Public Safety Labor News

Transcription

1 Public Safety Labo News Index - Decembe 1998 Absenteeism DESCRIPTION CASE CITATION ISSUE Cout efuses to dismiss secondhand smoke lawsuit unde ADA. The ADA Mulle v. Costello, 5 AD Cases 779 (N.D.N.Y. 1996) ADA claims can be filed by public employees without Bledsoe v. Palm Beach County Soil Distict, 7 AD Cases Apil delay (11th Ci. Pozac blood test and advese assignment violate the Kocka v. Bansfield, 969 F.Supp (N.D.Ill. Apil ADA. Supeme Cout declaes HIV+ a disability. Abbott v. Bagdon, 118 S.Ct ( Coections office not coveed by ADA simply Matin v. State of Kansas, 996 F.Supp (D.Kan. because he cannot pefom job duties. Removal of fie alam boxes violates ADA. Civil Association of the Deaf v. Giuliani, 7 AD Cases 13 (S.D.N.Y. Police do not need to povide intepete to deaf dunk Rosen v. Montgomey County, 7 AD Cases 70 (4th Ci. dive. ADA vs. collective bagaining ageement: contact Kalik v. Dubin, 130 F.3d 76 (3d Ci. wins. Supeme Cout to settle ADA vs. abitation issue. Desk job adequate accommodation. Keeve v. Middletown, 8 AD Cases 388 (6th Ci. Novembe Depession legitimate basis to eject police applicant. Mille v. City of Spingfield, 146 F.3d 612 (8th Ci. Novembe Captain loses ADA case and wins handicapped Failla v. City of Passaic, 8 AD Cases 275 (3d Ci. Octobe discimination case on the same facts. No ADA violation to offe highe benefits to nondisability etiees. Castellano v. City of New Yok, 12 NDLR 1 (2nd Ci. Affimative Action City not allowed to use aest ecods in making hiing Cate v. Gallaghe, 74 FEP Cases 1716 (D.Minn. Apil decisions unde affimative action plan. Cout dissolves dissent decee equiing affimative Feeman v. City of Fayetteville, 971 F.Supp. 971 Apil action. (E.D.N.C. Settlement ends affimative action case. Febuay Affimative action plan goals must be based on qualified labo pool, not geneal population. U.S. v. City of Miami, 74 FEP Cases 447 (11th Ci. Febuay Age Discimination Supeme Cout battle likely on age discimination law. Humenansky v. Regents of Univesity of Minnesota, 152 F.3d 1822 (8th Ci. Cout upholds etoactive application of ADEA police Kopec v. City of Elmhust, 8 F.Supp (N.D.Ill. and fie exclusion. Abitation Decisions Decembe Decembe New Jesey abitatos must explain decisions. County of Salem, 24 NJPER P (N.J. PERC Abitato s decision on assignment of coections wok Rhode Island Council 94, AFSCME v. State of Rhode Novembe to pisones not easonably liteate. Island, 158 LRRM 2492 (R.I.

2 Bill Of Rights Donut shop detou esults in majo bill of ights case. City of Los Angeles v. Supeio Cout (Labio), 67 Cal.Rpt.2d 775 (Cal.App. Bady Law Bady law amendments which esulted in police offices and fiefightes losing jobs declaed unconstitutional. Callback Rights Employees cannot be equied to wok out duation of callback. Office not entitled to callback payment fo stating shift 20 minutes ealy. Fie union did not waive callback ights. Citizen Complaints Complaint about excessive foce must be disclosed; complaint about inappopiate pesonal elationship coveed by ight to pivacy. Civil Lawsuits Distict attoney has ight not to posecute office s cases. Police chief not liable fo office s suicide. Fiefighte s ADA and sexual discimination lawsuits allowed to continue. Civil Rights Abitation vesus civil ights claims the battle continues. Civil Sevice Fatenal Ode of Police v. United States of Ameica, 152 F.3d 998 (D.C. Ci. Michigan Depatment of Coections, 109 LA 74 (Bodsky, City of Wilkes-Bae and Police Benevolent Association, LAIG 5386 (Aonin, City of Spingfield, Massachusetts and Fie Chief s Association of Spingfield, LAIG 5414 (Ellis, Depatment of Public Safety v. Feedom of Infomation Commission, 698 A.2d 803 (Conn. Roe v. San Fancisco, 109 F.3d 578 (9th Ci. Hanahan v. City of Nowich, 959 F.Supp. 118 (D.Conn. Wight v. City of Tampa, 998 F.Supp (M.D.Fla. Bown v. Tanswold Ailines, 74 FEP Cases 1675 (4th Ci. Apil Octobe Febuay Octobe Novembe Apil Febuay Constitutionality of Texas Civil Sevice law upheld. Pocto v. Andews, 41 Tex.S.Ct. J. 934 ( Octobe Cleaning Allowance Disabled deputy entitled to cleaning allowance. Klickitat County, 109 LA 4 (Badbun, Febuay Collective Bagaining Requiement to continue tems of expied ageement until new ageement is negotiated does not violate New Yok constitution. Coeu d Alene City Council eliminates police offices ight to collectively bagain. Repayment of taining costs a mandatoy subject of bagaining. Dispatches in Alachua, Floida continue to be included in police bagaining unit. City of Petaluma, Califonia settles contact with police offices. Civilian eview boad not mandatoy fo bagaining in Pennsylvania. Heaing office eveses lay off of entie police depatment. o s pess elease about bagaining violates law. Cout Appeaances Multiple cout appeaances in shot time peiod esult in one payment. City of Utica v. Zumpano, NPER 7501 (N.Y. New Jesey Tansit Authoity v. New Jesey Tansit PBA, Local 304, 714 A.2d 329 (N.J.A.D. Floida State Lodge, Fatenal Ode of Police v. City of Alachua, 24 FPER P (Fla. PERC City of Philadelphia, 29 PPER P (Pa. LRB Uppe Mount Bethel Police Association v. Uppe Mount Bethel Township, 1:7 NPER 9 (Pa. LRB ALJ Wilkes-Bae Police Benevolent Association v. City of Wilkes-Bae, 29 PPER (Pa. LRB ALJ Boough of Ellwood, LAIG 5331 (Mogan, Decembe 2

3 Disability City must accommodate fie captain s disability o disqualify him. Disability Benefits Cout ules that having AR-15 pointed at head is stessful. Discipline City of Independence, Missoui, 98-1 ARB 5135 (Pelofsky, City of Philadelphia v. Civil Sevice Commission, 712 A.2d 350 (Pa.Cmwth. Decembe Decembe Significant developments of Weingaten ule in Illinois. City of Chicago (Depatment of Aviation), (Ill.LLRB, Apil (Unpublished opinion; copies available fom Labo Relations Infomation System) Califonia amends bill of ights to impose statute of Repoted in Labo Beat, published by Caoll, Budick & Apil limitations on disciplinay investigations. McDonough (Febuay Abitato ejects polygaph evidence, eveses State of Ohio, 109 LA 170 (Bowes, Apil dischage fo fighting. Lieutenant suspended fo allowing subodinates to City of Houston, Texas and Houston Police Patolmen s watch COPS: Too Hot Fo TV. Union, LAIG 5413 (Sheman, Office tuns down epimand, ends up with dischage. Ahen v. O Donnell, 109 F.3d 809 (1st Ci. Febuay Dischage fo falsification of application ovetuned City of Pawtucket v. Ricci, 692 A.2d 678 (R.I. Febuay because of depatment s knowledge. Police office fied fo smoking. Town of Plymouth v. Civil Sevice Commission, 686 N.E.2d 188 (Mass, Akansas state law povides heaings fo dischages, Honycutt v. City of Fot Smith, 939 S.W.2d 306 (Ak. but not suspensions. Supeme Cout holds that employee who lies about La Chance v. Eickson, No ( 21, misconduct can be punished. Dischage of fie lieutenant appopiate fo fist City of Fot Woth, 108 LA 924 (Mooe, offense, same-sex sexual haassment. Abitato eveses suspension fo sexual haassment; Repoted in Labo Beat, published by Caoll, Budick & finds employe boe esponsibility fo sexual bante. McDonough (Febuay Contact can waive Weingaten epesentation ights. Ehles v. Jackson County Sheiff s Meit Commission, Octobe 158 LRRM 2602 (Ill. Assetion of Fifth Amendment ights, standing alone, Hamon v. Mifflin County School Distict, 713 A.2d 620, Octobe cannot be basis fo discipline. (Pa. Fiefighte suspended fo acially insulting police office. Kains v. Atlantic City, 13 IER Cases 1303 (N.J. Octobe Discimination Female militay secuity office can be odeed not to wea ponytail. Disciminatoy comments need not be made in office s pesence to be actionable. Racial dispaity in disciplinay statistics, standing alone, may not suppot discimination claim. Disability discimination vedict fo thee New Yok offices evesed on appeal. Pe-selection of acquaintance fo captain position does constitute acial discimination. Tansfe option ules out office s abotion-based eligious discimination claim. Coections office s need to beast feed not potected by Pegnancy Discimination Act. Cout accuses office of acting like ostich. New Yok City Police Depatment denies that acial discimination is cause of disciplinay dispaity. Gende haassment need not be sexual in natue. Pobatione found not to be the victim of sex discimination. Fotne v. State of Kansas, 74 FEP Cases 1611 (D.Kan. 1996, epoted in Schwapp v. Town of Avon, 7 FEP Cases 955 (2nd Ci. Hughes v. Alabama Depatment of Public Safety, 994 F.Supp (M.D. Ala. Colwell v. Suffolk County Police Depatment, 8 AD Cases 1232 (2nd Ci. McPhail v. Town of La Gange, 135 F.3d 770 (4th Ci. Rodiguez v. City of Chicago, 74 FEP Cases 1244 (N.D.Ill. McNill v. New Yok City Depatment of Coections, 950 F.Supp. 564 (S.D.N.Y. Moses v. City of Evanston, 1998 WL (N.D.Ill. Scannell v. Bel Ai Police Depatment, 74 FEP Cases 589 (D.Md. Caoll v. Town of Univesity Pak, 155 F.3d 558 (4th Ci. (unpublished decision) Apil Apil Decembe Decembe 3

4 Dug Testing Fedeal law peempts Massachusetts pivacy concens on dug testing. Due Pocess O Bien v. Massachusetts Bay Tanspotation Authoity, 1998 WL (D.Mass. Office must be allowed to pove unknowing Wood v. State Pesonnel Boad, 12 IER Cases 1720 Febuay ingestion of dugs. (Ala.App. Delay in investigation can implicate due pocess ights. Hunt v. Faiman, 1998 WL (N.D.Ill. No evidence that psychologist s Pentecostal Chistian Rosaio v. City of New Haven, 1998 WL (D.Conn. backgound influenced ejection of police applicant. Dischage of pobatione fo sexual haassment does Oliviei v. Rodiquez, 13 IER Cases 186 (7th Ci. not violate due pocess. No due pocess equied fo laid-off mashals. Pfife v. Town of Edinbugh, 684 N.E.2d 578 (Ind.App. Due pocess includes ight to coss examine gilfiend. Pice v. City of Kissimmee, 697 So.2d 186 (Fla.App. Duty Of Fai Repesentation Union has ight to be wong about contact intepetation without violating duty to membes. Equal Potection Wayne County Sheiff s Union, 11 NPER P29041 (Mich. ERC Decembe Office denied pomotion loses equal potection claim. Aiello v. Batton, 654 N.Y.S.2d 135 (A.D. Evaluations Fie Chief does not have ight to alte pefomance evaluations. Fiefighte s Rule City of Lawton, 109 LA 156 (Allen, J. Fiefighte s ule does not peclude claim by police Paul v. Luigi s, Inc., 557 N.W.2d 895 (Iowa Febuay office who fell into uncoveed window well at Luigi s. New Hampshie esticts fiefighte s ule. N.H. Rev. Stat. Ann. 507:8-h ( The FLSA Canine offices lose claim fo compensation fo Bobo v. United States, 136 F.3d 1465 (Fed.Ci. commuting with thei dogs. The fluctuating wokweek method. Flood v. New Hanove County, 4 WH Cases2d 139 (4th Ci. Physical fitness taining fo SWAT team membes not Dade County v. Alvaez, 4 WH Cases2d 225 (11th Ci. compensable unde the FLSA. EMT not entitled to pay fo on-call time. Andews v. Skiatook, Oklahoma, 4 WH Cases2d 65 (10th Ci. Suspended police offices not exempt unde the FLSA. Aington v. City of Macon, 4 WH Cases2d 122 (M.D.Ga. Voluntee fie depatments not subsidiay agencies of In e Lowe Maion Township Fie Depatment Labo Township. Standads Litigation, 972 F.Supp. 315 (E.D.Pa. FLSA claim fo canine commute time ejected. Aguila v. United States, 4 WH Cases2d 83 (Fed.Cl. Cout ules time deputies spend on call not significantly Ingam v. County of Bucks, 144 F.3d 265 (3d Ci. estictive. Institution of lag payoll system does not violate Roges v. City of Toy, 148 F.3d 52 (2nd Ci. FLSA. Louisiana equied to pay coections offices fo oll Local 889, Ameican Fedeation of State, County and call peiod. Municipal Employees v. State of Louisiana, 145 F.3d 280 (5th Ci. The FMLA Special Repot: The Family and Medical Leave Act. Special Repot, by Caol Geen, Legal Assistant, Aitchison & Vick, Potland, Oegon. Thoson v. Gemini, Inc., 4 WH Cases2d 161 (8th Ci. ; Muay v. Red Kap Industies, 4 WH Cases2d 233 (5th Ci. ; Olsen v. Ohio Edison Co., 4 WH Cases2d 247 (N.D.Ohio Febuay Novembe Octobe 4

5 Feedom Of Religion Religious challenge to ban on fiefighte beads fails. Yasin v. City of Newak Fie Depatment, CSB (N.J. ALJ Cout efuses to dismiss lawsuit against chief who Ventes v. City of Delphi, 74 FEP Cases 1095 (7th Ci. attempted to save dispatche fom damnation. Feedom Of Speech No job potection fo lawsuit unless subject of lawsuit Gigley v. City of Atlanta, 136 F.3d 752 (11th Ci. is a matte of public inteest. No constitutional ight to testify in bail heaing fo Geen v. Philadelphia Housing Authoity, 105 F.3d 882 Febuay oganized cime figue. (3d Ci. White guy speech potected unde Fist Amendment. Califonia Depatment of Coections v. State Pesonnel Boad, epoted in Labo Beat, published by Caoll, Budick & McDonough, (Febuay,. Cout stikes down NYPD estictions on off-duty Latino Offices Association v. Safi, 13 IER Cases 199 speech. (S.D.N.Y. Request fo claification of epot does not violate fee Hankad v. Town of Avon, 13 IER Cases 598 (2nd Ci. speech ights. Ban on seving as expet witness against employe Hoove v. Moales, 146 F.3d 304 (5th Ci. Novembe stuck down. (Withdawn fom publication; amended opinion to be issued.) Posecuto has no fee speech ights about job. Bibbs v. Newman, 997 F.Supp.1174 (S.D.Ind. Pison Chaplain s desie to get hooked on phonics not constitutionally potected. Button v. Kibby-Bown, 146 F.3d 526 (7th Ci. Witing in accident epot not potected speech. Mois v. Cow, 14 IER Cases 186 (11th Ci. Funeal Leave Fiefightes entitled to same funeal leave benefits as police offices even though schedules ae diffeent. Gaity Rights Denve police offices cannot be compelled to testify befoe civilian eview boad. Gay Rights City of Syacuse, LAIG 5372 (Selchick, City and County of Denve v. Powell, 1998 WL (Colo.App. Cout upholds Cincinnati s gay ights odinance. Equality Foundation v. Cincinnati, 75 FEP Cases 115 (6th Ci. Gievance Pocedue Faibanks, Alaska found to show bad faith in Appoaching fiefightes gievance pocedue. Gooming Codes Fedeal cout issues tempoay injunction baing police depatment fom odeing office to cut deadlocks. Haassment Faibanks Fie Fightes Association, Local 1324, IAFF v. City of Faibanks, AK (AK. LRA Robinson v. Distict of Columbia, 15 IER Cases 210 (D.D.C. Ceating a hostile wok envionment. Taylo v. Metzge, Case A-9-97 (New Jesey 02/18/98), Opinion can be found at Heath And Safety Novembe City equied to finish exhaust systems in fie stations. City of Detoit, 110 LA 716 (Daniel, Novembe Hiing Pactices City can bypass police applicant who lied in pio cout poceedings. Insuance Employe not allowed to change to pimay cae insuance plan fo fiefightes. City of Cambidge v. Civil Sevice Commission, 682 N.E.2d 923 (Mass.App. City of Williamspot, Pennsylvania, LAIG 5390 (Talaico, Apil 5

6 Who is a cuent employee? Involuntay Tansfe Town not allowed to tansfe fiefighte unde ciminal indictment. Light Duty Cout opens doo fo fiefighte light-duty assignment. Militay Sevice Employment ights of militay pesonnel afte active, national guad, o eseve sevice. Nepotism Nepotism can be pat of, but not basis fo employe s pomotional decision. Non-Discimination Clauses Battle continues to age ove effect of nondiscimination clauses on civil ights lawsuits. Off-Duty Employment Civil Sevice has no juisdiction to eview denial of offduty employment. Ovetime City liable fo lost ovetime of office it assigned to desk duties to head off potential acial violence. Ovetime Pay Village of Scasdale, New Yok, LAIG 5332 (Selchick, Town of West Wawick, Rhode Island and IAFF Local 1104, LAIG 5368 (Bloodswoth, Stone v. City of Mount Venon, 118 F.3d 92, (2nd Ci. Special Repot, by Roge Catight, Attoney at Law, Seattle, Washington. Ellebacht v. Police Boad of the Metopolitan Police Depatment of the City of St. Louis, 137 F.3d 1563 (8th Ci. Rahel v. Owens-Bockway, 74 FEP Cases 465 (D.O. ; Cate Health Cae Cente, 74 FEP Cases 675 (E.D.Ky. Cobitt v. City of Temple, 941 S.W.2d 354 (Tex.App. City of Wilmington, Delawae and Fatenal Ode of Police Lodge No. 1, (Duff, (Unepoted decision; copies available fom Labo Relations Infomation System) Oklahoma Supeme Cout ules that pesonnel Russell v. Cate County Commissiones, 13 IER Cases handbook could possibly ceate an implied contact. 50 (Okla. Any time woked means exactly what it says. City of Denve and Fatenal Ode of Police, Lodge 27 (Fogle, (Unepoted opinion, copies available fom Labo Relations Infomation System) Pay Pactices Employe not bound to continue hiing new employees at ate above minimum level. Pay Step Inceases Pleasant Hills Boough, LAIG 5335 (Newman, Wage feeze does not stop step inceases. Cuyahoga Metopolitan Housing Authoity, LAIG 5312 (Shanke, Pesonnel Files Cout odes that City of New Yok must disclose files on offices suspected of misconduct o excessive foce. Physical Examinations Fiefightes have ight to select when to take heat and lung examination. Physical Fitness Tests Cout upholds single-standad aeobics test fo police; ejects Coope Institute gende-gaded test. Pemium Pay Offices need not be specifically designated in ode to eceive bilingual pemium. Geen v. City of New Yok, 679 N.Y.S.2d 383 (N.Y.A.D. City of Ottumwa, Iowa, 110 LA 433 (Cohen, Lanning v. Southeasten Pennsylvania Tanspotation Authoity, 1998 WL (E.D.Pa. Cook County Sheiff s Police, 110 LA 945 (Biggs, Decembe Octobe Novembe Decembe 6

7 Pomotional Examinations Fie union has legal ight to boycott pomotional examination. Village of Skokie, 14 PERI 2014 (Ill. SLRB Novembe 7

8 Pomotions Abitato odes etoactive pomotion of fiefighte. No popety ight to pomotions in Los Angeles. Residency Requiements Cout stikes down esidency ule. Right To Choose Counsel Office can be foced to choose civil defense attoney fom list povided by city. Right To Pivacy Undecove police offices have pivacy inteest in pesonnel files. Self Incimination Employe not equied to offe Gaity potection at pe-disciplinay heaing. Senioity Senioity not sole basis fo filling vacancy. Senioity shift bid system suvives eligious discimination attack. Sex Discimination Coections office loses sex discimination lawsuit. Sexual Haassment Supeme Cout decides significant sexual haassment cases. Single incident of sexual epithet does not constitute sexual haassment. Significant decision in sexual haassment lawsuit bought against Dallas Police Depatment by five offices. Sick Leave Afte two appeals to Iowa Supeme Cout, office egains thee days of sick leave. Staffing Union allowed to file staffing gievance unde expied contact. City equied to abitate minimum staffing issue. Supeme Cout Cases Vaiety of labo cases unde consideation by the Supeme Cout. Take-Home Cas Contact gave chief sole discetion to emove takehome cas. Temination City of Taylo, Michigan and Local 1252 Intenational Association of Fie Fightes, LAIG 5311 (Beitne, Nunez v. City of Los Angeles, 13 IER Cases 1854 (9th Ci. Lewis v. City of Kinston, 488 S.E.2d 274 (N.C.App. Mothesell v. City of Syacuse, 952 F.Supp (N.D.N.Y. Kallstom v. City of Columbus, 136 F.3d 1055 (6th Ci. Haison v. Wille, 132 F.3d 679 (11th Ci. State Of Maine and Maine State Employees Association, LAIG 5315 (Neumeie, Balint v. Cason City, Nevada, 76 FEP Cases 1846 (9th Ci. Gease v. State of Missoui, 77 FEP Cases 441 (8th Ci. Faaghe v. Boca Raton, 118 S.Ct (; Bulington Industies, Inc. v. Elleth, 118 S.Ct ( Galvez v. Means, 71 FEP Cases 1725 (S.D.N.Y. 1996) Gates v. City Dallas, 1998 WL (N.D.Tex. Dubuque Policemen s Potective Association v. City of Dubuque, 581 N.W.2d 627 (Iowa City of Oak Pak, 110 LA 689 (McDonald, Toledo Police Patolmen s Association v. City of Toledo, 15 OPER P 1550 (OhioApp. City of San Antonio and San Antonio Police Offices Association, LAIG 5374 (Smith, Febuay Apil Novembe Octobe Decembe Octobe Febuay Police Chief wins lawsuit, loses job. Keste v. City of Stilwell, 933 P.2d 952 (Okla.App. A cout ejects injunction peventing dischage of Bock v. Milwaukee County Pesonnel Review Boad, Novembe deputy sheiff. 220 Wis.2d 355 (Wis.App. 8

9 Timeliness Of Gievance Abitato extensively discussed timeliness of continued gievances. Attoney lettes listing wong IAFF local numbe spawns abitability dispute. Tansfes No ight to heaing when tansfe equest efused. Tuition Reimbusement City of El Paso, 100 LA 729 (Ponde, IAFF, Local 3683 v. South Johnson County Voluntee Fie and Rescue, Inc., 5 F.Supp.2d 1230 (D.Kan. LeStage v. City of El Cajon,_Cal.Rpt._(Cal.App. 28, Decembe Decembe Abitato holds ethics unelated to office s duties. Village of Fanklin Pak, 109 LA 103 (Whitney, Chief not abitay and capicious in denying tuition City of Gandview Heights, 110 LA 428 (Luie, Octobe eimbusement fo law school. Unfai Labo Pactice Failue to atify contact does not constitute unfai labo pactice. Hiing of additional offices found to have been motivated by desie to stack vote on unionization. Wages Abitato cites tunove poblems as basis fo wage incease. Salay fo Chicago fiefightes and police offices only includes base wages. Whistleblowe Potection Juy awads offices $27.7 million in whistleblowe case. Cout upholds $1.3 million judgment in favo of coections office told to quit bitching about safety issue. $2.17 million judgment in favo of deputy mashal upheld. Woking Out Of Classification Each paycheck constitutes sepaate violation fo statute of limitations puposes. Wongful Temination Captain fied fo assisting employees in sexual haassment complaints esults in $185,647 in vedicts. City of Highland Pak and Teamstes Local 714, 14 PERI P 2023 (Ill.SLRB Geneal Counsel Teamstes Local 205 v. Fowad Township, 29 PPER P (Pa.LRB ALJ City of Delano, 108 LA 1104 (Rothstein, Holland v. City of Chicago, 682 N.E.2d 323 (Ill.App. As epoted by the Dallas Moning News. Lubbock County, Texas v. Stube, 13 IER Cases 281 (Tex.App. City of Fot Woth v. Zimlich, 975 S.W.2d 399 (Tex.App. Halibuton v. City of San Antonio, 974 S.W.2d 779 (Tex.App. Octobe Octobe 9