Appeals court overturns an arbitration award that ordered reinstatement of a deputy who repeatedly used marijuana and lied about it to his superiors.

     An Oregon sheriff refused to comply with an arbitration order requiring him to reinstate a deputy who had failed a drug test and lied about his use of marijuana. The union filed a grievance with the Employment Relations Board, which concluded that the county's failure to comply with the arbitration award was an unfair labor practice.

     The Board acknowledged a public policy prohibiting illegal drug use by employees with safety-sensitive positions, but said there also are public policies that encourage rehabilitation of employees. The award, which imposed a seven-month unpaid suspension, was considered adequate punishment.

     The county sought judicial review. The Court of Appeals said:

"The dispositive question ... is not whether a person who purchases and uses marijuana engages in conduct that is contrary to public policy. Clearly he does. ... The question ... is whether the reinstatement of a public safety officer who has admitted to repeated illegal off-duty use of marijuana complies with public policy. That is an entirely different question."

     Oregon's Public Safety Officer Standards require the revocation of certification of a peace officer who "has been convicted of violating any law of this state or any other jurisdiction involving the unlawful use, possession, delivery or manufacture of a controlled substance, narcotic or dangerous drug."

     Although the deputy was not "convicted" or decertified, the "clear underlying public policy statement remains: officers who use controlled substances should not be certified." The deputy's termination stands, and the arbitration award is not enforceable.

     Washington Co. Police Officers v. Washington County, #A114208, 181 Ore. App. 448, 45 P.3d 515, 2002 Ore. App. Lexis 727 (2002).

• Click here to view the opinion on the court's website.

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California Appeals Court upholds the termination of a clerk, at a police association's insurance office, for having an ongoing intimate relationship with a convicted felon. Access to officers' confidential files was incompatible with her behavior.

     An insurance claims processor for the L.A. Police Relief Assn. was fired for refusing to end an intimate relationship with a convicted felon.

     The director of the association was a 26-year LAPD veteran, and had informed her subordinates that they must avoid even the appearance of impropriety, and not to fraternize with gang members or known criminals.

     On a daily basis, association employees access confidential member files including residential addresses, phone numbers, medical histories, for officers and their spouses and children. This includes about 200 undercover officers, whose names do not appear on the LAPD roster.

     The insubordinate employee was engaged to an inmate at Corcoran State Prison, who at the time, had served 3 of a 15-year sentence for burglary. The association's board concluded that her relationship presented a "serious and unacceptable conflict of interest to the objectives of LAPRA and the safety of its members."

     Hoping, in part, to avoid the results of a long list of state and federal cases that have upheld rules against police employees fraternizing with ex-felons, she sued alleging violation of the California constitutional guaranty of privacy and a state law which permits inmates to marry (Penal Code §2601).

     A Superior Court upheld the employer. A three-judge panel of the California Court of Appeals has affirmed, saying:

"LAPRA has a legitimate -- indeed, a paramount -- interest in preventing the improper disclosure of confidential information about LAPD officers and, more specifically, the disclosure of that information to criminals. ... [plaintiff's] relationship with [her fiancé] could jeopardize the personal safety of the officers. ... even if [the plaintiff] did not want to disclose any of the officers' information to [her fiancé], he or others could attempt to get the information through threats, coercion, deceit, or violence.

"In sum, we find that [plaintiff's] right to marry, as guaranteed by the privacy provision of the California Constitution, was not violated because LAPRA -- in response to [her] decision to marry an incarcerated felon -- made a rational decision to further legitimate interests: the personal safety and well-being of police officers and their families."

     The employer had no nonsensitive positions. All LAPRA employees have access to the officers' confidential files.

Ortiz v. L.A. Police Relief Assn., #B148574, 2002 Cal. App. Lexis 4192, 02 C.D.O.S. 4813 (Cal.App.2d Dist. 2002).

• Click here to read the text on AELE's website.

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Labor board finds that an employee, who criticized management in a union newsletter, was protected against disciplinary action by engaging in "concerted activity."

     While the courts have protected whistleblowers, complainers and even whiners who publicly denounce an employer's methods, policies or actions, the courts generally do not give First Amendment protection to gripes that are circulated internally, because they usually are not matters of "public concern." See Waters v. Churchill, 511 U.S. 661, 114 S.Ct. 1878 (1994), Connick v. Myers, 461 U.S. 138, 103 S.Ct. 1684 (1983).

     Internal gag rules have been the subject of protracted litigation. Management does not want employees to undermine morale by discussing an employer's policies or mistakes. If an internal investigation is still pending, employees can collude to fabricate a defense to misconduct.

     In this case a private sector employee was fired because of the articles he wrote in the union newsletter concerning the employer's handling of employee sexual harassment complaints.

     Management believed that the articles constituted a "verbal assault" on a supervisor, and were "inflammatory," "extremely derogatory and disparaging." The employer also claimed that the articles contained "public disclosure of private facts."

     The NLRB trial judge found that the articles constituted protected "concerted activity." On appeal, the National Labor Relations Board unanimously agreed.

     Union members have a right to engage in concerted activity. Section 8(a)(1) of the National Labor Relations Act protects private sector workers. Similar provisions in state public employment relations laws protect state and local public employees. The concerned employee must be a member of a recognized bargaining unit. A few states do not provide for public sector bargaining.

     Additionally, the NLRB affirmed the trial judge that the articles did not lose the protection of the Act because, as asserted by the employer, his articles disclosed confidential information or otherwise "crossed over the line" separating protected and unprotected activity.

Phoenix Transit System and Amalgamated Transit Union L-1433, #28-CA-15177, 2002 NLRB Lexis 170, 337 NLRB No. 78 (NLRB 2002).

• Click here to read the text on AELE's website.

     Editor's Note: Because the case involved a private sector worker, the First Amendment did not apply. If the transit system was publicly owned, the employee also would have had a constitutional claim to raise. The importance of the case, is that a public employee might prevail on a concerted activity claim and lose on a constitutional claim, because the subject matter of the dispute is not a matter of public concern.

     This could mean that a public employer might face simultaneously, a federal civil rights lawsuit predicated on a First Amendment violation, a state labor board action based on interference with a protected activity, and an arbitrable grievance proceeding challenging just cause for the dismissal or lesser disciplinary action. Because each of the three are based on different rights (constitutional, statutory and contractual) a public employee who is a member of a bargaining unit might get three bites at the apple.

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President signs H.R. 169, requiring federal agencies to pay the settlement costs for discrimination an whistleblower cases from agency budgets.

     Federal agencies that lose judgments, awards, or make settlements in whistleblower retaliation and employment discrimination cases will soon be required to pay the awards out of their own budgets.

     The measure requires annual reports to Congress on the number of whistleblower retaliation and discrimination cases pending against them, the disposition of the cases, the amount of monetary awards, and the number of agency employees disciplined.

     The General Accounting Office will study the effects of the Act on the operation of federal agencies and the costs incurred. The law takes effect on Oct. 1, 2003.

     The legislation is called No FEAR, which an acronym for the Notification and Federal Anti-Discrimination and Retaliation Act, 5 U.S. Code §2301 (§101 et seq.), Pub. L. No. 107-174 (2002).

• Click here to read the text on AELE's website.

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Incriminating statements given by a law enforcement officer to his superiors, after he had received the Miranda warnings, were admissible in his criminal prosecution. At no time did his superiors advise him that he had to answer questions as a condition of continued employment.

     An agent/lab analyst with the Colorado Bureau of Investigation was identified by a caller as using the drug ecstasy. Superiors gave him 99 ecstasy pills to examine; he returned only 91. Believing that only one was needed for testing, they initiated an investigation.

     The employee was given the Miranda warnings, interviewed and searched; his office also was searched. When seven pills were found, he was re-interviewed. Initially the analyst said all eight were consumed in testing, but when confronted with the seven pills, he said that he had retained them as a testing standard.

     The agency's policy manual states that "if requested to make a statement in the course of an official Bureau investigation, members shall make full, complete and truthful statements." The agency did not have a policy of compelling employees to answer questions during an internal interview, and management gave the agent the Miranda warning, not a Garrity warning.

     The agent was charged criminally and sought to suppress the statements he made during the interviews, because he believed that he would be fired for asserting his Fifth Amendment right not to incriminate himself. The trial court agreed, and the state appealed.

     The Colorado Supreme court has reversed. The agent was informed of his unconditional right to remain silent and he indicated that he understood that right. His superiors "merely requested [his] cooperation and never commanded that he provide a statement."

     At no time was the agent threatened or told that he must waive his Fifth Amendment rights as a condition of continued employment. No CBI employee has ever been fired for failure to answer questions.

     The justices said it made no difference that superior officers conducted the interview, or that they did not leave him unattended, or that they removed his keys, service revolver, badge, and credentials during a consensual search, or that his superiors knew that the interview could result in criminal charges.

     The Colorado justices cited the U.S. Supreme Court's opinion in Minnesota v. Murphy, 465 U.S. 420, 104 S.Ct. 1136 (1984). In that case a man on probation was required to report to his probation officer and answer all questions truthfully, and made an incriminating statement. The Supreme Court held that a general obligation to appear and answer questions truthfully, even on the pain of contempt of court, did not convert otherwise voluntary statements into compelled admissions, because the Fifth Amendment is generally not "self-executing."

State v. Koverman, #01SA210, 38 P.3d 85, 2002 Colo. Lexis 58 (2002).

• Click link to view the case on the AELE website.

     Editor's Note: It is common for management to initiate two parallel investigations, led by separate investigators, and for the employee to receive the Garrity warnings in the administrative inquiry, and the Miranda (or Beckwith) warnings in the criminal inquiry. A public employee is entitled to assert his Fifth Amendment privilege during the criminal interview, but not during the administrative interview (if the Garrity warning has been given).

     The Beckwith warnings are similar to Miranda warnings, except that the employee is not in custody and is not entitled to free legal counsel if he cannot afford an attorney. See Treasury, Bur. of Engraving v. C-201 NTEU, #99 FSIP 96, 1999 FSIP Lexis 41.

• Click here to read our article on that case.

• Click here to read specimen employee Interview Warnings.

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Federal appeals court upholds the termination of a public employee who declined to answer I-A questions relating to possible criminal conduct. Both the investigator and her lawyer gave her bad advice to take the Fifth Amendment. She may have a remedy against her lawyer for malpractice, but is not entitled to get her job back.

     An Illinois park district retained a law firm to investigate "financial improprieties" and "misuse of funds." One employee was targeted, and was suspended with pay. She retained a lawyer.

     Later, a lawyer from the firm investigating the allegations, met with the target, told her that a grand jury was being convened and that her lawyer would probably advise her that she should exercise her constitutional right to remain silent.

     Indeed, her lawyer did advise her not to agree to be interviewed by the law firm. The park district then fired her for insubordination and failing to cooperate in the investigation, as well as a substantive offense (receiving unauthorized salary payments).

     She then sued in federal court, alleging that the termination violated her right not to be compelled to incriminate herself and that the park district publicly released false information about her, including information that would prevent her from obtaining comparable employment.

     The district court dismissed the complaint for failure to state a claim and a three-judge appeals panel has affirmed. Judge Posner, writing for the court said:

"The government is not allowed to force a person to make a statement, even out of court, that might be used as evidence that he had committed a crime. It is not even allowed to pressure him into cooperating by threatening to fire him (if he's a government employee) for his refusing to provide such evidence.

"It has every right to investigate allegations of misconduct, including criminal misconduct by its employees, and even to force them to answer questions pertinent to the investigation, but if it does that it must give them immunity from criminal prosecution on the basis of their answers. * * *

"The employee has no right to skip the interview merely because he has reason to think he'll be asked questions the answers to which might be incriminating. He may be asked other questions as well. Or he may be told that he can take the Fifth without repercussions. Or that the interviewer will merely draw an adverse inference from the employee's taking the Fifth, which is permitted in civil cases."

     Posner explained that the employee was not being asked to meet with the investigator in the absence of her lawyer. "With her lawyer at her elbow to advise her, she would have known which questions she could refuse to answer ... on self-incrimination grounds."

     The unusual thing about this case is that the investigator for the park district and her own attorney gave her misleading advice, not to cooperate with the investigation. Had the employee not had a lawyer, the park district "might" be prevented from discharging her for insubordination. If the employer's investigator misled her into not cooperating with the investigation and then fired her for not cooperating, it might be guilty of fraud or breach of contract under Illinois state law.

     However, a reasonable person in her position consults his or her own lawyer, and she did. Her lawyer gave her bad advice. For that she may have a remedy against her lawyer, but she has no remedy against the park district. "Reliance on a known adversary's legal advice is not reasonable, especially when one has ready access to a lawyer of one's own."

Atwell v. Lisle Park Dist., #01-2520, 286 F.3d 987, 2002 U.S. App. Lexis 6775, 18 IER Cases (BNA) 901 (7th Cir. 2002).

• Click link to view the case on the official court or the FindLaw website.

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DC Circuit upholds a NLRB decision that extends Weingarten rights to nonunion employees. Supreme Court declines review.

     In 1975 the U.S. Supreme Court held that union members were entitled to the presence of a union representative at an investigatory interview which the employee reasonably believes might result in disciplinary action, NLRB v. J. Weingarten, Inc., 420 U.S. 251, 95 S.Ct. 959.

     Although the National Labor Relations Act applies only to private sector workers, state public employee relations laws similarly protect "concerted activities for ... mutual aid or protection." By court decision, only two states (NY and WV) have not adopted Weingarten rights for public sector employees. A few "Right to Work" states do not recognize collective bargaining for police or other public safety employees.

     The NLRB initially held that Weingarten applies to nonunion workers; Materials Research Corp., 262 N.L.R.B. 1010 (1982). Three years later the Board reversed itself and said that Weingarten did not apply to nonunion employees; Sears, Roebuck & Co, 274 N.L.R.B. 230 (1985). Then in July 2000, the NLRB reverted to its initial position and applied the Weingarten rule to a nonunion workplace in a 2-to-1 decision; Epilepsy Fdn. of Northeast Ohio and Borgs, #8-CA-28169, 331 N.L.R.B. 92, 2000 NLRB Lexis 428, 164 LRRM (BNA) 1233 (2000). (Discussed in our Sept. 2000 issue.)

     The employer sought judicial relief. A three-judge panel of the D.C. Circuit has upheld the NLRB's decision that Weingarten applies to a nonunion workplace. Epilepsy Fdn. of Northeast Ohio v. NLRB, #00-1332, 268 F.3d 1095, 2001 U.S. App. Lexis 23722, 168 LRRM (BNA) 2673 (D.C. Cir. 2001); cert. den. 2002 U.S. App. Lexis 4231, 70 U.S.L.W. 3756 (2002). The Supreme Court denied review on June 10, 2002.

• Click here to view the decision on the FindLaw website.

Editor's Comment

     Cautious management lawyers in the private sector are now advising their clients to allow a nonunion employee to be accompanied by a coworker, or by an attorney if union employees are allowed that privilege, during a disciplinary interview.

     Counsel for disciplined public employees are likely to argue that the rationale of Epilepsy Foundation applies under various state public employment relations laws in either of two situations.

1. A nonunion employee is disciplined for refusing to answer questions without the presence of a coworker, or

2. A nonunion employee is refused the assistance of a coworker and makes incriminating statements during the disciplinary interview.

     Before a state labor board or court adopts Epilepsy Foundation it would have to conclude that:

A. A state public employment relations law applies to the employing entity, such as a municipal police or fire department. Some states do not provide bargaining rights for some or all public safety workers, and

B. The particular job classification is not exempt from bargaining rights, such as various managerial positions.

     Management is not free to characterize an investigatory interview as "nondisciplinary" and dispense with Weingarten rights. The courts have said if the employee reasonably fears that disciplinary action might result from the interview, then Weingarten applies. Because management does not know what an employee might reveal, the safer course is to allow union rep. or coworker to be present if Weingarten rights are recognized in that state. See NASA v. NLRA, 527 U.S. 229, 119 S.Ct. 1979, 1999 U.S. Lexis 4190; Dept. of Justice v. FLRA, #00-1433, 266 F.3d 1228, 2001 U.S. App. Lexis 21573 (D.C.Cir. 2001); Lewis v. NLRB, 587 F.2d 403 (9th Cir. 1978).

However, normal or informal discussions about job performance are not "investigatory" interviews and do not trigger Weingarten rights. Robinson v. State Personnel Board, #16892, 77 Cal. App.3d 375, 143 Cal.Rptr. 533 (Cal. 3rd App. Dist.1979); Ehlers v. Jackson Co., 183 Ill.2d 83, 697 N.E.2d 717, 1998 Ill. Lexis 916 (Ill. 1998).

Waiver Forms

     The presence of a coworker at a disciplinary interview raises employee privacy and defamation concerns. Facts revealed or accusations made during the course of the interview could humiliate or embarrass the employee. Union reps, like attorneys, have a professional duty not to disclose confidential facts learned in the course of assisting union members; a coworker has no similar duty, unless the coworker agrees to maintain confidentiality. See Loomis Armored Inc. and Armored Transport Empl. Assn., 94 LA (BNA) 1097 (Gentile, 1990).

• Employees have successfully sued their employers for publicizing private facts, so management should insist that all employees who are interviewed (and ask for assistance by a coworker) sign a written waiver form, explaining, in general terms, that private and sensitive matters may be discussed in the presence of the coworker.

• The coworker should also sign a form indicating that he or she will not publicly disclose confidential information learned during the course of the interview, without the consent of the person being interviewed.

Some courts have held that management has no duty to affirmatively warn employees about their Weingarten rights. The worker, on his or her on initiative, has to ask for the presence of a union rep. or coworker. Because most nonunion workers have never heard about Weingarten rights, the issue does not arise very often. However, at least one arbitrator has held that police management must inform subordinates of their right to representation if the inquiry can lead to discipline. City of Lansing and Capitol City Post 141, 106 LA (BNA) 761 (Ellmann, 1996).

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Arbitrator denies a union request for an increase in a detective's clothing allowance. The city actually paid more than surrounding communities and the fact that the IRS now requires employers to withhold taxes on clothing allowances is not a valid basis for an increase.

     The current detective clothing allowance of $540 is $5 above the average allowance provided by eight comparable cities. Rejecting the taxation argument, the arbitrator said:

     "The Union's argument concerning the decreased value of the current allowance due to the withholding of income taxes is not persuasive. Any ruling by the IRS requiring the City to modify its withholding practices would apply equally to the comparables."

     The union also noted that clothing allowances based on flat dollar amounts are frequently increased in negotiations due to inflationary pressures. However, while the union had a "valid concern", the information from the comparable cities "outweighs the other factors cited by the union."

City of Chehalis, WA (Police) and Teamsters Union, L-252, #15864-I-01-366, 116 LA (BNA) 1424 (Downing, 2002).

• Click here to view the award on AELE's website.

     Editor's Note: Uniform allowances are not taxable income, if the apparel is "not suitable for everyday wear." Conversely, non reimbursed uniform expense is deductible as an employee expense. A clothing allowance paid to a detective is taxable income for the same reason.

     Protective clothing, such as a ballistics vest, is not taxable income (or is a deductible expense) if the taxpayer is required to wear the item by the employer. See IRS Publication 529, page 7. Deductions are claimed on Form 2106.

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EEOC and a multistate employer settle a class action lawsuit challenging genetic testing. 36 workers to receive $2.2 million.

     The EEOC sought a preliminary injunction to prevent disciplinary action against railroad employees who refused to allow blood testing. The employer tested employees who filed claims for work-related injuries based on carpal tunnel syndrome.

     EEOC alleged that the program was carried out without the knowledge or consent of its employees, and at least one worker was threatened with termination for failing to submit a blood sample for a genetic test.

     The parties signed an Agreed Order that the employer shall not

* directly or indirectly require its employees to submit blood for genetic tests;
* analyze any blood previously obtained;
* evaluate, analyze or consider any gene test analysis previously performed on any of its employees; and
* retaliate or threaten to take any adverse action against any person who opposed the genetic testing or who participated in EEOC's proceedings.

     The railroad also agreed to pay $2.2 million to 36 workers. The EEOC prohibits genetic testing and the ADA bars employers from making medical inquiries of current employees if the inquiries are not job-related.

     The EEOC has adopted the position that any test which purports to predict future disabilities, whether accurate or not , is "unlikely to be relevant to the employee's present ability to perform his or her job."

     This is the first time that the agency has litigated a genetic testing claim against a nonfederal employer.

EEOC v. BNSF Rwy., #02cv456 (E.D. Wis. 2002); EEOC v. BNSF Rwy., #01cv04013, 1 ABA Journal e-Report 21, 40 (1964) G.E.R.R. (BNA) 602 (consent agmt. 5/6/02).

• Click here to view the docket entries in both District Courts on the AELE website.

• Federal agencies are prohibited from using genetic testing for employment purposes under Executive Order 13145 (2002).

• Click here to view the EEOC's Policy Guidance on Genetic Information.

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St. Louis Police crack down on employees with body piercing jewelry.

     The Inspector of the Metropolitan Police of the City of St. Louis has issued a written reminder that "During their work hours, employees may not wear body piercing jewelry on any part of their body. Female employees may wear studded earrings on their earlobe, with a maximum of two per ear."

     The memo prohibits body piercing jewelry "on any other part of the body during work hours. This includes the tongue, chin, lip, nose, eyebrow(s) and eyelids." Dress code e-mail to SLMPD staff from Lt. Col. Stephen Pollihan (May 30, 2002).

• Click here to read the department's 1991 dress code directive.

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Supreme Court upholds a EEOC Reg. allowing employers to reject disabled applicants where the job environment would be unusually hazardous for them.

     Reversing the Ninth Circuit, a unanimous Supreme Court has ruled that the ADA does not entitle people to jobs that might jeopardize their health. The justices rejected arguments from a man who argued that should be able to decide for himself whether to take the risk of working in a refinery, where chemicals could aggravate his liver condition (chronic hepatitis).

     The justices also vindicated an EEOC regulation that allows employers to refuse to hire an applicant because the job would endanger his health because of a disability. The Ninth Circuit had held that the EEOC regulation exceeded the agency's scope of permissible rulemaking under the ADA.

     Aside from the moral concerns, the employer successfully argued that it wanted to avoid time lost to sickness, excessive turnover caused by medical retirement or death, litigation under state tort law, and OSHA violations.

     The EEOC Regs. state: "The term 'qualification standard' may include a requirement that an individual shall not pose a direct threat to the health or safety of the individual or others in the workplace." 29 CFR §1630.15(b)(2)

     "Direct Threat means a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation. The determination that an individual poses a "direct threat" shall be based on an individualized assessment of the individual's present ability to safely perform the essential functions of the job. This assessment shall be based on a reasonable medical judgment that relies on the most current medical knowledge and/or on the best available objective evidence. In determining whether an individual would pose a direct threat, the factors to be considered include:

(1) The duration of the risk;
(2) The nature and severity of the potential harm;
(3) The likelihood that the potential harm will occur; and
(4) The imminence of the potential harm."
29 CFR §1630.2(r)

Chevron v. Echazabal, #00-1406, 2002 U.S. Lexis 4202 (2002).

• Click link to read the court's decision on the Cornell or FindLaw website.

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Seventh Circuit rejects comparative evidence of disparate disciplinary action, where the coworkers were supervised by different superiors.

     A terminated corrections officer sued claiming that he was fired for complaining of race discrimination. The state said he was disciplined for attendance problems.

     The ex-officer sought to introduce evidence of disparate disciplinary action. The District Court ruled against the evidence because the comparisons involved officers with different supervisors.

     A three-judge appeals court agreed. Disparate punishment, they said, normally entails a showing that two employees dealt with the same supervisor, were subject to the same standards, and had engaged in similar conduct without differentiating or mitigating circumstances. Different employment decisions, made by different supervisors sufficiently accounts for any disparity in treatment, and counters an inference of discrimination.

     It is not enough that two or more employees held the same positions, or were subjected to the same evaluation process, during the same time frame.

Snipes v. IL Dept. of Corrections, #01-3148, 2002 U.S. App. Lexis 9728 (7th Cir.).

• Click here to read the case on the FindLaw site.

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Newark and EEOC settle lawsuit over grooming policies and overtime assignments for Muslim police officers. City agrees to accommodate their religious practices and pay compensatory damages.

     We previously reported [1999 FP 73-4] that a federal appeals court struck down a Newark police dept's no-beards rule in a suit brought by Muslim officers. F.O.P. L-12 v. City of Newark, #97-5542, 170 F.3d 359, 1999 U.S. App. Lexis 3338, 79 FEP Cases (BNA) 323 (3rd Cir.); cert. den., 528 U.S. 817, 1999 U.S. Lexis 5004.

     We also reported [2000 FP 105] that the Justice Dept. later sued Newark, alleging religious discrimination against current and former Muslim police officers. The government said the city failed or refused to reasonably to accommodate their religious observances, practices and beliefs, threatened them with termination, transferred them to undesirable assignments, and denied them opportunities to work special overtime events.

     Under the recently approved settlement agreement, the City will offer to pay back pay and compensatory damages to ten current and former officers and will implement non-discriminatory employment policies designed to reasonably accommodate their religious practices.

     The City will expunge from personnel records any reference to disciplinary action taken against them. The agreement will remain under court supervision for two years, during which time the Justice Department will monitor the City's compliance with its terms. U.S. v. City of Newark, #00-CV-2368 (D.N.J. 2002).

• Click here to read the court's docket entries on AELE's website.

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FAA settles whistleblower claim. Aviation specialist was fired for going outside the chain of command to report to the FBI that a Saudi national, with a name similar to a 9-11 hijacker, had attended a FAA flight school.

     In our January, 2002, issue we reported that the Federal Merit Services Board ordered the temporary restoration of an FAA specialist who was fired after he called the FBI to report that the FAA had trained a Saudi with a name similar to a Sept. 11th hijacker.

     The worker claimed that his supervisors refused to forward the information to FAA security officials, that he was placed on leave for being "disruptive" and was ordered to leave the building.

     Following that action, the employee notified the FBI. Later, his superiors terminated him for "poor judgment" and an inability to maintain a "calm and professional approach in the completion of duties."

     In late May, the Office of U.S. Special Counsel (OSC) directed the FAA to rehire the ex-worker and offer him back pay. The OSC concluded that his whistleblowing activity was "a contributing factor in the decision to fire him.'' His supervisors will get a letter of caution put into their personnel files. The FBI later cleared the individual whose name he had found.

     The complainant has been offered a position as an FAA aeronautical information specialist at the same pay grade he held when he was fired. FAA also will pay his attorneys' fee, and will arrange for whistleblower training for supervisors in its International Aviation Office, to be provided by the OSC.

Office of Special Counsel ex rel. Hopkins v. DoT, #CB-1208-02-0004-U-1, 40 (1963) G.E.R.R. (BNA) 568 (Settlement, 2002); interim order at 90 M.S.P.R. 154, 2001 MSPB Lexis 1103 (MSPB, 2001).

• Click here to view the interim MSPB order on the AELE website.

• Click here to read the Office of Special Counsel press release on the settlement.

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Appeals court rejects a comp. claim for psychic injuries resultant from coworker gossip when she had a sexual affair with another married employee.

     A married governmental employee was having an affair with a married coworker. Fellow employees gossiped about the relationship, and some referred to her as a "tramp" or "husband stealer."

     She filed a workers' compensation claim alleging a ten-month cumulative psychiatric injury from a hostile work environment and sexual harassment. She saw a psychiatrist who diagnosed major depression and found her temporarily totally disabled for an eleven-week period.

     A medical examiner hired by the claimant issued a 20-page report stating that her psychic injury was due to "work stressors." The employer's medical examiner attributed her depression to events in her personal life, including an abusive husband, the break up of her marriage, and the extramarital affair.

     A Compensation Judge found that no compensable psychiatric injury had occurred, because the gossip concerned a personal matter unrelated to her employment. The Board overruled the judge, finding that the injury arose out of and in the course of employment -- because her coworkers were the source of the gossip and the gossip took place in the workplace.

     A three-judge appeals court panel has reversed. "It is not sufficient ... if the nature of the employee's duties merely provided a stage for the injury." For claim validity purposes, the claimant's job must play an "active" or "positive" role in the development of the psychological condition.

     The panel said that there is no liability "if the injury occurred merely by chance during working hours at the place of employment," unless the employer's premises place employees in an especially vulnerable or dangerous position.

     The rumors and gossip about the claimant arose from her personal relationships she made while off-duty, and these had no connection with her employment. Atascadero Unif. Sch. Dist. v. W.C.A.B., 02 C.D.O.S. 4596, 2002 Cal. App. Lexis 4162 (Cal.App. 2d Dist. 2002).

• Click here to view the opinion on AELE's website.

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Arbitration Procedures

     A party who objects to arbitration must wait until the arbitrator concludes the dispute with a final opinion, before challenging the arbitration process by judicial actions. Montgomery Co. v. Montgomery Co. Educ. Assn., #1817 CD 2001, 797 A.2d 432, 2002 Pa. Commw. Lexis 275 (Pa. Cmwlth 2002).

Back Pay Claims and Awards

     Federal appeals court rules that the federal Back Pay Act reverts to the date of the adverse action, and an award of back pay for periods pre-dating the adverse action was erroneous. Mattern v. Dept. of Treasury, #01-3253, 2002 U.S. App. Lexis 10257 (Fed. Cir. 2002).

Death Benefits

     Federal appeals court holds that the DoJ, in determining eligibility for a $100,000 federal death benefit, was not obliged to adopt the findings of a police report that concluded the deceased was killed in the line-of-duty. The deceased, who was off-duty and driving to work in his personal vehicle, was struck by a car being chased by other officers. The DoJ denied benefits, based on a finding that the deceased was unaware of the chase, and was not attempting to assist the other officers. The appeals court reversed a Court of Federal Claims decision that had overturned the DoJ determination. Demutiis v. U.S., #01-5041, 2002 U.S. App. Lexis 10259 (Fed. Cir. 2002).

Disability Rights and Benefits - Benefit Disputes

     Prison food service manager was entitled to occupational disability benefits following a fall, even though he had aggravating preexisting conditions, including morbid obesity and an asymptomatic degenerative back condition. Langford v. Employees Retirem. Sys. of Tex., #03-01-00081, 73 S.W.3d 560, 2002 Tex. App. Lexis 2873, 2002 WL 704675 (Tex.App. 2002).

Disciplinary Evidence - Admissibility/In General

     Arbitrator allows a city to introduce an employee's medical record into evidence. Although "hearsay" is usually inadmissible in a judicial proceeding, American Arbitration Association rules permit hearsay evidence in arbitration hearings. Town of Harwich [Mass.] and IBPO L-392, AAA Case #11-309-00999-1, 116 LA (BNA) 1461 (Alleyne, 2001; Rptd. 2002). Editor's Note: AAA Labor Arbitration Rule 28 (Feb. 2002) states: "The parties may offer such evidence as is relevant and material to the dispute, and shall produce such additional evidence as the arbitrator may deem necessary to an understanding and determination of the dispute. .... The arbitrator shall be the judge of the relevance and materiality of the evidence offered and conformity to legal rules of evidence shall not be necessary. ...."

Disciplinary Evidence - Exclusionary Rule

     Illinois appellate court refuses to exclude surveillance evidence because the Chicago Municipal Code (§2-152-340) requires the city's inspector general to complete investigations within six months. "The length of the investigation resulted in a more thorough investigation, which arguably protected plaintiff from being discharged without cause. These facts support a finding for admission of the evidence." Fedanzo v. City of Chicago, #1-01-0582, 2002 Ill. App. Lexis 413 (Ill. App. 2002).

Disciplinary Searches

     Fourth Circuit denies an en banc rehearing in the Los Alamos Lab whistleblower lawsuit. Action leaves intact a three-judge holding that the FBI agents violated the Fourth Amendment when they conducted a warrantless search of a DoE whistleblower's password protected computer files after his roommate consented to the search. Trulock v. Freeh, #00-2260, 289 F.3d 829, 2002 U.S. App. Lexis 7044 (Order, 4th Cir. 2002).

• Click here to read the earlier three-judge panel decision on the FindLaw website.

• Click here to read our article in the April, 2002 issue.

Handicap Laws / Abilities Discrimination - In General

     Federal appeals court finds that an arthritic employee was terminated because of computer misuse and writing an inflammatory memo, rather than reasons related to his disability. Dvorak v. Mostardi Platt Assoc., #00-4309, 289 F.3d 479, 2002 U.S. App. Lexis 9030 (7th Cir. 2002).

Handicap Laws / Abilities Discrimination - Specific Disabilities

     An employee, with a medical condition resulting in his being unable to read more than half of the workday, does not have a qualifying disability under the ADA. Szmaj v. AT&T, #01-3379, 2002 U.S. App. Lexis 9977 (7th Cir. 2002).

     A county employee with ocular albinism and corrected vision of 20/60 was not disabled under the ADA. Manz v. Gaffney, #CV 99-8442, 2002 U.S. Dist. Lexis 8363 (E.D.N.Y. 2002), relying on Colwell v. Suffolk County Police Dept., 158 F. 3d 635, 8 AD Cases (BNA) 1232 (2d Cir. 1998).

Health Insurance & Benefits

     Arbitrator rules that a city did not violate the bargaining agreement when it had to replace the dental coverage with a more expensive policy, which required a worker co-payment. The contract was silent on dental plan coverage. Oklahoma City and FOP L-123, FMCS #01/05071, 116 LA (BNA) 1502 (Moreland, 2002).

Light Duty Assignments

     Eight Circuit upholds a ruling that a claimant's subjective complaints of back pain must be supported with objective medical evidence to verify severity, and that the employee was able to return to light work. Ramirez v. Barnhart, #01-2911, --- F.3d ---, 2002 WL 1181052, 2002 U.S. App. Lexis 11089 (8th Cir. 2002).

Privacy Rights

     Federal employees: Ninth Circuit holds that the Civil Service Reform Act bars federal employee claims under the Privacy Act, affirming the dismissal of a suit brought by two deputy U.S. Marshals. Orsay v. Justice Dept., No. 00-16860, 289 F.3d 1125, 2002 U.S. App. Lexis 9127(9th Cir. 2002). They claimed that the Marshals Service violated their rights to be free from unreasonable searches by requiring them to undergo fitness-for-duty examinations, in order to return from extended time off without pay.

     Appeals court holds that a mayor's public disclosure that the chief of police was undergoing treatment for stress was not an egregious enough humiliation to support a federal privacy claim. Cooksey v. Boyer, #01-3133, 289 F.3d 513, 2002 U.S. App. Lexis 8730, 18 IER Cases (BNA) 985 (8th Cir. 2002).

Residency Requirements

     Residency requirement of City of Chicago for employees stationed at O'Hare airport is constitutional. Fedanzo v. City of Chicago, #1-01-0582, 2002 Ill. App. Lexis 413 (Ill. App. 2002).

Sex Discrimination - In General

     New York's highest court gives 9% per year prejudgment interest to a victim of discrimination who waited 12 years for a trial. To hold otherwise would encourage employers to seek delays. Matter of Aurecchione v. N.Y. St. Div. of Human Rights, 2#47, 2002 NY Int. 41, 2002 N.Y. Lexis 898 (2002).

Smoking Rights/Restrictions & Air Quality Claims

     The GSA has asked all federal agencies to prohibit the use of tobacco products within any vehicles owned or leased by the government. GSA has banned tobacco in fleet vehicles controlled by GSA since 1993. The ban was expanded on the recommendation of the Federal Fleet Policy Council. GSA Motor Vehicle Management Bulletin, 67 (72) Fed. Reg. 18205 (4/15/02).

• Click here to view the GSA Bulletin on AELE's website.

Statistical Evidence

     Ninth Circuit overturns a trial court and upholds the use of an internal pool for statistical purposes in identifying an alleged disparate impact. Paige v. State of California, #01-55312, 2002 U.S. App. Lexis 10279, 02 C.D.O.S. 4730 (9th Cir. 2002).

Whistleblower Requirements and Protection

     First Circuit holds that states have sovereign immunity from federal administrative proceedings that are initiated by state employees to invoke federal whistleblower protections. Rhode Island Dept. of Environ. Mgmt. v. United States, #00-2326, 286 F.3d 27, 2002 U.S. App. Lexis 6423(1st Cir. 2002).

Article: "Fourth Amendment Privacy Interests," by Wm. C. Heffernan, 92 (1) J. of Crim. L. & Crim. 1-126, Northw. Univ. Sch. of Law, Chicago (2002).

Article: "The development, marketing and use of integrity tests in the American workplace," by William Harris, University of Iowa (1997).

Article: "Military Support of Domestic Law Enforcement Operations: Working within Posse Comitatus," FBI Law Enforcement Bulletin, Dec. 2001.

Article: "Warrantless workplace searches of government employees," by Bryan R. Lemons, Branch Chief for the Legal Division at the Federal Law Enforcement Training Center, Glynco, GA. The Quarterly Review, Vol. 3, Ed. 3, April 2002.

Book: "Divorce and Your Federal Benefits." Discusses apportionment of pension benefits vs. lump-sum distributions, interim court orders, insurance, and financial planning strategies. $14.95 +$3.95 S/H.

Model Policy: "Substance abuse - Drugs in the workplace," Maryland Assn. of Chiefs of Police (2002).

Report: "Combating Workplace Violence," IACP Private Sector Liaison Committee.

CROSS REFERENCES