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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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2005 FP Jul (web edit.)

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CONTENTS

Featured Cases with Links

Arbitration Awards - Court Interference (2 cases)
Disciplinary Discovery
Disciplinary Evidence
Disciplinary Hearings - Untenured
Disciplinary Interviews - Weingarten Rights (2 cases)
Disciplinary Punishment - In General
Employee Searches
Handicap Discrimination - Accommodation
Product Liability
Whistleblower Protection

Noted in Brief

Applicant Rejections (2 cases)
Back Pay Claims & Awards
Civil Service
Collective Barg. - Duty to Bargain (2 cases)
Defamation
Discovery & Media Rights
FLSA - Overtime
Family, Medical & Personal Leave
Injuries to Employees
Pay Disputes
Physical Fitness Programs
Political Activity/Patronage Employment
Privacy Rights
Retaliatory Personnel Action
Sexual Harassment
Teleworking Transfers - Non Disciplinary
Wrongful Discharge

Resources

Cross_References


FEATURED CASES & ITEMS
WITH LINKS TO THE OPINIONS OR DOCUMENT

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Arbitration Punishment Awards - Right of Courts to Interfere

Appellate court reverses a trial judge that had set aside an arbitration award reinstating a police officer who committed a misdemeanor.

     While off duty, an Illinois officer identified his status and hostilely confronted a motorist that had lightly bumped his wife's car. He later received an 18-day suspension for violating agency procedures. Subsequently he was found guilty of a criminal misdemeanor and was fired.

     On review, the arbitrator noted that the grievant had served almost 13 years with no disciplinary suspensions and that the city originally chose to suspend him for 18 days, even though it could have taken far more drastic action. He felt that the 18-day suspension was sufficient to warn the grievant not repeat his improper conduct.

     The arbitrator also allowed the city to require the grievant to submit to an employee evaluation with emphasis on anger management. If the city exercised this option, the grievant would be required to comply with any program that the city deemed proper.

     The city sought judicial review, and a circuit court set aside the award, as contrary to public policy. The officer appealed, and a three-judge appellate panel reversed and reinstated the award, saying:

     There was no clear public policy, in Illinois or other states, requiring the termination of a police officer who, while off-duty, commits a misdemeanor.

     Moreover, the officer was placed on supervision, and the trial court did not enter a judgment of conviction, allowing the charge to be dismissed if the officers successfully completed supervision. City of Highland Park v. Teamster L-714, #2-04-0653, 2005 Ill. App. Lexis 396 (2nd Dist. 2005).

     Click here to view the opinion on the Internet.

     Return to the Contents menu.

     Research Note: Ten years ago, the same appellate court disallowed a pension for an ex-officer who was forced to resign after he pled guilty to a misdemeanor (fondling a citizen).

     Allowing him to collect a pension would cause a public injustice because the claimant would "profit from his own wrongdoing." However, the panel said their decision "is limited to the narrow facts presented by this case and is not to be extended generally to all misdemeanors" committed by a public employee. Jagielnik v. Bd. Tr. of Mundelein, 271 Ill.App.3d 869, 649 N.E.2d 527, 1995 Ill.App. Lexis 265 (Ill.App. 1995).

« « « « « « » » » » » » »

Pennsylvania appellate court overturns an arbitration award and trial court decision that reinstated a laborer at an airport who falsified his time cards. The relevant consideration is not an analysis of the employee's job duties, but of the type of misconduct.

     A laborer at a county airport was fired for "theft" of services. The arbitrator ordered reinstatement and a trial court confirmed the award. A three-judge appeals panel has reversed.

     The worker committed a "serious breach of trust" directly against his employer by refusing to surrender his identity badge, falsifying his time records and making his whereabouts at the airport unknown. In overturning the award, the panel said:

     Allegheny County Airport Auth. v. Construction Gen. Lab. Union L-1058, #1413 C.D. 2004, 2005 Pa. Commw. Lexis 201, 177 LRRM (BNA) 2053 (Pa. App. 2005).

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

     Return to the Contents menu.

Disciplinary Discovery

New Mexico Supreme Court, in an appeal where a lieutenant was demoted to sergeant, affirms the denial of a prehearing demand that the city produce the records of all disciplinary actions in the past five years. The request was overly broad, burdensome, and the records sought had no relevance to the issues in his appeal.

     Management attempted to demote a police lieutenant to sergeant for failure to competently oversee the search for a missing child. He responded to the city manager that the proposed penalty was excessive, unfair and in variance with three cases where other officers received lesser or equal punishment for more serious infractions.

     Five days before his hearing was set to begin he sought an order compelling the city to produce "all prior cases involving the suspension, demotion or termination of an SFPD officer (of any rank) in the last five years."

     The city opposed the motion on the grounds that the information was confidential, that the probative value was slight and irrelevant, and that the demand was overly broad and unduly burdensome. The city's Grievance Review Board agreed and denied the discovery request.

     On review, the New Mexico Court of Appeals reversed; see 92 P.3d 11 (N.M. App. 2004). The appellate panel held, 2-to-1, that the appellant's due process rights were violated when the board denied him "access to information concerning the discipline of other officers who had committed similar infractions of departmental policies and procedures."

     The Supreme Court granted certiorari and reversed the appellate court, thus upholding the Review Board. The justices wrote:

     Archuleta v. Santa Fe Police Dept., #28,630, 2005 NMSC 6, 108 P.3d 1019, 2005 N.M. Lexis 118 (2005).

     Click here to view the opinion on the Internet.

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Disciplinary Evidence - In General

Although an in-car videotape did not show that an officer had used excessive force, the fact that two coworkers had reported that he used unnecessary force justified his termination, especially when this was the second time that he had overreacted.

     Two police officers informed their sergeant that another officer used excessive force to subdue a driver, striking him once or twice in the head with his knee while pinning him to the ground.

     The police chief terminated the officer's employment for excessive force and the civil service commission confirmed. A trial court disagreed, observing that the in-car videotape did not support the finding that the officer had used excessive force, and that any knee-to-head contact was unintentional.

     The appellate court reversed, writing:

     The appellate panel gave more weight to the testimony of the two officers at the scene. The officer's use of excessive force in the incident called into question his ability to perform his job as a police officer, and considering a prior suspension for a similar incident, discharge was the appropriate sanction.

     Termination of his employment as a police officer was the reasonable next step in progressive discipline, they said, "for the protection of the public." Peterson v. Civil Serv. Cmsn. of Cedar Rapids, #5-093/04-0143, 2005 Iowa App. Lexis 257 (2005).

     Click here to view the opinion on the AELE website.

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Disciplinary Hearings - Untenured

Editor's Case Alert

Ninth Circuit affirms the rule that a probationary employee is not entitled to a name-clearing hearing if terminated without a stated reason. The fact that an investigative report was sent to the prosecutor is not a publication of stigmatizing allegations. Moreover, "an employee has no need for a name-clearing hearing in connection with criminal charges, because the criminal justice system adequately protects whatever procedural rights are due him."

     A probationary deputy sheriff was terminated, without a stated reason, and a copy of the investigation report was sent to the District Attorney. The DA filed criminal charges, but they were dismissed following a preliminary hearing.

     The ex-deputy and the union sued the county for an injunction and damages, claiming that the deputy was entitled to a name-clearing hearing because of the stigmatizing information in the report sent to the prosecutors.

     The Ninth Circuit concluded that no stigma could have attached to the termination because the sheriff gave no reason in the termination letter placed in the deputy's employment record and there was no public statements regarding any basis for the determination.

     More importantly, the panel held that the transmittal of an investigative report to the prosecutor did not constitute a publication of stigmatizing allegations.

     The panel also held that "an employee has no need for a name-clearing hearing in connection with criminal charges, because the criminal justice system adequately protects whatever procedural rights are due him."

     Riverside Sheriff's Assn. v. Co. of Riverside, #03-56007, 126 Fed. Appx. 840, 2005 U.S. App. Lexis 6304, 2005 WL 668648 (Unpub. 9th Cir. 2005).

     Click here to view the opinion on the AELE website.

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Disciplinary Interviews & Compelled Reports - Weingarten Rights

Editor's Case Alert

Appellate court overturns a NY labor board ruling that allowed police officers and other unionized public employees to have the assistance of a Weingarten representative during a criminal interview where the union member is a suspect.

     We previously reported that New York's PERB held that a police officer who is a member of a union is entitled to have his Weingarten representative present during a criminal interview. The Board said that while the conduct of criminal investigations of officers is not a mandatory topic for collective bargaining, the representative is there to assist an employee, not to negotiate with the employer. Rochester Police Locust Club and City of Rochester, Case #U-23938, 37 NYPER 3015, 2004 NYPER (LRP) Lexis 80 (NY PERB 2004).

     The city appealed, and in February a five-judge appellate panel reversed the PERB holding. In May, the state's highest court denied further review.

     The panel concluded that PERB "abused its discretion" in expanding a public employee's rights to include the presence of a union representative during a criminal investigation. It noted that New York has a strong public policy that prohibits union interference with criminal investigations. It wrote:

     City of Rochester v. Public Empl. Rel. Bd. and Rochester Police Locust Club, #TP 04-01759, 15 A.D.3d 922, 790 N.Y.S.2d 788, 2005 N.Y. App. Div. Lexis 1068 (App. Div. 4th Dept.); review denied, 2005 N.Y. Lexis 1120 (N.Y. 2005).

     Click here to view the opinion on the AELE website.

     Editor's Comment: A public employee is entitled to the presence of his attorney if he or she is the focus of a criminal investigation. An officer who is interviewed as a criminal suspect has an absolute right to decline to answer any questions, or to insist that a lawyer of his choosing attend the interview.

     There is no professional, ethical or moral duty to participate in a criminal interview -- especially without the assistance of an attorney who would represent the officer in his personal and private capacity.

     AELE recommends that the following "warning" to be given to public employees, who are not under arrest, and are asked to be interviewed as part of a criminal investigation. This is a modification of the "Beckwith Warning" given to federal employees who are criminal suspects.

Employee Criminal Interview - Advice of Rights

     This interview is part of a criminal investigation.

     1. You have the right to remain silent if your answer might incriminate you.

     2. Anything you say can be used against you as evidence in a disciplinary or civil proceeding or any future criminal prosecution involving you.

     3. If you refuse to answer a question because the answer may incriminate you, you cannot be disciplined solely for remaining silent.

     4. You do not have the right to remain silent about another person's commission of a crime, unless that information also implicates your involvement in a criminal offense.

     5. You have the right to consult an attorney of your choosing, and to have that attorney present to advise you during the interview.

     Note that the above warning is not appropriate under two circumstances. First, if the employee is under arrest, the Miranda warning is the proper admonition. Second, if the investigation is for disciplinary, non-criminal purposes, the Garrity warning is the appropriate advice of rights.

     For an explanation of the rights of public employees under the Supreme Court decisions of Beckwith, Garrity, Miranda and Weingarten, see Interviews and Interrogations of Public Employees, an article appearing in the Law Enforcement Executive Forum (Nov. 2004). [PDF]

     Return to the Contents menu.

« « « « « « » » » » » » »

Arbitrator reinstates an officer who, after an auto collision, declined to sign a statement without conferring with his union representative.

     Asking for the assistance of a labor representative, which is a right guaranteed under the Supreme Court's Weingarten decision, is viewed by some as an anti-agency animus.

     In 2003, the grievant was involved in a single car accident while on duty in Texas. He reported the accident promptly and, later that night, signed a form acknowledging that he understood his rights to union representation. As requested, he wrote and signed a memorandum regarding the vehicle damage.

     Around midnight, the grievant's immediate supervisor called him into his office and asked him to sign a reprimand letter. The grievant asked to show the document to a union representative before he signed it.

     The grievant was asked (1) if he understood the order, (2) understood the consequences of refusing the direct order, and (3) whether or not he was refusing the direct order. Although the grievant said he was not refusing the order, he persisted in asserting a right to union representation. After consulting with his union representative, the grievant returned and offered to sign, acknowledging the letter, but was denied the opportunity to do.

     Thereafter, his superiors reported that the grievant had refused to follow a direct order. He was terminated for insubordination, and the matter proceeded to arbitration.

     The arbitrator observed that the grievant was not at fault in the accident. In his judgment, the grievant deserved only an informal counseling at most; and informal counseling would have been as effective and less costly than a reprimand. He said that "Weingarten rights are triggered when management begins to investigate accusations against a member of the bargaining unit. Unions are entitled to represent employees in meetings management holds with employees in connection with an investigation."

     An employee must "reasonably believe" that the examination may result in disciplinary action against him or her. Here, the grievant was confused as to the meaning of the letter and was not given an explanation. The arbitrator wrote:

     Terminating the grievant did not "promote the efficiency of the governmental services." He added that there are certainly valid reasons for paramilitary operatives to strictly adhere to lawful orders. Those involve threats to life and limb or dangerous situations.

     The problem here was that no such circumstances existed because the grievant was asked to sign a document. Reinstatement, back pay, and benefits were ordered. U.S. Customs and AFGE L-2455, 120 LA (BNA) 1397 (Mitchell, 2005).

     Click here to view the award on the AELE website.

     Return to the Contents menu.

Disciplinary Punishment - In General

Arbitrator reduces the penalty of prematurely disengaging a dashboard videocamera after a traffic stop from 10 to 5 days suspension. There were no aggravating factors.

     The union admitted that the grievant made a mistake in turning off the video recorder in his vehicle, but it was near the end of a traffic stop and there was no allegation of misconduct. It recommended a verbal reprimand.

     The arbitrator said that management had a legitimate interest in insuring that the video recorder was on during the entire encounter. The taping policy, he said, "protects the officer from any future allegations of improper tactics and protects the Department and the officer from future liability."

     However, a 10-day suspension was excessive in light of the officer's discipline-free record. The penalty was cut to 5 days. City of Warren and Ohio PBA, 120 LA (BNA) 1332, FMCS #04-5377 (Adamson, 2004; rptd. 2005).

     Click here to view the award on the AELE website.

     Return to the Contents menu.

Employee Searches

Federal appeals court declines to enjoin a county jail management from requiring employees to submit to random patdowns and the removal of shoes and belts.

     In 2003 we reported that a federal judge in Pittsburgh ordered the warden of the county jail to stop requiring workers to take off their socks during random searches, but allowed jail management to require employees to remove their shoes and belts. Allegheny Co. Prison Employees Indep. Union v. Co. of Allegheny, #03-CV-1075 (Unpub. W.D.Pa. 2003). [See our March, 2003 issue.]

     In a 2004 decision, the district court found that searches of personnel entering a detention facility were necessary to control the entry of contraband into the facility and to safeguard the security of employees and inmates; see 315 F.Supp.2d 728 (W.D. Pa. 2004).

     The district judge also noted that employees at a jail have a diminished expectation of privacy, and that the need to stop contraband outweighed the privacy interests of the facility's employees.

     On appeal, the union claimed that the searches, conducted randomly and requiring the removal of outer garments, shoes and belts, but not socks, and same-sex patdowns over the abdomen and groin area (that did not involve groping or massaging) violated their Fourth Amendment rights.

     The three-judge appellate panel found that the district judge properly balanced the competing interests, when she concluded that the need to prevent the introduction of contraband outweighed the privacy interests of the employees.

     Allegheny Co. Prison Employees Indep. Union v. County of Allegheny, #04-197, 124 Fed. Appx. 140, 2005 U.S. App. Lexis 4560 (3rd Cir. 2005).

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

     Return to the Contents menu.

Handicap Laws / Abilities Discrimination - Accommodation - General

Federal court refuses to order a test provider to lengthen the test period by 50% to accommodate an applicant with Attention Deficit Disorder. An inability to perform well on a standardized test does not substantially interfere with the major life activity of learning.

     A student with Attention Deficit Hyperactivity Disorder claimed that she needs one and a half times as long as others to complete tests because of an impaired ability to focus and concentrate. A national testing service declined the requested accommodation and she sued.

     A federal judge has declined to issue a preliminary injunction, because the plaintiff failed to show that she was likely to establish that she was "disabled" within the meaning of the ADA.

     The court noted a difference between what a psychologist means by "disability" and what the ADA means when it uses that term. A person might have a medically recognized "learning disability" and yet not have a "disability" within the meaning of the ADA.

     The fact that a person does poorly on standardized exams might be a result of many factors, "such as anxiety, stress, nervousness, cautiousness, poor organization, poor time management, lack of motivation, lack of appropriate preparation, or weakness in a particular subject matter."

     Under the strict language of the ADA, "an impairment that interferes with an individual's ability to perform a particular function, but does not significantly decrease that individual's ability to obtain a satisfactory education otherwise, does not substantially limit the major life activity of learning."

     Baer v. Natl. Bd. of Medical Examiners, #05-10724, 2005 U.S. Dist. Lexis 7796, 2005 WL 1027289 (D. Mass. 2005).

     Click here to view the decision on the AELE website.

     Return to the Contents menu.

Product Liability

Federal appeals court affirms the dismissal of a suit for wrongful death and injuries brought by the survivors NYC firefighters, claiming that Motorola intentionally sold the FDNY radios that are ineffective in high-rise buildings. Sept. 11th Victim Compensation Fund was the exclusive remedy of all claimants.

     Relatives of deceased New York City firefighters sued the city and Motorola, claiming that Motorola negligently and intentionally provided radio equipment that it knew to be ineffective in high-rise structures like the WTC Towers, causing many deaths.

     A District Court dismissed the action, holding that the federal September 11th Victim Compensation Fund provided the sole source of compensation. The Air Transportation Safety and System Stabilization Act, P.L .107-42, 115 Stat. 230 (2001) and the Aviation and Transportation Security Act, P.L. 107-71, 115 Stat. 597 (2001) precludes claims against third parties.

     The post 9-11 air transportation laws provided quick, no-fault compensation for the families of the terrorist attacks. The District Judge held that the waiver provisions preclude a suit for damages against third parties.

     A three-judge panel of the Second Circuit has affirmed, writing:

     The panel noted "the great sacrifice that many of New York's bravest men and women made on behalf of those who were trapped in the burning towers," but said they were required to "assess the law as it is given to us by Congress."

     Virgilio v. City of New York, #04-1942, 407 F.3d 105, 2005 U.S. App. Lexis 7441 (2d Cir. 2005), affirming #03cv10156, 2004 U.S. Dist. Lexis 3636, 2004 WL 433789 (S.D.N.Y. 2004).

     Click here to view the Second Circuit's decision on the Internet. [PDF]

     September 11th Victim Compensation Fund of 2001 website.

     "Lessons of Non-Interoperability in Public Safety Communication Systems," Univ. of New Hampshire (2001). [PDF]

     Return to the Contents menu.

Whistleblower Requirements and Protection

Federal appeals court affirms dismissal of an ex-FBI translator who claims that she was fired after she reported security problems and incompetence. Consideration of state secrets prevented her from maintaining her lawsuit.

     Some have said the most dangerous job in the FBI is to be a whistleblower. An FBI linguist made multiple reports of security lapses and gross incompetence to her superiors. Management responded by firing her. She sued and sought specific documents.

     The Bureau responded that the disclosure of the classified information would damage national security. The FBI's motion for summary judgment was granted except for three documents. The plaintiff appealed.

     A three-judge panel of the D.C. Circuit has affirmed in a summary and unpublished Order. The District Court had ruled, that because the Attorney General properly invoked of the state secrets privilege, dismissal of all claims was the necessary result:

     Edmonds v. Dept. of Justice, #04-5286, 2005 U.S. App. Lexis 8116 (Unpub. D.C. Cir. 2005) affirming 323 F.Supp.2d 65 (D.D.C. 2004) and 272 F.Supp.2d 35 (D.D.C. 2003).

     Click here to view the decisions on the AELE website.

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NOTED IN BRIEF
(SOME WITH LINKS)

Applicant Rejections

     Under Illinois law, the tort of wrongful refusal to hire is not recognized. Griggs v. Marion Hosp. Corp., #2004-CV-4241, 2005 U.S. Dist. Lexis 7701, 2005 WL 975238 (S.D. Ill. 2005).

     N.Y. appellate court affirms the rejection of a police officer applicant who tested positive for barbiturates, a controlled substance. Police agencies have wide discretion to determining the fitness of candidates, particularly police officers. Stephens v. Suffolk County, #2003-10030, 15 A.D.3d 589, 789 N.Y.S.2d 740, 2005 N.Y. App. Div. Lexis 1852 (2d Dept. 2005).

Back Pay Claims and Awards

     Texas appellate court orders a city to pay accumulated sick, vacation, and holiday leave to a reinstated firefighter after his termination was annulled. Waco v. Bittle, #10-03-00098-CV, 2005 Tex. App. Lexis 2107 (2005).

Civil Service

     Office of Personnel Management issues regulations to implement the Workforce Flexibility Act of 2004, 5 U.S. Code §5753-54, by enabling recruitment, relocation, and retention incentive payments for federal personnel. 5 C.F.R. 530 and 575 O.P.M. interim regulations, 70 Fed. Reg. 25731 (5/13/05) [PDF].

Collective Bargaining - Duty to Bargain

     The Illinois Labor Relations Board's General Counsel agrees that a city can reduce the number of fire captains after a retirement, but must bargain with the firefighters' union over the impact of the decision. Effingham Fire Fighters Assn., L-3084 and City of Effingham, #S-CA-03-144, 21 PERI 11, 2005 PERI (LRP) Lexis 8 (2005).

     N.Y. PERB reiterates the general rule that management cannot negotiate different benefits with a member of the bargaining unit. It is a separate and additional violation to provide one or more members of a bargaining unit with benefits in excess of those specified in the bargaining agreement, regardless of management's motivation or intent, "because such actions are inherently destructive of a union's representation rights." East Rochester PBA and East Rochester, # U-25111, 38 NYPER (LRP) P4503, 2005 NYPER (LRP) Lexis 12 (NY PERB, 2005).

Defamation - In General

     Canadian police chief receives a settlement of Can-$5,000 [US-$4,000] from a couple who anonymously published a web blog that that accused him of being a "rotten apple" and heading a "corrupt" administration. Beaton v. Fisher, Queen's Bench, Alberta. Source: CBC News and Calgary Sun (30 Apr. 2005).

Discovery, Publicity and Media Rights

     Pennsylvania appellate court holds that a newspaper wasn't entitled, under the state's public records law, to obtain a public official's itemized cellular telephone bills, citing concerns of potential identity theft. Tribune-Review Publ. Co. v. Bodack, #427 C.D. 2004, 2005 Pa. Commw. Lexis 234 (Pa. App. 2005). [PDF]

FLSA - Overtime - in General

     Citing the Portal-to-Portal Act, a federal court has dismissed a prolonged suit that claimed that federal law enforcement officers and agent were owed compensation for commuting in government-provided vehicles. Adams v. U.S., #90-162C, 2005 U.S. Claims Lexis 113 (2005). [PDF]

Family, Medical & Personal Leave

     Federal court in Pennsylvania holds that the 12-month requirement for being an "eligible employee" under the Family and Medical Leave Act should be based on the day leave commences. An employee who had worked less than 12 months, when she gave notice that she was pregnant, was protected because the start of her planned leave was after her one-year anniversary. Beffert v. Penn. Dept. of Public Welfare, #05-43, 2005 U.S. Dist. Lexis 6681 (E.D. Pa. 2005).

Injuries to Employees

     N.Y. appellate court overturns a jury verdict for a police officer who was hit on the head with a metal "mag" flashlight by an unknown fellow officer during an attempted arrest of a suspect. There was no proof that the other officer acted with the requisite intent to violate the law and "the jury verdict appears to have been the result of speculation and conjecture." Warren v City of New York, #2003-01860, 791 N.Y.S.2d 650, 2005 N.Y. App. Div. Lexis 2599 (2d Dept. 2005).

Pay Disputes - In General

     Arbitrator holds that a firefighter that was reinstated after his termination was overturned was entitled to payment for 282 hours overtime he likely would have worked, but for the disciplinary action. City of Barberton and IAFF L-329, 120 LA (BNA) 1367, FMCS #040209/52328 (Goggin, 2004; rptd. 2005).

Physical Fitness Programs

     Arbitrator denies payment for time spent while Agriculture Dept. employees commute to and from work on a bicycle. Although an agency "Wellness Policy" allows up to 3 hours of paid leave per week for exercise activities, including cycling, walking, jogging, running, and skating, the time spent while commuting to and from a residence is not duty time. U.S. Dept. of Agriculture and NFFE L-276, 120 LA (BNA) 1560, FMCS Case #04/51068 (Briggs, 2005).

Political Activity/Patronage Employment

     Federal appeals court declines to overturn the decision of a newly elected sheriff to fire a superior ranking officer who supported the defeated incumbent. "... political affiliation is an appropriate requirement for the position of Asst. Deputy Superintendent for Training." Hadfield v. McDonough, #04-2020, 407 F.3d 11, 2005 U.S. App. Lexis 8259 (1st Cir. 2005).

Privacy Rights

     California appellate court holds that the salaries of highly paid law enforcement officers and public officials are not confidential personnel records, and disclosure to the media is not an unwarranted invasion of privacy or a violation of the state constitutional provision protecting personal privacy. Int. Feder. of Prof. Eng. L-21 v. Superior Court (Contra Co. Newspapers), #A108488, 128 Cal.App.4th 586, 2005 Cal. App. Lexis 607 (1st Dist. 2005). [PDF]

Retaliatory Personnel Action

     Eighth Circuit affirms a refusal to dismiss a lawsuit alleging retaliatory action. Although the sheriff said that he had demoted a sergeant for improper handling of a traffic citation, the plaintiff claimed that it was in retaliation for filing a lawsuit challenging the sheriff's promotional procedures. Powell v. Johnson, #04-1684, 405 F.3d 652, 22 IER Cases (BNA) 1443, 2005 U.S. App. Lexis 7505 (8th Cir. 2005). [PDF]

Sexual Harassment - In General

     "Lewd and vulgar comments" created a sexually hostile environment. Federal court allows two male civilian Navy police officers to proceed to trial with sexual harassment claims against their female boss. Anderson v. England, #3:03CV116, 359 F.Supp.2d 213, 2005 U.S. Dist. Lexis 3703, 95 FEP Cases (BNA) 776 (D. Conn. 2005).

Teleworking (Non disability related)

     The U.S. Office of Personnel Management has informed the House Committee on Government Reform that the threat of terrorist attacks on American soil has highlighted a need for federal agencies to adopt emergency plans for displaced workers. Telework contingency plans could minimize essential service interruptions, and are authorized under Pub. Law 106-346, Sec. 359 (2000). OPM and the GSA have an interagency information website at http://www.telework.gov/

Transfers - Non Disciplinary/Punitive

     California appellate court rules that a lateral transfer and a disciplinary suspension that was never implemented were not adverse personnel actions entitling a prison employee to sue for retaliation or civil rights violations. McRae v. Dept. of Corr., #A098073, 127 Cal.App.4th 779, 25 Cal.Rptr.3d 911, 2005 Cal. App. Lexis 384 (1st Dist. 2005). [PDF]

Wrongful Discharge - In General

     An unpaid municipal volunteer is not an employee for purposes of bringing a wrongful termination actions. Mendoza v. Town of Ross, #A103878, 128 Cal.App.4th 625, 27 Cal.Rptr.3d 452, 16 AD Cases (BNA) 1215, 2005 Cal. App. Lexis 612 (1st Dist. 2005). [PDF]

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RESOURCES

     Firefighter cardiac deaths -- Report: Three-quarters of firefighters who died of heart attacks -- the top cause of on-duty deaths -- went to work with known or detectable heart conditions, according to a ten-year study by the National Fire Protection Association.

     Military retirement -- Report: Major Legislative Issues, identified by the Congressional Research Service. [PDF]

     Whistleblowers -- Report: "Homeland and National Security Whistleblower Protections: The Unfinished Agenda."

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:
Disciplinary Punishment - see: Arbitration Punishment Awards
Disciplinary Punishment - see: Disciplinary Evidence
Injuries to Employees - see: Product Liability
Examination Techniques - see: Handicap Discrimination - Accommodation
Probationary Employment - see: Disciplinary Hearings

Noted in Brief:
Discovery, Publicity and Media Rights - see: Privacy Rights
Drug Abuse & Rehab. - see: Applicant Rejections
First Amendment Related - see: Retaliatory Personnel Action
Pregnancy Discrimination - see: Family Leave
Reductions in Force - see: Collective Bargaining - Duty to Bargain

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