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Collective Bargaining - Duty to Bargain

****Editor's Case Alert****

     Substantial evidence supported the conclusion that a city did not "meet and confer in good faith" with a police union, as required by a California state statute, before attempting to implement a reorganization of the police department's command staff. The meet and confer requirement applied because the plan included demoting some officers and laying off at least one of them. The trial court did not abuse its discretion in awarding the union attorneys' fees because the meet and confer obligation was an important right, its enforcement benefitted the public significantly, and the burden of the litigation costs were disproportionate because of the small size of the union. Indio Police Command Unit Association v. City of Indio, #G050051, 2014 Cal. App. Lexis 906.

Handicap/Abilities Discrimination -- Accommodation in General

     A federal employee's request that her employer grant her a flexible work schedule ("maxiflex" schedule) to accommodate her disability of severe depression was not unreasonable as a matter of law. Accordingly, a federal appeals court reversed summary judgment for the employer on a reasonable accommodation disability discrimination claim under the Rehabilitation Act of 1973, 29 U.S.C. Sec. 701, as well as on her claim that revoking her permission to work late was unlawful retaliation for requesting accommodation for her disability. Solomon v. Vilsack, #12-5123, 763 F.3d 1 (D.C. Cir. 2014).

Military Leave

     A former postal employee claimed that he faced discrimination and was ultimately terminated in violation of his rights under the Uniformed Services Employment and Reemployment Rights Act (USERRA) for taking military leave, which the employer regarded as excessive. He prevailed in two appeals on his discrimination claims to the Merit Systems Protection Board, and was awarded reinstatement with backpay and benefits. He was not entitled to attorneys' fees, however, as USERRA's attorneys' fee provision, 38 U.S.C. Sec. 4324(c)(4), did not authorize the Board to award attorneys' fees incurred during judicial review and there was no independent statutory provision for an award of attorneys' fees by a reviewing court. Erickson v. U.S. Postal Serv., #08-3216, 759 F.3d 1341 (Fed. Cir. 2014).

Pay Disputes

     A retired California state employee could proceed with a class action claim that the state did not comply with a prompt payment of due wages statute. The word "quits" in the statute including employees quitting to retire. The statute did not require her to name the specific agency she had worked for as a defendant, and she properly named the State of California as the defendant because she was a civil service employee. McLean v. State of California, #C074515, 228 Cal. App. 4th 1500, 176 Cal. Rptr. 3d 734, 2014 Cal. App. Lexis 755.

Pensions

     A class of city firefighters challenged the increase in their pension contribution from 6% to 8.5%, arguing that this impaired the terms of their employment contracts in violation of the Contract Clause of the U.S. Constitution and a provision of the Alabama state Constitution. A federal appeals court rejected these claims. The city essentially did nothing different from what a private employer did. It was free to alter the contribution rate without "constitutional consequences." Even if there was a contract provision not to raise the employee contribution rate, that did not amount to a constitutional claim, but merely a breach of contract. Taylor v. City of Gadsden, #13-13885, 2014 U.S. App. Lexis 17740, 25 Fla. L. Weekly Fed. C 432 (11th Cir.).

     A federal appeals court rejected a claim by active and retired city police and firefighters challenging a city's alteration of the way in which annual pension benefit increases were calculated. They argued that substituting a cost-of-living adjustment for a "variable benefit" violated their rights under the Contract Clause of the U.S. Constitution. A federal appeals court rejected this claim, holding that the plaintiffs' contract rights were not "impaired" since they had a potential state law remedy for breach of contract. The appeals court remanded a claim under the Takings Clause of the Constitution, however, as the trial court had failed to address the substance of that claim. Cherry, Jr. v. Mayor and City Council of Baltimore City, #13-1007, 762 F.3d 366 (4th Cir. 2014).

Political Activity and Patronage Employment

     Eleven former city employees sued the mayor and city claiming that the mayor had violated their First Amendment rights by firing them because of their political affiliations. The trial court granted summary judgment to the mayor on the claims of nine of the eleven employees, finding that his argument that political affiliation was a permissible qualification for their jobs was sufficiently arguable to entitle him to qualified immunity. The trial court had declined, however, to certify interlocutory appeals with respect to the claims of the other two plaintiffs. A federal appeals court stayed the proceedings pending an interlocutory appeal of the issue as to whether the mayor was entitled to qualified immunity on the claims of these two employees. The issue of whether a job is one for which political affiliation is an allowable criterion is an issue of law, not a question of fact as the trial court seemed to think. If the mayor was entitled to qualified immunity, he was entitled not to stand trial and that privilege would effectively be lost if the claims were erroneously allowed to go to trial. Claims against the city were also stayed until this issue is decided. Allman v. Smith, #14-1792, 764 F.3d 682 (7th Cir. 2014).

Race Discrimination

     An African-American woman employed by a federal agency claimed that the failure to promote her to an available position constituted racial discrimination. Her principal argument was an attempt to show that the person actually promoted was unqualified for the job. The appeals court upheld summary judgment for the defendants since the decision maker had believed that the employee promoted was qualified and had also been unaware that the plaintiff had applied for the position. Accordingly, regardless of who was or wasn't qualified, or better qualified, for the position, the decision maker could not have intended to racially discriminate against someone she did not even know wanted the promotion. Mulrain v. Castro, #12-5345, 760 F.3d 77, 98 Empl. Prac. Dec. (CCH) P45125, 123 Fair Empl. Prac. Cas. (BNA) 159 (D.C. Cir. 2014).

Retaliatory Personnel Action

     A trial court improperly granted summary judgment on claims by a county employee and her union that she faced unlawful retaliation in violation of her First Amendment rights because of protected speech to which the employer objected. The federal appeals court ruled that the plaintiffs showed a genuine factual dispute as to whether an internal investigation of the employee was retaliatory. Additionally, the trial court should evaluate in a more detailed manner a number of incidents that it had previously dismissed collectively as constituting "petty workplace gripes" as there was evidence that some of the employer's actions may have been taken as part of a general campaign against the employee in retaliation for her speech, and these incidents might have greater materiality towards the retaliation claim than when they were viewed in isolation. A reasonable juror might find that some of these actions could deter protected speech. As to three involuntary transfers, the employee produced evidence that they came shortly after her acts of speech and that her employer's non-retaliatory business justifications for them were pretextual. Thomas v. County of Riverside, #12-55470, 763 F.3d 1167 (9th Cir. 2014).

Sexual Harassment

     Two former and one current female police officers sued a police department and five supervisors for sexual harassment on the job. One of the supervisors was not entitled to qualified immunity on hostile workplace sexual harassment claims of one of the officers as his alleged conduct, if true, violated her clearly established rights. The officer claimed that he made references of a sexual nature to her body parts, particularly her buttocks, on at least ten occasions in front of other officers while serving as her direct supervisor. He also engaged in unwanted touching by attempting to massage her shoulders, asked her if she was going to have sex with her boyfriend, and showed her a suggestive photo in a magazine of a woman dressed in tactical gear focused on her buttocks and passed the magazine around to other officers present while telling them that the buttocks in the photo looked like hers. Other claims in the complaint were insufficient for liability, and the supervisors were entitled to qualified immunity on them as the conduct at issue, even if offensive, was isolated and not substantial, and in some instances, not tied to the officers' gender. A police chief was not vicariously liable for the acts of subordinates, and there was no evidence that he himself acted in a manner that helped to create a hostile work environment. Raspardo v. Carlone, #12-1686, 2014 U.S. App. Lexis 19010 (2nd Cir.).

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     Disability Discrimination: Toward an "Unqualified" Otherwise Qualified Standard: Job Prerequisites and Reasonable Accommodation Under the Americans with Disabilities Act, by John E. Rumel, 18 Employee Rights and Employment Policy Journal No. 1 (2014). Abstract.

     Domestic Violence: It's a Human Right: Using International Human Rights Principles to Assist Employees Experiencing Domestic Violence, by Stephen E. Arnott & Margaret C. Hobday, 18 Employee Rights and Employment Policy Journal No. 1 (2014). Abstract.

     Employment Discrimination: Conference, Conciliation, and Persuasion: The Seventh Circuit's Groundbreaking Approach to Analyzing the EEOC's Pre-Suit Obligations, by Lisa M. DeLeon, 9 Seventh Circuit Rev. 370 (2014).

     Extremism: A New Approach to Countering Violent Extremism: Sharing Expertise and Empowering Local Communities, by the executive staff of the FBI’s National Security Branch, FBI Law Enforcement Bulletin (Oct. 2014).

     Human Trafficking: Human Trafficking Task Force Strategy e-Guide: Strengthening Collaborative Responses (NCJ 248467), Bureau of Justice Assistance, Office for Victims of Crime (October 2014).

     Medical Marijuana: Disciplining Police Officers Re: Medical Marijuana, by Jack Collins, presentation at the IACP Legal Officers Section Annual Conference, Orlando, Florida (Oct. 25-28, 2014).

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