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Fire and Police Personnel Reporter
An employment law publication for law enforcement,
corrections and the fire/EMT services
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ISSN 0164-6397

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2003 FP Sep (web edit.)

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CONTENTS

Featured Cases with Links
Arbitration Procedures
Arbitration Punishment - Right of Courts to Interfere
Civil Service (2 items)
Free Speech
Inefficiency and Incompetence
Injuries to Employees
Last Chance Agreements
Religious Discrimination
Residency Requirements
Stress Related Claims
Suicide Related
Wrongful Discharge

Noted in Brief
Arbitration Procedures (2 cases)
Arbitration Punishment - Right of Courts to Interfere
Bargaining Unit Determinations
Contracts, Consultants and Outsourcing
Criminal Liability
Disciplinary Punishment
Discovery, Publicity and Media Rights
Domestic Partner Rights (2 cases)
Drug Screening and Specimen Testing
Employee Harassment - Nonsexual
FLSA - Overtime (2 cases)
Family, Medical & Personal Leave
Free Speech
Handicap Discrimination - In General
Homosexual & Transgendered Employee Rights
Past Practices Clauses
Product Liability
Promotional Rights (2 cases)
Race: Affirmative Action & Quotas
Race Discrimination - In General
Residency Requirements
Retirement Rights and Benefits
Sexual Harassment Verdicts
Sick Leave & Abuse
Uniforms, Clothing and Equipment
Union Activity
Union's Duty of Fair Representation
Whistleblower Protection (2 cases)
Wrongful Discharge/Discipline

Resources

Cross_References


FEATURED CASES & ITEMS
WITH LINKS TO THE OPINIONS OR DOCUMENTS

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Arbitration Procedures

A badly split Wisconsin Supreme Court holds that the decision to demote a person during the promotional probationary period is not arbitrable, absent specific language in the contract.

     A Madison, Wisconsin, firefighter was promoted to engineer. During the 11th month of a 12-month probationary period, the chief demoted him back to firefighter. He grieved, and the city refused to arbitrate.

     The Wisconsin Employment Relations Commission held that the city was required to arbitrate the demotion. A circuit court affirmed the commission; the intermediate appellate court certified the issue to the state supreme court.

     The justices split 4-to-3, holding that the demotion was a non-arbitrable management decision. The majority said that allowing arbitration would delegate to an arbitrator the statutory authority of the chief to make or rescind promotional decisions.

     The dissent thought that arbitration would prevent management from treating public employees in an unfair manner. City of Madison v. Wis. Empl. Rel. Cmsn., #99-0500, 2003 WI 52, 662 N.W.2d 318, 2003 Wisc. Lexis 419 (2003).

      Click here to read the decision of on the Internet.

      Return to the Contents menu.

Arbitration Punishment Awards - Right of Courts to Interfere

Oregon courts affirm an arbitrator's decision to reinstate an officer who used marijuana and lied about it. Reinstatement does not offend considerations of public policy against drug use or dishonesty, and is consistent with a goal of the rehabilitation of drug users.

     In a routine screening, a corrections deputy sheriff tested positive for marijuana. Initially he lied about his drug use but ultimately admitted purchasing marijuana and smoking it while off duty nearly every day for a month.

     The sheriff fired him, despite a collective bargaining agreement that prohibited termination for first-time drug offenses. The union appealed the dismissal to an arbitrator who ordered his reinstatement without back pay. The county refused to reinstate the grievant, and an unfair labor practice charge was filed.

     The Oregon Employment Relations Board concluded that:

     The Board also found that reinstatement would not violate a policy against dishonesty in the law enforcement workplace. Washington Co. Police Assn. and Washington Co., Ore. Empl. Rel. Bd. #UP 76-99.

     When the county failed to reinstate the deputy, judicial intervention was sought. The Court of Appeals overturned the ERB, but the Oregon Supreme Court reversed. The deputy was not convicted of the use of a controlled substance, and the arbitration award was not contrary to public policy. Washington Co. Police Assn. v. Washington Co., SC#S49518, 335 Ore. 198, 63 P.3d 1167, 2003 Ore. Lexis 120, 172 LRRM (BNA) 2037 (Ore. 2003).

     On remand, the Court of Appeals affirmed the ERB's order to reinstate the deputy. Washington Co. Police Assn. v. Washington Co., #A114208, 69 P.3d 767, 2003 Ore. App. Lexis 629, 172 LRRM (BNA) 2592 (Ore. App. 2003).

      Click here to read the decision of the Oregon Supreme Court on the Internet.

      Return to the Contents menu.

Civil Service

OPM issues a rule allowing federal agencies to hire new workers using a category-based rating system in lieu of the traditional "rule of three" system.

     The interim rule permits direct hiring in cases of critical needs or skills shortages. Federal agencies also are allowed to pay or reimburse employees for the costs of academic degree training. The rule was drafted to implement the personnel changes contained in the Homeland Security Act, P. L. 107-296. [PDF]

     The category rating system allows federal agencies to assess applicants against job-related criteria and then put them into two or more defined categories. The categories must be distinct and clearly differentiate between the qualities of candidates in each category.

      U.S. Office of Personnel Management, "Organization of the Government for Personnel Management, Overseas Employment, Temporary and Term Employment, Recruitment and Selection for Temporary and Term Appointments Outside the Register, Examining System, and Training," 68 (114) Fed. Reg. 35265 (6/13/03). [PDF]

       Return to the Contents menu.

« « « « « « » » » » » » »

U.S. Defense Dept. proposes to eliminate guaranteed annual pay raises and General Schedule step increases, and to change the way that government employees are hired, fired and promoted.

     The current system would be replaced by pay banding at entry, journeyman and executive levels. Managers could change a worker's job duties and adjust his/her compensation without going through the process of recompeting the position.

     Management also wants to bargain at a national level rather than negotiate with the 1,366 local unions in the DoD.

        S.1166. "National Security Personnel System Act."

        H.R.1836. "Civil Service and National Security Personnel Improvement Act."

       Return to the Contents menu.

Free Speech

EDITOR'S CASE ALERT

Supreme Court declines to review the termination of a NYPD officer who was fired for mailing racist literature.

     On at least two occasions a NYPD officer received letters from a nearby police auxiliary soliciting charitable contributions and enclosing a reply envelope. He stuffed the envelopes with racially bigoted materials and returned them anonymously.

     Upon receipt of the objectionable material, the Nassau County Police undertook an investigation in the hope of identifying the sender. It sent out a charitable solicitation mailing with coded return envelopes. When the response envelope was returned, stuffed with racist material, they traced the source to a P.O. Box registered under the name "Thomas Pappas/The Populist Party for the Town of North Hempstead." The NCPD made another mailing, with the same result.

     On learning that Thomas Pappas was a NYPD officer, Nassau County notified the NYPD's Internal Affairs Bureau, which repeated the scenario and once again received a reply envelope stuffed with provocative material. Eventually, the officer was administratively charged with disseminating defamatory materials through the mails, and was dismissed from the force.

     The ex-officer filed suit in federal court, seeking monetary and injunctive relief, and claiming that his termination violated his First Amendment rights. The district court granted the defendants' motion for summary judgment and dismissed the action. The Court of Appeals affirmed, 2-to-1. The majority said:

     The concurring judge thought this was "private" speech and that it was unnecessary to apply the balancing test adopted by the Supreme Court in Pickering v. Bd. of Educ., 391 U.S. 563 (1968).

     The dissenting judge noted the officer was of low rank, made the mailings anonymously and on his own time; as a NYPD computer specialist, he did not have regularly dealings with the public. Judge Sotomayer would have found the speech to be protected under the First Amendment.

     The New York Civil Liberties Union Foundation had asked the Supreme Court to reverse the majority holding. The justices declined to review the case, without comment. Pappas v. Giuliani, #00-9487, 290 F.3d 143, 2002 U.S. App. Lexis 9157, 18 IER Cases (BNA) 1025 (2d Cir.); cert. den. sub nom Pappas v. Bloomberg, #02-1441, 71 U.S.L.W. 3799, 2003 U.S. Lexis 5051 (2003).

       Click here to view the Second Circuit's opinion on the Internet.

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Inefficiency, Performance Standards,
Negligence and Incompetence

EDITOR'S CASE ALERT

Arbitrator ignores progressive discipline schedule and sustains a termination. Long and unblemished service also is not a defense when the employee is fired for incompetence. Incompetence is an exception to progressive discipline tables, because it is not "misconduct."

     Incompetence is an exception, said the arbitrator, because the lack of abilities to perform one's duties is not misconduct. There are no behavioral problems to correct, and progressive discipline has no application to such a deficiency.

     He said that the issue, in cases of technology upgrades, is whether the employer provided adequate training and gave the grievant sufficient notice that his or her work was unsatisfactory. Here, that was certainly the case; the grievant had 25 years of service.

     Finally, "While long service with an employer is generally considered a mitigating factor in assessing the appropriateness of a penalty, the instant dispute does not involve misconduct or rule violations ... but only the inability to perform the required work." Montana and Mont. Public Employees Assn., 118 LA (BNA) 483 (Prayzich, 2003).

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

     Research Note: An arbitrator reinstated an incompetent long-term employee who was promoted beyond his abilities because he was not given sufficient warning about his deficiencies. Burlington No. RR. and B., 101 LA (BNA) 144 (Massey, 1993).

     In New York, an appellate court affirmed the demotion of police sergeant with 17 years experience, for "incompetency." Esposito v. Spooner, 612 N.Y.S.2d 93 (A.D. 1994). The Missouri Supreme Court reversed a police board decision to fire a police major who was promoted beyond his level of competence. The board was ordered to reinstate him, then to demote him to a lesser rank for which he was qualified. McCallister v. Priest, 442 S.W.2d 650 (Mo. 1968).

     Age discrimination laws will not protect a lack of competence either. A federal appeals court upheld a management decision to terminate an older employee and to replace him with a younger worker who possessed superior computer skills. Lesch v. Crown, #00-4239, 282 F.3d 467, 2002 U.S. App. Lexis 3159 (7th Cir.). Also, the ADEA does not protect employees who are replaced by computers; Newbury v. Natl. Press Club, 1997 U.S. Dist. Lexis 14220, 74 FEP Cases (BNA) 1531 (D.D.C.).

       Return to the Contents menu.

Injuries to Employees

Federal appeals court holds that the widow of a diabetic prison employee, who became sick at work, and then was fatally injured in a collision while driving home, is not entitled to collect damages from the government.

     A three-judge appeals panel said that the question how far an employer should go in providing medical assistance for employees who become ill at work involves an exercise of judgment, rather than the application of tort law.

     Although prison management had sometimes accommodated the needs of a sick employee by providing him with transportation home or to a hospital, this did not create a contractual duty or a reasonable expectation that a hypoglycemic employee would be restrained against his wishes from driving home.

     The deceased was adamant that he wanted to go home and intended to do so the same way that he had arrived at work, by driving his pickup truck. Stockberger v. U.S., #02-3651, 332 F.3d 479, 20 IER Cases (BNA) 8, 2003 U.S. App. Lexis 11601 (7th Cir. 2003).

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

       Return to the Contents menu.

Last Chance Agreements

Federal appeals court overturns an ALJ decision that a former alcoholic agent was not in compliance with the Last Chance Agreement. A breach must be a "material" failure or omission.

     A DEA investigator was convicted of drunk driving and signed a Last Chance Agreement, which provided that he could be dismissed if he did not undergo treatment, successfully abstain from alcohol, and satisfy post-treatment monitoring requirements.

     Because of a change in health care insurance, the agent could no longer see the psychologist who had been monitoring his progress. Despite being free from alcohol use for more than two years, the agency fired him for breach of the agreement. An Administrative Law Judge upheld the termination.

     A three-judge appeals panel has reversed. It explained that a Last Chance Agreement is a contract, and not every breach entitles a party to void the agreement. The breach must be "material" and relate to a matter of vital importance, or vitiate the essence of the contract.

     Here, the agent had faithfully abstained from alcohol use and had successfully participated in a monitoring program. Technically, he had not been discharged from further psychological counseling, although continued therapy was of dubious value.

     Because of his substantial compliance with the Agreement, the agency should not have terminated his employment. Gilbert v. Dept. of Justice, #02-3278, 2003 U.S. App. Lexis 13417 (Fed Cir. 2003).

      Click here to view the opinion on the Internet.

       Return to the Contents menu.

Religious Discrimination

Seventh Circuit sustains the firing of a police officer that refused to work at a casino because he views gambling as a sin.

     A three-judge appeals panel upheld his termination. The panel asked if the Constitution requires the State Police "to assign Unitarians to guard the abortion clinic, Catholics to prevent thefts from liquor stores, and Baptists to investigate claims that supermarkets mis-weigh bacon and shellfish?"

     The panel then asked if prostitutes must be "exposed to slavery or murder at the hands of pimps because protecting them from crime would encourage them to ply their trade and thus offend almost every religious faith?"

     They noted that the Supreme Court held in Trans World Airlines v. Hardison, 432 U.S. 63 (1977), that the law does not require an accommodation that would cause more than "minimal hardship" to the employer or other employees. They said:

     A unanimous panel upheld his termination. Endres v. Indiana State Police, #02-1247, 2003 U.S. App. Lexis 13027 (7th Cir. 2003).

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

      Return to the Contents menu.

Residency Requirements

Illinois appellate court affirms an interest arbitration award, which overrides a town residency ordinance. A residency requirement is a bargainable issue in municipalities outside Chicago.

     The Cicero firefighters' union proposed that members be required only to reside in Illinois. Management proposed that residency be within the town's municipal boundaries. The impasse went to arbitration, and management offered the testimony of a professor of economics at the University of Illinois. He estimated that if public employees left town, the remaining residents would have a higher per capita cost of services and lower overall housing values, among other problems.

     The Union pointed out that Cicero has a population density that is 186% higher than comparable municipalities, and 340% higher than other municipalities with a city limit residency requirement. Additionally, firefighters consider Cicero's schools unacceptable because of gang crime.

     The arbitrator ruled for the union. He concluded that the 67 firefighters could not properly be made to shoulder the socio-economic well being of a town of 67,000, in light of the speculative nature of what would result from modification of the residency requirement.

     A Circuit Court set aside the award, but a three-judge appeals panel has reversed, reinstating the award. In Illinois, cities under one million inhabitants must bargain any residency requirement. Courts should not interfere unless the award is clearly against public policy or a statute.

     Town of Cicero v. IAFF L-717, #1-01-3931, 788 N.E.2d 286, 2003 Ill. App. Lexis 389, 272 Ill. Dec. 982 (1st App. Dist. 2003).

         Click here to view the opinion on the Internet.

     Editor's Note: In economic interest (or impasse) arbitration in Illinois, the arbitrator is obliged to select one or the other of the parties' final offers as the ultimate contractual language.

     In noneconomic interest arbitration (such as a proposal to abolish a residency requirement), the arbitrator may either select the final offer of a party, or he may formulate a unique offer, modifying both offers. 5 Ill. Comp. Stat. 315/14.

      Return to the Contents menu.

Stress Related Claims and Defenses

The New Jersey Supreme Court revives the workers' comp. claims filed by two police employees who suffered work-related, delayed onset, post traumatic stress disorder. PTSD can be either a disease or an accident.

     A civilian police dispatcher, who had sent an officer to the scene of a vehicle stop, where the officer received injuries that resulted in a fatal heart attack, made the first claim. Her depression progressed until she was suspended. She filed for benefits five years after the incident.

     In the second claim, two officers responded to a domestic dispute. The claimant's partner was shot and died in his arms. After the incident, he had nightmares and anxiety, which progressed until he was relieved of duties. His PTSD related to the shooting incident six years earlier.

     New Jersey workers' comp. laws imposed a two-year statute of limitation for accident related claims. In reinstating their applications, the court noted that if the condition is a disease, the two-year period starts when the worker "knows or should know that he has a work-based illness."

     The court said that PTSD is not a monolithic disease with a uniform structure. Rather, it "encompasses an array of symptoms, stressors and details of onset and can occur in a variety of employment settings."

     In remanding, the court noted the facts were so dissimilar that the claims should be tried separately. Brunell v. Wildwood Crest Police Dept., #A-126/127 Sept. Term 2001, 176 N.J. 225, 822 A.2d 576, 2003 N.J. Lexis 559 (N.J. 2003).

       Click here to view the opinion on the Internet.

       Return to the Contents menu.

Suicide Related

Second Circuit overturns the summary dismissal of a claim that a public employee was fired because her superiors thought she might be suicidal. Suicide is a mental illness and a protected disability under the Rehabilitation Act.

     A school guidance counselor had a history of serious medical problems, including a facial tumor and neurological impairments. She had ongoing physical symptoms of pain, dizziness, and disorientation.

     She told coworkers that she could commit suicide with a gun belonging to her husband, a NYPD officer. Both later described the conversation as entirely in jest. At school the coworker mentioned the conversation to the school psychologist, who became alarmed and told school officials that the plaintiff was considering suicide.

     A school official contacted the NYPD in an effort to secure her husband's gun. She was reassigned to administrative duties at the district office, rather than continue to counsel students, until it was clear that she would not attempt suicide.

     The plaintiff saw a psychiatrist, who wrote a note saying that she was cleared to return to work. Management did not permit her to return to her regular duties and sent her to a neurologist and another psychiatrist.

     Eventually she was cleared to resume her duties as a counselor, but was denied tenure and was fired because of a failure to complete assigned tasks and serious performance errors.

     She sued under the Rehabilitation Act, 29 U.S. Code §701, and the N.Y. Human Rights Law, claiming that she was terminated her because they perceived her to have a disability.

     The U.S. District Court rejected her claims, but an appeals panel has reversed, 3-to-0, saying that she "presented sufficient evidence to raise a triable issue of fact."

     The panel said that a mental illness that impels one to suicide can be viewed as "a paradigmatic instance of inability to care for oneself" and it "therefore constitutes a protected disability under the Rehabilitation Act." Peters v. Baldwin School Dist., #02-7018, 320 F.3d 164, 2003 U.S. App. Lexis 2510, 13 AD Cases (BNA) 1793 (2nd Cir. 2003). [PDF]

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

       Return to the Contents menu.

Wrongful Discharge - In General

Maryland holds that an employee's request to consult an attorney before signing an acknowledgment of an unfavorable evaluation was not protected conduct. The right of access to legal counsel in Maryland is not a mandate of public policy to support a wrongful discharge lawsuit.

     Most states allow an exception to employment-at-will doctrine, if the termination involves a clearly defined public policy.

     The plaintiff alleged that she was wrongfully discharged for seeking legal advice before responding to an unfavorable work evaluation. On appeal, Maryland's highest court said it was her duty to show that Maryland has a strong public policy favoring access to legal counsel and that her employer's actions violated this policy.

     She cited two court decisions from other states, supporting her claim. Simonelli v. Anderson Concrete Co., 99 Ohio App.3d 254, 650 N.E.2d 488 (1994) and Thompto v. Coborn's Inc., 871 F. Supp. 1097 (N.D. Iowa 1994).

     The Maryland Court of Appeals noted, however, that the "legislatures of many states, including Maryland, have created exceptions to the terminable at-will doctrine which limit an employer's unqualified right to discharge, with or without justification, an at-will employee." The Maryland legislature has not recognized an exception under these facts.

     Although Maryland courts have recognized a few nonstatutory exceptions, such as reporting suspected criminal activities to law enforcement authorities. But the right to seek the advice of a lawyer before signing a document in an employment matter is not a clearly recognized right. They said:

     Porterfield v. Mascari II Inc., #14 Sept. Term 2002, 823 A.2d 590, 2003 Md. Lexis 245, 19 IER Cases (BNA) 1697 (Md. 2003).

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

       Return to the Contents menu.

     Note: The two cases the plaintiff cited held that it was a violation of state public policy to fire an employee who had consulted with an attorney over a job-related problem. Simonelli v. Anderson Concrete, 99 Ohio App. 3d 254 (1994) and Thompto v. Coburn's Inc., 871 F. Supp. 1097 (N.D. Iowa 1994). That is a different issue than was posed in the Maryland case, where the plaintiff was insubordinate and refused to sign an evaluation form until she saw a lawyer. In labor matters, the rule of "obey and grieve" is well-respected by the courts. Unless a criminal law is involved, the employee must obey and seek legal redress later.

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NOTED IN BRIEF
(SOME WITH LINKS)

Arbitration Procedures

     Eighth Circuit holds that if, during the course of tripartite arbitration, a party-appointed arbitrator dies or resigns, the parties do not need to start all over again. The party that the arbitrator represented should name a replacement. National Am. Ins. v. Transamerica Occid. Ins., #02-1992, 328 F.3d 462, 2003 U.S. App. Lexis 9125 (8th Cir. 2003). [PDF]

     Federal appeals court holds that an employer was not required to arbitrate employee terminations because the bargaining agreement between the parties had expired and there was no provision for arbitration of disputes arising after the expiration. Dist. 1 Marine Engrs. v. GFC, #02-12277, 331 F.3d 1287, 172 LRRM (BNA) 2609, 2003 U.S. App. Lexis 10939 (11 Cir. 2003). [PDF]

Arbitration Punishment Awards - Right of Courts to Interfere

     Rhode Island court sets aside an arbitration award reinstating a corrections officer that had threatened a coworker with physical harm. Officer had received five disciplinary suspensions in six years. The judge found that the safety of the institution is a "narrow circumstance" where an arbitration award can be set aside. Rhode Island DoC v. R.I. Bro. of Corr. Off. (Giles), #01-6344, 2003 R.I. Super Lexis 53 (2003). [PDF]

Bargaining Unit Determinations

     Arbitrator concludes that part-time dispatchers should be included in a bargaining unit of full-time police dispatchers, where the state board included them in unit when it first certified the bargaining unit. Belmont Co., Ohio and FOP, 118 LA (BNA) 44 (Harlan, 2003).

Contracts, Consultants and Outsourcing

     Federal appeals court holds that an FBI informant did not need to get pre-approval of his expenses before he is entitled to claim reimbursement. The implicit approval by case agents and a prosecutor was sufficient to satisfy contractual requirements. Forman v. U.S., #02-5117, 329 F.3d 837, 2003 U.S. App. Lexis 9490 (Fed. Cir. 2003).

Criminal Liability

     Sheriff's firearms instructor sentenced to 16 months in federal prison for stealing ammunition. 50,000 rounds found in his home. U.S. v. Miedzianowski, #1:98cr00923 (N.D. Ill. 2003).

Disciplinary Punishment - In General

     Arbitrator holds that management had just cause to issue a written reprimand to a firefighter who failed to return to work for a scheduled shift. Although his daughter had disappeared, foul play was not suspected and management considered extenuating circumstances in setting the penalty. City of Hallandale Beach and Metro Broward Prof. F/F L-308, AAA Case #32-390-00385-02, 118 LA (BNA) 646 (Smith, 2002; rptd. 2003).

Discovery, Publicity and Media Rights

     Texas appeals court holds that a police officer's disciplinary record is subject to the state's freedom of information laws. Abbott v. City of Corpus Christi, #03-02-00785-CV, 2003 Tex. App. Lexis 4600 (3rd Dist. Austin, 2003).

Domestic Partner Rights

     Ontario's Court of Appeals strikes down prohibitions against same gender marriages. Ontario begins issuing marriage licenses to Canadian and U.S. same gender couples. Halpern and Attorney General of Canada, #C39172 (Ont. App. 2003). Because Canadian citizenship is not required, U.S. employers and insurance carriers will be faced with requests for marital benefits from gay and lesbian workers who are married in Ontario. [PDF]

     Domestic partner rights are expected to expand after the U.S. Supreme Court's decision that struck down the Texas sodomy law. Lawrence v. Texas, #02-102, 2003 U.S. Lexis 5013, 156 L.Ed.2d 508 (2003). The Court held, 6-to-3, that intimate physical relationships between consenting adults are a form of "liberty" that is protected by the Due Process Clause of the Fourteenth Amendment.

Drug Screening and Specimen Testing

     Supreme Court declines to review an Alabama holding that the use of a catheter by an employer, to obtain a urine sample as part of employee drug testing program was not a battery, did not violate the Fourth Amendment, and did not invade the appellant's reasonable expectations of privacy. Nelson v. Coleman, # 02-1533, 2003 U.S. Lexis 4833, 156 L.Ed.2d 628 (2003); unpublished Ala. Cir. Ct. ruling, summarized at 71 Law Week 3680 (1/29/02).

Employee Harassment - Nonsexual

     Two state capitol security officers fatally shot each other while on duty. Although the woman officer may have been the victim of a hostile work environment, Michigan's civil rights law requires the conduct to be sexual in nature, which this was not. Haynie v. Dept. of State Police, #120426, 2003 Mich. Lexis 1192, 91 FEP Cases (BNA) 1839 (Mich. 2003).

FLSA - Overtime - in General

     Fifth Circuit holds that the FLSA does not require a public employer to authorize comp. time use as specifically requested by an employee. It only requires that the comp. time is allowed within a reasonable period after the employee requests its use. Houston Police Officers Union v. City of Houston, #01-21117, 330 F.3d 298, 2003 U.S. App. Lexis 8096, 8 WH Cases2d (BNA) 1121 (5th Cir. 2003). [PDF]

     The Supreme Court has ruled 9-to-0 that when an employee brings a FLSA suit in state court, the employer can remove the claim to federal court. Breuer v. Jim's Concrete of Brevard, #02-337, 123 S.Ct. 1882, 2003 U.S. Lexis 3677 (2003). [PDF]

Family, Medical & Personal Leave

     Arbitrator holds that a grievant was eligible for "assault leave," even if she did not file the proper form. She also was being treated for "post-traumatic stress disorder/panic attacks with agoraphobia," and the filing of a wrong form did not prejudice the employer. Chicago Bd. of Educ. and Chicago Teachers Union, 118 LA (BNA) 349 (Goldstein, 2002; rptd. 2003).

Free Speech

     Detroit police officer John Bennet was suspended for operating a website critical of the chief, FireJerryO.com Chief Jerry Oliver reportedly told the officer, "We have determined that you are the webmaster and you cannot have a web site and be a Detroit police officer. It has to be one or the other."

Handicap Laws / Abilities Discrimination - In General

     A national survey of 442 employment discrimination cases litigated in 2002 under Title I of the ADA found that employers prevail 94.5 percent of the time in court and 78.1 percent of the time in EEOC hearings. The American Bar Association's Commission on Mental and Physical Disability Law published the survey.

Homosexual & Transgendered Employee Rights

     The Governor of Arizona has issued a directive, which prohibits discrimination in employment "solely on the basis of an individual's sexual orientation." The order also provides that disciplinary action, including termination, can be taken against state employees who engage in sexual or other harassment based on sexual orientation. Executive Order 2003-22 (6/21/2003). [PDF]

Past Practices, Precedents & Zipper Clauses

     Arbitrator holds that management did not violate the bargaining contract when it allowed make-up overtime as a remedy for mistakes in assigning overtime, consistent with a past practice, and there was nothing in the contract authorizing back pay as a remedy. Wackenhut Corrections Corp. and Delaware Co. Prison Employees., FMCS Case #02/02150, 118 LA (BNA) 389 (Kaplan, 2002; rptd. 2003).

Product Liability

     New Jersey court jury awards $1.5 million for past and future earnings losses, and $400,000 for pain and suffering, to the widow of a Paramus police officer that was killed when his Crown Vic spun into a utility pole. The plaintiff claimed the manufacturer knew of a steering defect and had failed to correct it. Brock v. Ford Motor Co., Super.Ct. Bergen Co. N.J. (verdict July 3, 2003).

Promotional Rights, Procedures and Performance Appraisals

     Persons who had completed their probationary period as newly promoted sergeants had a property interest in that rank, and could only be demoted for cause, even if the promotions were invalid because of an improperly conducted assessment process. Barnthouse v. Edmond, #97350, 2003 OK 42, 2003 Okla. Lexis 45, 19 IER Cases (BNA) 1622, 172 LRRM (BNA) 2768 (2003).

     Wisconsin police and fire chiefs may promote officers on a probationary basis. Kraus v. City of Waukesha Police and Fire Cmsn., #01-1106, 2003 WI 51, 662 N.W.2d 294, 2003 Wisc. Lexis 417 (2003). [PDF]

Race: Affirmative Action & Quotas

     In a school admission case, the Supreme Court (5-to-4) allows race as one of several factors for candidate selection; Grutter v. Bollinger, #02-241, 156 L.Ed.2d 304, 2003 U.S. Lexis 4800 (2003). The justices also held (6-to-3) that arbitrarily assigning 20 of 100 possible points to every single "underrepresented minority" applicant violated the equal protection clause; Gratz v. Bollinger, #02-516, 156 L.Ed.2d 257, 2003 U.S. Lexis 4801 (2003). [PDF]

Race Discrimination - In General

     Federal appeals court overturns a jury award of punitive damages in a race discrimination lawsuit, alleging a failure to promote. The employer had, in good faith, implemented an EEO policy and a diversity-training program. Bryant v. Aiken, #02-2147, 2003 U.S. App. Lexis 13040 (4th Cir. 2003).

Residency - Continuing Requirements

     Massachusetts appellate court allows a city and union to agree to a residency requirement for all newly hired officers, and exempting current employees. Brockton Police Assn. v. City of Brockton, #01-P-932, 57 Mass.App.Ct. 671, 785 N.E.2d 702, 2003 Mass. App. Lexis 368, 172 LRRM (BNA) 2408 (2003).

Retirement Rights and Benefits

     Effective in June 2003, federal agencies now have the option of offering voluntary early retirement to employees for the purposes of restructuring or downsizing under guidance issued by the U.S. Office of Personnel Management. "Voluntary Early Retirement Under the Homeland Security Act of 2002," 68 (114) Fed. Reg. 35270 (6/13/03). [PDF]

Sexual Harassment - Verdicts, Settlements & Indemnity

     Sheriff's investigator awarded $500,000 against the county and $200,000 against a superior who allegedly put his face in the plaintiff's crotch, and twice bit her on the buttocks. Kessel v. Cook County, #1:00cv03980 (N.D.Ill. 2003).

Sick Leave & Abuse

     A prison rule requiring employees who have been away for four or more days to submit a medical certification, that includes a brief diagnosis, violates the ADA, which prohibits any inquiry into a disability, unless job-related and consistent with business necessity. To establish the business necessity defense, an employer must show that the request is vital to the business and the information is no more intrusive than is necessary. Conroy v. N.Y. St. Dept. of Corr. Serv., #02-7415, 2003 U.S. App. Lexis 12014 (2nd Cir. 2003). [PDF]

Uniforms, Clothing and Equipment

     In a companion decision to Endres v. Indiana State Police (See Religious Discrimination, above) a three-judge panel upheld a disparate treatment complaint filed by an Islamic female public employee who was told she could not wear a geles (headwrap) at work. Holmes v. Marion County, #02-1377, 2003 U.S. App. Lexis 13027 (7th Cir. 2003). [PDF]

Union and Associational Activity

     Tenth Circuit allows payroll checkoff deductions of "permit fees" assessed against newly hired workers. Courts have consistently interpreted "membership dues" broadly to include initiation fees and other assessments of employees by their unions. NLRB v. Okla. Fixture Co., #01-9516, 2003 U.S. App. Lexis 12287, 172 LRRM (BNA) 2821 (10th Cir. 2003).

Union's Duty of Fair Representation

     Union was not required to pursue arbitration of a grievance where one correctional employee sought a position wanted by another employee with more seniority. A union is not obliged to arbitrate a claim with little merit, especially when it would put one union member against another. DiGuilio v. R.I. Bro. of Corr. Off., #2001-611, 819 A.2d 1271, 2003 R.I. Lexis 83 (2003). [PDF]

Whistleblower Requirements and Protection

     Federal appeals court rejects claims of a railroad watchman, who alleged that he was fired because of the criminal acts of his supervisor. There was testimony that the watchman had threatened violence and used drugs. More importantly he failed to report his superior's alleged criminal conduct to anyone in authority. Rivera v. Natl. R.R. Pass. Corp., #01-16232, 331 F.3d 1074, 20 IER Cases (BNA) 25, 2003 U.S. App. Lexis 11505 (9th Cir. 2003). [PDF]

     N.J. police officer, who claimed seven years of harassment from fellow officers, after he reported possible misconduct, wins over $3 million in damages, including $2 million for pain and suffering. Pisano v. Twp. of Parsippany, #MRS-L-002351-97 (Morris Co., N.J. Super. Ct. 2003).

Wrongful Discharge/Discipline: Damages & Settlements

     Federal court awards $1,268,087 to 274 former housing authority police officers who were permanently furloughed without the 60-day pretermination notice required in the federal Worker Adjustment and Retraining Notification Act (WARN), 29 U.S. Code §2101 et seq. Although government entities are exempt, there is an exception for public housing authorities. Castro v. Chicago Hous. Auth., #99C6910 and Rowan v. Chicago Hous. Auth., #00C5557, verdicts (N.D.Ill. 2003). Prior opins. in Castro at 2002 U.S. Dist. Lexis 19769, 19 IER Cases (BNA) 307 and in Rowan at 149 F.Supp.2d 390, 2001 U.S. Dist. Lexis 6386, 17 IER Cases (BNA) 1258.

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RESOURCES

     EEO settlements: EEOC Litigation Settlements monthly reports.

     EEO statistics: EEOC Litigation Statistics, FY 1992 through 2002.

     Employment law: Print format article, "Recent Developments in Employer-Employee Relations," 38 (2) Tort Trial & Insur. Prac. Law Journal (ABA) 309-334 (Winter 2003); www.abanet.org

     Employment law: Print format article, "Demotion and discharge of municipal employees in Utah," by Ellen Kitzmiller, 16 Utah Bar J. 20 (April, 2003). www.utahbar.org

     FOIA: The House Government Reform Committee has updated its "Citizen's Guide on Using the Freedom of Information Act and the Privacy Act of 1974 to Request Government Records."

     Grants: DoJ Inspector General's reports on various city and county COPS grants and deficiencies found during financial audits.

     Pay levels and job retention: "Federal Uniformed Police: Selected Data on Pay, Recruitment, and Retention at 13 Police Forces in the Washington, D.C., Metropolitan Area," Report No. GAO-03-658 (2003). [PDF]

     Secrecy: Online interview, "Government Secrecy in the Age of Information," Biodefense Quarterly, Vol. 5, No. 1, published online by the Johns Hopkins Center for Civilian Biodefense Strategies, Summer 2003. [PDF]

     Smallpox: Online article, "Smallpox Vacillation," explains the vaccination process and hazards for first responders. Fire Chief magazine (Jun, 2003).

     Veterans: New book info, Civil Service Handbook for Ex-Military Personnel, by Federal Employees News Digest, ISBN: 0-910582-67-X.

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

Featured Cases:
Race Discrimination - see: Free Speech
Handicap Discrimination - Psychiatric - see: Suicide Related
Impasse Arbitration - see: Residency Requirements

Noted in Brief:
Disciplinary Punishment- see: Arbitration Punishment
Handicap Discrimination - see: Sick Leave & Abuse
Religious Discrimination - see: Uniforms, Clothing & Equipment

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