and is not
intended to make the employee more efficient in his present job, the
training is not considered directly related to the employee's job even
though the course incidentally improves his skill in doing his regular
work.
III. Overnight Travel
29 C.F.R. 39
Travel that keeps an employee away from home overnight is travel
away from home. Travel away from home is clearly worktime when it cuts
across the employee's workday. The employee is simply substituting
travel for other duties. The time is not only hours worked on regular
working days during normal working hours but also during the
corresponding hours on nonworking days. Thus, if an employee regularly
works from 9 a.m. to 5 p.m. from Monday through Friday the travel time
during these hours is worktime on Saturday and Sunday as well as on the
other days. Regular meal period time is not counted. As an enforcement
policy the Divisions will not consider as worktime that time spent in
travel away from home outside of regular working hours as a passenger on
an airplane, train, boat, bus, or automobile.
29 C.F.R. 40
If an employee is offered public transporation but requests
permission to drive his car instead, the employer may count as hours
worked either the time spent driving the car or the time he would have
had to count as hours worked during working hours if the employee had
used the public conveyance.
IV. Special Detail Assignments
29 C.F.R. 553.227
(d) The primary employer may facilitate the employment or affect the
conditions of employment of such employees. For example, a police
department may maintain a roster of officers who wish to perform such
work. The department may also select the officers for special details
from a list of those wishing to participate, negotiate their pay, and
retain a fee for administrative expenses. The department may require
that the separate and independent employer pay the fee for such services
directly to the department, and establish procedures for the officers to
receive their pay for the special details through the agency's payroll
system. Finally, the department may require that the officers observe
their normal standards of conduct during such details and take
disciplinary action against those who fail to do so.
V. Occasional or Sporadic Work
29 C.F.R. 553.30
(a) Section 7(p)(2) of the FLSA provides that where State or local
government employees, solely at their option, work occasionally or
sporadically on a part-time basis for the same public agency in a
different capacity from their regular employment, the hours worked in
the different jobs shall not be combined for the purpose of determining
overtime liability under the Act.
(b) Occasional or sporadic. (1) The term occasional or sporadic
means infrequent, irregular, or occurring in scattered instances. There
may be an occasional need for additional resources in the delivery of
certain types of public services which is at times best met by the part-
time employment of an individual who is already a public employee. Where
employees freely and solely at their own option enter into such
activity, the total hours worked will not be combined for purposes of
determining any overtime compensation due on the regular, primary job.
However, in order to prevent overtime abuse, such hours worked are to be
excluded from computing overtime compensation due only where the
occasional or sporadic assignments are not within the same general
occupational
category as the employee's regular work.
(2) In order for an employee's occasional or sporadic work on a
part-time basis to qualify for exemption under section 7(p)(2), the
employee's decision to work in a different capacity must be made freely
and without coercion, implicit or explicit, by the employer. An employer
may suggest that an employee undertake another kind of work for the same
unit of government when the need for assistance arises, but the employee
must be free to refuse to perform such work without sanction and without
being required to explain or justify the decision.
(3) Typically, public recreation and park facilities, and stadiums
or auditoriums utilize employees in occasional or sporadic work. Some of
these employment activities are the taking of tickets, providing
security for special events (e.g., concerts, sports events, and
lectures), officiating at youth or other recreation and sports events,
or engaging in food or beverage sales at special events, such as a
county fair. Employment in such activity may be considered occasional or
sporadic for regular employees of State or local government agencies
even where the need can be anticipated because it recurs seasonally
(e.g., a holiday concert at a city college, a program of scheduled sports
events, or assistance by a city payroll clerk in processing returns at
tax filing time). An activity does not fail to be occasional merely
because it is recurring. In contrast, for example, if a parks department
clerk, in addition to his or her regular job, also regularly works
additional hours on a part-time basis (e.g., every week or every other
week) at a public park food and beverage sales center operated by that
agency, the additional work does not constitute intermittent and
irregular employment and, therefore, the hours worked would be combined
in computing any overtime compensation due.
(c) Different capacity. (1) In order for employment in these
occasional or sporadic activities not to be considered subject to the
overtime requirements of section 7 of the FLSA, the regular government
employment of the individual performing them must also be in a different
capacity, i.e., it must not fall within the same general occupational
category.
(2) In general, the Administrator will consider the duties and other
factors contained in the definitions of the 3-digit categories of
occupations in the Dictionary of Occupational Titles (except in the case
of public safety employees as discussed below in section (3)), as well
as all the facts and circumstances in a particular case, in determining
whether employment in a second capacity is substantially different from
the regular employment.
(3) For example, if a public park employee primarily engaged in
playground maintenance also from time to time cleans an evening
recreation center operated by the same agency, the additional work would
be considered hours worked for the same employer and subject to the
Act's overtime requirements because it is not in a different capacity.
This would be the case even though the work was occasional or sporadic,
and, was not regularly scheduled. Public safety employees taking on any
kind of security or safety function within the same local government are
never considered to be employed in a different capacity.
(4) However, if a bookkeeper for a municipal park agency or a city
mail clerk occasionally referees for an adult evening basketball league
sponsored by the city, the hours worked as a referee would be considered
to be in a different general occupational category than the primary
employment and would not be counted as hours worked for overtime
purposes on the regular job. A person regularly employed as a bus driver
may assist in crowd control, for example, at an event such as a winter
festival, and in doing so, would be deemed to be serving in a different
capacity.
(5) In addition, any activity traditionally associated with teaching
(e.g., coaching, career counseling, etc.) will not be considered as
employment in a different capacity. However, where personnel other than
teachers engage in such teaching-related activities, the work will be
viewed as employment in a different capacity, provided that these
activities are performed on an occasional or sporadic basis and all
other requirements for this provision are
met. For example, a school secretary could substitute as a coach for a
basketball team or a maintenance engineer could provide instruction on
auto repair on an occasional or sporadic basis.
29 C.F.R. 553.212
(a) Employees engaged in fire protection or law enforcement
activities as described in Secs. 553.210 and 553.211, may also engage in
some nonexempt work which is not performed as an incident to or in
conjunction with their fire protection or law enforcement activities.
For example, firefighters who work for forest conservation agencies may,
during slack times, plant trees and perform other conservation
activities unrelated to their firefighting duties. The performance of
such nonexempt work will not defeat either the section 13(b)(20) or 7(k)
exemptions unless it exceeds 20 percent of the total hours worked by
that employee during the workweek or applicable work period. A person
who spends more than 20 percent of his/her working time in nonexempt
activities is not considered to be an employee engaged in fire
protection or law enforcement activities for purposes of this part.
(b) Public agency fire protection and law enforcement personnel may,
at their own option, undertake employment for the same employer on an
occasional or sporadic and part-time basis in a different capacity from
their regular employment. (See Sec. 553.30.) The performance of such work does not affect the application of the section 13(b)(20) or 7(k) exemptions with respect to the regular employment. In addition, the hours of work in the different capacity need not be counted as hours worked for overtime purposes on the regular job, nor are such hours counted in determining the 20 percent tolerance for
nonexempt work discussed in paragraph (a) of this section.
Demos v. City of Indianapolis, No. 01-2952, ___F.3d___, 2002 U.S. App. Lexis 17934 (7th Cir. 2002) City policy of docking employees pay if they failed to work an eight-hour day did not result in a loss of the salaried FLSA exemption. City was able to prove that policy was established pursuant to principles of public accountability by reference to state statutes, ethics policies and general policies on timekeeping.
Capasso v. Metropolitan Transportation Authority of the State of New York, 198 F.Supp. 452 (S.D.N.Y. 2002) Departmental requirement that employees on sick leave remain at home unless given permission to leave does not make time spent at home hours worked for FLSA purposes (plaintiff allowed to proceed on her claims that regulation was unconstitutional because of its lack of guidance with regard to granting requests to leave home and on her equal protection claim alleging unequal application of the policy).
Bailey v. Gulf Coast Transportation, Inc., 280 F.3d. 1333 (11th Cir. 2002) FLSA allows employees in private enforcement action to obtain injunctive relief barring their termination pending final court action.
FIRST AMENDMENT ISSUES IN EMPLOYMENT LAW
Analysis of Free Speech Cases
To prevail on a free speech claim, the employee will have to show that: 1) the speech involved a matter of public concern; 2) the public interest aspects outweighed the government's interest in restricting the speech (a balancing test); and 3) the existence of a causal relationship between the free speech and an adverse government action. Even if these elements are proven, the defendant may be able to prevail on a qualified immunity defense if he/she can show that the free speech rights, in the specific context applicable to the defendant's case, were not "clearly established" at the time of the adverse action.
Pappas v. Giuliani, 290 F.3d 143 (2d Cir. 2002) Plaintiff, an NYPD police officer, on approximately 200 occasions mailed racist materials to various charities soliciting money from him. He was terminated for violation of a departmental policy prohibiting the dissemination of defamatory materials through the mail. He filed suit alleging his termination violated his first amendment free speech rights. The court found that the racist mailings were not speech on a matter of public concern but merely plaintiffs private hobby or interest. Further the court found that the departments interest in prohibiting conduct potentially disruptive to the organization, including undermining the publics respect for the department outweighed any interest plaintiff had in the speech.
Riccio v. City of West Haven, 196 F.Supp.2d 181 (D.Conn. 2002) Corporation Counsels office secretary reported to the police a threat made by a co-worker. Finding that the report breached office confidentiality rules, Plaintiff was suspended and reassigned. She retired and thereafter sued alleging that the City had taken adverse employment actions as a result of her protected speech. The Court found that the threat report did not amount to protected speech.
Carroll v. Neumann, 204 F.Supp. 1344 (S.D.Fla. 2002) Under investigation for performance errors in toxicology lab, Plaintiff, the lab supervisor, made allegations concerning errors by other agencies and complained of underfunding of his operation. Subsequently demoted and thereafter retiring, Plaintiff filed suit alleging his demotion and constructive discharge were based on his protected speech. The Court ruled in favor of the defendant sheriff, holding that the First Amendment does not protect speech which relates to personal employment matters.
Nonnenmann v. City of New York, 174 F. Supp.2d 121 (S.D.N.Y. 2001) Officers testimony in an EEOC matter, on behalf of one individuals employment complaint rather than concerning system-wide discrimination, held related to a private employment dispute and did not involve a matter of public concern warranting First Amendment protection.
Buzek v. Pawnee County, 207 F.Supp.2d 961 (D.Neb. 2002) Deputy Sheriffs claim that he was terminated because of his expressions of concern regarding new sheriffs DWI convictions, a commissioners accident report and the lack of 911 response in the county survived motion for summary judgment.
See, Buzek v. County of Saunders, 972 F.2d 992 (8th Cir. 1992) - Deputy Sheriff wrote letter to judge in criminal case on a sentencing issue, supportive of the criminal defendant. Sheriff then terminated deputy. Court held criminal sentencing to be a matter of public concern. Department failed to offer any proof that deputy's letter had a detrimental impact on the department. Court therefore upheld jury verdict for deputy ($144,251.00).
Branton v. City of Dallas, 272 F.3d 730 (5th Cir. 2001) I.A. officers ex-parte communication with a hearing officer, advising the hearing officer that false statements had been made by an officer at the hearing, resulted in her relief of investigative and supervisory responsibilities. Court held that speech complaining of misconduct within the police department is speech on a matter of public concern.
Gustafson v. Jones, 290 F.3d 895 (7th Cir. 2002) Tactical enforcement officers removal from elite unite after complaining to fellow officers and to union about operational orders (issued in an attempt to increase time available for regular dispatch) found to violate First Amendment speech protections in this instance where the department did not present evidence of any disruption. Jury verdict of $190,000 upheld.
Lynch v. City of Philadelphia, 166 F.Supp.2d 224 (E.D.Pa. 2001) Police officers testimony, under subpoena, at two subordinates criminal hearings was protected speech without any evidence of disruption to the departments operations.
Pool v. VanRheen, 297 F.3d 899 (9th Cir. 2002) Top level female corrections administrator demoted after writing, and publicizing, letter critical of Sheriff sued alleging First Amendment violation. Court found that actual disruption resulted from letter and that the Sheriffs legitimate administrative interests outweighed Pools First Amendment rights.
Sheppard v. Beerman, 190 F.Supp.2d 361 (E.D.N.Y. 2002) Judges clerk was discharged after telling the Judge that the Judge was a corrupt son of a bitch, following a disagreement over a decision on a pending motion. Court found that, although the speech touched on a matter of public concern, the judges interest in maintaining an effective workplace outweighed any public interest in the speech.
Mansoor v. County of Albemarle, 189 F. Supp. 2d 426 (W.D.Va. 2002) Order given a police officer, that he at all times refrain from any verbal or written communications to third parties, including but not limited to county employees, relating to your employment that are in any way critical or negative towards the county executive, the chief of police or other police department management or command staff, or any other county official or employee held to violate the employees free speech rights.
Latino Officers Association v. Safir, 165 F.Supp. 587 ( S.D.N.Y. 2001) Policy requiring officers who wish to speak in their private capacity about departmental policy at a public hearing or meeting give five days notice to the department along with a synopsis of the meeting and proposed speech and a follow-up report after the speech (exempting labor representatives and statements to the media) held unconstitutional.
Swartzwelder v. McNeilly, 297 F.3d 228 (3d Cir. 2002) Court granted preliminary injunction prohibiting police department from enforcing order requiring an employee who wishes to give expert opinion testimony in court to obtain prior approval from the Chief of Police.
Rossignol v. Voorhaar, 199 F.Supp.2d 279 (D.Md. 2002) Off-duty sheriffs deputies, on election day, purchased 1379 copies of local community newspaper critical of Sheriff who was up for reelection. The off-duty deputies used money contributed by the Sheriff and others. The Court held there to be no state action and dismissed s. 1983 action.
Hitt v. Connell, 301 F.3d 240 (5th Cir. 2002) Plaintiff, deputy constable, fired after writing to union and speaking at meeting about deputies being paid for reporting time of 15 minutes before each shift. Constable made statements that he wouldnt tolerate union activity and was going to fire Plaintiff because he was a troublemaker. Despite Constables contention that he fired Plaintiff for making a threat against a co-worker, jury concluded that Plaintiff was fired because of union membership. Jury award of $300,000 reduced to $76,000.
Marcum v. McWhorter No. 01-5020, __ F.3d __, 2002 WL 31084621, 2002 U.S. App. Lexis 19251, 2002 FED App. 0324P (6th Cir. 2002) Termination of deputy as a result of adulterous relationship held not to violate First Amendment.
Anderson v. U.S.F. Logistics (IMC), 274 F.3d 470 (7th Cir. 2001) Employee, cautioned against continuing to use the phrase Have a Blessed Day when dealing with outside customers and reprimanded twice for use thereafter denied preliminary injunction when she attempted to prevent the discipline.
Knight v. Connecticut Department of Public Health, 275 F.3d 156 (2001) Two employees, disciplined for evangelizing on the job, sued alleging First Amendment violations. The Court entered summary judgment for the state on both claims.
2002, by Jody M. Litchford. May be distributed for nonprofit training and educational programs, but may not be reprinted for commercial purposes.