Employment & Labor Law for Public Safety Agencies

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Supreme Court of the United States
Recent Labor/Employment Cases - List

----- 2016-----

     In 18 U.S.C. Sec. 922(g)(9), Congress extended the federal prohibition on firearms possession by convicted felons to persons convicted of misdemeanant crimes of domestic violence under federal, state, or tribal law, committed against a domestic relation that necessarily involves the use of "physical force." In a previous decision, the U.S. Supreme Court held that a knowing or intentional assault qualifies under Sec. 922(g)(9), but failed to address reckless assaults. Two individuals pled guilty under a Maine law making it a misdemeanor to “intentionally, knowingly or recklessly cause[ ] bodily injury” to another. The U.S. Supreme Court held that a reckless domestic assault qualifies as a misdemeanor crime of domestic violence, barring them from owning or possessing firearms. Reckless conduct, which requires the conscious disregard of a known risk, the Court stated, is not an accident: It involves a deliberate decision to endanger another. Voisine v. United States, #14-10154, 2016 U.S. Lexis 4061, 84 U.S.L.W. 4525.
     A police detective was a friend of the former police chief, who was running against the incumbent mayor. He was not, however, involved in his campaign, and could not even vote for him based on his city of residence. He did, however, at the request of his mother, who was bedridden, pick up one of the candidate's campaign signs to replace one that had been stolen from her lawn. An officer assigned to the mayor's security staff saw this, and the next day, the detective was demoted to a walking post as a result of his "overt involvement in a political election." He sued, claiming that this was unlawful retaliation for protected First Amendment activity. A federal appeals court rejected his free speech claim, as he did not intend to convey a political message when he picked up the sign. He did not show retaliation for an exercise of the right to freedom of association as he had no affiliation with the campaign. Prior precedent barred a claim of unlawful retaliation based solely on a "perceived," as opposed to actual, exercise of First Amendment rights. Heffernan v. City of Paterson, #14-1610, 777 F. 3d 147 (3rd Cir. 2015). The U.S. Supreme Court reversed. It held that the officer was entitled to seek relief for his demotion based on the city's mistaken belief that he was engaged in political speech, since the city allegedly acted upon a constitutionally harmful policy regardless of whether or not the officer did in fact engage in political activity. The harm— discouraging employees from engaging in protected speech or association in violation of the First Amendment—is the same, regardless of factual mistake. Heffernan v. City of Paterson, #14-1280, 2016 U.S. Lexis 2924. In a further development in the case, in remanding for trial, the federal appeals court said that, if, when the detective was disciplined, the city had in effect (whether written or unwritten) a neutral policy prohibiting officers assigned to the Office of the Chief of Police from overt involvement in political campaigns, such a policy meets constitutional standards. The trial court must then determine whether he was aware or reasonably should have been aware of such a policy and whether he was disciplined for what reasonably appeared to be a violation. Heffernan v. City of Paterson, #14-1610, 2016 U.S. App. Lexis 15695 (3rd Cir.).

----- 2015-----

     The U.S. Supreme Court, by a 5-4 vote, has ruled that there is a constitutional right to same-sex marriage and that each state must also recognize such marriages legally entered into in other states. Departments and agencies will now universally have to recognize same-sex marriages, whether entered into in their state or in another state as the same as opposite sex marriages for purposes of benefit, retirement/pension, family leave, and similar purposes. Obergefell v. Hodges, #14-656, 2015 U.S. Lexis 4250.
     The U.S. Supreme Court, in an 8-1 ruling, held that an employer may have discriminated against a Muslim woman applicant for employment on the basis of religious discrimination when it failed to hire her because she wore a hijab headscarf to her interview. The subject of her religious beliefs never came up in the interview process, and the employer contended that its reason for the rejection was that the headscarf would violate its dress code. The Court held that in establishing a claim for unlawful disparate treatment under Title VII of the Civil Rights Act of 1964, it was not necessary to show that the employer had actual knowledge of the applicant's need for an accommodation, but only that the applicant's need for an accommodation for a religious practice was a motivating factor in the employer's decision. Further a discrimination claim based on failure to accommodate a religious practice did not have to be raised as a disparate impact claim rather than a disparate treatment claim, as religious practice was a protected characteristic that could not be accorded disparate treatment. Title VII gives favored treatment to religious practices rather than demanding that a religious practice be treated no worse than other practices. EEOC v. Abercrombie & Fitch Stores, Inc., #14-86, 2015 U.S. Lexis 3718.
      In a case involving a private employer, the U.S. Supreme Court, by a 6-3 vote, further clarified the analysis of what is required for an employer to raise a claim of disparate treatment for pregnancy discrimination under Title VII. A pregnant employee must show that the employer's accommodation policy imposes a "significant burden" on pregnant employees and that the employer's basis for enforcing that policy does not have a "sufficiently strong justification." In this case, a UPS driver became pregnant and her doctor directed that she not lift more than 20 pounds, while the employer required its drivers to lift up to 70 pounds. The employer refused to let her work under her doctor's lifting restriction, and the employee argued that this imposed a disparate burden on pregnant employees as other policies better accommodated employees who were injured on the job, disabled employees covered by the Americans with Disabilities Act, or who had lost Department of Transportations certifications. The Supreme Court vacated summary judgment for the employer, finding that the employee created a genuine dispute as to whether the employer provided more favorable treatment to some employees whose situation could not reasonably be distinguished from hers. Young v. United Parcel Service, Inc., #12-1226, 2015 U.S. Lexis 2121, 25 Fla. L. Weekly Fed. S 155, 126 Fair Empl. Prac. Cas. (BNA) 765.
     The U.S. Supreme Court held that a federal appeals court did not err in finding that the federal Transportation Security Administration (TSA) violated an air marshal's whistleblower rights by firing him for disclosing to a reporter that the TSA had decided to cut costs by removing air marshals from some flights even though there was supposedly credible information that al Qaeda was planning attacks on passenger flights in the U.S. The reason given for his firing was disclosing sensitive security information without authorization. When Congress used the phrase "specifically prohibited by law" in crafting an exception to the federal Whistleblower statute, it chose not to use the phrase "specifically prohibited by law, rule, or regulation," and therefore did not remove protection for unauthorized disclosures that violated rules or regulations but not laws. TSA administrative regulations did not qualify as "law" for purposes of the exception, and the statute authorizing the TSA to issue regulations did not specifically prohibit the disclosures at issue. Department of Homeland Security v. MacLean, #13-894, 2015 U.S. Lexis 755.

----- 2014-----

    Police officers claimed that they were fired because they exposed the criminal activities of one of their municipality's alderman, rather than for deficient performance, as the city claimed. The trial court entered summary judgment for the defendant city based on the officers' failure to explicitly invoke 42 U.S.C. Sec. 1983 as the basis for their civil rights due process claim. Overturning a federal appeals court's affirmance of this result, the U.S. Supreme Court noted that federal rules concerning pleading in lawsuits only require “a short and plain statement of the claim showing that the pleader is entitled to relief," and the lawsuit could not be rejected merely for an "imperfect statement" of the legal theory relied on. Additionally, qualified immunity was not applicable here, as no claims were made against any individual municipal officer, only against the city The complaint in the lawsuit adequately informed the city of the factual basis for the claim. Johnson v. City of Shelby, #13-1318, 135 S. Ct. 346, 190 L. Ed. 2d 309, 2014 U.S. Lexis 7437.
     An ex-employee of a community college who directed a program for underprivileged youth there learned that a state representative also employed by the program had not been reporting for work, so he fired her, and later testified under subpoena in two federal prosecutions against the representative for mail fraud and theft in a program receiving federal funds. The community college president later terminated the director, citing budget shortfalls. The director claimed, however, that it was because of his testimony. A federal appeals court ruled that the testimony was not protected by the First Amendment because he was a public employee and did not speak as a citizen while testifying. The appeals court also found that the community college president was entitled to qualified immunity. The U.S. Supreme Court reversed, unanimously finding that the testimony given was protected by the First Amendment, while agreeing that the community college president was entitled to qualified immunity in his individual capacity, as the law on the subject had not been clearly established, so he reasonably could have believed that a government employer could fire an employee because of testimony given outside the scope of his ordinary job responsibilities. He was entitled to Eleventh Amendment immunity in his official capacity. Further proceedings were ordered to determine if the community college president's successor could be ordered to reinstate the plaintiff. The sworn testimony was outside the scope of the plaintiff's ordinary job duties and constituted speech as a citizen on corruption in a public program, a matter of public concern. There was no indication, further, that the testimony was false and erroneous. Lane v. Franks, #13-483 189 L. Ed. 2d 312, 2014 U.S. Lexis 4302.
         The U.S. Supreme Court has ruled that a man's prior conviction for "intentionally or knowingly causing bodily injury to" his child's mother qualified as a misdemeanor crime of domestic violence for purposes of 18 U.S.C. Sec. 922(g)(9), which forbids anyone convicted of such crimes from possessing firearms. The requirement of physical force can be satisfied by the "offensive touching" degree of force that supports a common-law battery conviction. The effect of the ruling will be to expand the types of convictions that will be classified as misdemeanor crimes of domestic violence barring those convicted of firearms possession. United States v. Castleman, #12-1371, 188 L. Ed. 2d 426, 2014 U.S. Lexis 2220, 82 U.S.L.W. 4207.

----- 2013-----

     The U.S. Supreme Court, in a 5-4 decision, held that Sec. 3 of the federal Defense of Marriage Act (DOMA), that had the effect of barring the extension of federal benefits to same-sex couples who are legally married under state law by defining marriage and spouse as excluding same sex partners, was unconstitutional as a violation of equal protection under the Fifth Amendment. While this did not rule on whether there is a federal constitutional right to same sex marriage, it does mean that in instances where a state recognizes same sex marriages, those marriages must be treated the same as any other marriages for purposes of federal law. U.S. v. Windsor, #12-307, 2013 U.S. Lexis 4921. In another case decided the same day regarding a federal trial court decision that struck down a California state initiative Proposition 8, that put a halt to same sex marriage in California, the Court held by 5-4, that private parties had no standing to defend the constitutionality of Proposition 8 when state officials declined to do so. This had the effect of restoring same sex marriage in California. As a result of this and laws about to become effective in a number of states, same sex marriages will now be legally recognized in 13 states and the District of Columbia. Hollingsworth v. Perry, #12-144, 2013 U.S. Lexis 4919.
     An African-American employee working for a university claimed that she was subjected to racial harassment by another employee who she contended was her supervisor. She sought to hold the employer vicariously liable for the other employee's actions. The U.S. Supreme Court held that an employee is classified as a supervisor for purposes of vicarious liability under Title VII only in circumstances where he or she is given authority by the employer to take "tangible employment actions" against the alleged victim. In this case, no such empowerment existed, so the other employee was not a supervisor. A tangible employment action is one that effects a significant change in "employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits." Vance v. Ball State University, #11-556, 2013 U.S. Lexis 4703.
     A former university employee of Middle Eastern descent claimed that he had been constructively discharged by racially and religiously motivated harassment and also that in retaliation for complaining about the harassment, efforts were made to interfere with a hospital's job offer to him, resulting in the offer's withdrawal. After a jury returned a verdict for the employee on both claims, a federal appeals court overturned the harassment/discrimination claim, but upheld the verdict on the retaliation claim. The U.S. Supreme Court vacated the ruling on the retaliation claim, finding that the legal standard to prevail had to be to show "but for causation," to prove that the harm would not have occurred in the absence of the alleged wrongful actions (unlawful retaliation) of the employer, not a lessened causation test used in an EEOC manual, requiring only a showing that retaliation was a motivating factor in the action taken causing the harm. Because the wrong legal standard was used, further proceedings were required. University of Texas Southwestern Medical Center v. Nassar, #12-484, 2013 U.S. Lexis 4704.

    ----- 2012-----

      A freedom of information law in Virginia granted access to all public records to citizens of the state, but denied access to those who were not state citizens. The U.S. Supreme Court unanimously ruled that this did not violate the dormant Commerce Clause of the Constitution nor the Privileges and Immunities Clause, since that only protects those privileges and immunities regarded as fundamental. McBurney v. Young, #12-17 133 S. Ct. 1709
    In a federal employee's mixed case against the U.S. Department of Labor asserting claims for age and sex discrimination and discriminatory removal, a federal appeals court improperly upheld the trial court's dismissal for lack of jurisdiction, when the trial court said that the employee should have filed her claim initially with The Federal Circuit U.S. Court of Appeals. A federal employee, who claims that the employing agency's action that can be appealed to the Merit System Protection Board (MSPB) violates a federal antidiscrimination statute, can seek judicial review in a federal district court regardless of whether the MSPB decided her case on the merits or on procedural grounds. Kloeckner v. Solis, #11-184, 2012 U.S. Lexis 9420.
      The U.S. government fired a number of employees of executive branch agencies under a statute barring such employment of persons who knowingly and willfully failed to register for the Selective Service as required by law. The employees sued, claiming that the law under which they were fired was an unconstitutional bill of attainder and also amounted to sex discrimination, since only males were required to register for Selective Service. The U.S. Supreme Court ruled that the Civil Service Reform Act of 1978, 5 U.S.C. Sec. 1101 et seq. barred the federal district courts from deciding the case. The employees needed to bring their claim before the Merit System Protection Board (MSPB), despite that board's professed lack of authority to decide constitutional questions, and could then seek review in the U.S. Court of Appeals for the Federal Circuit. Elgin v. Dept. of Treasury, #11-45,183 L. Ed. 2d 1, 2012 U.S. Lexis 4461.
     The U.S. Supreme Court has upheld the individual health insurance purchase mandate of the health care reform legislation popularly known as Obamacare. While rejecting the notion that such a mandate could be imposed under the Commerce clause, it ruled that it could be upheld under the power of Congress to impose a tax. The consequence of failing to purchase health insurance under the law is the imposition of a tax penalty collected by the IRS. A portion of the law expanding the Medicaid program, however, was unconstitutional in threatening states with the termination of their present Medicaid funding if they do not implement the planned expansion. National Federation of Independent Businesses v. Sebelius, #11-363, 2012 U.S. Lexis 4876.
    A firefighter sued a city and a private attorney hired by the city to conduct an internal investigation of his conduct for violation of his civil rights under 42 U.S.C. Sec. 1983. The firefighter was suspected of malingering while supposedly off work on account of illness. The firefighter argued that the attorney's order to him to produce building materials stored at his home violated his Fourth and Fourteenth Amendment rights. He had been seen buying the building supplies and the issue was whether he had been installing the building materials rather than being ill. The U.S. Supreme Court held that the private attorney was entitled to qualified immunity along with other individual defendants despite not being a city employee. A private individual temporarily retained by a city to carry out its work is able to seek qualified immunity from civil rights liability. In this case, the city needed the attorney's experience and expertise in employment law. Filarsky v. Delia, #10–1018,   132 S. Ct. 1657; 2012 U.S. Lexis 3105.   
     A state court employee sued his employer for alleged violations of the Family and Medical Leave Act of 1993 (FMLA), 29 U.S.C.S. § 2601 et seq., claiming that it had refused to provide him with self-care leave (personal sick leave). A plurality of the U.S. Supreme Court ruled that the provisions of the statute concerning leave for self-care were distinguishable from those concerning family-care leave. On claims for family-care leave, the Eleventh Amendment sovereign immunity from suit enjoyed by the states has been validly abrogated based on evidence at the time of the law's enactment that state family-leave policies concerning leave for the care of a spouse, son, daughter, or parent with a serious medical condition discriminated against women. No such evidence was presented about similar discrimination on self-care leave policies. Congress did not abrogate the states' Eleventh Amendment immunity on claims under the FMLA concerning denials of self-care leave. Coleman v. Court of Appeals of Maryland, #10–1016, 2012 U.S. Lexis 2315.
     A pilot who contracted HIV and applied for FAA medical certificates multiple times without disclosing his HIV status or his medications pled guilty to making false statements to a government agency. The plea came after the Social Security Administration (SSA) revealed his HIV status to the Department of Transportation (DOT). He sued the DOT, FAA, and SSA, for violating his privacy rights by unlawful disclosure of confidential medical information causing him mental and emotional damages.   The Privacy Act of 1974, 5 U.S.C. § 552a, while permitting recovery against government agencies for actual damages, does not unequivocally include damages for mental or emotional damages as within the definition of "actual damages." Therefore, the statute did not waive the sovereign immunity of the federal government for claims for mental or emotional damages arising out of violations of privacy rights. Federal Aviation Administration v. Cooper, #10-1024, 2012 U.S. Lexis 2539

    ----- 1998 -----
     Court issues multiple opinions on when an employer is liable for a supervisor's harassment. Employers can prevent some liability by taking prompt, corrective action. Burlington Indus. v. Ellerth, 118 S.Ct. 2257, 1998 U.S. Lexis 4217; Faragher v. City of Boca Raton, 118 S.Ct. 2275, 1998 U.S. Lexis 4216; Gebser v. Lago Vista Sch. Dist., 1998 U.S. Lexis 4173, 118 S.Ct. 1989. [1998 FP 123-4]

     ----- 1997 -----
     Justices reject St. Louis police sergeants' overtime suit and reaffirms the "salary test" for exempt employees. Justices avoid a constitutional attack on the FLSA. Auer v. Robbins, 1997 U.S. Lexis 1272, 117 S.Ct. 905. [1997 FP 39]
     Court holds that former workers are "employees" within the meaning of Title VII, for the purpose of enforcing its anti-retaliation provisions. Robinson v. Shell Oil Co., 519 U.S. 337, 117 S.Ct. 843, 1997 U.S. Lexis 690, 72 FEP Cases (BNA) 1856. [1997 FP 74]

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