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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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2004 FP Feb (web edit.)

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CONTENTS

Featured Cases with Links
Background Investigations
Disciplinary Interviews - Subject Matter
Disciplinary Interviews - Untruthfulness
Disciplinary Procedures - Time Limits
Disciplinary Searches
Employee Harassment - Nonsexual
First Amendment Related
Personnel Manuals
Psychological Exams
Sex Discrimination - Equal Pay Claims
Sexual Harassment - Same Gender
Sexual Harassment - Verdicts
Uniforms and Equipment

Noted in Brief

Civil Service
Collective Bargaining - Duty to Bargain
Criminal Liability
Death Benefits
Domestic Partner Rights
FLSA - Exemptions
Handicap Discrimination - In General
Injuries to Employees (2 items)
Past Practices and Precedents
Psychological Counseling
Race Discrimination (2 cases)
Race: Affirmative Action
Sexual Harassment - Retaliation
Suspensions and Administrative Leave
Taxation
Uniforms, Clothing and Equipment
Whistleblower Requirements and Protection
Workers' Compensation - Claim Validity

Resources

Cross_References


FEATURED CASES & ITEMS
WITH LINKS TO THE OPINIONS OR DOCUMENT

Background Investigations

Appeals court rejects a defamation claim by a worker who was fired after a background investigation revealed possible criminal conduct. The signed release barred any lawsuit, even if the firm that oversaw the investigation did not have a state license to conduct investigations.

     In his employment application, an applicant indicated that he had not been convicted of a felony or misdemeanor within the past five years. As part of the hiring process, the plaintiff signed a consent form, permitting the employer to perform a background check.

     The consent form released the employer, its agents and anyone who provides information, from claims arising from information provided to the employer or its agents.

     Vericon, a credit and background investigation firm, provided a report claiming that the plaintiff had used an alias and had been convicted of several crimes in the prior year. After the worker was fired he filed suit against Vericon for defamation. The trial court dismissed his complaint, citing the signed release.

     On appeal, the plaintiff argued the form was unenforceable because Vericon did not have a state license to conduct background investigations as required by Georgia Stat. § 43-38-16. He claimed that contracts made in violation of a statute are void and unenforceable.

     An appeal panel rejected the plaintiff's arguments. First, Vericon subcontracted the investigation to a third party, and there was no evidence that the entity lacked a license.

     Second, they said "the dispositive issue is not the validity of the agreement between [the employer] and Vericon, but the validity of [the] agreement to release [them] from all claims and lawsuits stemming from its background check.

     As to the substance of his complaint, it is true that such releases are not effective in cases where the background investigation is conducted wantonly or with gross negligence.

     However, said the panel, "there is nothing in this conduct that remotely can be considered evidence of gross negligence, especially as the report merely indicated that [the plaintiff] and Sims might be the same person.

     Because the release was valid, the plaintiff was barred from maintaining a defamation and libel claim against Vericon. McCleskey v. Vericon Resources, #A03A1066, 2003 Ga. App. Lexis 1376, 20 IER Cases (BNA) 1065 (2003).

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

      Return to the Contents menu.

Disciplinary Interviews & Compelled Reports - Subject Matter

EDITOR'S CASE ALERT

NLRB holds that an employer improperly questioned an employee about distributing fliers on coworker desks after-hours, protesting the layoff of some employees, and then unlawfully fired her for lying about her activities. Because the subject matter of the disciplinary interview was improper (concerted labor activities) the employer could not terminate her for untruthfulness.

     After work, an insurance adjuster distributed anonymously more than 1200 fliers on employees' individual desks, at the end of hallways, and in mailboxes between the hours of 8 and 11 p.m.

     The flier requested workers to wear a red ribbon in support of colleagues who had been laid-off as a result of a management reorganization plan. Because the employer had a rule against the distribution of fliers, the time clock was checked.

     It revealed that the adjuster clocked out at 11 p.m. Her superior asked the adjuster to account for her time. She replied that she had been doing some work on her files, but was not seeking overtime for that work.

     The adjuster was then told that the security cameras had a picture of her entering the building on at 7 p.m. with a large box, and she was asked what was in the box. She replied that she had papers in the box, although she later admitted that the fliers were in the box.

     A few days after her questioning, the adjuster confessed that she was the one who had passed out the fliers. She was fired for lying during the interview. The union contested the termination with the National Labor Relations Board, claiming:

  1. The employer had an unlawful distribution policy.
  2. The employer unlawfully interrogated the adjuster.
  3. The employer unlawfully terminated the adjuster for engaging in protected concerted activity and for violating the employer's unlawful no-distribution rule.

     An Administrative Law Judge found in favor of the adjuster. On appeal, the NLRB affirmed, 3-to-0. The Board said that a rule prohibiting solicitation or distribution during working time is presumptively valid -- but one prohibiting solicitation or distribution during other times is presumptively invalid.

     The Board then addressed the employer's defense that the adjuster lost the protection of the federal bargaining law when she lied about distributing the fliers. It concluded that the purpose for questioning the adjuster was to learn who had distributed the fliers, which was a protected concerted activity. The questions did not serve a dual purpose, one valid, the other invalid. The Board rejected the employer's stated concerns about a breach of security and overtime issues. They said:

     As a remedy, the employer was directed to offer full reinstatement to her former job (or to a substantially equivalent position) including seniority rights, to reimburse her loss of earnings and other benefits, and to remove any reference to the unlawful discharge in her personnel records. U.S.A.A. and Williams, #12-CA-21735, 2003 NLRB Lexis 666, 173 LRRM (BNA) 1331, 340 NLRB No. 90 (NLRB 2003).

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

     Editor's Comment: The NLRB has long held that an employer may not interrogate workers about engaging in protected labor activities. Spartan Plastics and Kasel, #7-CA-21183, 269 NLRB 546, 1984 NLRB Lexis 938, 116 LRRM (BNA) 1082 (NLRB 1984). What is new here, is the notion that an employee can lie about his or her behavior, if it is related to those protected activities.

     Only a few years ago, a unanimous Supreme Court flatly rejected the idea that a Constitutional or statutory right protecting an employee "includes a right to make false statements with respect to the charged conduct." LaChance v. Erickson, 522 U.S. 262, 1998 U.S. Lexis 636, 13 IER Cases (BNA) 1015, 118 S.Ct. 753 (1998).

     In Bryson v. U.S., 396 U.S. 64 (1969), the Supreme Court also said: "Our legal system provides methods for challenging the Government's right to ask questions -- lying is not one of them. A citizen may decline to answer the question, or answer it honestly, but he cannot with impunity knowingly and willfully answer with a falsehood."

     " Although NLRB decisions are not binding on the public sector, they can have significant impact, as was the case of the landmark Weingarten decision in 1975."

      Return to the Contents menu.

Disciplinary Interviews & Compelled Reports - Untruthfulness

Although termination might not be appropriate for making a false insurance claim 14 years earlier, an arbitrator upholds the dismissal because the officer lied during the I-A investigation and continued to mislead his superiors up until his time of termination.

     A sergeant, who was a recent president of the deputy sheriff's guild, was fired for eight different reasons. He grieved, and the grievance was sent to an arbitrator.

     The arbitrator threw out several charges, and also discounted the claim that discipline was imposed because of the grievant's union activities. He then said that "there is clear and convincing evidence on the record that [the grievant] lied repeatedly about the insurance fraud, including lying under oath during Kitsap County's Internal Investigation into his alleged misconduct."

     He said that there are valid arguments as to why an officer should not be discharged for indiscretions, including crimes, occurring fourteen years ago. However:

     He said that his termination for lying during the internal investigation must be sustained because integrity and honesty are critical requirements for a police officer. He said:

     Kitsap County and Kitsap Co. Deputy Sheriff's Guild, 118 LA (BNA) 1173, AAA Case #75-L-390-00240-02 (Gaba, 2003).

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

      Return to the Contents menu.

Disciplinary Procedures - Delays & Time Limits

City ordered to reinstate a municipal police officer that was convicted of abusing a citizen. The fact that management deferred to a parallel criminal investigation by the state police did not excuse providing the officer with the complaints and other documents within the time periods required under the bargaining agreement.

     A 19 year-old motorist claimed that a police officer used lewd and obscene language and had grabbed her buttocks. The police chief asked the State Police to conduct a criminal investigation; that resulted in criminal charges.

     The officer applied for "Accelerated Rehabilitation" after undergoing a "psychosexual evaluation and risk assessment". He was placed on a two year probation period, given mandatory counseling, ordered to make restitution to the complainant and pay for her counseling, and to perform 100 hours of community service.

     At that point, an internal investigation intensified and the officer was terminated. He grieved, claiming that he was denied documents to prepare for his defense, in violation of the collective bargaining agreement.

     At a hearing before the State Board of Mediation and Arbitration, management argued that it did not violate the grievant's rights under the bargaining agreement, as the city was not required to give him a copy of the citizen complaint because of the ongoing criminal investigation.

     A three-person panel concluded that the city violated the bargaining agreement's procedural requirements when management failed to provide the grievant a copy of the citizen's complaint within seven days. They added:

     The parallel criminal investigation did not excuse compliance. The panel said that the advent of criminal investigations did not trump the grievant's contractual rights under the bargaining agreement.

     The panel noted that it had a duty to enforce the CBA, and no obligation "to re-negotiate its terms when language is clear and unambiguous." Although the officer was guilty of serious misconduct, they said that "we can not weigh the equities and ... to do so would be a dereliction of our duties."

     The city was ordered to reinstate the officer, without an award of back pay. City of Ansonia and Stanley, Case #2003-A-0141 (Conn. Bd. Arb. 2003).

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

      Return to the Contents menu.

Disciplinary Searches

EDITOR'S CASE ALERT

Whether the use of "administrative search warrants" to conduct locker searches is lawful is a question for an arbitrator under the bargaining agreement, and not the courts, when the issue is raised by a union and not by an officer who claims that his rights were violated.

     The bargaining agreement between Michigan State Police and the Troopers' Assn. restricts management's ability to search employees' lockers. Lockers may be searched only under a validly issued search warrant or with the written consent of the employee.

     A post commander, looking for seven missing radios, obtained an administrative search warrant. The search was started and then halted when it was learned that only one of the missing radios was actually assigned to that post.

The association sued, seeking declaratory judgment that the State Police do not have the authority to obtain administrative search warrants to search employee lockers, that such warrants are invalid and unenforceable, and to obtain a permanent injunction against such searches.

The trial court declined jurisdiction, and referred the parties to arbitration. On appeal, a three-judge panel concurred, noting that "this case is not one of an individual citizen seeking redress for the violation of his constitutional rights ... nor even a case of an individual trooper seeking redress." It is a contractual dispute, and "this matter must first be decided within that contractually agreed upon procedure."

Mich. St. Police Troopers Assn. v. Mich. Dept. of State Police, #237648, 2003 Mich. App. Lexis 2827 (2003).

      Click here to view the opinion on the AELE website.

     Research Note: Lockers furnished by an employer for the benefit of employees may be searched without a warrant, provided the employer has an announced policy authorizing such inspections. Incriminating items, found in employee lockers, may be used as evidence in a disciplinary proceeding. The existence of a personal lock affixed to the locker would not affect the legality of the search.

     The Ninth Circuit U.S. Court of Appeals has upheld warrantless searches of employee lockers, even in a criminal trial. U.S. v. Bunkers, 521 F.2d 1217 (9th Cir. 1975), cert. den. 96 S.Ct. 400. Postal inspectors had observed an employee take a package from her work area to the locker room, and return without the package.

     Noting that while the defendant may have had a subjective expectation of privacy, it would be "incredulous" for a postal employee to reasonably believe that a government supplied locker was purely private. The court rejected the plaintiff's notion that the locker should have been safeguarded and a search warrant obtained.

     In O'Connor v. Ortega, 480 U.S. 709, 107 S.Ct. 1492 (1987), the Supreme Court held that it was possible for employees to have a reasonable expectation of privacy in workplace workspace, but employers also have the right to conduct warrantless searches of workspace on reasonable suspicion of employee work misconduct or to retrieve government property. Whether or not such an expectation exists will depend on the factual circumstances of each case. A written policy, announcing and authorizing such inspections, should override a worker's reasonable expectation of privacy.

     Vehicles: In some cases, a warrantless search of an employee's personal vehicle is permissible, such as a secure parking lot inside a jail or prison compound, and when a warning notice is clearly posted.

     An arbitrator upheld the disciplinary punishment of corrections officer who refused to allow his superiors to search his vehicle while on prison grounds. Folsom R.T.C. and Folsom Corr. Peace Ofcrs. Assn., 101 LA (BNA) 837 (Staudohar, 1993).

     However, a divided federal appeals court has held that an anonymous letter, accusing a prison employee of having a gun in his car, was an insufficient basis to search the vehicle while it was parked on prison property. Wiley v. Dept. of Justice, #02-3044, 2003 U.S. App. Lexis 9175 (Fed. Cir. 2003).

     Homes: An administrative search warrant is not lawful for the search of an employee's private home. The Ninth Circuit upheld a damage award of $650,00 to an officer who was fired for not allowing a search of his house, pursuant to an administrative warrant. Los Angeles Police Protective League v. Gates, 907 F.2d 879 (9th Cir. 1990).

     Union consent: In general, a union can consent to waive the Fourth Amendment rights for members of the bargaining unit. Several courts have upheld the authority of a union to waive the Fourth Amendment rights of its members, such as to consent to suspicionless drug testing of employees. Bolden v. SEPTA, 953 F.2d 807 (4th Cir. en banc 1991); Pawlak v. Greenawalt, 477 F.Supp. 149 (M.D.Pa. 1979) and Int. Bro. of Boilermakers v. Rafferty, 348 F.2d 307 (9th Cir. 1965).

     Conversely, management can agree to adopt a higher threshold of proof, or to use specified procedures when engaging in employment-related searches. Courts have split as to whether evidence seized in violation of a bargaining agreement, but otherwise a reasonable search under the Fourth Amendment, is admissible in a disciplinary hearing. In Donofrio v. Hastings, 54 A.D.2d 1110, 388 N.Y.S.2d 779, 1976 N.Y. App. Div. Lexis 15090 (1976) a New York appellate panel held, 3-to-2, that the violation a contractual right protected by a collectively bargained agreement is enforced by filing a grievance and seeking arbitration on the contract deficiency -- and not by the exclusion of evidence.

      Return to the Contents menu.

Employee Harassment - Nonsexual

Third Circuit affirms a jury award of $1.2 million to an ex-lieutenant for retaliation and due process violations, after complaining of sexual orientation harassment.

     A three-judge panel affirmed an award of $1,237,500 to a fire lieutenant who claimed he was the victim of retaliation after complaining of harassment because he was "perceived as gay."

     Used condoms and homosexual paraphernalia were placed in his desk drawer, gear, and mail. Although he told his superiors about it, they did not report the complaint to headquarters.

     Then, his gear was soiled with urine or fecal matter, causing him to contract a fungal infection. This time, an internal investigation ensued, during which coworkers accused him of being unstable.

     He was transferred from his command and was given a desk job. Later, a threatening letter smeared with fecal matter was sent to his twin brother's house. He went on medical leave, and later was told to go on unpaid disability leave. He refused and was fired.

     He sued for retaliation and due process violations. A federal jury awarded him $500,000 in compensatory damages, $225,000 in back pay, and $512,500 in front pay.

     On appeal, the city unsuccessfully argued that he should have sued in state court and availed himself of the fire department's grievance procedures. The appellate panel concluded that the front and back pay awards were not excessive, based on his $49,000 annual salary for 13 probable remaining work-years.

     Bianchi v. City of Philadelphia, #02-2687, 2003 U.S. App. Lexis 22726 (3d Cir. unpub. 2003).

      Click here to view the opinion on the AELE website.

      Return to the Contents menu.

First Amendment Related

Federal appeals court rejects a retaliation lawsuit filed by a state police captain who claims he was denied a promotion and given an unwanted assignment because he broke the chain of command by bypassing his major, and informing a lieutenant-colonel that the FBI was investigating a trooper for bribery. The captain had no reason to believe his superiors were involved in the scheme, and there was no justification for circumventing a regulation that required all members to inform their immediate supervisor of any knowledge of misconduct by a department member.

     An FBI agent approached a captain in the Pennsylvania State Police Internal Affairs Division to discuss a federal investigation into police corruption. He suspected a trooper of taking bribes and asked for help in gathering information. The agent did not tell the captain to keep the investigation secret, nor did he indicate that any of his superiors were involved.

     The captain did not ask if his superiors were suspected of wrongdoing. He then bypassed an established chain of command and spoke about the investigation with the lieutenant-colonel who was Deputy Commissioner of Staff.

     Under State Police Field Regulation 1-1.17B, members are required to promptly report to their supervisors any information which comes to their attention and which tends to indicate that any other member or employee has violated any law, rule, regulation or order. The captain never discussed the investigation or his conversations with the major who was his direct superior. However, the lieutenant-colonel told the captain not to tell anyone else about the investigation and to keep him informed.

     Seven months later the captain and lieutenant-colonel finally informed the Commissioner about the FBI probe. The FBI had completed its investigation and determined that the trooper was the only one found to have engaged in wrongdoing. The Commissioner subsequently conducted an administrative inquiry into the captain's and lieutenant-colonel's conduct, although neither were disciplined.

     Over the next several months the captain allegedly suffered retaliation for his decision to circumvent the chain of command including denied educational opportunities, assignment to undesirable positions, and a failure to win a promotion to major.

     He sued in federal court, claiming a First Amendment violation, and sought compensatory and punitive damages. The District Court dismissed those claims and he appealed. A three-judge appellate panel affirmed; they said:

     The panel added that while it is possible that bypassing the chain of command might be justified if an officer's superiors were reasonably suspected of wrongdoing, nothing here suggests that the major, his superiors, or the Commissioner were involved in any misconduct or could not be trusted.

     The plaintiff was required by regulation to report his conversation to his supervisor and "his decision to go outside of the appropriate hierarchy is not a constitutionally protected free speech right given the strong governmental interest in having that regulation followed." Ober v. Evanko, #02-3725, 2003 U.S. App. Lexis 23040 (3rd Cir. 2003).

      Click here to view the opinion on the AELE website.

      Return to the Contents menu.

Personnel Manuals

Sixth Circuit reverses an $80,000 award to a county worker that was fired for monitoring his supervisor's e-mail. He was not a civil service employee, and the fact that the county's personnel policies listed various offenses and procedures did not create a legally-enforceable expectation of continued employment. A personnel manual is binding on workers, even if it is in electronic format.

     Monroe County, Michigan's Personnel Policies stated that employment is "not for any definite term and may be terminated at any time with or without cause and without advance notice." The policies also listed of twenty-three different disciplinary offenses and recited possible punishment ranging from verbal warnings to discharge. They contained no explicit statement that discipline could not be imposed for other behavior.

     The plaintiff in this case was the network administrator for the county's computer system. He monitored his superior's e-mails, allegedly looking for improper conflicts of interest. When the surveillance became known, he was discharged.

     He sued in federal court, claiming that he was discharged in violation of public policy and the Michigan Whistleblower's Protection Act. A jury awarded him $80,000, and the county appealed.

     A three-judge appeals panel reversed. Employment is terminable at the will "when an employment agreement is silent regarding the type of employment relationship." They noted that the appellant cited no precedent that an expressly at-will employment relationship may be turned into a just-cause relationship by no more than a legitimate expectation on the part of the employee.

     In the few cases where courts have found a just-cause standard, the initial employment agreement "was silent on the question of whether it could be terminated at will." They added:

     Although the appellant admitted that he was aware of the existence of the revised policies, he claimed not to have read them.

     Under the electronic distribution system, in contrast to the older hard copy distribution of revised policies, no proof of actual receipt was collected. The panel said that was irrelevant. Management notified all affected employees. And in view of the advent of electronic communications, "we will not induce a return to older practices by imposing a paper receipt requirement." Mannix v. Monroe County, #02-1001, 348 F.3d 526, 2003 U.S. App. Lexis 22561, 2003 FED App. 0390P (6th Cir. 2003).

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

      Return to the Contents menu.

Psychological Exams and Standards

Conduct Justifying a Required Exam

EDITOR'S CASE ALERT

Federal jury awards $325,000 to a county employee ordered to undergo a Fitness for Duty Exam.

     A suburban Chicago county worker complained to management that he was the victim of hazing and harassment by coworkers, who were verbally humiliating him. The county ordered him to submit to a psychiatric exam after two workplace accidents, prior incidents of his confusion, getting lost while driving on his assignments routes, and forgetting his superior's instructions

     He objected to the scheduling and lack of defined scope of the exam; he did not submit to the testing. During a confrontation with his superiors, he was suspended without pay until he completed the testing.

     Eventually he was fired for insubordination, and he filed suit in federal court under the ADA. Although he denied he was disabled, he claimed his superiors "perceived" him as disabled, and were retaliating against him for making the harassment complaint. He offered to settle the lawsuit for $150,000 and the county declined.

     The county argued that the court should apply a "honest belief" rule so as to prevent the employer from assuming the role of a doctor in deciding whether there is a legitimate business need for an examination. The judge declined, stating that "an objective or reasonable person standard" is more appropriate, and that "a reasonable person in this context is a reasonable employer, not a reasonable physician."

     The ultimate question was whether a reasonable jury could find that the mental evaluations were or were not consistent with business necessity. The jury found the county unlawfully ordered him to undergo a psychiatric examination, and also had retaliated against him for complaining about coworker harassment. The jury rejected his "perceived-as-disabled" claim under the ADA.

     The jury awarded him $325,000 for emotional distress. The verdict did not include front pay, back pay or attorney's fees, which will be determined by the court. Jackson v. Lake County, #01-CV-6528, verdict rptd. at 41 (2037) G.E.R.R. (BNA) 1219 (N.D. Ill. 2003). Prior opinions at 2003 U.S. Dist. Lexis 16244, 14 AD Cases (BNA) 1609 (9/15/03) and at 2002 U.S. Dist. Lexis 7726, 13 AD Cases (BNA) 32 (4/29/02).

      Click links for (1) Docket Entries (and verdict); (2) Motion for Summary Judgment (9/15/03); and (3) Motion to Dismiss (4/29/02).

      Return to the Contents menu.

Sex Discrimination - Equal Pay & Opportunity Claims

California state lab pays $18 million to settle a gender-bias pay and promotions lawsuit; lab agrees to change the controversial "Relative Value Ranking" worker rating system.

     3,200 women who are currently or were formerly employed at the UC Lawrence Livermore National Laboratory have agreed to share a $9.7 million settlement offer, plus receive a 1% raise. LLNL will also pay $8.2 million in attorney's fees and give seven named plaintiffs a total of $80,000.

     The heart of the lawsuit was against the Lab's "Relative Value Ranking" system, which determined an employee's annual salary adjustment on a subjectively determined number. The RVR number supposedly reflected a worker's "value" to the Lab, as compared to their coworkers.

     The plaintiffs claimed that the RVR system fostered gender stereotyping. As part of the settlement, the Lab will eliminate RVR for various groups of administrative and technical employees, and base their ratings on the applicable job classification and performance. Lab management and supervisors will receive settlement compliance training to eliminate gender bias.

     The Lab agreed to revise guidelines for the remaining employees covered under the RVR system, and to conduct annual pay, promotion, and rank equity studies to identify gender pay disparities. The results will be shared with the lawyers for the plaintiffs.

     Singleton and Jennings v. Regents of Univ. of Cal., #807233-1 (Alameda Co. Super. 2003); settlement rptd. at 41 (2036) G.E.R.R. (BNA) 1191.

      Click link for the Settlement Agreement [PDF] and the Plaintiffs' "Points and Authorities" brief.

     Editor's Note: Relative Value Rankings are similar to "comparable worth" ratings, which allegedly eliminate gender bias. The concept of a relative value scale was first described by George Bernard Shaw in his book "The Intelligent Woman's Guide to Socialism, Capitalism, Sovietism, and Fascism," ISBN 0394473159 (1928).

     Shaw wrote, "As no industrial employer would employ a woman if he could get a man for the same money, women who wished to get any industrial employment could do so only by offering to do it for less than men. * * * In this way the Labor market is infested with subsidized wives and daughters willing to work for pocket money on which no independent solitary woman or widow can possibly subsist."

     See also, Comparable Worth: Issue for the 80s, a U.S. Commission on Civil Rights consultation held June 6-7, 1984, in Washington, D.C., 234 pp. USCRC Publication No. 005-904-00015-3.

      Return to the Contents menu.

Sexual Harassment - Same Gender

Federal appeals court rejects a male-on-male claim; although the supervisor engaged in unwanted sexually offensive conduct, there was no evidence he was a homosexual or that he wanted to have sex with the plaintiff.

     On multiple occasions a male supervisor subjected a male worker to offensive conduct including grabbing his buttocks and grinding his genitals against him in simulated intercourse, making lewd comments, attempting to stick a shovel handle in his anus, and kicking him.

     The worker sued for sexual harassment. The trial court noted that there was no evidence the supervisor ever sexually harassed any women employees. However, there also was no evidence that the supervisor was a homosexual or was motivated by sexual desires.

     A three-judge appeals court affirmed the dismissal, noting that there was no proof that the supervisor exhibited a general hostility to other males in the workplace. Although the conduct was "inappropriate and vulgar" there was no evidence of a sexual animus. McCown v. St. John's Health System, #03-1478, 349 F.3d 540, 2003 U.S. App. Lexis 23079 (8th Cir. 2003).

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

      Return to the Contents menu.

Sexual Harassment - Verdicts, Settlements & Indemnity

Federal appeals court finds that a judgment for sexual harassment is not dischargeable in federal bankruptcy proceedings.

     By statute, a discharge in bankruptcy "... does not discharge an individual debtor from any debt .. for willful and malicious injury by the debtor ...." 11 U.S. Code §523(a)(6).

     In this case, the appeals panel noted that the defendant had created an abusive working environment by making sexual comments and inappropriate touching, which "triggered a depression related to [the plaintiff's] history of earlier sexual abuse." The plaintiff recovered $75,000 for emotional distress, $50,829 for lost wages, plus $59,303 in attorney's fees and costs. The panel said:

     Jones v. Svreck, #02-044, 300 B.R. 133, 2003 Bankr. Lexis 1302, 42 Bankr. Ct. Dec. 4 (1st Cir. Bank. 2003). In reaching its conclusion, the panel cited a trial court opinion in Wisconsin, Biggers v. Wilson, #96-29993 & 97-2094, 216 B.R. 258, 1997 Bankr. Lexis 2048, 31 Bankr. Ct. Dec. 1048 (Bankr. E.D. Wis. 1997).

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

      Return to the Contents menu.

Uniforms, Clothing and Equipment

Connecticut rules that management can unilaterally adopt a rule against police officers using personal cellphones while on duty.

     A police dept. in Connecticut has a rule that "All ... equipment ... shall conform ... to specifications ... approved by the Chief of Police and no other shall be ... added to those items."

     When the chief found out that officers were carrying personal cellphones, he banned their use. His objections were (1) lack of recording, (2) distraction and (3) cutting dispatch out of the "information loop." Officers use a modern radio system with few dead zones.

     A three-person Labor Relations Board upheld the prohibition as a management right. There was no duty to bargain the issue with the union. Town of Wallingford and AFSCME- L-1570, Case #MPP-21,187, Decision #3902 (Conn. Bd. Lab. Rel. 2003).

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

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Report non-working links here


NOTED IN BRIEF
(SOME WITH LINKS)

Civil Service

     New legislation allows the Defense Department to create its own personnel system for 750,000 civilian employees. Management will have more flexibility in hiring, firing, and promoting employees. H.R.1588, National Defense Authorization Act [for FY-2004], 5 U.S. Code §9901-9904 (2003). Also see, the DoD Civilian Personnel Manual.

Collective Bargaining - Duty to Bargain

     The FLRA annuls management's attempt to abolish 4-10 shifts for INS agents without bargaining. Dept. of Justice, INS and AFGE L-505, #SF-CA-02-0506, 2003 FLRA Lexis 175, 59 FLRA No. 56 (FLRA 2003).

Criminal Liability

     Sixth Circuit upholds a federal criminal indictment that a local fire chief violated the federal arson statute when he allegedly set fire to the firehouse. A town firehouse, containing equipment manufactured outside the state, affected interstate commerce. U.S. v. Laton, #02-5185, 2003 U.S. App. Lexis 24770, 2003 FED App. 0437P (6th Cir. 2003).

Death Benefits

     Missouri appellate court holds that the family of an off-duty police officer, who was killed while working secondary employment as a security guard, could collect workers comp. benefits from the police dept. Because of the dual employment, the family could choose which employer would be liable. Leach v. Kansas City Bd. of Police Cmsnrs., #WD61913, 118 S.W.3d 646, 2003 Mo. App. Lexis 1743 (2003).

Domestic Partner Rights

     Citing the U.S. Supreme Court's sodomy decision in Lawrence v. Texas, 123 S.Ct. 2472 (2003), Massachusetts has joined Vermont and Ontario in declaring laws that limit marriage to opposite gender couples is unconstitutional. Goodridge v. Dept. Public Health, #SJC-08860, 798 N.E.2d 941, 2003 Mass. Lexis 814 (Mass. 2003). "

FLSA - Administrative & Executive Exemptions

     The First Circuit holds that police sergeants are exempt from FLSA overtime requirements. O'Brien v. Town of Agawam, #03-1685, 350 F.3d 279, 2003 U.S. App. Lexis 24220 (1st Cir. 2003).

Handicap Laws / Abilities Discrimination - In General

     Upholding a termination for intoxicated driving, the Eighth Circuit holds that a no substance abuse last-chance agreement does not violate the ADA. Longen v. Waterous Co., #02-3297, 347 F.3d 685, 2003 U.S. App. Lexis 21190,14 AD Cases (BNA) 1665 (8th Cir. 2003). [PDF]

Injuries to Employees

     Ninth Circuit refuses to give qualified immunity to Oakland police officers that mistakenly killed an off-duty officer. Whether the shooting was reasonable "depends on disputed issues" and is "best resolved by a jury." Wilkins v. City of Oakland, 350 F.3d 949, 2003 U.S. App. Lexis 23661 (9th Cir. 2003 ). [PDF]

     In a study of 1,050 Baltimore City Police officers, 78% reported they had been physically assaulted by suspects or civilians, 77% had foot problems, 58% reported headaches, 55% complained of a needlestick injury, 47% reported nausea, 36% reported chest pains, 35% reported chronic back pain, 26% reported shooting someone, 20% reported migraines, 16% reported chronic insomnia and 9% had been assaulted by a coworker. "Work Related Injuries and Psychosomatic Problems Amongst Police Officers," a report at the 2003 National Occupational Injury Research Symposium by Columbia University School of Public Health, by Prof. Elizabeth Smailes Ph.D. et al., (10/28/2003).

Past Practices, Precedents & Zipper Clauses

     A city's practice of temporarily rescheduling firefighters' work shifts -- known as arrowing -- was not a binding past practice, despite the union's failure to file a grievance for over 20 years. Assn. of Cleveland Fire Fighters L-93 v. City of Cleveland, No. 2002-0612, 99 Ohio St.3d 476, 2003 Ohio 4278, 793 N.E.2d 484, 2003 Ohio Lexis 2176, 173 LRRM (BNA) 2484 (Ohio 2003). [Ms-Word]

Psychological Counseling

     A treating psychiatrist or psychologist who releases a patient simply because he has no insurance, when the patient has been involuntarily committed under state law as a danger to himself and others, may be liable to the patient and any person that patient injures. Immunities for treating psychiatrists are not applicable. Bragg v. Valdez, #B158819, 111 Cal.App.4th 421, 3 Cal.Rptr.3d 804, 2003 Cal. App. Lexis 1264 (2d Dist. 2003). [PDF]

Race Discrimination - In General

     Federal employees who are victims of race discrimination may not sue under section 504 of the Rehabilitation Act. Taylor v. Small, #02-5261, 2003 U.S. App. Lexis 24948 (D.C. Cir. 2003).

     Minorities who challenged the 1998 Chicago Police sergeant promotional process, which included an assessment of leadership, mentoring, decisionmaking and interpersonal traits failed to demonstrate the existence of an equally valid, less discriminatory employment practice. The City was entitled to a summary judgment. Allen v. City of Chicago, #02-3743, 2003 U.S. App. Lexis 24677 (7th Cir. 2003).

Race: Affirmative Action & Quotas

     Upholding a modest affirmative plan for promotion to police sergeant, the Seventh Circuit holds that "a visible presence of minorities in supervisory positions is critical to effective policing in a racially diverse city like Chicago because supervisors "set the tone for the department." Petit v. City of Chicago, #02-4151 & 02-4241, 2003 U.S. App. Lexis 25221 (7th Cir. 2003). [PDF]

Sexual Harassment - Retaliation

     A former New York City Corrections officer was engaged in "protected activity" when he defended himself against charges of sexual harassment. The Second Circuit reinstates his claim that he was denied a promotion because of his actions. Deravin v. Kerik, #02-7729, 335 F.3d 195, 2003 U.S. App. Lexis 13948, 92 FEP Cases (BNA) 472 (2d Cir. 2003). [PDF]

Suspensions and Administrative Leave

     A part-time police officer, who worked full time for another police dept. that had filed charges against him for misconduct, was not suspended, demoted, constructively discharged, or otherwise deprived of his property interest in his part-time employment when the police chief removed him from the duty list and subsequently declined to issue him new credentials, based on the charges that later led to his termination from his full time position. Dixon v. New Richmond, #02-3727, 334 F.3d 691, 2003 U.S. App. Lexis 13430, 20 IER Cases (BNA) 212 (7th Cir. 2003). [PDF]

Taxation

     National Guard and reserve members now may take an above-the-line deduction for overnight travel expenses, provided the destination is at least more than 100 miles from their primary residence. Military Family Tax Relief Act of 2003, Pub. Law No. 108-121.

Uniforms, Clothing and Equipment

FLRA upholds a Bureau of Prisons management decision of not paying a uniform allowance to non-uniformed personnel that are temporarily assigned to correctional officer posts, because they wear civilian clothing when so assigned. AFGE L-33 and DoJ Fed. Bur. of Prisons, #0-AR-3686, 2003 FLRA Lexis 174, 59 FLRA No. 54 (2003).

Whistleblower Requirements and Protection

     A new whistleblower law in Illinois, which applies only to the private sector, prohibits retaliation against employees for making disclosures to governmental or law enforcement agencies, or retaliation for refusing to participate in an activity that would result in a violation of a state or federal law, rule or regulation.

     Violation of the law is a Class A misdemeanor and the employee may sue for reinstatement, back pay, litigation costs and attorney fees. An "employee" can be full or part-time, and even a paid consultant of the entity that retaliates. Illinois Public Act 093-0579.

Workers' Compensation - Claim Validity

     A flight attendant scheduled to work on United Airlines flight 93 that was hijacked on Sep. 11, 2001 is ineligible for workers comp. benefits. Her post-traumatic stress disorder was not triggered while at work. "If we were to accept petitioner's argument, off-duty police officers, firefighters, and others whose jobs are inherently risky could seek compensation benefits when a fellow employee was injured or killed while taking the employee's place ...[and] ... no authority exists to support that position." Stroka v. United Airlines, #A-4274-01, 835 A.2d 1247, 2003 N.J. Super. Lexis 364 (N.J. App. Div. 2003).

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RESOURCES

      Aviation security -- job effectiveness: "Efforts to Measure Effectiveness and Strengthen Security Programs," Government Accounting Office Testimony, Document GAO-040285T (Nov. 20, 2003). [PDF]

      Credit card abuse: GAO Report - "Steps Taken to Improve DoD Program Management, [and] Address Misuse." In 120 transactions, involving $3,062,000 in allegedly unauthorized charges, no one was fired or suspended, and only three persons were verbally reprimanded. [PDF]

      Drug-free workplace website: U.S. Dept. of Labor offers resources to help employers establish drug-free workplace programs and other initiatives.

      FLSA comp time: Plaintiff's Complaint and class action notification in a suit by officers against the NYPD. [PDF]

      Occupational health - bicycle duty: Male bicycle patrol officers who were studied experienced groin numbness due to prolonged pressure on the perineum. The data, cited by NIOSH in a special report, suggests that prolonged bicycle riding may have negative effects on nocturnal erectile function and a need for innovative bicycle saddle designs. "Nocturnal Penile Tumescence and Rigidity Testing in Bicycling Patrol Officers," by Schrader, Breitenstein, Clark, Lowe, and Turner, 23 Journal of Andrology 927-934.

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:

Civil Liability - see: Sexual Harassment - Verdicts
Collective Barg./Duty to Bargain - see: Uniforms and Equipment
Disciplinary Offenses - see: First Amendment Related
Disciplinary Procedures - see: Suspensions
Homosexual Employee Rights - see: Employee Harassment - Nonsexual
Sexual Harassment/Same Gender - see: Employee Harassment - Nonsexual
Union Activity - see: Disciplinary Interviews - Subject Matter
Untruthfulness - see: Disciplinary Interviews - Untruthfulness

Noted in Brief:

Alcohol Abuse - see: Handicap Discrimination - In General
Last Chance Agreements - see: Handicap Discrimination - In General
Promotional Procedures - see: Race Discrimination
Stress Related Claims - see: Workers' Compensation - Claim Validity
Workers' Comp. - Claim Validity - see: Death Benefits

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