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Employment & Labor Law for Public Safety Agencies


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Back Pay Claims and Awards

     A man employed by the Navy for 29 years was required to maintain a top secret security clearance for his job as the Security Manager for the Naval Facilities Engineering Service Center. After a duty officer found an outer vault door of the Secret Internet Protocol Router Network room left open, an investigation was conducted, and it was recommended that all security personnel at the center have their access to classified material suspended because of various problems. The plaintiff's security clearance was suspended pending a final determination. He was eventually returned to duty status, assigned to a sensitive position, and found eligible for a Top Secret security clearance. The Navy did not give him back pay for the nine months of his suspension, or treat him as having been employed for purposes of the calculation of retirement benefits. He claimed that his suspension had been motivated by retaliatory animus for his past participation in an EEOC proceeding. A federal appeals court ruled that the employee was not entitled to back pay and that neither the Merit Systems Protection Board nor the court could review the merits of a security clearance revocation or suspension. Biggers v. Dep't of the Navy, #13-3059, 2014 U.S. App. Lexis 5304 (Fed. Cir.).
     An assistant sheriff was entitled to an award of back pay for the period of time between his summary firing for alleged disloyalty and his subsequent no contest pleas to two state felony charges (for misappropriation of public resources and perjury before a grand jury), which made it impossible for him to continue to be employed as a law enforcement officer. Firing him without any kind of hearing violated his rights under California's Public Safety Officers Procedural Bill of Rights Act (POBRA), Government Code, § 3300 et seq., and purported waivers of POBRA rights that he purportedly signed on two occasions did not alter the result. Jaramillo v. County of Orange, #G043142, 2011 Cal. App. Lexis 1397 (Cal. App.).
     Full back pay for a reinstated employee may be a proper remedy even if a worker does not look for other employment after being terminated. It is the obligation of the employer to show there were comparable opportunities available. Candari v. L.A. Unif. School Dist., #B218306, 2001 Cal. App. Lexis 262.
     City was not liable for back pay differential after promotions were delayed because of pending litigation and an injunction. State ex rel. Worsham v. Cincinnati, #C-090328, 2010-Ohio-2765, 2010 Ohio App. Lexis 2293 (1st Dist.).
     Ohio appellate court orders a city to pay a terminated corrections officer, who was reinstated by an arbitrator, his back wages and established benefits (longevity pay, uniform allowance, and holiday pay). Sick pay and special assignment premium pay are not includable in his back pay award, because of the uncertainty in fixing the amounts. Outside earnings should be deducted from any back pay award, but only if earned during the duty hours that he would have worked if he had not been terminated. State ex rel. Crumbley v. Cleveland, #90900, 2009 Ohio 6100, 2009 Ohio App. Lexis 5110 (8th Dist.).
    Back pay award of $183,653 to a transsexual whose job offer was wrongfully rescinded was properly calculated under the periodic mitigation method. "There are two ways to calculate lost back pay and benefits: the periodic mitigation method and the aggregate mitigation method." The periodic method compares anticipated wages and benefits with actual earnings during a calendar year. The aggregate method compares anticipated earnings with actual earnings over the entire recovery period, and gives employers an incentive to delay reinstatement for as long as possible. Schroer v. Billington, #1:05-cv-01090, 2009 U.S. Dist. Lexis 43903 (D.D.C.).
    Federal appeals panel upholds a post-trial motion to augment a backpay award to offset the negative tax consequences a litigant would incur from receiving a lump-sum backpay award. The ruling follows a similar 10th Circuit decision but is contra to a holding in the D.C. Circuit. Eshelman v. Agere Systems, #05-4895, 2009 U.S. App. Lexis 1947 (3d Cir.).
     Although it was correct to reinstate a public safety officer that was fired after he enrolled in an alcohol rehab program, he was not entitled to back pay. "... the losses in his salary were attributable to his disability, not as a result of the discrimination." N.Y. Off. of Mental Health v. Div. of Human Rights, #503600, 2008 N.Y. App. Div. Lexis 6160 (3rd Dept.).
     Arbitrator rules that a security contractor must pay six months back wages to an officer that was suspended without pay, following her arrest for DUI; she was not convicted. A contractor is liable for back pay, even if the wages cannot be collected from the client. Reinstatement without back pay is justified only when management has grounds, independent of an arrest, to suspend an employee. Wackenhut Corp. and Int. Union, Security, Police & Fire Professionals L-403, 124 LA (BNA) 1345, FMCS Case #060831/9295-3 (Kravit, 2008).
     Arbitrator orders management to pay six percent interest on a back pay award. County of Tehama and IUOE L-39, 123 LA (BNA) 993 (Reeves, 2007).
     Arbitrator awards back pay, but not front pay, to terminated private security officers that viewed a pornographic video feed while assigned to a federal building. Wackenhut Corp. and United Govt. Security Ofcrs. L-36, 122 LA (BNA) 1623, FMCS Case #06/50898 (Landau, 2006). {N/R}
     Ohio appellate court holds that a town was entitled to deduct, from a back pay award, income that a sergeant derived from his construction business during the period between his termination and reinstatement. Bd. of Trustees, Miami Twp. v. FOP, #CA2005-05-041, 2006 Ohio 150, 2006 Ohio App. Lexis 118 (2006). {N/R}
     Texas appellate court orders a city to pay accumulated sick, vacation, and holiday leave to a reinstated firefighter after his termination was annulled. Waco v. Bittle, #10-03-00098-CV, 2005 Tex. App. Lexis 2107 (2005). {N/R}
     A reinstated public employee's lawsuit, alleging that a reinstatement award had been improperly classified as back pay, rather than workers' comp. benefits, was an improper challenge to the workers' comp. decision. Pueschel v. U.S., #01-5116, 297 F.3d 1371, 2002 U.S. App. Lexis 15343 (Fed Cir. 2002). {N/R}
     Massachusetts Appeals Court concludes that a police officer who was suspended for threatening and stalking his girlfriend, and later indicted on drug charges while on suspension, is entitled to back pay for the suspension period because the stalking charges were dropped. Brittle v. City of Boston, #99-P-893, 54 Mass.App. 820, 768 N.E.2d 576, 2002 Mass. App. Lexis 738 (2002). {N/R}
     Federal appeals court rules that the federal Back Pay Act reverts to the date of the adverse action, and an award of back pay for periods pre-dating the adverse action was erroneous. Mattern v. Dept. of Treasury, #01-3253, 2002 U.S. App. Lexis 10257 (Fed. Cir. 2002). [N/R]
     Supreme Court reverses a back pay award won by an illegal immigrant. Federal immigration policy foreclosed backpay to an undocumented alien. Hoffman Plastic Compounds v. NLRB, #00-1595, 122 S.Ct. 1275 (2002). [N/R]
     Case preparation time is not an excuse to avoid taking another job while pursuing a back pay claim, and the award will be cut by an amount that could have been earned during that period. Conn. Dept. of Corr. v. Cmsn. on Hum. Rts., #CV990497891S, 2000 Conn. Super. Lexis 2887 (Hartford Dist.). [2001 FP 19-20]
     Whether an employee eligible for backpay would have been terminated in due course had the employer not terminated him unlawfully, therefore evidence regarding the employer's drug testing policy might be relevant. NLRB v. Pepsi Cola Bottling, #00-1970, 258 F.3d 305, 2001 U.S. App. Lexis 16713, 167 LRRM (BNA) 2786 (4th Cir.). {N/R}
     Deputy sheriff who was awarded $5,000 in compensatory damages for having been unlawfully denied reemployment was not entitled to have award increased to reflect lost overtime income. Morris v. Lee, 2000 U.S. Dist. Lexis 12813, 83 FEP Cases (BNA) 1790 (E.D. La. 2000). {N/R}
     Sheriff's Dept. must pay interest on wrongfully withheld back pay award, after reinstating deputies who were wrongfully terminated. San Diego Co. Dep. Sheriffs' Assn. v. San Diego Co., 68 Cal.App.4th 1084, 80 Cal.Rptr.2d 712, 1999 Cal.App Lexis 1073. {N/R}
     Municipal government was liable for back pay on reinstatement, without deduction for amounts earned from other employment (under N.Y. Civ. Serv. Law 77), plus accrued interest on the back pay. Della Vecchia v. Town of No. Hempstead, 616 N.Y.S.2d 55 (A.D. 1994). {N/R}
     Dept. did not have to pay compensation for lost overtime or special detail pay to a terminated detective who was reinstated by court order. Kraft v. Police Cmsnr. of Boston, 417 Mass. 235 at 242, 629 N.E.2d 995 at 999 (1994). {N/R}
     City could deduct from the back pay award those amounts the officer earned during between his termination and reinstatement. Walck v. City of Albuquerque, 875 P.2d 407 (N.M.App. 1994). {N/R}
     Reinstated NYCPD officers are not entitled to more than their ordinary back pay, without additional leave time and other benefits they would have earned if not wrongfully suspended or terminated. Trotman v. Brown, 593 N.Y.S.2d 788 (A.D. 1993). [1993 FP 164]
     Ohio appeals court rules an employer has the burden of proving a reinstated employee could have been working during the period of separation. State ex rel. Butterbaugh v. Ross County, 79 Ohio App.3d 826, 608 N.E.2d 778 (1992). [1993 FP 147]
     Reinstated employee, wrongfully laid-off under a seniority mistake during an employment downsizing, had a duty to mitigate her back pay claim by seeking and accepting interim employment. Gross v. Board of Educ. (Elmsford), 78 N.Y.2d 13, 574 N.E.2d 438 (1991). [1992 FP 19]
     Officer's termination determined to be an excessive penalty by the Illinois Supreme Court. Estate of the now deceased officer entitled to the award of back pay he would have received if he lived. Jones v. Board of Fire & Police Cmsnrs., 562 N.E.2d 1175 (Ill.App. 1990). [1992 FP 35-6]
     How much back pay is a public employee entitled to if he was fired without a pretermination hearing, and the dismissal is affirmed at a later date? Appellate court establishes test for determining back pay in a divided opinion. Brewer v. Chauvin, 938 F.2d 860, 1991 U.S. App. Lexis 14388, 6 IER Cases (BNA) 1520 (8th Cir. en banc 1991).
     City not required to pay overtime for extra duty assignments that a reinstated officer would have earned had he not suffered a suspension. Interest must be demanded by the employee at the time back pay is awarded, or the claim is waived. Kaminsky v. Bd. of Fire & Pol. Cmsn. of Wheeling, 559 N.E.2d 87 (Ill.App. 1990).
     Reinstated sergeant was not entitled to back pay for the entire period between his termination and reinstatement. He had a legal duty to seek and accept alternative employment during the separation period; failing to do so, the city is excused for compensation that would have been earned during periods of inactivity. City of Laredo v. Rodgriguez, 791 S.W.2d 567 (Tex.App. 1990).
     Officer entitled to interim back pay from period of his unlawful termination until a proper hearing is held. Punitive damages and compensation for emotional distress was not recoverable. Brewer v. Parkman, 918 F.2d 1336 (8th Cir. 1990).
     Federal Court holds that a subsequently terminated employee would not be entitled to back pay for lack of a pre-suspension hearing. Byrd v. City of Atlanta, 709 F.Supp. 1148 (N.D. Ga. 1989).
     Where termination for the same reason(s) is upheld in a second disciplinary hearing, no back pay is due, but where a second hearing is required because of an improper finding of misconduct at the first hearing, interim back pay is proper. Demartino v. Meehan, 540 N.Y.S.2d 500 (A.D. 1989).
     City must pay interim wages to firefighter who was improperly fired, and who was later properly fired. Brumfield v. Dept. of Fire, 531 So.2d 1094 (La. App. 1988).
     Victim of sex discrimination did not have to take dissimilar or unchallenging positions. She could remain unemployed while seeking more desirable employment. City could not decline to pay back wages during this period because plaintiff failed to mitigate her losses. Hunter v. Allis-Chambers Corp., 797 F.2d 1417 [at 1428] (7th Cir. 1986).
     City must pay wages of police officer who was reinstated when his conviction was overturned; city failed to initiate parallel disciplinary charges and relied on criminal prosecution. City of New Haven v. AFSCME L-530, 208 Conn. 411, 544 A.2d 186 (1988).
     Federal appeals court rules that interim earnings must be deducted from the total back pay award, reducing the recovery. Murphy v. City of Flagler Beach, 846 F.2d 1306 (11th Cir. 1988).
     Reinstated employee not entitled to payment for overtime he would have worked if disciplinary action was not taken. Sweptson v. State Personnel Bd., 240 Cal.Rptr. 470 (App. 1987).
     Reserves not entitled to wages for training periods when they waived right to payment. Ambrosia v. City of Scranton, 517 A.2d 1017 (Pa. Cmwlth. 1986).
     Police typist, rejected as police officer, entitled to wages from time of discrimination to judgment, plus consideration for "front pay" of lifetime earnings loss (estimated at $346,800). Thorne v. City of El Segundo, 802 F.2d 1131 (9th Cir. 1986).
     Reinstated employee entitled to lost pension benefits. Kunze v. Korolchuck, 349 N.W.2d 337 (Minn. App. 1984).
     Mandamus proper court remedy when fire chief refused to reinstate firefighter. Ricca v. City of Baton Rouge, 450 So.2d 1032 (La. App. 1984).
     Reinstated employee's back pay claim to be reduced by unemployment benefits, not just outside earnings. Lee v. Florida Dept. of Highway Safety, 438 So.2d 405 (Fla. App. 1983).
     Federal court holds that back pay awards should receive interest at IRS approved rates. Association Against Discrimination in Employment v. City of Bridgeport, 572 F.Supp. 494 (D. Conn. 1983).
     Back pay entitlements include only regular salary, not allowances and fringe benefits; interest also collectible. James v. N.J. State Prison, 176 N.J. Super. 207, 422 A.2d 786 (A.D. 1980); Board of Selectmen v. Municipal Court of Boston, 418 N.E.2d 640 (Mass. App. 1981).
     Vacation and overtime to be included in back pay awards. James v. New Jersey State Prison, 176 N.J. Super. 207 (App. Div. 1980), Dept. of Civ. Serv. Opin. of Feb. 20, 1981.
     Missouri rules that reinstated employee entitled to back pay, less outside earnings, plus attorney's fees. Edmonds v. McNeal, 596 S.W.2d 403 (Mo. 1980), at pg. 408.
     Improperly fired employee not entitled to reinstatement if his job is since eliminated; back pay limited. Pilawa v. City of Utica, 429 N.Y.S.2d 959 (A.D. 1980).
     Reinstated employee had a duty to mitigate earnings losses by accepting other employment; due diligence does not require fired employee to seek position with all surrounding agencies. Marshall v. City of Columbus, 402 N.E.2d 509 (Ohio 1980).
     Retiring officer entitled to lump sum overtime and sick leave benefits, could not be denied money due to change in pay policies. Taylor v. McGuire, 420 N.Y.S.2d 248 (Misc. 1979).
     Illegally suspended employee entitled to back pay, although his discharge is later upheld; employee waited over three years to assert claim. Chriswell v. Rosewell, 388 N.E.2d 174 (Ill.App. 1979).
     Firefighter, discharged without pretermination hearing, entitled to interim back pay award. Chang v. City of Palos Verdes Estates, 159 Cal.Rptr. 630 (App. 1979).
     Chief entitled to full back pay award without reduction for outside earnings. Buckalew v. City of Grangeville, 600 P.2d 136 (Ida. 1979).
     Colorado court requires reinstated employee to deduct outside earnings from back pay award. Smith v. City & Co. of Denver, 569 P.2d 329 (Colo. App. 1977).
     Mitigation discussed. Town of Highland v. Powell, 341 N.E.2d 804 (Ind.App. 1976).
     New Jersey Supreme Court rules back pay awards must be diminished by outside earnings of wrongfully dismissed employee. White v. Twp. of North Bergen, 391 A.2d 911 (N.J. 1978).
     Reinstated officer not entitled to vacation time during suspension. Alongi v. City of New York, 402 N.Y.S.2d 99 (A.D. 1977).
     Missouri and Mississippi courts ban “right” of supervisors to join local fire fighter unions. Local 2263, I.A.F.F. v. City of Tupelo, #EC 77-185-K (N.D. Miss. 1977).
     Captains and lieutenants part of unit. Local 647, IAFF v. City of Grand Island, 244 N.W.2d 515 (Neb. 1976).
     Arbitrator excludes superior officers from “bargaining” unit. City of Marietta, Oh. and IAFF L-442, (Ipavec, 1977).
     Public employment relations boards in six states certify "middle management" employees as part of department-wide bargaining units. Decis. #290-A Wash. P.E.C.B. (1977); 1977-78 PEB ¶ 40,297; Naval Training Center, San Diego and L. E. Isom, Case #72-6949 (1978); G.E.R.R. (BNA) 767:3; City of Winter Park v. Fla. Pub. Rel. Cmsn., #76-2132 1977-78 PBC ¶ 36,103 (1977); Matter of City of Binghamton, N.Y. P.E.R.B. #E0336; 1977-78 PBC ¶ 40.124 (1977); Matter of City of Amsterdam and Amsterdam P.B.A., N.Y.P.E.R.B. #C01369; 1977-78 PBC ¶ 40,127 (1977); Wisconsin Council, AFSCME and Shawano Co. Sheriff's Dept., W.E.R.C. #XVIII - 20813; 1977-78 PBC ¶ 40,149 (1977); Teamsters L-695 and Vil. of Hales Corners Police Dept., Wis. E.R.C. #VII - 20974; 1977-78 PBC ¶ 40,151 (1977); Town of Dedham and Dedham Deputy Fire Chiefs Assn., L-1735 I.A.F.F., M.L.R.C. #MCR-2330; 1977-78 PBC ¶ 40,122.
     Reinstated fireman's back pay award subject to deduction for money earned while on suspension. Picconi v. Lowery, 326 N.E.2d 300 (N.Y. 1975).
     Long-haired firefighter reinstated with back pay; court rules city must also make up supplemental state funds lost. Hebbler v. New Orleans Fire Dept., 310 So.2d 113 (La. 1975).
     Wrongfully discharged employee has duty to seek reemployment and to mitigate damages; college studies are not unemployment. Currieri v. City of Roseville, 123 Cal.Rptr. 314 (App. 1975).
     Duty of mitigation discussed: Solomon v. Civil Serv. Cmsn. of Highland Park, 236 N.W.2d 94 (Mich. App. 1975).

     See Also: Disciplinary Hearings; Sex Discrimination; Wrongful Discharge.

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