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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 Mar (web edit.)

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CONTENTS

Featured Cases with Links

Collective Bargaining
Disciplinary Procedures - Double Jeopardy/Punishment
Disciplinary Punishment - In General
Disciplinary Punishment - Disparate Treatment
Disciplinary Punishment - Sexual Misconduct
Domestic Partner Rights
Firearms - Restrictions on Wearing
Firearms/Weapons - Other Issues
Handicap Discrimination - Accommodation
Impasse Arbitration
National Origin Discrimination
Nepotism

Noted in Brief

Age Discrimination
Arbitration Procedures (2 cases)
Arbitration Punishment Awards
Disciplinary Offenses - Insubordination
Disciplinary Searches
Employee Harassment - Sexual Orientation
FLSA - Overtime
Handicap Discrimination - Regarded as Disabled
Handicap Discrimination - Specific Disabilities
Injuries to Employees
Releases & Waivers
Transfers (2 cases)
Union and Associational Activity
Worksite Environmental Hazards

Resources

Cross_References


FEATURED CASES & ITEMS
WITH LINKS TO THE OPINIONS OR DOCUMENT

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Collective Bargaining - In General

Newly elected Governor of Missouri honors a campaign pledge to rescind the collective bargaining rights of state employees. He also vetoes a bill allowing the forced deductions of union dues for nonunion workers.

     In 1965 Missouri enacted a public sector "Meet and Confer" law, which stopped short of full collective bargaining rights. Rev. Stat. Mo. §105.500.

     In 2001, the then Governor issued Executive Order #01-09 allowing full collective bargaining for state employees. A group of legislators, private organizations, and state employees filed a lawsuit contesting the order, claiming that it violated the state constitution by placing state government under the control of mediators and arbitrators rather than the executive or legislative branch.

     Those arguments were later rejected by a three-judge appeals court. The panel explained that there are three categories of executive orders.

     The first consists of formal, ceremonial, and political orders. Those are often issued as proclamations to declare some special day or period in honor of some act or event and have no legal effect.

     The second category includes directives to subordinate executive branch officials regarding the execution of their duties. These are not legally enforceable, and the Governor cannot seek a court order to enforce his executive order. Such an order would only carry the potential of a penalty for noncompliance.

     The third category consists of those orders which implement or supplement the state's constitution or statutes. These have the force of law. The distinction between the third classification and the other classifications are based upon the presence of some constitutional or statutory provision, which authorizes the executive order either specifically or by way of necessary implication.

     Because Executive Order #01-09 was in the second category, it could not be challenged in a suit brought by taxpayers. Kinder v. Holden, #WD 61067, 92 S.W.3d 793, 2002 Mo. App. Lexis 2414, 171 LRRM (BNA) 3252 (2002).

     Executive Order 05-01 (Rescinding Executive Order #01-09), 02 (11) Workplace Law Rep. (BNA) 403 (2005).

     Click links to view the 2002 appellate court opinion and the 2005 Executive Order [PDF] on the Internet.

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Disciplinary Procedures - Double Jeopardy /Punishment

Editor's Case Alert

Arbitrator holds that an employer did not have just cause to terminate a supervisory employee for making sexual comments, because he had been required to view a CD and to review the organization's sexual harassment policies. "Double jeopardy" prevented further discipline.

     Although this case arose in the private sector, it vividly illustrates what can happen when management responds to an incident by ordering remedial training and simultaneously pursues a disciplinary investigation.

     A store manager was accused of making inappropriate sexual comments, and was ordered " to view the CDs on sexual harassment on the computer .. [and] to re-read the [the employer's] policies on Harassment and Language, Terminology and Sensitivity."

     Later, he was fired for his conduct, and grieved the termination. The defense of "double jeopardy" was raised, because the remedial training on sexual harassment was deemed to be of a disciplinary nature. The arbitrator set aside the termination, and said:

     Meijer and Grievant "H", 120 LA (BNA) 700 (Obee, 2004).

     Editor's Note: Is remedial training "discipline"? The employee suffers no "adverse employment action" if the training is offered on-the-clock, and if it is not overly stigmatizing. Although some indignity arises every time that superiors require that a course be repeated or a policy to be re-read, no lasting "stigma" attaches unless coworkers, subordinates or prospective employers learn of the remedial action and perceive it as punishment. Codd v. Velger, #75-812, 429 U.S. 624, 97 S.Ct. 882 (1977).

     Nevertheless, in jurisdictions where the arbitration of disciplinary sanctions is an option, management should prepare a written memo to the concerned employee, indicating that he or she is directed to participate in remedial training, in a non-disciplinary setting, and that the right of management to take disciplinary action against the employee is a continuing possibility. Under no circumstances should the retraining be listed in the employee's disciplinary record, but it should be a part of the employee's training record.

     Research Note: A number of prior arbitration awards have examined the double jeopardy claim:

     Investigatory suspensions: Employee was not subject to double jeopardy when he was terminated for the incident for which he was initially suspended, where the penalty was not imposed until the incident had been investigated and the fire chief made his decision. City of Coweta, Okla. and IAFF L-3483, 119 LA (BNA) 42, FMCS Case #02/09594 (Moore, 2003).

     Investigatory suspensions: Management did not have the right to impose a 7-day suspension in addition to a 3-day suspension already imposed on the employee for being in tavern drinking beer during a noon break. The grievant was not told that that he was being suspended for three days pending further investigation into the matter. City of Kenosha, Wis. and AFSCME L-71, 76 LA (BNA) 758 (McCrary, 1981).

     Performance review: Management did not commit double jeopardy when it denied a merit increase to an employee it had disciplined six months earlier for insubordination, where his entire performance was evaluated. State of Alaska Dept. of Corrections and Public Safety Employees Assn., 117 LA (BNA) 674, Alaska Case #01-C327 and PSEA Case #01-01C (Henner, 2002).

     Prior Misconduct Record: An officer's record of prior misconduct was admissible in a hearing to determine propriety of his proposed discharge and was not double punishment. N.Y. State Dept. of Correctional Services and AFSCME C-82, 69 LA 344 (Kornblum, 1977).

     Post Appeal Actions: Management did not have just cause to terminate an employee, after he filed of a grievance contesting his suspension and demotion. The added punishment violated the double jeopardy concept. St. Lucie County, Fla. and Teamsters L-769, 115 LA (BNA) 1046, FMCS Case #00/13783 (Frost, 2001).

     Promotions: A firefighter who was denied a promotion after he failed random drug test was not subjected to double jeopardy; the grievant was not demoted and was still receiving same rate of pay. City of Corpus Christi, Tex. and Firefighter's Assn., 113 LA (BNA) 329, AAA Case #70-390-00005-99 (Allen, 1999).

     Transfers: Management did not subject a police officer to double jeopardy when it transferred him due to his performance deficiencies, after disciplining him for those lapses. Assignment-related decisions do not constitute double jeopardy. City of Topeka Police Dept. and FOP L-3, 118 LA (BNA) 519, FMCS Case #01/16809 (Erbs, 2003).

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Disciplinary Punishment - In General

Appeals court declines to overturn the termination of a police officer that violated agency policy and was untruthful about his conduct. Honesty is critical to an officer's performance of duty.

     A Utah municipal civil service commission affirmed the termination of a police officer for accepting benefits from a towing company and untruthfulness during the investigation of the matter.

     The former officer appealed, claiming that termination was an excessive penalty in light of the length and quality of his service and the nature of the alleged wrongdoing.

     A three-judge appellate court noted that because the officer was untruthful during an administrative investigation into the incident, his termination was within the permitted range of sanctions for the violation. They wrote:

     The court also noted the fact that two other officers were terminated for the same misconduct, demonstrated the consistency of his punishment. Huemiller, v. Ogden Civil Service Cmsn., #20010968-CA, 2004 UT App 375, 101 P.3d 394, 2004 Utah App. Lexis 414 (2004).

     Click here to view the opinion on the Internet.

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Disciplinary Punishment - Disparate Treatment

Federal court rejects attempt to set aside the firing of a detective who had planned with an informant to rip off drug dealers. Instances where non-black officers had received lesser penalties were not similar.

     Management fired an officer for conspiring, over a six-month period, to rip off drug dealers and then lying about it under oath. He was fired, and an independent Hearing Examiner sustained the dismissal. Rather than appeal through the state courts, the officer sued in federal court, claiming race discrimination.

     He pointed to five non-black officers that he claimed had engaged in misconduct similar to his, but received less severe punishments, and to two officers that allegedly committed more egregious acts, but were not fired.

     The other incidents involved situations that were isolated or off-duty or minor, as opposed to the plaintiff's long-term plan to misuse police authority to enrich himself. Their misstatements to superiors were not under oath.

     Here, the plaintiff's misconduct "was more serious, and not of the same quality and quantity as the offenses committed by the officers" he claimed to be similarly situated. Mizell v. Miami-Dade County, #03-21156-CIV, 342 F.Supp.2d 1084, 2004 U.S. Dist. Lexis 21718 (S.D.Fla. 2004).

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

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Disciplinary Offenses/Punishment - Sexual Misconduct

Arbitrator reinstates a sheriff's deputy who had sex with a citizen in his patrol car. The officer admitted the conduct and he had a long and impressive performance record.

     A California sheriff terminated a deputy for having on-duty sex with a citizen participant in a ride-along program in a marked patrol vehicle. The sheriff also referred to a written reprimand given to the deputy three years earlier for conducting personal business while on duty.

     The arbitrator rejected management's claim that the prior conduct was similar in gravity or character to the present charge, and that it gave him warning that termination was appropriate for further misconduct.

     The grievant's work record showed him to be an "outstanding" officer. His last four evaluations were "Exceeds Standards" and he had received three "officer of the year" awards from community organizations. The Arbitrator said that his "long period of service and the quality of his service were not accorded the due consideration they deserved in arriving at the decision to terminate his employment."

     The sheriff was entitled to discipline the grievant "with a penalty less than termination" and the parties were directed to "come to a mutual resolution as to what shall be an appropriate penalty." County of Shasta Sheriff's Dept. and Deputy Sheriff's Assn., 120 LA (BNA) 377, CSMCS Case #ARB-03-2020 (Pool, 2004).

     Click here to view the opinion on the AELE website.

     Editor's Research Note: Courts have upheld termination for on-duty sexual misconduct of police officers and firefighters. See Police Cmsnr. of Boston v. Civil Service Cmsn., 22 Mass App. 364, 494 N.E.2d 27 (1986) [police officer] and Foust v. City of Greensboro, 266 S.E.2d 835 (N.C. App. 1980) [firefighter].

     Arbitrators will apply the concept of just cause. The penalty of termination is likely to apply to on-duty sexual conduct when there are aggravating factors, such as:

     1. The employee lied about the conduct. In Ohio, an Arbitrator upheld the termination of an officer who lied about having sex in a police car while on duty. City of Cuyahoga Falls and FOP, FMCS #010302/007108-6, 116 LA (BNA) 545 (2001). The U.S. Supreme Court declined to review police termination case where trooper lied about having sex on duty. Martin v. Kentucky State Police, #98-466, 525 U.S. 1001 (1998).

     However, a Florida Arbitrator reinstated a police lieutenant who allegedly lied about having sex with another officer while on duty because of a lack of "clear and convincing evidence" of guilt. City of Tallahassee and Police Benev. Assn., FMCS #96-010155, 34 (1691) G.E.R.R. (BNA) 1638 (Ferguson, 1996).

     2. The sexual partner was a minor. An Arbitrator reduced punishment of a trooper from termination to reinstatement without back pay, for engaging in a sexual relationship with an Explorer Scout while on and off duty. The punishment was reduced because management erroneously believed the offenses started before the scout's 18th birthday. Wash. St. Patrol and W.S.P. Troopers Assn., 2 (9) Pub.Sfty.Lab. News (LRIS) 9 (Lankford, 1994).

     3. The sexual partner was a prostitute or an inmate. A New York appellate court sustained the termination of a police officer who consorted with prostitutes, even though there was no payment of monies for sexual services. Ruiz v. Brown, 179 A.D.2d 543, 579 N.Y.S.2d 47 (1992).

     4. The sexual act occurred in a public place. A Michigan federal court sustained the termination of a police officer for a sexual act in a public park, even though he was off-duty. Faust v. Police Civ. Serv. Cmsn., 563 F.Supp. 585 (W.D. Mich. 1983). However, a military appellate court set aside discipline for a sexual act that occurred on a public beach; it was after midnight and the parties were in an unlighted area. U.S. v. Carr, 28 M.J. 661, 1989 CMR Lexis 214 (N-MC CMR 1989).

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Domestic Partner Rights

A divided Montana Supreme Court allows gay and lesbian public employees to participate in a state agency's family insurance programs for employees, because unmarried heterosexual couples were eligible.

     Two lesbians employed by the Montana state university system and their domestic partners sued because heterosexual couples are allowed to sign up for partner insurance benefits, but same-gender couples were ineligible. The lower court denied relief, and the plaintiffs appealed to the state supreme court.

     Amicus briefs were filed by diverse interest groups, including the Family Research Council, Focus on the Family, Lambda Legal Defense & Education Fund, Montana Catholic Conference, Montana Human Rights Network, National Legal Foundation Outfield Alliance, Rainbow Connection, United Church of Christ, United Families International, Women's Law Caucus and various members of the 58th Montana Legislature.

     The justices noted that benefits were available to lawful and "common law" spouses, but the latter includes opposite-gendered couples who did not satisfy the state's requirements for the recognition of common law marriages.

     The four-justice majority held that treating unmarried same-sex couples differently than unmarried opposite-sex couples is unfair and unequal treatment, the court said. There was no justification for treating the two groups differently, nor did it promote a legitimate governmental interest.

     In a concurring opinion, one justice said that gay men and lesbians are a suspect class for equal protection purposes, having been "historically subject to unequal treatment. Three justices dissented. Snetsinger v. Montana University System, # 2004 MT 390, 2004 Mont. Lexis 675 (2004; rptd. 2005).

     Click here to view the opinion on the Internet.

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Firearms - Restrictions on Wearing

Editor's Case Alert

Federal court declines to dismiss a discrimination suit filed by an officer who was convicted of domestic violence. Although federal law prevents her from carrying a firearm, she might be able to establish there are positions in the police dept. that she could be assigned to without being armed.

     In 1994 a black female NYPD officer was convicted for assault in connection with an off-duty incident in which she shot her then-husband.

     Management terminated her for criminal conduct and her inability to carry a firearm under federal law. The Federal Gun Control Act of 1996 disqualifies perpetrators of domestic violence from carrying a handgun.

     She sued in federal court, claiming race, color, and gender bias in violation of the Civil Rights Acts of 1964 and 1991.

     NYPD argued that the plaintiff's her termination was a direct result only of her legal incapacity to carry a firearm, and there was no discriminatory conduct. The court rejected that argument for two reasons.

     First, even if the Federal Gun Control Act precludes her from carrying a firearm, "factual questions remain as to whether a legal prohibition on carrying a firearm would preclude [her] from occupying all positions in the police department."

     Second, her allegations encompass more than just her termination and "include loss of her pension and other alleged mistreatment before her termination."

     However, although the plaintiff cited two instances were other officers were not fired for related conduct, the judge found those to be "readily distinguishable." One officer was acquitted of firearms charges, while the other officer was not even charged with a firearms offense.

     The judge cautioned that the plaintiff must establish her claims with proof, and that his ruling was only that the case should not be summarily dismissed on the basis of her pleadings. Braphman-Bines v. NYPD, 03-CV-10207, 2004 U.S. Dist. Lexis 26416 (S.D.N.Y. 2004).

     Click here to view the opinion on the AELE website.

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Firearms/Weapons - Other Issues

Federal Labor Relations Authority upholds a management directive that customs officers should take their weapons home and secure them when off-duty, and not leave them at the workplace.

     The union proposed to modify the "Firearms and Use of Force Handbook" by requiring U.S. Customs to provide officers with a suitable locker or safe at the worksite for firearm storage when they are off-duty.

     The FLRA noted that not all duty locations are equally secure and that management determined that "the safest and most secure way to store firearms is by having the employee, who is trained and qualified with the firearm, maintain possession of it while off-duty."

     Because the policy relates to the protection of personnel, property and operations, management established a link to its internal security concerns.

     Under §7106(a)(1), management has the right to determine the level of security necessary to protect its personnel, property, and operations and the measures required to achieve that security level.

     The FLRA said that "the Agency has exercised its right to determine its internal security practices by having employees who are trained and qualified to carry firearms maintain possession of their firearms when off-duty." NTEU and U.S.D.H.S., Customs and Border Protection, #0-NG-2627, 60 FLRA No. 77, 2004 FLRA Lexis 171 (FLRA 2004).

     Click here to view the opinion on the Internet.

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Handicap Laws / Abilities Discrimination - Accommodation - General

City was not required to accommodate a bipolar employee, by giving him a transfer, after he had made threats in the workplace.

     A city worker was suspended for 15-days for making threatening comments in the presence of co-workers. He sued the city, claiming that it discriminated against him because of his race and his disability (bipolar disorder)

     He also alleged that the city should have accommodated his disability by transferring him to a different job after his suspension. The U.S. District Court granted summary judgment for the city on all counts.

     He had sought a transfer due to the severe stress that he was suffering while working with people who he believed were fearful of him. The stress aggravated his illness, and a transfer was "medically necessary."

     A three-judge appeals panel has affirmed. They said that bipolar disorder did not entitle him to a job transfer under the reasonable accommodation clause of the ADA. Bradford v. City of Chicago, #04-1939, 2005 U.S. App. Lexis 573 (Unpub., 7th Cir. 2004).

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

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Impasse Arbitration

Neutral arbitrator accepts the union's Last Best Offer of a 6% raise. Although the city was in "dire financial straits," officers were 29.33% behind their counterparts in other police departments and a raise was needed to attract and retain competent police officers.

     The FOP's last best offer was a 6% increase; the city's last best offer was to maintain police wages at there current level, reduce the officer's uniform provision, and remove several employees from the bargaining unit and contract coverage.

     A non-supervisory police officer earned $9.80 per hour compared to the average rate of $12.91 per hour for non-supervisor skilled workers in Oklahoma. Officers were 29.33% behind their counterparts in other police departments.

     The independent member of the panel chose the FOP's offer, and wrote:

     City of Hugo, Okla. and FOP L-104, 120 LA (BNA) 540, FMCS Case #040528/55105-6 (Crow, 2004).

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

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National Origin Discrimination

Appeals court affirms the termination of a security officer that refused to remove a confederate flag from his truck and lunchbox. He was not fired because he was a "Southerner" -- he was terminated for insubordination.

     A security officer was fired for failing to remove confederate flag from his lunchbox and pickup truck. He filed suit, alleging national origin and religious discrimination.

     Because he was not a public employee, he could not assert a Free Speech claim. The "national origin" claim was based on his heritage as a "Confederate Southern-American." The religious claim was based on his practice of Christianity.

     The trial court dismissed his lawsuit and he appealed. A three judge panel affirmed, but for different reasons. Two judges said he was not fired because of his national origin or religious beliefs, but because of his insubordination. They noted that "his employer tried to convince him to cover or remove his stickers during work so that he could remain an employee despite his claimed national origin and religion."

     The third judge said that "Southernness" is not a "protected trait" and the officer did not inform his employer that displaying the Confederate flag had any relation to his religious beliefs or observances. Storey v. Burns Intl. Security Serv., #03-2246, 390 F.3d 760, 2004 U.S. Dist. Lexis 25262 (3rd Cir. 2004).

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

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Nepotism and Consanguinity Regulations

Rejected candidate could not sue for unlawful discrimination because the fire dept. hired relatives of current firefighters. Nepotism is not unlawful under federal or N.J. state law.

     In 1998 the plaintiff placed 15th out of 55 on the eligibility list. There were 15 openings for paid firefighter positions during the 3-year period that the list was in effect. The fire dept. initially hired only 8 paid firefighters and passed over 2 candidates; 3 of the 8 were related to current or former city employees.

     The plaintiff was passed over due to the fact the psychologist did not recommend him. He sued, because the state's Law Against Discrimination prohibits employment discrimination based on "familial status," N.J.S.A. 10:5-3. The trial court dismissed his suit.

     Affirming, a three-judge appeals panel noted that "term familial status" means one's status as a parent and does not include the concept of nepotism.

     They said it was not an unlawful employment practice to give hiring preference to relatives of current and former employees. Bumbaca v. Twp. of Edison Fire Dept., A-6279-02T3, 373 N.J. Super. 239, 861 A.2d 156, 2004 N.J. Super. Lexis 415 (2004).

     Editor's Note: Nepotism could be the basis of a valid lawsuit if it perpetuates racial, national origin, or other forms of discrimination. That was not alleged in this case.

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NOTED IN BRIEF
(SOME WITH LINKS)

Age Discrimination - Entry

     Federal court upholds a maximum entry age of 35 for police officers in New York. Feldman v. Nassau Co., #04-CV-0900, 2004 U.S. Dist. Lexis 25054 (E.D.N.Y. 2004).

Arbitration Procedures

     An employer's requirement that discrimination complaints be brought to arbitration during a 180-day period "unreasonably favors" an employer and was "unconscionable." Adler v. Manor, #74701-6, 2004 Wash. Lexis 93 (Wash. 2004).

     A provision that all arbitration proceedings, including settlements and awards, remain confidential was unenforceable and unreasonable here because it only benefits the employer. Zuver v. Airtouch Comm., #74156-5, 103 P.3d 753, 2004 Wash. Lexis 936 (Wash. 2004).

Arbitration Punishment Awards - Right of Courts to Interfere

     Massachusetts appellate court holds that an arbitrator's reinstatement of a Boston jail officer, that had failed to report an inmate assault by other officers and then gave IA investigators a false statement, will not be set aside by the courts. Reduction of the penalty to a six-month suspension without pay did not violate public policy. Sheriff of Suffolk County v. AFSCME C-93, #03-P-1154, 62 Mass. App. 915, 817 N.E.2d 336, 2004 Mass. App Lexis 1271 (2004).

Disciplinary Offenses - Insubordination

     Arbitrator reverses a disciplinary suspension imposed on a deputy sheriff who failed to attend a hearing. The deputy had notified his sergeant that he was ill that day. Hamilton Co. Sheriff and FOP Ohio, 120 LA (BNA) 652, FMCS #03/13587 (Cohen, 2004).

Disciplinary Searches

     Police did not need a warrant to search a computer used by a volunteer worker at the charity's offices. The consent of the office manager was sufficient authority, and a conviction for kiddie porn was affirmed. Washington v. Leck, 30714-6-II, 2004 Wash. App. Lexis 3121 (2004).

Employee Harassment - Sexual Orientation

     Los Angeles to settle two harassment lawsuits for approximately $450,000 and $200,000. Two gay male officers, ages 42 and 45, claimed discrimination by coworkers and superiors. Weiner v. Los Angeles and Duncan v. Los Angeles, L.A. Times, Dec.26, 2004.

FLSA - Overtime - Roll Call & Meal periods

     Iowa Supreme Court holds that sergeants were exempt from the overtime provisions of the FLSA, but meal time for officers was compensable. Raper v. Iowa Dept. Public Safety, #86/03-0255, 688 N.W.2d 29, 2004 Iowa Sup. Lexis 277, 10 WH Cases2d (BNA) 76 (2004).

Handicap Laws / Abilities Discrimination - Regarded as Disabled

     Personality conflicts among coworkers -- even those expressed through the use or misuse of mental health terminology -- generally do not establish a perceived impairment on the part of the employer, nor does a management order to take a fitness for duty exam. Lanman v. Johnson County Sheriff's Dept., #03-3316, 2004 U.S. App. Lexis 27200, 16 AD Cases (BNA) 449 (8th Cir. 2004).

Handicap Laws / Abilities Discrimination - Specific Disabilities

     Seventh Circuit reinstates a suit brought by a Type I insulin-dependent diabetic who was denied employment as a criminal investigator. The applicant raised a genuine issue as to whether he can perform the essential functions of the position without becoming a threat to the safety of himself or others. Branham v. Snow, #03-3599, 392 F.3d 896, 2004 U.S. App. Lexis 26262, 16 AD Cases(BNA) 454 (7th Cir. 2004). [PDF]

Injuries to Employees

     The "Firemen's Rule" prevents police officers, who were overcome by chemical vapors, from suing the chemical company. Severns v. Concord Chem. Co., #L-5494-03, 373 N.J. Super. 368, 861 A.2d 243, 2004 N.J. Super. Lexis 439 (2004).

Releases & Waivers

     Federal appeals court rules that a party suing for statutory and constitutional violations is barred from recovery if he has settled and signed a release of all claims. If the release is obtained by fraud, he must return the money tendered promptly or he is deemed to have ratified the settlement. Brown v. City of South Burlington, #03-9060, 2004 U.S. App. Lexis 27060 (2nd Cir. 2004). [PDF]

Transfers - Non Disciplinary/Punitive

     Federal court finds that a chief of police failed to follow civil service requirements under state law and city rules when filling vacancies, and that transfer policies and eligibility lists were circumvented or ignored, subjecting the city to liability under §1983. However, "hurt feelings, anger and frustration are a part of life and are not themselves sufficient to establish one's entitlement to compensatory damages." Cox v. City of Jackson, #3:94-cv-623, 343 F.Supp.2d 546, 2004 U.S. Dist. Lexis 23591 (S.D.Miss. 2004).

     Seventh Circuit holds that the transfer of a police sergeant from the narcotics unit to a beat supervisor position was not an adverse employment action, despite the loss of flexibility and overtime opportunities. "To sustain a federal employment discrimination suit, a plaintiff must show something more than the ordinary difficulties associated with a job transfer." O'Neal v. City of Chicago, #04-1402, 392 F.3d 909, 2004 U.S. App. Lexis 26448 (7th Cir. 2004). [PDF]

Union and Associational Activity

     Federal court holds that a union was not the official bargaining agent for airport screeners, and therefore lacked standing to bring a back pay lawsuit in behalf of one of its members. AFGE v. Stone, #3:04-CV-1219, 342 F.Supp.2d 619, 2004 U.S. Dist. Lexis 22082 (N.D.Tex. 2004).

Worksite Environmental Hazards

     Arbitrator holds that an employer did not violate the bargaining agreement when it used a new disinfecting cleaning solution that the grievant was allergic to. Although the union claimed that management did not provide the grievant with a safe and healthful working environment, the mere fact that the grievant was allergic to a particular cleaning solution did not make it unsafe. South Peninsula Hospital and Teamsters L-959, 120 LA (BNA) 673, FMCS Case #03/08438 (Landau, 2004). {N/R}

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RESOURCES

National Security:

      The Office of Counterintelligence, U.S. Dept. of Energy proposes to reduce substantially the number of polygraph exams administered, 70 (5) Federal Register 1383-1396 (Jan. 7, 2005).

      National Security Contingency Plans of the U.S. Government.

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 Interviews / Untruthfulness - see: Disc. Punishment - General
Religious Discrimination - see: National Origin Discrimination
Untruthfulness - see: Disciplinary Punishment - In General

Noted in Brief:
Criminal Liability - see: Disciplinary Searches
Disciplinary Punishment - see: Arbitration Punishment Awards

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