Second Circuit finds that a union informational poster, comparing the political positions of the presidential candidates, could not be posted on federal government bulletin boards, as it clearly violated the Hatch Act.

     In the Fall of 2000, a postal union distributed a poster comparing the campaign positions and voting records of the Republican and Democratic party presidential candidates on issues of concern to the membership. While the poster purported to present only factual information, the union does not seriously dispute that it was intended to generate support for then Presidential candidate Al Gore.

     After the posters were displayed on postal facilities bulletin boards, the U.S. Office of Special Counsel issued an advisory opinion to the Postal Service stating that the posting violated the Hatch Act.

     The U.S. Office of Special Counsel is an independent federal investigative and prosecutorial agency, and exercises duties and powers proscribed in the Civil Service Reform Act of 1978, the Whistleblower Protection Act of 1989, and the Hatch Act, as amended in 1993.

     The Hatch Act, 5 U.S. Code §7324, prohibits federal employees from engaging in political activity while on duty, in a government office or building, while wearing an official uniform, or using a government vehicle. Postal Service officials instructed managers to remove the posters and return them to union representatives.

     However, when considering the 1993 amendments to the Hatch Act, a Congressional Report approved of the posting of union newsletters on bulletin boards, and the distribution of union newsletters in a Federal building -- even though the papers might contain political endorsements.

     Shortly before the presidential election, the union obtained an injunctive relief against removal of the posters and any disciplinary actions to prevent involved employees.

     Thirty-three months after the election, the Second Circuit reversed the District Court in a 3-to-0 holding. The Congressional Report also said "No political activity on the job, zero, including even what is permitted under today's [pre-1993] Hatch Act," See 139 Cong. Rec. 15,366 (July 13, 1993).

     The appellate panel found that the content fell squarely within the activities proscribed by the Act at §7324(a). The panel also rejected a First Amendment defense of the posters. Burrus v. Vegliante, #02-6257, 2003 U.S. App. Lexis 14125 (2nd Cir. 2003).

     • Click here to view the opinion on the Internet. [PDF]

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Arbitrator holds that a public employees' union may post "generic" employment information on workplace bulletin boards, but not "internal" membership information.

     Employee bulletin boards are like a firearm in the desk drawer; they have been misused to post defamatory or demeaning content, giving rise to suits for racial or sexual harassment. They also have been useful in defusing labor-management tensions, in building worker loyalty and in providing worthwhile information.

     A U.S. Naval installation labor agreement was signed long before computers were on workers' desks. When the union sought to use an electronic bulletin board, management agreed, on several conditions. The EBB could not be used for:

A. Information regarding internal union business.
B. Slanderous, derogatory, or otherwise objectionable remarks about management or management officials.
C. Charges of Unfair Labor Practices.
D. Union or individual grievances.


E. Remarks or statements that would subject the command to ridicule.

     In looking at two grievances filed by the union, some of the points decided by the arbitrator, were:

     1. The union may file a grievance any time the employer deletes any material from the electronic bulletin board.

     2. The deletion of union material is a continuing violation.

     3. The union's failure to grieve each and every time the employer deletes material does not bar the union from grieving on other occasions.

     4. Management can act promptly to remove unauthorized or inappropriate material from the EBB. The arbitrator said:

"If the employer had to wait months from the time the union posted material on the electronic bulletin board which might be in direct violation of the restrictions ... the subsequent removal would be akin to locking the barn door after the horse has escaped. For example, this grievance ... is dated more than seven months later."

     5. Management should not have deleted a union report of state labor laws, which was "generic information, which may be of interest to any worker, or citizen." He added that if an employer could censor generic information "the agreement to allow the union to use the electronic bulletin board would essentially be rendered meaningless."

     6. Management was entitled to delete information related to the internal workings of the union local.

     Naval Inventory Control Point and AFGE L-1156, 118 LA (BNA) 695 (Pritzker, 2002; rptd. 2003).

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

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Federal court in Philadelphia concludes that a probationary officer, who was fired after his arrest on a morals charge, is entitled to a name-clearing hearing. His acquittal of all criminal charges did not satisfy the hearing requirement.

     A Philadelphia probationary police officer was arrested for sexual assault and corrupting the morals of a minor, which he vigorously denies. Without affording the officer a pretermination hearing, management fired him.

     The ex-officer requested a name-clearing hearing, but that request also was denied. He was subsequently acquitted of the criminal charges, and sued, seeking a court-ordered name-clearing hearing, relying on the Supreme Court case of Codd v. Velger, 429 U.S. 624 (1977).

     The court rejected the City's argument that the ex-officer was not entitled to a hearing unless he could prove that the city actually defamed him. The judge also ruled that a criminal trial did not take the place of a name-clearing hearing because the purposes are different. Graham v. Johnson, #02-7794, 2003 U.S. Dist. Lexis 12146 (E.D. Pa. 2003).

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

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Virginia State Bar rules that a lawyer employed by a federal agency does not act unethically by performing lawful undercover work that involves deception.

     Virginia' s Rules of Professional Conduct for attorneys prohibits them from engaging "in conduct involving dishonesty, fraud, deceit or misrepresentation. An attorney who works for a federal intelligence agency asked for an interpretation.

     The Ethics Committee concluded that lawful methods used by intelligence and law enforcement professionals serve an important and judicially approved social policy. Moreover, this type of deceit does not reflect adversely on a lawyer's fitness to practice law and thus it would not be professional misconduct.

     Virginia State Bar Ethics Opinion No. 1765, 41 (2019) G.E.R.R. (BNA) 768 (6/13/03).

     • Click here to view the opinion on the Internet.

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Indiana appellate court denies leave to a state employee that wanted paid time off to bereave the death of her domestic partner's father.

     Indiana state employees are allowed three days of paid funeral leave to attend the funeral in the family of their spouses. Unmarried couples, whether of the same or opposite gender, do not have that right.

     The plaintiff is a lesbian in a five-year relationship with a woman whom she would marry if same-gender marriages were allowed under state law. She was denied paid leave after the death of her domestic partner's father. She used vacation days instead.

     The appellate court unanimously denied her claim. Cornell v. Hamilton, #49A02-0208-CV-635, 2003 Ind. App. Lexis 1206 (2003).

     • Click here to view the opinion on the Internet.

     Research Note: Only Vermont and Ontario have, by court decision, extended the benefits of marriage to homosexual couples. Baker v. Vermont, #98-032, 744 A.2d 864, 1999 Vt. Lexis 406 (1999) and Halpern and Attorney General of Canada, #C39172 (Ont. App. 2003). Other jurisdictions have done so by state statute, local ordinance, personnel manual or in the bargaining agreement.

     A federal court in N.Y. allowed an employer to give partner benefits to gay workers, but to deny them to heterosexual workers. The rationale was that heterosexual couples can lawfully marry. Foray v. Bell Atlantic, 56 F.Supp.2d 327, 1999 U.S. Dist. Lexis 8494 (S.D.N.Y. 1999).

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Hawaii's compensation board denies a police dispatcher's claim for repetitive motion injuries. She could not show a relationship between her job and the condition.

Similarly, the Illinois' compensation board rejects a police officer's claim for repetitive motion injuries. The fact that he drives a patrol car several hours a day, and types various reports, did not establish an occupational connection.

     A police radio dispatcher operated a computer keyboard, radio, telephone, fax machine, printer, and dictation equipment. Although she had a history of musculoskeletal pains, she sought benefits for pain, which she claimed was the result of "poor office ergonomics" and having to make rapid and repetitive bodily movements at work on a daily basis for 19 years.

     Physicians rendered different diagnoses that included ulnar neuropathy, cervical radiculopathy, and non-specific thoracic outlet syndrome, but there were no clinical findings to support any of these conditions. Her cervical spine was normal and there was no structural abnormality of her neck to account for her claim of sensory deficits in her right hand.

     The Hawaii Labor and Industrial Relations Appeals Board found there was no evidence to support a claim that her "injury" was job-related. Andrade v. Co. of Hawaii Police Dept., #AB2001-307, 2003 HI Wrk.Comp. Lexis 3 (Haw. Labor Rel. App. Bd. 2003).

     In the Illinois case, a 30 year-old police officer alleged that his work activities caused him to develop bilateral carpal tunnel syndrome. He testified that he types memos and reports, uses a computer in the patrol car, and drives for several hours a day.

     A physician testified that carpal tunnel is caused by repetitive movement and stress every two to three seconds for over four hours a day, and in his opinion, the officer's work did not cause the condition. The officer lifts weights in his leisure time, which could have caused his condition.

     An arbitrator rejected the claim and the Illinois Industrial Commission affirmed. Kruzan v. Jacksonville Police Dept., #00WC069029, 2003 Ill. Wrk. Comp. Lexis 160 (2003).

     • Click the link to view the Hawaii and Illinois decisions on the AELE website.

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Ninth Circuit rejects the suit of a former detective who claims constructive discharge because management purportedly terminated her because of her disability (depression and attempted suicide). However, she sufficiently alleged a claim of intimidation to warrant the trial of her lawsuit.

     A detective was severely depressed and attempted suicide. After several weeks of medical leave she returned to work. The consulting clinical psychologist recommended that she not be required to work on "call out" duty, as it would disrupt her sleep habits and could contribute to her depression.

     A superior recommended that she be fired for mishandling a citation, and other minor deportments. Management imposed a 10-day suspension. She did not return to work, and after a period of leave, took medical retirement.

     She sued seeking back pay and benefits, compensatory damages, and the difference between her retirement pay and full wages if she continued until her intended retirement date. She alleged that the investigation and disciplinary action taken against her constituted retaliation, coercion, and intimidation in violation of §503 (42 U.S. Code §12203 §12203(a&b)).

     The district court found that management had a good reason to suspend the plaintiff for falsifying her reports to cover up the fact that she had failed to timely submit a citation in an assault case -- and that she had failed to present evidence that her suspension was pretextual.

     A three-judge appeals panel found that the district court properly granted a summary judgment to the city on the retaliation claim under §503(a), but reversed on the intimidation claim under §503(b), and said:

"We are equally confident that other allegations - most notably [the sergeant's] demands that [the plaintiff] stop taking her medications and perform night-time call-out or face demotion or forced retirement -- do constitute actionable threats because [the plaintiff] has alleged that she has suffered short-term memory problems and felt extremely stressed, harassed, and pressured by [her sergeant].

"These allegations of direct harm resulting from [the sergeant]'s threat -- especially when viewed alongside [the plaintiff]'s assertions that [the sergeant] made unauthorized inquiries to the Department's Behavioral Sciences Unit and repeatedly questioned [the plaintiff] herself regarding the nature of her disability - would constitute a violation of §503(b) if proven at trial.

§503(b) reads as follows:

• It shall be unlawful to coerce, intimidate, threaten, or interfere with any individual in the exercise or enjoyment of, or on account of his or her having exercised or enjoyed, or on account of his or her having aided or encouraged any other individual in the exercise or enjoyment of, any right granted or protected by this chapter.

     Brown v. City of Tucson, #01-16938, 2003 U.S. App. Lexis 15061 (9th Cir. 2003).

     • Click here to view the opinion on the Internet. [PDF]

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Private employer agrees to pay $5.8 million to its 1000-plus deaf workers, to caption its training videos, to install visual alarms, and to provide interpreters at training programs. The employer also will pay $4.1 million in attorney fees and costs.

     More than 1000 deaf workers for UPS have agreed to settle an ADA class action where the employer was alleged to have systematically denied deaf people equal rights in the workplace.

     The plaintiffs demanded that UPS provide sign language interpreters and other communication aids needed by deaf applicants and employees, as well as emergency alerts, text telephones, and equal access to opportunities for promotion.

     The lead plaintiff testified that his repeated requests for interpreters to help him understand training sessions and meetings were ignored. One worker testified that management refused to provide him an interpreter during training sessions on anthrax, in which all employees were given detailed safety instructions. Others testified how the employer failed to provide captioning on training videos, with the result that they were unable to understand training on hazardous materials and other subjects.

     They also testified that the employer lacked a system to alert them to emergencies, such as fires or chemical spills, and how they were overlooked or forgotten during past emergency evacuations.

     After six weeks of trial, the parties settled. The settlement agreement submitted to the court obligates the employer to pay 5.8 million dollars in damages -- which is the largest amount of damages ever paid in an ADA class action. Another $4.1 million will be paid for attorneys' fees and costs. Disability Rights Advocates in Oakland, Calif. and private counsel represented the workers.

     UPS also agreed to install text telephones, issue vibrating emergency evacuation pagers, and provide certified sign language interpreters for applicants and employees. Bates v. United Parcel Service, #C99-2216 (N.D. Cal. 2003); prior ruling at 204 F.R.D. 440, 2001 U.S. Dist. Lexis 19842 (2001).

     Editor's Note: The plaintiffs' co-counsel previously recovered a jury verdict of $1.9 million against the City of South San Francisco, Calif., for discrimination against an Hispanic police officer. Molieri v. City of So. San Fran., 37 (1826) G.E.R.R. (BNA) 1051, San Mateo Co. Super. Ct. #399497 (7/28/1999), reported in this reporter at 1999 FP 134-5.

     Resource: In July 2003, the IACP National Law Enforcement Policy Center issued a Model Policy entitled, "Deaf and Hearing Impaired." Website: www.theiacp.org/

     • To view a settlement press release of the plaintiffs' law firm, click here.

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Federal appeals court rejects §1983 claim by the widow of an officer who was slain by a prisoner that had not been searched properly. The deceased knew that no weapon had been confiscated from the arrestee.

     An arrestee, who retained a handgun throughout the city jail booking process because other officers had failed to search him and find the weapon, killed a police officer.

     His widow sued under §1983 suit, alleging that named defendants failed to search the shooter and had misstated that his weapon had been seized at the time of arrest, thus depriving the deceased officer of his civil rights.

     The District Court dismissed the action, and a three-judge appellate panel has affirmed. The panel found that an officer's erroneous statement that the weapon had been confiscated did not give rise to a suit under §1983.

     The decedent officer was aware that no weapon had been retrieved from the prisoner. An incorrect statement to the contrary -- whether made intentionally or unintentionally -- could not have placed the deceased officer in danger or have served as a basis for personal or municipal liability.

     Wouters v. City of Warren, #01-2642, 2003 U.S. App. Lexis 14097 (Unpub. 6th Cir. 2003).

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

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A divided federal appeals court holds that the annual limit on military reserve training does not include days where a federal employee is not scheduled to work.

     Federal employees who serve in the National Guard or military reserves are given 15 days annual leave for military service. 5 U.S. Code §6323(a)(1). Several Bureau of Prisons officers appealed a ruling that the 15 days is a consecutive period, even though they might only be scheduled to work for 10 of those days.

     The officers complained that because of the consecutive computation, they were forced to use vacation time or leave without pay in order to serve their full periods of their reserve training.

     A federal appeals court split 2-to-1, reversing a holding of the Merit Systems Protection Board. The majority said:

"We agree that the ordinary meaning of 'day' is a calendar day, and that the leave granted by section 6323(a)(1) accumulates at the rate of 15 calendar days per fiscal year. But to leap from this premise to the conclusion that non-workdays are properly chargeable against military leave begs the question at the heart of this case: whether an employee must be answerable to the government at all for time that he or she is not required to work.

"If one does not need leave from the government to attend reservist training on one's own time, then leave time measured in calendar days is no different than leave time measured in workdays. As a general matter, employees are not accountable to their employers for time they are not required to work. We see no reason why federal employees need military leave for days on which they are not scheduled to work."

     The dissenting judge noted that during the 84-year period between 1917 and 2001, the Congress took no action to alter the "calendar day" basis for calculating military leave, even though that method was consistently used throughout the government, and that method was brought to the attention of the Congresson several occasions.

     Butterbaugh v. Dept. of Justice, #02-3331, 2003 U.S. App. Lexis 14742 (Fed. Cir. 2003).

     • Click here to view the opinion on the Internet.

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Federal court upholds the right of management to fire a prison psychologist who released confidential records to public advocates and the news media. Whistleblower laws protect only those who report misconduct to the appropriate public officials.

     A prison psychologist sued, claiming that management violated his First Amendment rights by firing him in retaliation for objecting to racial discrimination in parole determinations and employment practices

     Management said the psychologist was fired for violating the Dept. of Corrections Code of Ethics. The plaintiff admitted that he released confidential inmate psychological reports to a prison reform advocate, a local NAACP official, and to Fox-TV News "in an effort to reveal racial discrimination in parole determinations."

     The court said that the dissemination of confidential prison records was on a matter of public concern. However, this did not outweigh the prison's interest in keeping such records confidential.

     Although the plaintiff had a right to speak out, and the public should hear, charges of discriminatory treatment, the institution had an overriding interest in keeping inmate psychological reports confidential. The judge wrote:

"... common sense dictates that such records contain highly personal and sensitive information that is designated confidential for a number of valid reasons. Not the least of these reasons, we presume, is that such reports are generated as a result of psychological care that is designed to both treat inmates and evaluate their potential for rehabilitation and possible parole.

"If psychological evaluations are not kept confidential, inmates may be less likely to frankly discuss their problems, hampering any possibility they may have for rehabilitation. Similarly, prison psychologists may be less likely to record their conclusions with necessary candor out of fear that they could become public.

"Consequently, the release of confidential, psychological records of inmates has a detrimental and possibly profoundly negative effect on important aspects of [the institution's] public responsibilities."

     The court noted that under the state's Whistleblower Law, the plaintiff had an approved avenue for disclosing racial discrimination in parole determinations. However, "the Whistleblower Law does not protect the release of inmate psychological records to the news media and public advocates."

     The judge concluded that the DoC's interest in the efficient operation of its organization outweighs the free speech rights of the plaintiff to distribute confidential psychological records to non-authorized persons. Dennison v. Penna. Dept. of Corrections, #3:01cv56, 2003 U.S. Dist. Lexis 9579 (M.D. Penna. 2003).

     • Click here to view the opinion on the AELE website.[PDF]

     • Click here to view the American Psychological Association's ethical standards relating to privacy and confidentiality of personal information.

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City worker who was fired after he testified against his boss wins an $853,750 verdict.

     A sanitation dept. foreman testified against his superior before a grand jury that was investigating a misuse of funds allegation. The supervisor was then fired for failing to initial various reports submitted by his subordinates.

     He sued the mayor, his superior and the city, claiming that he was fired for exercising his First Amendment rights and in retaliation for his grand jury testimony -- citing federal civil rights laws and a state whistle-blower statute (Mich. Comp. Laws §15.361).

     A federal jury awarded approximately $853,750, including $200,000 in punitive damages; liability is joint and several. Ospalski v. City of Warren, #01-CV-71454, 46 (5) ATLA L. Rep. (E.D. Mich. 2003).

     • Click link to read the docket sheet on AELE's website.

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Although the chief could modify the punishment recommended by an Accident Review Board, he must justify any increase in penalty with good reasons. Arbitrator reduces the suspension from 7 to 4 days, as originally recommended.

     A Texas police officer negligently ran into a guardrail, damaging his patrol vehicle. An Accident Review Board of five Officers recommended that the officer be assessed a four day disciplinary suspension.

     The Acting Chief of Police did not accept the recommendation of the Board and raised the penalty to seven days, without commenting on his reasons for doing so. A grievance was filed, and arbitration followed.

     The arbitrator reduced the suspension to four days. Although the [Acting] Chief of Police is not required to accept the recommendation of the Board, "employees are entitled to rely upon processes and procedures that affect their conditions or employment."

     He wrote, "it is incumbent upon the ultimate decider to have an explanation for the change. If unilateral changes are made without explanation, the otherwise excellent program has a material effect on the employee."

     The arbitrator said he was not given "any compelling reasons" to justify an increase to seven days. City of Houston and Indiv. Grievant "G", 118 LA (BNA) 702, AAA #70-390-00829-02 (Moore, 2003).

     • Click here to view the opinion on the AELE website.[PDF]

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Arbitration Procedures

     Arbitrator holds that management erred when it refused to pay for half of cost of stenographer used at arbitration hearing. Although AAA rule 21 provides that the requesting party shall pay the cost of making a record, the bargaining agreement provided that the "costs for arbitration" were to be borne equally by parties. Union-Scioto Bd. of Educ. and Uniioto Support Assn., AAA Case #52-390-00463-02, 118 LA (BNA) 710 (Cohen, 2003).

Attorneys' Fees and Legal Defense Rights

     Federal appeals court allows only $85,000 in legal fees and costs, of the $3.5 million sought by ex-president Clinton and his wife. The seven-year Whitewater investigation cost the government $70 million. In re Madison Guaranty S&L (Clinton Fee Application), No. 94-1, 2003 U.S. App. Lexis 14170 (D.C. Cir. 2003).

Collective Bargaining - Duty to Bargain

     Federal Labor Relations Authority holds that Transportation Security Administration airport screeners were lawfully exempted from the federal employee bargaining rights. Dept. of Homeland Security and AFGE, #WA-RP-03-0023, 41 (2017) G.E.R.R. (BNA) 72 (FLRA Boston Reg. decis. 7/7/03).

Criminal Liability

     Eighth Circuit holds that in federal bribery prosecutions, the government does not have to prove a connection between the conduct and the federal funds. 8 U.S. Code §666(a)(2) makes it a federal offense to bribe employees or officials of state and local governments that receive federal funds. U.S. v. Sabri, #02-1561, 326 F.3d 937, 2003 U.S. App. Lexis 6513 (8th Cir. 2003). [PDF]

Disciplinary Investigations

     Appeals court rejects damage suit brought by a police officer, who was placed on administrative leave with pay for 18 months during an internal investigation after he refused, on Fifth Amendment grounds, to testify to a grand jury about the beating death of a fellow officer. Dwan v. City of Boston, #02-1493, 329 F.3d 275, 2003 U.S. App. Lexis 10440 (1st Cir. 2003).

Disciplinary Punishment - Disparate Treatment

     Arbitrator finds disparate treatment; management did not have just cause to suspend a detention officer who left several cell doors unlocked, where the officer who reported the infraction only did so because he had been instructed to write up everything she did, and did not report another officer who also left cell doors open. Lewis County and Teamsters L-252, Case #16946-A-02-1385, 118 LA (BNA) 685 (Ables, 2003).

Domestic Partner Rights

     Ninth Circuit upholds a city ordinance, requiring city contractors to provide equal benefits to their employees regardless of marital or domestic partner status. A recent state law governing the creation and registration of domestic partnerships did not preempt the ordinance. Also see prior decision at 253 F.3d 461 (9th Cir. 2001) where the court upheld the Ordinance as consistent with state law, federal law, and the U.S. Constitution. S.D. Myers v. C&C of San Francisco, #02-16480, 2003 U.S. App. Lexis 14985 (9th Cir. 2003). [PDF]

Family, Medical & Personal Leave

     Federal appeals court affirms a jury verdict that a city employee was not fired for requesting FMLA leave. Gibson v. City of Louisville, #02-5473, 2003 U.S. App. Lexis 14329, 2003 FED App. 0233P (6th Cir.).

Handicap Laws / Abilities Discrimination - Accommodation - General

     A probationary candidate for correctional officer, who was disqualified because of knee injuries, was not entitled to reassignment to another position, because disability discrimination laws requires accommodation only to a position within the same civil service classification for which a person is a candidate. Hastings v. Dept. of Corr., #C041708, 2003 Cal. App. Lexis 1111 (3d App. Dist. 2003). [PDF]

Health Insurance & Benefits

     Arbitrator rules that management violated the bargaining contract by changing the health insurance carrier, increasing firefighter co-pay costs. City of Glenpool, Okla. and IAFF L-2990, 118 LA (BNA) 761, FMCS Case #020827/15296-8 (Neas, 2003).

Heart Problems

     Virginia's Workers' Compensation Commission affirms an award to a firefighter for job-related benefits even though the claimant had a family history of heart disease, hypertension, elevated cholesterol, smoked cigarettes and was obese. Bispo v. Metro. Wash. Airport Auth., VWC #198-70-94, 2003 VA Wrk. Comp. Lexis 541 (VWCC 2003).

     Appellate court rejects a duty-related disability claim from a police sergeant who suffered a heart attack. A compensation judge found that the officer's condition was caused solely by smoking and obesity and not by his existing cardiac condition. The three-judge appellate panel affirmed the denial of disability benefits. Voight v. City of Little Falls Police Dept., 2003 MN Wrk. Comp. Lexis 45.

Out of Title Assignments

     Arbitrator rules that management did not violate the bargaining agreement when it eliminated four jail specialist positions and assigned those duties to police officers, because the work is minimal, and does not equal one full-time specialist's position. City of Dayton and AFSCME C-8, 118 LA (BNA) 681, AAA #52-E-390-0013303 (Bell, 2003).

Promotional Rights, Procedures and Performance Appraisals

     Illinois repeals the "rule of three" in firefighter promotions; fire depts. and districts (except Chicago) are now required to establish promotion procedures that are based on written exam scores, seniority, merit, subjective evaluation and veterans' preference. Vacancies and new positions must be filled by promoting the candidate with the highest rank on the eligibility list, unless that individual has a poor work performance history or has engaged in misconduct. H.B.988, Public Act 93-0411.

Psychological Exams and Standards - Fitness for Continued Duty

     An employee who alleges that after filing discrimination complaints with the union and with his superiors, he was forced to undergo retaliatory psychiatric evaluations as a condition of employment, "has sufficiently alleged material adverse employment actions to survive a motion to dismiss." Syken v. New York, #02-Civ-4673, 2003 U.S. Dist. Lexis 5358, 91 FEP Cases (BNA) 1065 (S.D.N.Y. 2003).

Sick Leave & Abuse

     Appeals court upholds the termination of a public employee who played golf while on FMLA leave to care for a sick father. McDaneld v. Eastern Munic. Water Dist., #E032426, 109 Cal.App.4th 702, 135 Cal.Rptr.2d 267, 2003 Cal. App. Lexis 844, 8 WH Cases2d 1353 (2003). [PDF]

Stress Related Claims and Defenses

     Appeals court affirms order to reinstate a deputy sheriff, who received a worker's comp. stress award. County could not refuse to reinstate the deputy because she needs a stress-free work environment. Hanna v. Los Ang. Co. Sheriff's Dept., #B150425, 67 Cal. Comp. Case 1320, 2002 Cal. Wrk. Comp. Lexis 1528, 102 Cal.App.4th 887, 125 Cal.Rptr.2d 686 (2nd App. Dist. 2002). [PDF]

     Pennsylvania Supreme Court finds that a death threat to a police officer and his family was unusual, even for a law enforcement officer, because it included a $50,000 bounty and death threats to the officer's children at school. These were not part of a normal officer's experiences and stress compensation benefits were appropriate. City of Pittsburgh v. Logan, #95 WAP 2001, 810 A.2d 1185 (2002). [PDF]

     Arizona state trooper has wins disability benefits for PTSD. The state claimed that shooting suspects was not an unexpected event as required by state compensation laws. Expert testimony supported his claim, and the compensation judge ruled "that shooting and killing another human being in the line of duty is an extraordinary stress related to the employment." [David] Mogel v. Dept. of Public Safety, Ariz. Indus. Cmsn. (2002).

Workers' Compensation - Claim Validity

     Arizona Industrial Cmsn. approves worker's comp. benefits for employees who suffer a reaction to a smallpox vaccination. "Entitlement to Workers' Compensation for Workers Receiving the Smallpox Vaccination in Arizona." (Feb. 20, 2003). [PDF]

     • Return to the Contents menu.

     Bioterrorism: "Armed Services Smallpox Vaccination: Medical Research and Military Necessity," 30 (2) Human Rights (ABA) 6 (2003). [Online and print format]

     Conflicts - City Attorneys: "The role of a municipal attorney in employee discipline hearings," by Paul N. Keller, 40 (1) ISBA Local Government Law (July 2003). [Online and print format]

     Discipline: "Police Personalities: Understanding and Managing the Problem Officer" by Laurence Miller, Ph.D., The Police Chief (May 2003), www.theiacp.org/ [Print format]

     Homosexual job rights: The Gay Rights Workplace Revolution, 30 (3) Human Rights (ABA) 14 (2003). [Online and print format]

     Mental Illness/Workplace Safety: Law Review, "Employees with Mental and Emotional Problems -- Workplace Security and Implications of State Discrimination Laws, the Americans with Disabilities Act, the Rehabilitation Act, Workers' Compensation, and Related Issues," by Janet E. Goldberg, Stetson Law Review (Fall 1994) 24 Stetson L. Rev. 201 (21,010 words, 240 notes).

     Military Leave: A Non-Technical Resource Guide to the Uniformed Services Employment and Reemployment Rights Act. [PDF]

     OSHA: Advice to outdoor workers on heatstroke. [Online]

     Personnel manuals: Law review article, "Contracts of convenience -- Preventing employers from unilaterally modifying promises made in employee handbooks," by Brian Kohn, Yeshiva Univ. (Jan. 2003), 24 Cardozo L. Rev. 799 (16,265 words, 263 endnotes). [PDF]

     Retirement plans: IRS Publication 553: a summary of legislative changes in 2002 affecting deferred compensation plans of state and local governments. [Online and print format]

     Stress claims: Online article, "Workplace Stress Claims Resulting from September 11th" by Frances Codd Slusarz, 18 (2) The Labor Lawyer (ABA) 137 (Fall 2002). [PDF and print format]

     Stress and work addiction: "Police Work Addiction: A Cautionary Tale" by Gerard J. Solan, M.A., and Jean M. Casey, Ph.D., FBI Law Enf. Bulletin, June 2003. www.fbi.gov/ [Online and print format]

Reference:

     • Abbreviations of Law Reports, laws and agencies used in our publications.
     • AELE's list of recently noted employment law resources.  
     • Discrimination Laws plus EEOC Regulations and Policy Guidance

CROSS REFERENCES