Appellate court in Ohio overturns arbitrator's decision to reinstate a violent public employee. "Workplace safety is a well defined and dominant public policy based on federal, state, and common law."

     The worker was suspended and later fired from a city housing authority after a history of violent episodes, including waiting outside a former supervisor's home, while armed with a shotgun.

     After being examined by various psychologists and social workers, it was determined that the grievant should not return to work. An arbitrator concluded that termination was too severe a punishment.

     The trial court declined to set aside the award. Reversing, the three-judge panel noted that several fellow employees had requested management to provide them with bulletproof vests if the grievant returned to work. The grievant's union steward stated that coworkers would quit if they were required to work with the grievant. They added:

"... the arbitration award in this case was an unconditional reinstatement, not requiring any successful rehabilitative efforts for the grievant's anger condition prior to his returning to work, despite the findings of the counselors and psychologists that stated that grievant was not ready to return to work."

     Akron Hous. Auth. v. Local 2517, AFSCME, #22365, 2005 Ohio 2965, 2005 Ohio App. Lexis 2764 (9th App. Dist. 2005).

    • Click here to view the opinion on the AELE website.

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Massachusetts Labor Relations Commission opts to include student police cadets into the same bargaining unit as campus police officers.

     The University of Massachusetts has two bargaining units for campus police officers. Unit A is for patrol officers, and Unit B for sergeants and lieutenants. Without receiving a petition from the affected cadets, the union sought to include them in Unit A; management objected and the dispute went before the state's Labor Relations Commission.

     Cadets must be at least 18 years old; police officers must be 21. Cadets must be enrolled in a college or university pursuing a degree in law enforcement. Cadets earn $12 an hour for their part-time work, and are supervised by the sergeants and lieutenants. They carry defensive weapons, but not firearms. Once cadets graduate, their employment is terminated.

     Cadets exercise police powers to detect crime and to apprehend violators and investigate complaints, but have limited arrest powers. They patrol University grounds and maintain order at special events.

     The Commission said there was no dispute that cadets perform services for compensation and that their work is supervised daily by lieutenants or sergeants. Although cadets may not be eligible for the fringe benefits that other employees receive, that "does not negate their status as statutory employees." The remaining issue was, whether cadets share a community of interest with the police officers.

     The Commission wrote:

"Community of interest does not require an identity of interest, provided there is no inherent conflict among consolidated groups of employees. The Commission has consistently found a community of interest among employees who share a similarity of interests and working conditions based upon common supervision and similar work environment."

     Although police officers are armed and work year-round, and cadets work only 8-16 hours a week and are unarmed, the difference in pay, benefits and working conditions was unlikely to produce conflicts in the bargaining unit.

     While cadet police powers were more limited than regular officers, "both positions provide a variety of security functions that protect the University's property, employees, and students, under similar, if not identical supervision and working conditions."

     The Commission concluded that the cadets shared a sufficient community of interest with the police officers sufficient to justify their inclusion into Unit A.

     A dissenting member of the three-person Commission noted that there was no election by cadets to indicate a desire for representation or their inclusion in the IBPO's Unit A. Univ. of Mass. and IBPO, #CAS-03-3563 (Mass. Lab. Rel. Cmsn. 2005).

    • Click here to view the opinion on the AELE website. [PDF]

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Texas Governor signs a Bill to help prevent "gypsy cops who jump from town to town because of poor performance or unethical behavior."

     The revised law formalizes background investigations and strengthens reporting requirements when employment vacancies arise. In addition to requiring a formal reason for separation, the agency head must indicate if the officer was "under investigation for a criminal violation or ... facing disciplinary action, including suspension, demotion, or termination."

     A person who is the subject of an employment termination report may contest information contained in the report by submitting a written request for a correction.

     H.B.2677, amending Texas Occupations Code §1701.451, relating to employment records maintained by the Commission on Law Enforcement Officer Standards and Education.

    • Click here to read the full text of the statutory amendments. [PDF]

     Editor's Note: For many years the IACP has supported the establishment of a national clearinghouse of certified officers within the Dept. of Justice, to assist federal, state, tribal and local public safety employers in conducting thorough, complete background investigations on applicants for positions in public service.

     The International Association of Directors of Law Enforcement Standards and Training (IADLEST) maintains a 13-state database of currently more than 5,700 records of officers who were dismissed for cause.

     Reference articles: "New approaches to ensuring the legitimacy of police conduct: misconduct among previously experienced officers: Issues in the recruitment and hiring of 'gypsy cops'," by John Middleton-Hope, 22 St. Louis U. Pub. L. Rev. 173 (2003).

     "Misconduct among previously experienced officers: Issues in the recruitment and hiring of 'gypsy cops'," by John Middleton-Hope, The Canadian Review of Policing Research (2004).

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Massachusetts Labor Relations Commission holds that a town improperly negotiated directly with a member of a bargaining unit and offered to create a light duty position, where no such assignment previously existed, and improperly terminated the officer when she refused the position.

     As stated in the Commission's decision, direct dealing between management and a member of a bargaining unit, is improper because:

     1. It violates the union's statutory right to speak exclusively for the employees who have elected it to serve as their sole representative, and

     2. It undermines the employees' belief that the union actually possesses the power of exclusive representation.

     Here, a police dept. threatened to terminate an injured officer unless she agreed to be reinstated to a light duty position. No such position previously existed or was mentioned in the bargaining agreement, and the union was not consulted on the modification.

     The officer was terminated and the union filed an unfair practice charge. The Massachusetts Labor Relations Commission concluded that a Chief's authority to assign duties to subordinate officers did not supercede a town's obligation to bargain with the union before assigning light duty. They said:

"An employer's obligation to bargain before changing conditions of employment extends not only to actual contract terms but also to working conditions that have been established through custom and past practice."

     The Commission ordered the town to:

     1. Cease and desist from "dealing directly with employees represented by an exclusive collective bargaining representative over matters that are properly the subject of negotiations with the employees' exclusive collective bargaining representative," and to

     2. "Reinstate the prior practice of permitting police officers who have been determined to be injured on duty ... to remain on paid injured-on-duty leave until able to perform their full duties," and to

     3. "Make [the affected] police officer whole for any economic loss or loss of benefits she may have suffered."

     Reinstatement was not ordered, because she qualified for and accepted a duty-incurred disability pension. Town of Harwich and Harwich Police Feder., #MUP-01-2960 (Mass. Lab. Rel. Cmsn. 2005). [PDF]

    • Click here to view the decision on the AELE website. [PDF]

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Rhode Island Supreme Court enforces a police chief's three-year employment contract that was adopted shortly before a new administrator took office.

     On her first day in office, a Rhode Island town administrator fired the chief of police without cause and informed him that his three-year employment contract with the town was void. The chief sued.

     The administrator claimed that she had "unfettered discretion in the hiring and firing of political appointees who hold policymaking positions" and that she was well within her rights to remove the chief to further the goals and objectives of her administration.

     The Supreme Court upheld the police chief, saying:

"We first address defendants' contention that [the chief's] contract with the Town of Lincoln is invalid and unenforceable, and that it impinges upon [the administrators'] rights to hire or fire a police chief according to her own desires. ...

"We disagree. The plain terms of the ... Town Charter give the town administrator the power to negotiate contracts on the behalf of the Town subject to the approval of the Town Council."

     The justices also found that under the town charter a police chief -- although a policymaking official -- is entitled to a hearing and proof of just cause before he or she is removed. Kells v. Town of Lincoln, #04-239, 874 A.2d 204, 2005 R.I. Lexis 109 (2005).

    • Click here to read the decision on the Internet. [PDF]

     Research Note: The intent of the three-year contract was to prevent the removal of the chief during the two-year period that the new town administrator would hold office. In some places, the contractual process has been abused for partisan political purposes.

     However, the duration and validity of public official employment contracts is a matter for the state legislature to establish. Municipal contracts cannot be perpetual or for an unreasonable duration. Bor. of W. Caldwell v. Bor. of Caldwell, 26 N.J. 9, 138 A.2d 402; 10 McQuillen Mun. Corp. 3rd §29.102.

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Arbitrator acquits firefighter of sexual misconduct with a homeowner, who did not testify. The firefighter's denials could not be overcome by the chief's testimony about what the citizen allegedly told him.

     A married firefighter admitted returning to a homeowner's house after an emergency call, and taking her out. The woman claimed the firefighter masturbated in his car, and she was frightened.

     The fire chief interviewed the citizen, without a tape recorder, without a witness to the interview, and did not have her to sign a written complaint. The chief testified as to the content of that interview.

     The firefighter denied any sexual conduct. On a prior occasion, he allegedly kissed a woman firefighter without her consent.

     The arbitrator said just cause for termination was lacking. The complainant did not testify against the firefighter, and hearsay evidence about her allegations was insufficient to convict him. He quoted the leading treatise on arbitration law:

     "In discharge or discipline cases, witness testimony concerning the facts that led to the disciplinary action comprises the most important evidence.... An employer's decision to rely solely on hearsay evidence in a case where it has the burden of proof has been deemed insufficient to sustain its case." Elkouri & Elkouri, How Arbitration Works (6th ed. 2003) at 349.

     The arbitrator said it was not necessary to adopt a blanket rule that hearsay evidence alone cannot support a just cause determination. Rather, "it is sufficient to find that the hearsay evidence in question is insufficient to outweigh the grievant's own sworn recitation of events." City of Minneapolis and IAFF L-82, 121 LA (BNA) 77 (Befort, 2005).

    • Click here to view the award on the AELE website.

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Judge jails a N.Y. Times reporter who wrote about the outing of an undercover CIA agent and subsequently refused to disclose her source to a federal grand jury.

     For more than 30 years, the Supreme Court's decision in Branzburg v. Hayes, 408 U.S. 665 (1972) partially protected reporters against the compelled disclosure of confidential sources, requiring a balancing of interests, on a case-by-case basis.

     Last Fall, a judge in New York ordered the imprisonment of two reporters. They had refused to disclose to prosecutors the names of administration sources in relation to Robert Novak's 2003 column, which had published the name of covert CIA operative Valerie Plame. The prosecutors were trying to determine whether Novak's source had violated the Intelligence Identities Protection Act (50 U.S. Code §421).

     The D.C. Circuit upheld the contempt charge against both reporters, and declined to rehear the case en banc. Both reporters asked the Supreme Court to review their appeals, which also was declined.

     One confidential source has come forward, and the reporter escaped imprisonment. The other was ordered held in detention until the grand jury term ends this year. In re Grand Jury Subpoena, #04-3138, 405 F.3d 17 (D.C. Cir. 2005); cert. den., Miller v. U.S., 125 S.Ct. 2977, 2005 U.S. Lexis 5190 and Cooper v. U.S., 2005 U.S. Lexis 5191 (2005).

    • Click here to view the Circuit Court's panel decision.

     Research Note: The First Circuit affirmed an order requiring a TV reporter to pay $1,000 a day until he revealed the identity of a source that provided him with an undercover surveillance tape in violation of a pretrial protective order. After paying $85,000, the fine was stopped and he was subsequently imprisoned. In re Special Proceedings, 373 F.3d 37 (1st Cir. 2004).

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Arbitrator rejects a disabilities defense for a corrections officer with sleep apnea. There was no showing that the condition caused her to oversleep and repeatedly report late to work.

     A federal corrections officer was given a three-day disciplinary suspension for taking unscheduled leave for tardiness. A grievance was filed, and the matter was sent to arbitration

     Management noted that the grievant requested leave for back pain, not sleep apnea. The union claimed the grievant lacked advance warning of possible disciplinary consequences of her absences.

     The arbitrator noted that the grievant did not report for work or call in on four occasions. Otherwise she is a good officer with more than twelve years of service. However, this was an instance of misjudgment. He wrote:

"It is beyond question that the requirement of an employee to report to work at the designated assigned time is reasonably related to the efficient and safe operation of the business. In this particular instance, the business of the Employer is the running of a Federal prison.

"The grievant was responsible for the supervision of inmates and her absence from the work force necessitated an immediate reassignment of duties by the grievant's supervisor. ...

"If employees decided to show up whenever they wanted to, it would not only hamper the efficient operations of the employer, it would have the effect of ultimately shutting operations down.

"The grievant was clearly AWOL until she reported to work at her designated time. There is no evidence in this case to demonstrate that the employer applied its rules, orders, and/or penalties in a discriminatory manner

"What is missing in this case is the direct nexus between the illness of sleep apnea and the grievant's inability to report to work at the designated start time. ... Obstructive Sleep Apnea Syndrome is defined as a breathing disorder during sleep caused by an obstructed airway.

"None of the evidence indicates that clinical indications include failing to wake up or oversleeping."

     The arbitrator sustained the imposition of discipline, but reduced the punishment from three days to one day. Fed. Bur. of Prisons and AFGE L-709, 120 LA (BNA) 1755, FMCS #04/53975 (Sellman 2005).

    • Click here to view the award on the AELE website.

     Editor's Note: Sleeping is a major life activity within the meaning of the ADA. McAlindin v. Co. of San Diego, 192 F.3d 1226 (9th Cir. 1999). Tardiness, however, impacts job performance.

     The EEOC has sustained the termination of a DEA employee for excessive tardiness. An agency is not required to accommodate employees with sleep disorders by allowing them to report to work whenever they are able. Kendall v. Ashcroft, #03A50006, 2005 EEOPUB Lexis 350 (2005).

     A federal appeals court has ruled that a police officer with sleep apnea, who was given a permanent day shift, was lawfully ordered to give up his second job that he worked one evening a week. Silk v. Chicago, # 98-1155, 194 F.3d 788 (7th Cir. 1999).

     In Washington, a D.C. Government worker failed to convince the court that his severe skin condition, which caused sleep problems, was a disability under the ADA. Haynes v. Williams, #01-454, 2003 U.S. Dist. Lexis 14842, 14 AD Cases (BNA) 1463 (D.D.C. 2003).

     A federal appeals court has held that impaired sleep, which prevented an employee from working overtime, was not a disability. Boerst v. General Mills, #00-3281, 25 Fed. Appx. 403, 2002 U.S. App. Lexis 813 (Unpub. 6th Cir. 2002). {N/R}

     As for preferences, an appellate court has held that an employee with a sleep disorder was not entitled to a shift change which would have run afoul of seniority provisions in the C.B.A. Fitzpatrick v. Ill. Hum. Rts. Cmsn., 642 N.E.2d 486 (Ill.App. 1994).

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Federal court in Utah rejects a suit by a pre-op transsexual public employee who was terminated because of a lack of available unisex toilets.

     A Utah transit authority driver sued after being terminated because of the lack of available unisex toilet facilities. The plaintiff, a "pre-operative transsexual," was not harassed or ridiculed after deciding to undergo a gender change. The authority offered to rehire her after gender reassignment surgery removes her male genitalia.

     The problem was that bus drivers must use toilets along their route when necessary. While various businesses to allow drivers to use their facilities, permission can be withdrawn, and the transit authority worried about public reactions to her restroom choice.

     The judge dismissed the complaint, noting that transsexuals are not protected under Utah or federal law. "For us to now hold that Title VII protects transsexuals would take us out of the realm of interpreting and reviewing and into the realm of legislating."

     The plaintiff cited Smith v. City of Salem, 378 F.3d 566 (6th Cir. 2004), where a male firefighter began treatment for Gender Identity Disorder. The city had ordered him to take three separate psychological exams and later suspended him."

     The Utah court found no parallel. "There is a huge difference between a woman who does not behave as femininely as her employer thinks she should, and a man who is attempting to change his sex and appearance to be a woman."

     Noting that if the plaintiff's desire to use the toilets of the opposite sex is required by law, "then any male employee could dress as a woman, appear and act as a woman, and use the women's restrooms, showers and locker rooms ..." The judge added:

     "There is no evidence that the defendants required Plaintiff's appearance to conform to a particular gender stereotype, only that they required her 'to conform to the accepted principles established for gender-distinct public restrooms.' ...

     "Defendants also points out, and the court agrees, that no study is necessary to conclude that many women would be upset, embarrassed, and even concerned for their safety if a man used the public restroom designated exclusively for women."

     Etsitty v. Utah Transit Auth., #2:04CV616, 2005 WL 1505610, 2005 U.S. Dist. Lexis 12634 (D. Utah 2005).

    • Click here to read the decision on the AELE website.

     Research Note: Currently 15 states and dozens of municipalities prohibit discrimination against homosexuals and transsexuals. The courts have disagreed on whether an employer must let workers use gender-specific toilets of their choice in those localities.

     In New York, a federal court awarded $193,551 in attorney's fees in a civil rights action brought by transvestites who were refused the use of gender-denominated toilets of their choice in a retail outlet. McGrath v. Toys "R" Us, 2002 U.S. Dist. Lexis 22610 (E.D.N.Y. 2002); modif. 356 F.3d 246 (2d Cir. 2004). [PDF]

     In Minnesota a woman schoolteacher lost her federal suit to prevent a male transvestite teacher from using the women's toilets. State law "neither requires nor prohibits restroom designation according to self-image" and her federal claim fails because she did not suffer a significant adverse employment action, i.e., a hostile work environment. Cruzan v. Special School District # 1, #01-3417, 294 F.3d 981 (8th Cir. 2002). [PDF]

     However, the Minnesota Supreme Court previously reversed a ruling that an employer must allow a transvestite to use the restrooms of his or her choice. The court held that restricting access to restrooms by biological gender is not sexual orientation discrimination. Goins v. West Group, #CX-00-706, 635 N.W.2d 717 (Minn. 2001).

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Appeals court enforces a last chance agreement. Whether the grievant violated agency rules was not arbitrable.

     The union and a public employee signed an agreement which provided that the worker "shall be immediately discharged from employment with no recourse for appeal, hearing, trial or arbitration under the labor agreement, Federal or State Court Systems if he violates any of the following regulations or conditions.

... f. chronic or excessive absenteeism. The determination of what is "chronic or excessive" shall be at the sole discretion of the Employer."

     The municipality later fired the worker and the union sought arbitration, not on the penalty, but on the fact issue of whether the employee breached the last chance agreement.

     A trial court ordered arbitration, relying upon the principle that arbitrators, not courts, decide arbitrability in the first instance and that public policy favors arbitration. The trial court found it significant that the last chance agreement "provided no protection to the employee where no independent third party could challenge the grounds for any action employer might take."

     A three-judge appeals panel reversed, and upheld management's refusal to bargain. The waiver provided the employee could be discharged with no further recourse, period. An employee and union can waive the right to arbitrate subsequent misconduct, and that waiver is binding.

     Municipal Employees Org. v. Penn Hills, #1219-CD-2004, 876 A.2d 494, 2005 Pa. Commw. Lexis 304 (Pa. Commw. 2005).

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

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Japanese manufacturer of Zylon ballistic vests offers $29 million to settle an Oklahoma class action lawsuit. Justice Dept. and others also have sued the manufacturer and distributor.

     Toyobo, a Japanese firm, supplied Zylon fiber for the vests to Second Chance Body Armor, a Michigan police supplier. Zylon vests allegedly deteriorated faster than predicted. At least one police officer has been killed and another wounded while wearing a Zylon vest.

     The settlement satisfies class-action litigation in California, Louisiana, Michigan, Missouri, New Jersey, Oklahoma and West Virginia.

     Toyobo claimed that the problem was caused by the design and production of the vests, not the material itself. Toyobo supplied eight other companies with Zylon, allegedly without a problem. Under the settlement, the plaintiffs can buy vests from Armor Holdings at a discount. Armor Holdings has been sued by a police union in Florida.

     Each agency will receive from $200 to $700 for each vest they bought from Second Chance, depending on how many agencies opt into the settlement. An estimated 155,000 vests were sold at a cost of $700 to $800 each.

     Second Chance declared bankruptcy and also sued Toyobo. A number of other suits, filed by officers, agencies and public officials, are pending.

     Lemmings v. Second Chance, #CJ-2004-62 (Okla. Dist. Ct., Mayes Co., settled 2005); Southern States PBA vs. Armor Holdings, #2004-2942CA (filed 2004, Fla. 4th Cir. Ct.); United States (Movant) in re Westrick v. Second Chance Body Armor, #1:04-cv-00280 (filed 2004, D.D.C.), alleging False Claims Act violations (31 U.S. Code §3729).

    • Click link to read the Class-action Notice and the Settlement Stipulation on the AELE website. [PDF]

    • Zylon vest class action information website

    • National Institute of Justice - Body Armor Standards and Testing

    • OJP/NIJ Status Report to the Attorney General on Body Armor: Safety Initiative Testing and Activities [PDF]

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New Illinois law penalizes any pension enhancements caused by balloon salary increases given during a worker's last year before retirement.

     Some public sector bargaining agreements in Illinois have included a mandatory "end-of-career salary increase," of 20%. That payment also increases the amount the worker will receive in pension benefits.

     New legislation imposes a penalty on public agencies that increase a retiring worker's salary by more than 6% for the final year of employment. The penalty is equal to present value of the increase in benefits resulting from the increase in salary that exceeds 6%.

     Current CBAs are not affected until they are renewed. There is no penalty for an employee who gets a big raise for the last year; only the public agency that agreed to the balloon payment is affected by the new provision. S.B. 27, Illinois Pension Code Amendments (2005).

    • Click here to view the legislation on the Internet.

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Bargaining Unit Determinations

     Rejecting a union demand, the Massachusetts Labor Relations Commission declines to sever 10 part-time firefighters from a bargaining unit with 17 members. The part-time firefighters share a community of interest with the fulltime members. Town of Sturbridge and Prof. F/F of SFD, #CAS-04-3575 (Mass. Lab. Rel. Cmsn. 2005).

Civil Service

     Illinois appellate court overturns the appointment of a jail director, because her name was not on the list of three candidates certified by the Corrections Board, and the law limits the sheriff's choices to those nominees. "If the sheriff has a problem with the statute, his complaint should be directed to the legislature." Read v. Sheahan, #1-041-04-3225, 2005 Ill. App. Lexis 683 (1st Dist. 2005).

Criminal Liability

     Air Force MSGT sentenced to 42 months confinement for improper distribution of controlled promotional testing materials. U.S. v. Saafir (Ramstein A.F.B. Gen. Ct. Martial, 2005).

Disciplinary Appeals & Challenges - In General

     California appellate court holds, whether a disciplinary action is reviewed by an arbitrator or an administrative judge or a hearing officer, a public employer cannot require employees to share any of the cost that would not be incurred if the appeal was litigated in court. Florio v. City of Ontario, #E036598, 2005 Cal. App. Lexis 1091 (4th Dist. 2005), relying on Armendariz v. Foundation Health Psychcare Services, #S075942, 24 Cal.4th 83 (2000). [PDF]

Disciplinary Punishment - In General

     Arbitrator upholds the termination of a private sector employee for extreme and repeated profanity combined with verbal threats and gestures ("I'm going to kick your ass," and "I'm going to knock the f--- out of you," etc.). Bell Helicopter Textron and UAW L-218, 120 LA (BNA) 1819, FMCS #04/55638 (Allen, 2005).

Discovery, Publicity and Media Rights

     Connecticut Supreme Court holds that a town failed to meet its burden of showing that the public release of high-resolution aerial photos would compromise public security. Director of Technology, Town of Greenwich v. Freedom of Information Cmsn., #SC 17262, 874 A.2d 785, 274 Conn. 179, 2005 Conn. Lexis 218 (2005). [PDF]

Equal Pay Laws

     Because the cited positions were not similar, the plaintiff's unequal pay claim must fail. Her failure to promote claim also must fail because she rejected a promotion. Ingram v. Brink's, #04-2343, 2005 U.S. App. Lexis 14327 (1st Cir. 2005).

FLSA - Overtime - Canine Officers

     Arbitrator holds that Customs inspectors and canine officers that are not covered by the Customs Officers Pay Reform Act [19 U.S. Code §267] are entitled to overtime pay under the FLSA. National Treas. Employees Union and U.S. Customs and Border Prot., 43 (2115) G.E.R.R. (BNA) 685 (Gootnick, 2005).

Family, Medical & Personal Leave

     Dept. of Labor clarifies that ERISA and the FMLA do not preempt more generous state leave laws. Employee Benefits Security Admin. Advisory Opin. #2005-13A (2005). [PDF]

Firearms/Weapons - Other Issues

     Illinois Police Training Act is amended to authorize the state Training Board to conduct annual firearm certification courses for retired law enforcement officers that are qualified under federal law to carry a concealed weapon. The amendments provide that retired officers must authorize a criminal background investigation. S.B. 0189. [PDF]

First Amendment Related

     Litigants and counsel have few, if any, First Amendment rights in a courtroom. "The courtroom is a nonpublic forum ... where the First Amendment rights of everyone ... are at their constitutional nadir." Mezibov v. Allen, #03-3973, 2005 FED App. 0264P, 2005 U.S. App. Lexis 11341 (6th Cir. 2005). [PDF]

Fraternization with Coworkers - Prohibitions on

     National Labor Relations Board, in a 2-to-1 decision, upholds an employer's work rule that directs employees not to "fraternize on duty or off duty, date or become overly friendly with the client's employees or with co-employees." The rule was designed "to provide safeguards so that security will not be compromised by interpersonal relationships either between ... fellow security guards or between ... security guards and clients' employees." Guardsmark, LLC and Service Empl. Int. Union, L-24/7, #20-CA-31573-1, 2005 NLRB Lexis 257, 344 NLRB No. 97 (NLRB 2005).

Free Speech

     NLRB holds that an employer violated the federal law by having a work rule prohibiting employees from having "negative conversations" about their superiors. The Board concluded that employees could reasonably construe this rule to "bar them from discussing with their co-workers complaints about their managers that affect working conditions, thereby causing employees to refrain from engaging in protected activities." KSL Claremont Resort and Hotel Employees Union L-2850, #32-CA-20417, 2005 NLRB Lexis 272, 344 NLRB No. 105 (NLRB 2005). [PDF]

     New York City fires an officer who has a website and blog, NYPD Rant, which is critical of management. The officer likened management to the Nazi Party and posted a photo of Hitler addressing storm troopers. When you clicked on a photo of the Commissioner it changed into Popeye, the cartoon character. In re Edward Polstein. Source: N.Y. Daily News (7/12/2005).

Handicap Laws / Abilities Discrimination - Inmates/Prisoners

     Federal appeals court reinstates a suit brought by a wheelchair-bound plaintiff with muscular dystrophy that sued officers for excessive force for "attempting to place him in the back seat of a police cruiser after he explained that his legs could not bend." St. John v. Hickey, #04-3388, 2005 FED App. 0268P, 2005 U.S. App. Lexis 11736 (6th Cir. 2005). [PDF]

Pay Disputes - In General

     Arbitrator concludes, in a grievance related to longevity pay, that "years of service" means total service, and not uninterrupted, continuous service. City of Chehalis and Teamsters L-252, Wash. PERC Case #18589-A-04-1401, 121 LA (BNA) 38 (Schwendiman, 2005).

Product Liability

     State court jury in Missouri finds that Ford is not liable for the death of a state trooper who suffered fatal burns when his Crown Vic cruiser was struck from behind. Newton v. Ford Motor Co., No. 03CV-215678 (Mo., Jackson Co. Cir. Ct. 2005). In January we reported that a jury in southern Illinois also found no liability in a class action suit. Centerville v. Ford Motor Co., No. 03-L-115 (St. Clair Co., Ill., Cir. Ct. 2004).

Retirement Rights and Benefits

     Armed park ranger was not entitled to a federal law enforcement officer pension; duties such as maintaining order, protecting life and property are not the type of law enforcement duties that qualify an employee for LEO service credits under 5 C.F.R. §831.902. Fagergren v. Dept. of the Interior, #DE-0831-03-0469-I-1, 2005 MSPB Lexis 3240 (MSPB 2005).

Sexual Harassment - In General

     Eighth Circuit rejects a hostile work environment sexual harassment and constructive discharge claim, where the plaintiff, a state employee, failed to show that the harassment was severe and pervasive enough to alter her employment. Tatum v. Arkansas Dept. of Health, #04-3543 2005 U.S. App. Lexis 11745, 95 FEP Cases (BNA) 1697 (8th Cir. 2005). [PDF]

Union's Duty of Fair Representation

     A public employee could not bring a malpractice action against the attorney provided by his union during his disciplinary hearing; "the union is ultimately responsible to the employee for any deficiency in the performance of the legal service," not the attorney hired by the union. Weiner v. Beatty, #39605, 113 P.2d 313, 2005 Nev. Lexis 28 (2005). [PDF]

     • Return to the Contents menu.

     Medical privacy:

    • Revised FAQ HIPAA webpage.

     Psychological screening and polygraph:

    • Measuring the Mind: A Comparison of Personality Testing to Polygraph Testing in the Hiring Process, by Jennifer Nevins, 109 Penn St. L. Rev. 857, Penn State Law Review (2005).

     Vaccinations

    • Vaccine Policy Issues, a report by the Congressional Research Service.

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