Legal Update for
Police Psychologists
International Association
of Chiefs of Police, Inc.
Police Psychological Services Section
Annual Conference - Minneapolis, MN
Oct. 6, 2002
Compiled by
Wayne W. Schmidt
AELE Law Enforcement Legal Center
Contents:
Expert Witness Testimony
Fitness for Duty Exams - Right to the Presence of a Coworker
FRCA: The Right of an Employee or Applicant to Obtain the Psychologist's Report
Psychological Counseling Duty to Cooperate
Psychological Screening of Applicants Gender Bias
Suicide and Federal Death Benefits
Expert Witness Testimony
An Alabama appellate court has held that a psychologist did NOT need to be licensed in Alabama to testify as an expert witness. The trial court had excluded the testimony of the psychologist.
Reversing, the appellate court said that testifying as a psychologist in a trial is not the same as practicing psychology.
The Alabama state statute says that a person practices as a psychologist by rendering to the public for remuneration any service involving the application of recognized principles, methods, and procedures of the science and profession of psychology, such as interviewing or administering and interpreting tests of mental abilities, aptitudes, interests, and personality characteristics, or for such purposes as overall personality appraisal or treatment.
Mitchell v. Mitchell, # 2001216, 2002 Ala. Civ. App. Lexis 245, 2002 WL 472280 (Ala. Civ. App. 2002).
Fitness for Duty Exams
Right to the Presence of a Coworker
The D.C. Circuit has upheld a NLRB decision that extended Weingarten rights to nonunion employees. The Supreme Court has declined to review the case.
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 followed the rationale in Weingarten.
The NLRB initially held that Weingarten also 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).
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). The Supreme Court denied review on June 10, 2002; 2002 U.S. App. Lexis 4231.
Does this mean that an employee is entitled to the presence of a coworker during a FFDE?
The only published case predates the NLRB's first decision on the point. The Massachusetts Supreme Court upheld an order by the commissioner, requiring a police officer to take a psychiatric examination, and said there was no right to have an attorney present during the exam. Nolan v. Police Cmsnr. of Boston, 420 N.E.2d 335 (Mass. 1981).
More recently, courts have permitted parties to lawsuits to have their attorney present during a litigation-related medical exam, where the injury or serious of a disability is disputed. Gensbauer v. The May Dept Stores, 184 F.R.D. 552, 1999 U.S. Dist. Lexis 4543 (E.D. Pa.). Generally, an independent physician asks questions of the person examined (about pain, mobility, etc.).
Weingarten rights are not like Miranda. The employee does not have to be warned of his rights. The employee must ask for the presence of a coworker. Should that happen, the psychologist could assure the person tested that his or her answers to specific questions will not be furnished to the employer. The answers may be used by the psychologist to form his or her professional opinion of the person's fitness for initial or continued employment, but the opinion or recommendation should exclude specific responses by the employee.
What is the remedy for a violation?
Even a member of a bargaining unit must obey a direct order from management, or face disciplinary action. The rule is, obey and grieve. If the contract calls for binding arbitration, an arbitrator can uphold the grievance and direct the employer to comply with Weingarten.
If the employee is not a member of a bargaining unit, he or the union can file an unfair labor practice charge with the state agency that oversees public sector employment relations, such as the California Public Employment Relations Board or the Michigan Employee Relations Commission. Typically, such agencies have the power to issue a cease and desist order, and seek judicial enforcement if necessary.
A psychologist should follow the advice of the agencys attorney, because there is no personal civil liability to an employee for a Weingarten violation.
Update on FRCA:
The Right of an Employee or Applicant to Obtain a
Copy of the Psychologist's Report to the Employer
A 1999 Federal Trade Commission Advisory Opinion holds that outside professionals and firms that assist employers in disciplinary or employment matters are Consumer Reporting Agencies and an unedited copy of all reports must be furnished the employee.
The 1996 Fair Credit Retail Act (FCRA) is enforced by the Federal Trade Commission's Div. of Financial Practices, and it applies to private and governmental entities. FCRA 603(f) [15 U.S. Code 1681a] defines a Consumer Reporting Agency (CRA) as any person who or which, for monetary fees, assembles or evaluates credit information or other information on consumers for the purpose of regularly furnishing consumer reports to third parties using any means or facility of interstate commerce.
The FTC Advisory Opinion affects employers that use outside health consultants, lawyers, and similar professionals or organizations. The Opinion notes that a consumer report as defined in 603(d)(1) as any ... communication of any information by a consumer reporting agency bearing on a consumer's ... character [or] personal characteristics ... which is used or expected to be used or collected in whole or in part for ... employment purposes ...
If an employer turns to an outside firm or organization for assistance in investigation of alleged employee misconduct or fitness for duty, the assisting entity is a CRA because it furnishes 'consumer reports' to a 'third party' (the employer). The FCRA does not distinguish whether the information on consumers is obtained from internal records or from outside the employer's workplace.
Employers who utilize consumer reports or investigative consumer reports have certain obligations under the FCRA to notify employees and/or supply a copy of the report to the employee. Information cannot be redacted in those instances in which the FCRA requires that the consumer be provided a copy of a consumer report 604(b)(3)(A).
Under the FCRA, damages are capped at $1,000, but punitive damages and attorneys fees are available. Presumably the for monetary fees provision would exempt lawyers, psychologists and others who are directly salaried by a governmental entity. FTC Adv. Opin. to Judi A. Vail (5 Apr. 1999). The full text of the opinion is at: http://www.ftc.gov/os/statutes/fcra/vail.htm
Recently, a federal court in Chicago disagreed, and held that a law firm that investigates employee misconduct was not a credit reporting agency, and that an employee under investigation for misconduct was not entitled to receive a copy of the report. Hartman v. Lisle Park Dist., #01C1904, 158 F.Supp.2d 869, 2001 U.S. Dist. Lexis 12414 (N.D. Ill. 2001).
Federal courts in Alabama and New York also have rejected the FTC's Vail Opinion: Johnson v. Federal Express, 147 F.Supp.2d 1268 at 1273-74, 2001 U.S. Dist. Lexis 8558 (M.D. Ala. 2001) and Robinson v. Time Warner, 187 F.R.D. 144 at 148 n.2, 1999 U.S. Dist. Lexis 14304 (S.D.N.Y. 1999).
The FTC has issued another Advisory Opinion that an employee's consent to the procurement of a consumer report can be routinely obtained at the start of employment, thereby relieving the employer of the awkward prospect of having to ask a suspected wrongdoer for permission to allow a third party to provide an investigative (or other) consumer report to the employer. FTC Adv. Opin. to Susan R. Meisinger (31 Aug. 1999). The text is at www.ftc.gov/os/statutes/fcra/meisinger.htm
Also see Comment: The absurdity of the FTC's interpretation of the Fair Credit Reporting Act's application to workplace investigations: Why courts should look instead to the legislative history, by Amanda L. Fuchs, Northw. Univ. Law Review, 96 Nw. U.L. Rev. 339 (Fall, 2001).
What action should a psychologist take?
If a report is withheld at the request of management, the psychologist should verify that he or she will be defended and indemnified if litigation arises. Although many governmental entities are not allowed to reimburse an award of punitive damages, it is not likely a court would sustain a jury award for punitive damages unless the psychologist also unlawfully conspired with management to cause the employee to be fired.
Medical Malpractice
A federal court in New York refused to dismiss a malpractice suit against psychologists and/or psychiatrists who allegedly rendered an improper diagnosis, even if they did not examine the employee and acted only on the basis of the reports of other psychologists.
In 1988, a NYC corrections officer was injured in a riot. In 1997 he stumbled on a loose carpet and was hospitalized for three days. He alleged that the fall recalled memories of the riot, causing severe emotional distress. He was placed on sick leave and never returned to work before being granted permanent disability retirement 11 months later.
He filed a lawsuit alleging (among other things) that two psychologists or psychiatrists committed medical malpractice because they "failed to use reasonable care and conspired to maliciously and deliberately ignore his condition of total disability."
The two health care defendants sought dismissal because the plaintiff was never treated by either -- but only read medical reports from other psychiatrists. The court responded that if a person has a professional medical relationship with a psychologist or psychiatrist, he can maintain a malpractice claim if there was a departure from accepted practice, and evidence that the departure was a proximate cause of the plaintiff's injury or damage. Torres v. City of N.Y., #99 Civ. 9026, 154 F.Supp.2d 814, 2001 U.S. Dist. Lexis 10978 (S.D.N.Y.).
Psychological Counseling Duty to Cooperate
An appeals court has sustained the termination of a police officer with an attitude problem, who was not fully cooperative with his remedial therapy. Doctors who oversaw the program testified that [he] did not successfully complete the program and refused to actively engage in it. Moore v. NOPD, #2001-CA-0174, 813 So.2d 507, 2002 La. App. Lexis 612 (La.App. 2002).
Psychological Screening of Applicants Gender Bias
A federal court has dismissed, for procedural reasons, the discrimination suit filed by a rejected woman deputy sheriff applicant for an allegedly gender-biased interpretation of her psychological tests and interview. Earlier, the Maryland Cmsn. on Human Relations issued a written finding of no probable cause of discrimination. Willey v. Ward, #2001-1238, 197 F.Supp.2d 384, 2002 U.S. Dist. Lexis 6699 (D.Md. 2002).
Suicide and Federal Death Benefits
The Supreme Court has declined to review an appellate holding that rejected federal death benefits for the widow of a police officer who killed himself due to job-related stress.
A 43-year-old police officer fatally shot himself in 1992 after being falsely accused of engaging in sexually inappropriate behavior with a ten-year-old boy he counseled as a youth safety officer for a Boston suburb. A psychologist and psychiatrist concluded his suicide was job-incurred. The city's retirement board awarded his widow duty-related pension benefits.
She also sought federal benefits for police officers that are killed in the line of duty. The 1976 statute provides a one-time cash payment to survivors of public safety officers who die in the line of duty. Section 3796(a) states:
No benefit shall be paid ... if the death or catastrophic injury was caused by the intentional misconduct of the public safety officer or by such officer's intention to bring about his death or catastrophic injury ...
A BJA Hearing Officer approved the claim, writing that the officers post traumatic stress disorder and major depression qualify as personal injuries." He said they were "traumatic injuries, wounds inflicted upon his mind, triggered by the allegation of sexual misconduct, an external force. He also concluded that the officer's impaired mental state rendered his suicide unintentional.
However, the Director of BJA reversed the Hearing Officer's decision and the widow filed suit in the U.S. Court of Claims. A three-judge appeals panel affirmed the denial of benefits, noting that traumatic injury was defined as a wound or the condition of the body caused by external force, including injuries inflicted by bullets, explosives, sharp instruments, blunt objects or other physical blows, chemicals, electricity, climatic conditions, infectious diseases, radiation, and bacteria, but excluding stress and strain.
Because 28 C.F.R. 32.2(g) (1997) specifically exclude stress and strain from the definition of personal injury her lawsuit was dismissed by the appellate court. The widow appealed to the Supreme Court.
Solicitor General Theodore Olson (whose wife died on a Sept. 11th hijacked airplane), argued that the Congress emphasized the physical risks posed to officers, but did not mention mental dangers.
Lawyers for the widow unsuccessfully argued that mental injuries such as post-traumatic stress disorder and depression should be included.
The U.S. Supreme Court denied review, without comment. Yanco v. U.S., #00-5058, 258 F.3d 1356 (Fed. Cir. 2001); rev. den., #01-674, 122 S.Ct. 921, 2002 U.S. Lexis 530 (2002).
* Note: Pub. L. 107-56 (H.R. 3162), the USA Patriot Act increased to $250,000 the death benefit for public safety officers killed or permanently disabled in the line of duty. It is retroactive to Jan. 1, 2001, so that the families of firefighters and police officers that were killed in the Sept. 11th attacks will be compensated at the higher rate.
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