In a nonpublished decision, a California appeals court holds that if Weingarten rights apply to nonunionized public employees, those rights are not retroactive before July 10, 2000.

     We previously reported that "Weingarten" rights for interviewed federal employees were extended to nonunion employees by the National Labor Relations Board [2000 NLRB Lexis 428] and that holding was affirmed by the U.S. Court of Appeals for the District of Columbia. Epilepsy Fdn. v. NLRB, #00-1332, 268 F.3d 1095 (2001).

     We also explained that those states that have enacted public sector bargaining laws have adopted the Weingarten rule, except for NY and WV. The Weingarten rule provides that a member of a recognized bargaining unit is entitled to the assistance of a labor representative when he or she is interviewed by superiors, and the interview can reasonably result in disciplinary action.

     In the Epilepsy Foundation case, the NLRB extended the Weingarten protections to nonunion employees, such as:

     1. Persons who are employed at a nonunionized workplace, but the employer and workers are subject to bargaining laws (such as places where a union was never started, or employees voted against representation); and possibly to

     2. Persons who are employed at a unionized workplace, but who are not members of a bargaining unit (such as exempt, confidential and supervisory personnel).

     In Fontana, California, an exempt nonunion employee was interviewed in March and April of 1998. She was denied the right to have a legal representative present.

     California has recognized Weingarten rights for unionized pubic employees for many years; see Robinson v. St. Persnl. Bd., 97 Cal. App. 3d 994, 159 Cal. Rptr. 222 (1979). However, California has not, as yet, extended that right to nonunionized workers.

     The sole issue on appeal in the Fontana case was the fact she was denied presence of counsel at an interview on April 3, 1998. A three-judge appellate court panel noted that the Epilepsy Foundation case was not decided by the NLRB until July 10, 2000, and was not affirmed by the D.C. Circuit until Nov. 02, 2001. Moreover, the right to representation was not retroactive, and therefore did not apply to the appellant's interviews in 1998. They said:

     "The court below found that the holding in Epilepsy Foundation was on point. In its ruling on the writ petition, the court stated that there was no dispute that plaintiff was not a member of a union. The court found that, 'at the time of the April 3, 1998, investigation, the rule was that unrepresented employees had no right to representation at an investigatory hearing. Accordingly, [the city's counsel] was correct in advising both [plaintiff] and [the HR director] of this fact.'"

     Additionally, the panel said that "we cannot discern in the wording of the [California] statute any legislative intent to the effect that an employee has the right to have an attorney present at any time his boss discusses with him his good or poor performance."

     Traina v. City of Fontana, #E031851, 2003 Cal. App. Unpub. Lexis 1623 (4th Dist. 2003).

      • Click here to read the decision on the AELE website.

     Editor's Note: California police officers and firefighter are covered by the Public Safety Officers Bill of Rights and have specific rights to representation under Govt. Code 3303(i). Statements taken in violation of those rights may not be used in a disciplinary hearing. Wideen v. City of Fontana, San Bernardino Co. Super. Ct.; 2003 (3) Law Enf. News (PORAC) 16.

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Arbitrator declines to enforce a clause requiring the parties to submit a list of witnesses seven days before the hearing.

     In an overtime dispute, the union failed to comply with a requirement to name its witnesses seven days before the hearing. It did not do so until the day before the hearing. The arbitrator said the omission "seriously prejudiced the agency's ability to defend against union accusations." The time limits established in the bargaining agreement "were intended to prevent ... a trial by ambush."

     He nonetheless allowed them to testify. "Absent contractual language or custom and practice which expressly precludes a party from presenting testimony unless it has provided the other with its initial witness list in timely fashion, the arbitrator should not take it upon himself to impose such a restriction."

     Fed. Bur. of Prisons and AFGE L-4051, FMCS Case #02/06738, 117 LA (BNA) 1723 (Oberdank, 2002).

       • Click here to read the award on the AELE website.

     Research Note: "Wide latitude is afforded the parties in the ... manner in which evidence is presented through witnesses. Indeed, if the arbitrator imposes too strict a limitation the presentation of witnesses by a party, the award can be invalidated." Practice and Procedure in Labor Arbitration, 2d edit. p. 181. Also see "Right of parties to be heard," 5 Am. Jur. 2d §111. The safest remedy is to adjourn the hearing for the number of days that the offending party is in default.

     Recently a federal appeals court upheld a trial court order barring a party from introducing evidence because of a failure to comply with discovery demands. The panel said that barring testimony or evidence is an "extreme sanction" and is justified only when the judge has balanced the various factors, such as whether the sanctioned party is responsible for the delay, whether the other party was prejudiced, whether there was a history of delay or noncompliance, whether the delay was willful or in bad faith, whether alternative sanctions are more appropriate, and the "meritoriousness of the claim or defense." Ware v. Rodale Press, #02-1533, 2003 U.S. App. Lexis 3722 (3rd Cir. 2003).

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Arbitrator sustains the termination of a state worker with 28 years of service who had frequently visited "violent" and bondage porn sites while at work, using a state computer.

     There was news media attention that state employees had been accessing porn sites on the job. Although only 3 of 30 state employees were fired, management considered the grievant's conduct to be worse than others. He, and he alone, had accessed "violent pornographic websites that were demeaning, threatening and disgusting." He had:

1. intentionally used search terms such as "abduction," "torture" and "bondage";
2. repeatedly accessed at least 30 websites and more than 100 web pages showing acts of violence against naked and terrified women; and
3. the content viewed "stood out as violent and disturbing in comparison to the content of the sites visited by the other violators, and in comparison to other cases in the experience of the investigators."

     The arbitrator noted that the state had a plan for evaluating the various kinds and degrees of inappropriate use of e-mail. A team that included representatives of management, human resources, the employee relations, and internal and external investigators met to evaluate the employees' activities. Content was rated at four levels:

1. sexual jokes and cartoons with nudity;
2. more sexually explicit materials, including nude pictures and stories or jokes about sexual acts;
3. much more sexually explicit and violent pictures and stories;
4. child pornography.

    Management had rated the grievant's Internet activity at level 3, but it was considered more serious to search out such material on the Internet -- which the grievant did.

     The arbitrator ignored, for purposes of punishment mitigation, that the grievant's activity was unobserved by and unknown to other employees, and he had nearly three decades of service. State of Minn. Dept. of Admin. and AFSCME C-6, Case 302-PA-1156, 117 LA (BNA) 1569 (Neigh, 2002).

      • Click here to read the award on the AELE website.

     Editor's Note: This case did not involve child porn, which is a crime to possess. Management assessed, and the arbitrator sustained, the ultimate penalty -- at least in part -- because the grievant's superiors thought that the websites he had visited depicted women in a more demeaning way than "plain vanilla" porn surfing.

     If the content had been inadvertently observed by a woman coworker, or if the conduct also included a sexual harassment complaint, the more "degrading" that women were visually portrayed would have a direct relevance to the punishment assessed; here it did not and this award may be unique.

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Arbitrator sustains the charges that an off-duty police officer assaulted his brother and cursed in a public place. The punishment was reduced from termination to a 295-day suspension.

In a disciplinary hearing, an accused employee is entitled to see uncensored documents in his personnel file, to better prepare a defense.

     An arbitrator noted that the grievance admitted, on a videotape, that he "beat the shit" out of his brother. He claimed he acted in self-defense. As there were no witnesses who saw the beginning of the fight, it was not possible to determine who was the aggressor.

     The tape showed the grievant was intoxicated and was cursing at the jail.

     However, termination was "too harsh" under the circumstances and in comparison to the discipline imposed on other officers. As the grievant was under suspension for almost 300 days, reinstatement without back pay is sufficient punishment.

     On a procedural matter, the arbitrator ruled that management must give officers an unedited copy of all documents used by the chief to impose disciplinary action. He said:

     "If the officer is to prepare a defense of the charges against him he MUST be provided with all those documents, including audio or video materials, relied on or reviewed by the Department Head (Chief of Police) when that individual made the decision to discipline. The Chief reviewed the Memoranda, unredacted, provided by the chain of command. The Grievant is entitled to also have an unredacted copy."

     City of Fort Worth and Individual Grievant, AAA Case No. 71-390-00207-2, 117 LA (BNA) 1621 (Goodman, 2002).

      • Click here to read the award on the AELE website.

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Appellate court in New York affirms an arbitration award that process servers in the sheriff's dept. must be provided with firearms and training.

     The sheriff in upstate Rochester did not arm the deputies assigned to the civil bureau. The deputies association grieved, and an arbitrator sustained the grievance. The arbitrator noted that civil deputies enforce court orders, evict occupants, seize property, and "must restrain combative, suicidal, argumentative or mentally disturbed people."

     He noted that civil deputies wear ballistic vests and carry handcuffs. It would be "irresponsible" to deny them "the equipment they need to meet the greatest threats to their safety."

     The sheriff sought judicial review. A trial court judge found that the award, requiring the arming of civil deputies, was contrary to public policy. On further review, a five-judge appeals panel has unanimously reversed.

     The panel did not discuss the merits of the award, but did note that "an arbitrator is selected by both labor and management because of his or her expertise in the area of labor disputes," and that both sides trust his judgment.

     Here, there were no overriding public policy concerns that would interfere with the arbitration award, and the courts were therefore bound to enforce it as written. Matter of Arb. Monroe Co. Dep. Sheriff's Assn. and Monroe Co. Sheriff, #Ca 02-00998, 752 N.Y.S.2d 457, --- A.D.2d ---, 2002 N.Y. App.Div. Lexis 12887 (12-30-2002).

     • Click here to read the decision on the AELE website.

     Editor's Note: Another arbitrator determined that a firearm was not necessary safety equipment for a uniformed ordinance enforcement officer, even though he stopped and cited motorists. City of Novi and Teamsters L-214, 103 LA (BNA) 132 (Brown, 1994).

     Also in California, a three-judge appeals court concluded that a firearm is necessary "safety equipment" of a police officer. The city was required to furnish a firearm to police officers at the employer's expense, under a state labor code section requiring employers to furnish necessary safety equipment. Oakland Police Officers Assn. v. City of Oakland, 30 Cal.App.3d 96, 1973 Cal.App. Lexis 1140, 106 Cal.Rptr. 134 (1973).

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Reacting to complaints from coworkers about offensive tattoos, and from superior officers about bizarre body piercings and dental ornamentation, the U.S. Navy has revised its grooming standards for uniformed and civilian personnel.

     Effective in 2003, the revisions adopt a tattoo policy for Navy personnel and clarify the personal appearance policy regarding intentional mutilation of body parts and dental ornamentation. The new regulations now read:

     Tattoos/body art/brands. No tattoos/body art/brands on the head, face, neck, or scalp. Tattoos/body art/brands elsewhere on the body that are prejudicial to good order, discipline and morale or are of a nature to bring discredit upon the Navy are prohibited. For example, tattoos/body art/brands that are excessive, obscene, sexually explicit or advocate or symbolize sex, gender, racial, religious, ethnic or national origin discrimination are prohibited. In addition, tattoos/body art/brands that advocate or symbolize gang affiliation, supremacist or extremist groups, or drug use are prohibited. Tattoos/body art/brands will not be visible through uniform clothing. Waivers may be requested for prior service and existing tattoos from the Chief of Naval Operations.

    Mutilation. Intentional body mutilation, piercing, branding/intentional scarring that are excessive or eccentric are prohibited. Some examples are:

(1) a split or forked tongue;
(2) foreign objects inserted under the skin to create a design or pattern;
(3) enlarged or stretched out holes in the ears (other than a normal piercing).
(4) intentional scarring that appears on the neck, face, or scalp. Waivers may be requested for prior service and existing body mutilation, piercing, branding/ intentional scarring from the Chief of Naval Operations.


    Dental ornamentation. The use of gold, platinum or other veneers or caps for purposes of ornamentation are prohibited. Teeth, whether natural, capped or veneer, will not be ornamented with designs, jewels, initials, etc. Waivers may be requested for prior service and existing dental ornamentation from the chief of naval operations.

    By way of contrast, the current Army regulations now provide:

     Body Piercing. No attaching, affixing, or displaying objects, articles, jewelry or ornamentation to or through the skin while in uniform, in civilian clothes, while on duty, or in civilian clothes off duty on any military installation or other places under Army control. This change supersedes the current male earring policy. This message does not change the current policy regarding female wear of earrings. Female soldiers are authorized to wear earrings on Army installations while on duty in civilian attire and may also wear approved earrings while in uniform.

     Tattoos. Visible tattoos or brands on the neck, face or head are prohibited. Tattoos on other areas of the body that are prejudicial to good order and discipline are prohibited. Additionally, any type of tattoo or brand that is visible while wearing a Class A uniform and detracts from a soldierly appearance is prohibited.

     Ref: NAVADMIN 021-03 (Jan. 2003) and Army regulation AR 670-1.

      • Click here to read the full text of the Navy's "Grooming Standards" for uniformed personnel. [PDF]

      • Click here to view the full text of the Navy's "Civilian Clothing" regulations. [PDF]

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Independent arbitrator opts for the police union's benefits demand, which encouraged officers to stay with the agency -- which was suffering from a high turnover rate.

     When a city in Oklahoma and the union were unable to agree on a new contract, tripartite arbitration convened. The independent arbitrator wrote an award which adopted the union's demands, under the "last best offer" system.

     The turnover rate for officers was 40% a year, and it takes 22 weeks of preservice and on-the-job training before an officer can work solo. Worse, "the Town has become the training ground of probationary police officers for other cities; thus, the Town subsidizes other cities' recruiting and training costs."

     In selecting the union's demands for health coverage and leave, the arbitrator was hoping to promote the retention of more experienced officers, and "lessen the potential liability of the Town when less experienced police officers face extreme situations."

     Town of Union City and L-144, I.U.P.A., FMCS Case No. 02/12456, 117 LA (BNA) 1544 (Woolf, 2002).

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

       • Resource article: "Calculating the Cost of Police Officer Turnover," 2 (1) Law Enforcement Executive Forum 41-45 (2003) IL Law Enf. Trng. & Stds. Bd., by Chief Dwayne Orrick, Cordele, GA Police Dept.

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Arbitrator reinstates a corporal who was fired because of very minor actions. The grievant also was president of the FOP and had cost the city substantial amounts for the arbitration actions he initiated.

     The city demoted a sergeant to corporal, ordered remedial retraining, and then fired him for "substandard" performance, motivational deficiencies and "interpersonal relationship problems."

     The officer also was president of the FOP and the union's lawyer noted that as president, he litigated four grievances through arbitration -- costing the city substantial amounts.

     The arbitrator observed that the union had claimed that the termination was intended "to intimidate the FOP in general and to retaliate specifically against [the grievant] for his leadership role in the FOP." He found that to be a "plausible explanation," but added that the city did not know how to effectively administer disciplinary action.

     The officer was not adequately notified of his alleged shortcomings, and progressive disciplinary action was ignored. The grievant had an acceptable work record and his performance appraisals were average or better.

     However, as president of the local, "he should be a benchmark police officer." He was not a team player, was careless from time to time and needs to improve his interpersonal relationships.

     All of those deficiencies should have been addressed and could have been corrected "through counseling, training, and progressive discipline by the City." That was not done.

     He concluded that he was unsure why the city had fired the grievant, but "for whatever reason, it was without just cause."

     The arbitrator did not reduce the punishment; he rescinded it completely, and ordered reinstatement with full back pay. City of Coweta, Okla. and FOP L-192, FMCS Case#02/11822-8, 117 LA (BNA) 1547 (Crow, 2002).

     • Click here to read the award on the AELE website.

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Arbitrator upholds management in giving a substandard evaluation to a crime lab specialist, rejecting a union demand that management must have written performance policy.

      A 25-year lab specialist, who had been repeatedly counseled for turning in late reports, grieved his substandard evaluation -- which presumably was a prelude to disciplinary action.

     The union claimed there was no written policy that placed a firm time limit on report completions. Management said that counseling for tardiness, over a long period, was adequate notice of the grievant's deficiencies, and created an established past practice.

     The arbitrator agreed with the union that a written performance standard is preferable, but was not essential -- provided an errant employee is put on notice, has an opportunity to improve, and fails to achieve the needed result.

     The grievance was denied. San Bernardino Co. Sheriff and Public Employees Assn., 117 LA (BNA) 1588 (Grabuskie, 2002).

      • Click here to read the award on the AELE website.

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California appeals court holds that a male executive's order to fire a female employee because she failed to meet his personal standards for sexual attractiveness is an act of sex discrimination, when similar standards are not applied to men. A subordinate's refusal to carry out that order was a protected activity, and she can recover damages for retaliation, including an emotional distress claim, which is not barred by workers' compensation laws.

     An intermediate management executive was told by her male superior that an associate was "not good looking enough." He directed her to replace the associate with "somebody hot."

     Later he chastised the manager for not terminating the unappealing associate, and said he wanted a sexy young blonde. Again, the manager did not carry out the request and she was later fired, ostensibly for performance problems.

     She sued, alleging retaliation for failing to assist her boss in an illegal act of sex discrimination. The employer argued that physical appearance is not a protected category under employment discrimination laws. On appeal, a three-judge panel said:

     "The issue is not whether physical appearance is a protected category. ... Instead, the issue is one of sex discrimination: May a male executive insist that a female subordinate be terminated because she is not sexually appealing to him, when no similar orders are issued with respect to male employees?

     "Sex discrimination in the workplace comes in many guises. In a most basic form, it involves outright exclusion of women, solely by reason of their sex. Even where women have gained access to the workplace, sex discrimination may persist ... through perpetuation of a glass ceiling that ensures women will only rise so high on the corporate ladder, or through the unwritten establishment of two sets of rules for success: for men, based on performance, and for women, based on appearance."

     In this case, an explicit order to fire a female employee for failing to meet a male's personal appearance standards was sex discrimination. To recover, the plaintiff needs only to show a good faith, reasonable belief that the order was discriminatory.

     A jury could find that the proffered reasons for her termination were pretextual. She submitted evidence that her superior actively sought negative input and subjected her performance to heightened scrutiny for the purpose of getting rid of her.

     The panel went on to hold that the trial court had improperly dismissed her claim for emotional distress, concluding that it was barred by workers' compensation law. Unlawful discrimination is not a covered job risk, and workers' compensation laws do not bar emotional distress claims founded on discrimination because "the conduct involved is not part of the normal risks attendant to the employment relationship."

     Yanowitz v. L'Oreal, #A095474, 2003 Cal. App. Lexis 342 (1st Dist. 2003).

     • Click here to read the award on the Internet. [PDF]

     Editor's Note: In Wilson v. Southwest Airlines, 517 F.Supp. 292 (N.D.Tex. 1981) the court rejected an argument that the company was entitled to hire only attractive women because female sex appeal was a BFOQ under Title VII. Other airline cases established that women employees could not be subjected to more severe or burdensome appearance standards than men; Gerdom v. Continental Airlines, 692 F.2d 602 (9th Cir. en banc 1982); and Frank v. United Airlines, 216 F.3d 845 (9th Cir. 2000).

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Federal court finds valid reasons to reject the wrongful termination complaints of two women correctional officers, but awards them each $150,000 in compensatory damages and $20,000 in punitive damages for harassment and retaliation.

     Two former county correctional officers sued claiming gender discrimination, sexual harassment, maintenance of a hostile work environment, and retaliation. At the end of the trial the court found they were not victims of discrimination when they were passed over for promotion and when they were terminated.

     They did suffer vulgar and discriminatory treatment, harassment and retaliatory action. Each was awarded $150,000 for emotional distress, $20,000 in punitive damages, and additional sums for their medical expenses.

     Management did not take corrective action after they filed complaints, and in fact they suffered retaliatory action. Nonetheless, both women were promoted to sergeant, were not promoted to lieutenant because they were not as qualified as those who were promoted, and neither woman was terminated for invalid or pretextual reasons.

     They were victims of gender-based harassment, which included:

     1. A stream of epithets directed at, or about, women ("cunt," "douche bag," "crotchburn," "birdbrain," "FMH"-for "fuck me hard"-and the like);

     2. Constant deprecation of the professional abilities of female correctional staff, and particularly harsh and nearly uniform expressions of contempt for women attempting to work in "line" positions;

     3. Regular and unchecked insubordination by male officers towards women of rank, including derisive saluting;

     4. A failure to support women reporting problems with subordinates;

     5. Inconsistent and often half-hearted efforts to investigate and remedy instances of sexual harassment;

     6. Assignment patterns designed to undermine women as supervisors, and

     7. Excessively aggressive scrutiny and inordinately harsh discipline of female correctional officers (especially women applying for promotion, or protesting discrimination).

     Brissette v. Franklin Co. Sheriff's Office, #98-30062, 235 F.Supp.2d 63, 2003 U.S. Dist. Lexis 95, 90 FEP Cases (BNA) 1295 (D. Mass. 2003).

     o Click here to view the opinion on the AELE website.

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Hawaii's Supreme Court upholds a disability claim by a firefighter who suffered emotional distress because of what he perceived to be a flawed promotional process, and a threat of retaliation by the chief when he appealed the outcome.

     A Honolulu firefighter contested a 1991 promotional exam. He complained that he was forced to endure a hostile work environment and harassment by his superiors, and the fire chief told him that "if he did not stop his complaining, he would be squashed like a pest, like a fly."

     He underwent counseling for stress. A clinical psychologist found that a contributing factor was his persistence in pursuing these promotion and grievance issues. Ultimately he sought job-induced, stress-related disability benefits.

     After this was denied he appealed to the courts. The intermediate appellate court concluded that the disability laws cover psychological injuries arising out of non-disciplinary promotions and demotions. The city appealed.

     The Hawaii Supreme Court noted that some states specifically exclude disability benefits for emotional trauma that is induced by personnel problems. Hawaii does not specifically exclude those reasons. They said:

"... the Department encourages its employees to advance ... by taking the promotional examination ... [and] if [the claimant] was directly injured while taking the test, his injuries would be clearly compensable.

"Here, however, [his] stress injury does not stem from taking the test itself, but from the alleged mis-scoring of his results. Although this situation appears two steps removed from the ultimate work, upon closer inspection, it is no less work-related ... and is incidental to the employment of a Honolulu firefighter. ...

"Accordingly, an injury that stems from that process is incidental to the employment and results from an activity that serves an important interest of the Department. We therefore affirm the ... holding that [the claimant's] injury is compensable."

     A concurring justice noted that the benefits for psychological injuries are allowed in Hawaii for stress resulting from disciplinary actions. If the legislature wants to amend the law and exclude claims arising out of personnel matters it can do so, but the courts should recognize the validity of such claims until that time.

     Davenport v. C&C of Honolulu, #23141, 100 Haw. 481, 60 P.3d 882, 2002 Haw. Lexis 850 (Haw. 2002; released 2003).

     • Click here to view the opinion on the Internet.

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Federal court refuses to dismiss a damage suit against the village and fire chief that alleges the denial of a promotion and other retaliation because of the plaintiff's long-term efforts to unionize and collectively bargain.

     The plaintiff had vigorously negotiated wage agreements and his name was synonymous with union problems. Although he had earned the highest scores on the standard knowledge and local written parts, he was told that he failed the promotional process for advancement to lieutenant.

     He sued in federal court, alleging his First Amendment and civil rights were violated by his exclusion from lieutenant's promotional process and retaliation for engaging in union activity.

     The court refused to dismiss the complaint. Union activities are protected by the First Amendment and the defendants were not entitled to assert the qualified immunity defense. Cunningham v. Vil. of Mount Prospect, #02C4196, 2002 U.S. Dist. Lexis 22772 (N.D. Ill. 2002).

     • Click here to read the opinion on the AELE website.

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Applicant Rejections

     Federal appeals court affirms the dismissal of an age discrimination suit brought by a rejected police applicant. The reason he was not selected was high blood pressure; therefore, he was not medically qualified for appointment. Tyler v. D.C. Metro. Police, #02-7112, 2003 U.S. App. Lexis 2687 (Unpub. D.C. Cir. 2003).

Collective Bargaining - Duty to Bargain

     N.Y. appellate court upholds a Employment Relations Board decision that a police union was guilty of an Unfair Labor Practice for refusing to bargain with management on the one vs. two-officer patrol car issue. Buffalo PBA v. N.Y. State P.E.R.B., #TP02-01319, 752 N.Y.S.2d 498, 2002 N.Y. App. Div. Lexis 12899 (2002). [PDF]

Collective Bargaining - In General

     National union files a civil action challenging the DoT directive that precludes collective bargaining rights for TSA airport security personnel. AFGE v. Loy (D.D.C. 2003). [PDF]

Contracts, Consultants and Outsourcing

     An Ohio city attorney, who was dismissed without cause, cannot collect the remainder of a three-year contractual fee. A lawyer has an ethical obligation not to bill for services not performed. City of Moraine v. Lewis, #19402, 151 Ohio App.3d 526, 2003 Ohio 460, 784 N.E.2d 774, 2003 Ohio App. Lexis 430, 19 IER Cases (BNA) 1123 (2003).

Criminal Liability

     Federal appeals court affirms the conviction of a police K9 officer for misusing her dog to attack a suspect. Officer was sentenced to 120 months imprisonment. U.S. v. Mohr, #01-5002, 318 F.3d 613, 2003 U.S. App. Lexis 1783 (4th Cir. 2003).

Disciplinary Appeals & Challenges- In General

     Illinois appellate court rejects a damage suit against a urine-testing lab that destroyed the plaintiff's specimens, which they had reported as positive for cocaine use. The plaintiff, a terminated police officer, fully litigated that issue in his disciplinary hearing, and the doctrines of res judicata and collateral estoppel apply. Bagnola v. SmithKline Beecham Labs., No. 1-00-0224, 333 Ill.App.3d 711, 776 N.E.2d 730, 2002 Ill. App. Lexis 750 (2002).

Disciplinary Punishment - In General

     An appeals court in Pennsylvania concludes that an arbitrator properly reduced a termination to a disciplinary suspension; a female jail clerk had a copy of Playgirl magazine in her desk drawer. Bedford County v. Penn. Soc. Servs. Union L-668, #1621 C.D. 2002, 814 A.2d 866, 2003 Pa. Commw. Lexis 24, 171 LRRM (BNA) 3038 (1/13/03).

     Arbitrator reduces the penalty, from termination to a 30-day suspension, imposed on a contract Air Force facility security officer who failed to have his firearms license renewed within the deadline time period. Pyramid Services and IBOT L-986, 117 LA (BNA) 1687 (Cloke, 2002).

Discovery, Publicity and Media Rights

     Police officers' Assn. loses suit to uncover the public defender's database of police officers. It is not a "public record," and if it is, it would be exempt because the public interest in nondisclosure clearly outweighs the public interest in disclosure. Coronado Police Officers Assn. v. Carroll, #D039198, 2003 Cal. App. Lexis 331 (4th Dist. 2003). [PDF]

Fair Labor Standards Act - Constitutionality

     Iowa Dept. of Public Safety, which had stopped paying overtime, has lost its appeal to the U.S. Supreme Court that the FLSA cannot be constitutionally applied to state governments. Eight other states filed a brief supporting Iowa's unsuccessful appeal. Anthony v. Iowa, #223/99-0515, 632 N.W.2d 897, 2001 Iowa Sup. Lexis 152; cert. den. #01-790, 534 U.S. 1129, 122 S.Ct. 1068 (2002).

Fair Labor Standards Act - Administrative & Executive Exemptions

     Federal appeals court upholds an Office of Personnel Management definition of the executive exemption to the Fair Labor Standards Act. Billings v. U.S., #02-5069, 2003 U.S. App. Lexis 4547 (Fed Cir. 2003).

First Amendment Related

     Federal appeals court overturns a District Court order that the CIA was required to release classified matter to a former employee that sued the agency for supposedly misclassifying as his proposed book as containing state secrets. Stillman v. C.I.A., #02-5234, 319 F.3d 546, 2003 U.S. App. Lexis 3437 (D.C. Cir. 2003).

Handicap Laws / Abilities Discrimination - Accommodation - Teleworking

     Seventh Circuit rejects an employee's ADA "reasonable accommodation" for "a home office in its entirety." Rauen v. U.S. Tobacco, #01-3973, 319 F.3d 891, 13 AD Cases (BNA) 1797, 2003 U.S. App. Lexis 2211 (7th Cir. 2003) [PDF]

Homosexual & Transgendered Employee Rights

     Noting that gender dysphoric persons who have completed sexual reassignment surgery are "an under-represented group" in policing, the London Metropolitan Police have recruited their first transsexual officer. The 39-year-old male officer, who was born a female, will not be allowed to conduct searches because of a fear of lawsuits. Source: Evening Standard (UK) 02/18/2003.

Injuries to Employees

     Louisiana appeals court allows a deputy to sue for her slip-and-fall injuries because officials knew the floor was dangerous when wet, and the sheriff's office was not covered by worker's comp. insurance. Gorton v. Ouachita Parish Police Jury, #35,432-CA, 814 So.2d 95, 2002 La. App. Lexis 920 (La.App. 2002).

Occupational Safety & Disease

     H.R. 536, the "Fairness for State and Local Workers Act," has been introduced by Rep. Robert E. Andrews (R-NJ); it would amend the Occupational Safety and Health Act of 1970 to extend federal job health and safety coverage for all state and local government employees. Currently OSHA applies to public sector employees in only 25 of the 50 states.

Privacy Rights

     A federal appeals court has refused to dismiss a suit, brought under the Privacy and Rehabilitation Acts, by a postal worker whose HIV-positive status was revealed to coworkers after he requested medical leave. Doe v. U.S. Postal Service, #01-5395, 317 F.3d 339, 13 AD Cases (BNA) 1801, 2003 U.S. App. Lexis 3277 (D.C.Cir. 2003).

Race Discrimination - In General

     Federal court rejects a promotion discrimination suit filed by a black lawyer in the Justice Dept. Although he characterized the position sought as a "promotion," it was a lateral movement with the same pay and benefits. "...a plaintiff who is ... denied a lateral transfer ... does not suffer an actionable injury unless there are some other materially adverse consequences ..." Stewart v. Ashcroft, 211 F.Supp.2d 166, 2002 U.S. Dist. Lexis 13548, 90 FEP Cases (BNA) 611 (D.D.C. 2002).

Religious Discrimination

     Second Circuit finds that a Jewish deputy inspector of police sufficiently alleged promotional discrimination because of his religion and his public criticism of pro-Catholic bias in the agency; the appellate panel overturned a lower court order dismissing his claims. Mandell v. County of Suffolk, #01-7729, 316 F.3d 368, 2003 U.S. App. Lexis 650, 90 FEP Cases (BNA) 1328 (2nd Cir. 2003).

Residency Requirements

     New York's highest court invalidates a residency requirement for a police officer examination that was established in the official exam notice. A civil service authority must hold a hearing before adopting a residency requirement. Trager v. Kampe, #2 No. 1, 2003 N.Y. Lexis 182 (N.Y. 2003).

Sexual Harassment - In General

     Federal appeals court rejects the argument that a state agency is immune, under the 11th Amendment, from a Title VII sexual harassment claim. Downing v. Bd. of Tr. of Univ. of Alabama, #00-10481, 321 F.3d 1017, 2003 U.S. App. Lexis 2697, 91 FEP Cases (BNA) 78 (11th Cir. 2003).

     A prison warden's preferential treatment of his paramours was not pervasive harassment and did not altered the conditions of the plaintiffs' employment because of their gender. Mackey v. Dept. of Corrections, #C040262, 105 Cal.App.4th 945, 130 Cal.Rptr.2d 57, 2003 Cal. App. Lexis 120, 90 FEP Cases (BNA) 1651 (2003). [PDF] (Also available in Microsoft Word format).

Sexual Harassment - Verdicts, Settlements & Indemnity

     Illinois counties are required by statute to indemnify sheriffs for judgments and settlements against them for all official acts, and a county was required to pay a $500,000 consent judgment for sexual harassment. Carver v. Sheriff of La Salle County, #91108, 91 FEP Cases (BNA) 29, 2003 Ill. Lexis 13 (Ill. 2003). Also see 243 F.3d 379, 2001 U.S. App. Lexis 3934 (7th Cir. Ill. 2001).

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Articles:

     • Police suicides: "Police Suicide: Can it be prevented?" by John M. Violanti, Ph.D.

News items:

     • Pay banding: The Dept. of Homeland Security likely to remove more transferred federal employees from the GS pay schedules into a pay banding system that groups several grades; it gives managers more wage flexibility and allows for non guaranteed enhanced earning opportunities. Issues of Merit (Feb. 2003), Office of Policy and Evaluation, U.S. Merit Systems Protection Board.

Reference:

CROSS REFERENCES