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Age Discrimination - Termination/Mandatory Retirement

     When a sheriff stated that he wanted to "get rid of all of you old people who have been here a long time that don't want to do your job," this did not constitute proof that the termination of a deputy sergeant was age discrimination under 29 U.S.C.S. § 623. The sheriff's statement appeared to be aimed at persons who were not performing well at fulfilling their job functions. Hollins v. Fulton County, #10-10954, 2011 U.S. App. Lexis 137 (Unpub. 11th Cir.).

Attorney-Client Confidentiality & Ethics

     Federal court upholds a magistrate's decision to compel attorney-client communications because the plaintiff had discussed the communications in e-mails and instant chats with her family and friends, in blog postings, and with the media. Lenz v. Universal Music, #5:07-cv-03783, 2010 WL 4789099, 2010 U.S. Dist. Lexis 125874, PACER Doc. 351 (N.D. Cal. Nov. 17, 2010).

Body Armor

     IACP adopts a resolution supporting the mandatory wearing of body armor for all police patrol activities. Resolution EC.01.a11 (Apr. 8, 2011).

Criminal Liability

     FBI agent indicted for false statements. The agent allegedly officially misrepresented facts concerning a confidential informant with whom he had intimate relations with. U.S. v. Busby (S.D.N.Y. 2011). Press Release.

Disability Rights and Benefits:
Line of duty related/ disputeds

     A police officer injured when he entered his unmarked police vehicle was not entitled to an on-duty disability pension, but was entitled to a not-on-duty disability pension benefit. The vehicle ran over his foot when it suddenly moved forward. This did not involve an act of police duty inherently involving special risk not ordinarily assumed by a citizen in the ordinary walks of life. "Rather, the Applicant faced the same risk ordinarily assumed by any citizen who chooses to become a passenger in a vehicle." Filskov v. The Board of Trustees of the Northlake Police Pension Fund, #1-09-3151, 2011 Ill. App. Lexis 315 (Ill. App. 1st Dist).

First Amendment Related

     A police officer who alleged that he was fired because he made comments on the Internet concerning firearms and criticizing the borough council could pursue a First Amendment retaliation lawsuit. He contended that his discussions and research on the weapons issues were carried out on his own time, and that the issues involved concerned the safety of police officers, and whether officers had sufficient weaponry. If true, then he spoke as a citizen on a matter of public concern, which would constitute protected First Amendment activity for which he could not be fired. Beyer v. Duncannon Borough, #10-3042, 2011 U.S. App. Lexis 7793 (Unpub. 3rd Cir.).

Handicap Laws / Abilities Discrimination - Accommodation - General

     A California employer could reasonably distinguish between disability-caused misconduct and the disability itself when the misconduct included threats or violence against coworkers. Firing an employee for misconduct is not unlawful discrimination. Wills v. Super. Court, #G043054, 2011 Cal. App. Lexis 2011 Cal. App. Lexis 583.

Health Insurance and Benefits

     A county "wellness" program which imposed a $20 per paycheck financial health insurance penalty on employees who declined to participate, refusing to undergo a health assessment, did not violate the Americans with Disabilities Act (ADA), as the program carried out principles of insurance and risk management. The assessment includes a health questionnaire and biometric screening, including a blood test to measure glucose and cholesterol levels.

     While the ADA requires that such programs be voluntary, the court in this case found that imposing a financial penalty on those who don't participate doesn't violate the statute, but is protected by the Act's "safe harbor" provision allowing the establishing, sponsoring, observing, or administering "of the terms of a bona fide benefit plan that are based on underwriting risks, classifying risks, or administering such risks that are based on or not inconsistent with State law." Seff v. Broward County, #10-61437-CIV 2011 U.S. Dist. Lexis 44807 (S.D. Fla.).

Light Duty Assignments

     A California appeals court upheld a $1,571,500 award for a former LAPD officer who was medically terminated in violation of the state's Fair Employment Act. Further, the plaintiff was not judicially estopped from pursuing a damage claim because of a 100% total and permanent disability rating he received in a workers' compensation proceeding. The test is whether the plaintiff could perform the essential functions of his current assignment or an available position, and not on the essential functions of a police officer position, the job title the plaintiff held. Cuiellette v. City of Los Angeles, #B224303, 194 Cal. App. 4th 757, 2011 Cal. App. Lexis 477.

Race Discrimination - In General

     The cut-off scores used by the City of Chicago on tests for firefighter applicants had a disparate impact on African-American candidates. The city would only hire applicants who scored 89 or higher on the written exam, considering them "highly qualified." Candidates who scored 65 to 88 were deemed qualified, but were unlikely to be hired. In the lawsuit, 132 class members overcame the city's business necessity defense and were awarded damages on the basis of a loss-of-a-chance theory.

     The U.S. Supreme Court, in the city's appeal, ruled that in disparate-impact litigation the deadline for asserting claims starts again whenever the employer uses a test to make hiring decisions. Lewis v. City of Chicago, #08-974, 130 S. Ct. 2191 (2010). Accordingly, on remand from the Supreme Court, the appeals court found that the charge was timely as to each group of hires other than the first. The court ordered that the trial court's orders be modified to eliminate "any relief based on the hires of May 1996." Lewis v. City of Chicago, #07-2052, 2011 U.S. App. Lexis 9755, (7th)

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Female Employees

• Women in the Federal Government: Ambitions and Achievements, Merit Systems Protection Board (May 24, 2011).

Fitness testing

• The Case for Job-Specific Fitness Testing, New Jersey Police Chief Magazine (June 2011).

Light Duty

• Exploring Administrators’ Perceptions of Light-Duty Assignment, 14 (2) Police Quarterly (Sage) 124-141 (Jun. 2010). Abstract

Suicide

• On the Edge: Recent Perspectives on Police Suicide, by John Violanti, et al., ISBN 13-9780398086329, C. C. Thomas (2011).

Websites

• The American Bar Association (ABA) has announced a new website to help military families, including information about the Servicemembers' Civil Relief Act. As part of its military family support services, the ABA has created the ABA Home Front, to provide legal resources for military families.

Reference:

• Abbreviations of laws, law reports and agencies used in our publications.
• AELE’s list of employment law resources

Report non-working links here

CROSS REFERENCES
E-Mail/Internet - see: Attorney-Client Confidentiality
E-Mail/Internet - see First Amendment Related
Free Speech - see First Amendment Related
Handicap Discrimination - see: Light Duty Assignments

AELE Seminars:

Legal, Psychological and Biomechanical Aspects of
Officer-Involved Lethal and Less Lethal Force
Oct. 10-12, 2011 – Las Vegas

Public Safety Discipline and Internal Investigations
Dec. 12-14, 2011 - Las Vegas

Jail Liability – Administrative Issues
(Diet, mail, religion, classification, etc.)
Jan. 9-11, 2012 – Las Vegas

Jail Liability – Incident Liability
(In-custody deaths, use of force, extractions, etc.)
Mar. 5-7, 2012 – Las Vegas

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