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Age Discrimination - Termination / Mandatory Retirement

     Puerto Rico could lawfully lower the mandatory retirement age for police officers to 55 from 65. Correa-Ruiz v. Fortuno, #06-2578, 2009 U.S. App. Lexis 14767 (1st Cir.).

Arbitration Procedures

     Diabetic ex-police officer may proceed with a disability-related constructive discharge claim, even though an arbitrator found that he had voluntarily left his job. The bargaining agreement did not require that claims based on or arising from federal statutes must be arbitrated. Catrino v. Town of Ocean City, #09-505, 2009 U.S. Dist. Lexis 59783 (D. Md.).

Attorneys Fees, Sanctions and Legal Defense Rights

     Arbitrator awards attorneys’ fees to the union in a FLSA grievance, citing FLRA precedent. Fed. Bur. of Prisons and AFGE L-1006 (III), FMCS Case #07/04342, 126 LA (BNA) 832 (Nicholas, 2009).

Civil Liability

     Arizona appellate court upholds a $5 million medical malpractice verdict, of which 28.5% was assessed to a physician who offered the deceased no treatment, and only gave an assessment of his job-related back injury. The three-judge panel rejected the argument that it was not foreseeable that the person examined would die of a drug overdose four years later. “... even absent a formal doctor-patient relationship, a doctor conducting an Independent Medical Examination (“IME”) owes a duty of reasonable care to his or her patient. ... Foreseeability is not a factor when deciding whether a duty exists.”  Ritchie v. Krasner, #1 CA-CV 08-0099, 2009 Ariz. App. Lexis 78.

Criminal Liability

     First Amendment challenge to a state identity theft law fails. A city EMT forged an e-mail address when sending salacious information about his supervisor, who killed himself the next day. The Wisconsin Supreme Court distinguished a person’s right to publicize something from misrepresenting the identity of the message-sender. State v. Baron, #2007AP1289-CR, 2009 WI 58, 2009 Wisc. Lexis 268 (affirming 754 N.W.2d 175).

Defamation

     Federal court rules that calling someone a homosexual is not defamation per se. Stern v. Cosby, #1:07-cv-08536, PACER Doc. 138 (S.D.N.Y.).

Disciplinary Appeals & Challenges - Reviewing Standards

     Federal appeals court sustains the termination of a Secret Service agent who passed four counterfeit $20 bills. “Employment actions based on denial of security clearance are not subject to judicial review.” Oryszak v. Sullivan, #08-5403, 2009 U.S. App. Lexis 18175 (D.C. Cir.).

Disciplinary Offenses - In General

     Neither a municipality nor its police dept. is an administrative agency. A “police dept’s rules and regulations are not administrative rules or regulations that are an expression of legislative policy and they do not have the force of law,” citing Carver v. Nall, 186 Ill. 2d 554, 561 (1999).  People v. Williams, #1-05-0810, 2009 Ill. App. Lexis 593 (1st Dist.).

     Management lacked just cause to issue a counseling letter to a police officer for striking a truck bed where the grievant had tried other means to get the driver to change directions. The officer had received no training on the procedures he was to follow if a vehicle attempted to run a roadblock. Hamburg Twp. and Mich. Assn. of Police, FMCS Case #08/59193, 126 LA (BNA) 887 (Block, 2009).

Disciplinary Punishment - In General

     Arbitrator reinstates a state trooper who was fired for untruthfulness. The grievant “was under extreme stress from his workload, from his family, [and] from a racial profiling charge.” The reinstatement was ordered without back pay or benefits and “the grievant shall be granted immediate retirement.” State of Ohio and Ohio State Troopers Assn., Grievance No. 15-03-080122-0004-04-01, 125 LA (BNA) 428 (Feldman, 2008).

Disciplinary Surveillance

     Although a worker’s privacy interests in a shared office is far from absolute, the plaintiffs had a reasonable expectation that their employer would not install video equipment capable of monitoring and recording their activities without their knowledge or consent.” However, activation of the surveillance system “was narrowly tailored in place, time and scope, and was prompted by legitimate business concerns.” The plaintiffs were not at risk of being monitored or recorded during regular work hours and were never actually caught on camera or videotape. Hernandez v. Hillsides Inc., #S147552, 2009 Cal. Lexis 7804, 09 C.D.O.S. 9763.

Discovery, Publicity and Media Rights

     Police internal affairs files in Illinois are public records, even if investigators conclude that the accused officer(s) did not engage in misconduct. Gekas v. Williamson, #4-08-0733. 2009 Ill. App. Lexis 687 (4th Dist.).

Emotional Distress

     California appellate court rejects a damages claim for emotional distress arising from allegedly retaliatory treatment of the plaintiff, a county firefighter. In California, injuries sustained and arising out of the course of employment are generally subject to workers’ compensation procedures, an exclusive remedy. “The exclusive remedy applies even when the damages result from intentional conduct by the employer that is a normal part of employment relationships, and even though such conduct may be described as egregious, harassment, manifestly unfair, or intended to cause emotional distress.”  Mueller v. County of L.A., #B201171, 2009 Cal. App. Lexis 1335 (2d Dist.), relying on Shoemaker v. Myers, 52 Cal.3d (1990) and Cole v. Fair Oaks Fire Prot. Dist., 43 Cal.3d 148 (1987).

FLSA - Overtime - in General

    Arbitrator awards double back pay to federal correctional officers and health workers in Texas who were unpaid for the time spent getting freshly recharged radio batteries. Correctional officers and staff are on-duty from the moment they set foot on institution grounds. In addition to nearly $1 million in pay and liquidated damages, the union is entitled to an award of attorney’s fees. Fed. Bur. of Prisons and AFGE L-1006 (II), FMCS Case #07/04342, 126 LA (BNA) 705 (Nicholas, 2009).

• See the January 2009 article in AELE’s Monthly Law Journal, Overtime Pay for Preduty Preparations.

    A class action has been filed by employees of a phone service claiming that they should have been paid for off the clock responses to e-mail and text messages at all hours of the day.” Agui v. T-Mobile, USA, #1:09-cv-02955, Complaint (E.D.N.Y. 2009).

Hairstyle and Appearance Regulations & Discrimination

     Warden who demoted a Rastafarian acting lieutenant because he wore dreadlocks was entitled to qualified immunity. The right to wear one’s hair to conform to one’s religious beliefs was not clearly established. Booth v. State of Maryland, #08-1748, 2009 U.S. App. Lexis 15965 (4th Cir.).

Handicap Laws / Abilities Discrimination - Accommodation - General

     Former city employee, who sued for a lack of accommodation for a knee injury, was not required to exhaust administrative remedies.  Section 504 of the Rehabilitation Act of 1973 does not require the exhaustion of remedies. Hopkins v. City of Wilmington, #08-302, 2009 U.S. Dist. Lexis 54242 (D. Del.).

Interagency Conflicts

     A New York Police District was immune from town permit requirements when it replaced its radio antenna with a higher version. Port Washington Police Dist. v. Town of N. Hempstead, #013319/09, 2009 N.Y. Misc. Lexis 2128,  2009 NY Slip Op 51758, Sup. Ct. Nassau Co. (2009).

Last Chance Agreements

     Appellate panel in California finds a “Last Chance Agreement” signed by a college professor was null and void under Education Code §7485, because “any contract or agreement, express or implied, made by any employee to waive the benefits” of the statutory disciplinary code is unenforceable. Additionally, an employee “need not exhaust administrative remedies provided by statute if the agency has already rejected the claim, announced its position on the claim or made clear it would not consider the plaintiff’s evidence.” Farahani v. San Diego Community College Dist., #D054087, 2009 Cal. App. Lexis 1225, 2009 WL 2232205 (4th Dist.). The reasoning behind the decision also could apply to waivers of other statutory rights, such as the California Public Safety Officers Procedural Bill of Rights, Government Code §3300.

Light Duty Assignments

While noting that there could be times that a police officer under medical restrictions might be required to exercise police powers in an emergency situation, an arbitrator ruled that assignment of light-duty officers to guard perimeter posts at the city’s communications center was not consistent with their medical status. Chicago Police and FOP L-7, ARB No. 07-72, 126 LA (BNA) 759 (Bierig, 2009).

Moonlighting (Secondary Employment)

     Federal court concludes that off-duty state troopers lack a constitutional right to practice law. State Troopers Non-Commissioned Officers Assn. v.  State of New Jersey, #3:08-cv-5326, 2009 U.S. Dist. Lexis 58492, 29 IER Cases (BNA) 703 (D.N.J.).

• See the these articles in AELE’s Monthly Law Journal:

1. Regulation of an Employee's Off-Duty Activities Part One - Secondary Employment (Moonlighting) (Dec. 2007).
2. Regulation of an Employee's Off-Duty Activities Part Two - Secondary Employment (Moonlighting) (Jan. 2008).

Privacy Rights

     A game & fish employee who secretly recorded a supervisor did not violate federal or state eavesdropping laws, and the contents are admissible evidence. Perraglio v. N.M. Game & Fish, #6:08-cv-00351, PACER Doc. #58, 2009 U.S. Dist. Lexis 81007, 28 IER Cases (BNA) 1555 (Unpub. D.N.M.).

     Keystroke signals are not “electronic communication” under the federal Wiretap Act, and gaining access to stored electronic information does not constitute a violation of §2511. Brahmana v. Lembo, #C-09-00106, 2009 U.S. Dist. Lexis 42800 (N.D. Cal.).

     California public employers can be civilly liable for breaching a confidentiality clause contained in a severance agreement. While the severance agreement itself cannot be protected from public scrutiny, the employer was not privileged to disclose the underlying reasons prompting the employee’s severance. Sanchez v. County of San Bernardino, #E045200, 2009 Cal. App. Lexis 1302 (4th Dist.).

Religious Discrimination

     Federal court refuses to dismiss a suit brought by a terminated female Pentecostal bus driver who challenged a rule requiring all drivers to wear pants. The rule had a disparate impact on her religion, which requires women to wear skirts. She alleged that she was terminated for refusal to comply with policy and that there was no business justification for it. The judge also rejected the claim that disparate impact claims have no place in religious discrimination actions. Jenkins v. New York City Transit Auth., #08 Civ. 6814, 2009 U.S. Dist. Lexis 56008 (S.D.N.Y.).

Retaliatory Personnel Action

     Seventh Circuit affirms the dismissal of a suit, challenging the disciplinary transfer of a deputy who wrote a humiliating public comment about the sheriff. While the deputy spoke as a citizen, the content of the message was not a matter of public concern. Milwaukee Deputy Sheriff’s Assn. v. Clarke, #08-3298, 2009 U.S. App. Lexis 16082 (7th Cir.).

     $10 million awarded to three former Philadelphia police officers for retaliation after they opposed discrimination against African American officers. A back pay award of $208,781 was added for one of the officers. McKenna v. City of Philadelphia, #98-CV-05835, 2009 U.S. Dist. Lexis 57955 (E.D. Pa.).

     Federal appeals court reinstates a wrongful discharge suit brought by a city employee who reported a ghost payroll. Valentino v. Vil. of So. Chicago Heights, #06-3882, #2006 U.S. App. Lexis 16817 (7th Cir.).

Suspensions & Administrative Leave

     A Boston police officer who was suspended for writing an e-mail comparing Harvard scholar Henry Gates to a “banana-eating jungle monkey” has filed a lawsuit claiming that the city violated his civil and due process rights. He seeks injunctive relief, compensation for emotional injuries and punitive damages. Justin Barrett v. City of Boston Police Dept., #1:2009cv11298 (D. Mass.).

Wrongful Discharge - In General

     Police officers who worked for a Nebraska city of under 10,000 population that was annexed by Omaha did not become City of Omaha employees and had no rights to continued employment. The operative bargaining agreement of the terminated officers was the one with their former employer, not Omaha. Barnes v. City of Omaha, #07-3942, 2009 U.S. App. Lexis 16922 (8th Cir

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Pandemic influenza 2009:

1. OPM Guidance for federal agencies, including teleworking, leave, sending staff home, worksite evacuations, etc.

2. DoJ/BJA online booklet: Communication and Public Health Emergencies: A Guide for Law Enforcement

Stress-related - book: Traumatic Stress in Police Officers: A Career-length Assessment from Recruitment to Retirement, By D. Paton, J. Violanti, K. Burke & A. Gehrke, Charles C Thomas Pub., ISBN-13: 9780398078935 (Oct. 2009).

Surveillance:

The multi-agency Inspector Generals’ Unclassified Report on the President’s Surveillance Program.

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

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CROSS REFERENCES
E-Mail/Internet/Legal Issues – see: Criminal Liability
Free Speech – see: Retaliatory Personnel Action
Interagency Conflicts – see: Wrongful Discharge
Disciplinary Appeals – see: Last Chance Agreements
National Security Issues – see: Disciplinary Appeals
Privacy Rights – see: Disciplinary Surveillance
Telephone Monitoring/Audio Taping – see: Privacy Rights
Transfers: Disciplinary or Punitive – see: Retaliatory Personnel Action
Uniforms, Clothing and Equipment – see: Religious Discrimination
Untruthfulness – see: Disciplinary Punishment
Whistleblower Protection – see: Retaliatory Personnel Action
Workers’ Compensation (Exclusive Remedy) – see: Emotional Distress


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AELE Seminars:

Lethal and Less Lethal Force
Oct. 26-28, 2009 - Las Vegas
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Public Safety Discipline and Internal Investigations
Dec. 14-16, 2009 – Las Vegas

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