THE RIGHTS of FIREFIGHTERS (Fourth Edition)

The Rights of Fireﬁghters 4th Edition

by Will Aitchison

LRIS PUBLICATIONS PORTLAND, OREGON THE RIGHTS OF FIREFIGHTERS (Fourth Edition). Copyright 2010 by Will Aitchison. All rights reserved. Printed in the United States of America. No part of this book may be used or reproduced in any manner whatsoever without written permission except in the case of brief quotations embodied in critical articles and reviews. For information, please write Labor Relations Information System, 3021 N.E. Broadway, Portland, OR 97232-1810.

Aitchison, William Bruce, 1951 – The Rights of Firefighters (Fourth Edition)

ISBN 978-1880607-25-1

1. Law and Procedures 2. Constitutional Rights

Cover design by Marc R. Fuller ACKNOWLEDGMENTS

Recognizing the help of all those who assisted in the preparation of the fourth edition of this book is almost impossible. The following persons contributed greatly to the book coming into being, and are due great credit.

Debbie Frields, without whom LRIS could not function, processed and proofread the book, and kept me on time writing it. Marc Fuller, LRIS’s computer genius, not only maintains our web page and our collective sense of humor, but also is responsible for myriad tasks associated with the electronic version of this book and took what I thought to be an unseemly delight in collecting and sending me the series of 2,000- page files containing cases to review for this book. Mallory Maddox once again ably assisted in the unenviable task of checking the thousands of citations in the book. My best friend and wife, Val, both proofread the book and made many suggestions for its improvement.

Special thanks are in order to Dan McNamara, a good friend and long-time speaker at LRIS who works without rest for the Detroit Firefighters Association; to Will Newton, who bargains ably under a tough state law in Florida; to Frank Lima in Los Angeles, for sticking up for principles when it wasn’t easy to do so; and to Jim Harrington in Washington for his tenacity. I’m also grateful to many individuals throughout the country, among them union presidents, personnel directors, and attorneys for both management and labor, who have regularly provided otherwise- unreported decisions from around the country involving fire protection personnel matters, allowing us to keep abreast of recent developments.

Last but certainly not least, special gratitude is owed to my clients, who have contributed some of the cases cited in this book, and who have provided a law practice which is as interesting as it is challenging.

ABOUT THE AUTHOR

Will Aitchison is a Portland, Oregon attorney who has, over the course of his career, represented over 100 law enforcement and firefighter labor organizations in five western states. Aitchison graduated from the University of Oregon (Honors College) in 1973, and received his Doctor of Jurisprudence Degree from Georgetown University Law Center in Washington, D.C. in 1976. After two years of clerking for Chief Judge Herbert Schwab of the Oregon Court of Appeals, Aitchison entered private practice and has been representing labor organizations since that time. In addition to his private practice, Aitchison has served as both an arbitrator and a pro tem district court judge, and has contributed numerous articles to various periodicals. Aitchison is the author of The FMLA: Understanding the Family & Medical Leave Act, Interest Arbitration (Second Edition), The FLSA – A User’s Manual (Fifth Edition), The Rights of Law Enforcement Officers (Sixth Edition), A Model Law Enforcement Contract: A Labor Perspective (Third Edition), and A Model Firefighter’s Contact: A Labor Perspective, all published by Labor Relations Information System. Aitchison has lectured on numerous occasions throughout the country on FLSA issues and topics concerning labor relations and personnel issues, and has served as an expert witness and consultant in a variety of employment matters. Aitchison resides in Portland, Oregon with his wife Valerie. He is the father of four sons, Michael, age 24, Matthew, age 23, and Alex and Luke, eight-year old twins.

TABLE OF CONTENTS

TABLE OF CONTENTS — i CHAPTER 1 INTRODUCTION 1 CHAPTER 2 COLLECTIVE BARGAINING 5 The General Structure Of Laws Governing Collective Bargaining For Firefighters. 6 The Exclusion Of Firefighters From Collective Bargaining Laws. 9 Eligibility For Inclusion In A Bargaining Unit Of Firefighters. 10 Supervisory Employees. 11 Managerial Employees. 11 Confidential Employees. 12 Examples Of The Scope Of A Bargaining Unit. 12 The Subjects Which Are Mandatorily Negotiable. 14 The Duty Of Fair Representation Owed By A Labor Organization To Its Members. 47 The Right Not To Be A Member Of A Labor Organization. 49 The Right To Strike. 50 Discrimination Based On Union Activity. 51 Notes 53

CHAPTER 3 DISCIPLINARY STANDARDS AND FIREFIGHTERS 61 Introduction. 62 Employees Not Covered By Collective Bargaining Agreements Or Civil Service Laws. 62 Employees Covered By Civil Service Laws. 62 The Appeal Of Discipline Where Fireﬁghters Are Granted Job Protection Through A Collective Bargaining Agreement. 63 Particular Types Of Discipline And Discharge Cases. 66 Conduct Unbecoming. 66 Off-Duty Conduct. 68 Insubordination Incidents. 68 Summary Of Disciplinary Cases Involving Fireﬁghters. 69 NOTES 95

ii — TABLE OF CONTENTS CHAPTER 4 PROCEDURAL RIGHTS IN THE DISCIPLINARY PROCESS 99 Introduction. 100 A Firefighter’s Right To Be Free From Compulsory Self- Incrimination – The Garrity Rule. 100 The Basic Requirements Of The Garrity Rule. 102 The Scope Of The Garrity Rule – When Does It Apply? 102 Illustrations Of Garrity Principles. 104 Reverse Garrity Warnings. 105 The Scope Of Immunity Under Garrity. 106 The Right To Representation During A Disciplinary Interview – Weingarten Rights. 108 The Role Of The Representative In Disciplinary Interviews. 111 Remedies For Weingarten Violations. 112 A Firefighter’s Procedural Due Process Rights. 113 How A Property Interest In A Firefighter’s Job Is Created. 113 How Property Rights Are Affected By Disciplinary And Non- Disciplinary Decisions. 114 How A Firefighter’s Liberty Interests Can Be Affected By Employment Decisions. 117 The Procedures Which Must Be Followed Once A Liberty Or Property Right Is Implicated. 118 “Pre-Deprivation” Or “Pre-Disciplinary” Procedures Where Property Rights Exist. 119 Enhanced Or Reduced Procedural Due Process Rights. 122 Post-Deprivation Procedures Where Property Rights Exist. 123 Procedures Necessary Where Liberty Rights Exist. 124 The Damages In Procedural Due Process Cases. 124 Substantive Due Process And Disciplinary Procedures. 125 The Exclusionary Rule In Disciplinary Cases. 125 A Firefighter’s Miranda Rights. 126 NOTES 127

CHAPTER 5 FIREFIGHTER BILLS OF RIGHTS 141 Introduction. 142

TABLE OF CONTENTS — iii Statutory Bills Of Rights. 142 NOTES 145

CHAPTER 6 A FIREFIGHTER’S RIGHT TO PRIVACY 147 The Right Not To Disclose Personal Matters. 148 Disclosure Of Financial Matters. 149 Disclosure Of Medical Information. 150 Disclosure Of Job-Related Information. 151 Drug Testing And Firefighters. 151 The Right To Be Let Alone And Restrictions On Activities While A Firefighter Is On Sick Leave. 157 The Right To Be Let Alone And A Firefighter’s Privacy In Offices, Lockers, Desks, And The Use Of The Employer’s Communication Systems. 158 The Right To Be Let Alone And A Firefighter’s Personal Appearance. 159 The Right To Engage In Off-Duty Employment. 161 The Right To Be Let Alone And Smoking. 161 The Constitutionality Of Residency Rules. 162 NOTES 164

CHAPTER 7 A FIREFIGHTER’S FREEDOM OF SPEECH RIGHTS 171 Public Employees And Free Speech. 172 Garcetti v. Ceballos And The On-Duty/Off-Duty Distinction – The Threshold Question For Whether Speech Is Protected. 172 The Employee Speaking As A Citizen – Core Principles. 173 The Employee Speaking As A Citizen – Speech Which Is Likely To Be Protected. 174 Criticism Of The Fire Department. 174 Discussion Of The Department’s Budget Or Stafﬁng Levels. 175 Speech About Departmental Morale. 176 Speech About Political Issues. 176 Speech About Union Issues. 177 Speech About Alleged Discrimination. 178 Speech About Safety And Disability Matters. 178 Whistleblowing Speech. 178

iv — TABLE OF CONTENTS The Off-Duty Employee Speaking As A Citizen – Speech Which Is Not Likely To Be Protected. 180 Speech Which Is Knowingly Or Recklessly False. 180 Statements Made As An Extension Of A Personal Grievance Or Dispute. 180 Racially Derogatory Speech. 181 Speech Endorsing Services Related To The Job. 181 Profanity And Name Calling. 181 Speech That Is Disruptive Of Morale Or Operations. 181 The Employee Speaking As A Citizen – When Is Discipline Motivated By The Employee’s Speech? 183 The Employee Speaking As A Citizen – What Level Of Discipline Implicates The First Amendment? 184 A Public Employer’s Rules And Regulations Concerning Speech. 184 Prior Restraints On Speech And Regulations Requiring Approval Before Contact With The Media. 185 Content-Based Regulation Of Speech Is Likely To Be Unconstitutional. 186 The Right To Refrain From Speech. 187 Freedom Of Speech And The Internal Investigation Process. 187 Freedom Of Association. 187 Freedom Of Association And Membership In Organizations. 188 Freedom Of Association And Personal Relationships. 189 Notes 190

CHAPTER 8 THE RIGHT TO BRING CIVIL LAWSUITS 197 Introduction. 198 Negligence Lawsuits – The Firefighter’s Rule. 198 Exceptions To The Firefighter’s Rule. 200 Firefighters As Plaintiffs In Libel And Slander Lawsuits. 203 The “Malice” Standard In Defamation Cases. 203 The “Opinion” Rule In Defamation Cases. 204 The “Absolute Privilege” Bar To Defamation Actions Brought By Firefighters. 204 Damages In Defamation Cases. 205

TABLE OF CONTENTS — v Products Liability Lawsuits. 205 Lawsuits Against One’s Employer. 206 Lawsuits For Intentional Conduct. 206 Assault And Battery. 207 Malicious Prosecution And Abuse Of Process. 207 Intentional Inﬂiction Of Emotional Distress – The Tort of “Outrage.” 208 Notes 210

CHAPTER 9 FIREFIGHTERS’ RIGHTS UNDER THE FAIR LABOR STANDARDS ACT 215 Introduction 216 “Hours Worked” Deﬁned. 217 The 7(k) Exemption. 222 7(k) WORK PERIODS 224 The 7(k) Exemption And Emergency Medical Service Employees. 225 Dispatchers And Arson Investigators. 226 “Regular Rate” Deﬁned. 226 The FLSA And Collective Bargaining Agreements. 228 Compensatory Time Off Under The FLSA. 228 Timely Payment Of FLSA Overtime. 230 Remedies For Violation Of The FLSA. 231 Protection Against Retaliation Under The FLSA. 232 The Status Of Volunteers Under The FLSA. 232 Notes 234

CHAPTER 10 WORKERS’ COMPENSATION LAWS AND A SAFE WORKING ENVIRONMENT 239 Workers’ Compensation Laws. 240 Heart Disease Claims 241 Psychological And Stress Claims. 243 Hearing Loss Claims. 244

vi — TABLE OF CONTENTS Pulmonary And Respiratory Disease Claims. 244 Hepatitis Claims. 245 Cancer Claims. 245 Injuries Suffered While Traveling Or Commuting. 246 Off-Duty Injuries And Injuries Occurring During Down Time While At The Fire Station. 247 Total Disability And The Availability Of Light Work. 248 Social Security Beneﬁts. 248 Federal Death Beneﬁts. 249 State Occupational Safety Laws Applicable To Fire Protection Employees. 250 NOTES 252

CHAPTER 11 THE EMPLOYMENT RIGHTS OF DISABLED FIREFIGHTERS 259 Introduction. 260 The Americans With Disabilities Act. 260 Substantial Limitation Of A Major Life Activity. 261 Types Of Disability Discrimination Claims. 263 Qualiﬁed Individuals With A Disability – The Need For An Employee To Be Able To Perform The Essential Functions Of The Job, And An Employer’s Obligation To Reasonably Accommodate The Employee’s Disability. 264 The ADA’s Speciﬁc Bans On Discrimination. 265 The Obligation To Make Light-Duty Work Available. 267 The Need For The Employer’s Decision To Be Based Upon The Employee’s Disability, And Not On Independent Grounds. 268 The ADA And Hiring. 269 Pension Funds And The ADA. 270 Remedies For Breach Of The ADA. 270 Other Laws Protecting Disabled Employees. 271 The ADA And Seniority Clauses. 271 Notes 272

TABLE OF CONTENTS — vii CHAPTER 12 FIREFIGHTERS AND EMPLOYMENT DISCRIMINATION 277 Basic Discrimination Law Principles. 278 Title VII And The Fourteenth Amendment. 279 Disparate Treatment And Disparate Impact Employment Discrimination. 280 Disparate Treatment Cases. 280 Disparate Impact Cases. 283 Retaliation Claims. 285 Sexual Or Racial Harassment. 286 The Supreme Court’s Signiﬁcant Changes In Harassment Law. 287 Afﬁrmative Action Programs. 290 Pregnancy Discrimination. 293 Age Discrimination. 293 Discrimination On The Basis Of Sexual Orientation. 295 “Class Of One” Discrimination. 296 Discrimination And Seniority Systems. 296 Notes 298

CHAPTER 13 REMEDIES 307 The Choice Of Forums – Where Lawsuits Are Brought. 308 Lawsuits For Violation Of Federal Constitutional Rights. 309 Lawsuits Against Government Officials And Public Agencies; Qualified And Absolute Immunity. 309 Volunteer Firefighters And The Law. 310 Deferral To Arbitration Or Administrative Procedures. 310 Damages In Federal Civil Rights Cases. 311 Injunctions And Equitable Relief In Federal Civil Rights Cases. 312 Attorney Fees In Federal Civil Rights Cases. 313 The Timeliness Of Claims Under Federal Civil Rights Statutes. 313 Claims Under State Laws. 313

viii — TABLE OF CONTENTS Res Judicata, Collateral Estoppel, and Abstention – When Claims Are Being Litigated Or Have Already Been Litigated Somewhere Else. 314 Notes 316

Index 319

TABLE OF CONTENTS — ix x — TABLE OF CONTENTS CHAPTER 1

INTRODUCTION

INTRODUCTION — 1 Since the first edition of this book was written in 1991, there have been significant developments in the employment rights of firefighters. In 1991, firefighter rights were still in their developmental stage, with legal theories evolving and a good deal of uncertainty as to precisely what were the rights and responsibilities of employers and employees. The last 19 years have seen the resolution of debates as to the law in many areas, but have also seen major changes – largely favoring employers – in other areas. A brief list of the major developments over the last 19 years includes: • The solidification of collective bargaining laws granting firefighters the right to collectively bargain in the significant majority of states. • A greater clarity as to precisely what it means that an employer must have “just cause” before taking disciplinary action against a firefighter. • An initial series of decisions from the courts establishing a firefighter’s constitutional right to speak out about matters pertaining to his job, and a newer series of decisions placing great restrictions on that right. • The expansion of workers’ compensation laws that create presumptions that certain conditions are caused by the job to include not just heart and lung conditions, but also a variety of communicable diseases that may strike firefighters. • The enactment of the Americans With Disabilities Act, followed by the practical evisceration of the ADA by the courts, which in turn was followed by the passage in 2008 of the Americans With Disabilities Act Amendments Act, a new set of rules with the potential to bring about profound changes in the personnel practices of fire protection agencies. • The increasing exposure of firefighters to civil liability associated with the job, and, most recently, the possibility that firefighters might be subject to criminal prosecutions arising out of on-the-job misconduct such as theft or negligent traffic accidents. This book describes these developments as well as the boundaries of a firefighter’s constitutional and statutory rights. While the book contains enough legal citations to satisfy most lawyers, it is primarily designed for the layperson who is involved or interested in issues concerning firefighter rights. The book takes neither a “pro-management” nor “pro-labor” approach – rather, it is written from a neutral standpoint in the hope that when all parties possess accurate, up-to-date information on the law, conflict will be avoided, not provoked. This book is different from other books governing labor relations or employee rights in the public sector. Instead of taking a generalized approach to the subject, this book is directed specifically at the fire protection environment. As a result, the vast majority of the thousands of cases discussed in this book specifically involve firefighters.

2 — INTRODUCTION The fourth edition of this book is greatly expanded from its predecessor. Thousands of cases decided in the last ten years concerning firefighter rights have been reviewed and integrated in the discussion in the text. Because of developments in the law, entire chapters, most notably those on free speech and procedural rights in the disciplinary process, have had to be substantially rewritten. Two completely new chapters, dealing with the employment discrimination rights of firefighters and the remedies available in lawsuits, have been added. Sections of the book discussing constitutional protections in the disciplinary process, the right to privacy, the Americans With Disabilities Act, and firefighters as plaintiffs in civil litigation have been substantially rewritten. This book categorizes the rights of firefighters under the following general headings: • The collective bargaining rights of firefighters, discussed in Chapter 2. • The standards for discipline, discussed in Chapter 3. • The constitutional right to due process and other disciplinary procedures, including the Garrity, Loudermill, and Weingarten rules, discussed in Chapter 4. • Bills of rights for firefighters, discussed in Chapter 5. • The constitutional right to privacy held by firefighters, and how the right to privacy applies in the work environment, discussed in Chapter 6. • A firefighter’s constitutional right to freedom of speech, discussed in Chapter 7. • The rights of firefighters to bring civil suits against those who injure them on the job, discussed in Chapter 8. • The rights of firefighters under the Fair Labor Standards Act, discussed in Chapter 9. • The rights of firefighters under workers’ compensation and pension laws, and to a safe working environment, discussed in Chapter 10. • The rights of firefighters under the Americans With Disabilities Act and other laws governing the rights of disabled employees, discussed in Chapter 11. • The rights of firefighters to be free from employment discrimination, discussed in Chapter 12. • The remedies available when an employer violates a firefighter’s rights, described in Chapter 13.

INTRODUCTION — 3 4 — INTRODUCTION CHAPTER 2

COLLECTIVE BARGAINING

COLLECTIVE BARGAINING — 5 THE GENERAL STRUCTURE OF LAWS GOVERNING COLLECTIVE BARGAINING FOR FIREFIGHTERS. Without question, the broadest grant of rights to firefighters occurs under The broadest grant of rights to collective bargaining agreements. Under labor contracts, wages and benefits are firefighters occurs guaranteed for the duration of the agreement. Benefits such as work schedules, under collective leave and overtime are lined out, and, most significantly, firefighters who dispute bargaining agreements. a decision of their employer usually have the right to appeal the decision through a grievance procedure culminating with a final and binding decision by a neutral third party known as an arbitrator. Under the terms of the National Labor Relations Act, state governmental bodies and their political subdivisions such as cities, counties, and fire districts are excluded from the definition of “employer,” and thus are not brought within the scope of federal labor laws. Though proposals for a national collective bargaining system are regularly introduced in Congress, none have been enacted as of yet. As a result, laws regulating collective bargaining for firefighters employed by state, county, city, and fire district employers have developed on a state-by-state basis. Collective bargaining laws in each state can be summarized by three simpli- fied models: The “Binding Arbitration” model, the “Meet and Confer” model, and the “Bargaining Not Required” model. The “Binding Arbitration” Model. In states following the binding arbitration model, public employees are granted the right to select an exclusive representative for the purpose of bargaining with their employers. In these states, the public employer and the labor organization are required to bargain in good faith until impasse, and then to submit any unresolved disputes to a process known as “interest arbitration,” where a neutral third party selected by the parties makes a final and binding resolution of those issues In binding arbitration, a neutral third party decides what the terms and conditions of the new collective bargaining agreement will be, usually using standards established by state statute. There are three general types of binding arbitration laws, reflecting differences in the latitude given arbitrators to render decisions. Under the first type, known as “issue-by-issue” arbitration, the arbitrator is required to render a decision on each issue independent of how other issues are resolved, and must craft an award on each issue that best accomplishes the purposes of the arbitration statute. The second type of binding arbitration is known as “final offer, issue-by-issue,” where the arbitrator renders a decision on each issue independently, but must award the final offer made by one of the parties, and is not free to craft a compromise position that has not been specifically proposed by either party. The third type of arbitration is “total package” arbitration, where the arbitrator must select the most reasonable of the total packages submitted by each party, even if selected elements of that party’s total package might not have been awarded by the arbitrator on an issue-by-issue basis.

6 — COLLECTIVE BARGAINING In states following the binding arbitration model, arbitration is available not just as the last step in negotiations for a new contract, but also as the means to resolve negotiations under any “reopener” language in a contract that gave either of the parties the opportunity to reopen negotiations on a limited subject during the term of the contract.1 Where they have been enacted, binding arbitration laws have almost always been held to be constitutional, and not to infringe on any “home rule” provisions in a state constitution.2 The “Meet and Confer” Model. In states following the meet and confer model, firefighters generally have the same rights to organize and select their collective bargaining representative as is the case with the binding arbitration model. In these states, employers are only obliged to “meet and confer” with the employees’ collective bargaining representative. When negotiations end in impasse, the employer has the right to unilaterally impose its “last best offer” on all open bargaining issues. The bargaining obligations of an employer in a “meet and confer” state are (1) to meet with the labor organization promptly on request, personally, and for a reasonable period of time;3 (2) to exchange information freely; and (3) to try to agree on matters within the scope of representation.4 Good faith negotiations in a meet and confer setting have been characterized as a “subjective attitude” which requires a genuine effort to reach agreement, an effort which is “inconsistent with a predetermined position not to budge on particular issues.”5 As is the case with states following the binding arbitration model, in meet and confer states it is illegal to discriminate against an employee because of that employee’s union activities.6 The “Bargaining Not Required” Model. The last model for public sector collective bargaining laws is found in those states that do not statutorily require or, in some cases, even allow collective bargaining for firefighters. In some of these states, bargaining laws have been enacted by the state legislature only to later be declared unconstitutional by the courts (Indiana, for example, has such a history). In the majority of these states, a statewide collective bargaining statute covering firefighters has never been enacted. In some states where collective bargaining has not been granted on a statewide basis, certain cities and counties within the state have voluntarily chosen to bargain with their firefighters. The following table summarizes the current status of collective bargaining laws governing firefighters, and lists which of the three general models are followed in each state.

COLLECTIVE BARGAINING — 7 COLLECTIVE BARGAINING LAWS FOR FIREFIGHTERS

State Binding Arbitration Meet And Confer Bargaining Not Required

Alaska X Alabama7 X Arizona8 X Arkansas X California X Colorado X Connecticut X Delaware X Dist. of Columbia X Florida X Georgia9 X Hawaii X Idaho X Illinois X Indiana X Iowa X Kansas X Kentucky10 X Louisiana X Maine X Maryland X Massachusetts X Michigan X Minnesota X Mississippi X Missouri X Montana X Nebraska X Nevada X New Hampshire X New Jersey X New Mexico X New York X North Carolina X North Dakota X Ohio X Oklahoma X Oregon X Pennsylvania X Rhode Island X South Carolina X South Dakota X Tennessee X Texas X Utah X Vermont X Virginia X Washington X West Virginia X Wisconsin X Wyoming X

8 — COLLECTIVE BARGAINING THE EXCLUSION OF FIREFIGHTERS FROM COLLECTIVE BARGAINING LAWS. Absent a state statute or local ordinance specifically permitting firefighters to bargain collectively, a fire protection labor organization has no right to compel an employer to bargain with it. Laws granting collective bargaining rights to firefighters but denying such rights to other employees have been held valid.11 State laws governing the rights of firefighters to bargain collectively regulate State laws only the bargaining relationship between a labor organization and an employer, governing not actual membership in a labor organization. With limited exceptions, neither the rights of a state nor a local governmental body can forbid an employee from joining a firefighters to bargain labor organization and participating in its activities, since the right to be a mem- collectively ber of a labor union is protected by the First Amendment to the United States regulate only Constitution. As noted by the United States Supreme Court in 1945: “[T]he right the bargaining relationship * * * to discuss, and inform people concerning the advantages and disadvantages between a labor of unions and joining them is protected not only as part of free speech, but as part organization and of free assembly.”12 While firefighters may have the right to be members of a labor an employer, not actual organization, that right does not compel an employer to bargain with the labor membership organization unless it is required to do so by state law; however, the employer may in a labor choose to bargain. organization. There is some debate over whether an employer can ban supervisors from belonging to the same labor organization as line personnel. Courts upholding such bans do so on the basis of the potential for a conflict of interest between supervisors and rank-and-file personnel: “We hold that prohibiting firefighters properly characterized as supervisors from belonging to labor organizations composed of the rank and file serves a legitimate and substantial government interest in maintaining efficient and dependable firefighting services. ‘Management, like labor, must have faithful agents.’ An identity of interests on the part of supervisors with the rank and file poses a significant threat that the loyalties of the supervisors will be divided and that consequently the discipline and effectiveness of the fire department will be impaired.”13 A federal appeals court took a different approach in rejecting Kansas City’s ban on fire supervisors belonging to the same international union as rank-and-file firefighters. The Court focused not on the possibility of a conflict of interest but on whether Kansas City could establish that a conflict of interest would, in fact, occur: “Ultimately, Kansas City has no proof that the fact that Locals 42 and 3808 are both affiliated with the International Associa- tion of Fire Fighters will influence the members of Local 3808 to strike in sympathy with Local 42 or otherwise interfere with their management duties. Kansas City relies upon the fact that all the members of Local 3808 were once members of Local 42. But this

COLLECTIVE BARGAINING — 9 proves too much. If the management-level firefighters are inclined to support Local 42 in a strike, they would be similarly inclined regardless of their membership in Local 3808. There is simply no evidence that the firefighters’ membership in Local 3808 significantly changes the equation. Indeed, the District Court found as an uncontroverted fact that Locals 42 and 3808 are autonomous and independent and that Local 42 does not control the policies or members of Local 3808. Kansas City does not suggest that there is a genuine dispute as to these facts.”14

Even in the Even in the absence of any form of collective bargaining, there may be restric- absence of any tions placed upon the employer preventing the reduction of benefit levels for form of collective existing employees. These restrictions, contained in the so-called contract clause bargaining, of the Constitution, prevent an employer from reducing or impairing any vested there may be rights that may have accrued after the employee began service for the employer. restrictions An example of the application of the contract clause can be found in the case of placed upon the employer United Firefighters v. City of Los Angeles, where the Court struck down a voter- preventing the approved charter amendment placing a 3% cap on firefighter pension benefit reduction of cost-of-living adjustments. The Court reasoned that “unlike other terms of public benefit levels employment, which are wholly a matter of statute, pension rights are obligations for existing protected by the contract clause of the federal and state constitutions.”15 employees. ELIGIBILITY FOR INCLUSION IN A BARGAINING UNIT OF FIREFIGHTERS. Where collective bargaining exists for firefighters, not all employees are eligible to be in a collective bargaining unit. Employees whose jobs are “confidential,” “supervisory,” or “managerial” may, depending upon the local law, be either excluded from collective bargaining16 or be required to be in a bargaining unit separate from rank- and-file members. Public employee bargaining laws which require supervisors to be in different bargaining units than rank-and-file members have been held to not violate the First Amendment’s protections of freedom of association. Such laws generally permit supervisory units to be affiliated with a parent organization which includes a rank-and-file unit as one of its affiliates.17 In assessing whether a position is exempt from collective bargaining, little weight is generally given to the title of the job; what are critically important are the actual job duties for the position.18 Further, as one state labor commission commented, “the test of whether a person [can be excluded from collective bargaining] depends not on what he may have as his responsibilities and authority under occasional or remote circumstances, but what his functions and responsibilities are in the normal course of affairs.”19

10 — COLLECTIVE BARGAINING SUPERVISORY EMPLOYEES. The question of who is a “supervisor” under a collective bargaining law has been extensively litigated, primarily with respect to the positions of lieutenant, captain, and battalion chief. The following standards, which parallel the definition of “supervisor” under the National Labor Relations Act,20 are found in Montana’s collective bargaining laws: “An individual having the authority on a regular, recurring basis while acting in the interest of the employer to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees or to effectively recommend the above actions if, in connection with the foregoing, the exercise of the authority is not of a merely routine or clerical nature but requires the use of independent judgment.”21 Depending upon the structure of the state law, supervisors are either entirely prevented from collective bargaining22 or must be placed in a different bargaining unit than rank-and-file firefighters.23

MANAGERIAL EMPLOYEES. “Managerial” employees are usually ineligible for membership in a collective bargaining unit. Typically, managerial employees are high in the supervisory chain of a fire protection agency and are usually appointed officials. They must meaningfully perform the following tasks in order to be excluded from a collective bargaining unit: • The formulation of departmental policy; • The development of programs used by the department, and the implementation and management of those programs; • The conducting of public relations on behalf of the department; • The formulation of the department’s budget, and the presentation of and advocacy for the budget at higher levels; • The making of purchasing decisions; • The making of hiring recommendations; and • The exercise of a significant role in the disciplinary process.24 Depending upon the organizational structure of a fire department, assistant chiefs may or may not be managerial employees depending upon whether they possess sufficient decision-making authority.25 In rare cases, even fire chiefs may not possess sufficient managerial authority to be excluded from a collective bargaining unit.26

COLLECTIVE BARGAINING — 11 CONFIDENTIAL EMPLOYEES. Of the three general exclusions from membership in a collective bargaining unit, the “confidential” employee exclusion generally involves the fewest number of employees. As the Illinois statute exemplifies, a confidential employee usually must be a direct assistant to an individual intimately involved with collective bargaining matters: “‘Confidential employee’ means an employee who in the regular course of his or her duties, assists and acts in a confidential capacity to persons who formulate, determine and effectuate management policies with regard to labor relations or who in the regular course of his or her duties has authorized access to information relating to the effectuation or review of the employer’s collective bargaining policies.”27

EXAMPLES OF THE SCOPE OF A BARGAINING UNIT. It is impossible to stress too much how significant a role the specific job duties of a position play in determining whether the position will be included in a bargaining unit. Because of the varying roles that the positions in a fire department play in different agencies, it is entirely possible to have captains from one agency in a state included in rank-and-file collective bargaining while captains from another agency in the same state are excluded,28 or in another state, to have battalion chiefs included in a bargaining unit while captains from another agency are excluded.29 What follows are brief position-by-position discussions of cases analyzing whether certain classifications should be included or excluded from a fire protection bargaining unit: Emergency Medical Technicians and Paramedics: Almost without excep- Courts and employment tion, courts and employment relations commissions have held that emergency relations medical technicians should be included in the same bargaining unit as firefight- commissions ers, reasoning that the similar training received by EMTs, the similarity of shift have held that emergency medical schedules, and the requirements for state certification all amount to a significant 30 technicians should community of interest between EMTs and firefighters. Similar results have been be included in the reached with paramedics31 and community health specialists who work with para- same bargaining medics.32 unit as firefighters. Lieutenants: In virtually every reported case dealing with the issue, labor boards and courts have found that lieutenants are eligible for collective bargaining, and should appropriately be placed in the rank-and-file firefighter bargaining unit.33 Captains: Though a few decisions exclude captains from rank-and-file bargaining units,34 the majority of courts and labor relations boards have held that fire captains are not supervisors or managers, and can be included in a bargaining unit with rank-and-file firefighters.35

12 — COLLECTIVE BARGAINING Battalion Chiefs: Courts and labor relations boards have issued mixed opinions on the question of whether battalion chiefs can be included in a bargaining unit with rank-and-file firefighters, with the results turning on the particular duties of the battalion chiefs in question. To the extent that a battalion chief is vested with considerable discretion in making employment-related decisions such as discipline, hiring, and promotion, the battalion chief is likely to be excluded from the rank-and-file bargaining unit.36 If the battalion chief is given little or no discretion in these areas, then the battalion chief will almost certainly be included in a rank-and-file bargaining unit.37 If supervisors are eligible to be placed in a separate collective bargaining unit, battalion chiefs may then be placed in that separate unit.38 Assistant and Deputy Fire Chiefs: Assistant and deputy chiefs have usually been held to be either supervisory or managerial employees who, depending upon the structure of the state law, are either excluded from collective bargaining or must be placed in a separate supervisory bargaining unit.39 An example of the reasoning behind the exclusion of assistant and deputy chiefs can be found in a case involving the Boston Fire Department, where the Court commented that the assistant and deputy chiefs “function as an extension of the chief. For this reason they are entitled to the more elaborate emoluments of their rank; the respect and attention of command; the independent discretion and exercise of their individual judgment on a daily basis.”40 Other cases have reached contrary results, holding that the degree of true supervisory duties possessed by assistant and division chiefs was not significant enough to bar the chiefs from collective bargaining.41 For example, the New Jersey Public Employment Relations Commission held that where deputy chiefs no longer had authority to deploy or transfer firefighters, discipline subordinates, participate in budget formulation, purchase equipment, or assist in the development of departmental policy, they were now eligible for collective bargaining.42 In a similar case in Florida, the Public Employment Relations Commission held that a chief of training should be included in the bargaining unit, finding that the chief’s development of training policies for fire and rescue personnel, including those which involved work deficiencies and position certifications, “primarily concerns how services are performed rather than their nature and scope. Further, the County’s contention that the chief of training is given ‘free rein’ to develop training programs does not transform the nature of his work to the level of policy.”43 Fire Inspectors, Training Officers, and Public Information Officers: If an inspector is required to attain the same certification levels of firefighters and actually engages on an occasional basis in fire suppression duties, the inspector is almost certain to be included in a general firefighter bargaining unit.44 Absent such integration between the jobs, there is a greater likelihood that the inspector position will not be placed in the same bargaining unit as rank-and-file employees.45 For the same reason, training officers are generally included in a rank-and- file unit.46 Though there are few cases on the subject, the trend appears to be to

COLLECTIVE BARGAINING — 13 include public information officers in the same bargaining unit as rank-and-file firefighters.47 Volunteers and Reserve Firefighters: Volunteers and reserve firefighters are generally excluded from a general firefighter unit on the theory that casual employees do not share the necessary “community of interest” with full-time employees to be included in the same bargaining unit.48 In some states, volunteers may be able to form their own collective bargaining unit.49 Part-Time Firefighters: The rules vary from state to state with respect to the eligibility of part-time firefighters to join a rank-and-file bargaining unit. Some states hold that if part-time firefighters perform essentially the same job as full- time firefighters, they may be eligible for inclusion in the rank-and-file firefighter bargaining unit.50 Other states reach the opposite result, concluding that only full-time employees are eligible for collective bargaining.51

THE SUBJECTS WHICH ARE MANDATORILY NEGOTIABLE. Where a fire protection employer is obligated to bargain collectively, the topics over which bargaining may be conducted are generally classified under one of three categories – mandatory, permissive, or illegal topics of bargaining. Mandatory subjects of bargaining are those over which bargaining must occur if the issue is raised by either side. Permissive subjects of bargaining are those over which bargaining may occur, but is not compelled. Illegal subjects of bargaining are those over which an employer is forbidden by law from bargaining. The distinction between the different categories of bargaining subjects is particularly important where interest arbitration is the last step in the bargaining process, since only mandatory subjects of bargaining may generally be referred to interest arbitration. Where the obligation to bargain exists, it has importance not only during the time negotiations for an actual contract are being conducted, but also during the term of the contract, and even after the contract expires. The obligation to bar- If a matter is a gain is said to be continuing in nature, a characteristic that may significantly limit mandatory subject an employer’s flexibility in making certain decisions. If a matter is a mandatory for bargaining, a fire protection subject for bargaining, a fire protection employer may not make changes in past employer may not practices affecting the matter without first negotiating with the labor organization make changes representing its firefighters. This “continuing duty to bargain” restriction applies in past practices affecting the whenever a labor organization has been certified as the bargaining representative matter without for employees. first negotiating Simply because an employer has made a change in a mandatory subject of with the labor organization bargaining during the term of the contract does not, in and of itself, mean that it representing its has committed an unfair labor practice. A labor organization has an obligation to firefighters. make a timely demand to bargain in response to the intended or actual change. If it fails to do so, the labor organization will be held to have waived its rights to bargain on the topic.52

14 — COLLECTIVE BARGAINING An employer’s right to make changes in what would be mandatory subjects of bargaining can also be augmented or circumscribed by a collective bargaining agreement. Contractual clauses typically labeled “Maintenance of Benefits” or “Existing Conditions” establish a right to challenge an employer’s decision to change wages, hours, or working conditions, a right which is enforceable through the grievance procedure in the contract. On the other hand, a “management rights” clause can grant to an employer the right to make decisions in specific areas without any collective bargaining obligation. The following table summarizes decisions of courts and employment relations boards or commissions on the status of certain bargaining topics for firefighters.53 Some variations exist among the different states as to whether particular topics are bargainable. For example, where promotional procedures have been held by Ohio, New York, and many other states to be a mandatory subject of bargaining, some states deem them permissive in nature. Accordingly, the following table should be used only as a general guide.

COLLECTIVE BARGAINING — 15 STATUS OF BARGAINING TOPICS FOR FIREFIGHTERS

CASE NAME MANDATORY DESCRIPTION Affirmative Action San Francisco Firefighters, Local No Compliance with the federal civil rights 798 v. Board of Supervisors, 5 consent decree involving promotion of Cal. Rptr. 2d 176 (Cal. App. minorities within the fire department. 1992) Annexation IAFF, Local 1445 v. City of No Annexation of contiguous fire district. Kelso, Decision 2633 (Wash. PERC 1988) Assignments Borough of North Plainfield, 24 No Proposal barring assignment of firefighters NJPER ¶29015 (N.J. PERC to “non-emergency” duties after 10 p.m. 1997) City of Bayonne, 24 NJPER No New practice of requiring promotional ¶29151 (N.J. PERC 1998) eligibility working out of class as acting fire lieutenant. City of Camden, 16 NJPER Mixed Release of firefighters before end of ¶25016 (N.J. PERC 1993) scheduled overtime. City had right to release firefighters; compensation for firefighters who had been released was mandatory for bargaining. City of Danbury v. IAFF, Local Mixed Establishment of a paramedic unit. 801, 603 A.2d 393 (Conn. 1992) City of Detroit, 14 MPER No Decision to eliminate two fire companies, ¶23022 (Mich. ERC 1992) not resulting in the reduction of firefighters or reduction of employees assigned to each company. City of East Orange, 26 NJPER Mixed Proposal to increase number of acting ¶31147 (N.J. PERC 2000) captains in fire department who could be assigned before superior officers were called at overtime rates not mandatory for bargaining. Proposal calling for assignment of acting captains on rotating basis in accordance with seniority was mandatorily negotiable. City of Perth Amboy, 24 NJPER No Proposal required City to negotiate over a ¶29006 (N.J. PERC 1997) decision to implement emergency medical services program. Commission held that proposal infringed on City’s prerogative to determine how it should deliver public services.

16 — COLLECTIVE BARGAINING CASE NAME MANDATORY DESCRIPTION Town of Harrison, NJPER Mixed Employer not required to bargain over 33066 (N.J. PERC 2002) decision to assign firefighter to respond to both EMS and fire dispatch calls during work hours; however, employer required to bargain over issues of employee health and safety stemming from the assignment Bargaining City of Harper Woods, Case No. No Employer proposed ground rule that all C06 D-087 (Mich. ERC 2007) bargaining sessions be held at its facilities. Location of bargaining sessions not a mandatory subject of bargaining. Village of Malverne, No. U- No Union proposed contract clause that would 28688 (N.Y. PERB ALJ 2009) have defined which positions were in the collective bargaining unit. Issues of unit determination are handled by state labor board. Bulletin Boards Township of Plainsboro, PERC Yes Labor organization filed grievance No. 2009-42 (N.J. PERC 2009) challenging employer’s removal of postings from bulletin board. Collective bargaining agreement had clause governing the circumstances under which posting could be removed. Civil Service Rules City of Bellevue and Local 1604, Yes Proposal to incorporate civil service by IAFF, Decision 2788 (Wash. reference into contract. PERC 1987) Clothing City of Perth Amboy, 24 NJPER Yes Proposal for allowance for non-protective ¶29006 (N.J. PERC 1997) clothing for firefighters. Compensatory Time Off City of Pasco, Washington, Yes Employer unilaterally eliminated Decision #9181-A (Wash. PECB compensatory time off system and cashed 2008) out employees’ accrued compensatory time off. Commission rejected the argument that recent change in case law surrounding the Fair Labor Standards Act necessitated the elimination of comp time. Fire Rescue Professionals of Yes Unilateral change in past practice of Alachua County, 28 FPER ¶33, allowing supervisory employees to accrue 158 (Fla. PERC 2002) compensatory time off for excess hours worked. Though supervisors not entitled to overtime under FLSA, existing practice did not violate law since FLSA merely sets the “floor” not the “ceiling” on acceptable wage and hour practices.

COLLECTIVE BARGAINING — 17 CASE NAME MANDATORY DESCRIPTION IAFF, Local 2566 v. City of Yes Unilateral implementation of compensatory Cushing, 10 NPER OK-18005 time off plan; defense that changes required (Okla. PERB 1987) by FLSA rejected. Composition of Bargaining Unit Anne Arundel County Yes Dispute as to whether fire lieutenants Professional Firefighters Ass’n v. and captains should be excluded from Anne Arundel County, 690 A.2d bargaining unit as managers. While open 549 (Md. App. 1997) to future negotiations, not subject to grievance procedure in current contract. Contract Expiration Township of Teaneck and Teaneck Yes Proposal that contract continue in effect PFOA, 14 NJPER ¶19127 (N.J. after expiration. PERC 1988) Contracts with Union Members City of Newark, 29 NJPER ¶137 Yes Employer contended that releases signed (N.J. PERC 2003) by grievants prohibited labor organization from proceeding to arbitration over issue covered by release. City of Schenectady, 24 PERB Yes Demand that firefighter sign release as ¶3016 (N.Y. PERB 1991) a condition to reinstatement to full duty following lung surgery. IAFF, Local 2292 v. City of Yes Employment of firefighter at higher wage Pembroke Pines, 15 FPER than called for by contract. ¶20023 (Fla. PERC 1988) Cost of Living Increases Local 1467, IAFF v. City of Yes Employer discontinued cost-of-living raises Portage, 352 N.W.2d 284 called for during “the life of” an expired (Mich. App. 1984) contract. Criminal Investigations City of New York v. Uniformed No Public policy barred arbitration of grievance Fire Officers Ass’n, Local 854, over whether employee rights provisions of 716 N.Y.S.2d 353 (N.Y. 2000) collective bargaining agreement could be invoked to limit or restrict the procedures of criminal investigations commenced by the employer; allowing arbitration of such a dispute would amount to an impermissible delegation of employer’s authority to investigate its internal affairs. Days Off City of Cohoes, 26 PERB ¶4550 No Proposal that captains be allowed time (N.Y. PERB Director 1993) off without regard to staffing levels in firefighter ranks.

18 — COLLECTIVE BARGAINING CASE NAME MANDATORY DESCRIPTION Disability Benefits Syracuse Firefighters Association, Yes Termination of disability benefits paid to Local 280, 32 PERB ¶3029 injured firefighters. Matter not preempted (N.Y. PERB 1999) by state law. Discipline Asotin County, Washington, Yes After expiration of contract, employer Decision 9549-A (Wash. PERC terminated an employee without just cause. 2007) Disciplinary standards were a mandatory subject of bargaining that continued after the contract expired. City and County of San No Unfair labor practice alleged that City had Francisco, Decision 1611M (Cal. deviated from its practice of offering “last PERB 2004) chance” agreements to firefighters charged with a first offense relating to the use of alcohol. Board found that Union failed to establish a past practice, and that the two previous examples cited by the Union could not be used as evidence since the settlement agreements in those cases were non-precedent setting. City of Cortland, 26 PERB No Association’s proposal requiring that it be ¶4534 (N.Y. PERB Dir. 1996) notified in advance when bargaining unit members were to undergo disciplinary questioning. City of Detroit and Detroit Yes Unilateral enactment of workplace violence Firefighters Association, Case policy with disciplinary implications. No. C00 F-99 (Mich. ERC 2002) Fire District I of Township of Yes Employer refused to process to arbitration Woodbridge v. PERC, 2009 disputes over “minor discipline,” such WL 1789475 (N.J. Super. A.D. as short suspensions. Arbitration not 2009) preempted by state civil service law. IAFF Local 1803 v. City of Yes Unilateral adoption of personnel code. Reading, 31 PPER ¶31057 (Pa. LRB 2000) King County Fire District 11, Yes Employer unilaterally implemented new Decision 4538 (Wash. PERC policy manual containing a code of conduct 1994) which prohibited horseplay. Riverside Sheriffs’ Association v. No Employer changed past practice of Trask, 2009 WL 618239 (Cal. automatically accepting arbitration awards App. 2009) and began to submit awards to Board of Supervisors for approval. Collective bargaining explicitly allowed submission of awards to Board for approval.

COLLECTIVE BARGAINING — 19 CASE NAME MANDATORY DESCRIPTION Wheeling Firefighters Association, No Employer submitted bargaining proposal 17 PERI P 2018 (Ill. SERB that would have required resolution of 2001) disciplinary action by employer’s Board of Fire and Police Commissioners in lieu of disciplinary arbitration. Drug Testing City of Tacoma, Decision 4539 Yes Comprehensive drug testing proposal. (Wash. PERC 1994) City of Utica, 25 PERB ¶4641 Yes Drug testing procedures, including pre- (N.Y. PERB Director 1992) testing, testing, post-testing and re-testing procedures, criteria for discipline, the standards for drug testing, and disciplinary procedures and penalties used with respect to drug testing. City of Yakima, Decision Yes Employer failed to respond to Union’s 9062-B (Wash. PERC 2008) demand to bargain over whether a random drug testing program should be in existence; contract was silent on the issue, and Union opposed random testing. Harvey Firemen’s Association, Yes Employer unilaterally implemented drug- Local 471 and City of Harvey, 18 testing policy, including a random testing PERI ¶2032 (Ill. LRB 2002) component. Holliday v. City of Modesto, 13 Yes Implementation of drug testing program. NPER CA-22090, 280 Cal. Rptr. 206 (Cal. App. 1991) San Francisco Firefighters Local No When in the past, the employer had offered 798 v. City and County of San employees who violated its substance Francisco, 28 PERC ¶120 (Cal. abuse policy “last chance” agreements, it PERB 2004) terminated a firefighter for a first offense. Employer not required to bargain over issue because, as “last chance” agreements were non-precedent setting, they did not establish a past practice. Employee Assistance Program City of Buffalo and Buffalo PFA, Yes Proposal for creation of employee assistance 10 NPER NY-14576 (N.Y. program. PERB 1987) Employee Rights City of Paterson, New Jersey, No Employer installed overt security cameras PERC No. 2007-62 (N.J. PERC inside and outside its public safety complex 2007) without notice to or bargaining with the labor organizations representing public safety employees. Commission concluded that since cameras were part of an overall security system, and were overt rather than covert, management’s rights to protect “people and property” overrode any employee privacy interest.

20 — COLLECTIVE BARGAINING CASE NAME MANDATORY DESCRIPTION Employer Facilities City of Oswego Firefighters Yes Employer unilaterally changed past practice Association, U-27221 (N.Y. of allowing firefighters to wash and wax PERB 2008) their personally-owned vehicles at fire stations. Town of Windsor, 19 NPER CT- No Employer eliminated practice of allowing 27079 (Conn. SBLR 1996) employees to work on or wash private vehicles at employer-owned facility while off duty. Not negotiable since use of public equipment for personal purposes was not directly or indirectly related to work. Vernon Fire Fighters v. City of Yes Use of City facilities to wash personal Vernon, 165 Cal. Rptr. 908 vehicles. (Cal. App. 1980) Equipment City of Newark, No. 2006-44 Yes Proposal that employer broadcast the wind (N.J. PERC 2005) chill factor and heat index twice a day. Adoption of proposal would not require the employer to purchase new equipment. City of Newark, No. 2006-44 Yes Firefighters’ union proposed that every (N.J. PERC 2005) on-duty firefighter be issued a two-way radio. PERC concluded that “no interest of firefighters is more important than their safety and rescue during life-and-death crises.” City of Okmulgee, Oklahoma, No Employer unilaterally issued policy in 124 LA 423 (Walker, 2007) handbook concerning use of the employer’s computers and the Internet. Terms for use of computers were not “material, substantial and significantly affecting the terms and conditions of employment.” King County Fire District #11, Yes Employer implemented new policy manual Decision 4538 (Wash. PERC restricting use of lockers for certain 1994) purposes. King County Fire District #16, Mixed Implementation of new technology not Decision 3714 (Wash. PERC negotiable; effects of new technology 1991) negotiable. Parma Heights Firefighters, 20 No Employer unilaterally implemented OPER ¶168 (Ohio SERB 2003) policy governing the personal use of City computers. Employer’s right to manage the use of its computers outweighs any impact on terms and conditions of employment. Township of Teaneck and Teaneck Yes Proposal to require Town to supply portable PFOA, 14 NJPER ¶19127 (N.J. radios to on-duty employees. PERC 1988)

COLLECTIVE BARGAINING — 21 CASE NAME MANDATORY DESCRIPTION Family And Medical Leave Act IAFF Local 1749 v. City of Yes City instituted new practice of charging Butler, 32 PPER ¶32066 (Pa. work-related injury time against leave LRB ALJ 2001) allowable under FMLA. IAFF, Local 1803 v. City of Yes Enactment of rules governing the Reading, 31 PPER ¶31057 (Pa. administration of the Family and Medical LRB 2000) Leave Act. Financial Disclosure City of Auburn and Local 1446, Yes Implementation of requirement that 22 PERB ¶4531 (N.Y. PERB employees file annual financial disclosure 1989) statements. Newburgh Firefighters Yes Implementation of financial disclosure Association, Local 589 IAFF, 30 rules. PERB ¶3027 (N.Y. PERB 1997) Grievance Procedure IAFF, Local 1064 v. City of No Employer proposal that union not be Bellevue, Decision 3085 (Wash. allowed to initiate grievance in own name; PERC 1989) ruled to be non-waivable by union. Village of Lombard, 15 PERI No Employer proposed that union waive its ¶2007 (Ill. SLRB General right to file challenges in arbitration to Counsel 1999) suspensions and discharges. Grooming and Appearance Codes City of Brooklyn, 8 OPER ¶1196 Yes Unilateral implementation of weight (Ohio SERB 1991) standards for firefighters. Weight standard had disciplinary implications. Dover PFFA, Local 1312, 23 Yes New weight policy. GERR 1224 (N.H. PELRB 1985) Nashua FFA, Local 789, 23 Yes Hairstyles and length. GERR 1225 (N.H. PELRB 1985) Town of East Hartford, 11 No Ban on facial hair to comply with state NPER CT-20039 (Conn. SBLR safety agency’s order. 1988) Health Insurance for Retirees Borough of Upper Saddle River, Yes Retiree health care benefits negotiable Case No. 2008-22 (N.J. PERC under New Jersey law if provided on a 2007) uniform basis. City of Brookfield and Brookfield Yes Proposal for insurance for current PFFA, PEB ¶45,402 (Wis. ERC employees who retire. 1988)

22 — COLLECTIVE BARGAINING CASE NAME MANDATORY DESCRIPTION City of Cohoes, 30 PERB ¶4586 Mixed Proposal regarding health insurance (N.Y. PERB ALJ 1997) benefits to current employees who retired during term of agreement; proposal to set prescription drug deductible for retirees was not negotiable since current retirees were not covered by the collective bargaining law. County of Sacramento, PERB Yes Employer unilaterally changed the No. 2044-M (Calif. PERB eligibility criteria for current employees’ 2009) participation in the retiree health insurance program by discontinuing subsidies for medical and dental insurance for employees retiring after June 1, 2007. Town of West Hartford, 11 No Not negotiable for employees who have NPER CT-20061 (Conn. SBLR already retired. 1988) Health Insurance City of Bayonne, PERC No. Yes Employer refused to process grievances 2009-40 (N.J. PERC 2009) to arbitration concerning amount of copayment of health insurance premiums. Commission rejected argument that state law specified level of copayment of premiums. City of Butler, 32 PPER ¶32, No Firefighters’ association charged that 185 (Pa. LRB ALJ 2001) employer unilaterally deviated from past practice of reimbursing firefighters for all prescription drug costs not covered by insurance. Single prior incident of providing reimbursement not sufficient to establish past practice. City of Dayton, Decision 1990 No Choice of insurance carrier. (Wash. PERC 1984) City of Edmonds, Decision No Employer unilaterally raised prescription 8798-A (Wash. PERC 2005) drug co-payments. Union waived right to bargain by failing to timely demand negotiations after learning of proposed change. City of Newark, 17 NJPER Yes Unilateral reduction of health insurance ¶26146 (N.J. PERC 1995) benefits during pendency of interest arbitration proceedings. City of Seattle, Decision 651 Yes Level of medical insurance benefits. (Wash. PERC 1979)

COLLECTIVE BARGAINING — 23 CASE NAME MANDATORY DESCRIPTION City of Tukwila, Decision 9691- Yes Employer failed to respond to Union’s A (Wash. PECB 2008) request to reopen negotiations on health care benefits when premiums increased at a rate faster than 10%. Contract clause allowed such a reopening. “Business necessity” defense rejected where employer had ample time to bargain with the Union. Commonwealth of Pennsylvania, Yes After interest arbitrator required employees 917 A.2d 889 (Pa. Cmwlth. to participate in “mandatory generic” 2007) features of a prescription health plan, employer unilaterally implemented its own definition of the term “mandatory generic.” The Court upheld subsequent grievance that employer bargain over the meaning of the term “mandatory generic.” IAFF, Local 36 and District Yes Cancellation of dental and optical of Columbia, 22 GERR 2338 insurance after expiration of contract. (D.C. PERB 1984) Metro-Broward Professional Unresolved Employer unilaterally altered health Fire Fighters, Local 3080, 27 insurance benefits after expiration of FPER ¶32040 (Fla. PERC Gen. collective bargaining agreement. Counsel 2000) Hiring Practices IAFF, Local 182 and City of No Unilateral change in hiring qualifications Pullman, Decision 7126 - PECB for lateral entry firefighter-paramedics. (Wash. PERC 2000) Holidays Borough of Fort Lee, PERC No. Yes Proposal that would require holiday pay be 2008-70 (N.J. PERC 2008) placed into base pay. Hours of Work Borough of Closter, PERC No. Yes Proposal to set work schedule in contract. 2008-56 (N.J. PERC 2008) Work schedules are mandatorily negotiable, except under circumstances where the employer proves a particularized need to preserve or change a work schedule to effectuate a specific governmental policy. Borough of South River, PERC No Employer instituted new practice of No. 2008-38 (N.J. PERC 2008) requiring employees to use separate forms for requesting vacation leave and compensatory time off. Practice found not to “directly affect the work and welfare of officers.” City of Bellevue and Local 1604, Yes Proposal to change business hours of fire IAFF, Decision 2788 (Wash. department. PERC 1987)

24 — COLLECTIVE BARGAINING CASE NAME MANDATORY DESCRIPTION City of Cedar Rapids, 19 NPER Yes Employer unilaterally imposed limitations IA-27006 (Iowa PERB 1996) on firefighters’ trade time. City of Iowa City, 19 NPER IA- No Fire union proposed that workday be 28001 (Iowa Sup. Ct. 1996) divided into “ready time” and “active time” and that certain assignments could only be made during designated hours. Proposal held to impinge on employer’s right to direct personnel. King County Fire District 43, Yes Employer changed schedule to require one Case No. 9236 (Wash. PERC bargaining unit member to be scheduled on ALJ 2006) a Kelly day on each shift. Mandatory for bargaining because of impact on employees’ use of Kelly days. Milwaukee Deputy Sheriff’s Mixed Employer changed work hours of Association, Decision 32118-B employees. Decision to change work hours (Wis. ERC 2008) not mandatory for bargaining, but effects of decision were required to be negotiated. Pierce County Fire District 3, Yes New requirements placing employees on Decision 4146 (Wash. PERC standby status. 1992) Village of Arlington Heights, 13 Yes Proposal to designate a portion of PERI ¶2026 (Ill. SLRB General firefighters’ workday as “stand-down time” Counsel 1997) and to establish a “duty-free” meal period. Insurance Edison Township, 23 NJPER Yes Proposal that employer pay legal defense ¶28236 (N.J. PERC 1997) costs of fire officers. Interest Arbitration Broward County, 23 FPER No Proposal for binding interest arbitration. ¶28199 (Fla. PERC 1997) IAFF Local 1264 v. Municipality No Proposal for interest arbitration. of Anchorage, 971 P.2d 156 (Alaska, 1999) Job Duties City of Battle Creek, 2 MPER No Assignment of additional job duties during ¶20129 (Mich. ERC 1989) normal workday. City of Cohoes, 30 PERB ¶4586 No Employer’s proposal that firefighters be (N.Y. PERB ALJ 1997) required to engage in snow removal duties at the discretion of the fire chief; not negotiable to the extent the proposal was limited to removal of snow in areas which affected the fire department’s ability to get equipment out on the street.

COLLECTIVE BARGAINING — 25 CASE NAME MANDATORY DESCRIPTION City of Elizabeth and Elizabeth No Firefighters’ union referred to arbitration Fire Superior Officers grievance over failure to assign Senior Association, Case No. 2007-11 Captain’s position by seniority. Though (N.J. PERC 2006) post called for premium pay, Commission ruled that assignment issues were a management right. City of Newton and Local 2759, Yes Assignment to visit school building four IAFF, 10 NPER MA-19038 times each night and six times during each (Mass. LRC 1987) weekend. City of Philadelphia v. Mixed Plan to use fire companies to respond to Pennsylvania Labor Relations medical emergencies could be imposed; Board, 588 A.2d 67 (Pa. City required to bargain over the impact of Cmwlth. 1991) the program on working conditions such as stress, fatigue, exposure to communicable diseases, and the rate of injuries which might result from the additional emergency runs. City of Rahway, 25 NJPER Yes Grievance challenging order requiring ¶30105 (N.J. PERC 1999) firefighters to flush hydrants – work traditionally performed by Public Works employees. Neither firefighters’ job descriptions nor normal duties included flushing. City of St. Joseph, 89 MPER No Unilateral assignment of lawn maintenance ¶27070 (Mich. ERC 1996) duties to firefighters; duties held to be analogous to mopping, cleaning windows, and cleaning kitchen and bathroom areas which were duties already performed by firefighters. King County Fire District, No. Mixed Employer expanded its Basic Life Support 9236-A (Wash. PERC 2007) responses. While employer not required to bargain over decision to implement expansion, increase from 30 to 140 runs a year represented “a substantial increase in workload” that was mandatorily negotiable. Village of Lombard, 15 PERI No Employer proposed that union waive its ¶2007 (Ill. SLRB General right to file challenges in arbitration to Counsel 1999) suspensions and discharges. Layoffs Oak Park Public Safety Officers No Combined police/fire union sought to Association v. City of Oak Park, refer to binding arbitration continuation of 745 N.W.2d 527 (Mich. App. contract language providing that no layoffs 2007) of public safety officers could occur until non-public safety officers or civilians who perform police and fire duties were laid off. Adverse impact on other bargaining units made current contract impermissible.

26 — COLLECTIVE BARGAINING CASE NAME MANDATORY DESCRIPTION Light Duty City of Asbury Park, PERC No. Mixed Employer refused to arbitrate grievance 2009-66 (N.J. PERC 2009) challenging implementation of modified duty policy. Decision to implement policy not mandatory for bargaining, though impacts of the decision on employees were mandatorily negotiable. City of Waterbury, 10 NPER Yes While mandatory, no showing of change in CT-19005 (Conn. SBLR 1987) past practice.

Township of Cherry Hill, 20 Yes Proposal for method of allocation of light- NJPER ¶25071 (N.J. PERC duty assignments, and provision of medical 1994) benefits and reimbursement for medical expenses for employees on assignment. Meal Periods State Employment Relations Yes Employer unilaterally converted paid meal Board v. Pierce Township, 19 periods to unpaid periods during pendency OPER 1169 (Ohio SERB 2001) of union’s petition to represent fire department employees. Town of Windsor Locks, 16 Yes Unilateral change in practice of allowing NPER CT-25015 (Conn. SBLR civilian dispatchers to leave premises on 1993) meal breaks. Off-Duty Employment Hanover Township, 16 NJPER Yes Implementation of plan for distribution of ¶25039 (N.J. PERC 1994) off-duty employment opportunities. Opinion of the Attorney General, No Contract provision forbidding joining PEB ¶45,456 (Mich. 1988) National Guard. Overtime City of Clarkston, Decision 3286 Yes Rate of pay for overtime work. (Wash. PERC 1989) City of Cohoes, 26 PERB ¶4550 Yes Proposal requesting overtime compensation (N.Y. PERB Dir. 1993) for firefighters denied assignment through City’s error or omission. City of Lackawanna, 28 PERB Yes City unilaterally stopped paying four-hour ¶4690 (N.Y. PERB ALJ 1995) minimum pay to firefighters called to work or scheduled to work outside their normal work schedule. Minimum payment was not illegal gift of public funds. City of Lewiston v. Local No. Yes Proposal to prohibit the City from 785, 629 A.2d 50 (Me. 1993) temporarily increasing the number of vehicles it operates after commencement of a shift for the purpose of avoiding payment of overtime.

COLLECTIVE BARGAINING — 27 CASE NAME MANDATORY DESCRIPTION City of Pasco, Decision 9181 Yes Employer initiated change in past practice (Wash. PERC 2005) concerning use of compensatory time off. When Union filed unfair labor practice complaint in protest, employer eliminated compensatory time off. County of Hudson, 20 NJPER Yes Proposal which would require minimum ¶25041 (N.J. PERC 1994) pay of four hours for court appearances. Dublin PFF, Local 1885 v. Yes Assignment of overtime. Valley Com. Serv. Dist., 119 Cal. Rptr. 182 (App. 1975) Village of Elk Grove, S-DR-97- No Employer’s proposal that workday be 24¼ 03 (Ill. SLRB Gen. Counsel, hours and that meal and sleep period not be 1997) counted as hours worked, Village of Lombard, 15 PERI Yes Proposal for procedures for assigning ¶2007 (Ill. SLRB Gen. Coun. overtime. 1999) Wausau FFA, PEB ¶45,450 No Proposal to exclude sleep and mealtime (Wis. ERC 1988) from “hours worked.” Parity Clauses City of Perth Amboy, 24 NJPER Yes Proposal that negotiations for firefighters ¶29006 (N.J. PERC 1997) would reopen if benefits were increased for non-bargaining unit employees. Commission concluded that proposal did not improperly seek parity where contract was only reopened, and benefits did not automatically increase for unit members. Edison Township, 23 NJPER Yes Parity proposal which only mandated ¶28235 (N.J. PERC 1997) reopening of contract, not automatic wage increase. Edison Township, 23 NJPER No Proposal requiring parity in salary and ¶28236 (N.J. PERC 1997) benefits between police superior officers and fire superior officers. Local 1219, IAFF v. Connecticut No Clause tied right to receive overtime to Labor Relations Board, 370 A.2d practices in police department. 952 (Conn. 1976) Pay Practices City of Orlando, LAIG 3131 No Lowering of pay rates for non-bargaining (Vause, 1982) unit personnel. City of Troy, 28 PERB ¶4593 Yes City unilaterally changed from weekly to (N.Y. PERB Director 1995) bi-weekly payroll period and “lagged” one week’s pay for firefighters.

28 — COLLECTIVE BARGAINING CASE NAME MANDATORY DESCRIPTION Local 2787 v. City of Montpelier, Yes Change from weekly to bi-weekly pay 643 A.2d 838 (Vt. 1993) periods; union did not demand to bargain over change for at least 13 months after employer announced intended change. North Hudson Regional Fire and Yes A new regional consolidation of fire Rescue, 26 NJPER ¶31064 (N.J. and rescue units of several New Jersey PERC Dir. 2000) municipalities attempted to modify the pay dates of bargaining unit members. Pensions City of East Providence v. Local Yes Benefits provided by City-managed 850, IAFF, 366 A.2d 1151 (R.I. retirement system. 1976) City of Erie, Case No. PF-D-3- Yes City enacted ordinance which rescinded W (Pa. LRB 2008) a pension plan option known as “partial lump sum distribution option.” Since pensions are a mandatory subject of bargaining under Pennsylvania law, employer may not unilaterally change benefit levels. City of Flint, 18 MPER ¶15 Yes Employer enacted ordinance change to (Mich. ERC 2005) limit the number of pay periods used to compute the final average compensation for purposes of computing pension benefits. City of Manistee v. Local 645, Yes Proposal to establish level of pension IAFF, 2 MPER ¶20022 (Mich. benefits. App. 1989) City of New London, 16 NPER Mixed Unilateral reduction of City’s pension CT-25054 (Conn. SBLR 1994) contribution; City did not require increased contribution from unit members. No evidence that reduction would affect benefit levels. City of New London, 16 NPER Mixed Unilateral removal of some retirees from CT-25054 (Conn. SBLR 1994) pension trust fund in order to pay them future pensions from general fund; no showing that action affected stability of trust fund, and retirees are not “employees” within scope of collective bargaining law. IAFF, Local 713 v. City of No Change in pension structure without Easton, PEB ¶45,655 (Pa. LRB change in benefit levels. 1989) IAFF, Local 1162 v. City of No State law preempts negotiability of pension Daytona Beach, 25 FPER plan. ¶30272 (Fla. Cir.Ct. 1999)

COLLECTIVE BARGAINING — 29 CASE NAME MANDATORY DESCRIPTION Mt. Clemens FF, Local 838 v. Yes Change in practice as to whether sick leave City of Mt. Clemens, 2 P.B.C. was included in final average salary. 20,128 (Mich. App. 1975) Wilkes-Barre Township, 878 Yes Employer unilaterally enacted ordinance A.2d 977 (Pa. Cmwlth. 2005) changing the computation of pension benefits so that vacation and sick leave cashout would not be considered in computing the monthly pension. The Court found that local ordinances “may not be used as a guise” to avoid bargaining obligations. Pension Contributions City of Easton v. Local 713, Yes Unilateral revision of employer’s pension IAFF, 20 PPER ¶20098 (Pa. contribution. LRB 1989) City of New London, 16 NPER Mixed Unilateral reduction of City’s pension CT-25054 (Conn. SBLR 1994) contribution; City did not require increased contribution from unit members. No evidence that reduction would affect benefit levels. Portland FFA, Local 43 and City Yes Proposal that employer pay employee’s of Portland, PEB ¶45,398 (Or. required retirement contribution. ERB 1988) Performance Evaluations Pierce County Fire District, Mixed Decision to implement evaluations Decision 4146 (Wash. PERC not negotiable; effect of evaluations is 1992) negotiable. Toledo Firefighters Association v. No Implementation of informational City of Toledo, 17 OPER ¶1377 performance appraisal system that had no (Ohio SERB 2000) impact on employees’ terms and conditions of employment. Physical and Psychological Conditions City of Newark, PERC No. Yes Employer began using new form that 2009-41 (N.J. PERC 2009) required employees filing workers’ compensation claims to complete a form that sought additional medical information. Issue not preempted by workers’ compensation law, which did not require the employer to seek the particular information. Physical Examinations City of Cohoes, 25 PERB ¶3042 Yes Unilateral selection of procedure for testing (N.Y. PERB 1992) firefighters for tuberculosis. City of Lockport, 26 PERB Yes City unilaterally established procedures for ¶4563 (N.Y. PERB ALJ 1993) physical examinations for firefighters who used respirators.

30 — COLLECTIVE BARGAINING CASE NAME MANDATORY DESCRIPTION Physical Fitness Charter Township of Meridian, Yes Fire Department unilaterally implemented 9 MPER ¶27057 (Mich. ERC physical agility test. 1996) City of Cedar Rapids, 16 NPER Yes Implementation of physical performance IA-24002 (Iowa PERB 1993) test regulation. City of Tukwila, Decision 2434 Yes Provision of physical fitness equipment for (Wash. PERC 1986) members of bargaining unit. IAFF, Local 101 v. City of Yes Implementation of new physical. Duluth, 25 GERR 927 (Minn. Dist. Ct. 1987) IAFF Local 3340 v. City of Yes Employer placed an air base gymnasium off Klamath Falls, 12 PECBR 901 limits for physical fitness training. (Or. ERB 1991) Utica Professional Firefighters Yes Unilateral implementation of requirement Association Local 32, IAFF, 32 that firefighters undergo and pass respirator PERB ¶4570 (N.Y. PERB ALJ fitness examinations performed by City- 1999) designated doctors. Choice of doctor as well as methodology, confidentiality and consequences of failing physical examination, including sick leave and its use, were mandatorily negotiable. Political Activity City of Glen Falls, 24 PERB Mixed Work rule prohibiting employees from ¶3015 (N.Y. PERB 1991) simultaneously holding elective office on City Council and working for the City not mandatorily negotiable; rule imposing a broad restriction on outside “political activity” mandatory. Premium Pay Borough of Upper Saddle River, Yes Proposal would allow the parties to agree #2008-22 (N.J. PERC 2007) on future premium pay positions. City of Cohoes, 26 PERB ¶4550 Yes Proposal seeking 10% premium pay for (N.Y. PERB Dir. 1993) firefighters bumped from bid positions due to lack of qualifications of other employees. Privacy Multnomah County, Oregon, No After receiving requests from the media, Case No. UP-18-06 (Or. ERB employer disclosed bargaining unit 2008) members’ sick leave usage, overtime pay and discipline. Since the employer had never before received such requests from the media, there was no “past practice” the employer changed in releasing the information.

COLLECTIVE BARGAINING — 31 CASE NAME MANDATORY DESCRIPTION Promotions Alameda City Firefighters v. City Yes Change in procedures and standards. of Alameda, 21 GERR 2364 (Cal. App. 1983) Broadnax v. City of New Haven, No Under Connecticut law, ultimate decisions 932 A.2d 1063 (Conn. 2007) with respect to promotion (as opposed to promotional procedures) are not mandatory for collective bargaining. City of Columbus, 4 OPER 4304 Yes Discontinuance of adding seniority points (Ohio SERB 1987) to examination scores. City of Elmira and Local 709, 22 Yes Unilateral implementation of written PERB ¶4508 (N.Y. PERB 1989) component to promotional test. City of Hamburg, Case No. PF- Mixed Employer unilaterally changed promotional C-06-54-E (Pa. LRB 2006) standards applying to the amount and proximity of recent discipline that would disqualify an applicant. Where promotional procedures are mandatory for bargaining, promotional standards are not. City of Hartford, PEB ¶44,990 Yes Change in practice of posting of (Conn. SBLR 1987) examination schedules. Edison Township, 23 NJPER Yes Proposal for notice to employees for ¶28235 (N.J. PERC 1997) vacancies, criteria for filling vacancies, posting of promotional list with notice of expiration, and permitting use of seniority as tiebreaker. Salisbury Township, 25 PPER Yes Implementation of new civil service rules ¶25041 (Pa. LRB Hearing and regulations concerning promotional Examiner 1994) procedures and standards. Township of Edison and Local No Criteria for promotion non-negotiable 2883, IAFF, 15 NJPER ¶20038 under state law. (N.J. PERC 1989) Village of Franklin Park, 8 PERI Yes Promotional procedures and standards; ¶2039 (Ill. SLRB 1992) negotiability of promotions proposal was not preempted by a state or local civil service law. Village of Franklin Park, 10 Mixed Proposal to specify testing methods, scoring PERI ¶4004 (Ill. App. 1994) formulas, and component test results. Qualifications Syracuse Firefighters Association, Mixed Administration of respirator certification Local 280 IAFF, 31 PERB testing to firefighters. Past practice existed ¶3025 (N.Y. PERB 1998) of scheduling certification examinations at three-year intervals.

32 — COLLECTIVE BARGAINING CASE NAME MANDATORY DESCRIPTION Village of Lombard, 15 PERI No Proposal that certain firefighters not ¶2007 (Ill. SLRB Gen Coun. be required to acquire and maintain 1999) paramedic certification.

Residency City of Perth Amboy, 24 NJPER Yes Proposal providing that City’s firefighters ¶29006 (N.J. PERC 1997) were not required to reside within boundaries of city or county.

City of St. Bernard and Local Yes Enactment of residency ordinance. 450, IAFF, 11 NPER OH- 20279 (Ohio SERB 1989)

City of Schenectady and Local Mixed Residency requirement non-negotiable; 28, IAFF, 22 PERB ¶4527 appeal procedures negotiable. (N.Y. PERB 1989) County of Cook v. Illinois LRB, Yes Employer refused to bargain over proposals 807 N.E.2d 613 (Ill. App. dealing with residency. Court held that 2004) residency is not a matter of inherent managerial authority. IAFF, Local 2819 v. Kitsap Yes Unilateral adoption of residency County, Decision 2872 (Wash. requirement. PERC 1988) Local 839, IAFF v. Wilkinsburg Yes Employer unilaterally imposed residency Borough, 31 PPER ¶31036 (Pa. requirement for applicants for firefighter LRB 2000) positions. Retirement City of Detroit, 21 GERR 685 Yes Composition of retirement boards. (Mich. App. 1982) City of Detroit, Case No. C06 No Employer enacted ordinance changing B-023 (Mich. ERC 2007) amortization period for pension plan. State law completely delegated to the City the right to set the amortization period. Rules and Regulations City of Cortland, 29 PERB Yes A fire union’s proposal that all verbal ¶3037 (N.Y. PERB 1996) administrative orders be confirmed in writing within four days of issuance. IAFF, Local 1803 v. City of Yes Enactment of anti-nepotism policy. Reading, 31 PPER ¶31057 (Pa. LRB 2000)

COLLECTIVE BARGAINING — 33 CASE NAME MANDATORY DESCRIPTION North Hudson Regional Fire & No New rule banned employees from Rescue, No. 2010-3 (N.J. PERC surreptitiously tape recording other 2009) employees. Commission concluded that surreptitious recording could chill communication between employees and their supervisors and co-employees, and that the employer’s interest in establishing a policy banning surreptitious recording outweighed the employees’ interest in recording hostile or illegal statements by supervisors and co-employees. Local 1803, IAFF v. City of Yes Adoption of complete personnel code Reading, 31 PPER ¶31057 (Pa. containing provisions regarding, among LRB 2000) others, residency, smoking, physical examination and drug testing for new applicants, appointment to positions and evaluations of work performance, injury on duty, FMLA provisions, and numerous other topics. City of Newark, 32 NJPER ¶47 Yes Union proposed continuation of contract (N.J. PERC 2006) clause allowing it to file grievances concerning new rules and regulations. Under New Jersey law, clause could only apply to rules and regulations dealing with mandatorily negotiable subjects. Safety City of Detroit v. Detroit No Arbitrator awarded Union’s proposal that a Firefighters Association, 2004 joint health and safety committee had the WL 513663 (Mich. App. 2004) ability to make decisions relating to the safety of personal firefighter equipment and apparel and to safe working conditions. While safety issues are mandatory for bargaining, a process which vested a joint management-labor committee with the ability to make binding decisions not reviewable by the courts created a non- negotiable process in violation of the obligation to bargain in good faith. City of Perth Amboy, 24 NJPER Yes Grievance seeking declaration that ¶29148 (N.J. PERC 1998) City’s violation of fireground procedures compromised firefighters’ safety contrary to contractual health and safety provisions. Shift Scheduling City of Connellsville, 22 PPER Yes Reduction of employees’ regular workweek ¶22016 (Pa. LRB Hearing from 53 to 48 hours, thereby eliminating Examiner 1990) overtime for employees who previously worked 56-hour weeks.

34 — COLLECTIVE BARGAINING CASE NAME MANDATORY DESCRIPTION City of Lakewood v. State Emp. Yes Change from two-platoon to three-platoon Rel. Bd., 584 NE.2d 70 (Ohio system. App. 1992) City of Newark, PERC No. No Employer changed the schedule for closing 2006-30 (N.J. PERC 2005) fire companies so that the schedule corresponded with the work schedule of firefighters rather than that of fire officers. As a result, fire officers were required to report to a different firehouse once in every eight-day cycle. In the absence of evidence that reassigned officers had to share command or perform administrative responsibilities or additional duties, the change not mandatory for bargaining. City of Vineland, 20 NJPER Yes Proposal to include existing 12-hour shift ¶25023 (N.J. PERC 1993) for EMTs in contract. Fire Fighters Union, Local 1186 Yes Number of work hours per week. v. City of Vallejo, 526 P.2d 971 (Cal. 1974) In re: IAFF and City of Merrill, Yes Proposed change from 24-on, 48-off to PEB ¶40,130 (Wis. ERC 1977) 24-on, 96-off. Nazareth Borough, No. PF-C- Yes Employer unilaterally changed officers 08-42-E (Pa. LRB 2009) from a 12-hour shift schedule to an eight- hour rotating shift. Employer’s defense that the 12-hour shift was “experimental” rejected where shift lasted longer than unsigned memorandum of agreement describing the shift. Orono FFA, Local 3106 v. Town Yes Unilateral alteration of shift of individual of Orono, PEB ¶45,815 (Maine employee. LRB 1989) State Emp. Rel. Bd. v. City of Yes Change from 24-hour to 10 and 14-hour Bedford Heights, 534 N.E.2d shifts. 115 (Ohio App. 1987) Town of Bellingham, 450 Mass. Yes Interest arbitration panel ordered that work 1011 (Sup. 2007) schedules be changed to 24-hour shifts. Township of Teaneck and Teaneck Yes Proposal to allow early relief without PFOA, 14 NJPER ¶19127 (N.J. management approval. PERC 1988) Township of Teaneck v. Teaneck Arbitrator’s Award Interest arbitrator awarded firefighters 24- FMBA, 802 A.2d 569 (N.J. Enforced on, 72-off shift. Sup. 2002) Village of Royal Palm Beach, Yes Change from 24-hour workday to 22-hour, 14 FPER ¶19304 (Fla. PERC 40-minute workday. 1988)

COLLECTIVE BARGAINING — 35 CASE NAME MANDATORY DESCRIPTION Shift Trades City of Cedar Rapids, 16 NPER Yes Unilateral implementation of limitations on IA-24002 (Iowa PERB 1993) eligibility for shift trades and establishment of procedures for shift trades. County of Mercer, Case No. SN- Yes Employer unilaterally implemented 2006-037 (N.J. PERC 2006) restrictions on shift exchanges. Under previous practice, matter ruled to be mandatory for bargaining. IAFF, Local 2819 v. Kitsap Yes Unilateral cancellation of authorized shift County FPD, Decision 3015 trades. (Wash. PERC 1989) Village of Oak Park, 9 PERI Yes Unilateral change in past practice whereby ¶2019 (Ill. SLRB 1993) firefighters could trade scheduled time off into any of seven time slots; under new practice, two of the seven available time-off slots were restricted to non-bargaining unit members. Sick Leave City of Buffalo and Buffalo PFA, Yes Proposal for creation of sick leave bank. 20 PERB ¶4576 (N.Y. PERB 1987) City of Cedar Rapids, 16 NPER Yes Implementation of new sick leave regulation IA-24002 (Iowa PERB 1993) requiring employee to obtain doctor’s certificate at employee’s expense. City of Circleville, SERB 2005- Yes Pending interest arbitration decision on 007 (Ohio SERB 2005) the issue, the employer temporarily halted program whereby firefighters could sell back sick leave. The remedy included the reinstatement of sell-back program and payment of interest. City of New Jersey City, 29 No Employer changed its sick leave policy to NJPER ¶33 (N.J. PERC 2003) require a doctor’s note for firefighters who had received a written reprimand. City of Pasco, Decision 9337 Yes Employer submitted to interest arbitration (Wash. PERC 2006) a proposal limiting use of sick leave where injuries were covered by third- party employers. Union’s failure during negotiations and mediation to give employer notice that it believed proposal was not mandatory is not necessarily fatal to Union’s case. IAFF, Local 2622 v. City of Yes Change in practice of allowing use of sick Jacksonville Beach, 14 FPER leave without regard to manning levels; ¶19241 (Fla. PERC 1988) union waived right to bargain.

36 — COLLECTIVE BARGAINING CASE NAME MANDATORY DESCRIPTION Monroe County Airport Yes Unilateral revision of attendance policy and Firefighters Association, IAFF sick leave program. Local 1636, 32 PERB ¶4652 (N.Y. PERB ALJ 1999) New Hampshire Department Yes After contract expired, employer of Safety, 921 A.2d 924 (N.H. unilaterally changed method of calculation 2007) of sick leave and vacation, reducing some leave accruals by as much as three days a year. New Jersey Transit Corporation, Yes Employer refused to arbitrate grievance PERC No. 2006-91 (N.J. PERC challenging change in “doctor slip” 2006) requirements under sick leave policy. Sarasota-Manatee Professional Yes Unilateral change in manner in which Firefighters and Paramedics, sick, vacation and compensatory leave was Local 2546, 23 FPER ¶28192 deducted from employees’ leave banks. (Fla. PERC 1997) Employer had previously deducted leave on hour-for-hour basis, even where leave was credited at time and one-half. Smoking Policy Borough of Ellwood City, 941 No Employer enacted ordinance banning A.2d 728 (Pa. Cmwlth. 2008) smoking in all City buildings, vehicles, or equipment. Not mandatory for bargaining because the rule applied not just to employees, but to citizens. City of Middletown, 25 GERR Yes Ban on on-duty smoking; City need not 1311 (Conn. BLR 1987) bargain decision to hire only non-smokers. Commonwealth of Pennsylvania, No Landlord of building leased by employer 34 PPER ¶91 (Pa. LRB ALJ banned smoking throughout the building. 2003) Employer had no duty to bargain since lease granted landlord all rights to site management. Dover PFFA, Local 1312, 23 Yes Imposition of ban against on- and off-duty GERR 1224 (N.H. PELRB smoking. 1985) IAFF, Local 2819 v. Kitsap Yes Restriction of on-duty use of tobacco. County, Decision 2872 (Wash. PERC 1988) Patterson Air Force Base, Ohio Yes Regulation of smoking in the workplace. and IAFF Local F-88, 55 FLRA 968 (FLRA 1999) Staffing City of Brookfield v. Wisconsin No Decision to lay off one firefighter. Employment Relations Comm’n, 275 N.W.2d 723 (Wis. 1979)

COLLECTIVE BARGAINING — 37 CASE NAME MANDATORY DESCRIPTION City of Cocoa, 14 FPER ¶19311 No Decision to reduce staffing levels. (Fla. PERC 1988) City of Detroit, 7 MPER ¶25055 Mixed Proposal for minimum staffing. (Mich. App. 1994) City of Erie v. IAFF, Local 293, Yes Number of firefighters per engine and 459 A.2d 1320 (Pa. Cmwlth. truck. 1983) City of Fulton, 30 PERB ¶3012 Yes Proposal that firefighters be paid lump sum (N.Y. PERB 1997) of $200 per shift in event staffing level fell below certain number of employees. City of Long Beach, 14 NJPER No Contract provision concerning setting ¶23086 (N.J. PERC 1992) minimum staffing requirements for particular fire apparatus. City of Manistee and Local 645, Yes Proposal requiring on-duty force of at least IAFF, 2 MPER ¶20022 (Mich. three employees. ERC 1989) City of Newark, 32 NJPER 47 No Union proposed continuation of contract (N.J. PERC 2006) clause requiring the City to “equalize tour personnel department-wide” in the event of sickness or vacation. Under New Jersey law, staffing levels are not mandatory for bargaining. City of Newark, 32 NJPER 23 Yes Employer attempted to breach a (N.J. PERC 2006) settlement agreement it reached on an earlier grievance. Under the terms of the settlement agreement, the employer was required to fill vacancies, including those from temporary absences, with a fire officer of at least equal rank. City of Newport v. Newport Yes Employer changed staffing levels from Professional Firefighters Union, 36 to 39 firefighters, impacting the IAAF Local 45, 2004 WL opportunities of existing firefighters to 2013290 (Ky. App. 2004) work unscheduled overtime. City of Schenectady Firefighters No Employer lowered from three to two the IAFF Local 28 and City of number of advanced life support units in Schenectady, 31 PERB ¶3019 service. Change represented proper exercise (N.Y. PERB 1998) of city’s managerial right to assign and direct personnel. City of Syracuse, 15 NPER NY- Mixed Interest arbitration award requiring 17539 (N.Y. Sup. Ct. 1992) mandatory filling of vacancies. City of Syracuse, 27 PERB Mixed Proposal for premium pay for work ¶4527 (N.Y. PERB ALJ 1994) performed when staffing at low levels and to assign specific officer to fill a vacancy. City of Trenton and Local 2701, Yes Unilateral implementation of manual which IAFF, 1 MPER ¶19072 (Mich. changed manning per station. App. 1988)

38 — COLLECTIVE BARGAINING CASE NAME MANDATORY DESCRIPTION City of West St. Paul, 2 P.B.C. No Firefighters per tour of duty. 20,314 (Minn. Dis. Ct. 1976) City of Westland, PEB ¶44,957 Yes Reduction to less than 15 firefighters per (Mich. ERC 1987) shift. Fire Fighters Union, Local 1186 Yes Proposal to maintain present staffing levels. v. City of Vallejo, 526 P.2d 971 (Cal. 1974) IAFF, Local 314 v. City of Yes Proposal governing number of firefighters Salem, 684 P.2d 605 (Or. App. at fire scene. 1984) IAFF, Local 589 v. Helsby, 399 No Number of firefighters per piece of N.Y.S.2d 334 (N.Y. A.D. 1977) equipment. IAFF, Local 669 v. City of No Number of firefighters. Scranton, 429 A.2d 779 (Pa. Cmwlth. 1981) IAFF, Local 1052 v. PERC, 778 Yes Employees per piece of fire equipment. P.2d 32 (Wash. 1989) IAFF, Local 1604 v. City of No Increase in budgeted lieutenant positions. Bellevue, Decision 3343-A (Wash. PERC 1990) Jackson Firefighters’ Association v. No Interest arbitrator’s award containing City of Jackson, 575 N.W.2d 823 minimum staffing provision setting (Mich. App. 1998) number of firefighters on duty per shift. Evidence failed “to demonstrate a causal nexus between the City’s proposed reduction in daily staffing and firefighter safety.” King County Fire District 43, No Employer expanded service population for Case No. 9236 (Wash. PERC basic life support transport. Held to be ALJ 2006) management prerogative. Lake Mohican Professional No Employer unilaterally modified its policy Firefighters Association, U-26743 with respect to the dispatch of a backup (N.Y. PERB 2008) vehicle in response to certain calls. PERB decided the new practice was a “slight change related to deployment of staff” as opposed to a safety issue. North Hudson Regional Fire and No Proposal to establish firefighter/captain Rescue, 26 NJPER ¶31075 (N.J. ratio in emergencies. PERC 2000) Philadelphia Fire Fighters Union, Mixed While employer had management right to 36 PPER ¶62 (Pa. LRB ALJ close four ladder companies, it was required 2005) to bargain over the impact of that decision. Portland Firefighters’ Ass’n, Local No Proposal to designate minimum manning 740 v. City of Portland, 478 per shift. A.2d 297 (Me. 1984)

COLLECTIVE BARGAINING — 39 CASE NAME MANDATORY DESCRIPTION Salem Fire Fighters, IAFF Local Yes Union proposed continuation of contract 283, No. 2008-ULP-09-0380 clause calling for minimum staffing of four (Ohio SERB 2009) firefighters per shift. Board does not decide whether such a staffing clause itself would be mandatory since Ohio law makes mandatory for bargaining any proposal calling for the renewal of an existing contract clause. Southwest Florida Professional Yes Unilateral reduction of firefighters’ shifts Firefighters, Local 1826, 23 from ten to nine without providing union FPER ¶28209 (Fla. PERC with notice and reasonable opportunity 1997) to negotiate over impact of that change. Language of management rights clause did not clearly cover instant dispute. Town of Narragansett v. IAFF, Yes Staffing levels per station. Local 1589, 380 A.2d 521 (R.I. 1977) Town of New Haven, 16 NPER Yes Unilateral reduction in seven-person CT-25007 (Conn. SBLR 1993) firefighter platoons to five- or six-person platoons without bargaining secondary workplace safety impacts of decision. Village of Maywood, 10 PERI Yes Employer changed minimum manning ¶2045 (Ill. SLRB 1994) provision for firefighters more than 30 days after expiration of prior collective bargaining agreement; defense of deteriorating financial condition of City rejected absent evidence of actual emergency. Step Increases City of Cocoa, 14 FPER ¶19311 Yes Termination of step increases after contract (Fla. PERC 1988) expired. City of Delray Beach, 20 FPER Yes Unilateral discontinuance of merit pay ¶25130 (Fla. App. 1994) increases after expiration of collective bargaining agreement. IAFF, Local 2266 v. City of Yes Termination of step increases after contract St. Petersburg Beach, 13 FPER expired. ¶18116 (Fla. PERC 1987) Subcontracting City of Anacortes, Decision Yes Initiation of a “student firefighter” 6863-B PECB (Wash. PERC program staffed by volunteers. Commission 2001) determined that program significantly impaired reasonably anticipated work opportunities for full-time firefighters.

40 — COLLECTIVE BARGAINING CASE NAME MANDATORY DESCRIPTION City of Auburn, Decision 10062 Yes Employer unilaterally entered into contract (Wash. PERC 2008) with American Medical Response to provide basic life support patient transport to local hospitals. Since employer had legal discretion to continue providing basic life support and patient transport to local hospitals with bargaining unit employees, its decision to subcontract was not “legal necessity” and was subject to bargaining. City of Belvidere, 10 PERI Yes Employer contracted with a private ¶2042 (Ill. SLRB 1995) ambulance company to provide paramedic services previously performed by members of the bargaining unit. City of Cedar Rapids, 16 NPER Yes Hiring of two part-time employees to fill IA-24002 (Iowa PERB 1993) position vacated by alarm operator. City of Cohoes, 26 PERB ¶4550 Mixed Proposal to require City to assign (N.Y. PERB Dir. 1993) firefighters to pumping duties ordinarily performed by public works employees. City of Iron Mountain, 19 Yes Without bargaining with firefighters’ MPER 29 (Mich. ERC 2006) union, employer cross-trained and appointed nine police officers to the fire department. Transfer of work outside of bargain unit mandatory for bargaining. City of Manistee v. Local 645, Yes Proposal to ban all subcontracting to IAFF, 2 MPER ¶20022 (Mich. entities outside fire department. App. 1989) City of Newark and Local 1860, Yes Proposal that would prevent replacement of IAFF, 14 NJPER ¶19092 (N.J. bargaining unit employees with non-unit 1988) employees. City of New Brunswick, 23 Yes Assignment of non-bargaining unit rank- NJPER ¶28162 (N.J. PERC and-file firefighters to replace absent 1997) superior officers. City’s interest in saving overtime cost of calling in superior officers did not outweigh interest of superior officers in preserving bargaining unit work. City of Schenectady Firefighters Mixed Employer transferred first responder IAFF Local 28 and City of emergency medical services from Schenectady, 31 PERB ¶3019 firefighters’ unit to private ambulance (N.Y. PERB 1998) service. Performance of transport functions in past by ambulance company was sufficient to defeat union’s claim of exclusive right to perform work. City of York and Local 627, 19 Mixed Assignment of volunteers to fill air PPER ¶19307 (Pa. LRB 1988) tanks negotiable; practice had been for bargaining unit and non-unit employees to share duties in past.

COLLECTIVE BARGAINING — 41 CASE NAME MANDATORY DESCRIPTION County of Ingham and Ingham No Unilateral elimination of Emergency County Sheriff’s Dept., 7 MPER Services Coordinator position and assigning ¶25020 (Mich. ERC 1994) of duties to new position; no impact on bargaining unit because no employee lost pay or benefits or was laid off. Fairview Fire District, 28 PERB No Assignment of 10% of dispatching duties ¶4608 (N.Y. PERB ALJ 1995) from firefighters to civilian dispatchers; change had only de minimis impact on union because no loss of employment, benefits, or size of bargaining unit. Monroe Township Fire District No Transfer of duties of lieutenant to newly- No. 2, 24 NJPER ¶29165 (N.J. created supervisory title of executive PERC 1998) director/captain. Employer had managerial right to reorganize manner in which it delivered government services. Regents of the University of Yes Unilateral change in hiring policy by hiring California, 22 PERC ¶29022 students to perform light duties under (Cal. PERB ALJ 1997) different working conditions. Students worked 5/8 shift instead of 24-hour shift and received no fringe benefits. Rhode Island SLRB and City of Yes Subcontracting of dispatch duties. East Providence, 24 GERR 222 (R.I. SLRB 1985) Truckee Meadows Fire Protection Yes Proposal that District not transfer entire District v. IAFF, Local 2487, operations without agreement of successor 849 P.2d 343 (Nev. 1993) employer to assume collective bargaining agreement. Village of Elk Grove, S-DR-97- No Proposal that new or existing positions in 03 (Ill. SLRB General Counsel Inspectional Services Division be filled by 1997) bargaining unit personnel; inspectors were excluded from bargaining unit. Terminal Leave Borough of Hawthorne, PERC Yes Employer unilaterally changed policies No. 2008-45 (N.J. PERB 2008) with respect to the ability to use terminal leave prior to retirement. PERC found that argument concerning propriety of terminal leave “should be made to an arbitrator.” Timeliness Violation City of Alhambra, No. 2036-M Undecided Employer unilaterally changed its policy (Cal. PERB 2009) regarding firefighter duties and driver’s license requirements. Union failed to file unfair labor practice complaint within the six-month time limit.

42 — COLLECTIVE BARGAINING CASE NAME MANDATORY DESCRIPTION Training City of Cohoes, 30 PERB ¶4586 No Proposal that members attend in-house (N.Y. PERB ALJ 1997) training sessions in lieu of their regular duties. City of Cohoes, 31 PERB ¶3020 No Proposal that “all in-house training shall (N.Y. PERB 1998) be attended by member in lieu of regular duties.” Proposal held to impermissibly restrict employer’s ability to assign regular job duties. City of Newark, No 2006-44 No Proposal that would control whether drills (N.J. PERC 2005) would be held outside during inclement weather. Employer held to have the right to drill employees in any weather, given that fires must be fought in all conditions. St. Paul Fire Fighters, Local 21 Mixed Decision to require training not negotiable; v. City of St. Paul, 336 N.W.2d effects of decision such as timing and 301 (Minn. 1983) premium pay are negotiable. Transfers City of Newark, 32 NJPER 47 Mixed Union proposed continuation in contract (N.J. PERC 2006) of clause requiring the employer to “consult with the union” concerning transfers, and requiring the employer to “give consideration to such factors as qualifications, seniority, and the good of the Department.” Commission found that “consultation” requirement is mandatory for bargaining since procedures related to promotions are mandatory under New Jersey law. However, since the standards for transfer are not mandatory for negotiation, the remainder of the clause struck down. City of Newark and Local 1860, Yes Proposal that would provide for lateral IAFF, 14 NJPER ¶19092 (N.J. transfers to be made on basis of seniority if 1988) qualifications equal. City of Trenton, 31 NJPERC No Grievance challenging disciplinary transfer. ¶27 (N.J. PERC 2005) Recently-enacted New Jersey state law that allows for grievance arbitration over “minor” disciplinary penalties does not extend to allowing arbitration of disciplinary transfers. North Hudson Regional Fire and No Labor organization sought arbitration of Rescue, 26 NJPER ¶31075 (N.J. grievance challenging transfer from one fire PERC 2000) company to another.

COLLECTIVE BARGAINING — 43 CASE NAME MANDATORY DESCRIPTION Uniforms AFGE and Dept. of Navy, 25 Yes Proposal that T-shirts and baseball caps FLRA No. 85 (1987) be allowed in station and on field crew positions. Auburn Firefighters Ass’n, Local Yes Discontinuance of uniform allowance. 797, PEB ¶45,001 (Me. LRB 1987) Burlington FFA v City of Yes Change in practice of allowing casual attire Burlington, 457 A.2d 642 (Vt. in station. 1983) King County Fire District 11, Yes Employer unilaterally implemented new Decision 4538-A (Wash. PERC policy restricting the wearing of the 1994) employer’s insignia off duty. North Olmsted Fire Fighters, No New requirement that firefighters wear IAFF Local 1267, 14 OPER uniforms for off-duty training in order to ¶1635 (Ohio SERB 1997) receive overtime pay; requirement had only minimal impact on employees’ terms and conditions of employment. Union Business City of Albany v. Helsby, 1 Yes Time off for union activities. P.B.C. 10,022 (N.Y. A.D. 1975) City of Easton v. Local 713, Yes Moving of fire union’s office to more IAFF, 20 PPER ¶20014 (Pa. cramped quarters. LRB Hearing Examiner’s Decision 1988) City of Westland v. Local 1279, Yes Change in previous practice of paying 1 MPER ¶19152 (Mich. ERC overtime for travel time to and from union 1988) conferences. Local 979 v. City of Auburn, 11 No Union leave for other than local bargaining NPER ME-20003 (Me. LRB unit purposes. 1989) Township of Plainsboro, PERC Yes Employer refused to arbitrate grievance No. 2009-42 (N.J. PERC 2009) challenging removal of materials from union’s bulletin board. Contract allowed removal of materials that were “obscene or offensive,” and factual issue existed as to whether e-mails fell in that category. Westmoreland County, Case No After contract expired, employees changed No. PERA-C-08-269 (Pa. LRB their labor representative. Employer not 2009) obligated to continue dues deductions called for in prior contract with former representative.

44 — COLLECTIVE BARGAINING CASE NAME MANDATORY DESCRIPTION Vacation Benefits City of Brigantine, PEB ¶45,895 Yes Shift assignment changes affecting vacation (N.J. PERC 1989) selection. City of Okmulgee, 124 LA 423 Yes Employer unilaterally issued handbook (Walker, 2007) containing policy for new vacation leave buy-back policy. Since the policy directly affected compensation, it was mandatory for bargaining. City of Seattle, Decision 9173 Yes City increased minimum staffing per (Wash. PERC 2005) shift, resulting in decreased vacation opportunities for employees. City of Yakima, Decision 3564- Yes Scheduling of leave time and use of sick A (Wash. PERC 1991) leave during vacation. IAFF, Local 1489 v. City of Yes Change from 40-hour to 56-hour basis Roseburg, PEB ¶45,272 (Or. of computing vacation pay-off; defense of ERB 1988) mistake correction rejected. Portland FFA, Local 43 v. City Yes Number of firefighters allowed to take of Portland, 751 P.2d 770 (Or. vacation per shift. 1988) Vehicles State of Illinois, 13 PERI ¶2014 Yes Issuance of new restrictions on take-home (Ill. SLRB 1997) cars. Wage Issues City of Fresno v. People ex rel No Salary formula in city charter not a Fresno Firefighters, IAFF Local mandatory subject of bargaining since it 753, 83 Cal. Rptr. 2d 603 (App. merely set the City’s initial bargaining 1999) position. City of Newark, PERC No. Yes Employer refused to process to arbitration 2008-60 (N.J. PERC 2008) grievance seeking payment of hazardous duty stipends to firefighters while they were on sick leave status. IAFF, Local 754 v. City of Yes Change from practice of averaging hours Tampa, 14 FPER ¶19117 (Fla. worked over six-week period to calculate PERC 1988) bi-weekly paychecks. IAFF, Local 979 v. City of Yes Unilateral implementation of wage increase. Auburn, 11 NPER ME-20003 (Me. LRB 1989) Ponce Inlet Professional Unresolved Employer unilaterally imposed new Firefighters, Local 4140, 28 pay plan based on total compensation FPER ¶33287 (Fla. PERC study. Union merely protested that 2002) implementation of pay plan was illegal, but never formally demanded to bargain over issue.

COLLECTIVE BARGAINING — 45 CASE NAME MANDATORY DESCRIPTION Toms River Township, Case No. Yes Employer took the position that it had the 2008-30 (N.J. PERC 2007) unilateral right to place new employees anywhere in the salary structure. Commission held proposal dealt with compensation issue that “directly affects employee welfare.” Town of Teaneck, 29 NJPER Yes Interest arbitration award calling for ¶132 (N.J. 2003) premium pay for emergency medical technicians. Volusia County Fire Fighters Yes County unilaterally implemented wage Association, 106 LRP 29824 adjustment of eight percent for all (Fla. PERC 2006) bargaining unit employees and doubled paramedic premium pay. Winter Springs Professional Yes Employer unilaterally imposed freeze Firefighters Association, 29 FPER on merit pay increase after expiration of P 167 (Fla. PERC 2003) contract. Work Contracts Paul Coulombe and South Yes Condition-of-employment agreements Portland Prof. Firefighters, PEB signed by job applicants. ¶45,185 (Me. LRB 1986) Township of Teaneck, 29 NJPER Yes Interest arbitration ordered change in fire ¶132 (N.J. 2003) suppression work schedule to 24-hour shift. Workers’ Compensation Hazle Township, Case No. C- Yes Employer refused to comply with 07-107-E (Pa. LRB 2007) arbitrator’s award compelling it to make pension contributions for and make whole the sick leave of an employee with an on-the-job injury. Commission finds that employer’s arguments were an “impermissible collateral attack” on the finality of an arbitrator’s opinion. Working out of Classification Oak Park Firefighters Association Yes Change in past practice of allowing and Village of Oak Park, 7 PERI firefighters to work as acting lieutenants; ¶2019 (Ill. SLRB 1993) separate contract with lieutenants’ union required City to change to more restrictive practice.

46 — COLLECTIVE BARGAINING THE DUTY OF FAIR REPRESENTATION OWED BY A LABOR ORGANIZATION TO ITS MEMBERS. By virtue of its status as the exclusive collective bargaining representative of the members of a bargaining unit, a labor organization owes a “duty of fair representation” to the members of the bargaining unit it represents. The duty of fair representation is not found in collective bargaining statutes; rather, it is a creation of the courts, and flows from a labor organization’s status as the exclusive bargaining representative for its members. The duty of fair representation was described by the Supreme Court as follows: “[A]s the exclusive bargaining representative, * * * the Union has a statutory duty fairly to represent all of those employees, both in its collective bargaining * * * and in its enforcement of the resulting collective bargaining agreement.”54 The duty of fair representation does not require a labor organization to provide representation for its members in all cases, nor does it require the arbitration of all grievances.55 Rather, the duty of fair representation is fundamentally proce- The duty of fair dural in nature, and requires only that a union’s conduct in assessing a grievance representation 56 is fundamentally not be “arbitrary, discriminatory, or in bad faith.” Under this formulation of the procedural in duty, a union has the right to make an honest mistake, to make good faith errors nature, and in judgment, or to reach an incorrect conclusion about the chances of prevailing requires only that 57 a union’s conduct in a particular case, all without violating its duty of fair representation. This in assessing a standard gives a union a considerable amount of discretion in evaluating the right grievance not course of action to take for the best interests of the union as a whole.58 As put by a be “arbitrary, court in a case involving a suit by firefighters against the International Association discriminatory, or in bad faith.” of Fire Fighter’s local union in Chicago, the mere negligence of a union is not enough; the union member must show that his union deliberately or arbitrarily failed to properly pursue a claim against the employer.59 Or, as phrased by the Connecticut State Board of Labor Relations, “the inquiry in all fair representation cases must be whether the union’s acts or omissions show hostile discrimination based on irrelevant and invidious considerations or whether they show good faith within a wide range of reasonableness granted bargaining agents.”60 The duty of fair representation allows a labor organization to take action even though the effect is to favor one portion of its bargaining unit over another, so long as the association acts for the “collective good.”61 For example, a labor organization is free to negotiate a contract clause that favors 56-hour employees over 40-hour employees, so long as it has not acted arbitrarily.62 What the duty of fair representation forbids is for the labor organization to make such decisions in providing representation for discriminatory reasons or for other reasons that are not in good faith.63 In determining whether to take action, the association is free to poll its members to determine their views on the matter, 64 and is free to take the following factors into consideration:

COLLECTIVE BARGAINING — 47 • Whether a grievance is “winnable.”65 • Whether a grievance has merit.66 • The legal advice the union receives concerning the grievance.67 • How to evaluate competing bargaining proposals.68 • The balance between the individual’s interests and the collective interests represented by the union.69 • The cost of pursuing the grievance or claim.70 • To grant the employer an extension of time to pursue settlement possibilities.71 • Which of several possible remedies may best resolve the underlying problem.72 • Whether a particular grievance should be settled as part of a multi- grievance package.73 The duty of fair representation is owed to all employees in the union’s col- The duty of fair representation lective bargaining unit, not just those employees who are members of the union. is owed to all Accordingly, a union may be compelled under the law to provide representation to employees in the an employee who has never paid the union any dues, and it is inappropriate for the union’s collective bargaining unit, union to deny such representation on the grounds of the employee’s non-member- 74 not just those ship in the union. In general, the only way an individual employee can directly employees who sue an employer for a violation of a collective bargaining agreement – as opposed are members of to the union proceeding through the grievance procedure – is if the labor organi- the union. zation has breached the duty of fair representation.75 Before bringing a duty of fair representation lawsuit against his union for failing to represent him, however, a firefighter will generally need to show that he affirmatively sought the union’s assistance, and that he was wrongfully denied access to all of the steps in the grievance procedure in the union’s collective bargaining agreement.76 Usually, duty of fair representation claims are subject to short statutes of limitations – often only six months – which mandates that any such claims be quickly brought.77 In some states, duty of fair representation claims can only be brought before a labor board, and not in the courts.78 The duty of fair representation also includes a duty to communicate with members of the union about matters impacting them. For example, if a member files a grievance, the union has an obligation to notify the member how the grievance was resolved. As with other aspects of the duty of fair representation, the union is given discretion in deciding what form such communication should take, and it need not provide a union member with copies of all correspondence and documents relating to a grievance or other dispute.79 Since the duty of fair representation stems from the statutorily-conferred status of the union as the exclusive representative for collective bargaining purposes,

48 — COLLECTIVE BARGAINING the duty of fair representation does not apply to retirees,80 and applies only to matters which are within the scope of collective bargaining and over which the union is the exclusive representative of the employees.81 A union has no obligation to provide representation to employees in matters which are outside the scope of bargaining, such as furnishing a lawyer for civil litigation82 or failing to process a civil service appeal.83 Similarly, a union need not provide representation in cases such as pension or disability claims where others (such as private attorneys), and not just the union, have the opportunity to represent employees.84 On occasions, firefighters have brought successful suits against their unions on the grounds that the union has not followed its own constitution and bylaws. Though such suits do not strictly fall within the scope of the duty of fair representation, they can impose significant liability on a union. For example, in one case, a Milwaukee firefighter who had been fined and ridiculed by his local union after he refused to participate in a strike was held to have a cause of action against his union (he claimed damages of $111,000) for the union’s alleged failure to follow its own constitution and bylaws in calling the strike.85

THE RIGHT NOT TO BE A MEMBER OF A LABOR ORGANIZATION. In those states with statewide collective bargaining laws, the issue of whether an individual can be compelled to join a labor organization is handled in one of three ways: Through practices known as “open shops,” “closed shops,” and “agency shops.” Open shops exist in states with laws providing that no individual can be compelled to join any labor organization. Employees there can freely choose to join or not join the labor organization representing the bargaining unit of which the employee is a member. Closed shops exist in states with laws allowing collective bargaining agreements which provide that an individual must become a member of a labor organization in order to remain an employee. Under such agreements, employees who refuse to join the relevant labor organization can have their employment terminated. Agency shops are a middle ground between closed and open shops. The rationale behind agency shop provisions is that in light of the fact that a labor organization has a legal obligation to represent all eligible employees of its bargaining unit, whether actual union members or not, it is appropriate for employees who are not union members to pay for the costs of securing and maintaining the benefits of a collective bargaining agreement. Under an agency shop, if a labor organization fails to represent an employee solely on the grounds that the employee is a non-member, the labor organization is liable for breach of the duty of fair representation. Agency shop provisions require all employees to either be members

COLLECTIVE BARGAINING — 49 of the labor organization, or to pay to the labor organization their “fair share” of the costs of the negotiation and administration of the collective bargaining agreement.86 Since firefighter labor organizations frequently engage in political, charitable, and other non-collective bargaining activities, questions have arisen in recent years as to whether employees in agency shops can be compelled to make fair-share payments for activities other than those directly related to the negotiation and administration of the collective bargaining agreement. The Supreme Court has held that such use of fair share fees for other than collective bargaining purposes violates the First Amendment to the United States Constitution by, in essence, requiring employees to engage in “speech” against their wills.87 The Court has also required labor organizations collecting fair-share payments to follow a rigid set of procedures establishing accounting procedures for the use of fair-share funds. These requirements include: (1) An obligation to provide adequate explanation of the basis for the fee; (2) the provision of a reasonably prompt opportunity to challenge the amount of the fee before an impartial decision-maker; and (3) the establishment of an escrow account for the amounts reasonably in dispute while such challenges are pending.88 If these procedures for assessing, collecting, and accounting for fair share payments are not followed, a fair share provision in a collective bargaining agreement may be ruled unenforceable in whole or in part.89

THE RIGHT TO STRIKE. Firefighters are generally forbidden by law from striking. Such prohibitions may appear in state statutes or may be incorporated in the internal rules of a fire protection agency. Some states have found a general common law prohibition on the right of firefighters to strike even in the absence of a state statute prohibiting such strikes. Restrictions on the rights of firefighters to strike have been uniformly upheld.90 Where it is illegal to strike, a labor organization that engages in an illegal strike may be subject to criminal prosecution91 or may be liable for civil damages. Some state legislatures have enacted statutes allowing public employers the right to bring civil lawsuits against labor organizations that engage in illegal strikes.92 Courts in states without such liability statutes have split on whether a union which has engaged in an illegal strike may be sued. Some courts are willing to imply such a cause of action.93 The majority of courts have held that the absence Where prohibitions of a state law specifically authorizing such liability forbids implying it. Where against strikes exist, they civil suits are permitted against a firefighter’s association for engaging in an illegal generally only strike, they usually can only be brought by the public employer, not by private apply to the citizens or businesses.94 withholding of services firefighters Evidence that a firefighter association has encouraged an illegal work action are required to generally needs to be quite convincing in order for an employer to prevail.95 perform as part of Moreover, where prohibitions against strikes exist, they generally only apply to the their jobs. withholding of services firefighters are required to perform as part of their jobs.

50 — COLLECTIVE BARGAINING Thus, a concerted effort by a firefighter association that resulted in not a single firefighter signing up to take a promotional examination – the association was challenging changes in eligibility requirements for the examination – was held not to be an illegal strike, with a court reasoning as follows: “The fire lieutenants promotional exam is, and always has been, a voluntary, unpaid undertaking, conducted on the employee’s, not the employer’s, own time. It is not a condition or a requisite to employment. It has no bearing on the terms of employment. Thus, refusing to take the exam cannot be construed as a withholding of services.”96

DISCRIMINATION BASED ON UNION ACTIVITY. Where collective bargaining is allowed, it is illegal for an employer to discriminate against an employee because of the employee’s union activities. Adverse action an employer takes against an employee which is motivated by anti-union bias, hostility or animus is usually directly prohibited by collective bargaining statutes. Even in the absence of a statute directly forbidding anti-union discrimination, courts will imply an obligation on the part of an employer not to engage in such conduct. Illegal discrimination may involve disciplining an employee,97 laying off an employee98 or even the entire department,99 the ending of release time for a union employee,100 terminating the probationary status of an employee,101 denying an employee a promotion,102 transferring the employee,103 removing the employee from a specialty position,104 reducing the amount of hours of work given to an employee,105 changing the employee’s shift,106 or refusing to consider a part-time employee for a full-time job.107 Since it is rare to find an employer who has admitted taking actions based Most anti-union upon its dislike of unions, most anti-union discrimination cases proceed on the discrimination basis of circumstantial evidence. It is common in such cases for labor organiza- cases proceed tions to establish that other similarly-situated employees have not been treated on the basis of circumstantial identically, and that the only distinguishing characteristics are the employee’s evidence. union activities.108 In the words of the Illinois State Labor Relations Board in a case where two firefighters were denied promotions, a labor organization must show a “causal nexus” between the employer’s decision and the employee’s union activities: “This ‘causal nexus’ can be established through either direct evidence or through circumstantial evidence such as the timing of the employer’s action in relation to the protected concerted activity, hostility toward protected concerted activities, disparate treatment, and shifting or inconsistent explanations for the adverse action.”109 Where there is a suspicion of anti-union discrimination, the absence of docu- mentation or corroboration of an employer’s allegations is viewed as evidence establishing anti-union bias.110 Critical to any anti-union bias case, however,

COLLECTIVE BARGAINING — 51 is proof that the employer actually knew of the activities of the labor organization.111 It is also a violation of collective bargaining laws for an employer to inappropriately interfere in the internal activities of a labor organization. Interference might involve a wide variety of conduct, including disciplining a union president for making public statements (even where the employer believes the statements are false),112 or prohibiting a labor organization from engaging in fund raising.113

52 — COLLECTIVE BARGAINING NOTES 1 Salisbury Township v. Pennsylvania Labor Relations Board, 672 A.2d 385 (Pa. Cmwlth. 1996). 2 Town of Arlington v. Board of Conciliation and Arbitration, 352 N.E.2d 914 (Mass. 1976); City of Detroit v. Detroit Police Officers Ass’n, 294 N.W.2d 68 (Mich. 1980); City of Richfield v. Local No. 1215, IAFF, 276 N.W.2d 42 (Minn. 1979); City of Anadarko v. FOP, Lodge 118 and IAFF, Local 2041, 934 P.2d 328 (Okla. 1997). But see City of Sioux Falls v. Sioux Falls Firefighters, Local 814, 234 N.W.2d 35 (S.D. 1975). 3 In meet and confer states, the employer must accept the employees’ choice of representative, and is not free to designate which labor organization with which it will negotiate. Los Angeles County Firefighters, Local 1014 v. City of Monrovia, 101 Cal. Rptr. 78 (Cal. App. 1972). 4 Los Angeles County Civil Service Commission v. Superior Court, 588 P.2d 249 (Cal. 1978). 5 Placentia Fire Fighters, Local 2147 v. City of Placentia, 129 Cal. Rptr. 126 (Cal. App 1976). 6 Brown v. City of Palatka, 24 GERR 1533 (Fla. PERC 1986). 7 In Alabama, firefighters are given the right to make proposals on salaries and other conditions of employment, but no state law requires an employer to collectively bargain. Nichols v. Bolding, 277 So.2d 868 (Ala. 1973). 8 In Arizona, firefighters are given the right to make proposals on salaries and other conditions of employment, but no state law requires an employer to collectively bargain. Ariz. Rev. Stat. § 23-1411 (2000). 9 In Georgia, firefighters in cities with populations greater than 20,000 can collectively bargain, but only if the City agrees to bargain. Firefighters in cities less than 20,000 may not collectively bargain. See Ga. Code Ann. § 25-5-4 (2000). 10 In Kentucky, counties greater than 300,000 may collectively bargain. See Ky. Rev. Stat. Ann. 78.470 (2000). 11 American Federation of State, County and Municipal Employees v. Jefferson County, 110 LRRM 2372 (W.D. Ky. 1982). 12 Thomas v. Collins, 323 U.S. 516 (1945). See Police Officers’ Guild v. Washington, 369 F. Supp. 543 (D. D.C. 1973); Melton v. City of Atlanta, 324 F. Supp. 315 (N.D. Ga. 1971); Mescall v. Rochford, 101 LRRM 3136 (N.D. Ill. 1979), aff’d 655 F.2d 111 (7th Cir. 1981). 13 Vicksburg Firefighters Ass’n, Local 1686 v. City of Vicksburg, 761 F.2d 1036 (5th Cir. 1985); York County Fire Fighters Ass’n, Local 2498 v. County of York, 589 F.2d 775 (4th Cir. 1978); Elk Grove Firefighters, Local 2340 v. Willis, 400 F. Supp. 1097 (N.D. Ill. 1975), affirmed memorandum, 539 F.2d 714 (7th Cir. 1976); Local 2263, IAFF v. City of Tupelo, 439 F. Supp. 1224 (N.D. Miss. 1977). 14 IAFF, Local 3808 v. City of Kansas City, 220 F.3d 969 (8th Cir. 2000). 15 United Firefighters v. City of Los Angeles, 259 Cal. Rptr. 65 (Cal. App. 1989). See also City of Daytona Beach v. Caradonna, 456 So.2d 565 (Fla. App. 1984)(City could not reduce retirement benefits to those vested in the retirement plan).

COLLECTIVE BARGAINING — 53 16 In some states, all personnel except chiefs and assistant chiefs are allowed to be in a bargaining unit. See 1972 Okla. Sess. Laws 114. See generally R. Kopp and J. McCann, The Public Sector, in P. Nash & G. Blake, Appropriate Units for Collective Bargaining, 391 (1979). 17 See Wash. Rev. Code § 41.56 (2000). See York County Fire Fighters Ass’n, Local 2498 v. York County, Virginia, 589 F.2d 775 (4th Cir. 1978); Village of Oak Park v. Illinois State Labor Rel. Bd., 522 N.E.2d 161 (Ill. App. 1988), cert. denied 523 N.E.2d 216 (1988); In re Employees of City of Philadelphia, 477 A.2d 47 (Pa. Cmwlth. 1984); IAFF, Local 1052 v. PERC, 726 P.2d 1260 (Wash. App. 1986). 18 City of Davenport v. Pub. Emp. Rel. Bd., 264 N.W.2d 307 (Iowa 1978). 19 Matter of Borough of Naugatuck, PEB ¶49,993 (Conn. SLRB 1968). 20 See 29 U.S.C. § 152 (11). 21 Mont. Code Ann. § 39-31-103(11)(a). 22 Mont. Code Ann. § 39-31-103(9). 23 City of Winona, BMS Case No. 07PCL0325 (Minn. BMS ALJ 2006). 24 Monroe County Professional Firefighters, 26 FPER P 31090 (Fla. PERC 2000). See generally Alaska Stat. § 23.40.250 (5)(2000); Mass. Gen. Laws Ch. 150(E) § 1 (2000); R.I. Gen. Laws § 28-9.4-2(6)(2000). 25 Cincinnati v. State Emp. Relations Bd., 2009 WL 3633880 (Ohio App. 10 Dist. 2009). 26 Plains Township, 24 PPER ¶24081 (Pa. LRB 1993). 27 Chapter 5, Illinois Compiled Statutes Annotated § 315/3. 28 Compare City of Joplin v. Missouri State Bd. of Mediation, 615 S.W.2d 613 (Mo. App. 1981)(captains included in bargaining unit) with St. Louis County Fire Fighters v. City of University City, unpublished decision, Public Case No. 76- 018 (Missouri State Board of Mediation Appeal of 1977)(captains excluded from collective bargaining unit). 29 Compare City of Concord, 459 A.2d 285 (N.H. 1983)(battalion chiefs included in bargaining unit) with Appeal of University System of New Hampshire, 553 A.2d 770 (N.H. 1989)(captains excluded from collective bargaining). 30 Okaloosa Island Fire Fighters Ass’n, Local 2617 v. Okaloosa County, 7 FPER P 12131 (Fla. PERC 1981); In re Petition of the St. Petersburg Ass’n of Fire Fighters, Local 747, 7 FPER P 12031 (Fla. PERC 1980). 31 City of Portland, No. 07-UD-22 (Me. LRB 2008); City of Bethlehem, 13 NPER PA-21176 (Pa. LRB Hearing Examiner’s Decision 1990). 32 Orange County Professional Firefighters, Local 2057, 23 FPER P 28276 (Fla. PERC 1997). 33 Orlando Professional Fire Fighters, Local 1365, IAFF v. City of Orlando, 26 FPER P 31133 (Fla. PERC 2000); City of Lake Wales, 25 FPER P 30278 (Fla. PERC 1999); Metro-Broward Professional Firefighters, Local 3030, IAFF v. City of Coral Springs, 26 FPER P 31064 (Fla. PERC 1999); St. Petersburg Association of Firefighters, IAFF, Local 747, 24 FPER ¶29207 (Fla. PERC 1998); Southwest Florida Professional Firefighters, Local 1826, IAFF, 24 FPER P 29120 (Fla. PERC 1998); City of Daytona Beach Shores, 8 FPER P 13028 (Fla. PERC 1981); City of Jacksonville v. Jacksonville Ass’n of Fire Fighters, IAFF, Local No. 1834, 365 So.2d 1098 (Fla. App. 1979); Village of Homewood, Case No. S-RC-08-067 (Ill. LRB ALJ 2008); Village of Wheeling v. Illinois State Labor Rel. Bd., 524 N.E.2d 958 (Ill. App.

54 — COLLECTIVE BARGAINING 1988); City of Davenport v. Public Employment Relations Bd., 264 N.W.2d 307 (Iowa 1978); City of Des Moines v. Public Employment Relations Bd., 264 N.W.2d 324 (Iowa 1978); City of Joplin v. Missouri State Bd. of Mediation, 615 S.W.2d 613 (Mo. App. 1981); City of Columbia v. Missouri State Bd. of Mediation, 605 S.W.2d 192 (Mo. App. 1980); Village of Bolingbrook, 11 PERI ¶2020 (Ill. SLRB 1995); In re City of Laconia, 792 A.2d 393 (N.H. 2002). But see Rye Professional Fire Fighters Association, Local 2029, IAFF, 33 PERB ¶3035 (N.Y. PERB 2000); City of Buffalo, 26 PERB ¶3001 (N.Y. PERB 1993); City of Pendleton, 13 NPER OR-21040 (Or. ERB 1990); IAFF, Local 2854 v. Tualatin Rural Fire Protection District, 22 GERR 2226 (Or. ERB 1984). 34 Bonita Springs Professional Fire Fighters, Local 3444, IAFF v. Bonita Springs Fire Control District, 26 FPER P 31032 (Fla. PERC 1999); Southwest Florida Professional Firefighters, Local 1826, IAFF, 24 FPER P 29120 (Fla. PERC 1998); City of Fort Myers, 23 FPER P 28295 (Fla. PERC 1997); City of Oskaloosa, 18 NPER IA-26009 (Iowa PERB 1995); IAFF, Local 1041, Albert Lea, Minn., PEB ¶45,184 (Minn. PERB 1987); Appeal of University System of New Hampshire, 553 A.2d 770 (N.H. 1989). 35 Ocean City-Wright Firefighters Ass’n, 25 FPER P 30277 (Fla. PERC 1999); South Walton Professional Firefighters Ass’n, Local 3516, IAFF v. South Walton Fire Dist., 26 FPER P 31041 (Fla. PERC 1999); Ocean City-Wright Fire Control Dist. v. Ocean City-Wright Fire Fighters Ass’n, Local 2879, 440 So.2d 413 (Fla. App. 1983); City of Daytona Beach Shores, 8 FPER ¶13028 (Fla. PERC 1981); Pasco County, 7 FPER ¶12211 (Fla. PERC 1981); City of Jacksonville v. Jacksonville Ass’n of Fire Fighters, IAFF, Local No. 1834, 365 So.2d 1098 (Fla. App. 1979); City of Taylorville and Local 3144, 4 PERI ¶2039 (Ill. SLRB 1988); City of Davenport v. Public Employee Relations Bd., 264 N.W.2d 307 (Iowa 1978); City of Des Moines v. Public Employee Relations Bd., 264 N.W.2d 324 (Iowa 1978); Richmond Heights Fire Department, Public Case No. 81-003 (Mo. SBM 1981); City of Billings v. Billings Firefighters, Local 521, 651 P.2d 627 (Mont. 1982), overruled on other grounds, 827 P.2d 85 (1992); In re City of Laconia, 792 A.2d 393 (N.H. 2002); City of Deming v. Deming Firefighters Local 4521, 160 P.3d 595 (N.M. App. 2007); City of Buffalo, 26 PERB ¶3001 (N.Y. PERB 1993); City of Pittsburgh v. Labor Relations Bd., 556 A.2d 928 (Pa.Cmwlth. 1989); Firefighters of Brattleboro, Vt., Local 2628 v. Brattleboro Fire Dept., 415 A.2d 243 (Vt. 1980). 36 City of Winter Park, 26 GERR 1330 (Fla. App. 1988); IAFF, Local 1052 v. PERC, 630 P.2d 470 (Wash. App. 1981); City of Ocala, 18 FPER ¶23089 (Fla. PERC 1992); IAFF, Local 594, 13 PERI P 2013 (Ill. SLRB Gen. Coun. 1997). 37 Appeal of City of Concord, 459 A.2d 285 (N.H. 1983); City of Pittsburgh v. Labor Relations Bd., 556 A.2d 928 (Pa.Cmwlth. 1989); Local Union No. 469, IAFF v. City of Yakima, 587 P.2d 165 (Wash. 1978); City of Buffalo, 26 PERB ¶3001 (N.Y. PERB 1993); Sarasota-Manatee Professional Firefighters and Paramedics, Local 2546, IAFF v. County of Sarasota, Florida, 26 FPER ¶31091 (Fla. PERC 2000); Klamath County Fire Dist. No. 1 v. Local 3047, IAFF, PEB ¶44,930 (Or. ERB 1987). 38 Professional Firefighters/Paramedics of Palm Beach County, Local 2928, IAFF, 26 FPER ¶31033 (Fla. PERC 1999). 39 City of Lake Wales, 25 FPER ¶30278 (Fla. PERC 1999); Montana Department of Military Affairs, Case No. 809-2005 (Mont. BPA 2005). 40 Local 1111, IAFF v. Labor Relations Comm’n, 437 N.E.2d 1079 (Mass. App. 1982)(decided under later version of Massachusetts law which allowed managerial or executive employees to be in separate bargaining unit from

COLLECTIVE BARGAINING — 55 rank-and-file personnel); Harrison v. Labor Relations Comm’n, 296 N.E.2d 196 (Mass. 1973)(assistant and deputy chiefs excluded from collective bargaining; decided under early version of Massachusetts law); Jamestown Professional Firefighters Ass’n, Local 1772 v. Newman, 510 N.Y.S.2d 318 (A.D. 1987); Town of North Providence, 725 A.2d 888 (R.I. 1998)(chiefs are excluded from collective bargaining); City of Tarpon Springs, 14 FPER ¶19245 (Fla. PERC 1988)(assistant fire chief excluded from general bargaining unit); City of Jamestown, 25 PERB ¶13015 (N.Y. PERB 1992)(assistant chief excluded from bargaining unit); IAFF, Local 437 and City of Bremerton, PEB ¶45,669 (Wash. PERC 1989)(deputy fire chiefs are supervisory personnel). 41 City of Evanston v. State Labor Relations Bd., 592 N.E.2d 415 (Ill. App. 1992); Cincinnati v. State Emp. Relations Bd., 2009 WL 3633880 (Ohio App. 10 Dist. 2009); City of Pittsburgh v. Labor Relations Bd., 556 A.2d 928 (Pa.Cmwlth. 1989)(assistant chief included in bargaining unit); City of Buffalo, 26 PERB ¶3001 (N.Y. PERB 1993); La Pine Rural Fire Protection District, 14 NPER OR-23009 (Or. ERB 1992). 42 City of Newark, 18 NJPER ¶23128 (N.J. PERC 1992). 43 Hillsborough County Board of County Commissioners v. Local 2294, IAFF, 26 FPER ¶31070 (Fla. PERC 1999). 44 Ocean City-Wright Fire Control Dist. v. Ocean City-Wright Fire Fighters’ Ass’n, Local 2879, 440 So.2d 413 (Fla. App. 1983); Metro-Broward Professional Firefighters, Local 3030, IAFF v. City of Coral Springs, 26 FPER ¶31063 (Fla. PERC 1999); Key West Fire Fighters, Local 1424, 16 FPER ¶21143 (Fla. PERC 1990); Brevard County Fire Rescue Ass’n, Local 2969, PEB ¶45,576 (Fla. PERC 1989); Cocoa Fire Fighters Association, Local 2416, IAFF v. City of Rockledge, 12 FPER ¶17315 (Fla. PERC 1986). But see City of St. Petersburg, 11 NPER FL-19224 (Fla. PERC 1988). 45 City of Erie, Case No. PF-U-07-98-W (Pa. LRB 2009); Village of Niles, 17 PERI ¶2022 (Ill. SLRB Gen. Coun. 2001). 46 Professional Firefighters of Marco Island, Local 2887, IAFF, 24 FPER ¶29065 (Fla. PERC 1997). 47 Lehigh Acres Fire Control and Rescue District Board of Commissioners, 23 FPER ¶28114 (Fla. PERC 1997). 48 City of Daytona Beach Shores, 8 FPER ¶13028 (Fla. PERC 1981); Central Florida Professional Fire Fighter Ass’n, Local 2057 v. Ocoee, 4 FPER ¶4339 (Fla. PERC 1978), rev’d on other grounds, 389 So.2d 296 (Fla. App. 1980). But see City of Ballston Spa, 28 GERR 1570 (App. Div. 1989). 49 Van Buren Township, 5 MPER ¶23080 (Mich. ERC 1992). 50 City of Tallmadge, 12 OPER ¶1339 (Ohio SERB 1995). 51 In re Town of Litchfield, 790 A.2d 135 (N.H. 2002). 52 City of Westland, 1 MPER ¶19152 (Mich. ERC 1988). 53 Most states draw guidance from private sector precedent developed under the National Labor Relations Act in making judgments about whether bargaining topics are mandatory, permissive or prohibited. 54 Vaca v. Sipes, 386 U.S. 171 (1967). See also Steele v. Louisville & Nashville R.R. Co., 323 U.S. 192 (1944). 55 Wilson v. Anchorage Fire Department, 977 P.2d 713 (Alaska 1999).

56 — COLLECTIVE BARGAINING 56 Vaca v. Sipes, 386 U.S. 171 (1967). See Waqia v. IAFF, Local 55, PERB Decision No. 1621-M (Cal. PERB 2004); Stahulak v. City of Chicago, 13 PERI ¶4017 (Ill. App. 1997); Allen v. Steubenville Firefighters, IAFF Local 228, 17 OPER ¶1660 (Ohio SERB 2000). 57 Professional Firefighters Ass’n, 25 PERB ¶3003 (N.Y. PERB 1992)(no breach of duty of fair representation when union elected not to refer grievance to arbitration; no showing of arbitrary decision-making by union). 58 Egged v. City of Livonia, 2003 WL 21978746 (Mich. App. 2003). 59 Zelenka v. City of Chicago, 504 N.E.2d 843 (Ill. App. 1987). See also Tinney v. New Haven Firefighters, Local 825, 2008 WL 4780571 (Conn. Super. 2008); IAFF, Local 2, Chicago Firefighters Union (Outerbridge), 4 PERI ¶3024 (Ill. LLRB 1988). 60 City of Bridgeport and Local 834, IAFF, Decision No. 4013 (Conn. SBLR 2004). 61 Anderson v. Com. Employment Relations Bd., 899 N.E.2d 901 (Mass. App. 2009). 62 Jens v. Professional Firefighters/Paramedics of Palm Beach County, Local 2928, IAFF, 23 FPER ¶28196 (Fla. PERC Gen. Coun. 1997). 63 Golden v. Local 55, IAFF, 633 F.2d 817 (9th Cir. 1980). 64 IAFF, Local 1425, 1 MPER ¶19108 (Mich. ERC 1988). 65 Waqia v. IAFF, Local 55, PERB Decision No. 1621-M (Cal. PERB 2004); Haynick v. International Association of Fire Fighters, Local 1981, 26 FPER ¶31102 (Fla. PERC Gen. Coun. 2000). 66 Vaca v. Sipes, 386 U.S. 171 (1967). 67 City of Asbury Park and IAFF Local 384, 26 NJPER ¶31097 (N.J. PERC Dir. 2000). 68 Anderson v. Com. Employment Relations Bd., 899 N.E.2d 901 (Mass. App. 2009). 69 Peterson v. Kennedy, 771 F.2d 1244 (9th Cir. 1985). 70 Haynick v. International Association of Fire Fighters, Local 1981, 26 FPER ¶31102 (Fla. PERC Gen. Coun. 2000). 71 Garland F. Smith v. Professional Firefighters/Paramedics of Palm Beach County, 26 FPER ¶31031 (Fla. PERC Gen Coun. 1999). 72 IAFF, Local 379 v. City of Marion, 17 OPER ¶1062 (Ohio SERB 1999). 73 Meadows v. Metropolitan Dade County, 23 FPER ¶28179 (Fla. PERC Gen. Coun. 1997). 74 Galloway Tp. Bd. of Ed. v. Galloway Tp. Ass’n of Education Secretaries, 393 A.2d 207 (N.J. 1978). 75 Stahulak v. City of Chicago, 703 N.E.2d 44 (Ill. 1998). 76 White v. Ruditys, 22 GERR 737 (Wis. App. 1983). 77 Reid v. City of Flint and Flint Firefighters, IAFF Local 352, 221 F.3d 1335 (6th Cir. 2000); Diaz v. San Antonio Professional Fire Fighters Ass’n, IAFF Local 624, 185 S.W.3d 37 (Tex. App. 2005). 78 Tinney v. New Haven Firefighters, Local 825, 2008 WL 4780571 (Conn. Super. 2008). 79 City of Rochester, 26 PERB ¶4504 (N.Y. PERB ALJ 1993).

COLLECTIVE BARGAINING — 57 80 IAFF Local 2081, PERC No. 2009-47 (N.J. PERC 2009). 81 Duncan v. County of Alameda, 2009 WL 2392141 (N.D. Cal. 2009); Zelenka v. City of Chicago, 504 N.E.2d 843 (Ill. App. 1987). 82 Newark Firemen’s Union, Inc., Local 1846, 18 NPER NJ-26186 (N.J. PERC Dir. 1995)(participation in civil rights lawsuit). 83 Smiley v. Metro-Dade Fire Department, 23 FPER ¶28061 (Fla. PERC Gen. Coun. 1997). 84 Chicago Fire Fighters Union, Local 2, 11 PERI ¶3026 (Ill. LLRB 1995); see Haynick v. International Association of Fire Fighters, Local 1981, 26 FPER ¶31102 (Fla. PERC Gen. Coun. 2000). 85 White v. Ruditys, 22 GERR 737 (Wis. App. 1983). See also De Costa v. PERC and Miami Ass’n of Firefighters, 443 So.2d 1036 (Fla. App. 1983)(campaign of harassment against non-union firefighter in right-to-work state). 86 Under both agency shops and closed shops, employees who have bona fide religious objections to being members of or paying fair-share payments to a labor organization are allowed to pay an amount equivalent to the dues assessment to a non-religious charity. 87 Abood v. Detroit Bd. of Ed., 431 U.S. 209 (1977). 88 Grunwald v. San Bernardino, 994 F.2d 1370 (9th Cir. 1993); Tierney v. City of Toledo, 824 F.2d 1497 (6th Cir. 1987); Wright v. City of Cincinnati, 450 F. Supp. 2d 831 (S.D. Ohio 2006); Malden Education Ass’n, 15 MLC 1429 (Mass. 1989); In re Gibney, 6 OPER ¶6219 (Ohio, 1989); see Chicago Teachers Union, Local 1 v. Hudson, 475 U.S. 292 (1986). 89 An employee challenging a fair-share assessment may be subject to the same statute of limitations which applies to the filing of unfair labor practices under local state law. See Miller v. Rochester Firefighters Ass’n, Inc., 621 N.Y.S.2d 473 (N.Y. Co. Ct. 1994)(lawsuit claiming improper fair-share assessment must be filed within four months or is forever waived). 90 See generally Anderson v. Edwards, 505 F. Supp. 1043 (S.D. Ala. 1981). Any restrictions on the right to strike must be specific and clear in order to be enforceable. For example, in Local 1494 of the IAFF v. City of Coeur d’Alene, 586 P.2d 1346 (Idaho 1978), the Court held that a state law that prohibited firefighter strikes “upon consummation and during the term of a written contract” did not bar strikes after the contract had expired and the parties were in the factfinding process for a new contract. 91 City of Chicago v. Chicago Fire Fighters Union, Local 2, 425 N.E.2d 1071 (Ill. App. 1981). 92 Fla. Stat. Ann. § 447.505 and 447.507 (West 2000)(bans strike by public employee or organization and subjects the employee organization to liability for damages to the public employer for violation; Ind. Code Ann. §20-7.5-1-14(b)(Michic 2000)(same); Wis. Stat. Ann. §111.89(2)(c)(West 2001)(same). 93 Rivard v. Chicago Firefighters Union, Local No. 2, 494 N.E.2d 756 (Ill. App. 1986), reversed on other grounds, 522 N.E.2d 1195 (Ill. 1988); Boyle v. Anderson Fire Fighters Ass’n, Local 1261, 24 GERR 1466 (Ind. App. 1986); State of Missouri v. Kansas City Firefighters Local 42, PEB ¶ 34,181 (Mo. App. 1984). 94 Jackson v. Byrne, 738 F.2d 1443 (7th Cir. 1984)(no civil rights remedy for damages against firefighter union engaged in strike even where deaths from fires occur during the strike); State of Missouri v. Kansas City Firefighters Local 42, PEB

58 — COLLECTIVE BARGAINING ¶34,181 (Mo. App. 1984). But see Boyle v. Anderson Fire Fighters Ass’n, Local 1261, 24 GERR 1466 (Ind. App. 1986)(property owners allowed to file suit against individual firefighters for damage to property resulting from fires during illegal strike). 95 Village of Skokie, 13 PERI ¶2018 (Ill. SLRB 1997). 96 Village of Skokie v. Illinois State Labor Relations Board, 714 N.E.2d 87 (Ill. App. 1999). 97 Reno Police Protective Association, 715 P.2d 1321 (Nev. 1986)(demotion); City of Hugo v. PERB, 886 P.2d 485 (Okla. 1994); City of Saginaw, 10 MPER ¶28051 (Mich. ERC 1997)(discharge); Borough of Sayreville, 21 NJPER ¶26135 (N.J. PERC 1995)(discharge); City of Philadelphia, 26 PPER ¶26117 (Pa. LRB ALJ 1995); Borough of Bristol, 23 PPER ¶23161 (Pa. Cmwlth. 1992)(discharge); City of Hialeah Gardens, LAIG 5107 (Sherman, 1994)(termination). In one case of limited liability, a court held that in the absence of specific language in a statute, a public employment relations commission has no authority to order the reinstatement of a wrongfully terminated firefighter. 98 Kiskiminetas Township, 23 PPER ¶23182 (Pa. LRB ALJ 1992). 99 Selinsgrove Borough, 24 PPER ¶24102 (Pa. LRB 1993); Emporium Borough, 23 PPER ¶23136 (Pa. LRB 1992). 100 City of Troy, 28 PERB ¶4526 (N.Y. PERB ALJ 1995). 101 Valley Township, 22 PPER ¶22046 (Pa. LRB Hearing Examiner 1991). 102 Borough of Sayreville, 16 PPER ¶21199 (N.J. PERC Hearing Examiner 1990). 103 City of Philadelphia, 26 PPER ¶26114 (Pa. LRB 1995). 104 Borough of Stone Harbor, 18 NJPER ¶23105 (N.J. PERC ALJ 1992). 105 East Taylor Township, 24 PPER ¶24107 (Pa. LRB ALJ 1993). 106 City of Chicago, 8 PERI ¶3010 (Ill. LLRB 1992). 107 City of Windsor Locks, 13 NPER CT-21069 (Conn. SBLR 1990). 108 City of Chester, 21 PPER ¶21182 (Pa. LRB Hearing Examiner 1990)(enforcement of residency rule only against union activist). 109 North Maine Firefighters, IAFF, Local 2224, 16 PERI ¶2037 (Ill. SLRB 2000); see Schnabel v. Hualapai Valley First Dist., 2009 WL 322948 (D. Ariz. 2009). 110 City of Windsor Locks, 13 NPER CT-21069 (Conn. SBLR 1990). For example, in one case an employer attempted to justify its threatened transfer of employees who were organizing a labor organization on the grounds that the budget was running a deficit. When the employer was unable to prove that such a deficit in fact existed, an administrative law judge held that the justification was pretextual in nature and that the true reason for the transfer was in retaliation for the organizing efforts. Manor Borough, 26 PPER ¶26194 (Pa. LRB ALJ 1995). 111 City of Rye, 28 PERB ¶4573 (N.Y. PERB Dir. 1995). 112 County of Macon, 8 PERI ¶2020 (Ill. SLRB 1992). 113 Evanston FFA, Local 742, 27 GERR 1347 (Ill. App. 1989); Village of Depew, 25 PERB ¶3009 (N.Y. PERB 1992).

COLLECTIVE BARGAINING — 59 60 — COLLECTIVE BARGAINING CHAPTER 3

DISCIPLINARY STANDARDS AND FIREFIGHTERS

DISCIPLINARY STANDARDS AND FIREFIGHTERS — 61 INTRODUCTION. Traditionally, fire protection employers were termed “at-will” employers, a status which allowed them to discipline and discharge employees for any reason or for no reason at all without concern that the employee could successfully challenge the disciplinary action. The only restrictions placed on the disciplinary actions of at-will employers are that discipline cannot be imposed for unconstitutional or illegal (e.g., discriminatory) reasons.1 Today, it is extremely rare to find a fire protection employer who remains a true at-will employer. Virtually all employers are subject to restrictions on their disciplinary authority, restrictions imposed by collective bargaining agreements, civil service rules, state laws, or internal rules and procedures.

EMPLOYEES NOT COVERED BY COLLECTIVE BARGAINING AGREEMENTS OR CIVIL SERVICE LAWS. Employees who are granted the least protections from improper discipline Absent a state law requiring the are those who work in fire protection agencies not subject to collective bargain- employer to meet ing agreements or civil service laws. Absent a state law requiring the employer to certain disciplinary meet certain disciplinary standards, these fire protection agencies may freely dis- standards, these fire protection cipline their employees as long as they do so in compliance with the United States agencies may Constitution and federal and state law. Employees working for such agencies are freely discipline termed “at-will” employees because they are said to retain their jobs only at the their employees as long as they do so will of the employer. A good expression of the definition of an “at-will” employee in compliance with can be found in the California Labor Code: the United States “An employment, having no specified term, may be terminated Constitution and federal and state at the will of either party on notice to the other. Employment for a law. specified term means an employment for a period greater than one month.”2

EMPLOYEES COVERED BY CIVIL SERVICE LAWS. The majority of states have enacted civil service laws providing a good deal more in the way of job protection than is granted to at-will employees.3 Civil service systems vary widely in the procedures they use, and in the level of protections granted employees. Some civil service laws require that hearings be conducted by hearings officers,4 while others mandate the civil service board itself conduct the hearing.5 Some laws make the decisions of civil service boards extremely difficult to review,6 while other laws allow broad appeals of civil service decisions.7 Appealing disciplinary sanctions through the civil service and court systems has often been a difficult proposition for many firefighters. Courts and civil service boards tend to give extremely wide deference to the disciplinary decisions made by fire protection agencies. It is not uncommon for courts to apply a presumption that the findings of fact made by the fire protection agency are “pre-

62 — DISCIPLINARY STANDARDS AND FIREFIGHTERS sumed to be correct,” without even examining the underlying basis for those findings.8 In other cases, courts will only reverse a disciplinary decision if an “abuse of Some courts will only reverse discretion” on the part of the employer is found. In other cases, courts have held a disciplinary that in order to be reversed, the discipline of a firefighter must be “discriminatory” decision if or “arbitrary and capricious.” Yet other courts have held that civil service boards an “abuse of discretion” on have the authority to actually increase the punishment imposed by an employer, the part of the a prospect which makes appeals to such boards a risky proposition. Other courts employer is found. have compelled firefighters appealing discipline to show that a particular conclusion was “against the manifest weight of the evidence.”9

THE APPEAL OF DISCIPLINE WHERE FIREFIGHTERS ARE GRANTED JOB PROTECTION THROUGH A COLLECTIVE BARGAINING AGREEMENT. Firefighters have had more favorable results appealing discipline through grievance arbitration procedures contained in collective bargaining agreements, challenging the discipline under a contractual standard requiring that discipline must be for “just cause.” Most certainly the reason for the difference in results is the structure of the proceedings in arbitration as opposed to the judicial and civil service systems. Not only is the standard of review of disciplinary decisions more liberal in arbitration than in civil service systems or in court, but the burden of proof in arbitration lies with the employer to show that the discipline imposed met the contractual standards for discipline. In courts and in many civil service systems, the employee usually shoulders the burden of proving that the discipline imposed was unjust. Under a “just cause” standard, the basic question is whether the employer’s Under a “just disciplinary decision is fair under all the circumstances. This standard involves a cause” standard, review not only of whether the firefighter engaged in misconduct which warrants the basic question is whether the discipline, but also of whether the level of discipline imposed was fair given the employer’s firefighter’s offense and the facts and circumstances of the case.10 The just cause disciplinary standard carries with it a significantly broader scope of review than is customarily decision is fair applied by courts reviewing the discipline of firefighters. Where in court the legal under all the circumstances. issue may be whether the employer acted in an “arbitrary or capricious” fashion, and the factual inquiry limited to whether there is any evidence to support the employer’s disciplinary decision,11 in arbitration under a just cause standard, the issue will be whether the employer’s decision was supported by proven facts and whether the particular discipline imposed was fair considering those facts. Though just cause may seem at first to be a simple standard, it actually includes within it a variety of tests of the fairness of the employer’s disciplinary decision. The twelve most common tests for just cause can be posed as questions: Test 1. Have the charges against the firefighter been factually proven? Courts and arbitrators have held that a variety of standards of proof are required to sustain an employer’s disciplinary decision.12 Some have ruled that the employer must substantiate a disciplinary decision by a preponderance (or a

DISCIPLINARY STANDARDS AND FIREFIGHTERS — 63 majority) of the evidence.13 Yet others have held that the higher standard of proof by clear and convincing evidence must be met by an employer, particularly in cases where the employee has been discharged.14 Some arbitrators have even held in cases where the alleged conduct of the employee, if proven, would constitute evidence of criminal wrongdoing, that an employer must prove its disciplinary case beyond a reasonable doubt — the same burden of proof applied in criminal tri- als.15 Whatever level at which the burden of proof is set, an employer must meet that burden with respect to all elements of the particular offense charged.16 For example, if the firefighter is charged with an offense which is alleged to have damaged the department’s reputation, the employer will have the burden of proving that its reputation has, in fact, been damaged.17 In dishonesty cases, the employer will be required to prove that the employee was deliberately dishonest rather than simply establish that incomplete or disingenuous statements were made.18 Moreover, if an employer charges the employee with multiple rules violations, it must prove each of the violations or risk having the disciplinary penalty reduced or reversed.19 Test 2. Was the punishment imposed by the employer disproportionately severe under all the circumstances? This element of just cause requires that punishment be proportionate to the offense, taking into account factors such as harm to the department resulting from the firefighter’s conduct and the underlying seriousness of the conduct.20 This test is often phrased as: “Does the punishment fit the crime?” Test 3. Did the employer conduct a thorough investigation into the incident? Courts and arbitrators insist that an employer’s investigation of misconduct be as thorough and complete as possible.21 An employer’s investigation should, at a minimum, examine all investigatory leads and should involve conducting personal interviews with witnesses.22 Test 4. Were other employees who engaged in conduct similar or identical to that of the firefighter treated as harshly by the employer? Commonly referred to as the “disparate treatment” defense, this question focuses on the employer’s pre-existing pattern of discipline imposed in identical or similar cases. If an employer substantially varies from prior sanctions in similar cases where there is no significant difference in the work records of the firefighters involved, the harsher discipline is likely to be set aside or modified.23 At the heart of the “disparate treatment” theory is the notion that an employer’s pattern of discipline puts employees on notice as to the sanctions the employer believes are appropriate in a given case, and that to vary from such a pattern of discipline without prior notice to employees is inherently unfair. Test 5. Was the firefighter’s misconduct the product of action or inaction by the employer? This element of just cause encompasses an increasingly wide variety of theories, including claims that the firefighter was not adequately trained, that the

64 — DISCIPLINARY STANDARDS AND FIREFIGHTERS employer did not give clear instructions to employees, or that supervisors contributed to the atmosphere which led to the firefighter’s misconduct.24 Test 6. Did the employer take into consideration the firefighter’s good or exemplary work history? The principles of just cause require the employer to consider the nature of the employee’s conduct as well as the character of the employee as demonstrated through the employee’s work history.25 Test 7. Did the employer take into consideration mitigating circumstances? Mitigating circumstances that an employer is required to take into account prior to imposing discipline include the firefighter’s state of mind at the time of the alleged misconduct,26 the firefighter’s physical condition,27 and whether the firefighter was provoked into the misconduct.28 Test 8. Was the firefighter subjected to progressive or corrective discipline? The principle of progressive or corrective discipline mandates that punishment be meted out in increasingly severe doses in an effort to correct (as opposed to punish) the behavioral problems of an employee.29 Test 9. Was the employer motivated by anti-union bias? As discussed in greater length in Chapter 2 of this book, an employer’s decision to impose discipline cannot be based on the improper motivation of bias against a labor organization.30 This element of just cause is commonly raised where the target of discipline is a union officer or activist, where there is a pattern of more lenient discipline for similar offenses in the past, and where the relationship between the labor organization and the employer is a difficult one.31 Test 10. Are the employer’s rules clear and understandable? Before an employer may apply its rules to discipline employees, it must establish that its rules are understandable by the average firefighter. If a rule is reasonably capable of more than one interpretation, discipline imposed under the rule will likely be overturned.32 However, even broadly written rules such as a rule forbidding the use of “obscene language” are enforceable if they are readily understandable by the average firefighter.33 Test 11. Is the firefighter likely to engage in similar misconduct in the future? Usually only in cases of termination, courts and arbitrators will inquire as to whether the firefighter is or can be rehabilitated,34 or whether the conduct was an aberration from the type of conduct normally displayed by the firefighter.35 Test 12. Was the firefighter accorded procedural due process in the disciplinary investigation? In the just cause context, due process means not only constitutional due process,36 but also what is termed “industrial due process.” Industrial due process is a broader notion than constitutional due process, and includes not only concepts such as fair pre-disciplinary processes and hearings,37 but also a ban on basing a disciplinary decision solely on hearsay in cases where complaining witnesses are

DISCIPLINARY STANDARDS AND FIREFIGHTERS — 65 not called to testify,38 a prohibition on material witnesses to or victims of the misconduct later participating in a meaningful way in the disciplinary process,39 a requirement that employees be allowed representation during disciplinary interviews,40 and a prohibition against punishing a firefighter twice for the same offense.41 The difference between constitutional and industrial due process is best seen in cases where the employer’s investigation has been delayed. While even as much as a five-year delay in completing an investigation may not be enough to violate constitutional due process,42 delays of one year or more violate industrial due process and often result in the reversal of discipline.43

PARTICULAR TYPES OF DISCIPLINE AND DISCHARGE CASES. Firefighter discipline cases arise in a wide variety of circumstances. The policies and procedures manuals of a fire protection agency typically are voluminous, with firefighters employed by the agency subject to discipline if they fail to conform to all of the policies. Since employer manuals can run the gamut from correct fire suppression techniques to handling of heart attack victims to rules about uniform attire to the listing of inappropriate off-duty conduct, it is not surprising that firefighter discipline cases are so varied and involve such different factual circumstances. Three of the most difficult areas in the discipline of firefighters have been discipline under “conduct unbecoming” regulations, discipline resulting from a firefighter’s off-duty conduct, and discipline resulting from insubordination incidents.

CONDUCT UNBECOMING. By far the largest number of fire protection disciplinary cases arise under rules “Conduct unbecoming” prohibiting “conduct unbecoming” a firefighter or employee. Derived from similar regulations have rules in the military service, “conduct unbecoming” regulations have been applied been applied in in a wide variety of cases to punish misconduct that does not squarely fall within a wide variety of cases to punish other specific rules of the fire protection agency. misconduct that On many occasions, “conduct unbecoming” regulations have been challenged does not squarely as being unconstitutionally vague. The basis of the vagueness doctrine is that to be fall within other enforceable, a governmental regulation which is applied to deny a public employee specific rules of the fire protection a benefit must reasonably advise the employee of what conduct is forbidden and agency. what is permitted. In other words, the regulation must have a “rough idea of fairness” in order to be consistent with the requirements of the due process clause of the Fifth Amendment. Some courts have accepted such challenges, and have refused to enforce “conduct unbecoming” regulations as applied to a particular factual situation. As explained by one court in striking down a “conduct unbecoming” rule: “In determining whether the rule ‘conduct unbecoming a member and detrimental to the service’ conforms with the constitutionally-mandated ‘rough idea of fairness,’ it is necessary

66 — DISCIPLINARY STANDARDS AND FIREFIGHTERS to examine whether the rule creates a standard of conduct which is capable of objective interpretation by those * * * who must abide by it, by those Departmental Officials who must enforce it, and by any administrative or judicial tribunal which might review any disciplinary proceeding. On its face, the rule proscribes only conduct which is both ‘unbecoming’ and ‘detrimental to the service.’ It is obvious, however, that any apparent limitation on the prohibited conduct through the use of these qualifying terms is illusory, for ‘unbecoming’ and ‘detrimental to the service’ have no inherent, objective content from which ascertainable standards defining the proscribed conduct could be fashioned. Like beauty, their content exists only in the eye of the beholder. The subjectivity implicit in the language of the rule permits * * * officials to enforce the rule with unfettered discretion, and it is precisely this potential for arbitrary enforcement which is abhorrent to the Due Process Clause. Further, where, as here, a rule contains no ascertainable standards for enforcement, administrative and judicial review can only be a meaningless gesture.”44 The vast majority of courts, however, have ruled that “conduct unbecoming” regulations are not necessarily void for vagueness, and do not violate the principles of due process. For example, in Arnett v. Kennedy, the United States Supreme Court sustained a “conduct unbecoming” regulation, holding that the regulation was necessary to the employer’s operation: “‘[I]t is not feasible or necessary for the Government to spell out in detail all that conduct which will result in retaliation. The most conscientious of codes that define prohibited conduct of employees includes ‘catchall’ clauses prohibiting employee ‘misconduct,’ ‘immorality,’ or ‘conduct unbecoming.’ We think it is inherent in the employment relationship as a matter of common sense if not [of] common law that [a Government] employee * * * cannot reasonably assert a right to keep his job while at the same time he inveighs against his superiors in public with intemperate and defamatory [cartoons]. [Dismissal in such circumstances neither] comes as unfair surprise [nor] is so unexpected * * * as to chill freedom to engage in appropriate speech.”45 Whether a “conduct unbecoming” regulation can be constitutionally applied in a given situation will depend almost entirely on the facts of the incident giving rise to the discipline. The permissible application of a “conduct unbecoming” regulation will turn on whether the firefighter could reasonably anticipate that his or her conduct would be the subject of discipline. The overwhelming majority of courts have followed this narrow approach by upholding “conduct unbecoming” regulations in fire protection agencies, but only in circumstances where the conduct in question would clearly be viewed as punishable by a reasonable firefighter. A wide variety of conduct has been held to appropriately fall within the scope of “conduct unbecoming” regulations. What follows is a general summary of the

DISCIPLINARY STANDARDS AND FIREFIGHTERS — 67 types of conduct which may be regulated by “conduct unbecoming” regulations, assuming that the conduct is not otherwise constitutionally protected: • Conflicts of interest.46 • Criminal conduct,47 even where the firefighter has not been convicted of the crime.48 • Dishonesty.49 • Driving offenses.50 • Insubordination.51 • Substance abuse, including use of alcohol and drugs.52 In order to • Theft.53 be the basis for discipline, In order to be the basis for discipline, a “conduct unbecoming” regula- a “conduct unbecoming” tion must be applied to actions that have a provable adverse relationship to the regulation must be firefighter’s performance. In other words, a “conduct unbecoming” rule can only applied to actions regulate “any conduct which has a tendency to destroy public respect for munici- that have a provable adverse pal employees and confidence in the operation of municipal services.” While pri- relationship to vate conduct can be the basis for a “conduct unbecoming” charge, there must be the firefighter’s an adverse impact on the public employer before the charge can be the basis for performance. discipline.

OFF-DUTY CONDUCT. The off-duty conduct of firefighters can be regulated by employers, but only The off-duty conduct of to the extent that there is a direct relationship between the off-duty conduct and firefighters can on-the-job performance. A good description of such a relationship can be found in be regulated by a case involving the discharge of a Sparks, Nevada firefighter for the off-duty theft employers, but only to the extent of a $2.97 tube of medication: that there is a “The record is clear in establishing that firefighters occupy direct relationship positions of trust. During fires and inspections firefighters enter between the off-duty conduct business establishments and homes. The City holds these firefighters and on-the-job out as persons in whom trust may be imposed. The residents of performance. the City are obligated by law to admit firefighters to their places of business and homes and the City has a corresponding obligation to employ firefighters whose honesty and integrity are beyond question. Honesty and integrity are measured not only by conduct on the job but also by conduct off the job.”54

68 — DISCIPLINARY STANDARDS AND FIREFIGHTERS INSUBORDINATION INCIDENTS. In addition to the general rules governing the validity of discipline, insubordination incidents have generated a more specific body of law requiring an employer to take certain steps before a firefighter can be disciplined for the insubordination. That body of law can be summarized in the form of the following questions, all of which are likely to be asked by an arbitrator, court, or hearings board considering the appropriateness of discipline for insubordination: • Was the firefighter given a direct order by a supervisor to perform or not perform a certain deed?55 • If the firefighter was not given a direct order, was the firefighter subject to specific and clear rules which had been distributed to the firefighter which compelled the firefighter to perform the deed?56 • Was the firefighter specifically advised that the failure to comply with the order or the applicable rules would subject the firefighter to discipline?57 • Did the firefighter in fact disobey the order or the rules? • Was the order a legal one which did not require the firefighter to unduly jeopardize his safety?58 • Was the employer free from fault in provoking or contributing to the incident of insubordination?59 If the answer to any of these questions is “no,” then it is likely that the discipline imposed upon the firefighter will be reduced, if not overturned entirely. If the answer to the questions is “yes” and the other elements of just cause are present, then it is likely that the discipline imposed by the employer, no matter how severe, will be sustained.

SUMMARY OF DISCIPLINARY CASES INVOLVING FIREFIGHTERS. What follows is a table reviewing decisions involving the discipline of firefighters. For convenience, the cases are grouped into general subject headings, though one case may discuss a variety of different topics. Since the cases listed below involve decisions of both arbitrators and the courts, the standards of review of the discipline vary significantly from case to case. Accordingly, the case summaries must be used with a good deal of care; a defense that would mandate the reversal of discipline in arbitration might be ruled irrelevant in a court challenge to the same discipline, and vice versa. The cases listed below are grouped alphabetically by general subject matter.

DISCIPLINARY STANDARDS AND FIREFIGHTERS — 69 FIREFIGHTER DISCIPLINARY CASES

Initial Result On Case Name Description Sancton Appeal Absenteeism City of Memphis Fire Services Termination Reinstatement City discharged firefighter with atten- Division, LAIG 5350 (Bird, With Full Back dance problems for separate incidents 1997) Pay of absenteeism for sick leave purposes and tardiness. Arbitrator held offenses were separate, and must be treated differently for progressive discipline purposes under City’s policies. City of Miami, LAIG 3986 Suspension Reinstatement Attendance at concert while on duty; (Kravit, 1987) grievant’s actions were common in the Department. City of Port Arthur, Texas and 6-Day 3-Day Firefighter suspended for being absent International Association of Suspension Suspension without leave and insubordination Fire Fighters, Local 397, LAIG when he failed to appear for work after 5622 (Detwiler, 2000) being denied opportunity to take leave to accompany mother to her brother’s funeral. Arbitrator concluded that insubordination charge not proven because there was no showing that firefighter was “defiant or treated management in a contemptuous manner.” Guerrero v. Scoppetta, 53 Termination Termination EMT abandoned his post without A.D.3d 615 (N.Y. A.D. authorization and consumed alcohol 2008) while on duty. Guilford v. City of Buffalo, 577 Termination Termination Enforcement of clause in contract that N.Y.S.2d 1017 (A.D. 1991) employees AWOL for 20 days were automatically terminated. Harris v. Department of Fire, 30 To 90-Day No Discipline Fire Department suspended eight dis- 990 So.2d 54 (La. App. Suspension patchers for failing to report to work 2008) on or before a specific date in the wake of a hurricane. Individual supervisors had told dispatchers to “report when you can,” and Department never communicated specific reporting date to individual employees. Palm Beach County, LAIG Termination Reinstatement Excessive absenteeism and failure to 3777 (Hardy, 1986) Without Back produce requested medical records; no Pay specific warning of intent to discharge if records not produced.

70 — DISCIPLINARY STANDARDS AND FIREFIGHTERS Initial Result On Case Name Description Sancton Appeal Township of Flint, LAIG 6463 Reduction Of Restoration Of Employer contended that reduction in (Braverman, 2007) Work Schedule Work Schedule work schedule based on a dispatcher’s From 40 to 24 absenteeism was not disciplinary in Hours nature, and that the schedule reduction was made to avoid paying overtime resulting from backfilling for dispatcher when she was absent. The Arbitrator concluded that schedule reduction was disciplinary in nature, that the dispatcher had violated no work rule, and that the employer had not placed her on notice that her work shift could be reduced unless her absenteeism problems were corrected. Conduct Unbecoming Bay County Professional Termination Reinstatement Lieutenant’s alleged rudeness to Firefighters v. City of Lynn With Back Pay employees in public and failure to Haven, 24 FPER P 29229 (Fla. follow chain of command. Decided PERC 1998) on anti-union bias basis where lieutenant was active in the formation of the Union and had prior good work record. Employer based a significant portion of discipline on hearsay. Boddie v. City of Columbus, Termination Reinstatement Firefighter terminated on last day of 989 F.2d 745 (5th Cir. 1993) probationary period; union activities true reason for discharge. City of Bridgeport and IAFF, 3-Day No Discipline City failed to meet burden of proving Local 834, 5:2 NPER 7 Suspension that firefighter’s comments about a New (Conn. Bd. Of Med. and York City parade were racially motivated. Arbit. 2001) Instead, firefighter’s remark about the “f______parade” was normal “firehouse banter.” City of Brownsville, Texas, 24-hour 8-hour Fire lieutenant arrested for off-duty driv- LAIG 6464 (McKee, 2007) Suspension Suspension ing while intoxicated, which resulted in the suspension of his driver’s license. Arbitrator sustained charge that lieutenant should have notified employer of the suspension, but overturned charges of conduct unbecoming, “subversive acts,” knowledge of rules, and eight other charges.

DISCIPLINARY STANDARDS AND FIREFIGHTERS — 71 Initial Result On Case Name Description Sancton Appeal City of Chicago, LAIG 4945 15-Day No Discipline Off-duty fight where firefighter hit (Cox, 1994) Suspension another firefighter in head with thrown rock; no proof of relationship between incident and employment status, and no proof of damage to Department’s reputation. City of Duncanville, 100 LA Termination Termination Stalking of ex-girlfriend, threatening 795 (Allen, 1993) to kill her dog, and telling her she had “dug her own grave.” Ex-girlfriend was a police officer in same city. City of Houston, Texas, LAIG 15-Day No Discipline Firefighter worked unauthorized fire 5330 (Hays, 1997) Suspension watch at local club without tendering fees to the Department as required by Department rules. Employer failed to give necessary notice to employee of commencement of investigation. City of Philadelphia, 34 PPER 28-Hour 28-Hour Firefighter aimed a rifle scope at a female ¶84)Pa. LRB ALJ 2003) Suspension And Suspension And lieutenant. Firefighter had recently been Transfer Transfer warned that horseplay would not be tolerated. City of Pompano Beach, LAIG 3-Day 3-Day During Union meeting on Department 4712 (Stratham, 1992) Suspension Suspension premises, Union president shoved other firefighter who called him a “fucking, lying bastard.” City of San Antonio, LAIG 12-Day No Discipline Angry reaction to hospital personnel 3982 (Getman, 1987) Suspension who hindered treatment of patient; grievant’s anger justified. City of Texas City, LAIG 6718 Termination Reinstatement Firefighter terminated for intentionally (Detwiler, 2008) Without Back making false allegations against a captain Pay in order to effect the captain’s termination. The Arbitrator concluded that employer did not prove that intentionally false statements were made, and could only show that the firefighter’s comments were disparaging and unfounded. City of Van Buren v. Smith, 46 Termination 30-Day Firefighter was openly disrespectful of S.W.3d 527 (Ark. 2001) Suspension and degrading to a captain following a training meeting, including repeatedly using obscenities. The Court found the true reason for discharge was the firefighter’s letter to City officials criticizing the police handling of a drowning incident.

72 — DISCIPLINARY STANDARDS AND FIREFIGHTERS Initial Result On Case Name Description Sancton Appeal Harmon v. Ogden City Civil Termination Termination Fire captain filled empty weed killer bot- Service Commission, 171 P.3d tle, which he knew was intended for his 474 (Utah App. 2007) supervisor, with his urine; urinated into drafting pit used during training session; urinated in shower stall that was occu- pied by one of his colleagues; allowed female entertainers to pose topless with Fire Department employees while at a union fundraiser; allowed female firefighter to make lewd references to a zucchini; participated in activities where clothed male employees would simulate sexual intercourse with each other; and failed to attend multiple mandatory training meetings. Miller v. Fire Department of 4-Week 4-Week Female firefighter appeared on public Boston, 787 N.E.2d 617 (Mass. Suspension Suspension access cable television program to tout App. 2003) the virtues of firefighting and fire safety. During the presentation, she portrayed a character named “Little Mary” and utilized male and female undergarments as props, as well as making numerous sexual innuendos and displaying over- sized condoms. Orange County Fire Authority, 3-Shift No Discipline Firefighter charged with violating LAIG 5395 (Hart, 1998) Suspension Department’s “Organizational Values Statement” for four incidents of engaging in intimidating and threatening conduct against volunteers. Arbitrator held that Organizational Values Statement was “a self-serving organizational docu- ment that sounds good, but clearly is not applicable to this case.” Arbitrator held that firefighter never followed through on any of his intimidating or threatening comments, though noted that firefighter had “on occasion, a never-ending opin- ionated mouth.” Toledo Firefighters, Local 92, Termination Reinstatement Firefighter surreptitiously taped up to 20 FMCS #07-01828 (Wait, With Back Pay conversations with command officers, 2008) whom she believed were “setting her up.” Department did not have an express rule dealing with recording of conversations, and Arbitrator concluded that the firefighter’s belief that she was being “set up” was not “beyond reason.”

DISCIPLINARY STANDARDS AND FIREFIGHTERS — 73 Initial Result On Case Name Description Sancton Appeal Union Township, 125 LA 1638 Termination 1-Month Firefighter union president distributed (Rosen, 2009) Suspension rap song criticizing his supervisors, and allowed literature for candidate for Township office to be placed on pizza boxes delivered to fire house contrary to instructions not to do so. Arbitrator sustained two insubordination charges, but reduced punishment because two additional charges were unsustained, including one charge that violated principles of double jeopardy. Conflict of Interest Pennsylvania Ethics $1,950 Fine $1,950 Fine Accepting consulting fee in lawsuit Commission, 26 GERR 1621 involving fire in the city. (1988) Criminal Conduct City of Fort Worth, LAIG 4697 Indefinite Reinstatement Subsequently dismissed indictment for (Bennett, 1992) Suspension With Two Years aggravated assault cannot be basis for Of Back Pay discipline. City of Irving, 106 LA 1057 Termination Termination Conviction of misdemeanor for tamper- (Moore, 1996) ing with government records by submitting altered doctor’s slips for sick leave. City of Pembroke Pines, LAIG Indefinite Reinstatement Suspension pending trial for grand theft 3941 (Irsay, 1987) Suspension for taking boat to Bimini without permission. City of Philadelphia, LAIG Termination Termination Arrest for forgery, receiving stolen prop- 3871 (Rock, 1987) erty and credit card fraud; great weight given to need for honesty in firefighters due to frequent entries into others’ homes. City of Providence, Rhode 5-Day 1-Day While off-duty, firefighter was arrested Island, LAIG 6647 (Irvings, Suspension Suspension for possession of marijuana and illegal 2008) fireworks. Arbitrator said that only a “tiny” amount of marijuana and five illegal fireworks were found in the firefighter’s home, and that the firefighter was on injury leave, meaning there was no danger of him reporting for work under the influence of the drug. City of Shawnee, 26 GERR Termination Suspension Off-duty boat accident followed by nolo 1296 (1988) contendere plea to manslaughter.

74 — DISCIPLINARY STANDARDS AND FIREFIGHTERS Initial Result On Case Name Description Sancton Appeal Discrimination City of Harrisburg, LAIG 4707 3- And 1-Day No Discipline White firefighter referred to black fire- (Skonier, 1992) Suspensions fighter as “Spanky” in presence of other white firefighter, who had previously been warned about use of the name “Buckwheat.” Discipline inappropriate for merely hearing comment, and no forewarning that use of name “Spanky” was prohibited. City of Panama City, Florida Written Written Police officer working backstage at and Bay County Professional Reprimand Reprimand concert noticed a performer was having Firefighters, Local 3216, IAFF, difficulty fitting into his uniform. Fire 1996 WL 491999 (Hoffman, department lieutenant standing nearby 1996) suggested to the officer that she should “go ahead and accompany him to the bathroom and assist him by holding his cock.” Harmony VFC v. Termination Reinstatement Assisting in filing sex discrimination Commonwealth, 459 A.2d 439 claim against employer. (Pa. Cmwlth. 1983) Discriminatory Conduct City of Bridgeport and IAFF, 30-Day 15-Day Fire lieutenant referred to another Local 834, 3 NPER 10:7 Suspension Suspension employee as a “fucking nigger.” (Conn. Board of Mediation Suspension reduced given the lack of and Arbitration Feb. 2000) serious discipline over the lieutenant’s 20-year career. Patterson v. New Orleans Fire 30-Day No Discipline Upon entering credit union office in Department, 727 So.2d 551 Suspension which four African-American females (La. App. 1998) were present, deputy fire chief commented that the credit union must be “giving away free food.” Two-and-one- half-year delay in civil service hearing warranted reversal of suspension. Chief’s prior volunteer activities in African-American community made clear that “remark was insensitive and unprofessional, or a bad joke,” but was not “motivated by any racial or gender animus.” Dishonesty Brennan v. City of White Plains, Termination Termination Firefighter intentionally made false 687 N.Y.S.2d 413 (A.D. 1999) statement of material fact in his original application to become a firefighter.

DISCIPLINARY STANDARDS AND FIREFIGHTERS — 75 Initial Result On Case Name Description Sancton Appeal Canton Township, LAIG 4269 Termination Reinstatement Failure to list former employer on appli- (Brooks, 1989) cation; employer did not act in timely fashion. Castner v. Griffith, 641 Termination Termination Falsification of information concern- N.Y.S.2d 769 (A.D. 1996) ing residence on job application forms. Dishonesty discovered during firefighter’s probationary period. City of Cocoa, 95 LA 425 Termination 5-Day Falsification of employment application (Seidman, 1990) Suspension to omit conviction for sexual misconduct; firefighter thought record had been expunged and City did not perform adequate background investigation. City of Detroit, LAIG 6246 Termination Reinstatement Firefighter was terminated for cashing (Daniel, 2005) With Back Pay lottery tickets stolen from a store that And Interest was the scene of a fire. Employer relied on videotape that did not conclusively show that the firefighter took the tickets. City of East Cleveland, Ohio, Termination Reinstatement Firefighter was terminated for accusing LAIG 6624 (Graham, 2008) With Back Pay a part-time fire marshal of “double dipping” by working at a second job while in pay status for his primary employer. Arbitrator concluded that the firefighter was not intentionally dishonest, and could have reasonably believed the fire marshal’s conduct amounted to “double dipping.” City of Novi, Michigan, LAIG Termination Termination Fire protection officer repeatedly submit- 6177 (Gravelle, 2004) ted false time cards. Union’s defense that employee was merely negligent in how she filled out cards rejected because of officer’s intelligence and the number of false entries. City of Rialto, 125 LA 550 12-Shift No Discipline Firefighter disciplined for calling in (Gentile, 2008) Suspension sick with a sore wrist on the first day of a three-day holiday and then being videotaped carrying bicycles, washing his truck, and engaged in other physical activities. Evidence did not establish that the firefighter’s activities were inconsistent with the reason he called in sick. City of Tampa, 1996 WL Termination Demotion Alleged falsification of report by para- 285031 (Cohen, 1996) medic to indicate that medication given after radio call to physician advisor rather than before; while report possibly “deliberately ambiguous,” it was not dishonest.

76 — DISCIPLINARY STANDARDS AND FIREFIGHTERS Initial Result On Case Name Description Sancton Appeal City of Wyandotte, LAIG 6301 Termination Termination Firefighter fraudulently claimed that his (Finkel, 2004) former live-in girlfriend was his wife on his employer’s health insurance system. Employee was subject to a “last-chance” agreement, and dishonesty with respect to insurance cost the City approximately $17,600 in premiums. Lacombe v. Lafayette City-Parish Termination Reinstatement Fire captain terminated for untruthful- Consolidated Government, 866 With Back Pay ness in indicating he did not know why So.2d 273 (La. App. 2003) so many firefighters called in sick during an alleged “blue flu.” Court found that captain’s statements could be subject to multiple interpretations, and that he was not being “charged with participating in the sickout, but was apparently disciplined because it took place.” The Court found no real and substantial relationship between captain’s conduct and the efficient operation of the Department. Pientka v. Board of Fire and Termination Termination Filing of false workers’ compensation Police Commissioners, 465 claim. N.E.2d 677 (Ill. App. 1984) Town of Pahrump, LAIG 6243 Demotion Reinstatement Fire lieutenant demoted for taking leave (Jones, 2005) With Back Pay without notice during his regularly- scheduled shift and for falsifying time sheets. Past practice existed of allowing firefighters to run errands while on duty, and employer issued no directions on the issue until after demoting the lieutenant. Driving Offenses Allingtown Fire District, 98 LA 1-Day No Discipline Approach to fire resulting in truck get- 263 (Meredith, 1991) Suspension ting stuck in mud and damage to private property; firefighter acted reasonably in making judgment that fire could be fought more effectively from position of the truck. Apostoli v. City of San Francisco, Suspension Suspension Driver of engine rear-ended cars stopped 74 Cal.Rptr. 435 (Cal. App. on freeway off-ramp in rainy conditions. 1969) City of Livonia and Local 1164, 48-Hour Written Captain with 24 years’ experience took LAIG 4323 (Tanzman, 1990) Suspension Reprimand wrong turn en route to fire scene. City of Lynn, LAIG 4227 Written No Discipline Open door to compartment hit wall, (Stutz, 1989) Reprimand causing $2,000 damage; contract required showing of gross negligence.

DISCIPLINARY STANDARDS AND FIREFIGHTERS — 77 Initial Result On Case Name Description Sancton Appeal City of Mesquite, Texas, LAIG Demotion 30-Day Firefighter engaged in careless driving 6665 (Bennett, 2008) Suspension which the employer characterized as “racing.” Arbitrator was convinced that while the firefighter did drive carelessly, he was not “engaged in a contest of speed for sport.” Defense of disparate treatment was justified, mitigating the punishment. City of Omaha and Local 385, Demotion Reinstatement Fire engineer negligently caused accident 86 LA 142 (Thornell, 1985) on wet streets; defense of prior good work record. City of St. Clair Shores, LAIG 3-Day Written Detour of ambulance to tend to personal 4032 (Conner, 1987) Suspension Reprimand business; two other firefighters involved in incident received reprimands. Southwest Fire Control Tax 1-Shift Written Firefighter drove truck into side of sta- District No. 6, 23 GERR 153 Suspension Reprimand tion; good work record and disparate (Kanzer, 1984) treatment basis for reversal. Town of Salem, New Termination Termination Firefighter pled guilty to driving under Hampshire, LAIG 6258 the influence and lost his driver’s license (Altman, 2005) for two years. Even though the Town accommodated other employees who lost their licenses for off-duty alcohol-related incidents, Arbitrator upheld termination because this was the firefighter’s second offense of an identical nature, and the loss of his license was for an extended period of time. Equipment Town of Salem, LAIG 5408 2-Day Written Lieutenant tossed radio onto dashboard (Peace, 1997) Suspension Reprimand of fire truck, cracking window in two places and causing $200 in damages. Decided on progressive discipline basis, taking into account lack of malicious intent on lieutenant’s part as well as prior clean work record. Firearms Offenses City of Tarpon Springs, 107 LA Termination Reinstatement Firefighter brought firearm into fire sta- 230 (Deem, 1996) Without Back tion and accidentally fired it into carpet; Pay employer had not evenly enforced policy calling for discharge for violation of rules prohibiting bringing loaded weapons onto City property.

78 — DISCIPLINARY STANDARDS AND FIREFIGHTERS Initial Result On Case Name Description Sancton Appeal Grooming Codes City of Kalamazoo, 22 GERR Indefinite Written Failure to shave beard as required by 171 (Daniel, 1983) Suspension Reprimand rules. City of Pembroke Pines, LAIG Termination Reinstatement Supervisors recommended two- to 4174 (Benson, 1988) five-day suspension; policy unevenly enforced. Incompetence Ciechon v. City of Chicago, 686 Termination Reinstatement Paramedic who answered 26 calls in 27 F.2d 511 (7th Cir. 1982) hours failed to administer oxygen to elderly man who died. Only one of four employees on the scene were disciplined. City of Reno, LAIG 4878 Indefinite Reinstatement Temporary revocation of license pending (Bogue, 1993) Suspension criminal charges; past practice of finding non-driving jobs for similarly-situated firefighters. Duncan v. Dept. of Public Termination Termination Fire marshal failed to inspect properties Safety, 468 So.2d 797 (La. or file reports. App. 1985) Insubordination Brown v. City of Palatka, 24 Termination Reinstatement Engaging in fundraiser for local union; GERR 1533 (Fla. PERC conduct held to be protected activity. 1986) City of Arlington Heights, 26 30-Day 30-Day Refusal to take stress test. GERR 1072 (Ill. App. 1988) Suspension Suspension City of Dallas v. Hamilton, 132 Termination Termination Fire inspector refused to answer ques- S.W.3d 632 (Tex. App. 2004) tions about off-duty illegal gambling. Inspector was involved in a large-scale bookmaking operation that was working in the Dominican Republic, Jamaica, and Texas. City of Fort Lauderdale and 1-Shift Written 23-year firefighter used phrase “chicken IAFF, Local 1545, 1990 BNA Suspension Reprimand shit” five to six times in conversation Unp. Lab. Arb. LEXIS 1288 with supervisor. Public did not witness (Abrams, 1990) event. City of Hanford, 22 GERR 4-Shift 4-Shift Refusal to work as nozzle man during 1470 (Rothstein, 1984) Suspension Suspension training exercise; safety of exercise found adequate. City of Hartford, PEB ¶45,197 Suspension Reinstatement Loud, heated verbal exchange with (Conn. SBLR 1987) employer at discipline hearing; anti- union animus basis for decision.

DISCIPLINARY STANDARDS AND FIREFIGHTERS — 79 Initial Result On Case Name Description Sancton Appeal City of Lancaster, LAIG 4210 1-Day Written When lieutenant reported for overtime, (Rock, 1989) Suspension Reprimand officer commented, “Here comes another greedy fuckin’ officer for overtime.” No prior suspensions for profanity. City of Lauderhill, Florida, 121 Termination Termination Firefighter disobeyed order that fire- LA 1035 (Duda, 2005) fighters not consume alcohol during hurricane watch. Firefighter could not report for work because of his alcohol consumption. City of Loraine, 122 LA 865 Written No Discipline Firefighter disciplined for insubordina- (Skulina, 2006) Reprimand tion when he rode his bicycle to work after captain told him not to. Captain’s order was not unequivocal and there was no evidence of disrespect for superior officer. City of Marshall, 96 LA 984 10-Day 3- And 2-Day Refusal to decorate fire station with (Allen, 1991) Suspensions Suspensions Christmas lights. Firefighters denied right to union representation during interview and neither had any disciplinary record. City of Miami and Local 1969, 1-Shift 1-Shift Refusing to clean up mess left by muddy 91 LA 697 (Stephens, 1988) Suspension Suspension boots after twice being ordered to do so.

City of Providence, Rhode 1-Day Written Firefighter refused to answer supervi- Island, LAIG 6499 (Altman, Suspension Warning sor’s questions as to where he was when 2007) using FMLA leave. Arbitrator concluded suspension too harsh, as firefighter believed that revealing his location would have disclosed the nature of his wife’s medical condition. Crawford v. Jonesville Board 1-Year 1-Year Volunteer firefighter refused to partici- of Fire Commissioners, 645 Suspension Suspension pate in sexual harassment training after N.Y.S.2d 586 (A.D. 1996) being ordered to do so. Formal rule requiring sexual harassment training not necessary before discipline could be imposed. Evanston FFA, Local 742, 27 30-Day No Discipline Failure to stop solicitation effort in name GERR 1347 (Ill. App. 1989) Suspension of “Evanston Firefighters.” In re: Marine Corp Air Ground 2-Day Written Firefighter hung up telephone on assis- Combat Center, 105 LA 942 Suspension Reprimand tant chief during argument; assistant (Gentile, 1996) chief had significant personal difficulties relating to subordinate personnel, and firefighter told assistant chief that he had nothing more to say and was going to end the conversation before he hung up.

80 — DISCIPLINARY STANDARDS AND FIREFIGHTERS Initial Result On Case Name Description Sancton Appeal Kadzielawski v. Board of Fire $1,500 Fine $1,500 Fine General bad attitude towards paramedic and Police Commissioners of training, including wearing T-shirt stat- Skokie, 551 N.E.2d 331 (Ill. ing “Compassion Sucks” and stating App. 1990) chief was “stupid” to require classes. Kansas City Fire Department, 24-Hour No Discipline Captain refused Chief’s direct order to 107 LA 519 (Berger, 1996) Suspension sign as a witness to a disciplinary report on another firefighter; while suspension justified, employer required to comply with settlement it reached with Union to withdraw discipline if Union would publish notice to its members to “work now, grieve later.” Marshall v. City of Atlanta, 614 Termination Termination Referring to supervisors as “goddamn F. Supp. 581 (N.D. Ga. 1984) mother fuckers, downtown lackeys and sons of bitches.” Miami-Dade County, Florida, 48-Hour No Discipline Lieutenant violated rule prohibit- LAIG 6798 (Hoffman, 2009) Suspension ing firefighters from working more than 48 consecutive hours. Arbitrator accepted “clear and concise” testimony of lieutenant that battalion chief knew of the lengthy hours and did not warn the lieutenant that he would be disciplined. Arbitrator rejected testimony of battalion chief on the grounds it was “punctuated by several ‘I do not recall that’ responses.” Orange County, Florida and 24-Hour No Discipline Firefighter/EMT suspended for IAFF, Local 2057, LAIG 6495 Suspension improperly taking a lunch break at his (Smith, 2007) residence. The firefighter’s residence was in his assigned area, and the employer did not have any rules prohibiting employees from going home on their meal periods. Palm Beach County, LAIG Termination Reinstatement Excessive absenteeism and failure to 3777 (Hardy, 1986) Without Back produce requested medical records; no Pay specific warning of intent to discharge if records not produced. Rushing v. Eldorado Civil 2-Day 2-Day President of unofficial fire union in Service Commission, 2002 WL Suspension Suspension non-bargaining state failed to comply 31424851 (Ark. App. 2002) with Chief’s instructions with final calculations of cost of change in pay cycle. Firefighter mistakenly concluded that the Chief’s order for the information was only a “request.” Russ v. City of Pine Bluff, 262 Termination Termination Refusal to act as driver without receiving S.W.2d 137 (Ark. 1953) extra pay.

DISCIPLINARY STANDARDS AND FIREFIGHTERS — 81 Initial Result On Case Name Description Sancton Appeal Shelby County Government, 98 24-Hour No Discipline Firefighter picked up paycheck at LA 126 (Nicholas, 1991) Suspension Finance Department; contract called for captains to pick up and distribute paychecks. No specific direction given to firefighter as to how to pick up paycheck. Thomas v. City of Orlando, 23 Termination Termination Lieutenant wrongly believed he was twin GERR 1546 (Yarowsky, 1985) of Jesus Christ and therefore entitled to castigate his supervisors; Arbitrator rejected defense of religious discrimination. Job Qualifications City of Saint Paul v. Carlisle, Termination Reinstatement Firefighter let EMT certification – a 2000 WL 1847716 (Minn. mandatory job requirement – lapse. App. 2000) Disciplinary hearing board criticized employer “for attempting to color its determination by introducing firefighter’s prior disciplinary record without a con- textual background.” Neglect of Duty City of Clearwater, FMCS 05- Termination Reinstatement Paramedic failed to respond to emer- 58832 (Holland, 2006) With Back Pay gency call received from well-known “system abuser” who had made false calls for service on 15 prior occasions, and referred call to Police Department. Fire chief withheld exculpatory information from the City Manager, and Division Chief’s initial recommenda- tion was for a counseling. City of Houston, LAIG 5405 2-Day 2-Day Captain delayed decision as to who (Britton, 1998) Suspension Suspension would drive fire truck, resulting in truck arriving three minutes late to house fire. Arbitrator stressed need for prompt response in emergency situations, and that captain did not exhaust available alternatives to find driver/ engineer to operate truck. New Haven Firefighters, Local Termination 6-Month Firefighter alleged to have improperly 825, IAFF v. City of New Suspension downloaded personal information Haven, 2003 WL 22039126 from Department’s computer system (Conn. Sup. 2003) and failed to respond to fire alarm. Arbitration panel found that the information in the computer system was almost universally unprotected, and that it could not be proven that firefighter downloaded information.

82 — DISCIPLINARY STANDARDS AND FIREFIGHTERS Initial Result On Case Name Description Sancton Appeal Obesity McMillen v. Civil Service 12-Day 12-Day 5’8” ambulance driver weighed 204 Commission of Los Angeles, Suspension Suspension pounds; Court found rational relation- 1992 FPPR 120 (1992) ship between physical fitness and duties of ambulance personnel. Off-Duty Employment City of Okmulgee, 26 GERR 3-Day 3-Day Off-duty work in recreational center that 1471 (Harr, 1988) Suspension Suspension sold beer and featured topless dancers. Cook v. Von Essen, 724 Termination Termination Firefighter operated a pool maintenance N.Y.S.2d 841 (A.D. 2001) business without approval as required by Department rules and did so while on medical leave on four separate occasions. State v. City of Livingston, 395 Termination Termination Fire chief owned tavern; twice convicted P.2d 971 (Mont. 1964) of selling alcohol to minors. Performance of Duty City of Mansfield, Ohio, 121 Demotion Reinstatement Employer demoted fire captain when LA 1141 (Szuter, 2005) truck ended up in front of wrong fuel pump, where it was filled with wrong fuel, disabling the truck in the middle of the biggest ice storm in the City’s history. Arbitrator concluded conduct was a “mix-up, at best.” In re Vena, 2007 WL 3119449 10-Day 10-Day EMT refused to respond on foot to a (N.J. Super A.D. 2007) Suspension Suspension call for emergency medical assistance when his ambulance could not exit the station because of a power outage. The emergency was one block away from the station. Rinehart v. City of Greenfield, Termination Reinstatement City discharged firefighter/paramedic 2007 WL 1100756 (S.D. With Back Pay whose work privileges were revoked by Ind. 2007) the Fire Department’s medical director after firefighter submitted a report that failed to include mention of a problem with a pressure relief valve on artificial respiration equipment. The Court concluded that “the City could not lawfully delegate complete and final authority over employment to the medical director,” and that the City’s “narrow theory turned important substantive and procedural protections for firefighters into a hollow sham.”

DISCIPLINARY STANDARDS AND FIREFIGHTERS — 83 Initial Result On Case Name Description Sancton Appeal Town of Southbridge, LAIG Letter Of No Discipline Two firefighter/EMTs were disciplined 6480 (O’Brien, 2006) Warning for changing from their firefighting uniforms to ambulance clothing before responding to a 911 call. The firefighters knew the 911 call was not a distress call. The Arbitrator credited their testimony that they needed to change clothes in order to reduce the chance of contaminants in the ambulance. Votolina v. St. Tammany Fire Termination Termination Firefighter disregarded order of cap- District XII, 970 So.2d 1015 tain to enter front door of burning (La. App. 2007) structure. Firefighter had past record of being unwilling to enter burning structures. Physical/Emotional Condition Dowrick v. Village of Downers Termination Termination Firefighter with neck and back injuries Grove, 840 N.E.2d 785 (Ill. diagnosed as being unable to perform App. 2005) some essential physical functions of the job. While no one had been injured because of the firefighter’s performance, the Court found that there is no rule that an employer must wait until a firefighter’s unfitness has resulted in injury before addressing the danger posed by the firefighter’s continued service. Town of Southington, 100 LA Termination Termination Inspector developed extreme anxiety 67 (Halperin, 1992) reaction to day-to-day encounters which were part of job, resulting in his falsifying inspection log to incorrectly indicate that work had been performed. Political Activities City of Harrisburg, LAIG 3436 Reprimand No Discipline Firefighter told media that “he didn’t (Forkosch, 1984) believe” the mayor; decided on free speech grounds. City of Lynn, LAIG 4268 3- To 5-Day 1-Day Off-duty entry in uniform into mayor’s (Golick, 1989) Suspensions Suspension office to protest equipment; found to be excessive punishment. Polygraph Examinations Talent v. City of Abilene, 508 Termination Reinstatement Failure to submit to examination; Chief S.W.2d 592 (Tex. 1974) had no right to order polygraph on non- job-related matters (stolen truck).

84 — DISCIPLINARY STANDARDS AND FIREFIGHTERS Initial Result On Case Name Description Sancton Appeal Productivity/Performance/Rules Violations Brown v. St. Paul Department Termination Termination Fire recruit terminated after he failed of Fire and Safety Services, 2004 five tests during the Academy, includ- WL 2940873 (Minn. App. ing a written examination, knot tying, 2004) circuit examination, and donning SCBA. Recruit did not fully take advantage of offers from Department for remedial training. City of Lawton, LAIG 3961 2-Shift Written Failure to dispatch unit to woman who (Goodman, 1987) Suspension Reprimand fell into bathtub; progressive discipline not followed. Detroit Fire Department, 96 LA Demotion 1-Day Captain failed to submit report when 995 (Roumell, 1991) And 1-Day Suspension trainee’s locker was damaged by bullets Suspension from firefighters’ target practice; captain resolved issue by obtaining reimbursement for trainee’s losses. Lewis v. Board of Trustees, 368 60-Day 60-Day Fire Chief failed to attend N.Y.S.2d 883 (A.D. 1975) Suspension Suspension Commissioners’ meeting and correct alarm problems; defense that behavior occurred on day off rejected by Court. Minneapolis Association of Fire Written Written Battalion chief performed inadequate Chiefs, 1995 WL 862034 Reprimand Reprimand job of investigating sexual harassment (Fogelberg, 1995) complaint and created insufficient docu- mentation of the investigation. Sacramento Area Firefighters, Termination 1-Month Termination of paramedic for failing to Local 522 and Sacramento Suspension accurately complete patient care reports. County Fire Protection District, The charge was proven; Arbitrator con- 99-2 ARB Para. 3075 (Riker, cluded that progressive discipline not fol- 1999) lowed and that paramedic’s “deficiencies are not of a magnitude that his maladies require amputation.” Stone v. Ocean City-Wright Fire Demotion Reinstatement Allegations of overbearing attitude; Control District, 22 GERR anti-union animus true basis for demo- 1320 (Fla. PERC 1984) tion. Tahoe-Douglas Fire Protection Termination 3-Month Fire captain with 28 years of service District, LAIG 5198 (Silver, Suspension failed to respond to 911 call and then 1996) lied to caller about incident. Arbitrator concluded that medication taken by captain following dental surgery impaired his judgment and memory.

DISCIPLINARY STANDARDS AND FIREFIGHTERS — 85 Initial Result On Case Name Description Sancton Appeal Town of Windsor, LAIG 4798 2 ½-Day Written Angry exchange between inspector and (Staley, 1993) Suspension Reprimand school vice-principal about fire code violations which were uncorrected; inspector’s frustration product of trying to do job well. Racially, Sexually and Religiously Directed Conduct Bajis v. City of Dearborn, 24 Termination Termination Probationary firefighter made obscene GERR 1195 (Mich. App. phone calls on duty. 1986) Hill Air Force Base, 114 LA Termination Reinstatement Firefighter was criminally charged with 1670 (Staudohar, 2000) Without Back and confessed to having sexual relations Pay with male minor in public bathroom outside of workplace. Sexual act was consensual, minor appeared to be of age, firefighter’s therapist opined that similar activities would never happen again, and incident had no impact on firefighter’s ability to do his job. Hillsborough County, 2001 WL Termination Termination Fire captain sexually and religiously 84588 (Frost, 2001) harassed female trainee, standing close to her, sending her e-mails at home that were initially religious and spiritual and progressed to crude jokes and obscene and pornographic materials, and hugged and kissed her on three separate occasions in a 30-day period. Hynes v. City of Buffalo Fire 10-Day 10-Day Three firefighters complained that a bat- Department, 779 N.Y.S.2d 696 Suspension Suspension talion chief used a racial slur when refer- (A.D. 2004) ring to their ethnic group. Trayling v. Board of Fire and 30-Day 30-Day Sexual harassment, including unwanted Police Commissioners, 652 Suspension Suspension kissing, discussion of vibrators, dildoes, N.E.2d 386 (Ill. App. 1995) masturbation and bestiality, and display of box of lingerie. Defense of freedom of speech rejected. Watson v. City of Gatlinburg, Termination Termination Firefighter applied ammonia to mop 699 S.W.2d 171 (Tenn. App. handle and held the handle through the 1985) bars of a jail cell as a prisoner demonstrated oral sex.

86 — DISCIPLINARY STANDARDS AND FIREFIGHTERS Initial Result On Case Name Description Sancton Appeal Residency Rules City of Barberton, Ohio, 120 Termination Reinstatement City failed to prove that firefighter was LA 1268 (Goggin, 2004) With Full Back not complying with residency rule. Pay Firefighter owned eight homes. The City’s investigator only saw the firefighter at a non-city residence four times in a 70-day period, and City ignored testimony of witnesses favorable to firefighter in lieu of relying on two neighbors who admittedly dislike the firefighter. City of Warren, 118 LA 129 Termination Reinstatement Firefighter maintained two residences, (Duff, 2003) With Back Pay one inside and one outside the city (where his wife and child resided). Firefighter paid property and income taxes from city address. Fact that co- worker who rented sleeping space in firefighter’s city home did not see him at the residence for five months not dispositive, since renter actually used sleeping space five to ten times. Civil Service of Pittsburgh v. Termination Termination Firefighter maintained furnished, though Parks, 471 A.2d 154 (Pa. vacant, home in the city. Cmwlth. 1984) In the Matter of Civil Service Termination Reinstatement Fact that firefighter frequently slept at Charges Against Richard Without Back a residence outside the city limits did Wickline, 19 OPER ¶1780 Pay not overcome evidence that firefighter (Ohio App. 2002) spent significant part of each day at his city residence, kept his clothes there, and received mail and telephone messages at the city address. McCarthy v. Philadelphia, 424 Termination Termination Maintenance of dual residence in New U.S. 645 (1976) Jersey.

O’Boyle v. Personnel Board, 456 60-Day 60-Day Firefighter frequently “visited” wife in N.E.2d 998 (Ill. App. 1983) Suspension Suspension suburbs from whom he had obtained legal separation. Sexual Misconduct City of Minneapolis, 121 LA 77 Termination Reinstatement Firefighter terminated for off-duty (Befort, 2005) With Back Pay unwanted sexual behavior with homeowner. Homeowner did not testify in arbitration hearing. Arbitrator concluded firefighter’s sworn denial of charges outweighed notes taken by Chief during investigatory interview of homeowner.

DISCIPLINARY STANDARDS AND FIREFIGHTERS — 87 Initial Result On Case Name Description Sancton Appeal City of Portland, Maine, LAIG Oral Reprimand No Discipline Firefighter given oral reprimand for 6297 (Litton, 2005) sexual harassment following complaint by a female EMT with whom he was training. Arbitrator concluded that discipline relied “not on firefighter’s alleged misconduct, but rather on the misinter- pretation of his actions by others.” The EMT did not wish to pursue a sexual harassment charge. City of Westerville, Ohio and 1-Day No Discipline Firefighter/medic alleged to have given IAFF Local 3480, 128 LAIS Suspension improper chest examination of female 2055 (Felice, 2001) victim. Arbitrator criticized employer’s investigation for not even interviewing accident victim and concluded there was not a “scintilla” of evidence indicating that the firefighter engaged in improper behavior. Gracia v. Civil Service Termination Termination Paramedic positioned legs of semi-con- Commission of Los Angeles, scious female patient in position where 2004 WL 887192 (Cal. App. her genitals were fully exposed during 2004) transport to hospital, looking at the woman’s crotch area with one hand on each knee. Paramedic, who commented to co-worker, “I have to go home and jerk off now,” pled no contest to criminal charge of disturbing the peace. Littrell v. City of Kansas City, 6-Month 6-Month Married firefighter had sex with girl- Missouri, 2005 WL 3448042 Suspension Suspension friend on numerous occasions while at (W.D. Mo. 2005) fire station. Firefighter unable to prove that settlement agreement that resulted in discipline was entered into under duress. Sick Leave Abuse City of Bedford Heights, Ohio, 10-Tour 2-Tour 27-year firefighter called in sick, and LAIG 6257 (Wallace-Curry, Suspension Suspension then attended annual firefighters’ picnic. 2005) Employer contended that firefighter’s act of driving 40 minutes to the picnic and remaining nine hours with bathrooms approximately 300 feet away demonstrated he was not sick. While Arbitrator concluded the firefighter abused sick leave, suspension reduced because of firefighter’s lengthy record without discipline.

88 — DISCIPLINARY STANDARDS AND FIREFIGHTERS Initial Result On Case Name Description Sancton Appeal City of Chicago, LAIG 3832 15-Day Reinstatement Working as a teaching assistant while on (Goldberg, 1986) Suspension sick leave; employer never objected to employee’s off-duty work during prior illnesses. City of Newark, Case No. 08- 1-Shift No Discipline Firefighter suspended for excessive use 0402 (Gifford, 2009) Suspension of sick leave. Employer inappropriately relied on prior reprimands that should have been expunged from the firefighter’s personnel file. City of Pueblo, 95 LA 465 2-Day No Discipline Working on recreational vehicle while (Sass, 1989) Suspension on sick leave; no showing that firefighter had the physical capability to do the job. Lantier v. Lafayette City-Parish Termination Reinstatement Firefighter fired for sick leave abuse in Consolidated Government, 839 With Back Pay connection with possible department- So.2d 1176 (La. App. 2003) wide “sickout.” Court determined the true reason for discipline of firefighter, who was only individual in Department disciplined, was for not disclosing to the Chief the names of firefighters who had allegedly been planning the “sickout.” Tovar v. City of Laredo, 2001 30-Day 30-Day Firefighter with sick leave problems took WL 687554 (Tex. App. 2001) Suspension Suspension sick leave only to be discovered acting as a “tent preacher” in a local religious revival. Sleeping on the Job Amendola v. Civil Service 3-Day 3-Day Firefighter slept through alarm clock and Commission, 589 A.2d 775 Suspension Suspension missed meeting with mayor. (Pa. Cmwlth. 1991) City of Laredo, LAIG 4142 Indefinite 14-Calendar- Sleeping on duty resulting in missed call. (Stephens, 1988) Suspension Day Suspension Konyha v. Mount Clemens Termination Suspension Sleeping through roll call; local rule Civil Service Commission, 224 prevented consideration of firefighter’s N.W.2d 833 (Mich. 1975) two prior sleeping incidents more than 90 days old. Simonis v. Countryside FPD, 5-Day Reinstatement Sleeping through call; was not woken by 527 N.E.2d 673 (Ill. App. Suspension two other firefighters on duty. 1988) Substance Abuse Allgood v. City of Akron, 737 Termination Termination Firefighter who tested positive for N.E.2d 111 (Ohio App. 2000) cocaine was placed in employee assistance program. After his return to work, he again tested positive for cocaine.

DISCIPLINARY STANDARDS AND FIREFIGHTERS — 89 Initial Result On Case Name Description Sancton Appeal Childers v. Hayes-White, 2007 Termination Termination Firefighter consumed alcohol while on WL 1649285 (Cal. App. duty, including a bottle of vanilla extract; 2007) blood alcohol tested at 0.45 percent. Fact that employer offered last-chance agreements to other employees that allegedly engaged in worse misconduct not a defense to the discipline. City of Chicago, LAIG 3570 Termination Reinstatement Alcoholism without any demonstrated (Killingsworth, 1984) impact on job performance. City of Chillicothe, LAIG 4942 Termination Termination 14-year firefighter convicted of off-duty (Duda, 1994) DWI; two prior license suspensions for drinking problems. Arbitrator refused to place firefighter in higher-paying dispatch job. City of Corpus Christi, 113 LA Denial of Denial of Firefighter who failed a random drug 329 (Allen, Jr., 1999) Promotion Promotion test was denied a promotion to captain. Arbitrator concluded that captain’s supervisory responsibilities mandated a higher standard on this issue of drug use. City of Cranston, AAA #11- Termination Termination Firefighter repeatedly used cocaine and 390-00603-05 (Boulanger, marijuana, and pled nolo contendere to 2006) (Unreported decision; two criminal drug charges. Arbitrator copy available from LRIS) rejected defense that Department not harmed because press accounts of plea did not tie firefighter to Department. City of Detroit, LAIG 3253 6 1/2-Month 3-Day Conviction of possession of Valium; first (Gales, 1983) Suspension Suspension offense. City of Detroit, LAIG 4677 Denial Of Award Of Bypass of firefighter for promotion who (Roumell, 1992) Promotion Promotion had previously been suspended for use of marijuana; defense of double jeopardy upheld. City of Fort Lauderdale, Florida, Termination Reinstatement Firefighter adulterated his urine sample 115 LA 418 (Mittenthal, Without Back using the product “Klear.” Arbitrator 2001) Pay accepted evidence that firefighter was only passively exposed to marijuana smoke. City of Inkster, LAIG 4222 Termination Reinstatement Possession and sale of cocaine while on (Sugerman, 1989) disability leave. City of Lancaster, LAIG 4210 2-Day Written Reporting for work with blood alcohol (Rock, 1989) Suspension Reprimand level of .055; abusive language; inadequate notice of work rules.

90 — DISCIPLINARY STANDARDS AND FIREFIGHTERS Initial Result On Case Name Description Sancton Appeal City of Lancaster v. Clopton, Termination Unspecified Firefighter tested positive for marijuana 246 S.W.3d 837 (Tex. App. Suspension during a random drug test. Evidence 2008) established that the employer had a second-chance policy that generally followed principles of progressive discipline. City of Memphis, LAIG 6801 72-Hour No Discipline Firefighter accepted diversion in lieu (Shaw, 2009) Suspension of prosecution on criminal charges of boating under the influence of alcohol. Firefighter denied that he had been under the influence of alcohol, and the employer “made no effort to interview either the arresting officers or either of the other adults involved in the incident, nor did he talk to the prosecuting attorney.” City of Miami, LAIG 4040 160-Hour Reinstatement Off-duty purchase of cocaine; drug (Randles, 1988) Suspension policy required treatment, no discipline for first offense. City of Miami, LAIG 4391 Termination Reinstatement Off-duty arrest for possession of 1/2 (Foster, 1990) With Back Pay gram of cocaine; no showing of adverse impact on employer, and employer did not provide opportunity for rehabilitation. City of Northampton, LAIG Termination Written Use of cocaine while off duty; no show- 3859 (Fraser, 1986) Reprimand ing of impact on performance and no rules concerning drug use. City of Philadelphia, LAIG 20-Day 5-Day Fire captain with 28 years of ser- 5383 (Dorsey, 1998) Suspension Suspension vice cited for off-duty driving while intoxicated. Captain resolved criminal charges and then notified City of what had occurred. Arbitrator concluded that City policy only prohibits off-duty intoxication if it impacts member’s ability to perform job; progressive discipline also factor in decision. City of Rochester, 94-1 ARB 3-Day 3-Day Off-duty DUI conviction; contract ¶4184 (Ver Ploeg, 1993) Suspension Suspension allowed discipline for “excessive use of intoxicating beverages while off duty.” Coweta County v. Henderson, Termination Termination On random drug test, firefighter tested 606 S.E.2d 7 (Ga. App. 2004) positive for amphetamines and metham- phetamines. In non-union setting, Court was obliged to uphold decision of personnel board if there was “any evidence” supporting the termination.

DISCIPLINARY STANDARDS AND FIREFIGHTERS — 91 Initial Result On Case Name Description Sancton Appeal Crisman v. Eckert, 730 Termination Termination In lieu of termination for various acts N.W.2d 209 (Iowa App. of misconduct, firefighter agreed to a 2007) “return to work” contract that required he be certified as fit for duty prior to re-employment. When firefighter’s drug test was positive for marijuana, employer refused to re-employ him. Gentilli v. Board of Police and Termination Termination Firefighter admitted that he had con- Fire Commissioners of the City sumed and shared cocaine and marijuana of Madison, 717 N.W.2d 853 over a ten-year period. Court rejected (Wis. App. 2006) firefighter’s challenge that “obey all laws” regulation was unconstitutionally vague. IAFF v. City of Tualatin, XIII Termination Termination Repeated performance problems due to Ore. Lab. Dig. p. 7 (Lindauer, alcoholism culminating with inability to 1990) take physical agility test. IAFF v. Prince Georges County, Termination 28-Day Driving while intoxicated and possession 26 GERR 480 (Md. App. Suspension of marijuana. 1988) In re Gonzalez, 2009 WL Termination Termination Firefighter tested positive for cocaine. 88349 (N.J. Super. A.D. 2009) Firefighter was unable to show unreli- ability concerning the test results. Kelly v. Scoppetta, 866 Termination Termination Firefighter used cocaine on several occa- N.Y.S.2d 770 (A.D. 2008) sions and tested positive on a random drug test. Defense of post-traumatic stress disorder rejected. Krolick v. Lowery, 257 N.E.2d Fine, Suspension Fine, Suspension Refusal to take reasonable suspicion drug 56 (N.Y. 1970) test. Madden v. Board of Police and 90-Day 90-Day Engineer admitted to repeated cocaine Fire Commissioners of the City Suspension And Suspension And and marijuana use over a number of of Madison, 710 N.W.2d 725 Demotion From Demotion From years. The Court found that Department (Wis. App. 2005) Engineer To Engineer To rule that members shall “obey all laws” Firefighter Firefighter was not unconstitutionally vague. Metropolitan Dade County, Termination Reinstatement Positive test for cocaine; contract’s proce- LAIG 4258 (Boals, 1989) dures for drug testing not followed. Morgan v. City of St. Louis, 154 Termination Reinstatement Fire captain discharged after testing posi- S.W.3d 6 (Mo. App. 2004) With Back Pay tive for marijuana. Captain, who claimed inhalation at the scene of a fire, exercised rights under City’s policy to a second test of the split sample. Contrary to the City’s written policy, the split sample test did not quantify the level of marijuana present in the captain’s blood, leading the Court to conclude that the City failed to show that the captain violated the drug policy.

92 — DISCIPLINARY STANDARDS AND FIREFIGHTERS Initial Result On Case Name Description Sancton Appeal Peltonen v. Scopetta, 25 Termination Termination Firefighter tested positive for cocaine in Mis.3d 1208 (N.Y. Sup. bloodstream. Defense of post-traumatic 2009) stress disorder resulting from 9/11 response rejected. Thomas v. City of Schenectady, Termination Termination Alcohol-related misconduct followed 557 N.Y.S.2d 511 (A.D. 1990) by failure to continue required alcohol treatment. Washington v. Civil Service Termination Termination Firefighter tested positive for marijuana Commission of Akron, 2002 use in a random drug test. Court found WL 31828696 (Ohio App. that though rehabilitation was a princi- 2002) ple mechanism of the City’s drug policy, it was only secondary to the primary goal of ensuring safety. Waterford Township, Michigan, Termination Reinstatement Firefighter tested positive for cocaine and (Khan, 2002) (Unreported Conditioned opiates. Since employee engaged in no decision; copies available from On Successful job activities while intoxicated, collective LRIS) Treatment bargaining agreement required employer to allow employee to seek treatment before discharging employee. Woods v. Metropolitan Termination Termination Firefighter tested positive for cocaine in Government of Nashville and random drug test. Court rejected argu- Davidson County, 2003 WL ment that laboratory breached chain of 22938947 (Tenn. App. 2003) custody of urine sample. Supervisory Failure City of Ecorse, 25 LAIS 3014 5-Day No Discipline Captain failed to spot signs of intoxica- (Long, 1997) Suspension tion in firefighter who was subsequently involved in on-duty automobile accident. Other firefighters did not see signs of intoxication and City failed to train captain in how to detect intoxication in the workplace. Frego v. Jonesboro Civil Service Demotion Demotion For four of five years, lieutenant failed Commission, 684 S.W.2d 258 test on knowledge of city streets and fire (Ark. 1985) hydrants. Runde v. City of Concord, 512 Demotion Demotion Captain had no knowledge that firefight- A.2d 408 (N.H. 1986) ers stole pay phone from fire site. Theft City of Las Vegas, 105 LA 398 Termination Termination Off-duty theft of software book and (Robinson, 1995) computer program with combined value of less than $25 by 24-year firefighter with previous arrest for shoplifting.

DISCIPLINARY STANDARDS AND FIREFIGHTERS — 93 Initial Result On Case Name Description Sancton Appeal City of Philadelphia, 122 LA Termination 37-Month Firefighter took lieutenant’s credit card 277 (Lang, 2006) Suspension out of a knapsack and attempted to make cash withdrawals without the lieutenant’s PIN. Arbitrator concluded incident was bad practical joke aimed at lieutenant’s reputation for frugality and reinstated firefighter without back pay. City of Sparks and IAFF, Local Termination Termination Theft of $2.97 tube of medication from 1265, 117 FPPR 6 (Burns, store. 1984) Garcia v. City of San Antonio, Termination Termination Theft from station of March of Dimes 427 S.W.2d 947 (Tex. App. envelope containing $7.50. 1968) Palo Alto and IAFF, Local Termination Termination Thefts from lockers of fellow employees; 1319, 26 GERR 646 (Koven, defense of personal problems for 27-year 1988) employee rejected. Vehicles City of Cincinnati, Ohio, 240-Hour No Discipline Fire Apparatus Operator accidentally LAIG 6397 (Render, 2006) Suspension drove a truck over a lieutenant’s feet at a fire scene, severely mangling one foot and injuring the other foot as he attempted to get the truck off the first foot. Because the Operator was orally reprimanded by a division chief at the scene, the Arbitrator concluded that subsequent suspension violated principles of double jeopardy.

94 — DISCIPLINARY STANDARDS AND FIREFIGHTERS NOTES 1 Even in the case of employers who are truly “at-will” employers, discipline cannot be meted out in contravention of any constitutional protections. Board of Regents v. Roth, 408 U.S. 564 (1972). 2 Ann. Cal. Lab. Code §2922 (West 2000). 3 See generally State Employee Grievances and Due Process: An Analysis of Contract Arbitration and Civil Service Review Systems, 29 So. Car. L. Rev. 305 (1978). 4 Haw. Rev. Stat. §76-47 (2001). 5 29 Del.C. § 5949 (2000). 6 Ky. Rev. Stat. §18A.100. 7 Or. Rev. Stat. Ann. §240.563 (1999). 8 Murrieta v. Civil Service Com’n, 2008 WL 5235164 (Cal. App. 2 Dist. 2008). 9 Collins v. Board of Fire and Police Comm’rs, 405 N.E.2d 877 (Ill. App. 1980). 10 City of Fort Lauderdale and IAFF, Local 1545, 1990 BNA Unp. Lab. Arb. LEXIS 1288 (Abrams, 1990). 11 Some courts do require a higher standard of proof — that of “substantial evidence” — in order to sustain an employer’s disciplinary decision. See Graham v. Wilkes, 373 S.E.2d 90 (Ga. App. 1988). 12 Beba v. Department of Fire, 933 So.2d 871 (La. App. 4 Cir. 2006). 13 Burke v. City of Anderson, 612 N.E.2d 559 (Ind. App. 1993); Meyers v. Montgomery County, 626 A.2d 1010 (Md. App. 1993); City of Milwaukee, 78 LA 89 (Yaffe, 1982). See also Chemical Leaman Tank Lines, Inc., 55 LA 435 (Rohman, 1970). 14 Kroger Co., 25 LA 906 (Smith, 1955). 15 See cases cited in F. Elkouri & E. Elkouri, How Arbitration Works, 907 n.113 (5th Ed. 1997). 16 Ramsey v. Cleveland, 2009 WL 1424086 (Ohio App. 8 Dist. 2009). 17 City of Chicago, LAIG 4945 (Cox, 1994). 18 City of Tampa, 1996 WL 285031 (Cohen, 1996). 19 City of Brownsville, Texas, LAIG 6464 (McKee, 2007). 20 Neal v. Civil Service Com’n of Kern County, 2009 WL 3791620 (Cal. App. 5 Dist. 2009); Tezeno v. City of Watertown, 829 N.Y.S.2d 341 (N.Y. A.D. 2007); Kerins v. City of Niagara Falls, 561 N.Y.S.2d 953 (A.D. 1990); City of Ann Arbor, 59 LA 714 (Ellman, 1972). 21 See City of Cocoa, 95 LA 425 (Seidman, 1990); Aerosol Techniques, Inc., 48 LA 1278 (Arbitration Board, 1967). 22 City of Westerville, Ohio and IAFF Local 3480, 128 LAIS 2055 (Felice, 2001); City of Oklahoma City, 100 LA 1183 (Woolf, 1993). 23 City of Mesquite, Texas, LAIG 6665 (Bennett, 2008); City of Miami, LAIG 3986 (Kravit, 1987); City of Binghampton, 65 LA 663 (Doner, 1975). 24 Richardson v. Board of Supervisors, 250 Cal.Rptr.1 (Cal. App. 1988)(discipline overturned; supervisor deliberately provoked confrontation with employee); Harris v. Department of Fire, 990 So.2d 54 (La. App. 4 Cir. 2008); In

DISCIPLINARY STANDARDS AND FIREFIGHTERS — 95 re Marine Corps Air Ground Combat Center, 105 LA 942 (Gentile, 1996)(firefighter hung up telephone on assistant chief during argument; assistant chief had significant personal difficulties relating to subordinate personnel, and firefighter told assistant chief that he had nothing more to say and was going to end the conversation before he hung up). 25 City of Bedford Heights, Ohio, LAIG 6257 (Wallace-Curry, 2005); City of Stamford, Connecticut, LAIG 4797 (Pittocco, 1993); City of Boulder, Colorado, 69 LA 1173 (Yarowsky, 1977). 26 Bankston v. Department of Fire, 2009 WL 4251048 (La. App. 4 Cir. 2009). 27 DePalma v. Lima, 799 N.E.2d 207 (Ohio App. 3 Dist. 2003); Tahoe-Douglas Fire Protection District, LAIG 5198 (Silver, 1996). 28 Toledo Firefighters, Local 92, FMCS #07-01828 (Wait, 2008). 29 City of Providence, Rhode Island, LAIG 6499 (Altman, 2007). 30 Boddie v. City of Columbus, 989 F.2d 745 (5th Cir. 1993); Borough of Sayreville, 21 NJPER ¶21199 (N.J. PERC Hearing Examiner 1990); City of Chester, 212 PPER ¶21182 (Pa. LRB Hearing Examiner 1990). 31 Stone v. Ocean City-Wright Fire Control District, 22 GERR 1320 (Fla. PERC 1984). 32 Bowman v. Butler Twp. Bd. of Trustees, 2009 WL 3931368 (Ohio App. 2 Dist. 2009); Orange County, Florida and IAFF, Local 2057, LAIG 6495 (Smith, 2007); Lodderhose v. City of Ferguson, 837 S.W.2d 361 (Mo. App. 1992); Shelby County Government, 98 LA 126 (Nicholas, 1991). 33 Alston v. New York City Transit Authority, 588 N.Y.S.2d 418 (A.D. 1992); Gentilli v. Board of Police and Fire Com’rs of City of Madison, 717 N.W.2d 853 (Wis. App. 2006). 34 City of Miami Fire Department, LAIG 4391 (Foster, 1990). 35 County of Erie, LAIG 2630 (1988). 36 Town of Plainville, 67 LA 442 (McKane, 1976). See generally F. Elkouri & E. Elkouri, How Arbitration Works 918 (5th Ed. 1997) and Supplement 145 (1999). 37 City of Clearwater, FMCS 05-58832 (Holland, 2006); City of Benton Harbor, 103 LA 816 (Allen, 1994). See City of Mayfield Heights, LAIG 5002 (Duda, 1994)(principles of industrial due process violated when member of accident review board served as hearing officer in subsequent Loudermill hearing on discipline resulting from accident). 38 McLean v. Mecklenburg Co., 448 S.E.2d 137 (N.C. App. 1994); Garrett v. North Babylon, 433 N.Y.S.2d 218 (A.D. 1980). A New York court has reached the opposite result, holding that under New York’s statewide civil service system, disciplinary decisions can be based on uncorroborated hearsay. Ayala v. Ward, 565 N.Y.S.2d 114 (A.D. 1991). 39 Crist v. Battle Run Fire Dist. Trustees, 663 N.E.2d 722 (Ohio App. 1995). 40 City of Marshall Fire Department, 96 LA 984 (Allen, 1991); Delaware County, LAIG 4897 (Aronin, 1993). 41 Union Township, 125 LA 1638 (Rosen, 2009); City of Detroit, LAIG 4677 (Roumell, 1992). 42 City of Atlanta v. Bell, 425 S.E.2d 325 (Ga. App. 1992)(15-month delay); Van Milligan v. Board of Fire and Police Comm’ers, 630 N.E.2d 830 (Ill. 1994)(five-year

96 — DISCIPLINARY STANDARDS AND FIREFIGHTERS delay); Neal v. Pike Township, 639 N.E.2d 299 (Ind. App. 1994)(15-month delay); Berry v. Dinkins, 576 N.Y.S.2d 107 (A.D. 1991)(two-year delay). But see Hunt v. Shettle, 452 N.E.2d 1045 (Ind. App. 1983)(14-month delay in hearing violated due process). 43 Pennsylvania State Police v. Pennsylvania State Troopers Ass’n, 633 A.2d 1330 (Pa.Cmwlth. 1993)(termination of trooper who issued bad checks overturned where discipline was delayed by as much as a year). See also City of Houston, 105 LA 120 (Moore, 1995)(discipline overturned when imposed 250 days after employer became aware of incident; state law required discipline to be imposed within 180 days); Chicago Housing Authority, LAIG 4978 (Cohen, 1994)(arbitrator found four- month delay in initiation of investigation “puzzling,” but reversed discharge on other grounds); Canton Township, LAIG 4269 (Brooks, 1989)(discharge for dishonesty reversed). 44 Bence v. Brier, 501 F.2d 1185 (7th Cir. 1974). 45 Arnett v. Kennedy, 416 U.S. 134 (1974), quoting Meehan v. Macy, 392 F.2d 822 (D.C. Cir. 1968); see Parker v. Levy, 417 U.S. 733 (1974). 46 City of Okmulgee, 26 GERR 1471 (Harr, 1988)(off-duty work in recreational center that sold beer and featured topless dancers). 47 City of Detroit, LAIG 3253 (Gales, 1983)(conviction of possession of Valium). 48 City of Philadelphia, LAIG 3871 (Roch, 1987)(termination upheld for arrest for forgery, receiving stolen property and credit card fraud). 49 Palo Alto and IAFF, Local 1319, 26 GERR 646 (Koven, 1988)(thefts from lockers of fellow employees). 50 City of St. Clair Shores, LAIG 4032 (Conner, 1987). 51 Thomas v. City of Orlando, 23 GERR 1546 (Yarowsky, 1985). 52 Nick v. Department of Fire, 416 So.2d 131 (La. App. 1982); IAFF, Local 1619 v. Prince Georges County, 26 GERR 480 (Md. App. 1988). 53 City of Sparks and IAFF, Local 1265, 117 FPPR 6 (Burns, 1984). 54 City of Sparks and IAFF, Local 1265, 117 FPPR 6 (Burns, 1984). 55 City of Loraine, 122 LA 865 (Skulina, 2006); Kansas City Fire Department, 107 LA 519 (Berger, 1996)(24-hour suspension justified for captain who refused chief’s direct order to sign as a witness to a disciplinary report on another firefighter); Miami, Okla. and IAFF, Local 1969, 91 LA 697 (Stephens, 1988)(one-shift suspension upheld for refusal to clean up mess made by muddy boots; defense of vague orders rejected). 56 City of Kalamazoo, 22 GERR 171 (Daniel, 1983)(failure to shave beard as required by rules). 57 Township of Flint, LAIG 6463 (Braverman, 2006); Palm Beach County, LAIG 3777 (Hardy, 1986)(excessive absenteeism and failure to produce requested medical records; no specific warning of intent to discharge if records not produced). 58 Brown v. City of Palatka, 24 GERR 1533 (Fla. PERC 1986)(termination for engaging in fund raiser for local union reversed; conduct held to be protected activity which employer had no right to regulate). 59 City of Hartford, PEB ¶45,197 (Conn. SBLR 1987)(suspension for loud, heated verbal exchange with employer at discipline hearing; employer found to be at fault).

DISCIPLINARY STANDARDS AND FIREFIGHTERS — 97 98 — DISCIPLINARY STANDARDS AND FIREFIGHTERS CHAPTER 4

PROCEDURAL RIGHTS IN THE DISCIPLINARY PROCESS

PROCEDURAL RIGHTS IN THE DISCIPLINARY PROCESS — 99 INTRODUCTION. A delicate balance exists in the investigation of complaints of misconduct lodged against firefighters. Fire protection agencies usually attempt to investigate complaints of misconduct as quickly and as thoroughly as possible, so that both the complaining party and the firefighter feel that appropriate attention has been paid to the complaint. Similarly, if evidence of misconduct is established, fire protection agencies generally make swift disciplinary decisions to ensure that the disciplinary problem is rectified. An individual While a fire protection agency may have these needs to quickly investigate does not forfeit and adjudicate complaints of misconduct, an individual does not forfeit consti- constitutional tutional rights possessed by all citizens simply by accepting a job as a firefighter. rights possessed by all citizens simply These constitutional rights, particularly the right to be free from compulsory by accepting a job self-incrimination and the right to procedural due process, often arise in the fire as a firefighter. protection workplace. The result of this tension has been hundreds of court decisions balancing the rights and obligations of firefighters and other public employees and their employers. Yet even today, 30 and 40 years after some of the key decisions in the area have been issued by the United States Supreme Court, uncertainty exists in some important aspects of the procedural obligations of an employer in processing disciplinary and related issues. This chapter lays out the basic procedural rights held by firefighters in the disciplinary process. Necessarily, the chapter focuses most on the three core rules of disciplinary procedure – the Garrity, Weingarten, and Loudermill rules. However, the chapter also deals with emerging rules on procedural issues such as concepts of substantive due process, the exclusionary rule, and how entrapment principles apply in disciplinary settings.

A FIREFIGHTER’S RIGHT TO BE FREE FROM COMPULSORY SELF-INCRIMINATION – THE GARRITY RULE. One of the most important constitutional disciplinary rules covering public sector employees, known as the Garrity rule, has often been hard to understand in the fire service. This relative lack of familiarity with the Garrity rule may be due to the fact that the rule is often incorrectly thought only to apply to police officers, or because criminal investigations have not occurred with great frequency in fire departments. Nonetheless, as the employment environment becomes more complex, and as firefighters face the very real possibility of potential criminal sanctions for certain types of alleged misconduct, the Garrity rule has assumed much more significant status in the fire service than in the past. In the 1966 case of Garrity v. New Jersey, the Supreme Court faced the issue of how the Fifth Amendment’s protections against compulsory self-incrimination apply in a public employment disciplinary setting.1 In Garrity, police officers were

100 — PROCEDURAL RIGHTS IN THE DISCIPLINARY PROCESS questioned during the course of a state investigation concerning alleged ticket fix- ing. The officers were ordered to respond to the investigator’s questions, and were informed that a refusal to respond to the questions would result in their discharge from employment. The officers answered the questions, and their answers were used to convict them in subsequent criminal prosecutions.

The Supreme Court ruled that the use of the officers’ statements in criminal The Supreme proceedings violated the Fifth Amendment’s guarantee that citizens cannot be Court ruled compelled to be witnesses against themselves. The Court held that “the choice that the use of imposed on [the employees] was one between self-incrimination or job forfeiture,” the officers’ statements a choice the Court termed “coercion.” In particularly strong language, the Court in criminal held that “policemen, like teachers and lawyers, are not relegated to a watered- proceedings down version of constitutional rights,” and ruled that statements which a law violated the Fifth Amendment’s enforcement officer is compelled to make under threat of possible forfeiture of his guarantee that or her job could not subsequently be used against the officer in a criminal prosecu- citizens cannot be tion. As the Supreme Court later described, “the Fifth Amendment not only pro- compelled to be witnesses against tects the individual against being involuntarily called as a witness against himself themselves. in a criminal prosecution but also privileges him not to answer official questions put to him in any other proceeding, civil or criminal, formal or informal, where the answers might incriminate him in future criminal proceedings.”2 The Supreme Court addressed the flip side of the Garrity case the following year. In Gardner v. Broderick, a police officer being questioned about alleged bribery and corruption was discharged after refusing to sign a waiver of immunity that would have allowed the use of his statements in a subsequent criminal prosecution. The Court reversed the officer’s discharge, holding that the officer was discharged solely for his refusal to waive a constitutional right. In language that has since become a guidepost for disciplinary investigations of public sector employees, the Court ruled that while a public agency can conduct an administrative investigation of one of its employees, it cannot in the course of that investigation compel the employee to waive the immunity necessary under Garrity: “If appellant, a policeman, had refused to answer questions specifically, directly, and narrowly relating to the performance of his official duties, without being required to waive his immunity with respect to the use of his answers or the fruits thereof in a criminal prosecution of himself, Garrity v. New Jersey, supra, the privilege against self-incrimination would not have been a bar to his dismissal. The facts of this case, however, do not present this issue. * * * He was dismissed solely for his refusal to waive the immunity to which he is entitled if he is required to testify despite his constitutional privilege.”3 Gardner thus created two separate rules. First, if a public employee lawfully invokes the self-incrimination privilege under the Fifth Amendment, the employee may not be disciplined for doing so without a grant of immunity from the use of the answers in a subsequent criminal proceeding. Second, there exist affirmative limitations on an employer’s ability to require answers to questions asked during

PROCEDURAL RIGHTS IN THE DISCIPLINARY PROCESS — 101 an investigation of an employee – in the words of Gardner, the questions must be “specifically, narrowly, and directly” tailored to the employee’s job.

THE BASIC REQUIREMENTS OF THE GARRITY RULE. As it has been interpreted over the years, Garrity requires that before a fire protection agency questioning one of its employees can discipline the employee for refusing to answer questions, the agency must: • Order the employee to answer the questions under threat of disciplinary action; • Ask questions which are specifically, directly and narrowly related to the employee’s duties or the employee’s fitness for duty; and • Advise the employee that the answers to the questions will not be used against the employee in criminal proceedings.4 If the firefighter then refuses to answer appropriate questions, the firefighter may be disciplined for insubordination.5 Since the employee’s answers cannot be used against the employee in a subsequent criminal proceeding, discipline for refusing to answer appropriate questions is permissible even if the employee is the subject of an active criminal investigation.6 As an employee who has been ordered to give a statement is given immunity from the use of the statements in a criminal proceeding, the employee has no right to insist on the presence of an attorney before providing the statement.7 However, under the Weingarten rule, as discussed in greater depth later in this chapter, the employee may be entitled to the presence of a union representative before the questioning begins. If there is a sufficient relationship between an employee’s off-duty conduct and on-the-job performance, a public employer has the right to question an employee about the off-duty conduct.8 In such circumstances, the protections of Garrity fully apply to the questioning.9 Simply because a firefighter can be ordered to answer questions in an administrative setting does not mean that a fire protection agency has the right to insist that all of its questions be answered. As indicated by Gardner v. Broderick, in Critical to the order to be valid, questions must have a direct bearing upon the firefighter’s job. operation of the If the questions are not so limited, and especially if the questions go into areas of Garrity rule is personal concerns, the agency may not insist on answers to the questions without that the employer 10 actually order violating the firefighter’s right to privacy. the employee to respond to questions, and THE SCOPE OF THE GARRITY RULE – WHEN DOES IT that the employee be compelled by APPLY? threat of possible discharge to Critical to the operation of the Garrity rule is that the employer actually order respond. the employee to respond to questions, and that the employee be compelled by

102 — PROCEDURAL RIGHTS IN THE DISCIPLINARY PROCESS threat of possible discharge to respond. Absent such an order, not only does the employee have no obligation to respond to the questions (and the Department consequently has no right to discipline the employee for refusing to answer the questions),11 but no immunity is given to the use of the employee’s answers in a subsequent criminal prosecution.12 It is not enough if the employee simply subjectively believes he is required to answer questions; rather, the employer must actually do something to make that belief reasonable.13 An “order” to answer questions can be written or oral. In some cases, the order or the “compulsion” to make a statement may even be implied. Most courts follow a two-part test, often referred to as the objective/subjective test, to determine if an employee’s statements were voluntary or compelled. An employee is considered “ordered” or, in the parlance of the Fifth Amendment, “compelled” to answer questions if (1) the employee subjectively believes that he/she is compelled to give a statement upon threat of loss of his or her job; and (2) the employee’s belief is objectively reasonable at the time the statement was made.14 Thus, it might be objectively reasonable for a firefighter to believe that statements made in an internal affairs setting, or as part of a criminal investigation conducted by the firefighter’s employer, or in a polygraph examination, would be required as a condition of employment. On the other hand, it would not be reasonable for a firefighter to believe that testimony given in a job-related civil case (without invoking the Fifth Amendment) would be required.15 The protections of Garrity apply automatically whenever a public employee is required by a supervisor to answer questions as a condition of employment.16 A statutory grant of immunity or a signed immunity agreement with a prosecutor is not necessary to give rise to the immunity envisioned by Garrity since the immunity envisioned by Garrity is self-executing.17 As one court described it, “when an employee is confronted with the threat of an adverse employment action for refusal to answer questions, the very act of telling the witness that he would be subject to removal if he refused to answer was held to have conferred such immunity. Under these circumstances, no specific grant of immunity is necessary: It is the very fact that the testimony was compelled which prevents its use in subsequent proceedings, not any affirmative tender of immunity.”18 To trigger Garrity rights, the level of discipline imposed for not answering the questions must constitute a “substantial economic penalty” such as discharge; Merely merely threatening the employee with a transfer or a short suspension may not be threatening the 19 employee with a sufficient to invoke the Garrity rule. At present, the law is unsettled as to how or transfer or a short if the Garrity rule applies when a firefighter is merely writing a required report as suspension may opposed to facing questioning.20 In a case involving an Indiana firefighter, a court not be sufficient to held that did not apply to compelled blood or drug tests, since they are not invoke the Garrity Garrity rule. “testimonial” in nature.21

PROCEDURAL RIGHTS IN THE DISCIPLINARY PROCESS — 103 ILLUSTRATIONS OF GARRITY PRINCIPLES. Two cases from the fire service illustrate these principles. In the first, Hester v. City of Milledgeville, an employer ordered firefighters to take polygraph examinations. The Court began its opinion with a recitation of some of the basic principles of Garrity: “The privilege against self-incrimination, limited by its terms to ‘any criminal case,’ does not prevent a governmental unit from taking non-criminal disciplinary action against an employee on the basis of compelled testimony. The district court correctly noted, however, that a governmental unit which requires an employee to make potentially incriminating statements may not burden the employee’s right to exercise the privilege in a later criminal proceeding by threatening to discipline or discharge the employee if he or she refuses to waive it. We further agree with the district court that under Garrity and its progeny, the City may not consider the refusal to waive the privilege as a black mark upon an employee’s record.” The Court found the employer’s use of “waiver forms” to be a form of coercion prohibited by the Garrity rule: “The city council’s resolution requires employees to execute a ‘waiver’ without specifying what is being waived. The employees are then presented with four pieces of paper called waiver forms and required to choose from among them. They know that if they choose the form by which they refuse to take the polygraph exam they will lose their jobs. This is, then, an inherently coercive situation. “By signing any of the remaining three forms they agree to take the test. One of these preserves the right against self-incrimination; the other two waive it. There is nothing on the face of the documents to indicate that the City has no right to demand either of the latter two options or that the City cannot punish employees who refuse to choose them. It is entirely plausible that laypersons faced with the three positive options with no disclaimer may feel that to save their jobs they must sign the form most generous and accommodating to their employer. Subtle pressures may be as telling as coarse and vulgar ones. Such waivers may not even be knowing and intentional. The possible ineffectiveness of the waiver, however, does not save the practice. The privilege against self-incrimination is too important to be trifled with in this manner.”22 The second case involved two firefighters who were suspected of calling in false alarms during a “sick-out” type of job action. When police officers questioned the firefighters about the incident, they invoked their privilege against self- incrimination. Their employer subsequently fired them for refusing to speak to the police officers. In reversing the discharge, a court noted the distinction between the criminal and administrative use of a compelled statement.

104 — PROCEDURAL RIGHTS IN THE DISCIPLINARY PROCESS “The firefighters were not told that any statements they made could not be used against them in a criminal prosecution. They were given Miranda warnings by the police inspector and had the right to remain silent thereafter without being penalized for that silence. Since the firefighters were discharged for asserting their privilege against self-incrimination, the action of the Civil Service Commission must be reversed. Reversal does not, however, mean the City is required to reinstate the appellants. The fire department officials may now conduct an investigation under the guidelines set forth above. If the appellants refuse to answer, after being informed of their ‘use’ immunity, and that refusal to answer could result in discharge, then they face sanctions, including discharge, subject to the usual appellate review. We add that the mere fact of speaking would not, of course, shield the appellants from appropriate penalties other than a criminal prosecution based upon their statements.”23

REVERSE GARRITY WARNINGS. There is a split of opinion on whether an employer must actually give the Whenever employee an affirmative guarantee of immunity before the employer can demand questioning could answers. The majority of courts hold that whenever questioning could possi- possibly lead to bly lead to criminal charges, an employer must give an affirmative guarantee of criminal charges, immunity and warn the employee that failure to respond to questioning could an employer 24 must give an lead to disciplinary action for insubordination. Courts following this rule reason affirmative that public employees are not expected to be experts on the guarantees of the Fifth guarantee Amendment, and should not be required to guess whether they have criminal of immunity and warn the immunity for their statements. As noted by one court adhering to this latter view: employee that “[M]erely to relieve [an employee], after the fact, of the possibility failure to respond of prosecution, does not solve the dilemma with which he is faced to questioning could lead to while undergoing interrogation. The exclusion of the statement in a disciplinary criminal proceeding is nothing more than the exclusion of a coerced action for statement. In the first place, the employee may not know of his rights insubordination. to remain silent and to avoid self-incrimination; and, even if he is aware of that right, he almost certainly does not know that, under Garrity, as a matter of law, his response cannot be used against him in a criminal case. Absent the advice that [the employees] could not be prosecuted on the basis of the statement given, their statement was the product of a coercive choice. They were truly between Scylla and Charybdis. If they did not speak, they knew that they would be fired. If they spoke, what they said could lead to prosecution, and most likely, in any event, to conviction and dismissal from their jobs.”25 A minority of courts hold that since Garrity rights automatically attach whenever an employee is required to answer questions as a condition of employment, there is no need for an employer to give such guarantees.26

PROCEDURAL RIGHTS IN THE DISCIPLINARY PROCESS — 105 The affirmative guarantees of immunity required by most courts are now usually referred to as “reverse Garrity warnings.” Reverse Garrity warnings should have these components: • An order that the employee is required to answer the questions. • A warning that if the employee refuses to answer the questions, significant discipline, up to and including termination of employment, may result. • A guarantee that the employee’s statements and the fruits of those statements will not be used in the criminal prosecution of the employee.

THE SCOPE OF IMMUNITY UNDER GARRITY. A compelled statement under Garrity gains immunity only in a subsequent criminal proceeding. That means that a compelled statement under Garrity can be used for a wide variety of other purposes: • To discipline the firefighter,27 • In a civil lawsuit brought against the employer and/or the firefighter,28 and • In criminal prosecutions of persons other than the firefighter.29 An issue swirling around in state court cases interpreting the Garrity doctrine has been whether “use and derivative use” or “transactional” immunity results from an administrative interrogation under state constitutional law. Use and derivative use immunity is the narrower form of immunity; it provides an employee immunity from the use in a subsequent criminal proceeding of his statements and the fruits of his statements made in an administrative interrogation. Transactional immunity is much broader, and prohibits any prosecution over the entire transaction which is the subject of the questioning. In Garrity, the Supreme Court held that only use and derivative use immunity was required under the federal Constitution.30 However, state courts are free to interpret their own constitutions more broadly than the federal Constitution, and state legislatures are free to enact broader protections than those that exist at the federal level. In one case, the Massachusetts Supreme Court squarely held that whenever a public employee is required to submit to a disciplinary interrogation, the employee is entitled to a complete grant of immunity from criminal prosecution for the entire transaction which is the subject of the interview – a grant of immunity which is much broader than that resulting under the federal Constitution’s Garrity rule.31 A variety of other states, including Alaska, Hawai’i, California, Michigan, Mississippi, Ohio, Oregon, Rhode Island, South Carolina,

106 — PROCEDURAL RIGHTS IN THE DISCIPLINARY PROCESS and Washington have generally adopted transactional immunity rules, either by statute or through a state constitutional provision.32 Even in states following the use and derivative use immunity rules, there is a good deal of controversy about precisely what the limitations are on the use of the statement or the fruits of the statement. For example, a federal court of appeals in the case involving the prosecution of Oliver North held that a prosecutor has an affirmative burden of proving that all testimony must be free of any taint from the immunized statement. In the words of the Court: “The District Court must hold a full hearing that will inquire into the content as well as the sources of the grand jury and trial witnesses’ testimony. That inquiry must proceed witness by witness, line by line and item by item. For each grand jury and trial witness, the [prosecution] must show by a preponderance of the evidence that no use whatsoever was made of any of the immunized testimony either by the witness or by the prosecutor in questioning the witness. If [the prosecution] has in fact introduced trial evidence that fails this analysis, then the defendant is entitled to a new trial. If the same is true as to grand jury evidence, then the indictment must be dismissed.”33 A similar result was produced in a case involving grand jury subpoenas for investigative files compiled by the Albuquerque Police Department, where a federal appeals court held that Garrity’s “total prohibition on use provides a comprehensive safeguard, barring the use of compelled testimony as an ‘investigatory lead,’ and also barring the use of any evidence obtained by focusing investigation on a witness as a result of his compelled disclosures.”34 Reaching a different result in the prosecution of Los Angeles police officers Stacy Koon and Lawrence Powell arising out of the Rodney King case, a federal court held that all the prosecution need prove is that the substance of the testimony of any witness exposed to a compelled statement is based on a legitimate source independent of the immunized testimony. The Court was particularly concerned that the grant of immunity under Garrity is automatic, and flows directly from the order compelling a statement: “Immunity attaches in the Garrity context when a threat of the loss of employment forces a public employee to respond to questioning by another public employee. In this context, the individuals who question the employee are concerned about potential misconduct, and their goal is generally to learn the facts of a situation as quickly as possible. They do not necessarily act with the care and precision of a prosecutor weighing the benefits of compelling testimony against the risks to future prosecutions; indeed, they may not even have the prospect of prosecution and the requirements of the Fifth Amendment in mind.”35 Following a similar analysis, one California court has held that a prosecutor could see an employee’s compelled statement and use the compelled statement to persuade the victim to testify without violating Garrity.36

PROCEDURAL RIGHTS IN THE DISCIPLINARY PROCESS — 107 Concerned about the potential use of compelled statements, many firefighter labor organizations have developed “advice of rights” cards for their members. The card used in Los Angeles, California contains the following statement: “If you’re compelled to make a statement or answer questions in violation of your right to representation or any of the rights listed above, demand that it be recorded and read the following: “I am making this statement involuntarily, in compliance with a direct order made under penalty of sanction and/or termination. In compelling my statement without representation, you are in violation of the California Government Code, Sections 3250 through 3262, and are subject to civil penalties prescribed by law. I do not waive any of my rights under this law, our current union contract, any other local, state or federal law, or my right to remain silent under the Fifth and Fourteenth Amendments of the United States Constitution.”37

THE RIGHT TO REPRESENTATION DURING A DISCIPLINARY INTERVIEW – WEINGARTEN RIGHTS. Unless specifically granted by a statute such as a statewide firefighter bill of rights or by a collective bargaining agreement, a firefighter is not entitled to representation by an attorney during a disciplinary interview.38 However, a firefighter may be entitled to representation by his or her collective bargaining representative under the so-called Weingarten rule. The case of National Labor Relations Board v. J. Weingarten arose under Section 7 of the National Labor Relations Act, which provides that employees have the right to join labor organizations “and to engage in other concerted activities for the purpose of collective bargaining.”39 In Weingarten, a private employer denied an employee’s request for union representation during a disciplinary interview. The Supreme Court ruled the denial of representation a violation of Section 7, holding that the right to representation in disciplinary interviews was a necessary part of the collective bargaining process: “Requiring a lone employee to attend an investigatory interview which he reasonably believes may result in the imposition of discipline perpetuates the inequality the [National Labor Relations] Act was designed to eliminate, and bars recourse to the safeguards the Act provided ‘to redress the perceived imbalance of economic power between labor and management.’”40 Virtually all state collective Because Weingarten was decided under the National Labor Relations Act bargaining laws contain provisions (NLRA), the decision was not automatically binding on state and local govern- either identical ments. However, virtually all state collective bargaining laws contain provisions or substantially either identical or substantially similar to Section 7 of the NLRA. Thus, state similar to Section 7 courts and public employment relations commissions were quick to adopt the of the NLRA. Weingarten rule under state public employee bargaining laws. Since not all the

108 — PROCEDURAL RIGHTS IN THE DISCIPLINARY PROCESS decisions of such administrative agencies are reported on a nationwide basis, it is difficult to determine if all states which have considered the issue have adopted the Weingarten rule. What can be said is that, with two exceptions, every published decision of a state employment relations commission or court considering the adoption of the Weingarten rule has held that employees have the right to representation during disciplinary interviews.41 The exceptions are New York and Rhode Island, where state courts have held that the right to representation exists under other authority than the Weingarten rule.42 In Weingarten, the Supreme Court established broad basic principles for representation in disciplinary interviews. As they have been interpreted by the courts over the years since the Weingarten decision, these principles provide the following scope of rights for firefighters in disciplinary interviews: The employee must reasonably believe that the interview will result in disciplinary action for the right to representation to exist. It is the reasonable belief of the employee, not the employer, which dictates whether an employee is entitled to representation.43 If the employee reasonably believes that discipline may result from the interview, the employee is entitled to representation even if the employer had no intention whatsoever to impose discipline.44 The right to representation by a labor organization applies even when the interview is being conducted as part of a criminal investigation, and even when the interview is being 45 If the employer conducted by an outside agency such as a district attorney’s office. However, if assures the the employer assures the employee that no discipline will result from the interview employee that and does not violate that pledge, no right to representation exists,46 and mere no discipline “general anxiety” over whether discipline could possibly result is not enough to will result from the interview 47 trigger the right to representation. Also, if a collective bargaining agreement and does not mandates that an employer give notice that an interview will be disciplinary in violate that nature, and the employer gives no such notice, then it would be unreasonable pledge, no right to representation for the employee to believe that discipline could result from the interview, and exists. Weingarten representation would not be required.48 Absent a reasonable belief that discipline could result, routine supervisor-employee interactions do not trigger the right to representation under the Weingarten rule.49 The last few years have seen a good deal of litigation over whether someone who the employer believes is merely a witness to misconduct has the right to representation under Weingarten. Because Weingarten rights turn on the employee’s reasonable belief that discipline could result from an interview, the employer’s designation of an employee as a “witness” will not necessarily eliminate Weingarten rights. Two cases, one from New Jersey and one from Oregon, illustrate these principles. In the New Jersey case, the New Jersey Public Employment Relations Commission held that supervisors interviewed as “witnesses” in an investigation into sexual harassment among their subordinates had the right to representation since they reasonably believed that they could be disciplined for failing to properly supervise the employees in their charge.50 In the Oregon case, Oregon’s Employment Relations Board held that employees interviewed as witnesses in an

PROCEDURAL RIGHTS IN THE DISCIPLINARY PROCESS — 109 investigation focusing on misconduct by a fellow employee had Weingarten representation rights because they reasonably could believe they would be subject to discipline for failing to either report or stop the use of force by another officer.51 The right to representation only exists where the employer is eliciting information from the employee.52 For example, if the employer is merely rep- rimanding the employee,53 is requiring the employee to participate in a fitness for duty examination,54 is interviewing the employee as part of a performance evaluation process,55 or is discussing a non-disciplinary matter with the employee but is not conducting a disciplinary interview,56 no right to representation exists. However, the right to representation does apply to an interview that turns into an investigatory session, even if it was originally convened to advise the employee of previously determined discipline.57 The right to representation exists even where the employer is eliciting information in written form. Several cases stand for the proposition that Weingarten rights apply even when the employer is not actually questioning the employee, but is using other means to elicit information from the employee. For example, the majority rule is that Weingarten rights apply when the employer is compelling an employee to prepare a report that will be used in a disciplinary investigation.58 A case decided by the Pennsylvania Labor Relations Board has even held that Weingarten rights apply when an employer is requesting that an employee submit to drug testing as part of a disciplinary investigation. Relying on similar cases decided by the National Labor Relations Board, the Pennsylvania Board held that “the purpose of the blood and urine tests at issue was to aid in the Employer’s determination of whether discipline should be imposed. Thus we find that the Employer’s request for testing occurred in this context as an investigatory interview (essentially consisting of a request to submit to blood and urine tests) and therefore, that the employee was entitled to the assistance of a union representative.”59 The employee must request such representation. Unlike the protections of the Garrity rule, Weingarten rights are not automatic; they must be invoked by the Weingarten rights 60 are not automatic; employee. Most states hold that once an employee makes a request for union they must be representation, the employer has three options: (1) Grant the request; (2) dispense invoked by the with or discontinue the interview; or (3) offer the employee the choice of continu- employee. ing the interview unaccompanied by a union representative or having no interview at all and thereby dispensing with any benefits that the interview might have conferred on the employee.61 The employer does not select the Weingarten representative. The employer does not have the right to select the representative who assists the employee during the disciplinary interview. Though there is some conflict among states on the issue, the usual rule is that the employee, not the labor organization, is entitled to pick the particular representative.62 While there is no right under Weingarten to representation by her private attorney (though such a right may exist under a statu-

110 — PROCEDURAL RIGHTS IN THE DISCIPLINARY PROCESS tory bill of rights),63 if it chooses, the labor organization has the right to select an attorney as its representative for the disciplinary interview.64 The right to representation exists regardless of rank, so long as the employee is represented by a labor organization for collective bargaining purposes. In some states, police chiefs have the right to be part of a collective bargaining unit. Since Weingarten rights turn on whether the employee is part of a collective bargaining unit, in those states even police chiefs have Weingarten rights.65 The exercise of the right to representation cannot unduly interfere with legitimate needs of the employer. In order to establish undue interference with its operations, the employer must prove that a delay in the interview would be unreasonable under all of the circumstances or endanger the investigation.66 To establish that a delay in the investigation would interfere with its legitimate needs, an employer must prove that it has a need for an “efficient and timely investigatory process” that would be undermined by the requested delay in the interview.67 An employer is clearly on shaky ground in demanding that the employee immediately find a union representative, and then insisting on proceeding with the interview when no representative can be immediately located. For example, in one police case, a labor relations board found a Weingarten violation where a police union representative’s job duties required him to leave an interview and the police chief gave the employee “two minutes” to find another representative.68 Since the Weingarten rule is a creature of collective bargaining, a labor organization can waive Weingarten rights through the collective bargaining process.69 Moreover, it is illegal for an employer to discriminate against an employee for the exercise of Weingarten rights.70

THE ROLE OF THE REPRESENTATIVE IN DISCIPLINARY INTERVIEWS. The Weingarten rule is still evolving, particularly in the area of the role the union representative can play during the disciplinary interview. A few early cases imply that the representative has the right to counsel the employee prior to but not during the interview, and to otherwise be no more than a “fly on the wall,” a passive observer of the interview. As the law has matured, courts and labor boards have taken a broader view of the role of the union representative. Today, the notion that an employer has the right to order a labor representative to be simply silent during a disciplinary interview has long been discarded.71 The broad approach is strongly buttressed by the Supreme Court’s opinion in Weingarten, where the Court described in generalities the role of the labor organization representative: “A single employee confronted by an employer investigating whether certain conduct deserves discipline may be too fearful or inarticulate to relate accurately the incident being investigated, or

PROCEDURAL RIGHTS IN THE DISCIPLINARY PROCESS — 111 too ignorant to raise extenuating factors. A knowledgeable union representative could assist the employer by eliciting favorable facts, and save the employer production time by getting to the bottom of the incident occasioning the interview.”72 What follows is a list of the type of activities in which a union representative could possibly engage during a Weingarten interview, and whether those activities are generally thought to be within the scope of Weingarten rights: The right to consult with the employee prior to the interview. The Supreme Court’s Weingarten decision indicates that the right to representation includes the ability of the representative to consult with the employee prior to the interview, and no court or labor board has ever held to the contrary under state law.73 The right to determine what the charges are prior to the interview. Again, the Supreme Court’s Weingarten decision itself supports the notion that the representative has the right to determine the charges against the employee prior to the interview. State labor boards have repeatedly supported this notion. However, the right to notice of charges does not extend so far as to allow a labor organization access to witness statements in advance of an interview.74 The right to privately consult with the employee during the interview. Most states hold that Weingarten rights include the right of the representative to privately consult with the employee during the interview, so long as the consultation does not unduly disrupt the interview.75 The right to offer investigatory leads at the conclusion of the interview. The Supreme Court’s Weingarten decision also envisions the representative offering investigatory leads at the conclusion of a disciplinary interview. State labor boards have uniformly accepted this construction of the right to representation. The right to offer mitigating circumstances at the conclusion of the interview. Again, Weingarten itself describes the role of the union representative as including the ability to offer mitigating circumstances at the conclusion of the interview.76 The right to object to inappropriate questions during an interview. Only one state – Ohio – has found that the right to representation under Weingarten includes the right to object to inappropriate questions.77

REMEDIES FOR WEINGARTEN VIOLATIONS. Labor boards have wrestled with the appropriate remedy when an employer violates Weingarten rights. One approach has been to reverse any discipline when the employer relies in any way upon the interview in making its disciplinary decision.78 A similar approach is that if an employer violates a labor organization’s Weingarten rights, any underlying disciplinary decision it imposes will be overturned unless the employer establishes that it would have reached the same deci-

112 — PROCEDURAL RIGHTS IN THE DISCIPLINARY PROCESS sion without relying on information gathered during an interview which violated the Weingarten rule.79

A FIREFIGHTER’S PROCEDURAL DUE PROCESS RIGHTS. The Fifth Amendment to the United States Constitution contains a “due process” clause which provides as follows: “No person shall be * * * deprived of life, liberty, or property without due process of law.” The Fifth Amendment requires that if the government acts to deprive any person of a “property” or “liberty” right, it must act with due process in doing so. Since fire protection employers are, by definition, governmental agencies subject to the strictures of the Fifth Amendment, whenever they make employment decisions affecting property or liberty interests, they must do so in accord with the requirements of the Fifth Amendment.80 Under these general guidelines, two questions arise whenever a firefighter has been disciplined: • Does the firefighter have a property or liberty interest in the job which has been affected by the disciplinary action; and • If so, did the employer accord the firefighter the necessary procedural due process in imposing the disciplinary decision or depriving the firefighter of the property or liberty interest?

HOW A PROPERTY INTEREST IN A FIREFIGHTER’S JOB IS CREATED. There are six common ways in which a firefighter can gain a property interest in the job. In each case, the property interest is created through a continu- The property interest is ing expectation of employment, an expectation secured by state or local law, or created through by other guarantees binding the employer. Put another way, if an employer does a continuing something to change the “at will” status of an employee, the employee is likely to expectation of employment, have a property right in the job. The six ways of creating property rights vary sig- an expectation nificantly: secured by state or local law, or by • A collective bargaining agreement between the firefighter’s labor other guarantees organization and the employer can contain a clause requiring the binding the employer. employer to have just cause or some other articulable reason to discipline the firefighter.81 • In the absence of a collective bargaining agreement, provisions in the employer’s ordinances or charter can grant employees job protection or tenured status.82

PROCEDURAL RIGHTS IN THE DISCIPLINARY PROCESS — 113 • The operations manual of the employer can grant protections against unjust disciplinary action,83 but only if they are written in specific language which provides guarantees of future employment.84 • Civil service rules or ordinances can grant employees some job protection against indiscriminate disciplinary action.85 • A statute can impose standards which a fire protection employer must meet before imposing discipline.86 • Even in the absence of other guarantees of job security, a written contract or oral comments or promises of an employer may in rare cases be enough to create a reasonable expectation of a right to continuing employment, assuming that the individual making the promise has the authority to bind the employer to a contract.87 The appearance of authority to make such promises is not always legally binding. In one case, even though a probationary employee received assurances of continuing employment from a mid-level supervisor who subsequently became a chief, from the former chief, and from a village trustee, a court found no property right to the job since none of the three actually had the authority to bind the employer.88 If any of these six conditions exists, the employee will be deemed to have a property right in the job. Since some sort of protection against arbitrary discipline exists in most fire protection agencies today, only a minority of firefighters are not considered to have a property right to their jobs. Those who are generally thought to have no reasonable expectation of a continuing interest in employment and thus no property right to the job include volunteers,89 probationary employees90 and other trainees,91 fire chiefs,92 and firefighters who work without the protection of either a collective bargaining agreement or civil service system.93

HOW PROPERTY RIGHTS ARE AFFECTED BY DISCIPLINARY AND NON-DISCIPLINARY DECISIONS. Procedural due process rights apply whenever there is an interruption in the Procedural due process rights right to the continuing flow of benefits provided by the property right in the job. apply whenever Thus, procedural due process applies in the following cases: there is an interruption in • Discharge from employment.94 However, if the employer is simply the right to the shutting down all operations – for example, if a City decides to continuing flow of benefits provided abolish its fire department – there is no property right to continuing by the property employment.95 right in the job. • Most temporary suspensions without pay.96 • Demotions.97 However, in some cases where employees are unprotected by a collective bargaining or civil service process, a supervisor may have

114 — PROCEDURAL RIGHTS IN THE DISCIPLINARY PROCESS a property right to a job, but may not necessarily have a property right to the promoted position.98 • Where employees are involuntarily retired for a disability99 or are placed on an unpaid leave of absence for medical100 or psychological reasons.101 • Where the employee has been involuntarily removed from a layoff list102 or from receiving disability benefits.103 • Where the employee’s application for disability retirement has been denied and where the grant or denial of disability retirement status is based on fixed, non-discretionary criteria.104 • Where employees are granted or denied sick leave when injured in the line of duty.105 • Where the employee’s salary has been reduced for disciplinary or non- disciplinary reasons.106 • Where a firefighter has been denied the right to file a disability application.107 Due process is required even in cases where the nature of the employee’s offense – e.g., the conviction of a crime – makes certain that the employer’s final disciplinary decision will be discharge.108 On the other end of the spectrum, most courts hold that due process need not precede the issuance of a written reprimand.109 Procedural due process generally need not be followed in the following circumstances because a firefighter’s property right is not being impacted by an employer’s actions: • The reclassification of an employee to another job for non-disciplinary reasons.110 • The termination of a short-term firefighter for a positive drug test, where the collective bargaining agreement allowed the employer to terminate employees with less than one year of service and created no right of appeal from the termination.111 • The denial of off-duty employment,112 on-call pay,113 work out of classification,114 overtime,115 or of a transfer request.116 • Where a firefighter has been given an administrative assignment, even if the assignment results in the loss of overtime opportunities.117 • The denial of step increases where no collective bargaining agreement covers the officer.118 • A demotion where no salary loss results.119

PROCEDURAL RIGHTS IN THE DISCIPLINARY PROCESS — 115 • Requiring an employee to attend a compulsory physical or psychological evaluation.120 • Where a temporary position is discontinued, even if the firefighter was working out of classification at a higher rate of pay in the position.121 • A change in the employee’s days off122 or the denial of the employee’s request to use vacation time.123 • Giving an employee an unfavorable performance evaluation.124 • Turning down an applicant for a job as a firefighter.125 Where an 126 employee has • When a firefighter resigns. been denied a promotion, no In most instances where an employee has been denied a promotion, no proce- procedural due dural due process rights are implicated.127 As noted by a federal court of appeals process rights are with respect to promotions: implicated. “Plaintiffs also cannot seriously contend state law grants them a protected property interest in a promotion, transfer, or any of the other benefits sought in connection with their employment. Plaintiffs have pointed to no state statute or regulation that so restricts the government employer’s discretion in making these employment decisions as to grant public employees a legitimate claim of entitlement to these benefits. In fact, the Colorado Court of Appeals has expressly held that because Colorado law grants the appointing authority discretion to choose among the three highest-ranking applicants for a position, a public employee has no due process right to be selected for promotion. Accordingly, to the extent Plaintiffs’ due process claim rests on the denial of the promotions, transfers, and other benefits themselves, they have demonstrated no entitlement to any particular decision and, as such, their claims must fail.”128 However, if promotions are based on the fact of the employee meeting known criteria rather than discretionary judgment of the employer, procedural due process requirements may apply. In Drogan v. Ward, the Court interpreted New York’s civil service laws as expressly creating a right to be considered for promotion limited only by the requirement that the officer successfully pass an examination. Under these circumstances, the Court held, the laws “invest one who has successfully completed an examination with a ‘legitimate claim of entitlement’ to the right to be considered for a promotion,” a fact which required the employer to follow procedural due process before failing to consider a candidate who had successfully been placed on the promotional list.129 A number of due process cases occur with respect to transfers and removal from specialty assignments, particularly where the employee may be required to relocate significant distances or is transferred from an assignment – such as paramedic – that received premium pay. Where a transfer or reassignment is not accompanied by a loss of pay, there is no right to a hearing under general due

116 — PROCEDURAL RIGHTS IN THE DISCIPLINARY PROCESS process law, even if the transfer results in a loss of overtime opportunities.130 Courts are split on the issue of whether due process requires a hearing if a transfer is accompanied by a loss of pay. A majority of courts hold that even in such cases, there is no right to a hearing before the transfer unless the employee has been given definite and permanent guarantees to the previous assignment.131 However, if there are statutory or collective bargaining agreement protections against transfer being used as a form of discipline, or if the employer’s rules forbid disciplinary transfers, an employee facing a disciplinary transfer would be entitled to a due process hearing.132

HOW A FIREFIGHTER’S LIBERTY INTERESTS CAN BE AFFECTED BY EMPLOYMENT DECISIONS. Cases involving a liberty interest in the job protected by the Fifth Amendment The concept of are much less common than cases dealing with property rights. The concept of a liberty interest a liberty interest focuses on the freedom to follow a trade, profession, or other focuses on the calling.133 If a governmental body acts in such a way that effectively excludes an freedom to follow a trade, employee from a trade or calling, it is depriving the employee of a liberty inter- profession, or est, which it may not do without due process of law. More particularly, where an other calling. employer disciplines a firefighter for stated reasons, and where those reasons, if publicized, are likely to make the individual all but unemployable as a firefighter in the future, the law insists that due process be provided.134 At the heart of a liberty interest claim is that the employer’s disciplinary charges must be false and defamatory,135 and impose on the employee “a stigma that foreclosed his freedom to take advantage of other employment opportunities.”136 To invoke due process, the charges need not be elaborate statements of the employee’s wrongdoing, but must allege that the employee has engaged in some sort of misconduct.137 Disciplinary charges that merely cause an employee a loss of prestige are not sufficient to impact a liberty right; what is necessary is that the charges impact the employee’s future in fire protection as a career.138 Similarly, simply terminating a probationary employee’s employment without any other comment is not sufficiently stigmatizing to impair the employee’s liberty rights,139 nor is announcing that a chief has been fired for making an error in judgment.140 Since a property interest in a job is more easily created and protected than a liberty interest, cases involving liberty interests generally only occur when an employee such as a probationary employee has no identifiable property interest in the job.141 The courts are currently split on whether a firefighter bringing a liberty claim must show that the stigmatizing information was actually disclosed or need only show a likelihood that the information would be disclosed. One court has held that all that need be shown is the likelihood of disclosure, reasoning that the employee might not ever be aware of the actual disclosure of the information.142 A court reaching the opposite result reasoned that the firefighter never suffers a tan-

PROCEDURAL RIGHTS IN THE DISCIPLINARY PROCESS — 117 gible loss until the stigmatizing information is actually released to a third party.143 In courts following the latter line of reasoning, the firefighter is also required to show that he or she has been denied employment opportunities based upon the release of the stigmatizing information.144 Since volunteers are generally not paid for their work, the termination of a volunteer firefighter usually does not involve a liberty interest.145 If an employer merely places the stigmatizing information in a non-public record, the employee’s liberty rights are not implicated since there has been no “publication” of the information to third parties.146 However, if the information is placed in a public record, the employee’s liberty rights are impacted if some sort of public records or freedom of information law allows third parties the right to access the information or if the employer does not have a confidentiality policy forbidding the disclosure of the information.147 As explained by one court: “The [employee’s] rights to live and work where he will, to pursue any livelihood or avocation, and to engage in the common occupations of life have been limited by placing his personnel file and the internal affairs report into the public record. The file and report have stigmatized the employee in the eyes of potential * * * employers and in the minds of citizens. We hold that the presence of stigmatizing information placed in the public record by a state entity, pursuant to a state statute or otherwise, constitutes sufficient publication to implicate the liberty interest under the Due Process Clause.”148 In order to invoke an employee’s liberty rights, the stigmatizing information must be released concurrently with the disciplinary action taken against the employee.149 Most courts hold that liberty rights exist only if the employee is being terminated;150 a minority of courts find that liberty rights can be implicated even by a lengthy suspension or demotion.151 No liberty rights exist if the employee is merely being transferred without any loss of pay152 or is suspended with pay.153 Even fairly egregious employment practices, if unaccompanied by termination or lengthy suspension, will not trigger a firefighter’s liberty rights. For example, in a case involving the Los Angeles Fire Department, a court found “the humiliation of being placed off active duty, having to sit idle in an empty room at headquarters, and being forced to remain at home for six months is not the loss of a sufficiently tangible employment benefit, where appellants did not lose their jobs, but were paid and ultimately vindi- cated.”154

THE PROCEDURES WHICH MUST BE FOLLOWED ONCE A LIBERTY OR PROPERTY RIGHT IS IMPLICATED. Once an employee establishes that a property or liberty interest has been affected by an employer’s actions, the next question is what procedures the employer must follow in order to observe the employee’s rights to procedural due

118 — PROCEDURAL RIGHTS IN THE DISCIPLINARY PROCESS process. In evaluating an employer’s procedures, courts generally ask the following five questions: • How likely it is that the procedures will prevent an erroneous deprivation of the firefighter’s property or liberty rights to the job? • Would additional or other procedures be more likely to prevent such error? • To what degree have the employee’s property or liberty rights been affected by the employer’s decision? • What burden would be imposed on the employer if additional procedures were required? • To what extent do the procedures which exist post-discipline not only correct any pre-discipline error, but function to make an erroneously deprived employee whole again?155 The procedures required by due process fall into two categories – “pre-deprivation” and “post-deprivation” procedures. “Pre-deprivation” procedures are those procedures which must be followed before the property or liberty right of the employee is affected (e.g., before discipline is imposed). “Post-deprivation” procedures are those that must be observed after a property right is affected. Though the matter is not without some controversy, it seems clear that the principles of procedural due process require both pre-deprivation and post-deprivation procedures where property rights have been affected, and require only pre-deprivation procedures where liberty rights have been affected.156

“PRE-DEPRIVATION” OR “PRE-DISCIPLINARY” PROCEDURES WHERE PROPERTY RIGHTS EXIST. Regardless of the existence of any post-discipline remedies the firefighter may have, the principles of procedural due process require at a minimum that, except The principles of procedural due in extraordinary circumstances, the firefighter be given notice of the employer’s process require at intention to impose discipline as well as some kind of hearing prior to being dis- a minimum that ciplined.157 Moreover, though an employer’s rules are not necessarily binding in the firefighter be 158 given notice of a constitutional sense, the disciplinary procedures established by an employer’s the employer’s rules do provide a framework for assessing the “process that is due.”159 intention to Pre-Disciplinary Notice. The notice which an employer must provide an impose discipline as well as some employee prior to a pre-termination hearing is a matter of considerable debate. The kind of hearing rule which seems to be emerging is that the notice must recite the general charges prior to being against the employee, the rules which the employee is alleged to have violated, and disciplined. provide the employee with information as to how to respond to the charges.160 The charges in the notice must either specifically inform the employee of the potential disciplinary sanction, or provide the employee with the “gist” of the alle-

PROCEDURAL RIGHTS IN THE DISCIPLINARY PROCESS — 119 gations and possible sanction.161 In the words of one court, the employee must be provided with “knowledge of the basis of those charges either by explanation or by reviewing the file containing the report of the internal affairs investigation conducted.”162 In some states, the notice must include a copy of all materials upon which the proposed discipline is based,163 including the complete investigatory file.164 The notice should also outline what the firefighter’s rights will be at the hearing.165 Once the notice has been given, additional charges cannot be added later without giving the employee a new right to respond to the charges.166 The notice should provide enough time for the firefighter to be able to reasonably reply to the charges.167 Pre-Disciplinary Hearing. As has been noted repeatedly by the courts, “the chance to be heard, to present one’s own side of the story, is a fundamental requirement of any fair procedural system.”168 A due process hearing need not be a formal, adversarial type hearing, and the firefighter need not be allowed to have an attorney present during the hearing.169 Usually, there exists no constitutional right to either call170 or cross-examine witnesses,171 though if the hearing board receives evidence, it must do so in the presence of the firefighter.172 The hearing must, however, provide the firefighter with a reasonable opportunity to make a defense, and to make that defense to individuals who are in a position of authority with respect to the firefighter’s discipline. Today, such hearings are commonly called Loudermill hearings, a name derived from a leading Supreme Court case describing the right to a hearing.173 Most courts agree that in cases of termination, the employee is entitled to an in-person hearing as part of due process, and that the charges against the employee cannot change after the hearing is conducted.174 The grant of a hearing is not automatic; instead, the employee must affirmatively request the hearing to be entitled to one.175 The hearing should be conducted either by the final decision- maker on the discipline, or by a person in the chain of command who has the authority to effectively recommend disciplinary action.176 With very large agencies, even a captain who serves as the firefighter’s commanding officer may have sufficient decision-making capabilities to conduct the necessary hearing.177 Due process does not require that the deliberations of a hearings board be held in public,178 nor does it require that a hearings board notify the firefighter of the right to appeal its decision.179 A union contract cannot waive the firefighter’s right to a pre-disciplinary hearing before the appropriate individual.180 There is a conflict among the courts as to whether an in-person hearing is necessary in cases of suspensions, or whether due process is satisfied by merely allowing the employee an opportunity to present a written defense to the charges. The majority of courts hold that an in-person hearing is required, reasoning that only an opportunity to directly speak with the disciplinary decision-maker will provide the necessary “opportunity to be heard” under Loudermill.181 Other courts find that in cases of minor discipline such as short suspensions, the opportunity to respond in writing to charges is sufficient to meet the requirements of

120 — PROCEDURAL RIGHTS IN THE DISCIPLINARY PROCESS due process.182 An in-person hearing may not be necessary when the employer is acting to modify or terminate a benefit associated with the job (such as retirement benefits or light-duty status), with the employee’s opportunity to present the employee’s side of the issue in writing sufficing in lieu of a hearing.183 So long as the employee is given a reasonable chance to tell his or her side of the story at the hearing, there are no constitutionally-mandated procedures that necessarily must be followed during the hearing. For example, there is no constitutional requirement that the person or entity holding the hearing make detailed findings at the conclusion of the hearing.184 Courts will also not second-guess the decision of an employer whether to grant a hearing date continuance requested by an employee.185 If the firefighter does not keep the employer apprised of changes in address, and her employer makes a good-faith effort to give notice of the hearing, the employer can hold the hearing in the firefighter’s absence.186 With some regularity, cases appear where a firefighter acting as an emergency medical technician is terminated when the “physician advisor” to the EMT program refuses to certify the firefighter. Employer arguments that no hearing is necessary in these circumstances sometimes prevail,187 but are often met with skepticism, as exemplified by this passage from the decision of a federal court in Indiana: “The City’s charge against Rinehart effectively delegated complete and unreviewable discretion over Rinehart’s (and every other firefighter’s) employment to the fire department’s medical director. Under the City’s theory, it did not matter whether the doctor was right or wrong, prudent or hasty, fair or arbitrary. All that mattered was that he decided he did not want Rinehart to work as a paramedic or an EMT under his supervision. Under that theory, the Board had nothing meaningful to decide. The Board’s hearing on Rinehart’s case was an empty formality. It was not a meaningful opportunity to be heard. The City’s theory is especially troubling because it would allow a fire chief to do indirectly what a chief may not do directly. By persuading the medical director to suspend a firefighter’s ability to work as a paramedic and/or EMT, a chief could nullify all the substantive rights under the merit statute.”188 Bias And The Pre-Disciplinary Hearing Process. The law varies from state to state as to whether the official before whom the hearing is held may permissibly have a prior bias or prejudice about the matter. Some courts will grant wide latitude in this regard, even allowing the official before whom the hearing is held to draft the charges against the firefighter,189 or holding that so long as the post-discipline decision-maker is unbiased, the pre-disciplinary process need not be quite so free of bias.190 Courts following this more lenient approach to the bias rule allow the same hearing board to reconsider the case of a firefighter who has successfully challenged a disciplinary decision in the courts on the grounds that the hearing board did not follow due process in the first place.191

PROCEDURAL RIGHTS IN THE DISCIPLINARY PROCESS — 121 Most courts, however, strictly require that the individual or board conducting the hearing be unbiased.192 In one case, a court overturned a discharge where two members of the hearing board testified as witnesses for the employer.193 In a second case, a court found a due process violation where a board member was not only the alleged victim of the misconduct, but also appointed the board’s investigator.194 In another case, a court found inappropriate bias where a hearing board’s attorney provided copies of exhibits to the employer’s lawyer before the hearing, but not to the firefighter’s lawyer.195 Proving bias can be a difficult proposition. As one court commented in rejecting a firefighter’s claim that a hearing board and city attorney were biased, an employee “must prove that members of the adjudicating body had to some extent adjudged the facts as well as the law of the case in advance of hearing it. There must be more than the mere possibility of bias or that the decision-maker is familiar with the facts of the case.”196 No matter how strongly the firefighter may believe the official is biased, if the firefighter chooses not to participate in the hearing, the firefighter may be held to have waived his rights to the hearing if his objections are purely speculative in nature.197 Apart from the issue of whether the individual conducting the hearing is biased is the question of whether the result of the hearing is pre-determined. If the employer has firmly and resolutely made up its mind to fire an employee without regard to the evidence, even an otherwise procedurally appropriate pre-disciplinary hearing may be constitutionally deficient.198

ENHANCED OR REDUCED PROCEDURAL DUE PROCESS RIGHTS. The necessary procedures which must be followed once a property interest is involved, procedures known as that “process which is due,” can be higher than the minimum levels involved in a Loudermill hearing if the employer is required to follow certain procedures in disciplining employees. For example, if the employer has promulgated regulations which require it to follow specific steps in the disciplinary process, it must strictly adhere to those procedures. If those procedures allow for an appeal, review or reconsideration of disciplinary actions, employees must be permitted to exercise such appeal rights.199 The “process which is due” can also involve more than the basic Loudermill hearing if specific disciplinary procedures are established by statute or by the rules of the employing agency. Under this rationale, if a state has enacted a firefighter bill of rights, the bill of rights may establish the minimum procedural due process necessary in all disciplinary cases. There are limited types of cases in which courts find that pre-disciplinary hearings are not constitutionally necessary so long as there is a thorough post- disciplinary review of the disciplinary action. The most notable exception to the general rule was described by the United States Supreme Court in Gilbert v.

122 — PROCEDURAL RIGHTS IN THE DISCIPLINARY PROCESS Homar, where the Court rejected the due process claim of a police officer who had been temporarily suspended without pay without a hearing after he was arrested on drug charges. Pointing to the serious nature of the public concern about an arrested police officer still working, the Court commented that “unlike in the case of a termination, where we have recognized that the only meaningful opportunity to invoke the discretion of the decision-maker is likely to be before the termination takes effect, in the case of a suspension there will be ample opportunity to invoke discretion later – and a short delay actually benefits the employee by allowing state officials to obtain more accurate information about the arrest and charges.”200 Thus far, it appears courts are confining the rules espoused in Gilbert to the particular facts of the case (an arrested police officer), and are not reading the case as standing for the broad proposition that due process is unnecessary before the issuance of any suspension.201 Another exception to the general rule mandating pre-disciplinary hearings occurs where it would be impractical or impossible to hold such a hearing. Such a situation might arise when a firefighter claims after the fact that she was coerced into resigning from employment, and that what appears to be a voluntary resignation was really an involuntary discharge.202

POST-DEPRIVATION PROCEDURES WHERE PROPERTY RIGHTS EXIST. In addition to pre-deprivation procedures, the principles of due process also require that an employer follow certain procedures after implementing a deci- The less specific 203 and thorough the sion affecting an employee’s property rights. The degree of post-deprivation pre-disciplinary procedures can be viewed as somewhat inversely proportional to the degree of pre- notice and deprivation procedures the employer has followed – the less specific and thorough hearing, the more specific the pre-disciplinary notice and hearing, the more specific and thorough the post- and thorough the deprivation procedures must be.204 Somewhere in the process, whether pre-depri- post-deprivation vation or post-deprivation, the employee must be provided with a full evidentiary procedures must hearing.205 And, as explained by one judge, while certain procedures may not be be. mandatory pre-deprivation they may be constitutionally required post-deprivation: “By deciding that pre-termination procedures ‘though necessary, need not be elaborate’ when a prompt post-termination hearing is available, the Supreme Court recognized a continuum of rights and interests. At the beginning, during the pre-termination stage, the employer has much more latitude since its interests in avoiding workplace disruption are usually more significant. At the end – after termination – the interest of employees in a full and fair resolution of charges against them is paramount; any interest of the employer in secrecy can rarely be justified.”206 At a minimum, the employer must preserve the evidence it gathered in its disciplinary investigation and make that evidence available to the firefighter during

PROCEDURAL RIGHTS IN THE DISCIPLINARY PROCESS — 123 the post-termination hearing.207 In addition, where virtually all courts would hold that furnishing the employee with the names of witnesses is not a necessary pre- deprivation procedure, most courts hold that an employee must be furnished the names of witnesses prior to a post-deprivation hearing: “Regardless of whether pre-termination proceedings are adequate, the equivalent of a full evidentiary hearing is necessary either pre- or post-termination in order to meet the demands of due process. * * * At a minimum, to support the termination of a governmental employee who possesses a property interest, the employer must provide to the employee * * * notice of both the names of those who have made allegations and the specific nature and factual basis for the charges.”208

PROCEDURES NECESSARY WHERE LIBERTY RIGHTS EXIST. The due process necessary where only liberty rights exist is far less extensive Liberty rights than the process required when a property right is involved. Liberty rights, unlike do not require 209 hearings before property rights, do not require hearings before the employer takes action. the employer takes Instead, an employee facing termination who has a liberty interest in the job is action. entitled to a “name-clearing” hearing – a chance to tell his or her side of the story and correct any factual errors made by the employer. The employee must request a name-clearing hearing in order to be entitled to the hearing.210 The courts have identified few rules that apply to name-clearing hearings. It seems certain that some notice of the charges must be provided to the employee, who must then be given a meaningful opportunity to correct any factual mistakes made by the employer. Simply interviewing the employee in an internal affairs setting does not suffice as an adequate name-clearing hearing.211

THE DAMAGES IN PROCEDURAL DUE PROCESS CASES. There is only modest agreement between the courts as to what damages are appropriate once an employee has proven a violation of procedural due process. In general, the employee is usually only entitled to recover for whatever damages he or she can prove were caused solely by the violation of due process.212 Usually, such damages represent the amount of back pay between the time the employee’s due process rights were violated and the time of the court’s eventual decision.213 An employer establishing that its disciplinary decision would have been the same even had the employee’s due process rights been observed in the first place may be able to avoid all but the award of nominal damages to the employee.214

124 — PROCEDURAL RIGHTS IN THE DISCIPLINARY PROCESS SUBSTANTIVE DUE PROCESS AND DISCIPLINARY PROCEDURES. Occasionally, disciplinary procedures used by a department are so coercive or Where procedural inappropriate that regardless whether the firefighter has been granted a pre-dis- due process ciplinary or a post-disciplinary hearing, a court will conclude that the employee’s rights mandate so-called “substantive” due process rights have been violated. Where procedural the procedures that must be due process rights mandate the procedures that must be followed when a property followed when a or liberty right is affected, substantive due process rights protect against grossly property or liberty inappropriate conduct by governmental officials. Though no firm legal standard right is affected, substantive defining substantive due process exists, courts tend to find violations of the prin- due process ciple when an employer’s actions were “so unreasonable as to be arbitrary”215 or rights protect “shocking.”216 against grossly inappropriate It is extremely rare to find a successful substantive due process claim filed by a conduct by firefighter. The legal bar is set so high – proving “arbitrary” or “shocking” conduct governmental by an employer – that such claims rarely succeed. An exception to the usual rule officials. that such claims are unsuccessful involved the revocation of a firefighter’s pension in violation of a specific city code provision. As the Court commented, “uncontra- dicted testimony showed that the defendants blatantly disregarded the City code in revoking the firefighter’s pension. This was not a case of misunderstanding. The Board consciously deviated from the requirements of the City code to injure and retaliate against the firefighter. This clearly shows the intentional and discriminatory nature of defendants’ actions.”217 Another case involved a police officer who was suspended when criminal charges alleging the sexual abuse of children were lodged against him. When the criminal charges were not pursued because of questions about the credibility of the victims, the officer’s employer conditioned his reinstatement upon completion of a psychological examination which included the use of the penile plethysmograph. The penile plethysmograph examination involved the measurement of the flow of blood to the officer’s penis, and therefore his male sexual arousal, when the officer was to be shown a variety of photographs or movies of unclothed individuals including children, some of whom were posed in sexual situations. The Court upheld the officer’s refusal to take the examination. While the Court held that the employer had the right to inquire into the officer’s fitness for duty, it ruled that the specific means chosen for that inquiry – the penile plethysmograph – was far too intrusive and debasing and was consequently a violation of the officer’s substantive due process.218

THE EXCLUSIONARY RULE IN DISCIPLINARY CASES. The law varies from state to state as to whether the violation of a firefighter’s constitutional right to be free from an illegal search and seizure forbids the introduction of illegally-seized evidence in an internal investigation, with courts around

PROCEDURAL RIGHTS IN THE DISCIPLINARY PROCESS — 125 the country fairly evenly split on the issue. Some courts have refused to apply the exclusionary rule to bar the use in a disciplinary proceeding of illegally-seized evidence, holding that the exclusionary rule applies exclusively in criminal cases.219 Other courts have reasoned that discharge proceedings “have a sufficient quasi- criminal nature to warrant application of the exclusionary rule in order to protect Fourth Amendment rights” in the disciplinary process.220 One court has even held that the exclusionary rule bars the introduction in disciplinary proceedings of illegally-seized evidence, even if an agency other than the employer seized the evidence, reasoning as follows: “The primary purpose, if not the sole purpose, of the exclusionary rule is to deter future unlawful police conduct. To give effect to this deterrence function, we cannot allow one government agency to use the fruits of unlawful conduct by another branch of the same agency to obtain an employee’s dismissal. Furthermore, the loss of a job is a very severe sanction which warrants special consideration.”221

A FIREFIGHTER’S MIRANDA RIGHTS. Occasionally, questions arise about when a firefighter is entitled to the rights outlined by the Supreme Court’s decision in Miranda v. Arizona.222 For Miranda rights to apply, the firefighter must actually be taken into custody by a law enforcement agency.223 If the firefighter has been taken into custody, then the firefighter has the right to counsel before being required to make any decision about whether to give a statement. These principles were illustrated in Arrington v. City of Dallas, where an employee suspected of a theft was not allowed the right to counsel while being interrogated by his department over the matter. The Court rejected the employee’s argument that the right to counsel guarantee in the Sixth Amendment to the United States Constitution required that he be allowed representation by an attorney during the interrogation. The Court concluded that the Sixth Amendment right to counsel rights arise only after criminal proceedings have been initiated, and not during an internal investigation.224

126 — PROCEDURAL RIGHTS IN THE DISCIPLINARY PROCESS NOTES 1 Garrity v. New Jersey, 385 U.S. 493 (1967). 2 Lefkowitz v. Turley, 414 U.S. 70 (1973). 3 Gardner v. Broderick, 392 U.S. 273 (1968). See also Uniformed Sanitation Men Ass’n v. Sanitation Commissioner, 392 U.S. 280 (1968). 4 Waugh v. New York City Fire Dept., 826 N.Y.S.2d 13 (A.D. 2006); see Lefkowitz v. Turley, 414 U.S. 70 (1973). 5 Uniformed Sanitation Men Ass’n, Inc. v. Commissioner of Sanitation of New York, 392 U.S. 280 (1968); Hanna v. Department of Labor, 18 Fed. Appx. 787 (Fed. Cir. 2001); Marcelin v. City of West Palm Beach, 2009 WL 3584611 (S.D. Fla. 2009); Harmon v. Ogden City Civil Service Com’n, 171 P.3d 474 (Utah App. 2007). 6 Gniotek v. City of Philadelphia, 808 F.2d 241 (3d Cir. 1986). 7 St. Charles County Department of Corrections v. Tipton, 138 S.W.3d 740 (Mo. App. 2003); Brougham v. City of Normandy, 812 S.W.2d 919 (Mo. App. 1991). 8 Broderick v. Police Commissioner of Boston, 330 N.E.2d 199 (Mass. 1975). 9 Michigan State Police Troopers Association v. Hough, 872 F.2d 1026 (6th Cir. 1989)(unpublished opinion; text reproduced in Westlaw)(Garrity applied in case of off-duty criminal misconduct. The Court noted that an officer’s off-duty criminal conduct may well affect the performance of his official duties: “Not only does criminal conduct jeopardize an officer’s credibility as a witness and affiant by opening him up to impeachment, it threatens the morale of other officers.”); Department of Public Safety and Correctional Services v. Shockley, 790 A.2d 73 (Md. App. 2002). 10 Shuman v. City of Philadelphia, 470 F. Supp. 449 (E.D. Pa. 1979). 11 Department of Public Safety and Correctional Services v. Shockley, 790 A.2d 73 (Md. App. 2002). 12 Singer v. State of Maine, 10 IER Cases 811 (1st Cir. 1995); Fraternal Order of Police v. City of Philadelphia, 859 F.2d 276 (3d Cir. 1988); Benjamin v. City of Montgomery, 785 F.2d 959 (11th Cir. 1986); United States v. Indorato, 628 F.2d 711 (1st Cir. 1980); Orozco v. County of Monterey, 941 F. Supp. 930 (N.D. Cal. 1996); National Union of Law Enforcement Officers v. Lucas, 263 N.W.2d 7 (Mich. App. 1977). 13 U.S. v. Foley, 595 F. Supp. 2d 171 (D. Mass. 2009); Wood v. Summit County, 579 F. Supp. 2d 935 (N.D. Ohio 2008); U.S. v. Ferguson, 2007 WL 4240782 (D. Conn. 2007). 14 United States v. Camacho, 739 F. Supp. 1504 (S.D. Fla. 1990)(interrogation of officers at residences and at police station covered by Garrity rule; officers advised by their attorney that their statements were compelled by departmental rules); State v. Connor, 861 P.2d 1212 (Idaho 1993)(officer did not have reasonable belief that his statements were compelled where supervisor told him he was not required to answer questions). See generally United States v. Najarian, 915 F. Supp. 1460 (D. Minn. 1996); People v. Sapp, 934 P.2d 1367 (Colo. App. 1997). Though the majority of cases follow the two-part objective/subjective test to determine if a statement is compelled, People v. Sapp, 934 P.2d 1367 (Colo. 1997); State v. Aiken, 636 S.E.2d 156 (Ga. App. 2006); State v. Connor, 861 P.2d 1212 (Idaho 1993); State v.

PROCEDURAL RIGHTS IN THE DISCIPLINARY PROCESS — 127 Lacaillade, 630 A.2d 328 (N.J. Super. 1993), adopting the analysis in United States v. Friedrick, 842 F.2d 382 (D.C. Cir. 1988); see U.S. v. Bartlett, 2007 WL 1830726 (E.D. Wis. 2007), two courts take a different approach. United States v. Indorato, 628 F.2d 711 (1st Cir. 1980)(stating implied threat, with no statute or ordinance mandating dismissal for refusal to answer questions, falls outside the Garrity “coerced testimony doctrine”); People v. Coutu, 599 N.W.2d 556 (1999)(holding that because there was no overt, actual threat of dismissal, Garrity did not apply). 15 Compare United States v. Camacho, 739 F. Supp. 1504 (S.D. Fla. 1990)(statements made at police station) and State v. Chavarria, 33 P.3d 922 (N.M. App. 2001)(statements made to criminal investigator employed by same agency) and Evans v. DeRidder, 815 So.2d 61 (La. 2002)(polygraph examination) with United States v. Vangates, 287 F.3d 1315 (11th Cir. 2002)(statements made in civil trial). 16 Gilbert v. Nix, 990 F.2d 1044 (8th Cir. 1993)(Garrity applies automatically whenever an employee is compelled to answer the employer’s questions); Weston v. H.U.D., 724 F.2d 943 (Fed. Cir. 1983)(Garrity applies to non-sworn personnel as well as to sworn personnel). 17 Erwin v. Price, 778 F.2d 668 (11th Cir. 1985); Spielbauer v. County of Santa Clara, 199 P.3d 1125 (Cal. 2009). 18 Sher v. U.S. Dept. of Veterans Affairs, 488 F.3d 489 (1st Cir. 2007). 19 Chan v. Wodnicki, 123 F.3d 1005 (7th Cir. 1997); Fraternal Order of Police, Lodge No. 5 v. City of Philadelphia, 859 F.2d 276 (3d Cir. 1988). 20 State v. Lacaillade, 630 A.2d 328 (N.J. App. 1993); People v. Kleeman, 501 N.Y.S.2d 576 (Sup. Ct. 1986). Several courts, without analyzing the Camacho two- part test, have concluded that officers making statements because a departmental manual required the making of the statements were not entitled to Garrity protections. See United States v. Indorato, 628 F.2d 711 (1st Cir. 1980); Watson v. County of Riverside, 976 F. Supp. 951 (C.D. Cal. 1997); People v. Coutu, 599 N.W.2d 556 (Mich. App. 1999); People v. Marchetta, 676 N.Y.S.2d 791 (Crim. Ct. 1998). 21 Oman v. State of Indiana, 737 N.E.2d 1131 (Ind. 2000). 22 Hester v. City of Milledgeville, 777 F.2d 1492 (11th Cir. 1985). 23 Marsh v. Civil Service Commission of Lorain, 411 N.E.2d 803 (Ohio App. 1977). 24 See Modrowski v. Dep’t of Veterans Affairs, 252 F.3d 1344 (Fed. Cir. 2001); Benjamin v. City of Montgomery, 785 F.2d 959 (11th Cir. 1986); United States v. Devitt, 499 F.2d 135 (7th Cir. 1974); Confederation of Police v. Conlisk, 489 F.2d 891 (7th Cir. 1973); Kalkines v. U.S., 473 F.2d 1391 (Ct. Cl. 1973); Uniformed Sanitation Men Ass’n v. Commissioner of Sanitation of New York, 426 F.2d 619 (2d Cir. 1970); D’Acquisto v. Washington, 640 F. Supp. 594 (N.D. Ill. 1986); McLean v. Rochford, 404 F. Supp. 191 (N.D. Ill. 1975); Spielbauer v. County of Santa Clara, 199 P.3d 1125 (Cal. 2009); Debnam v. North Carolina Dept. of Corrections, 421 S.E.2d 389 (N.C. 1992); Oddsen v. Board of Fire and Police Commissioners, 321 N.W.2d 161 (Wis. 1982); see In re Grand Jury Subpoena Dated December 7 and 8, Issued to Bob Stover, Chief of Albuquerque Police Dep’t v. United States (10th Cir. 1994)(suggests such a rule would apply); cf. Brougham v. City of Normandy, 812 S.W.2d 919 (Mo. App. 1991)(warnings need only be given when there exists a possibility of a criminal prosecution). See also Lybarger v. City of Los Angeles, 710 P.2d 329 (1985)(decided under California’s statutory Peace Officer Bill of Rights).

128 — PROCEDURAL RIGHTS IN THE DISCIPLINARY PROCESS 25 Oddsen v. Board of Fire and Police Commissioners, 321 N.W.2d 161 (Wis. 1982). 26 See Hill v. Johnson, 14 IER Cases 985 (8th Cir. 1998); Harrison v. Wille, 132 F.3d 679 (11th Cir. 1998); Hester v. City of Milledgeville, 777 F.2d 1492 (11th Cir. 1985); Gulden v. McCorkle, 680 F.2d 1070 (5th Cir. 1982); Debnam v. North Carolina Department of Corrections, 432 S.E.2d 324 (N.C. 1993). 27 See Hill v. Johnson, 160 F.3d 469 (8th Cir. 1998); Evans v. DeRidder, 815 So.2d 61 (La. 2002); Harmon v. Ogden City Civil Service Com’n, 171 P.3d 474 (Utah App. 2007). 28 Frierson v. City of Terrell, 2003 WL 21955863 (N.D. Tex. 2003); Piercy v. Federal Reserve Bank of New York, 2003 WL 115230 (S.D. N.Y. 2003); Chism v. County of San Bernardino, 159 F.R.D. 531 (C.D. Cal. 1994). 29 In re Denisewich, 643 A.2d 1194 (R.I. 1994). 30 See Sher v. U.S. Dept. of Veterans Affairs, 488 F.3d 489 (1st Cir. 2007); Brown v. City of North Kansas City, 779 S.W.2d 596 (Mo. App. 1989). 31 Carney v. City of Springfield, 532 N.E.2d 631 (Mass. 1989). See also Furtado v. Town of Plymouth, 888 N.E.2d 357 (Mass. 2008); Commonwealth v. Dormady, 667 N.E.2d 832 (Mass. 1996); Baglioni v. Chief of Police of Salem, 656 N.E.2d 1223 (Mass. 1995). 32 See State v. Gonzalez, 853 P.2d 526 (Alaska 1993)(holding Alaska constitution requires transactional immunity); Griego v. Superior Court, 95 Cal.Rptr.2d 351 (Cal. App. 2000)(describing complicated California scheme of immunity); State v. Miyasaki, 614 P.2d 915 (Haw. 1980); State v. McKissic, 2002 WL 408930 (Mich. App. 2002)(describing Michigan state statute); Wright v. McAdory, 536 So.2d 897 (Miss. 1988)(holding Mississippi constitution requires transactional immunity); State v. Adams, 791 N.E.2d 1045 (Ohio App. 2003)(describing Ohio state statute); State v. Soriano, 684 P.2d 1220 (Or. App. 1984), aff’d, 693 P.2d 26 (1984)(holding Oregon constitution requires transactional immunity); State v. Price, 820 A.2d 956 (R.I. 2003)(describing Rhode Island state statute); State v. Thrift, 440 S.E.2d 341 (S.C. 1994)(holding South Carolina constitution requires transactional immunity); State v. Bryant, 983 P.2d 1181 (Wash. App. 1999)(describing Washington state statute). 33 United States v. North, 910 F.2d 843 (D.C. Cir. 1990). 34 In re Grand Jury Subpoena Dated December 7 and 8, Issued to Bob Stover, Chief of Albuquerque Police Dep’t v. United States, 40 F.3d 1096 (10th Cir. 1994). 35 United States v. Koon, 34 F.3d 1416 (9th Cir. 1994); see United States v. Daniels, 281 F.3d 168 (5th Cir. 2002). 36 People v. Gwillim, 274 Cal.Rptr. 415 (Cal. App. 1990)(case decided under California’s equivalent of Garrity – Lybarger v. City of Los Angeles, 710 P.2d 829 (Cal. 1985). 37 Information provided by United Firefighters of Los Angeles City. 38 The courts have reasoned that since the right to counsel provisions of the Sixth Amendment to the United States Constitution only apply once criminal, not administrative, proceedings have begun, a public employee facing an internal investigation is not entitled to be represented by an attorney in the internal investigatory process unless the union representative happens to be the union’s attorney. Los Angeles Police Protective League v. Gates, 579 F. Supp. 36 (C.D. Cal. 1984).

PROCEDURAL RIGHTS IN THE DISCIPLINARY PROCESS — 129 39 National Labor Relations Board v. J. Weingarten, 420 U.S. 251 (1975); see 29 U.S.C. § 157. 40 Quoting American Ship Building Co. v. NLRB, 380 U.S. 300 (1965). See also International Ladies Garment Workers’ Union, Upper South Department, AFL-CIO v. Quality Manufacturing Company, 419 U.S. 816 (1975). 41 Arizona, City of Phoenix v. Phoenix Employment Relations Board, 86 P.3d 917 (Ariz. App. 2004)(decided under local ordinance); California, Civil Service Association v. San Francisco, 150 Cal.Rptr. 129 (Cal. 1978); Florida, City of Clearwater v. Lewis, 404 So.2d 1156 (Fla. App. 1981); Iowa, City of Marion v. Weitenhagen, 361 N.W.2d 323 (Iowa App. 1984); Massachusetts, Commonwealth of Massachusetts, Department of Public Welfare, Case Number SVP-2062 (Mass. LRC, 1977); Michigan, Wayne-Westland Educ. Assn. v. Wayne-Westland Comm. Schools, 439 N.W.2d 372 (Mich. App. 1989); Oregon, Amalgamated Transit Union v. Tri-County Metropolitan Transportation District, 11 PECBR 480 (1989); Pennsylvania, Conneaut School District, 10 PPER Section 10092 (Nisi Order, 1979), 12 PPER Section 12155 (Final Order, 1981); Washington, Teamsters v. Okanogan County, 3 WPLLR 860 (PECD, 1985). See also Madison School District, 89 SERB- 012 (Ohio)(1989)(Right to representation exists under collective bargaining laws, but under different theory than Weingarten). 42 New York City Transit Authority v. New York State Public Employment Relations Bd., 864 N.E.2d 56 (N.Y. 2007); Town of North Kingstown v. Local 473, IBPO, 819 A.2d 1274 (R.I. 2003). 43 City of Allen Park, 16 MPER ¶39 (Mich. ERC 2003); Puyallup Police Officers Association, 1999 WL 739676 (Wash. PERC 1999). 44 City of Chicago, 13 IPER ¶3014 (Ill. LLRB 1997); City of Manchester, 95 Fire & Police Reporter 21-2 (Greenbaum, 1994). 45 Delaware County, LAIG 4897 (Aronin, 1993). 46 New Jersey State Police, 15 NPER NJ-23212 (N.J. PERC 1992); Pennsylvania State Corrections Officers Association, 34 PPER ¶78 (Pa. LRB ALJ 2003). 47 SERB v. City of Cleveland, 15 PERO ¶1037 (Ohio SERB 1997). 48 In re Grievance of Vermont State Employees’ Ass’n, Inc., 893 A.2d 333 (Vt. 2005). 49 Loney v. Social Sec. Admin., 266 Fed. Appx. 912 (Fed. Cir. 2008). 50 State of New Jersey, 27 NJPER ¶32,119 (N.J. PERC 2001); see AFGE, Local 2544 v. FLRA, 779 F.2d 719 (D.C. Cir. 1985); IRS v. FLRA, 671 F.2d 560 (D.C. Cir. 1982)(decided under National Labor Relations Act). 51 Oregon AFSCME Council 75 v. State of Oregon, UP-9-01 (Or. ERB 2002). 52 PEMA v. Pennsylvania Labor Relations Board, 768 A.2d 1201 (Pa.Cmwlth. 2001). 53 California State Employees Association, 21 PERC ¶28,137 (Cal. PERB ALJ 1997); City of Flatrock, 19 NPER MI-27095 (Mich. ERC 1996); County of Atlantic, 22 NJPER ¶27,169 (N.J. PERC ULP Dir. 1997); Commonwealth of Pennsylvania, 34 PPER ¶110 (Pa. LRB ALJ 2003). 54 Snohomish County Deputy Sheriff’s Association v. Snohomish County, 1996 WL 260757 (Wash. PERC 1996). 55 Seattle Police Officers Guild v. City of Seattle, 1998 WL 823595 (Wash. PERC 1998).

130 — PROCEDURAL RIGHTS IN THE DISCIPLINARY PROCESS 56 Metro-Dade Police Dept., 24 FPER ¶29,053 (Fla. PERC 1998); Pennsylvania State Corrections Officers Association, 34 PPER ¶134 (Pa. LRB 2003); Falls Township, 30 PPER ¶30,007 (Pa. LRB ALJ 1998). 57 Cowlitz County, 1999 WL 909589 (Wash. PERC ALJ 1999). 58 New York City Transit Authority, 36 NYPER ¶7009 (N.Y. S.Ct. 2003); City of Reading, 689 A.2d 990 (Pa.Cmwlth. 1997). 59 Fraternal Order of Police v. Commonwealth of Pennsylvania, 28 PPER ¶28,203 (Pa. LRB 1997). See Safeway Stores, Inc., 303 NLRB 989 (1991). 60 In re Exeter Police Ass’n, 904 A.2d 614 (N.J. 2006); Jackson v. State of Illinois, 14 IPER ¶2035 (Ill. SLRB Gen. Coun. 1998); City of Marine City Police Department, 15 MPER ¶33,052 (Mich. ERC 2002); South Jersey Port Authority, 23 NJPER ¶28,277 (N.J. PERC ALJ 1997); Ohio State University, 20 OPER ¶216 (Ohio ERB 2003). 61 Town of Hudson v. Labor Relations Com’n, 870 N.E.2d 618 (Mass. App. 2007); City of Chicago, 3 PERI ¶3028 (Ill. LLRB 1987). 62 National Labor Relations Board v. J. Weingarten, Inc., 420 U.S. 251 (1975)(right to representation is an individual right that benefits the group as a whole); Anheuser-Busch, Inc. and International Brotherhood of Teamsters, Local Union No. 1149, 337 NLRB 3 (2001), aff’d, 338 F.3d 267 (4th Cir. 2003)(employee can choose representative); Com. Office of Admin v. Pennsylvania Labor Relations Board, 916 A.2d 541 (Pa. 2007)(employee can choose representative). 63 Many of the “bills of rights” adopted by state statute or collective bargaining agreement allow for representation by counsel during disciplinary interviews. See discussion in Chapter 5, following. 64 Town of Hudson v. Labor Relations Com’n, 870 N.E.2d 618 (Mass. App. 2007); Cheltenham Township v. Pennsylvania Labor Relations Board, 846 A.2d 173 (Pa.Cmwlth 2004). 65 Duryea Borough Police Department, 34 PPER ¶158 (Pa. LRB ALJ 2003). 66 City of Fraser, Michigan, 15 NPER MI-24053 (Mich. ERC 1993). 67 State of California, 23 PERC ¶30,102 (Cal. PERB ALJ 1999). 68 Millersville Borough, 17 NPER PA-26100 (Pa. LRB ALJ 1995). 69 Ehlers v. Jackson County Merit Commission, 697 N.E.2d 717 (Ill. 1998). 70 City of Highland Park, 15 IPER 2004 (Ill. LLRB 1999). 71 King County Police Officers’ Guild v. King County, Decision 4299 (Wash. PERC 1993)(reverses discharge of employee when labor representative told by employer to not participate in any way in the interview of the employee); Commonwealth of Pennsylvania, 32 PPER ¶32,095 (Pa. LRB ALJ 2001). 72 National Labor Relations Board v. J. Weingarten, 420 U.S. 251 (1975). 73 Pennsylvania State Corrections Officers Association, 33 PPER ¶33,177 (Pa. LRB 2002). 74 Pennsylvania State Corrections Officers Association, 34 PPER ¶52 (Pa. LRB 2003). 75 Commonwealth of Pennsylvania, 34 PPER ¶83 (Pa.Cmwlth. 2003); see System 99 and Walter Manning, 289 N.L.R.B. 723, 131 L.R.R.M. 1226 (1988)(decided under National Labor Relations Act). 76 Pennsylvania State Corrections Officers Association, 34 PPER ¶140 (Pa. LRB ALJ 2003).

PROCEDURAL RIGHTS IN THE DISCIPLINARY PROCESS — 131 77 See State Employee Relations Board v. City of Cleveland, 14 OPER 1419 (Ohio PERB ALJ 1997). 78 Montour County, 34 PPER ¶136 (Pa. LRB ALJ 2003). 79 Monroe County, 34 PPER ¶55 (Pa. LRB ALJ 2003). 80 See Board of Regents v. Roth, 408 U.S. 564 (1972). 81 Dee v. Borough of Dunmore, 549 F.3d 225 (3d Cir. 2008)(just cause provision in collective bargaining agreement creates property right); Moffit v. Town of Brookfield, 950 F.2d 880 (2d Cir. 1991)(same). 82 See Wilson v. Robinson, 668 F.2d 380 (8th Cir. 1981); Reeves v. Stanislaus Consol. Fire Protection Dist., 2005 WL 1342206 (Cal. App. 5 Dist. 2005); Depaola v. Town of Davie, 872 So.2d 377 (Fla. App. 2004); Cook v. City of Jackson, GA, 2007 WL 737514 (M.D. Ga. 2007); Patterson v. Tortolano, 359 F. Supp. 2d 13 (D. Mass. 2005); Umholtz v. City of Tulsa, 565 P.2d 15 (Okla. 1977). The mere listing of prohibited conduct, without an affirmative grant of job protection, may not be enough to give rise to a property interest. See Ogletree v. Chester, 682 F.2d 1366 (11th Cir. 1982); Glenn v. Newman, 614 F.2d 467 (5th Cir. 1980); Harrison v. City of Adairsville, 560 F. Supp. 445 (N.D. Ga. 1983). 83 Maxey v. Smith, 823 F. Supp. 1321 (N.D. Miss. 1993); Ness v. Glasscock, 781 P.2d 137 (Colo. App. 1989); Harkness v. City of Burley, 715 P.2d 1283 (Idaho 1986); Hunt v. Shettle, 452 N.E.2d 1045 (Ind. App. 1983). But see Graham v. City of Oklahoma City, 679 F. Supp. 1017 (W.D. Okla. 1986); Johnson v. City of Welch, 388 S.E.2d 284 (W.Va. 1989)(civil service commission not bound by police department rules which established progressive discipline system). 84 Piroglu v. Coleman, 25 F.3d 1098 (D.C. Cir. 1994)(mere listing of disciplinary offenses in procedures manual not sufficient to create property right); Semerau v. Village of Shiller Park, 569 N.E.2d 183 (Ill. App. 1991)(personnel manual written in vague terms did not give rise to property right to job); Pesek v. City of Brunswick, 794 F. Supp. 768 (N.D. Ohio 1992). 85 Shawgo v. Spradlin, 701 F.2d 470 (5th Cir. 1983); City of Philadelphia v. FOP, Lodge No. 5, 572 A.2d 1298 (Pa.Cmwlth. 1990). 86 See Olshock v. Village of Skokie, 541 F.2d 1254 (7th Cir. 1976); Clisham v. Board of Police Commissioners of Borough of Naugatuck, 613 A.2d 254 (Conn. 1992); Nichols v. City of Jackson, 848 F. Supp. 718 (S.D. Miss. 1994); Felde v. Town of Brookfield, 570 F. Supp. 2d 1070 (E.D. Wis. 2008). For example, the Illinois Revised Statutes contain provisions establishing a just cause standard for the discharge or lengthy suspension of firefighters. See Illinois Revised Statutes, Chapter 24, Paragraph 10-1-18.1 (covering cities greater than 500,000 in population); Illinois Revised Statute, Chapter 24, Paragraph 10-1-18(b)(covering smaller cities). 87 Schultea v. Wood, 27 F.3d 1112 (5th Cir. 1994)(city manager did not have the authority to orally promise a chief that he would only be discharged for just cause); Crowell v. City of Eastman, 859 F.2d 875 (11th Cir. 1988); Hadley v. County of DuPage, 715 F.2d 1238 (7th Cir. 1983)(verbal assurances from chief that employees would not be terminated except for just cause did not create property right because chief lacked authority to bind the City); Brooks v. City of San Jose, 2003 WL 22905243 (Cal. App. 6 Dist. 2003)(City charter gave no authority to city manager to enter into contract with fire chief calling for just cause before discipline). 88 Ericksen v. Village of Willow Springs, 876 F. Supp. 951 (N.D. Ill. 1995).

132 — PROCEDURAL RIGHTS IN THE DISCIPLINARY PROCESS 89 Versage v. Township of Clinton, N.J., 984 F.2d 1359 (3d Cir. 1993); Baker v. McDaniel, 2009 WL 2710099 (E.D. Ky. 2009); Leahy v. Jordan, 615 N.Y.S.2d 706 (A.D. 1994). 90 Grusendorf v. City of Oklahoma City, 816 F.2d 539 (10th Cir. 1987); Woody v. City of Dallas, 809 F. Supp. 466 (N.D. Tex. 1992); Chellsen v. Pena, 857 P.2d 472 (Colo. App. 1992); Trivoli v. Multnomah County R.F.P. District 10, 703 P.2d 285 (Or. App. 1985); Masloff v. Bascovsky, 595 A.2d 224 (Pa.Cmwlth. 1991). 91 Piroglu v. Coleman, 25 F.3d 1098 (D.C. Cir. 1994). 92 Johnson v. City of Ft. Wayne, Indiana, 91 F.3d 922 (7th Cir. 1996)(assistant fire chief had no property interest in job); Farthing v. City of Shawnee, Kansas, 39 F.3d 1131 (10th Cir. 1994)(fire chief had no property interest in job). 93 Chism v. Curtner, 2009 WL 1850195 (E.D. Ark. 2009). 94 Procedural due process requires a hearing even when the employee who is discharged is already on an unpaid leave of absence. Prue v. Hunt, 558 N.Y.S.2d 1016 (A.D. 1990). 95 Wanless v. Village of South Lebanon, 118 Fed. Appx. 967 (6th Cir. 2005); Chaney v. Village of Potsdam, 105 Fed. Appx. 18 (6th Cir. 2004). 96 See Dee v. Borough of Dunmore, 549 F.3d 225 (3d Cir. 2008). 97 Greene v. Barrett, 174 F.3d 1136 (10th Cir. 1999); Hennigh v. City of Shawnee, 155 F.3d 1249 (10th Cir. 1998); Shawgo v. Spradlin, 701 F.2d 470 (5th Cir. 1983); Fonville v. District of Columbia, 448 F. Supp. 2d 21 (D. D.C. 2006); Gray v. City of Gustine, 273 Cal.Rptr. 730 (Cal. App. 1990); Faught v. City of Alexandria, 560 So.2d 671 (La. App. 1990). 98 Muncy v. City of Dallas, Texas, 335 F.3d 394 (5th Cir. 2003). 99 Coffran v. Board of Trustees of New York City Pension Fund, 842 F. Supp. 723 (S.D. N.Y. 1994); Wydra v. Swatara Township, 582 A.2d 710 (Pa.Cmwlth. 1990). 100 Ganley v. County of San Mateo, 2007 WL 4554318 (N.D. Cal. 2007); Ceko v. Martin, 753 F. Supp. 1418 (N.D. Ill. 1990). 101 Bauschard v. Martin, 1993 WL 79259 (N.D. Ill. 1993). 102 Delahoussaye v. City of New Iberia, 937 F.2d 144 (5th Cir. 1991). 103 Mard v. Town of Amherst, 350 F.3d 184 (1st Cir. 2003); Williams v. Board of Trustees of Morton Grove Firefighters’ Pension Fund, 2009 WL 4981045 (Ill. App. 1 Dist. 2009); Kempkes v. Downey, 861 N.Y.S.2d 415 (A.D. 2008). 104 Schroeder v. City of Chicago, 927 F.2d 957 (7th Cir. 1991); Williams v. Board of Trustees of Morton Grove Firefighters’ Pension Fund, 2009 WL 4981045 (Ill. App. 1 Dist. 2009). 105 Cholewin v. City of Evanston, 899 F.2d 687 (7th Cir. 1990); Hairston v. District of Columbia, 638 F. Supp. 198 (D. D.C. 1986). But see Swick v. City of Chicago, 11 F.3d 85 (7th Cir. 1993). 106 Wilson v. City of Dallas, Texas, 2003 WL 23017738 (N.D. Tex. 2003). 107 Reed v. Retirement Bd. of Fireman’s Annuity and Ben. Fund of Chicago, 876 N.E.2d 94 (Ill. App. 2007). 108 Dell v. City of Tipton, 618 N.E.2d 1338 (Ind. App. 1993). 109 Compare Byrd v. Gain, 558 F.2d 553 (9th Cir. 1977)(written reprimand can trigger due process) with Miller v. Lovell, 14 F.3d 20 (8th Cir. 1994)(no need for due

PROCEDURAL RIGHTS IN THE DISCIPLINARY PROCESS — 133 process prior to issuance of written reprimand); Lowe v. Kansas City Board of Police Commissioners, 841 F.2d 857 (8th Cir. 1988)(written reprimand does not trigger due process); Stanton v. City of West Sacramento, 277 Cal.Rptr. 478 (Cal. App. 1991); Cameron v. Dept. of State Police, 361 N.W.2d 765 (Mich. App. 1984); Hoffman v. Village of Sidney, 652 N.Y.S.2d 346 (A.D. 1997). 110 Coday v. City of Springfield, 939 F.2d 666 (8th Cir. 1991)(reclassification of detectives to corporals). 111 Hughes v. City of Chicago, 2003 WL 21518592 (N.D. Ill. 2003). 112 Edwards v. City of Goldsboro, 981 F. Supp. 406 (E.D. N.C. 1997); Cybulski v. Cooper, 891 F. Supp. 68 (D. Conn. 1995); Wilmarth v. Town of Georgetown, 555 N.E.2d 597 (Mass. App. 1990). 113 Luellen v. City of East Chicago, 350 F.3d 604 (7th Cir. 2003). 114 Ferros v. Georgia State Patrol, 438 S.E.2d 163 (Ga. App. 1993); Haskins v. City of Chattanooga, 877 S.W.2d 267 (Tenn. App. 1993). 115 Cassidy v. Scoppetta, 365 F. Supp. 2d 283 (E.D. N.Y. 2005). 116 Knoblauch v. City of Warren, 268 F. Supp. 2d 775 (E.D. Mich. 2003). 117 Izquierdo v. Sills, 68 F. Supp. 2d 392 (D. Del.1999). 118 City Council of Laramie v. Kreiling, 911 P.2d 1037 (Wyo. 1996). 119 Rosado-Quinones v. Toledo, 528 F.3d 1 (1st Cir. 2008). 120 Flynn v. Sandahl, 58 F.3d 283 (7th Cir. 1995); Hoover v. County of Broome, 2008 WL 1777444 (N.D. N.Y. 2008). 121 Pina v. Lantz, 495 F. Supp. 2d 290 (D. Conn. 2007). 122 Dill v. City of Edmond, Oklahoma, 155 F.3d 1193 (10th Cir. 1998). 123 Hughes v. Alabama Department of Public Safety, 994 F. Supp. 1395 (M.D. Ala. 1998). 124 Turturici v. City of Redwood City, 236 Cal.Rptr. 53 (Cal. App. 1993). 125 Golden v. Town of Collierville, 167 Fed. Appx. 474 (6th Cir. 2006); O’Brien v. City of Philadelphia, 837 F. Supp. 692 (E.D. Pa. 1993); Rinard v. Polk County, 516 N.W.2d 822 (Iowa 1994). 126 Ross v. City of Perry, Ga., 2009 WL 3190450 (M.D. Ga. 2009). 127 Garden v. Hawley, 104 Fed. Appx. 2 (9th Cir. 2004); D’Amico v. City of Strongsville, Ohio, 59 Fed. Appx. 675 (6th Cir. 2003); Donovan v. Incorporated Village of Malverne, 547 F. Supp. 2d 210 (E.D. N.Y. 2008); Violissi v. City of Middletown, 990 F. Supp. 93 (D. Conn. 1998); Pollock v. Ocean City, 968 F. Supp. 187 (D. N.J. 1997); Olive v. City of Scottsdale, 969 F. Supp. 564 (D. Ariz. 1996); Hunter v. City of Warner Robbins, 842 F. Supp. 1460 (M.D. Ga. 1994)(no property interest in promotion); Virden v. Roper, 788 S.W.2d 470 (Ark. 1990)(captain had no protected property interest in an assistant chief’s job); Ellison v. DeKalb County, 511 S.E.2d 284 (Ga. App. 1999); Schlicher v. Board of Fire and Police Com’rs of Village of Westmont, 845 N.E.2d 55 (Ill. App. 2006); Bielawski v. Personnel Administrator, 663 N.E.2d 821 (Mass. 1996). 128 Teigen v. Renfrow, 511 F.3d 1072 (10th Cir. 2007); see United States v. City of Chicago, 869 F.2d 1033 (7th Cir. 1989); Bigby v. City of Chicago, 766 F.2d 1053 (7th Cir. 1985), quoting McCoy v. Board of Fire and Police Commissioners, 398 N.E.2d 1020 (Ill. App. 1979) and Board of Regents v. Roth, 408 U.S. 564 (1972); Aldridge v. City of Memphis, 2007 WL 4570881 (W.D. Tenn. 2007).

134 — PROCEDURAL RIGHTS IN THE DISCIPLINARY PROCESS 129 Drogan v. Ward, 675 F. Supp. 832 (S.D. N.Y. 1987). 130 Martinez v. City of New York, 82 Fed. Appx. 253 (2d Cir. 2003); Gustafson v. Jones, 117 F.3d 1015 (7th Cir. 1997); Stiesveig v. State of California, 80 F.3d 253 (9th Cir. 1996); Clark v. Township of Falls, 890 F.2d 611 (3d Cir. 1989)(reassignment of lieutenant without loss of pay); Barton v. City of Bristol, 294 F. Supp. 2d 184 (D. Conn. 2003); Johnson v. City of Tarpon Springs, 758 F. Supp. 1473 (M.D. Fla. 1991); Abreu v. City of Chicago, 1990 WL 103626 (N.D. Ill. 1990)(transfer of assignments). See also Confederation of Police v. City of Chicago, 547 F.2d 375 (7th Cir. 1977)(general discussion of due process in a transfer setting); Mosrie v. Barry, 718 F.2d 1151 (D.C. Cir. 1983)(discussion of meaning of “reduction of rank” and relationship to transfer and reassignment). 131 Potts v. Davis County, 551 F.3d 1188 (10th Cir. 2009); Braswell v. Shoreline Fire Dept., 2009 WL 3427350 (W.D. Wash. 2009); San Diego Firefighters v. City of San Diego, 2009 WL 1423568 (Cal. App. 4 Dist. 2009). But see White v. County of Sacramento, 646 P.2d 191 (Cal. 1982)(transfer accompanied by loss of pay requires procedural due process); McManigal v. City of Seal Beach, 212 Cal.Rptr. 733 (Cal. App. 1985)(transfer accompanied by loss of pay requires procedural due process). 132 Ruhlman v. Barger, 435 F. Supp. 447 (W.D. Pa. 1977). 133 Moore v. King County Fire Protection Dist. No. 26, 327 Fed. Appx. 5 (9th Cir. 2009); Lawson v. Sheriff of Tippecanoe County, Ind., 725 F.2d 1136 (7th Cir. 1984). 134 Roley v. Pierce County Fire Protection Dist., 869 F.2d 491 (9th Cir. 1989). 135 Fleisher v. City of Signal Hill, 829 F.2d 1491 (9th Cir. 1987). See generally Codd v. Velger, 429 U.S. 624 (1977)(per curiam). 136 Formica v. Galantino, 1989 WL 100836 (E.D. Pa. 1989), quoting Board of Regents v. Roth, 408 U.S. 564 (1972). 137 Goldbeck v. City of Chicago, 782 F. Supp. 381 (N.D. Ill. 1992). 138 Roley v. Pierce County Fire Protection District, 869 F.2d 491 (9th Cir. 1989). See Kennedy v. McCarty, 778 F. Supp. 1465 (S.D. Ind. 1991). 139 Bazemore v. Koehler, 564 N.Y.S.2d 428 (A.D. 1991)(probationary employee who had been indicted for murder terminated for no stated reason; liberty rights not affected); Lane v. Town of Dover, 761 F. Supp. 768 (W.D. Okla. 1991)(stating that chief terminated for the good of the service not sufficiently stigmatizing to invoke liberty rights); see Melton v. Oklahoma City, 928 F.2d 920 (10th Cir. 1991)(statement by public information officer that investigation underway not enough to impact liberty right). 140 Esposito v. Metro-North Commuter Railroad Co., 856 F. Supp. 799 (S.D. N.Y. 1994). 141 Hoffman v. City of Willimantic, 680 F. Supp. 504 (D. Conn. 1988); Fontana v. Commissioner, 606 N.E.2d 1343 (Mass. App. 1993). 142 Brandt v. Board of Cooperative Educational Services, 820 F.2d 41 (2d Cir. 1987). 143 Johnson v. Martin, 943 F.2d 15 (7th Cir. 1991). 144 Clark v. Township of Falls, 890 F.2d 611 (3d Cir. 1989). 145 Versage v. Township of Clinton, N.J., 984 F.2d 1359 (3d Cir. 1993); Shards v. City of Kennett, 789 F. Supp. 989 (E.D. Mo. 1992).

PROCEDURAL RIGHTS IN THE DISCIPLINARY PROCESS — 135 146 Johnson v. Martin, 943 F.2d 15 (7th Cir. 1991)(no dissemination outside of department of fact that employee fired for drug use). 147 Watson v. Sexton, 755 F. Supp. 583 (S.D. N.Y. 1991). 148 Buxton v. Plant City, 871 F.2d 1037 (11th Cir. 1989). In a seemingly conflicting result, a lower federal court has held that the inter-governmental distribution of disciplinary information is not a “publication” of defamatory information. Harrison v. Board of County Commissioners of Adams County, 775 F. Supp. 365 (D. Colo. 1991). 149 Waynick v. County of Dallas, 1993 WL 52453 (Tex. App. 1993). 150 Schultea v. Wood, 27 F.3d 1112 (5th Cir. 1994); Smith v. Borough of Dunmore, 2007 WL 762930 (M.D. Pa. 2007). 151 Dee v. Borough of Dunmore, 549 F.3d 225 (3d Cir. 2008)(eight-day suspension); Gray v. City of Gustine, 273 Cal.Rptr. 730 (Cal. App. 1990)(demotion). 152 Oladeinde v. City of Birmingham, 963 F.2d 1481 (11th Cir. 1992). 153 City of Annapolis v. Rowe, 717 A.2d 976 (Md. App. 1998). 154 Polhill v. County Of Los Angeles, 2006 WL 1494107 (Cal. App. 2 Dist. 2006). 155 See Cleveland Board of Education v. Loudermill, 470 U.S. 532 (1985); Mathews v. Eldridge, 424 U.S. 319 (1976); Buckner v. City of Highland Park, 901 F.2d 491 (6th Cir. 1990). 156 See Moore v. King County Fire Protection Dist. No. 26, 327 Fed. Appx. 5 (9th Cir. 2009)(suggests that sufficient post-termination remedies can remedy deficient pre-termination procedures); Starling v. Board of County Com’rs, 2009 WL 248369 (S.D. Fla. 2009)(same). 157 See Cleveland Board of Education v. Loudermill, 470 U.S. 532 (1985). See also Trafford v. City of Westbrook, 669 F. Supp. 2d 133 (D. Me. 2009). There exists a minority view which argues that, in very limited circumstances, the existence of a post-disciplinary remedy can eliminate the need for a pre-disciplinary hearing. See Muscare v. Quinn, 520 F.2d 1212 (7th Cir. 1975); Reed v. Dept. of Police, 967 So.2d 606 (La. App. 2007)(in wake of Hurricane Katrina chaos, no need for pre-termination hearing if complete post-termination remedy in place). Even those courts adhering to this minority rule, however, demand extremely prompt post-disciplinary remedies. See D’Acquisto v. Washington, 640 F. Supp. 594 (N.D. Ill. 1986)(four-month delay from time of discipline to post-discipline hearing too lengthy). 158 Beary v. Johnson, 872 So.2d 943 (Fla. App. 2004). 159 Cochran v. Collins, 253 F. Supp. 2d 1295 (N.D. Ga. 2003). 160 Bass v. City of Albany, 968 F.2d 1067 (11th Cir. 1992)(termination violated due process where notice did not include reference to psychological evaluation which was a basis for the termination); Roorda v. City of Arnold, 142 S.W.3d 786 (Mo. App. 2004)(notice must include statement of charges and supporting facts); Bigando v. Heitzman, 590 N.Y.S.2d 553 (A.D. 1992)(termination violated due process when employer failed to list rules and regulations employee was accused of violating); see Sanders v. District of Columbia, 522 F. Supp. 2d 83 (D. D.C. 2007). 161 San Francisco Police Commission v. Police Commission of the City and County of San Francisco, 1996 WL 75309 (N.D. Cal. 1996); Reeves v. Thigpen, 879 F. Supp. 1153 (M.D. Ala. 1995); Formica v. Galantino, 1989 WL 100836 (E.D. Pa. 1989).

136 — PROCEDURAL RIGHTS IN THE DISCIPLINARY PROCESS 162 Mondt v. Cheyenne Police Department, 924 P.2d 70 (Wyo. 1996). 163 Martinez v. Personnel Board of the City of Loma Linda, 2003 WL 429505 (Cal. App. 2003). 164 Hrbek v. City of Bellevue Civil Service Com’n, 2005 WL 1949498 (Neb. App. 2005). 165 Bell v. Village of Delhi, 772 N.Y.S.2d 109 (A.D. 2004). 166 Rinehart v. City of Greenfield, 2007 WL 1100756 (S.D. Ind. 2007). 167 Civil Service Commission v. Goldman, 621 A.2d 1142 (Pa.Cmwlth. 1993); see City of Mitchell v. Graves, 612 N.E.2d 149 (Ind. App. 1993)(eight days not adequate notice for pre-termination hearing). 168 See D’Acquisto v. Washington, 640 F. Supp. 594 (N.D. Ill. 1986). 169 Panozzo v. Rhoads, 905 F.2d 135 (7th Cir. 1990); Balcerzak v. City of Milwaukee, 980 F. Supp. 983 (E.D. Wis. 1997); Williams v. Pima County, 791 P.2d 1053 (Ariz. App. 1989). But see Crimi v. Droskoski, 630 N.Y.S.2d 337 (A.D. 1995). 170 Angle v. Dow, 822 F. Supp. 1530 (S.D. Ala. 1993); In re Boespflug, 845 P.2d 865 (N.M. App. 1992). 171 Michalowicz v. Village of Bedford Park, 528 F.3d 530 (7th Cir. 2008). 172 Neal v. Pike Township, 530 N.E.2d 103 (Ind. App. 1988). 173 Cleveland Board of Education v. Loudermill, 470 U.S. 532 (1985). 174 Parker v. City of Fountain Valley, 179 Cal.Rptr. 351 (Cal. App. 1981). 175 Johnson v. City of Welch, 388 S.E.2d 284 (W.V. 1989). 176 Heger v. City of Costa Mesa, 282 Cal.Rptr. 341 (Cal. App. 1991)(meeting with superior officer not sufficient to satisfy due process requirements). 177 Los Angeles Police Protective League v. Gates, 907 F.2d 879 (9th Cir. 1990). 178 Bolliger v. San Diego Civil Service Commission, 84 Cal.Rptr.2d 27 (Cal. App. 1999). 179 Carver v. Nall, 714 N.E.2d 486 (Ill. 1999). 180 Guilford v. City of Buffalo, 571 N.Y.S.2d 183 (N.Y. Sup. 1991). 181 Click v. Board of Police Commissioners, 609 F. Supp. 1199 (W.D. Mo. 1985). 182 Gillard v. Norris, 857 F.2d 1095 (6th Cir. 1988). 183 Ganley v. County of San Mateo, 2007 WL 4554318 (N.D. Cal. 2007); Flannelly v. Board of Trustees of the New York City Pension Fund, 6 F. Supp. 2d 266 (S.D. N.Y. 1998). 184 Verri v. Nanna, 20 F. Supp. 2d 616 (S.D. N.Y. 1998). 185 State ex rel. Wilhoit v. Seay, 248 S.W.3d 135 (Mo. App. 2008). 186 Reinhard v. City of New York, 825 N.Y.S.2d 44 (A.D. 2006). 187 Mard v. Town of Amherst, 350 F.3d 184 (1st Cir. 2003). 188 Rinehart v. City of Greenfield, 2007 WL 1100756 (S.D. Ind. 2007); see Bianchi v. City of Philadelphia, 80 Fed. Appx. 232 (3d Cir. 2003). 189Murrieta v. Civil Service Com’n, 2008 WL 5235164 (Cal. App. 2 Dist. 2008). 190 Vanderwalker v. King County, 91 Fed. Appx. 545 (9th Cir. 2004). 191 Dell v. City of Tipton, 618 N.E.2d 1338 (Ind. App. 1993).

PROCEDURAL RIGHTS IN THE DISCIPLINARY PROCESS — 137 192 Riggins v. City of Louisville, 2008 WL 220730 (D. Colo. 2008); Gray v. City of Gustine, 372 Cal.Rptr. 730 (Cal. App. 1990); Clisham v. Board of Police Commissioners, 613 A.2d 254 (Conn. 1992). In Ulster County Sheriff, 16 NPER NY- 17511 (N.Y. Sup. Ct. 1993), the Court found a violation of procedural due process where the sheriff both initiated the charges and acted as the final decision-maker on the charges). See generally Hadad v. Croucher, 970 F. Supp. 1227 (N.D. Ohio 1997). 193 Ferrara v. Magee, 594 N.Y.S.2d 506 (A.D. 1993). 194 Christ v. Battle Run, 663 N.E.2d 722 (Ohio App. 1995). 195 Williams v. Board of Trustees of Morton Grove Firefighters’ Pension Fund, 2009 WL 4981045 (Ill. App. 1 Dist. 2009). 196 Williams v. Board of Trustees of Morton Grove Firefighters’ Pension Fund, 2009 WL 4981045 (Ill. App. 1 Dist. 2009). 197 D’Acquisto v. Washington, 750 F. Supp. 342 (N.D. Ill. 1990); see Marcelin v. City of West Palm Beach, 2009 WL 3584611 (S.D. Fla. 2009). 198 Wagner v. City of Memphis, 971 F. Supp. 308 (W.D. Tenn. 1997); see Bettio v. Village of Northfield, 775 F. Supp. 1545 (N.D. Ohio 1991)(officer suspended on charges known by employer to be false). 199 Ness v. Glasscock, 781 P.2d 137 (Colo. App. 1989). 200 Gilbert v. Homar, 520 U.S. 924 (1997); see In re Fox, 2007 WL 2066857 (N.J. Super. A.D. 2007)(discusses New Jersey statute allowing suspension of public employees who face similar charges). 201 Dee v. Borough of Dunmore, 549 F.3d 225 (3d Cir. 2008). 202 Monroe v. Schenectady County, 1 F. Supp. 2d 168 (N.D. N.Y. 1997). 203 Cleveland Board of Education v. Loudermill, 470 U.S. 532 (1985); Brennan v. Kaluczky, 641 N.Y.S.2d 176 (A.D. 1996)(firefighter discharged for untruthfulness entitled to post-termination hearing even though he received a thorough pre- disciplinary hearing). 204 Bianchi v. City of Philadelphia, 80 Fed. Appx. 232 (3d Cir. 2003). 205 Tolson v. Sheridan School District, 703 F. Supp. 766 (E.D. Ark. 1988). 206 Bexar County Sheriff’s Civil Service Com’n v. Davis, 802 S.W.2d 659 (Tex. 1990)(Doggett, dissenting). 207 DiCaprio v. Trzaskos, 610 N.Y.S.2d 395 (A.D. 1994)(discharge reversed when employer accidentally erased videotape of incident which was the basis for discipline). 208 Tolson v. Sheridan School District, 703 F. Supp. 766 (E.D. Ark. 1988). See Hatcher v. Board of Public Education and Orphanage, 809 F.2d 1546 (11th Cir. 1987); Levitt v. University of Texas, 759 F.2d 1224 (5th Cir. 1985); Brouillette v. Board of Directors, 519 F.2d 126 (8th Cir. 1975). See also Agarwal v. Regents of University of Minnesota, 788 F.2d 504 (8th Cir. 1986); Contra Bexar County Sheriff’s Civil Service Com’n v. Davis, 802 S.W.2d 654 (Tex. 1990). 209 Moore v. Board of County Com’rs of County of Leavenworth, 507 F.3d 1257 (10th Cir. 2007). 210 Bledsoe v. City of Horn Lake, Miss., 449 F.3d 650 (5th Cir. 2006). 211 Fontana v. Commissioner, 606 N.E.2d 1343 (Mass. App. 1993). 212 Carey v. Piphus, 435 U.S. 247 (1978). 213 Hill v. City of Pontotoc, Miss., 993 F.2d 422 (5th Cir. 1993).

138 — PROCEDURAL RIGHTS IN THE DISCIPLINARY PROCESS 214 Brewer v. Chauvin, 938 F.2d 860 (8th Cir. 1991); Stein v. Board of City of New York, 792 F.2d 13 (2d Cir. 1986). 215 Montgomery v. Mississippi, 498 F. Supp. 2d 892 (S.D. Miss. 2007); Schwartz v. Brown, 857 F. Supp. 291 (S.D. N.Y. 1994). 216 Hange v. City of Mansfield, Ohio, 257 Fed. Appx. 887 (6th Cir. 2007). 217 Ginaitt v. Haronian, 806 F. Supp. 311 (D. R.I. 1992); see Estate of Phillips v. District of Columbia, 257 F. Supp. 2d 69 (D. D.C. 2003)(court refuses to dismiss substantive due process claim that breach of commonly accepted training standards by employer resulted in firefighter’s death). 218 Harrington v. Almy, 977 F.2d 37 (1st Cir. 1992). 219 Finkelstein v. State Personnel Board, 267 Cal.Rptr. 133 (Cal. App. 1990); Grames v. Illinois State Police, 625 N.E.2d 945 (Ill. App. 1993); Boyd v. Constantine, 613 N.E.2d 511 (N.Y. 1993). See also Williams v. City of Los Angeles, 763 P.2d 480 (Cal. 1988). 220 Rinderknecht v. Maricopa County, 520 P.2d 332 (Ariz. App. 1974). Other cases to similar effect are Department of Law Enforcement v. Allen, 400 So.2d 777 (Fla. App. 1981); Kelly v. Civil Service Commission, 691 N.E.2d 557 (Mass. 1998); Board of Selectmen of Framingham v. Municipal Ct. of City of Boston, 369 N.E.2d 1145 (Mass. 1977); Conwell v. City of Albuquerque, 637 P.2d 567 (N.M. 1981); City of New Brunswick v. Speights, 384 A.2d 225 (N.J. Super. 1978); and Turner v. City of Lawton, 733 P.2d 375 (Okla. 1986). At least one arbitrator has applied the exclusionary rule in a case where the bill of rights in a collective bargaining agreement was violated by the method of questioning during a disciplinary interview. Metropolitan Police Department and Fraternal Order of Police, LAIG 4241 (Johnson, 1989). 221 Minnesota Troopers v. Dept. of Public Safety, 437 N.W.2d 670 (Minn. App. 1989). 222 Miranda v. Arizona, 384 U.S. 436 (1966). 223 People v. Probasco, 795 P.2d 1330 (Colo. 1990). See also State v. Connor, 861 P.2d 1212 (Idaho 1993)(Miranda applies where interrogation of public employee is custodial). 224 Arrington v. City of Dallas, 970 F.2d 1441 (5th Cir. 1992).

PROCEDURAL RIGHTS IN THE DISCIPLINARY PROCESS — 139 140 — PROCEDURAL RIGHTS IN THE DISCIPLINARY PROCESS CHAPTER 5

FIREFIGHTER BILLS OF RIGHTS

FIREFIGHTER BILLS OF RIGHTS — 141 INTRODUCTION. A perception that the rights of firefighters are not always observed in the internal investigations process has led to the adoption of comprehensive procedural The rights granted under a bill of protections granted to firefighters in the complaint investigation process, protec- rights are more tions usually known as the firefighter “bills of rights.” In several states, and most expansive than recently in California, firefighters have been granted these rights by statute.1 In those required states that have not adopted statutory bills of rights, such provisions appear in col- under principles of procedural due lective bargaining agreements between firefighter labor organizations and fire pro- process. tection agencies. In virtually all cases, the rights granted under a bill of rights are more expansive than those required under principles of procedural due process.2

STATUTORY BILLS OF RIGHTS. Comprehensive statutory bills of rights exist in a variety of states. Since Florida’s Bill of Rights is quite long-standing, this book will use the Florida statutes to describe the types of provisions that appear in bills of rights. The Florida Bill of Rights, found in Chapter 112.80 of the Florida Statutes, begins with a fairly limited definition of “firefighter,” applying the bill of rights only to full-time firefighters: “‘Firefighter’ means any person who is certified in compliance with state law and who is employed solely within the fire department or public safety department of an employing agency as a full- time firefighter whose primary responsibility is the prevention and extinguishment of fires; the protection of life and property; and the enforcement of municipal, county, and state fire prevention codes and laws pertaining to the prevention and control of fires.”3 The Florida Bill of Rights then provides definitions which distinguishes between “informal inquiries” and “formal investigations,” a distinction that has significance later in the statute: “‘Informal inquiry’ means a meeting by supervisory or management personnel with a firefighter about whom an allegation of misconduct has come to the attention of such supervisory or management personnel, the purpose of which meeting is to mediate a complaint or discuss the facts to determine whether a formal investigation should be commenced.4 “‘Formal investigation’ means the process of investigation ordered by supervisory personnel, after the supervisory personnel have previously determined that the firefighter shall be reprimanded, suspended, or removed, during which the questioning of a firefighter is conducted for the purpose of gathering evidence of misconduct.”5

142 — FIREFIGHTER BILLS OF RIGHTS The Florida Bill of Rights then defines what constitutes an “interrogation,” giving a definition which seems to take a narrower view than the Weingarten rule as to what supervisory-subordinate interactions would allow union representation. “‘Interrogation’ means the questioning of a firefighter by an employing agency in connection with a formal investigation or an administrative proceeding but shall not include arbitration or civil service proceedings. Questioning pursuant to an informal inquiry shall not be deemed to be an interrogation.”6 The substantive provisions of the Florida Bill of Rights require that whenever a firefighter is subjected to an “interrogation,” the interrogation must comply with the following requirements: (1) Location of Interview. “The interrogation shall take place at the facility where the investigating officer is assigned, or at the facility which has jurisdiction over the place where the incident under investigation allegedly occurred, as designated by the investigating officer. (2) Notice of Interview. “No firefighter shall be subjected to interrogation without first receiving written notice of sufficient detail of the investigation in order to reasonably apprise the firefighter of the nature of the investigation. The firefighter shall be informed beforehand of the names of all complainants. (3) When the Interview is Conducted. “All interrogations shall be conducted at a reasonable time of day, preferably when the firefighter is on duty, unless the importance of the interrogation or investigation is of such a nature that immediate action is required. (4) Individuals Conducting the Interview. “The firefighter under investigation shall be informed of the name, rank, and unit or command of the officer in charge of the investigation, the interrogators, and all persons present during any interrogation. (5) Breaks During the Interview. “Interrogation sessions shall be of reasonable duration and the firefighter shall be permitted reasonable periods for rest and personal necessities. (6) Language Used in Questioning. “The firefighter being interrogated shall not be subjected to offensive language or offered any incentive as an induce- ment to answer any questions. (7) Record of the Interview. “A complete record of any interrogation shall be made, and if a transcript of such interrogation is made, the firefighter under investigation shall be entitled to a copy without charge. Such record may be electroni- cally recorded. (8) Representation During The Interview. “An employee or officer of an employing agency may represent the agency, and an employee organization may represent any member of a bargaining unit desiring such representation in any proceeding to which this part applies. If a collective bargaining agreement provides for the presence of a representative of the collective bargaining unit during investigations or interrogations, such representative shall be allowed to be present.

FIREFIGHTER BILLS OF RIGHTS — 143 (9) Non-Discrimination. “No firefighter shall be discharged, disciplined, demoted, denied promotion or seniority, transferred, reassigned, or otherwise disciplined or discriminated against in regard to his or her employment, or be threatened with any such treatment as retaliation for or by reason solely of his or her exercise of any of the rights granted or protected by this part.”7 These guarantees of the Florida Bill of Rights are significantly more expansive than would be required by the rules of constitutional due process or other national standards. For example, the obligation to make a record of interrogations, and to provide a complimentary copy of the record to the firefighter under investigation, would not be required by the Loudermill rule or other due process principles. Similarly, the right to advance notice of the names of complainants and the procedures mandated for questioning would also not be required by constitutional due process. Along the same lines, the right under Section 8 to representation by either a labor organization or by any other employee in the bargaining unit is broader than the representation rights guaranteed by the Weingarten rule. The Florida Bill of Rights concludes with an enforcement mechanism which limits the enforcement of the bill of rights to obtaining injunctions, and appears to bar suits for money damages in the event of a violation of the bill of rights: “If an agency employing firefighters fails to comply with the requirements of this part, a firefighter employed by such agency who is personally injured by such failure to comply may apply directly to the circuit court of the county wherein such employing agency is headquartered and permanently resides for an injunction to restrain and enjoin such violation of the provisions of this part and to complete the performance of the duties imposed by this part.”8

144 — FIREFIGHTER BILLS OF RIGHTS NOTES 1 The California Firefighters Procedural Bill of Rights Act, codified as Sections 3250-3262 in California’s Government Code, became effective on January 1, 2008. The California Bill of Rights applies to firefighters, including those working as paramedics, and includes many of the same provisions as California’s long-standing Peace Officer Bill of Rights. See San Diego Firefighters v. City of San Diego, 2009 WL 1423568 (Cal. App. 4 Dist. 2009). As of the writing of this book, no reported cases have interpreted the California Firefighters Bill of Rights. Law enforcement officers have been much more successful than firefighters in convincing state legislatures to enact bills of rights. Firefighter bills of rights exist in at least the following states: Arkansas: Ark. Code Ann. § 14-52-301; California: Cal. Gov’t Code § 3300; Delaware: Del. Code Ann., Title 11, § 9200; Florida: Fla. Stat. Ann.§ 112.531; Illinois: Ill. Rev. Stat., Chapter 50, ¶725/1; Kentucky: Ky. Rev. Stat. Ann. § 15.520; Louisiana: La. Rev. Stat. Ann. § 40:2531; Maryland: Md. Ann. Code, § 3-101; Minnesota: Minn. Stat. Ann. § 626.89; Nevada: Nev. Rev. Stat. § 289; New Mexico: N.M. Stat. Ann. § 29-14-1; Rhode Island: R.I. Gen. Laws § 42-28.6-1; Tennessee: Tenn. Code Ann. § 38-8-301; Texas: Tex. Rev. Civ. Stat. Ann. § 143.123; Virginia: Va. Code Ann. § 52-11; West Virginia: W.V. Code § 8-14A-1; Wisconsin: Wis. Stat. § 164. 2 Knox v. City of Elsmere, 1995 WL 339096 (Del. Sup. 1995). 3 Fla. Stat. Ann.§ 112.531 (1). 4 Fla. Stat. Ann.§ 112.531 (3). 5 Fla. Stat. Ann.§ 112.531 (4). 6 Fla. Stat. Ann.§ 112.531 (6). 7 Fla. Stat. Ann.§ 112.531. Many of these provisions are quite similar to those in other states with firefighter bills of rights. See, e.g.,La. Rev. Stat. Ann. § 40:2531 (Louisiana Firefighter Bill of Rights). 8 Fla. Stat. Ann. § 112.83.

FIREFIGHTER BILLS OF RIGHTS — 145 146 — FIREFIGHTER BILLS OF RIGHTS CHAPTER 6

A FIREFIGHTER’S RIGHT TO PRIVACY

A FIREFIGHTER’S RIGHT TO PRIVACY — 147 The federal Constitution does not contain a specifically articulated right to privacy. Instead, in a series of decisions, the United States Supreme Court has inferred the existence of a right to privacy from five provisions of the Bill of Rights. Looking into the “penumbras” of the First Amendment (freedoms of speech, religion and association), the Third Amendment (the right not to be forced to quarter soldiers in one’s home), the Fourth Amendment (search and seizure), the Fifth Amendment (due process), and the Ninth Amendment (reserving non-described rights to the people), the Supreme Court has found that a constitutional right to privacy provides protections in two areas: • An individual’s interest in avoiding disclosure of personal matters. • An individual’s interest in being “let alone” – an interest in making certain decisions concerning personal matters such as marriage, procreation, contraception, family relationships, and child rearing, free from any interference from government.1 Since fire protection agencies have historically sought control over their employees in each of these areas, it is not surprising that a good deal of litigation has ensued over the years concerning a firefighter’s right to privacy.

THE RIGHT NOT TO DISCLOSE PERSONAL MATTERS. The right to privacy does not guarantee that firefighters will not be required The right to disclose personal matters to their employers; rather, the right to privacy guar- to privacy guarantees that antees that disclosure can be compelled only if the employer’s interest in the disclosure can be disclosure outweighs the firefighter’s privacy interest.2 The greater the degree of compelled only intrusion on a firefighter’s privacy, the more significant the employer’s need to if the employer’s 3 interest in know the information must be to override those interests. Conversely, where the the disclosure firefighter’s privacy interest is minimal, the firefighter may be forced to disclose outweighs the the information in the face of a strong governmental interest. firefighter’s privacy interest. This balance has usually been phrased in terms of the legitimacy of the employer’s need to know certain information about an employee. If the information is relevant to a firefighter’s on-the-job performance or to the integrity of government, the firefighter may be required to disclose the information. If the firefighter has a legitimate expectation of privacy in the information and the employer’s need for the information is less acute, the compelled disclosure of the information to the employer is less likely.4 Where an employer’s inquiry into the private life of an employee is legitimate, Broad, sweeping requests for the inquiry must be made as narrowly as possible. Broad, sweeping requests for information are information are not likely to be valid. Thus, for example, where an order to dis- not likely to be close all of an employee’s personal medical records would likely be struck down, a valid. request for particular medical information with a direct relationship to job performance would be upheld.5

148 — A FIREFIGHTER’S RIGHT TO PRIVACY DISCLOSURE OF FINANCIAL MATTERS. The compelled disclosure of financial information has been the subject of much litigation under the “disclosure of personal information” prong of the right The basis for to privacy. A number of public employers require all their employees, including such compelled firefighters, to regularly disclose a list of their assets, liabilities, and income. The disclosure basis for such compelled disclosure of financial information is the notion that the of financial information is disclosure of financial information will deter corruption and dishonesty among the notion that public employees. the disclosure There has been a good deal of debate over ordinances or statutes requiring of financial information will firefighters to disclose personal financial records. The leading case in the area is deter corruption Barry v. City of New York,6 which upheld the City of New York’s financial dis- and dishonesty closure law. The financial disclosure law, which is applicable to employees with among public salaries greater than $25,000 per year, requires employees to divulge the following employees. information: • The source of all income over $1,000 per year received by the employee or the employee’s spouse; • All creditors to whom the employee or the employee’s spouse owes more than $5,000; and • The identity of all property valued at more than $20,000. In upholding the financial disclosure ordinance against challenges filed by firefighters, the Court recognized the interests of employees in keeping such financial information private, but held that the City’s interest in a corruption-free workplace overrode the employees’ privacy concerns: “We think the statute as a whole plainly furthers a substantial, possibly even a compelling state interest. The purpose of the statute is to deter corruption and conflicts of interest among City officers and employees, and to enhance public confidence in the integrity of its government. * * * Whatever one may think of the intrusiveness of financial disclosure laws, they are widespread * * * and reflect the not unreasonable judgment of many legislatures that disclosure will help reveal and deter corruption and conflicts of interest.”7 The Court stressed that it placed great importance on a portion of the ordinance that created a procedure for employees to make claims of privacy as to certain financial records and to have those claims heard by a neutral body.8 The principle that the public has a right to know about the expenditure of public money also applies with respect to the names and pensions of retirees, which are also subject to disclosure.9 Actual tax returns themselves, however, are on a different footing than simple financial information. Because of traditional notions of privacy associated with tax returns, an employer cannot compel its firefighters to disclose the returns, even for purposes of verifying compliance with a residency requirement.10

A FIREFIGHTER’S RIGHT TO PRIVACY — 149 The limited protections provided by the constitutional right to privacy can be enhanced by state statutes. For example, California’s Firefighter Bill of Rights gives broad protections against the disclosure of financial information: “A firefighter shall not be required or requested for purposes of job assignment or other personnel action to disclose any item of his or her property, income, assets, source of income, debts, or personal or domestic expenditures, including those of any member of his or her family or household, unless that information is otherwise required to be furnished under state law or obtained pursuant to court order.”11

DISCLOSURE OF MEDICAL INFORMATION. The courts have treated the compelled disclosure of personal medical information in roughly the same fashion as they have the disclosure of financial information. When a fire protection agency is seeking to have an employee disclose medical information, it must clearly show a relationship between the information When a fire protection agency and the employee’s physical or emotional ability to perform the job. If such a rela- is seeking to have tionship is shown, and the examination bears on the firefighter’s fitness for duty, an employee the agency will have the authority to compel the examination.12 Absent such a disclose medical 13 information, it relationship, the compelled examination will violate the right to privacy. must clearly show The necessary relationship between medical information and the employer’s a relationship needs was the subject in one case in which a City compelled all firefighters and between the information and paramedics to submit to AIDS testing as part of an annual physical examination. the employee’s Though the Court concluded that AIDS testing was a “search” covered by the physical or search and seizure protections of the Fourth Amendment, the Court found that emotional ability to perform the job. the privacy rights of the firefighters not to submit to the test were outweighed by the benefits of the testing: “The information provided by mandatory HIV testing of high- risk government employees serves a compelling government interest and a public purpose. * * * The medical evidence demonstrates that the risk of HIV transmission in the performance of the duties of a firefighter paramedic is high. * * * If an employer wants to use mandatory testing, it must demonstrate that universal precautions and voluntary testing will not prevent the contracting and/or spread of AIDS by high-risk employees or professionals. The City has made such a demonstration here.”14 When one moves beyond the constitutional right to privacy to specific federal statutes, one sees a greater protection of the privacy of medical information. Under the Americans With Disabilities Act (ADA), an employer is only allowed to obtain information about the “nature or extent of a disability” if the employer has reasons for learning the information that are job-related and consistent with business necessity. Several courts considering the issue have found that a blanket requirement that employees wanting to use sick leave provide doctor’s notes or see

150 — A FIREFIGHTER’S RIGHT TO PRIVACY the employer’s physician violates these privacy provisions of the ADA.15 Along the same lines, if an employer has appropriate reasons to compel a firefighter to submit to a medical examination, the ADA mandates that the examination be limited in scope so that it does not involve matters beyond the employer’s business necessity.16

DISCLOSURE OF JOB-RELATED INFORMATION. From time to time, representatives of the media file requests under public records or freedom of information laws for the personnel records of firefighters. Though public records laws routinely have exemptions barring disclosure of information of a highly personal nature, courts have not looked kindly on the efforts of firefighters to bar disclosure of a wide variety of personnel records, finding the disclosure in the interest of the “public’s right to know.” Among the records courts have ordered disclosed are the following: • Records of salary and overtime earnings.17 • Records of sick leave use.18 • Vacation records.19 • Attendance records.20 The privacy protections of public records laws vary from state to state, and are controlled by whatever the specific provision of the relevant public records law allows. In general, however, about the only information in a public employer’s personnel records not subject to disclosure are home address and telephone number information, Social Security numbers, birth dates, and some types of disciplinary files.21

DRUG TESTING AND FIREFIGHTERS. Perhaps no area of constitutional law involving public employees has been as active in recent years as the area of drug testing, an area which directly implicates These cases, the employees’ right to privacy. Though the United States Supreme Court has yet together with the to decide a case involving the random drug testing of firefighters, it has decided decisions of lower two cases discussing the general principles applicable to the drug testing of public courts, seem to indicate that an employees. These cases, together with the decisions of lower courts, seem to indi- employer can cate that an employer can conduct random drug testing of firefighters without conduct random violating the federal constitutional privacy rights of firefighters. drug testing The first of the two cases from the United States Supreme Court, Skinner v. of firefighters without violating Railway Labor Executives’ Association, involved a challenge to federal regulations the federal requiring blood and urine testing for drugs and alcohol whenever a train employee constitutional was involved in certain types of accidents.22 The Supreme Court held that the privacy rights of firefighters. testing was permissible, ruling that “the governmental interest in ensuring the

A FIREFIGHTER’S RIGHT TO PRIVACY — 151 safety of the traveling public and of the employees themselves plainly justifies prohibiting covered employees from using alcohol or drugs on duty, or while subject to being called for duty. This interest also require[s] and justifies the exercise of supervision to assure that the restrictions are in fact observed.” The second of the two cases, National Treasury Employee’s Union v. Von Raab, involved a challenge to the drug testing program of the United States Customs Service.23 Under the program, employees who seek promotions or transfers to positions having a direct involvement in the Service’s drug interdiction program or to positions which require the employee to carry firearms or to handle “classified” material are required to submit to drug testing. The Court approved of the drug- testing program, reasoning as follows: “Detecting drug impairment on the part of employees can be a difficult task, especially where, as here, it is not feasible to subject employees and their work-product to the kind of day-to-day scrutiny that is the norm in more traditional office environments. Indeed, the almost unique mission of the Service gives the Government a compelling interest in ensuring that many of these covered employees do not use drugs even off duty, for such use creates risks of bribery and blackmail against which the Government is entitled to guard. In light of the extraordinary safety and national security hazards that would attend the promotion of drug users to positions that require the carrying of firearms or the interdiction of controlled substances, the Service’s policy of deterring drug users from seeking such promotions cannot be deemed unreasonable.” Perhaps as a result of the narrow way in which the Supreme Court wrote the Skinner and NTEU opinions, courts have split on the issue of whether random drug testing of firefighters is constitutional, though a trend has emerged in recent years approving of the practice.24 The courts upholding random drug testing of firefighters analogize the role of firefighters to that of the customs officers in NTEU. One court commented that firefighters should have a diminished expectation of privacy because of the hazardous nature of their jobs: “A firefighter must possess strength, stamina, aerobic and anaerobic fitness, judgment, mental alertness, memory and the ability to work with people, and, because of being subject to recall at all times and to work irregular hours, a firefighter must be physically fit, mentally alert and capable of exercising sound judgment. Like the Customs Service employees, firefighters should expect effective inquiry into their fitness and probity. Consequently, their privacy interests are diminished in this regard.”25 Another court stressed the public safety nature of a firefighter’s job, listing a variety of other public safety jobs for which random testing had been approved: “The safety of others was in the firefighter’s hands, and an impairment due to drug use could well have led to otherwise avoidable injury or death. It is generally established that employees responsible

152 — A FIREFIGHTER’S RIGHT TO PRIVACY for the safety of others may be subjected to drug testing, even in the absence of suspicion of wrongdoing. Employees who have been held to be subject to random drug testing without violation of the Fourth Amendment include pipeline operators, airline industry personnel, correctional officers, various transportation workers, Army civilian guards, civilian workers in a military weapons plant, Justice Department employees with clearance for top-secret information, police officers carrying firearms or engaged in drug interdiction efforts, and nuclear power plant engineers.”26 The courts that reject random testing ﬁnd the analogy to customs ofﬁcers and other law enforcement employees inappropriate: “Although firefighters are engaged in hazardous work involving the public safety and must be able to think and react quickly, the City’s firefighters do not carry firearms and are not required to use deadly force in the regular course of their duties. Nor, of course, are they involved in the front line defense of our nation or other law enforcement activities or subject to criminal elements or controlled substances. “The Court in no way means to belittle the role of firefighters. Firefighters provide important and indispensable protection to the property and persons in the community. Furthermore, the City’s interest in ensuring a firefighter’s fitness in the face of the ever-growing drug problem in today’s society is equally important. Nevertheless, the Court does not believe that the role of a firefighter can be analogized to a customs agent whose job is drug interdiction or involves carrying a firearm.”27 Following the logic of those cases disapproving of random drug testing, a court found that mandatory blood draws as part of a FEMA-sponsored health program violated the Fourth Amendment’s ban on unreasonable searches and seizures. As the Court analyzed it, “the City has failed to establish that there is a special need for the blood draws. There has been no showing that there has been a problem with physically unfit fire and emergency response workers. There is no evidence that firefighters experience pronounced fitness problems. Nor is there a high degree of harm to the public from high cholesterol readings from the firefighters. The City has not shown any indication of a concrete danger to public safety demanding departure from the Fourth Amendment’s main rule.”28 Where drug testing is required to be justified by reasonable suspicion, an employer desiring to conduct a drug test must be able to articulate facts that would lead a reasonable individual to conclude that the firefighter has engaged in the use of illegal drugs. The reasonable suspicion standard does not demand certainty; rather, an employer is entitled to draw reasonable inferences from obser- vations it makes of the firefighter’s conduct and demeanor. In all of the following

A FIREFIGHTER’S RIGHT TO PRIVACY — 153 cases, courts have found reasonable suspicion to perform a drug test on a firefighter: • Where a firefighter had referred himself to the employer’s health center for an evaluation, had warned his supervisors that he might become violent if provoked, had lost his temper while in uniform and had engaged in a public altercation with his girlfriend.29 • Where a firefighter was charged with driving under the influence, had attendance problems, and displayed a change in personality.30 • Where a firefighter had prior substance abuse problems, had a long record of excessive absences, had physical manifestations of substance abuse, and where the employer received an anonymous letter indicating that the employee was reporting to work under the influence of alcohol.31 • Where a probationary firefighter frequently called in sick during the training academy, was arrested for criminal trespass in the lobby of a building posted with “no trespassing” signs located in housing projects in an area described by the police as a “known drug location,” and failed to report for work on at least one occasion.32 • Where a firefighter appeared at work with red eyes and the odor of alcohol on his breath.33 • Where a firefighter who was involved in a “spectacular” car accident while off duty refused to submit to a blood test after the accident even though the investigating police officer described the firefighter as incoherent and the firefighter smelled of alcohol.34 • Where a firefighter became belligerent and started screaming during a traffic stop made by police because of the firefighter’s reckless driving, and where the officers believed that the firefighter was under the influence of drugs.35 Some controversy exists on whether an employer’s mandatory observation of the act of urination constitutionally taints a drug test, with courts fairly evenly divided on the issue. For example, one appeals court ordered a trial on the issue of whether a supervisor observed the act of urination by an emergency medical service trainee, commenting that if the observation of the trainee was unobstructed and complete and was without reasonable suspicion that the trainee would tamper with the sample, the drug test unconstitutionally violated the privacy rights of the trainee.36 A federal court in California found that the direct observation of the act of urination violated the specific right to privacy in the California state constitution.37 Reaching the opposite conclusions, other courts have found that even in the absence of reasonable suspicion that tampering with the sample would occur,

154 — A FIREFIGHTER’S RIGHT TO PRIVACY the observation of urination during the drug testing of firefighters does not rise to the level of a violation of an employee’s privacy rights so long as it involved only “incidental” viewing of a firefighter’s genitals.38 Complicating the matter even more, state constitutions can grant greater rights to citizens than the federal constitution. As some federal courts have held that firefighters and law enforcement officers may be subject to random drug testing under the federal Constitution, some challenges to drug testing programs have moved from federal to state court. At least three states – Arizona, Massachusetts, and Alaska – have now held that no matter what the federal rule is on drug testing, random drug testing of public safety employees such as firefighters violates the privacy guarantees in a state constitution.39 The rationale of the Arizona Supreme Court is illustrative of the approach taken by state courts in interpreting their own constitutions: “Fourth Amendment analysis requires that we do more than recognize that the City has an interest in deterring drug use among employees in safety-sensitive positions. In addition, we must look to the nature and immediacy of the City’s concern. That is, has the City identified a real and substantial risk? If so, will the City’s proposed invasion of its firefighters’ privacy interests further the City’s interest in deterring and detecting drug use among its firefighters? Answering that question requires that we consider the efficacy of the Program in meeting the City’s concern, and whether the invasion of privacy is calibrated to the defined risk. “The record before us provides little information about the City’s reasons for adopting random testing and provides no evidence to explain the City’s perceived need to conduct such testing. The record is devoid of any indication that the City has ever encountered any problem involving drug use by its firefighters. The record lacks not only evidence of even a single instance of drug use among the firefighters to be tested but also any evidence of accidents, fatalities, injuries, or property damage that can be attributed to drug or alcohol use by the City’s firefighters. No evidence of record suggests that the firefighters asked for or consented to the testing policy, and the record includes not even an allegation or rumor that the City’s firefighters used or abused drugs or alcohol. Based on this record, we detect no real and substantial risk that the public safety is threatened by drug or alcohol use among the firefighters to be tested. The absence of evidence of drug use, at least as reflected in the record, provides no basis for us to conclude that random, suspicionless testing is calibrated to respond to any defined risk.”40 Without regard to how the relationship between the right to privacy and the random drug testing of firefighters eventually is resolved, it is clear that a drug testing program is a mandatorily negotiable “working condition” under state collective bargaining laws. As such, even if an employer is constitutionally permitted

A FIREFIGHTER’S RIGHT TO PRIVACY — 155 to have a random testing program, it is likely required to negotiate with the labor organization representing impacted employees before it implements the program.41

The “Right To Be Let Alone” Aspect Of The Right To Privacy. The “right to be let alone” element of the right to privacy applies to protect the personal relationships of firefighters.42 The right to privacy provides protections both in marital and non-marital relationships,43 and in cases where the conduct is protected simply because it is private. In the words of one court, such matters should be beyond the control of public safety employers because they do “not adversely affect persons beyond the actor, and hence are none of their business.”44

The Right To Be Let Alone And Intimate Relationships. Courts have held that the right to privacy prohibits fire protection and other Courts have held that the right to public safety agencies from disciplining employees on the basis of off-duty per- privacy prohibits sonal or sexual relationships. This aspect of the right to privacy often has First fire protection Amendment overtones, since the First Amendment protects a firefighter’s “free- and other public safety agencies dom of association.” from disciplining Whether freedom of association and the right to privacy extend to particular employees on the relationships depends on the extent to which those relationships share the qualities basis of off-duty personal or sexual distinctive to family relationships, such as “relative smallness” and “seclusion from 45 relationships. others in critical aspects of the relationship.” Though the matter is not without debate, most courts find that “even a public employee’s association choices as to whom to date enjoy constitutional protection.”46 Applying this framework, one court held that a firefighter’s cohabitation with a woman prior to marriage was protected conduct.47 In another case, an employer was held to have violated an employee’s right to privacy when it disciplined him for an off-duty affair with a woman who had no connection to the employer.48 In another case, an employer was held to have violated a married employee’s right to privacy when it disciplined him for having an affair with an 18-year old,49 while another employer was held In order for a fire to have violated the right to privacy of an applicant by rejecting her, in part, for protection agency having an affair with a married police officer.50 to discipline an employee for his In order for a fire protection agency to discipline an employee for his or her or her personal personal relationships, there must be a direct correlation between the employee’s relationships, activities and poor job performance, such as where the department is attempting to there must be a 51 direct correlation prohibit superior and subordinate employees of opposite sexes from cohabiting. between the As noted by one court, the burden of proof in this area is very strict: employee’s “Here the plaintiff was required by the defendant officials to activities and poor job performance. tell of his private, off-duty marital misconduct which in no way had affected the performance of his duties and which had not publicly

156 — A FIREFIGHTER’S RIGHT TO PRIVACY reflected adversely upon the public image of the plaintiff * * * or of the public body. Given the opportunity to do so, the defendant city officials offered no evidence that shows marital misconduct engaged in privately and while off duty has any effect upon [the employee’s] duty performance. They disapprove, as most citizens do, of [employees] running around on their wives. They do not even suggest that this disapproved of conduct generally impairs the performance of duty or specifically impaired this [employee’s] duty performance. There is no justification for these officials requiring this [employee] to cease running around on his wife as a condition of being an employee. Constitutionally, when off duty and out of uniform, he can do privately what he wishes to do until such time as it materially and substantially impairs his usefulness as an [employee].”52 A similar relationship between an employee’s sexual orientation and job performance must exist before an employee can be disciplined for homosexuality. Courts have concluded that a person cannot be dismissed from public employment 53 Courts have solely because he or she is a homosexual. As one court noted, while homosexual concluded that conduct “may be deemed immoral by the majority of our society, this alone does a person cannot not justify denying plaintiff government employment.”54 be dismissed from public Rules barring married employees from working together are regularly employment upheld.55 In one case, Gaston County, North Carolina, enacted a nepotism policy solely because that provided that married couples would not be allowed to work in the same he or she is a department nor to supervise one another. The policy stated that in the event that homosexual. employees within the same department marry, they were allowed 90 days to transfer to other County employment or to resign. Two paramedics who desired to get married requested an exemption from the rule from the County Manager. When the County Manager refused to grant the exemption, the paramedics brought a constitutional challenge to the nepotism rule. A court rejected the challenge, noting that nepotism rules “effectuate rational and laudable workplace goals” such as avoiding conflicts of interest between work-related and family-related obligations, reducing favoritism, reducing family conflicts concerning the workplace, and decreasing the likelihood of sexual harassment in the workplace.56

THE RIGHT TO BE LET ALONE AND RESTRICTIONS ON ACTIVITIES WHILE A FIREFIGHTER IS ON SICK LEAVE. The right to privacy provides some protections to firefighters when their employer attempts to regulate their activities while they are on sick leave. The balance between the right to privacy and the employer’s legitimate interest in ensuring that sick leave is not abused was most clearly struck in a case involving the City of Philadelphia. In that case, the International Association of Fire Fighters challenged a regulation requiring all firefighters who were using sick leave to stay

A FIREFIGHTER’S RIGHT TO PRIVACY — 157 at home, and to obtain an “exercise pass” from a battalion chief when they wished to leave home. The Court struck down a portion of the regulations, noting the following difficulties with the rules: • The Department had not established any guidelines as to the standards battalion chiefs should use in issuing or denying “exercise passes.” • The regulations impaired a firefighter’s ability to vote, attend religious services, and engage in other activities which were constitutionally protected. • The “exercise passes” were only valid between 8 a.m. and 8 p.m., limitations the Court found unsupportable. The Court did uphold the right of the employer to enact regulations that would require firefighters to remain at home within these guidelines, and also upheld the right of the employer to send inspectors on a random basis to a sick employee’s residence.57 Though some cases hold to the contrary, most similar cases involving “sick leave confinement” policies of other public employees have also generally been upheld by the courts in the face of privacy challenges.58 Moreover, employees have uniformly lost Fair Labor Standards Act lawsuits seeking compensation for the time spent at home under “sick leave confinement” policies.59 As noted earlier in this chapter in the discussion about medical information, the Americans With Disabilities Act provides some protections for firefighters using sick leave. Courts are now construing the ADA to forbid employers from requiring routine doctor’s notes evidencing the need to use sick leave, and are requiring instead that an employer establish that an employee is a sick leave abuser as a predicate for a “doctor’s note” requirement.

THE RIGHT TO BE LET ALONE AND A FIREFIGHTER’S PRIVACY IN OFFICES, LOCKERS, DESKS, AND THE USE OF THE EMPLOYER’S COMMUNICATION SYSTEMS. The seminal case on a public employee’s right to privacy in lockers, desks and other facilities is O’Connor v. Ortega.60 O’Connor arose out of the warrantless search of the office, desk, and files of a psychiatrist employed by a public hospital. When the psychiatrist brought suit alleging that the search violated his constitutional right to privacy, the case rose all the way to the United States Supreme Court. The nine justices split three ways on the principles applicable to such administrative searches. The plurality opinion (the opinion which garnered the most votes) rejected the notion that “public employees can never have a reasonable expectation of privacy in their place of work.” The right to privacy, the Court found, was not absolute. Rather, “public employees’ expectations of privacy in their

158 — A FIREFIGHTER’S RIGHT TO PRIVACY offices, desks, and file cabinets, like similar expectations of employees in the private sector, may be reduced by virtue of actual office practices and procedures, or by legitimate regulation.” As the law has coalesced over the years, it has become clear that, either through rule or practice, an employer can defeat a firefighter’s claim of a reasonable expectation of privacy in lockers or desks. The first locker search decision since O’Connor allowed a fire department to conduct random searches of the firefighters’ lockers, provided the employer had notified all employees in advance that they should have no expectation of privacy in their lockers. Important in the case was the fact that the employer proved that 10% of the employees of the department had drug or alcohol abuse problems.61 In another case, a court held that a firefighter did not have a reasonable expectation of privacy in the lieutenants’ room at a fire station since a number of lieutenants shared the room with the firefighter, and the firefighter lacked the authority to exclude other firefighters from the room.62 In yet another case, a court found that since any number of employees had keys to a firefighter’s office, the firefighter had no reasonable expectation of privacy in the office.63 The law is unsettled as to a firefighter’s privacy interests in using the employer’s communication system. Generally speaking, a firefighter is thought to have Messages sent no privacy interest in mail sent to the firefighter in care of the employer’s address. through an Similarly, messages sent through an employer’s dispatch or electronic mail systems employer’s do not have the requisite expectation of privacy.64 However, telephone communi- dispatch or electronic mail cations conducted on the employer’s telephone system may well be private, particu- systems do not larly given the interplay between the right to privacy and various federal telecom- have the requisite munications laws.65 expectation of privacy.

THE RIGHT TO BE LET ALONE AND A FIREFIGHTER’S PERSONAL APPEARANCE. One area of the right to privacy that has never been directly addressed is whether the right provides any protections in the area of a fire agency’s decision to implement or change a grooming code. If such a case is brought, the privacy claim will likely fail. The leading grooming code case is Kelley v. Johnson, in which the Supreme Court considered a First Amendment freedom of speech challenge (not a privacy challenge) to a police department grooming code covering the style and length of hair, sideburns and mustaches, and prohibiting beards and goatees except for medical reasons.66 While the Court’s opinion necessarily addressed only the freedom of speech issues raised in the case, the clear implication of the opinion, which upheld the grooming code, is that grooming codes would not be held to violate the right to privacy. The Court found that grooming code rules must be “arbitrary” in order to be a deprivation of First Amendment rights, and in clear language upheld a broad right of fire protection agencies to regulate such matters:

A FIREFIGHTER’S RIGHT TO PRIVACY — 159 “The overwhelming majority of state and local police of the present day are uniformed. This fact itself testifies to the recognition by those who direct those operations, and by the people of the States and localities who directly or indirectly choose such persons, that similarity in appearance of police officers is desirable. This choice may be based on a desire to make police officers readily recognizable to the members of the public, or a desire for the esprit de corps which such similarity is felt to inculcate within the police force itself. Either one is a sufficiently rational justification for regulations so as to defeat respondent’s claim based on the liberty guarantee of the Fourteenth Amendment.”67 Simply because there may be no constitutional basis on which to challenge Simply because there may be no grooming codes does not mean that such codes necessarily may be implemented constitutional by employers. A grooming code is clearly a mandatory subject of bargaining in basis on which those states with collective bargaining for firefighters. As was noted in one case, to challenge grooming codes grooming codes not only affect an employee’s comfort, convenience, appearance does not mean and self-expression both on and off the job, but also subject an employee to disci- that such codes pline should the employee violate the code. All of these factors require the conclu- necessarily may be implemented by sion that, in states with collective bargaining, the imposition of a grooming code 68 employers. must be preceded by collective bargaining. The same is true of employer regulation of employee tattoos.69 Some jurisdictions have also enacted local anti-discrimination laws that may affect the legality of grooming codes. Washington, D.C., for example, has adopted a mayoral order that forbids discrimination based upon an individual’s “personal appearance.”70 A firefighter who desired to grow a handlebar mustache successfully used the mayoral order to overturn his department’s order that he remain clean shaven. A court rejected the department’s argument that the ban on facial hair was necessary to maintain the proper seal between the firefighter’s face and the face mask of the firefighter’s self-contained breathing apparatus, citing testimony that the firefighter had proven that a handlebar mustache did not affect the ability of his face mask to properly seal.71 A fair amount of litigation has arisen in recent years over the fact that a ban on beards may adversely impact African-American employees. Some African- American men suffer from pseudofolliculitis barbae (PFB), a bacterial disorder which causes men’s faces to become infected if they shave, at a rate far disproportionate to that of men of other races. As such, a ban on beards can force some African-American men to choose between their jobs and enduring PFB. In one case involving the Atlanta Fire Department, the Court rejected the argument that a ban on beards constituted racial discrimination, finding that the City had shown a bona fide occupational reason for the ban. The evidence before the Court established that even minimal beards – referred to in the department as “shadow” beards – could prevent a complete seal on the firefighters’ respirators, and that OSHA and three other national organizations that set safety and health standards supported the ban on beards.72

160 — A FIREFIGHTER’S RIGHT TO PRIVACY A recent development in the area of grooming codes arises out of the fact that some religions – most prominently the Muslim religion – have religious codes that forbid shaving. If an employer grants exemptions from its grooming code for either religious or racial reasons to accommodate employees with PFB, it will likely be required to grant similar exemptions to employees whose religious beliefs forbid shaving.73

THE RIGHT TO ENGAGE IN OFF-DUTY EMPLOYMENT. From time to time, firefighters have argued that the “right to be let alone” A fire protection component of the right to privacy should allow them to engage in second jobs employer has a without first obtaining the permission of their employers. Virtually all such argu- right to regulate ments have been unsuccessful. Though there is some indication that the law in the the off-duty employment of its area may be changing, courts regularly hold that a fire protection employer has employees. a right to regulate the off-duty employment of its employees.74 The rationale for such decisions is that the emergency nature of fire protection, the need to ensure that firefighters report for work in good physical and mental condition, and the need to prevent conflicts of interests, all work together to allow a fire protection employer broad latitude in regulating off-duty employment.

THE RIGHT TO BE LET ALONE AND SMOKING. There is no question but that an employer has the right, perhaps even an obligation, to regulate smoking while on duty. While an employer may be required to collectively bargain over the specifics of the regulation of on-duty smoking, the right to privacy does not extend to prohibit rules governing on-duty smoking rules.75 The same cannot necessarily be said about the regulation of off-duty smoking, however. In one case, the City of North Miami, Florida, adopted a regulation that required all job applicants to sign an affidavit stating that they had not used tobacco or tobacco products for at least one year immediately preceding the application. Deciding the case under the right to privacy found in Florida’s constitution, a court struck down the regulation. The Court rejected the City’s argument that it had a legitimate financial interest in hiring the healthiest possible employees, concluding that “the City’s interest in saving money for the taxpayers does not override the privacy interest in being free from regulation of one’s personal life as a condition of government employment, especially when that condition is lawful and unrelated to job functions.” The Court was clearly concerned about the extension of the City’s argument to other activities: “If the City has a compelling interest in saving money by employing only healthy applicants, the City could conceivably seek to regulate other lawful private activities that affect a person’s physical health such as drinking, eating, exercising, and engaging in certain sexual practices.”76

A FIREFIGHTER’S RIGHT TO PRIVACY — 161 THE CONSTITUTIONALITY OF RESIDENCY RULES. The validity of rules requiring public employees to reside in a particular location as a condition of continued employment has been a considerable subject of legal debate over the years. Initially, it was thought that residency rules impinged on an employee’s constitutionally guaranteed right to travel or right to privacy.77 By now, however, it seems well settled that a public employer can require its firefighters to reside either within its jurisdictional limits or within a set distance from a fire station, so long as it has some “rational” reason for doing so.78 The most frequently advanced “rational basis” for continuing residency rules is that an employer has a legitimate interest in having the firefighters to whom it pays wages participate in and pay taxes to the community, and be quickly available for the emergencies inherent in fire protection work: “We have difficulty in concluding other than that any employer, including a city, should be able to draw from a labor pool those who live within a reasonable distance from work, or, if you please, within the city limits. This is not only for the City’s convenience and economical operation, but conceivably to have those whom it helps clothe and feed participate in and contribute support and taxes for its benefit, not for that of cities elsewhere.”79 Seemingly putting the matter to rest in upholding the termination of a Philadelphia firefighter who maintained a separate residence for his family in New Jersey because of ongoing crime problems in his Philadelphia neighborhood, the Supreme Court commented in 1976, “[T]his kind of ordinance is not irrational.”80 There are three minor exceptions to the constitutionality of residency rules. First, there are serious questions about “durational” residency requirements, which require that an individual reside in a community for a specified duration in order to be eligible for employment in the first place. Such durational residency requirements are considered suspect, both because of the impact they have on the right to travel and because of concerns of the perpetuation of racial segregation.81 Second, if an employer has a “studied policy of non-enforcement” of its residency ordinance, it may be estopped or barred from enforcing it in a particular case.82 Third, while a City may be allowed to require its employees to live within the city limits, there is some question whether a City can require employees to live within the county in which the city is located.83 Simply because continuing residency requirements are constitutional does not necessarily mean that an employer is unilaterally free to enact and impose them. Some states have enacted statutes that either forbid or limit local jurisdictions from having residency requirements.84 In those states where firefighters have the right to collectively bargain, residency requirements have been uniformly held to be mandatorily negotiable.85 As a result, an employer acting in a collective bargaining environment must first negotiate the residency requirement with the pertinent firefighter labor organization before it may implement the requirement. In states

162 — A FIREFIGHTER’S RIGHT TO PRIVACY where interest arbitration is the last step in the bargaining process, this may mean submitting a residency requirement to arbitration.

A FIREFIGHTER’S RIGHT TO PRIVACY — 163 NOTES 1 See Whalen v. Roe, 429 U.S. 589 (1977); Paul v. Davis, 424 U.S. 693 (1976). Several state constitutions contain specific rights to privacy. E.g. Constitution, State of Alaska, Article I, Section 22 (“the right of the people to privacy is recognized and shall not be infringed”); Constitution, State of California, Article I, Section 1 (defines “pursuing and obtaining privacy” as an “inalienable right”). 2 See Mangels v. Pena, 789 F.2d 836 (10th Cir. 1986). In United States Dept. of Defense v. Federal Labor Relations Authority, 510 U.S. 487 (1994), the Supreme Court held that the release to a labor organization of the home addresses of federal employees violated the right to privacy, finding that “many people simply do not want to be disturbed at home by work-related matters.” 3 A minority of courts require a “compelling” governmental interest in all cases where the right to privacy is implicated, rather than just in cases where the intrusion on the employee’s privacy is high. See Mangels v. Pena, 789 F.2d 836 (10th Cir. 1986). 4 Hart v. Clearfield City, 815 F. Supp. 1544 (D. Utah 1993)(no reasonable expectation of privacy in telephone calls made on employer’s phone system where the employer routinely recorded all calls made on the system). 5 Shuman v. City of Philadelphia, 470 F. Supp. 449 (E.D. Pa. 1979). 6 Barry v. New York, 712 F.2d 1554 (2d Cir. 1983). 7 On at least three separate occasions, the United States Supreme Court has rejected appeals of decisions upholding financial disclosure laws similar to those in New York City. Montgomery County v. Walsh, 336 A.2d 97 (Md. 1975), appeal dismissed, 424 U.S. 901 (1976); Fritz v. Gorton, 517 P.2d 911 (Wash. 1974)(en banc), appeal dismissed, 417 U.S. 902 (1974); Stein v. Howlett, 289 N.E.2d 409 (Ill. 1972), appeal dismissed, 412 U.S. 925 (1973). At the time these cases were decided, the rejection of an appeal by the Supreme Court had the legal effect of a decision on the merits affirming the judgment of the lower court. 8 Laws requiring public employees to disclose property owned within city limits have also been upheld. Evangelista v. City of Rochester, 580 F. Supp. 1556 (W.D. N.Y. 1984). See also Illinois State Employees Association v. Walker, 315 N.E.2d 9 (Ill. 1974). 9 Detroit Free Press, Inc. v. City of Southfield, 713 N.W.2d 28 (Mich. App. 2005). 10 State ex rel. Fisher v. Cleveland, 845 N.E.2d 500 (Ohio 2006). 11 Section 3258, California Government Code. 12 Coffman v. Indianapolis Fire Dept., 578 F.3d 559 (7th Cir. 2009). 13 See Globe Newspaper Co. v. Boston Retirement Board, 446 N.E.2d 1051 (Mass. 1983)(public records law does not allow release of medical information about firefighters). 14 Anonymous Fireman v. City of Willoughby, 779 F. Supp. 402 (N.D. Ohio 1991). 15 Conroy v. N.Y. State Dep’t of Corr. Servs., 333 F.3d 88 (2d Cir. 2003); Pennsylvania State Troopers Ass’n v. Miller, 621 F. Supp. 2d 246 (M.D. Pa. 2008); Fountain v. New York State Department of Correctional Services, 2005 WL 1502146

164 — A FIREFIGHTER’S RIGHT TO PRIVACY (N.D. N.Y. 2005); Transport Workers Union of America v. New York City Transit Authority, 341 F. Supp. 2d 432 (S.D. N.Y. 2004); Town of Dracut, ARB 08-2008 (Mass. Div. L. Rel. 2009). 16 Haynes v. City of Montgomery, Ala., 2008 WL 695023 (M.D. Ala. 2008). 17 International Federation of Professional and Technical Engineers, Local 21, AFL-CIO v. Superior Court, 165 P.3d 488 (Cal. 2007). 18 Dobronski v. FCC, 17 F.3d 275 (9th Cir. 1994); Clymer v. City of Cedar Rapids, 601 N.W.2d 42 (Iowa 1999). 19 State ex rel. Jones v. Myers, 581 N.E.2d 629 (Ohio Ct. C.P. 1991). 20 Perkins v. Freedom of Info. Comm’n, 635 A.2d 783 (Conn. 1993). 21 United States Dept. of Defense v. Federal Labor Relations Auth., 510 U.S. 487 (1994)(home addresses of federal employees not subject to disclosure); Clymer v. City of Cedar Rapids, 601 N.W.2d 42 (Iowa 1999)(home addresses and birth dates not subject to disclosure); Plant City Professional Firefighters, IAFF Local 2103 v. City of Plant City, 23 FPER ¶28267 (Fla. PERC 1997)(home addresses not subject to disclosure); Cowles Pub. Co. v. State Patrol, 748 P.2d 597 (Wash. 1988). 22 Skinner v. Railway Labor Executives’ Association, 489 U.S. 602 (1989). 23 National Treasury Employee’s Union v. Von Raab, 489 U.S. 656 (1989). 24 Hatley v. Department of the Navy, 164 F.3d 602 (Fed. Cir. 1998)(random drug testing of firefighters ruled constitutional); Saavedra v. City of Albuquerque, 73 F.3d 1525 (10th Cir. 1996)(finds firefighters to hold safety-sensitive positions, and be subject to random testing); Wilcher v. City of Wilmington, 139 F.3d 366 (3d Cir. 1998)(“We have no trouble concluding that firefighters enjoy a diminished expectation of privacy.”); Penny v. Kennedy, 915 F.2d 1065 (6th Cir. 1990)(random drug testing of firefighters ruled constitutional); Aguilera v. City of East Chicago Fire Civil Service Com’n, 768 N.E.2d 978 (Ind. App. 2002)(random testing process for firefighters does not violate federal Constitution); Doe v. Honolulu, 816 P.2d 306 (Haw. App. Ct. 1991)(random testing of firefighters does not violate state privacy guarantees); Beattie v. City of St. Petersburg Beach, 733 F. Supp. 1455 (M.D. Fla. 1990)(random testing of firefighters ruled unconstitutional); Johnson v. City of Plainfield, 731 F. Supp. 689 (D. N.J. 1990)(surprise drug tests of firefighters ruled unconstitutional); Brown v. Winkle, 715 F. Supp. 195 (N.D. Ohio 1989)(testing of firefighter applicants ruled constitutional). 25 Doe v. City and County of Honolulu, 816 P.2d 306 (Haw. App. 1991). 26 Hatley v. Department of the Navy, 164 F.3d 602 (Fed. Cir. 1998). 27 Beattie v. City of St. Petersburg Beach, 733 F. Supp. 1455 (M.D. Fla. 1990). Even in states which forbid random testing of firefighters, it is still permissible to require firefighter applicants to submit to drug testing as a precondition of hire. Brown v. Winkle, 715 F. Supp. 195 (N.D. Ohio 1989). 28 Anderson v. City of Taylor, 2005 WL 1984438 (E.D. Mich. 2005). 29 Saavedra v. City of Albuquerque, 73 F.3d 1525 (10th Cir. 1996). 30 Legg v. Felinton, 637 S.E.2d 576 (W.Va. 2006). 31 Wilson v. City of White Plains, 710 N.Y.S.2d 303 (N.Y. App. 2000). 32 Nocera v. New York City Fire Commissioner, 921 F. Supp. 192 (S.D. N.Y. 1996). 33 Candia v. City and County of San Francisco, 2003 WL 22373886 (Cal. App. 1 Dist. 2003).

A FIREFIGHTER’S RIGHT TO PRIVACY — 165 34 Longo v. Dolce, 600 N.Y.S.2d 962 (A.D. 1993). 35 George v. Department of Fire, 637 So.2d 1097 (La. App. 1994). 36 Piroglu v. Coleman, 25 F.3d 1098 (D.C. Cir. 1994); see American Federation of Government Employees v. Martin, 969 F.2d 788 (9th Cir. 1992)(reporting lower court decision in same case striking down direct observation); National Treasury Employees’ Union v. Yeutter, 918 F.2d 968 (D.C. Cir. 1990); Kennedy v. City of New York, 10 IER Cases 1174 (S.D. N.Y. 1995); American Federation of Government Employees v. Sullivan, 744 F. Supp. 294 (D. D.C. 1990); American Federation of Government Employees v. Thornburgh, 720 F. Supp. 154 (N.D. Cal. 1989). In the Piroglu case, the Court held that the remedy for an illegal drug test which revealed that a firefighter had used illegal drugs was monetary damages, not reinstatement. 37 Hansen v. California Department of Corrections, 920 F. Supp. 1480 (N.D. Cal. 1996). 38 Wilcher v. City of Wilmington, 139 F.3d 366 (3d Cir. 1998); American Federation of Government Employees v. Cheney, 754 F. Supp. 1409 (N.D. Cal. 1990). 39 Petersen v. City of Mesa, 83 P.3d 35 (Ariz. 2004); Anchorage Police Department Employees Association and IAFF, Local 1264 v. Municipality of Anchorage, 24 P.3d 547 (Alaska 2001); Guiney v. Police Commissioner of Boston, 582 N.E.2d 523 (Mass. 1991). 40 Petersen v. City of Mesa, 83 P.3d 35 (Ariz. 2004). 41 Holliday v. City of Modesto, 280 Cal.Rptr. 207 (Cal. App. 1991). 42 Grusendorf v. City of Oklahoma City, 816 F.2d 539 (10th Cir. 1987). A seminal theoretical discussion of the “right to be let alone” can be found in Griswold, The Right to be Let Alone, 55 Nw.U.L.Rev. 216 (1960). 43 E.g., Duckworth v. Sayad, 670 S.W.2d 88 (Mo. App. 1984). See also Eisenstadt v. Baird, 405 U.S. 438 (1972). A minority view is that the right to privacy only protects marital relationships. See Baron v. Meloni, 556 F. Supp. 796 (W.D. N.Y. 1983). 44 Ravin v. State, 537 P.2d 494 (Alaska 1975). 45 McCabe v. Sharrett, 12 F.3d 1558 (11th Cir. 1994). 46 Wilson v. Taylor, 733 F.2d 1539 (11th Cir.1984)(abrogation on other grounds recognized by Scala v. City of Winter Park, 116 F.3d 1396 (11th Cir. 1997)). 47 Starling v. Board of County Com’rs, 2009 WL 248369 (S.D. Fla. 2009). 48 Duckworth v. Sayad, 670 S.W.2d 88 (Mo. App. 1984). 49 Shuman v. City of Philadelphia, 470 F. Supp. 449 (E.D. Pa. 1979). 50 Thorne v. City of El Segundo, 726 F.2d 459 (9th Cir. 1983). Though the law now seems settled that adulterous conduct, standing alone without any concomitant adverse impact on an employee’s job, is not a sufficient reason to discipline an employee, earlier cases split on the subject. The following cases all upheld the discipline of public employees for adulterous conduct. Wilson v. Swing, 463 F. Supp. 555 (M.D. N.C. 1978)(adulterous affair with another employee); Steward v. Leary, 293 N.Y.S.2d 573 (1968)(public employee must be a model to be emulated); Corwin v. Ellenville, 415 N.Y.S.2d 299 (A.D. 1979)(six instances of adulterous conduct); Faust v. Civil Service Commission, 347 A.2d 765 (Pa.Cmwlth. 1975)(sexual misconduct encouraged disorder and fostered public fear); Darby v. Coleman, 407 A.2d 468 (Pa.Cmwlth. 1979)(adultery falls within the definition

166 — A FIREFIGHTER’S RIGHT TO PRIVACY of “conduct unbecoming”); State v. Sanders, 110 S.E. 808 (S.C. 1920)(employee who “deliberately violated the sanctity of another’s home would be a reproach to decent government”). The following cases all reversed the discipline of public employees for adulterous conduct. Smith v. Price, 616 F.2d 1371 (5th Cir. 1980)(conduct protected by right to privacy); Shuman v. Philadelphia, 470 F. Supp. 449 (E.D. Pa. 1979)(conduct within scope of right to privacy, and protected unless adverse effect on on-the-job performance); Saunders v. Kennedy, 159 N.Y.S.2d 113 (A.D. 1957)(needs to be a relationship between conduct and inadequate job performance); Risner v. State Personnel Board of Review, 381 N.E.2d 346 (Ohio App. 1978)(standards for morality same for public employees as for public). 51 Shawgo v. Spradlin, 701 F.2d 470 (5th Cir. 1983); Kukla v. Village of Antioch, 647 F. Supp. 799 (N.D. Ill. 1986). See also Swope v. Bratton, 541 F. Supp. 99 (W.D. Ark. 1982). 52 Smith v. Price, 446 F. Supp. 828 (M.D. Ga. 1977)(emphasis in original). 53 Saal v. Middendorf, 427 F. Supp. 192 (N.D. Cal. 1977); Society for Individual Rights, Inc. v. Hampton, 63 F.R.D. 399 (N.D. Cal. 1973); Norton v. Macy, 417 F.2d 1161 (D.C. Cir. 1969). 54 Society for Individual Rights v. Hampton, 63 F.R.D. 399 (N.D. Cal. 1973). 55 Montgomery v. Carr, 101 F.3d 1117 (6th Cir. 1996). 56 Waters v. Gaston County, 11 IER Cases 403 (4th Cir. 1995). 57 Local 22, IAFF v. City of Philadelphia, 599 F. Supp. 254 (E.D. Pa. 1984). 58 E.g. Crain v. Board of Police Commissioners, 920 F.2d 1402 (8th Cir. 1990); Monahan v. City of New York, 10 F. Supp. 2d 420 (S.D. N.Y. 1998); Philadelphia Lodge 5 v. City of Philadelphia, 599 F. Supp. 254 (E.D. Pa. 1984); Loughran v. Codd, 432 F. Supp. 259 (E.D. N.Y. 1976); Atterberry v. Police Commissioner of Boston, 467 N.E.2d 150 (Mass. 1984). But see Pienta v. Village of Schaumburg, Illinois, 710 F.2d 1258 (7th Cir. 1983); Uryevick v. Rozzi, 751 F. Supp. 106 (E.D. N.Y. 1990); Voorhees v. Shull, 686 F. Supp. 389 (E.D. N.Y. 1987). 59 Aiken v. City of Memphis, 190 F.3d 753 (6th Cir. 1999); Debraska v. City of Milwaukee, 189 F.3d 650 (7th Cir. 1999); Monserrate v. City of New York, 2000 WL 1741673 (S.D. N.Y. 2000). 60 O’Connor v. Ortega, 480 U.S. 709 (1987). 61 See Chicago Fire Fighters Local 2 v. City of Chicago, 717 F. Supp. 1314 (N.D. Ill. 1989)(reasonable suspicion not necessary for search of firefighter’s locker). In one case, a court even approved of a warrantless search of a police officer’s gym bag on the grounds that the bag was placed in the officer’s police car, which he had impliedly granted his employer consent to search. Gamble v. State, 552 A.2d 928 (Md. App. 1989), aff’d 567 A.2d 95 (Md. 1989). 62 Commonwealth v. Welch, 651 N.E.2d 392 (Mass. 1995). 63 Peitsmeyer v. Jackson Tp. Bd. of Trustees, 2003 WL 21940713 (Ohio App. 2003). 64 Cf. Jandak v. Village of Brookfield, 520 F. Supp. 815 (N.D. Ill. 1981). 65 Blake v. Wright, 179 F.3d 1003 (6th Cir. 1999); Walden v. City of Providence, 495 F. Supp. 2d 245 (D. R.I. 2007); Abbott v. Winthrop Harbor Village, 953 F. Supp. 931 (N.D. Ill. 1996); Lewis v. Village of Minerva, 934 F. Supp. 268 (N.D. Ohio 1996). See Federal Electronic Communications Privacy Act, 18 U.S.C. §§2510, 2522. 66 Kelley v. Johnson, 425 U.S. 238 (1976).

A FIREFIGHTER’S RIGHT TO PRIVACY — 167 67 Kelley v. Johnson, 425 U.S. 238 (1976). See also Stalter v. City of Montgomery, 796 F. Supp. 489 (M.D. Ala. 1992)(Court upholds order requiring firefighter to shave chest hair or wear T-shirt); Dake v. Bowen, 521 N.Y.S.2d 345 (A.D. 1987)(Court sustains ban on mustaches in County sheriff’s office). 68 City of White Plains and PFFA Loc. 274, 23 GERR 1784 (N.Y. PERB 1985); Nashua FFA, Local 789, 23 GERR 1224 (N.H. PELRB 1985). See discussion of mandatory subjects of bargaining in Chapter 2. 69 Fraternal Order of Police and Anne Arundel County, Case No. 08-51355 (Simmeljkaer, 2008); FOP Lodge No. 123 and City of Oklahoma City, No. 06-552-02 (2006); Laurel Baye Healthcare of Lake Lanier, 352 NLRB No. 30 (NLRB 2008). 70 Potter v. District of Columbia, 382 F. Supp. 2d 35 (D. D.C. 2005). 71 Kennedy v. District of Columbia, 654 A.2d 847 (D.C. App. 1995). 72 Fitzpatrick v. City of Atlanta, 2 F.3d 1112 (11th Cir. 1993); see Vernon v. City of Berkeley, 2006 WL 1467790 (Cal. App. 2006). PFB cases involving public employees other than firefighters who do not need to wear safety equipment that forms a seal with the face have resulted in findings that a ban on beards discriminates either on the basis of race or disability. University of Maryland v. Boyd, 612 A.2d 305 (Md. App. 1992)(race and disability discrimination); Immigration and Naturalization Service, 100 LA 1084 (Rezler, 1993)(disability discrimination). “No beards” policies can also have religious discrimination implications. Deveaux v. City of Philadelphia, 2005 WL 1869666 (Pa. Com.Pl. 2005)(invalidates “no-beards” policy as applied to Muslims). 73 Fraternal Order of Police, Newark Lodge No. 12 v. City of Newark, 170 F.3d 359 (3d Cir. 1999); Sadruddin v. City of Newark Fire Department, 34 F. Supp. 2d 923 (D. N.J. 1999). 74 Reichelderfer v. Ihrie, 59 F.2d 873 (D.C. Cir. 1932)(upholds total ban on outside remunerative employment of firefighters); Bell v. District Court of Holyoke, 51 N.E.2d 328 (Mass. 1943)(upholds suspension of firefighter for working in department store where fire department rules banned all outside employment); Calfapietra v. Walsh, 49 N.Y.S.2d 829 (1944)(affirms discharge of firefighter who worked part time as an engineer for an aircraft company). In indications that the law may be changing in the area, a Louisiana court has struck down a similar regulation, relying in part on the fact that the ban on moonlighting was the City’s reaction to an ongoing labor dispute. Crowley Firemen v. Crowley, 280 So.2d 897 (La. 1973). Another court has implied that blanket prohibitions on outside employment may be too overreaching to be enforceable. See Roper v. Versailles, 436 A.2d 1058 (Pa.Cmwlth. 1981). 75 IAFF, Local 2819 v. Kitsap County, PEB ¶45,207 (Wash. PERC 1988). 76 Kurtz v. City of North Miami, 625 So.2d 899 (Fla. App. 1993). 77 See United States v. Guest, 383 U.S. 745 (1966). 78 E.g., Association of Cleveland Fire Fighters v. City of Cleveland, Ohio, 502 F.3d 545 (6th Cir. 2007); IAFF v. Kansas City, Kansas, 24 GERR 19 (D. Kan. 1985); Local 55, IAFF v. City of San Leandro, 226 Cal.Rptr. 228 (Cal. App. 1986); Fedanzo v. City of Chicago, 775 N.E.2d 26 (Ill. App. 2002); Winkler v. Spinnato, 534 N.Y.S.2d 128 (N.Y. 1988). See generally Policemen-Firemen Residency Requirements, 4 A.L.R. 4th 380 (1981). 79 Salt Lake City Fire Fighters Local 1645 v. Salt Lake City, 449 P.2d 239 (Utah 1969). See also Denver v. Industrial Commission of Colorado, 666 P.2d 160 (Colo. App. 1983); Berg v. Minneapolis, 143 N.W.2d 200 (Minn. 1966); Hattiesburg

168 — A FIREFIGHTER’S RIGHT TO PRIVACY Firefighters Local 184 v. City of Hattiesburg, 263 So.2d 767 (Miss. 1972); Quigley v. Blanchester, 242 N.E.2d 589 (Ohio App. 1968); Nevitt v. Board of Supervisors, 379 A.2d 1072 (Pa.Cmwlth. 1977). 80 McCarthy v. Philadelphia Civil Service Commission, 424 U.S. 645 (1976)(per curiam); see Newark Branch, NAACP v. City of Bayonne, 134 F.3d 113 (3d Cir. 1998); County of Shelby v. Tompkins, 241 S.W.3d 500 (Tenn. App. 2007); Eastham v. City of Huntington, 671 S.E.2d 666 (W.Va. 2008). In an extremely far-reaching case, a federal court of appeals even upheld an ordinance which only gave existing firefighters one year to move inside the city limits, and subjected them to discharge if they failed to do so. Wright v. City of Jackson, 506 F.2d 900 (5th Cir. 1975). 81 N.A.A.C.P. v. North Hudson Regional Fire & Rescue, 255 F.R.D. 374 (D. N.J. 2009); McCool v. City of Philadelphia, 494 F. Supp. 2d 307 (E.D. Pa. 2007); Grace v. City of Detroit, 341 F. Supp. 2d 709 (E.D. Mich. 2004); Musto v. Redford Township, 357 N.W.2d 791 (Mich. App. 1984). See also Perez v. Personnel Board of Chicago, 690 F. Supp. 670 (N.D. Ill. 1988); United States v. Village of Elmwood Park, 25 GERR 653 (N.D. Ill. 1987). See generally Saenz v. Roe, 526 U.S. 489 (1999); McCarthy v. Philadelphia Civil Service Commission, 424 U.S. 645 (1976)(per curiam). But see Cuvo v. City of Easton, 678 A.2d 424 (Pa.Cmwlth. 1996). 82 Newark Council No. 21 v. James, 723 A.2d 127 (N.J. 1999); CWA v. Treffubger, 677 A.2d 295 (N.J. Super. 1996). 83 Lewis v. City of Kinston, 488 S.E.2d 274 (N.C. App. 1997). But see Kiel v. City of Kenosha, 236 F.3d 814 (7th Cir. 2000). 84 Lima v. State, 909 N.E.2d 616 (Ohio 2009). 85 Carofano v. City of Bridgeport, 196 Conn. 662 (1985); Town of Lee v. LRC, 485 N.E.2d 971 (Mass. App. 1985); Detroit POA v. City of Detroit, 214 N.W.2d 803 (Mich. 1974); Murray v. City of Jennings, 639 S.W.2d 220 (Mo. App. 1982); Township of Moon v. Police Officers of Township of Moon, PEB ¶34,562 (Pa.)(CCH 1985).

A FIREFIGHTER’S RIGHT TO PRIVACY — 169 170 — A FIREFIGHTER’S RIGHT TO PRIVACY CHAPTER 7

A FIREFIGHTER’S FREEDOM OF SPEECH RIGHTS

A FIREFIGHTER’S FREEDOM OF SPEECH RIGHTS — 171 PUBLIC EMPLOYEES AND FREE SPEECH. For many years, it was thought to be well established that public employees, including firefighters, had free speech rights roughly the same as other citizens. As the Supreme Court once held, a public employer may not condition public employment upon compliance with unconstitutional conditions of employment.1 The Court observed in another case, if “the government could deny a benefit to a person because of his constitutionally protected speech…his exercise of that freedom would be penalized and inhibited.”2 In 2006, those well-established notions were shaken to the core. Through the issuance of its opinion in Garcetti v. Ceballos, a case later termed a “revolu- tion” in free speech law, the Supreme Court made it clear that public employees in fact have virtually no free speech rights relating to their jobs, at least insofar as the speech is made while on duty. Garcetti imposed new tests for free speech cases involving public employees, and radically altered the law in the area.

GARCETTI V. CEBALLOS AND THE ON-DUTY/OFF-DUTY DISTINCTION – THE THRESHOLD QUESTION FOR WHETHER SPEECH IS PROTECTED. At issue in Garcetti v. Ceballos was whether the First Amendment protected a deputy district attorney who had been retaliated against for reporting to his superiors his suspicions that a deputy sheriff had falsified facts in search warrant applica- tions. The Court began by signaling its intention to limit the scope of free speech protections for public employees by observing that the First Amendment “protects a public employee’s right, in certain circumstances, to speak as a citizen addressing matters of public concern.” If an employee is speaking “as a citizen,” the Court found, the employee “must face only those speech restrictions that are necessary for their employers to operate efficiently and effectively.” The Court acknowledged that there was “some possibility” that when employees speak as citizens, they will be protected by the First Amendment. It is a different matter, the Court found, when public employees are speaking in the course of their jobs. In such cases, the Court concluded, “employees are not Even if the speech is of great social speaking as citizens for First Amendment purposes,” and their speech is entirely importance, it unprotected by the First Amendment.3 That means that, at least as far as the First is not protected Amendment is concerned, the employer is free to terminate, suspend, demote or by the First Amendment so transfer the employee simply because it does not like the employee’s speech. Under long as it was Garcetti, it does not matter what the topic of the firefighter’s speech is, or whether made pursuant the speech is a matter of public concern. As one court put it, “even if the speech is to the worker’s of great social importance, it is not protected by the First Amendment so long as it official duties. was made pursuant to the worker’s official duties.”4

172 — A FIREFIGHTER’S FREEDOM OF SPEECH RIGHTS The starkness of these rules has already led firefighters to seek protections for on-the-job speech in havens other than the First Amendment. Where the First Amendment might not be a bar to firing a firefighter for engaging in speech the employer dislikes, the firefighter might well find protection in the discipline clause of a collective bargaining agreement, through a civil service system, or under a state whistleblowing statute. Garcetti itself did not define when speech is made pursuant to official job duties. Courts have been quick to give a broad interpretation to when a firefighter is speaking in the course of his or her duties and thus is not entitled to First Amendment protection for the speech. A firefighter’s job description is not the end of the inquiry.5 Instead, a firefighter’s duties can range beyond what is written in the job description, and can include “ad hoc or de facto duties.”6 Similarly, the fact that the speech may have been made inside or outside of the workplace or that the speech concerned the employee’s employment is not dispositive. Instead, whether speech was made as an employee or as a private citizen entails an examination of the “content, form, and context” of the speech.7 Following these rules, firefighters have routinely lost free speech lawsuits in federal court in the wake of Garcetti. Courts have found that the following kinds of speech have all been made as part of a firefighter’s job duties, and have cited Garcetti in holding that the speech has no First Amendment protections, and that a firefighter can constitutionally be disciplined for the speech: • A fire chief’s statements at a press conference criticizing low staffing levels and inadequate funding for the department.8 • A fire captain’s memorandum that he was unqualified to serve as an acting battalion chief, and would take no responsibility “for actions or decisions that may cause injury or death to civilians or members of [the fire department]” while serving in such a role.9 • Complaints made by staff members that a fire chief failed to enforce safety rules.10 Employers have argued that Garcetti should apply to speech made by union officials who also work for the employer. Courts have rejected those arguments, finding where statements are made on behalf of a union, they are not part of the employee’s job, and hence potentially have First Amendment protection.11

THE EMPLOYEE SPEAKING AS A CITIZEN – CORE PRINCIPLES. While employees who are speaking as citizens have, in the Supreme Court’s words, “some possibility” of First Amendment protection, the Court has clearly narrowed the circumstances under which even off-duty speech is constitutionally protected. The Court has made clear that public employees’ off-duty free speech

A FIREFIGHTER’S FREEDOM OF SPEECH RIGHTS — 173 rights are not absolute, and that governmental employers “may impose certain Governmental employers may restraints on the speech of their employees, restraints that would be unconstitu- impose certain tional if applied to the general public.”12 restraints on In analyzing off-duty free speech cases, courts now follow a four-part test. the speech of their employees, First, courts determine whether the employee spoke about a matter of public 13 restraints that concern. If so, courts then balance the interests of the employee, as a citizen, would be in commenting upon matters of concern and the “interest of the State, as an unconstitutional employer, in promoting the efficiency of the public services it performs through if applied to the 14 general public. its employees.” If the balance weighs in favor of the employee, courts then determine whether the protected speech was a “substantial or motivating factor in the adverse action against the employee.”15 Finally, even if the employee surmounts all of these hurdles, an employer is still given the opportunity to show that it would have reached the same disciplinary decision even absent the employee’s protected speech.16

THE EMPLOYEE SPEAKING AS A CITIZEN – SPEECH WHICH IS LIKELY TO BE PROTECTED. While Garcetti v. Ceballos has had a major impact on the law with respect to a firefighter’s on-duty speech, there are certain situations in which his or her off-duty speech is protected speech under the Constitution. The most important of the factors used in evaluating the First Amendment protections to be accorded to the non-duty-related speech of fire protection employees is whether the speech concerns public or private matters.17 To the extent that the speech is about matters of public importance, it is much more likely to be protected. Speech is considered To the extent the to be in the public interest if it can fairly be considered to relate to “any matter of speech is about 18 internal matters political, social, or other concern to the community.” To the extent the speech is not rising to the about internal matters not rising to the level of public concern, it is less likely to be level of public protected. Within these broad standards, some general rules have emerged mak- concern, it is less likely to be ing it possible to determine that off-duty speech concerning certain general subject protected. matters is likely to be protected by the First Amendment. Those subject matters are as follows:

CRITICISM OF THE FIRE DEPARTMENT. Particularly where the firefighter’s off-duty criticism of the practices of his or her department is made to the governing body of the local governmental agency, the speech is likely to be protected by the First Amendment. Even where the criticism is directed to the media rather than to the governing body, it is almost certain to be protected unless the content of the speech is obviously false.19 Criticism of a fire chief (as opposed to the department itself) is also entitled to a high degree of constitutional protection.20 One court has observed that “few subjects are of more public concern…than the provision of basic fire and rescue services,”21 while

174 — A FIREFIGHTER’S FREEDOM OF SPEECH RIGHTS another has noted that “the fire department’s ability to respond effectively to life- threatening emergencies” is a matter of public interest.22 Such speech, especially where it takes the form of a vote of no confidence, may also be protected as “concerted activity” under state or local labor laws.23 For example, in one case an inspection of a local racetrack revealed over 700 violations of the fire code. When the fire chief nonetheless approved the racetrack’s fire safety plan, the inspector who conducted the inspection expressed concern about the chief’s actions to a newspaper reporter. After the inspector was subsequently passed over for promotion, he brought a lawsuit alleging that the chief was retaliating against him for making the comments to the reporter. A federal court refused to dismiss the lawsuit, holding that the matter of safety inspections for public facilities was a matter of public interest protected by the First Amendment.24 In another case, a court even found First Amendment protection for a volunteer firefighter’s criticism of a proposed name change for a fire department.25 Protected criticism of the fire department can extend to personnel matters. In a case decided in 2001, for example, a court found complaints by a shift captain about pornography downloaded by employees on department computers to be speech about a matter of public interest protected by the First Amendment.26

DISCUSSION OF THE DEPARTMENT’S BUDGET OR STAFFING LEVELS. Also clearly entitled to protection is a firefighter’s off-duty speech about the Also clearly budgetary priorities or staffing of either the fire protection agency or the entire entitled to local governmental body.27 As is the case with speech about the performance of protection is a a chief, unless a firefighter’s comments about a budget or staffing levels are com- firefighter’s off- duty speech about pletely false and result in significant disruption in the agency, they are likely to be the budgetary completely protected. As was noted by one court in reversing the discipline of a priorities or firefighter for speaking out about low staffing levels: staffing of either the fire protection “The effectiveness of the Fire Department services concerns the agency or the people of the City of Kilgore. [The firefighter’s] informed speech pro- entire local vides the public with valuable information that is otherwise difficult governmental body. to obtain unless an informed person speaks out. * * * The speech arose in the midst of a continuing dispute concerning the ability of the Fire Department to fight fires effectively. Thus, the interests of both the firefighter and the citizens of Kilgore in his speech are extremely significant.”28 In another case, a fire chief publicly opposed cuts in a paramedic program and a plan to encourage police officers, firefighters, and paramedics to cross-train and serve in other roles. The chief was subsequently fired after comments from the mayor that “for an employee to go out, and go past the City Manager, over the councilmen’s heads, to a citizen, to try and influence that person, it to me is totally

A FIREFIGHTER’S FREEDOM OF SPEECH RIGHTS — 175 insubordinate.” In the chief’s lawsuit challenging his termination, the Court found that the structure and composition of the paramedic program were matters of public interest protected by the First Amendment.29 Criticisms about or comments made off duty on other staffing and fiscally- sensitive issues are also likely to gain protection under the First Amendment. Such speech has included: • Speech about the creation and staffing of a wildland fire crew.30 • A letter to the local paper which suggested that understaffing and substandard wages posed a safety risk to the public.31 • Speech about fiscal mismanagement in a fire department.32 • Speech about the need for a paramedic program, and the need for standard operating procedures and training concerning ambulance responses.33 • A fire marshal’s comments regarding fire safety regulations.34

SPEECH ABOUT DEPARTMENTAL MORALE. Also likely to be protected is a firefighter’s off-duty speech about the state of department morale. Such speech may be more protected if it is made through the chain of command, but is entitled to considerable protection no matter how it is made.35

SPEECH ABOUT POLITICAL ISSUES. Since the primary purpose of the First Amendment is to protect open discussions about political matters, it is not surprising that employees’ off-duty speech about political issues is given a high level of protection.36 For example, in one case, a firefighter successfully sued under the First Amendment for retaliation after his Republican fire chief physically assaulted him for having a campaign sign for a Democratic candidate for mayor on his personal car.37 In a case discussed later in this chapter, a court struck down a ban on the possession, reading and consensual sharing of Playboy magazine in a fire station, holding that the political commentary in Playboy warranted protection under the First Amendment.38 In another case, a battalion chief was punitively reassigned from a battalion chief position to a “make-work” position and was ordered to submit to a psychiatric examination when he protested a special order prohibiting the public display in firehouses of a controversial political cartoon which the chief thought was racially insensitive. The Court found the protest to be a matter of public concern that overrode the department’s interests. The Court commented that “the Fire Department may properly regard the maintenance of both intra-departmental

176 — A FIREFIGHTER’S FREEDOM OF SPEECH RIGHTS racial harmony and organizational discipline. Nevertheless, neither is sufficiently placed in jeopardy by the battalion chief’s protest alone, so far as is shown here, to warrant the penalty he has incurred by making it.”39

SPEECH ABOUT UNION ISSUES. A firefighter’s off-duty speech about union issues is entitled to wide protec- 40 A firefighter’s tion, even if the speech offends or otherwise disturbs the employer. Speech of off-duty speech this sort occurs in a variety of forms, from press releases to public statements to about union issues no-confidence votes.41 For example, in one case, a court held that a firefighter is entitled to wide protection, who communicated firefighters’ grievances concerning job training, working con- even if the ditions, and pay to local newspapers and a radio station could not be disciplined speech offends or for such conduct.42 In another case, a court reversed the discipline of a firefighter otherwise disturbs the employer. who wrote a letter to the editor of the local paper criticizing the seniority practices in the department.43 Even in a non-union state, a firefighter is likely to have the right to speak out on behalf of other employees and to appear at civil service hearings to advance the interests of all employees.44 A leading case in the area involved a city code provision that provided that no city employee could use his or her “official city office or title while engaging in political activities after working hours.” When the employer applied the code provision to try to prohibit a firefighter association from using the name of “Evanston Firefighters Association,” a court struck down the employer’s actions. The Court commented: “We cannot accept the conclusion that the mere fact that a City employee identifies his position represents a use of his title or position to coerce or influence another person for political purposes. Moreover, if we accept the interpretation of the ordinance advanced by the employer, the employer has not established an overriding interest in prohibiting employees from identifying themselves under any circumstances when that interest is considered in the light of all the other political activities granted to City employees. There is, in short, no logical justification for prohibiting City employees from merely identifying themselves as such.”45 Occasionally, a firefighter will sue his or her firefighter association, contending that the rules of the organization deprive firefighters of free speech. Such suits are extremely likely to fail, since the free speech guarantees of the First Amendment only apply to governmental bodies. For example, in one case a firefighter sued a local of the International Association of Fire Fighters, contending that a clause in the Local’s constitution forbidding members from joining rival organizations violated the free speech rights of members. A court rejected the lawsuit, quoting from an earlier decision in holding: “Governmental oversight of a private institution does not convert the institution’s decisions into those of the State, as long as the decision in question is based on the institution’s independent assessment of its own policies and needs.”46

A FIREFIGHTER’S FREEDOM OF SPEECH RIGHTS — 177 SPEECH ABOUT ALLEGED DISCRIMINATION. Also given a high level of protection is off-duty speech about alleged discrimination in the fire protection agency, including the filing of discrimination complaints with the Equal Employment Opportunity Commission.47 As one court bluntly noted in a case where a firefighter was denied a promotion after filing a complaint with a city human rights agency about alleged discrimination, “criticism of racial discrimination is protected [under the First Amendment].”48 In another case, a court held protected comments made by a firefighter on cable access television that his fire department did not treat minorities fairly.49 In a separate case, a court ruled that the First Amendment protected a firefighter’s protests of a chief’s Confederate flag tattoo.50 Even assisting another firefighter in processing a discrimination complaint is likely protected speech.51 Analogously, courts have held that comments critical of affirmative action plans or agility tests are protected by the First Amendment.52

SPEECH ABOUT SAFETY AND DISABILITY MATTERS. Off-duty speech concerning safety issues such as the safety practices of a Off-duty speech department, the safety of equipment, the presence of harmful materials in fire sta- concerning safety issues is likely tions, training practices, or a department’s handling of disability claims, is likely to to be protected be protected under the First Amendment.53 For example, in one case, a firefighter under the First was disciplined for giving an interview to a reporter about failures in depart- Amendment. ment-issued latex gloves. The Court overturned the discipline, holding that the condition of the gloves, as a safety matter, was a matter of public importance.54 In another case, a court found that firefighters’ reports to OSHA of multiple fire company safety violations qualified as speech on matters of public concern under the First Amendment.55 In another case, a court found protected speech by a firefighter about the cancer risks posed by contaminated gear and unsafe exhaust systems.56 Along the same lines, a court found that a firefighter’s speech about the safety conditions at Ground Zero in the aftermath of the World Trade Center attacks to be of public importance, and protected under the First Amendment.57

WHISTLEBLOWING SPEECH. Off-duty speech about corruption within the firefighter’s agency or within The First Amendment is the employer’s operation at large is very likely to be given protection by the First at its “zenith” in Amendment. As one court observed in a free speech lawsuit against a fire district, protecting speech the First Amendment is at its “zenith” in protecting speech about public corrup- about public 58 corruption or the tion or the compliance of public employees with criminal laws. As another court compliance of has noted: public employees with criminal laws. “It would be absurd to hold that the First Amendment generally authorizes corrupt officials to punish subordinates who blow the whistle simply because their speech ‘disrupted the office.’ Thus, an

178 — A FIREFIGHTER’S FREEDOM OF SPEECH RIGHTS employee’s First Amendment interest is entitled to more weight where he is acting as a whistleblower exposing government corruption.”59 A classic whistleblowing case arose out of the Fairbanks, Alaska Fire Department. When two firefighters, while off duty, reported that the Public Safety Director was overstating his compensatory time off, the Director called the firefighters’ lawyer and threatened to retaliate against and “set up” the firefighters. The firefighters subsequently resigned and brought a whistleblowing suit against the City. The Alaska Supreme Court upheld a verdict of more than $500,000 in favor of the firefighters, finding that the working conditions resulting from the Director’s threats converted the resignation to “constructive discharges” occurring in retaliation for the firefighters’ legitimate report of the compensatory time off abuse.60 Some states have strengthened the protections granted to whistleblowers Some states have by enacting statutes containing significant guarantees. For example, Michigan’s strengthened whistleblowing statute gives blanket protection to all statements made about public the protections corruption unless the statements were made with knowledge that they were false: granted to whistleblowers by “An employer shall not discharge, threaten, or otherwise dis- enacting statutes criminate against an employee regarding the employee’s compensation, containing significant terms, conditions, location, or privileges of employment because the guarantees. employee, or a person acting on behalf of the employee, reports or is about to report, verbally or in writing, a violation or a suspected violation of a law or regulation or rule promulgated pursuant to law of this state, a political subdivision of this state, or the United States to a public body, unless the employee knows that the report is false, or because an employee is requested by a public body to participate in an investigation, hearing, or inquiry held by that public body, or a court action.”61 Florida has a similar law, protecting employees who provide information about the following: “(a) Any violation or suspected violation of any federal, state, or local law, rule, or regulation committed by an employee or agent of an agency or independent contractor which creates and presents a substantial and specific danger to the public’s health, safety, or welfare.

“(b) Any act or suspected act of gross mismanagement, malfea- sance, misfeasance, gross waste of public funds, or gross neglect of duty committed by an employee or agent of an agency or independent contractor.”62 Other states that have passed whistleblowing protection laws include: Alaska, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, Florida, Georgia, Hawai’i, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Jersey, New York, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island,

A FIREFIGHTER’S FREEDOM OF SPEECH RIGHTS — 179 South Carolina, South Dakota, Tennessee, Texas, Utah, Vermont, Washington, West Virginia, and Wisconsin.63 Central to a successful claim under a whistleblower statute is that the employ- Central to a successful ee shows that discipline resulted from the employee’s reporting of a violation of claim under a the law – that is, that there be an element of retaliation against the employee for whistleblower publicly reporting conduct by others that violates the law.64 If the employee fails statute is that the to raise the alleged violation of law until after discipline has been imposed, the employee shows 65 that discipline employee will have no claim under a whistleblower statute. Also, depending resulted from upon how state whistleblowing laws are worded, volunteer firefighters may not the employee’s have any protections under the statutes.66 reporting of a violation of the law. THE OFF-DUTY EMPLOYEE SPEAKING AS A CITIZEN – SPEECH WHICH IS NOT LIKELY TO BE PROTECTED. In addition to employees’ on-duty speech lacking protection under the First Amendment after Garcetti, certain forms of off-duty speech have traditionally been unprotected under the law. The types of off-duty speech by a firefighter which are not as likely to be protected by the First Amendment fall into the following categories:

SPEECH WHICH IS KNOWINGLY OR RECKLESSLY FALSE. Generally speaking, even speech that is false can be protected by the First Amendment.67 However, false speech can lose its constitutional protection where the firefighter making the statement either knows that the statement is false or acts in reckless disregard of the truth or falsity of the statement.68

STATEMENTS MADE AS AN EXTENSION OF A PERSONAL GRIEVANCE OR DISPUTE. Statements which may facially be about matters of public interest may not be protected by the First Amendment if the actual basis for the statements is a personal dispute between the employee and the employer which has nothing to do with matters of public interest.69 As noted by one court, “where a fireman, motivated by resentment, bitterness and self-aggrandizement engages in disruptive conduct intending to undermine the authority of department officers, the speech accompanying such conduct is not constitutionally protected.”70 For example, in one case, a court found unprotected a firefighter’s speech about building code violations in the remodeling of a business, concluding that the comments were motivated by a personal grudge against the chief.71 In another case, a court found that an order to a firefighter to shave his chest or cover his chest hair with a T-shirt was merely a personal dispute that did not rise to First Amendment standards.72 In

180 — A FIREFIGHTER’S FREEDOM OF SPEECH RIGHTS another case, a court found unprotected comments made by a firefighter during a hearing to consider the firefighter’s grievance.73 Complaints about the conduct of other firefighters are also usually unprotected under the First Amendment as private grievances rather than as matters of public interest.74

RACIALLY DEROGATORY SPEECH. When racially derogatory speech is made in the course and scope of a firefighter’s employment or somehow adversely impacts an employer, the speech is not protected by the First Amendment.75 In one case, a court found unprotected a racially derogatory message on a T-shirt worn by a firefighter in a fire station.76 Another court found unprotected a racial epithet used by a firefighter during an off-duty encounter with a police officer.77 Similarly, speech constituting sexual harassment is unprotected by the First Amendment.78

SPEECH ENDORSING SERVICES RELATED TO THE JOB. If a firefighter endorses certain services related to the job where the endorsement might undercut the agency’s need to maintain neutrality about the services, the speech will likely be unprotected. An example of such speech would be the endorsement of ambulance companies.

PROFANITY AND NAME CALLING. Though the courts are supposed to focus on the overall subject matter of the speech rather than the particular words used, it is clear that speech which is Speech which couched in profanity or name calling is likely to be accorded a lesser degree of pro- is couched in profanity or name tection under the First Amendment. For example, a court has held that a firefight- calling is likely er calling his superior officers “downtown lackeys,” “sons of bitches,” and “god- to be accorded damn m_____f____” does not constitute protected speech.79 Along the same a lesser degree of protection lines, a fire marshal’s reference to a captain as a “Communist cocksucker” was held under the First by a court to be unprotected by the First Amendment.80 In a closer case, another Amendment. court upheld a fire department’s decision not to promote an individual who had publicly accused the chief of being a liar, tearing the department to “shreds,” and having a “pitifully twisted outlook.”81

SPEECH THAT IS DISRUPTIVE OF MORALE OR OPERATIONS. The most difficult cases are those where the speech is about matters of public importance, but where the speech also causes significant disruption in the public agency. On one hand, courts have stressed the need for harmony in a fire department:

A FIREFIGHTER’S FREEDOM OF SPEECH RIGHTS — 181 “When lives may be at stake in a fire, an esprit de corps is essential to the success of the joint endeavor. Carping criticism and abrasive conduct have no place in a small organization that depends upon common loyalty…”82 While courts do allow a firefighter to be disciplined for inappropriately disruptive speech, they have also clearly been concerned that “disruption” could be inappropriately claimed as a basis for disciplining an employee for otherwise pro- An employer needs to produce more tected speech. As one court commented, an employer needs to produce more than than a “trace” a “trace” of evidence establishing that morale and operations were disrupted by the of evidence firefighter’s speech.83 establishing 84 that morale and Connick v. Meyers dealt with the case of an employee who was fired for cir- operations were culating a questionnaire throughout her office. The Court found that the employ- disrupted by ee’s speech was not entitled to protection because, in part, it disrupted the office, the firefighter’s speech. undermined the employee’s supervisor’s authority, and destroyed close working relationships. The Supreme Court narrowed the “disruption” factor, however, by emphasizing that all but one of the questions on the questionnaire dealt with issues pertaining to the employee’s personal grievance rather than matters of public concern, and stressing that employers would be required to make an even “stronger showing” of disruption in cases where the speech dealt more directly with issues of public concern. Some courts applying the Connick rationale have given a narrow reading to the disruption factor, commenting, for example, that “real, not imag- ined, disruption is required,” and the close working relationship exception cannot serve as a pretext for stifling legitimate speech.85 Other courts give an extremely broad reading to the disruption factor discussed in Connick.86 In Locurto v. Guiliani, a federal appeals court upheld the firing of New York firefighters who, while off duty, rode on a float in a parade. The firefighters covered their faces in black lipstick, donned Afro wigs, and accompanied the float along the procession in attire ranging from overalls with no T-shirt underneath, to cut-off jeans and ratty T-shirts, to athletic pants and sweatshirts. The float itself featured two buckets of Kentucky Fried Chicken on the hood of a flatbed truck. Though they did nothing to identify themselves as New York firefighters, their employer terminated them when it became publicly known that the float participants were firefighters (and police officers). In rejecting a First Amendment challenge to the terminations, the Court focused on the potential rather than the actual nature of harm that could come from the firefighters’ activities: “Where a Government employee’s job quintessentially involves public contact, the Government may take into account the public’s perception of that employee’s expressive acts in determining whether those acts are disruptive to the Government’s operations. Moreover, as mentioned earlier, the disruption need not be actual; the Government may legitimately respond to a reasonable prediction of disruption.”87

182 — A FIREFIGHTER’S FREEDOM OF SPEECH RIGHTS In another case, a firefighter made remarks to a member of the City Council concerning the need to hire a firefighter to disconnect gas and electric meters at fires and to request that the councilman postpone the hiring of a fire chief candidate. Though the conversation was private and there was no evidence that the speech hindered firefighters in the performance of their duties, the Court upheld the firefighter’s discharge for making the statements. The Court found that the chief reasonably believed that the speech was an attempt to undermine his authority and that it had led or would lead to disruption of the department. The Court stressed that personal loyalty to the chief was critical to the management structure of a volunteer department, that the chief’s authority in the department was not firmly established, and that the issues raised with the councilman were not subjects of public debate, but rather had only been discussed within the department.88 A fairly notorious case involved a firefighter in Madison, Wisconsin, who accused the fire chief, whom he believed to be lesbian, of issuing lax discipline to a lesbian assistant chief accused of assaulting a firefighter. The firefighter’s accusations were made in a press release, and sent to a variety of local media outlets. The court found that the accusations were a matter of public concern, reasoning that the integrity of the disciplinary process was of the utmost public importance: “Whether public officials are operating the government ethically and legally is a quintessential issue of public concern.” Nonetheless, the Court found the firefighter’s interests overridden by the employer’s need for the efficient operation of the fire department: “The Department reasonably felt that the firefighter’s speech, if left unpunished, particularly in light of his disciplinary history, would disrupt the operation of the Department by degrading the Depart- ment’s standing with the public, undermining the Chief’s authority and inciting disharmony within Department ranks.”89

THE EMPLOYEE SPEAKING AS A CITIZEN – WHEN IS DISCIPLINE MOTIVATED BY THE EMPLOYEE’S SPEECH? Even assuming that the employee can establish that his speech as a “citizen” was about a matter of public interest, and that the interests of free speech over- The employee must still prove rode the employer’s interests, the employee must still prove that the speech was a that the speech substantial or motivating factor behind the employer’s disciplinary action.90 In was a substantial assessing this, courts evaluate such factors as the quality of the evidence that the or motivating 91 factor behind employer even knew of the speech, the employer’s stated motivation for the disci- the employer’s pline, the timing of the speech and the discipline,92 and the strength of any inde- disciplinary pendent reasons for disciplining the officer.93 Even if the employer has multiple action. reasons independent of the firefighter’s speech for disciplining an officer, and only one of the reasons withstands later scrutiny, the discipline will be upheld.94

A FIREFIGHTER’S FREEDOM OF SPEECH RIGHTS — 183 THE EMPLOYEE SPEAKING AS A CITIZEN – WHAT LEVEL OF DISCIPLINE IMPLICATES THE FIRST AMENDMENT? A wide range of disciplinary and non-disciplinary actions implicate the First The discharge, Amendment. Most certainly, the discharge, demotion, or suspension of a firefight- demotion, or suspension of er in retaliation for protected speech is enough of an “adverse employment action” a firefighter in to trigger the First Amendment.95 Also, if a firefighter is improperly demoted, rep- retaliation for rimanded or transferred for having engaged in protected speech, a cause of action protected speech 96 is enough of for violation of the firefighter’s First Amendment rights exists. One case has an “adverse held that the reassignment of a battalion chief to a “make-work” position was suf- employment ficiently punitive to trigger First Amendment protections.97 Even if the employer action” to merely passes a firefighter over for promotion because of the firefighter’s protected trigger the First 98 Amendment. speech, the firefighter is entitled to bring a lawsuit against the employer. One case even stands for the proposition that physically hitting a firefighter for engaging in protected speech violates the First Amendment,99 while another implies that the loss of a take-home car triggers First Amendment protections.100 Bucking this trend, one court has held that the mere initiation of disciplinary charges, without more, is not an adverse action sufficient to trigger First Amendment rights.101 Occasionally, employers will have two motives in disciplining employees. One motive would be a legitimate basis for discipline based on the employee’s job performance. The second motive would be an impermissible retaliation for the employee’s exercise of free speech rights. The usual rule is that for discipline to be upheld in such a “mixed motive” case, the employer must prove that it would have taken the same disciplinary action against the employee on the very same day even if the employee had not engaged in protected speech.102

A PUBLIC EMPLOYER’S RULES AND REGULATIONS CONCERNING SPEECH. Where employer rules limiting an employee’s speech are otherwise permissible, the rules still must be as clear and understandable as possible. Otherwise, if “men of common intelligence must necessarily guess at [their] meaning,” the regulations may be “void for vagueness” in violation of the due process guarantees of the Fifth Amendment to the United States Constitution.103 For example, in one case the City of Aberdeen, South Dakota, enacted an ordinance that prohibited City employees from having contacts with members of the media. The Court struck down the ordinance as overbroad, commenting as follows: “The public has a great deal of interest in and a right to hear the opinions of City employees with regard to the internal business decisions and departmental rules and regulations of City departments. Shift hours of firemen, overtime pay, equipment purchases, and the Media Contacts ordinance itself are all examples of topics of public

184 — A FIREFIGHTER’S FREEDOM OF SPEECH RIGHTS concern that would fall within the plain meaning of the ordinance. In fact, the Court can discern a great many more areas of protected speech that would be restricted by the ordinance than areas of unprotected speech which could be constitutionally restricted.”104

PRIOR RESTRAINTS ON SPEECH AND REGULATIONS REQUIRING APPROVAL BEFORE CONTACT WITH THE MEDIA.

When an employer is trying to prohibit speech before it happens, it has a When an significantly higher burden of proving the legitimacy of its actions than it would employer is if simply disciplining an employee after the speech occurs.105 Following this trying to prohibit speech before it general approach, courts have regularly held that rules in fire protection agencies happens, it has requiring prior approval before making public statements are not only unconsti- a significantly tutionally overbroad, but also run afoul of the law’s dislike of any prior restraints higher burden 106 of proving the of speech. Prior restraints – rules which seek to limit speech before it is made – legitimacy of its are viewed with a great deal of suspicion because “they pose risks of self-censorship actions than it by speakers in order to avoid being denied a license to speak.” In addition, prior would if simply disciplining an restraints make it “more likely that an employee will be subject to sanctions after employee after speaking [because the employer] will be more inclined to discipline an employee the speech occurs. who has disregarded its orders.”107 Many fire protection agencies have rules that, if challenged, would almost certainly be struck down as impermissible prior restraints. For example, a rule prohibiting a firefighter from speaking to the press on any subject related to the job would not only be overbroad, but would be an impermissible prior restraint.108 The same principles would invalidate rules prohibiting speaking with the press without first receiving approval from the firefighter’s employer,109 rules prohibiting firefighters from appearing at meetings of a public body to discuss departmental matters,110 or rules prohibiting firefighters from making disparaging remarks about other employees or regarding departmental operations.111 Indeed, about the only types of “prior-approval media contact” rules that are permissible would be those that prohibit employees from making “formal releases” on behalf of the employer (as opposed to speaking personally) without prior approval.112 These principles were applied in a case involving rules of the Providence, Rhode Island Fire Department that forbid employees from making any public statements about Department matters without the prior approval of the Fire Chief. The Court holding the rules unconstitutional began its opinion with the assump- tions that “matters of fire department rules, regulations and safety procedure are prototypical matters of public concern, and that a prior restraint rule that forces a person to ask permission to speak bears a heavier presumption against constitutionality than one that merely penalizes people who have already spoken.” The Court concluded its opinion by holding: “The benefits the Fire Department rules may provide – including the stanching of media leaks about investigations – are not sufficient

A FIREFIGHTER’S FREEDOM OF SPEECH RIGHTS — 185 to justify this crudely crafted burden on the firefighters, freedom to engage in expressive activities. These Fire Department rules on their face violate the First Amendment.”113

CONTENT-BASED REGULATION OF SPEECH IS LIKELY TO BE UNCONSTITUTIONAL. Another general principle of free speech cases is that the regulation of speech based on the content of the speech is extremely suspect. The leading case in the area involved an attempt by the Los Angeles County Fire Department to ban the possession of Playboy magazine in the fire station. In finding the County’s rules to be an impermissible regulation of the concept of free speech, the Court noted that the County’s policy did not apply to other types of magazines such as those oriented toward sports, politics, fashion, or gossip. In striking down the County’s policy, the Court found important the fact that the policy applied to ban a captain from reading the magazine at times when his behavior was otherwise unrestricted, which was made more significant by the fact that the fire station was the captain’s de facto home for days at a time. The Court rejected the defense that female firefighters were offended by the existence of Playboy at the workplace: “It is apparent in the testimony of the female firefighters that their concern was not the magazine itself but rather the belief that men were entertaining degrading thoughts while reading it. The problem with this testimony is that Title VII protects women from hostile and abusive conduct, such as comments and actions. The County has cited no case which stands for the proposition that Title VII protects women from thoughts alone.”114 In a separate case, a firefighter tried to speak before a city council on the subject of improving ambulance and fire services. The City Manager forbade him from speaking. When the firefighter tried to speak anyway, he was suspended. The Court found that the firefighter’s suspension was an impermissible content- based regulation on speech: “The City created a limited public forum by inviting citizen participation at its City Council meeting. As such, the Council was prohibited from selectively denying the firefighter his right to address the Council regarding a matter which was part of the agenda that night based solely upon his status as a government employee. To do so amounts to a content-based restriction and does not pass constitutional muster because it does not offer a compelling justification for the action taken, a justification which must be shown in order to meet the standard of strict judicial scrutiny.”115

186 — A FIREFIGHTER’S FREEDOM OF SPEECH RIGHTS THE RIGHT TO REFRAIN FROM SPEECH. The First Amendment’s free speech guarantees also prohibit a governmental employer from compelling employees to engage in political speech. In one case, a police officer argued that his department had compelled him to participate in an overtime detail which involved participation in a “photo-opportunity” on the Capitol steps supporting a ban on assault weapons. Though the Court declined the claim because it disagreed with the officer’s contention that he was in fact compelled to participate in the demonstration, it commented that “the First Freedom of Amendment is violated when police officers are compelled to participate in an speech includes the right to expressive activity, such as the demonstration in favor of the assault weapons ban, refrain from even though they oppose the message being presented. Freedom of speech includes speaking. the right to refrain from speaking.”116

FREEDOM OF SPEECH AND THE INTERNAL INVESTIGATION PROCESS. Occasionally when a firefighter is the subject of an internal investigation, the firefighter is instructed not to discuss the subject of the investigation with other individuals. The order may extend to barring discussion with all other individuals; more commonly, the order extends only to potential witnesses or other suspects in the internal investigation. As long as the order not to discuss an internal investigation is narrowly drawn to apply only to potential witnesses or suspects so as not to jeopardize the investigation, the order is permissible.117 If the order goes further, however, it is likely not enforceable. For example, if the order attempts to forbid an individual from discussing the matter with union representatives, the order would likely run afoul of an employee’s right to representation in the disciplinary process.118 Similarly, if the order attempts to forbid an individual from discussing the matter with family members or friends who are not involved in the investigation, the order would probably violate the firefighter’s rights to freedom of speech, freedom of association, and privacy.

FREEDOM OF ASSOCIATION. The Supreme Court has inferred a constitutionally-guaranteed right to free association into the freedoms of speech and assembly found in the First Amendment.119 The majority of courts give a broad reading to the right of freedom of association, holding that the right applies even in relationships which do not have the political focus normally considered necessary in freedom of speech matters.120 However, a minority of courts have not construed the right to freedom of association as expansively as the right to freedom of speech, holding that the right to freedom of association applies primarily in relationships having a predomi-

A FIREFIGHTER’S FREEDOM OF SPEECH RIGHTS — 187 nately political focus.121 The freedom of association has been applied in the following contexts in ways that affect firefighters in the employment relationship.

FREEDOM OF ASSOCIATION AND MEMBERSHIP IN ORGANIZATIONS. The classic formulation of the freedom of association is that it protects the right to associate with others, whether the association is on an individual basis or is association with groups. The right to associate with a group, particularly a political organization, carries with it the right to contribute financially to the group.122 Without question, the right to freedom of association includes not only the freedom to associate with others or with groups, but also includes the right to privacy in one’s associations.123 Thus, in an early case involving freedom of association, the Supreme Court struck down a requirement that public school teachers disclose the names of organizations to which they belonged, noting: “It is not disputed that to compel a teacher to disclose his every associational tie is to impair that teacher’s right of free association, a right closely allied to freedom of speech and a right which, like free speech, lies at the foundation of a free society. * * * Such interference with personal freedom is conspicuously accented when the teacher serves at the absolute will of those to whom the disclosure must be made – those who any year can terminate the teacher’s employment without bringing charges, without notice, without a hearing, without affording an opportunity to explain.”124 The freedom of association gives a broad protection to any firefighter who wishes to join a labor organization.125 The freedom of association is so strong that even at-will firefighters, who can be fired for almost any reason without recourse, cannot be disciplined for joining a labor organization. The right to join a labor organization does not, in and of itself, carry with it any right to compel an employer to bargain collectively. As described in Chapter 2, collective bargaining rights are controlled by state law.126 However, simple membership by a firefighter in a labor organization, or active participation in the activities of a labor organization, cannot be prohibited by an employer.127 As put by one court in a case involving firefighters, “the First Amendment freedom of association, applied to the states by the Fourteenth Amendment, provides union members with a constitutionally protected right to organize a labor union, even though they are public employees.”128 The only exception to this general rule is with public employee bargaining laws which require fire department supervisors to be in different bargaining units than rank-and-file members. Such laws have been held to not violate the First Amendment’s protections of freedom of association.129 Such laws generally permit supervisory units to be affiliated with a parent organization which numbers a rank-and-file unit as one of its affiliates.130

188 — A FIREFIGHTER’S FREEDOM OF SPEECH RIGHTS In addition to the protections of the First Amendment, the statutes of states with public employee bargaining laws usually prohibit employers from taking discriminatory actions against an employee because of the employee’s union activity.131 Under such statutes, courts have not hesitated to examine the true underlying basis for disciplinary action taken against those involved in union activities. Occasionally, a case will arise where there is an overlap between the constitutionally-protected freedom of speech and the protection of collective bargaining laws. For example, the City of Evanston, Illinois enacted an ordinance prohibiting City employees from “using their official city office or title while engaging in political activities after working hours.” When the City changed the way emergency medical services were provided and proposed closing a fire station, the local firefighters’ association began to canvass citizens about fire safety issues. In conducting the canvass, association members did not identify themselves as City employees, but did say that they were members of a political action committee affiliated with the firefighters’ association. The City Manager responded by reminding the Association and its members about the prohibitions in the ordinance and threatening to use the ordinance to stop the solicitation. The court held that both the ordinance and the City Manager’s actions violated not only the rights of the firefighters to freedom of association, but also the rights of the Association under the state’s collective bargaining laws. The Court found the ordinance “illogical,” noting that while the ordinance allowed firefighters to speak to citizens about safety issues, it would prohibit them from disclosing the source of their expertise on such matters. The Court also rejected the City’s argument that the mere identification of an individual as a City employee could tend to coerce or influence another person for political purposes.132

FREEDOM OF ASSOCIATION AND PERSONAL RELATIONSHIPS. A firefighter’s freedom of association protects a firefighter’s freedom to engage in personal relationships in much the same manner as the right to privacy.133 As the Supreme Court has noted: “Choices to enter into and maintain certain intimate human relationships must be secured against undue intrusion by the State because of the role of such relationships in safeguarding the individual freedom that is central to our constitutional scheme.”134 Given this overlap between freedom of association and the right to privacy, the reader should refer to Chapter 6 above, where many of the cases discussed were decided under both the right to privacy and the freedom of association, for an analysis of the constitutional concerns in such cases.

A FIREFIGHTER’S FREEDOM OF SPEECH RIGHTS — 189 NOTES 1 Elrod v. Burns, 427 U.S. 347 (1976). 2 Perry v. Sindermann, 408 U.S. 593 (1972). 3 Garcetti v. Ceballos, 547 U.S. 410 (2006); see Costantin v. New York City Fire Dept., 2009 WL 3053851 (S.D. N.Y. 2009). 4 Williams v. Dallas Ind. Sch. Dist., 480 F.3d 689 (5th Cir. 2007). 5 Garcetti v. Ceballos, 547 U.S. 410 (2006). 6 Weisbarth v. Geauga Park Dist., 499 F.3d 538 (6th Cir. 2007). 7 Hoover v. County of Broome, 2008 WL 1777444 (N.D. N.Y. 2008). 8 Foley v. Town of Randolph, 601 F. Supp. 2d 379 (D. Mass. 2009). 9 Mulcahey v. Mulrenan, 328 Fed. Appx. 8 (2d Cir. 2009). 10 Manemeit v. The Town Of Branford, 2009 WL 1743749 (D. Conn. 2009). 11 Fuerst v. Clarke, 454 F.3d 770 (7th Cir. 2006); Shefcik v. Village of Calumet Park, 532 F. Supp. 2d 965 (N.D. Ill. 2007); Shirden v. Cordero, 509 F. Supp. 2d 461 (D. N.J. 2007); Mortara v. Katkocin, 2007 WL 4105283 (D. Conn. 2007); see Justice v. Danberg, 571 F. Supp. 2d 602 (D. Del. 2008). 12 City of San Diego v. Roe, 543 U.S. 77 (2004); Connick v. Myers, 461 U.S. 138 (1983). 13 Rankin v. McPherson, 483 U.S. 378 (1987); Baron v. Suffolk County Sheriff’s Dept., 402 F.3d 225 (1st Cir. 2005). 14 Fitzpatrick v. City of Frankfort, Kentucky, 305 Fed. Appx. 258 (6th Cir. 2008); see Pickering v. Bd. of Educ., 391 U.S. 563 (1968). 15 Davignon v. Hodgson, 524 F.3d 91 (1st Cir. 2008); McCarthy v. City of Newburyport, 252 Fed. Appx. 328 (1st Cir. 2007). 16 Hubbard v. Administrator, 735 F. Supp. 435 (D. D.C. 1990). 17 Moore v. City of Kilgore, 877 F.2d 364 (5th Cir. 1989)(firefighter may not be disciplined for criticizing staffing levels in department). 18 Connick v. Myers, 461 U.S. 138 (1983). 19 Gillette v. Delmore, 886 F.2d 1194 (9th Cir. 1989)(protest of method by which accident victims were handled); Hickory Fire Fighters Association v. City of Hickory, 656 F.2d 917 (4th Cir. 1981). 20 Peterson v. City of Hartford, 80 F. Supp. 2d 21 (D. Conn. 1999). 21 Beckwith v. City of Daytona Beach Shores, 58 F.3d 1554 (11th Cir. 1995). 22 Gilbrook v. City of Westminster, 177 F.3d 839 (9th Cir. 1999). 23 City of Lawrence, 15 Mass. Labor Cases 1162 (1988)(violation of state labor laws to even investigate union official for participation in no-confidence vote). 24 Sundstrom v. Village of Arlington Heights, 826 F. Supp. 1143 (N.D. Ill. 1993). 25 Brown v. Disciplinary Comm. of the Edgerton Volunteer Fire Dept., 97 F.3d 969 (7th Cir. 1996). 26 Hufford v. McEnaney, 249 F.3d 1142 (9th Cir. 2001).

190 — A FIREFIGHTER’S FREEDOM OF SPEECH RIGHTS 27 Chappel v. Montgomery County Fire Protection Dist., 131 F.3d 564 (6th Cir. 1997)(criticism of district’s financial problems); McDonald v. Pierce County Fire Protection Dist. No. 13, 2006 WL 223740 (W.D. Wash. 2006)(criticism of staffing levels); Dougherty v. Barry, 604 F. Supp. 1424 (D. D.C. 1985)(firefighter may not be disciplined for participating in rally protesting budgetary priorities of City); Love v. Rehfus, 918 N.E.2d 448 (Ind. App. 2009)(firefighter’s e-mail concerning priorities, administration and finances of agency concerned a matter of public interest). 28 Moore v. City of Kilgore, 877 F.2d 364 (5th Cir. 1989). See also Nowak v. Szwedo, 704 F. Supp. 153 (N.D. Ill. 1989)(firefighter cannot be disciplined for criticism of waste of public funds in fire department). 29 Beckwith v. City of Daytona Beach Shores, 58 F.3d 1554 (11th Cir. 1995). 30 Cassidy v. Salt Lake County Fire Civil Service Council, 976 P.2d 607 (Utah App. 1999). 31 Abad v. City of Marathon, FL, 472 F. Supp. 2d 1374 (S.D. Fla. 2007). 32 Iovinelli v. Pritchett, 2008 WL 2705446 (N.D. Ill. 2008). 33 Chappel v. Montgomery County Fire Protection Dist., 131 F.3d 564 (6th Cir. 1997). 34 Burgess v. Pierce County, 918 F.2d 104 (9th Cir. 1990). 35 Bickel v. Burkhart, 632 F.2d 1251 (5th Cir. 1980)(reversal of discharge of firefighter who made public comments about morale); Schnabel v. Hualapai Valley First Dist., 2009 WL 322948 (D. Ariz. 2009). However, in Shafer v. City of Fort Wayne, 626 F. Supp. 1115 (N.D. Ind. 1986), a court held that a fire captain who complained to other firefighters about the terms of a proposed collective bargaining agreement that would have excluded captains from the bargaining unit was not commenting on an issue of public importance, but rather on an issue that was “personal” to the captain, and therefore upheld the transfer of the captain. 36 Montgomery v. Mississippi, 498 F. Supp. 2d 892 (S.D. Miss. 2007). 37 Coady v. Steil, 187 F.3d 727 (7th Cir. 1999). 38 Johnson v. Los Angeles County Fire Department, 865 F. Supp. 1430 (C.D. Cal. 1994). Key to the Johnson case was that Playboy was not on open display in the firehouse. If a department allows pornography in the common areas of a fire station, then it could be liable for sexual harassment. Brinkley v. City of Green Bay, 392 F. Supp. 2d 1052 (E.D. Wis. 2005). 39 Watts v. Alfred, 794 F. Supp. 431 (D. D.C. 1992). 40 Davison v. City of Minneapolis, Minn., 490 F.3d 648 (8th Cir. 2007); Zerman v. City of Strongsville, Ohio, 2006 WL 2812173 (N.D. Ohio 2006); Cunningham v. Village of Mount Prospect, 2002 WL 31628208 (N.D. Ill. 2002). 41 Vroman v. Volusia County, Fla., 2008 WL 681761 (M.D. Fla. 2008); Phillips v. City of Victoria, 2006 WL 840402 (S.D. Tex. 2006). 42 Walje v. City of Winchester, 773 F.2d 729 (6th Cir. 1985). 43 Belshaw v. City of Berkeley, 54 Cal.Rptr. 727 (Cal. App. 1966). In a related case, in Midwest City, Oklahoma Fire Department, 100 LA 137 (Neas, 1992), an arbitrator held that an employer violated the collective bargaining agreement by removing a letter from the union bulletin board which endorsed certain candidates in a city council election. 44 Davis v. Phenix City, Alabama, 513 F. Supp. 2d 1241 (M.D. Ala. 2007)(Court found protected speech in firefighter union president’s phone call to mayor about

A FIREFIGHTER’S FREEDOM OF SPEECH RIGHTS — 191 probationary periods); Castleberry v. Langford, 428 F. Supp. 676 (N.D. Tex. 1977)(Court overturned indefinite suspension of firefighter for acting on behalf of other employees). 45 Evanston Fire Fighters Ass’n, 609 N.E.2d 790 (Ill. App. 1993). 46 Messman v. Helmke, 133 F.3d 1042 (7th Cir. 1998). 47 Brumfield v. City of Oakland, 2006 WL 279339 (N.D. Cal. 2006); Bianchi v. City of Philadelphia, 183 F. Supp. 2d 726 (E.D. Pa. 2002); Short v. City of West Point, Mississippi, 1996 WL 737535 (N.D. Miss. 1996). 48 Brumfield v. City of Oakland, 2006 WL 279339 (N.D. Cal. 2006); Dougherty v. Barry, 604 F. Supp. 1424 (D. D.C. 1985). See also Donahue v. Windsor Locks Board of Fire Comm’rs, 834 F.2d 54 (2d Cir. 1987)(complaints about gender discrimination). 49 Benson v. Daniels, 89 F. Supp. 2d 212 (D. Conn. 2000). 50 Hartwell v. City of Montgomery, AL, 487 F. Supp. 2d 1313 (M.D. Ala. 2007). 51 Kendall v. Cobb County, Georgia, 14 F. Supp. 2d 1342 (N.D. Ga. 1998). 52 Meyers v. City of Cincinnati, 934 F.2d 726 (6th Cir. 1991); Eudy v. City of Ridgeland, Mississippi, 464 F. Supp. 2d 580 (S.D. Miss. 2006). 53 Habel v. Township of Macomb, 258 Fed. Appx. 854 (6th Cir. 2007); Cooper v. Town of Bar Nunn, WY, 101 Fed. Appx. 324 (10th Cir. 2004); Brennan v. Norton, 350 F.3d 399 (3d Cir. 2003); Chappel v. Montgomery County Fire Protection Dist. No. 1, 131 F.3d 564 (6th Cir. 1997); Lilienthal v. City of Suffolk, 275 F. Supp. 2d 684 (E.D. Va. 2003); Love v. Polk County Fire Dist., 149 P.3d 199 (Or. App. 2006). 54 Fire Fighters Ass’n of District of Columbia v. Barry, 742 F. Supp. 1182 (D. D.C. 1990). 55 Shanks v. Village of Catskill Bd. of Trustees, 653 F. Supp. 2d 158(N.D. N.Y. 2009). 56 Napolitano v. Omaha Airport Authority, 2009 WL 1117313 (D. Neb. 2009). 57 Forras v. Andros, 470 F. Supp. 2d 283 (S.D. N.Y. 2005). 58 Chappel v. Montgomery County Fire Protection Dist., 131 F.3d 564 (6th Cir. 1997); Whelan v. Blakeslee, 1996 WL 776575 (D. Conn. 1996). 59 See Castleberry v. Langford, 428 F. Supp. 676 (N.D. Tex. 1977)(claims of misuse of fire department equipment). 60 City of Fairbanks v. Rice, 20 P.3d 1097 (Alaska 2000). 61 Mich. Comp. Laws 15.362. 62 Fla. Stat. Ch. 112.3187(5). 63 Alaska: Alaska State Section 39.90.100; Arizona: Section 38-531, Arizona Revised Statutes; Section 1102.5; Arkansas: Arkansas State Annotated 11-10-106; California: Labor Code, West’s Annotated California Code; Section 24-50.5-107; Colorado: Colorado Revised Statutes (state employees only); Section 4-61dd, as amended by P.A. 85-559, L. 1985; Connecticut: General Statutes of Connecticut; Section 5115; Delaware: Title 29, Delaware Code Annotated; Florida: Act 267, L. 1987, Section 112.3187, Florida Statutes; Georgia: OCGA Section 45-1-4; Hawai’i: Hawai’i Revised Statutes; Chapter 127, Section 19c.1; Idaho: Idaho Code Section 6- 2101; Illinois: Personnel Code, Illinois Revised Statutes; Section 36-1-8-8; Indiana: Indiana Statutes; Section 730.3; Iowa: Code of Iowa; Section 75-2973; Kansas: General Statutes of Kansas; Section 61.102, Kentucky: Kentucky Revised Statutes; Section 30:1074.1; Louisiana: Louisiana Revised Statutes; Section 832, et seq.;

192 — A FIREFIGHTER’S FREEDOM OF SPEECH RIGHTS Maine: Title 26, Revised Statutes of Maine; Article 64A, Section 12; Maryland: Annotated Code of Maryland; Section 181.931; Massachusetts: Massachusetts Annotated Laws ch. 149, Section 185; Michigan: Michigan State Annotated Section 17.428(2)(1981); Minnesota: Minnesota Statutes; H.B. 659, L. 1987; Mississippi: Mississippi Code Annotated, Section 25-9-171 (2003); Missouri: Missouri Statutes; Section 275-E:1; Montana: Montana Code Anno. Section 39-2-904 (2007); Nebraska: Nebraska Revised Statute, § 81-8,254 (2003); Nevada: Nevada Laws 1991, Chapter 672; New Hampshire: New Hampshire Statutes Annotated; Section 34:19, New Jersey: New Jersey Statutes Annotated, Section 215; New York: McKinney’s Consolidated Laws of New York, as amended by Chapter 744, L. 1986; North Carolina: North Carolina General State Section 126-84 (1989); North Dakota: North Dakota Cent. Code Section 34-01-20 (2003); Ohio: Ohio Revised Code Annotated 4113.52; Oklahoma: Oklahoma Statutes Annotated, Title 74 Section 840-2.5 (2002); Oregon: Chapter 240, Section 316(5), Oregon Revised Statutes; Pennsylvania: Title 43, Sections 1421 to 1429, Pennsylvania Statutes; Section 36- 15; Rhode Island: Rhode Island General Laws; Section 8-27; South Carolina: Code of Laws of South Carolina; South Dakota: South Dakota Codified Laws Section 3-6- 26, 3-6-27; Tennessee: Tennessee Code Annotated Section 50-1-304 (2003); Texas: Article 6252-16a, Vernon’s Texas Statutes and Supplements; Section 67-21; Utah: Utah Code Annotated; Section 42.40.070; Vermont: Vermont Statutes Annotated Title 18, Section 1427 (2003); Washington: Revised Code of Washington; Section 6C-1, as enacted by HB 4364, L. 1988; West Virginia: West Virginia Code; Section 230.80; Wisconsin: Wisconsin Statutes Annotated. 64 Mueller v. County of Los Angeles, 98 Cal.Rptr.3d 281 (Cal. App. 2009). 65 Mills v. Leath, 4 IER Cases 1462 (S.C. Ct. Cm. Pl. 1989). 66 Johns v. Nestucca Rural Fire Protection Dist., 2007 WL 429111 (D. Or. 2007). 67 Schnabel v. Hualapai Valley First Dist., 2009 WL 322948 (D. Ariz. 2009). 68 Skaarup v. City of North Las Vegas, 320 F.3d 1040 (9th Cir. 2003)(statements about whether fire union “sold women promotional candidates down the river”); Brasslett v. Cota, 761 F.2d 827 (1st Cir. 1985)(fire chief could not be disciplined for making false statement about equipment policies unless employer could show the chief knew the statements were false or acted recklessly). 69 Williamson v. City of Edmond, 201 F.3d 450 (10th Cir. 1999)(complaints about wage schedule personal to captain who believed he was underpaid); Baker v. McDaniel, 2009 WL 2710099 (E.D. Ky. 2009)(complaints about purchasing practices in fire department); Shafer v. City of Fort Wayne, 626 F. Supp. 1115 (N.D. Ind. 1986)(complaints about exclusion of captains from bargaining unit of a personal nature and not protected by the First Amendment). 70 Bickel v. Burkhart, 632 F.2d 1251 (5th Cir. 1980); see Hange v. City of Mansfield, 2007 WL 4189473 (N.D. Ohio 2007). 71 Versarge v. Township of Clinton, N.J., 984 F.2d 1359 (3d Cir. 1993). 72 Stalter v. City of Montgomery, 796 F. Supp. 489 (M.D. Ala. 1992). 73 Benson v. Daniels, 89 F. Supp. 2d 212 (D. Conn. 2000). 74 Mailloux v. Town of Littleton, 473 F. Supp. 2d 177 (D. Mass. 2007). 75 McMullen v. Carson, 754 F.2d 936 (11th Cir. 1985)(active membership in Ku Klux Klan and use of media by public employee to link himself to Klan’s activities). 76 Nelson v. City of Buffalo Fire Department, 678 N.Y.S.2d 209 (App. Div. 1998). 77 Karins v. City of Atlantic City, 706 A.2d 706 (N.J. 1998).

A FIREFIGHTER’S FREEDOM OF SPEECH RIGHTS — 193 78 Trayling v. Board of Fire and Police Commissioners, 652 N.E.2d 386 (Ill. App. 1995). 79 Marshall v. City of Atlanta, 614 F. Supp. 581 (D.C. Ga. 1984); Griggs v. No. Main Fire District, 576 N.E.2d 1082 (Ill. App. 1992). 80 Williamson v. City of Edmond, 201 F.3d 450 (10th Cir. 1999). 81 Germann v. City of Kansas City, 776 F.2d 761 (8th Cir. 1985); see Dunn v. Carroll, 40 F.3d 287 (8th Cir. 1994)(upholds termination for calling chief a liar). 82 Janusaitis v. Middlebury Volunteer Fire Ass’n, 607 F.2d 17 (2d Cir. 1979); see McClernon v. Beaver Dams Volunteer Fire Dept., Inc., 489 F. Supp. 2d 291 (W.D. N.Y. 2007). 83 Love v. Rehfus, 918 N.E.2d 448 (Ind. App. 2009). 84 Connick v. Meyers, 461 U.S. 138 (1983). 85 McKinley v. City of Eloy, 705 F.2d 1110 (9th Cir. 1983). 86 See Belcher v. City of McAlester, Oklahoma, 324 F.3d 1203 (10th Cir. 2003). 87 Locurto v. Giuliani, 447 F.3d 159 (2d Cir. 2006); see City of Kokomo v. Kern, 852 N.E.2d 623 (Ind. App. 2006)(gives broad reading to “disruption” factor). 88 Shands v. City of Kennett, 993 F.2d 1337 (8th Cir. 1993). 89 Greer v. Amesqua, 212 F.3d 358 (7th Cir. 2000). 90 Lunow v. City of Oklahoma City, 61 Fed. Appx. 598 (10th Cir. 2003); Richter v. Village of Oak Brook, 2003 WL 22169763 (N.D. Ill. 2003). 91 Edgar v. City of Collierville, 160 Fed. Appx. 440 (6th Cir. 2005). 92 Costantin v. New York City Fire Dept., 2009 WL 3053851 (S.D. N.Y. 2009). 93 Mory v. City of Chula Vista, 2008 WL 360071 (S.D. Cal. 2008). 94 Douglas v. DeKalb County, Ga., 2007 WL 4373970 (N.D. Ga. 2007). 95 Brennan v. Norton, 350 F.3d 399 (3d Cir. 2003)(suspension). 96 Sharpe v. Cureton, 172 F.3d 873 (6th Cir. 1999)(transfer); Brown v. Disciplinary Committee of Edgerton Volunteer Fire Dept., 97 F.3d 969 (7th Cir. 1996)(loss of $700 annual pension paid to volunteers); Shanahan v. City of Chicago, 82 F.3d 776 (7th Cir. 1996)(demotion from Director of Apparatus Maintenance to lieutenant); Swilley v. Alexander, 629 F.2d 1018 (5th Cir. 1980)(letter of reprimand issued to teacher); Peterson v. City of Hartford, 80 F. Supp. 2d 21 (D. Conn. 1999)(transfer of firefighter); Dougherty v. Barry, 604 F. Supp. 1424 (D. D.C. 1985)(denial of firefighter’s promotion application); Doherty v. City of Maryville, 2009 WL 311118 (E.D. Tenn. 2009)(reprimand); Lima v. City of Los Angeles, 2009 WL 782991 (Cal. App. 2009)(reprimand); Cassidy v. Salt Lake County Fire Civil Service Council, 976 P.2d 607 (Utah App. 1999)(failure to promote firefighter). In a fairly bizarre case, a court found that a promotion in retaliation for engaging in speech did not trigger First Amendment scrutiny. As a result of the promotion from captain to battalion chief, the employee was unable to continue with his off-duty business and lost a considerable amount of money. Walsh v. Ward, 991 F.2d 1344 (7th Cir. 1993). 97 Watts v. Alfred, 794 F. Supp. 431 (D. D.C. 1992). 98 Lima v. City of Los Angeles, 2009 WL 782991 (Cal. App. 2009). 99 Coady v. Steil, 187 F.3d 727 (7th Cir. 1999). 100 Sharpe v. Cureton, 172 F.3d 873 (6th Cir. 1999). 101 McAllan v. Von Essen, 517 F. Supp. 2d 672 (S.D. N.Y. 2007).

194 — A FIREFIGHTER’S FREEDOM OF SPEECH RIGHTS 102 Sangendorf-Teal v. Rensselaer County, 100 F.3d 270 (2d Cir. 1996). 103 Broadrick v. Oklahoma, 413 U.S. 601 (1973). 104 Wolf v. City of Aberdeen, 758 F. Supp. 551 (D. S.D. 1991). See Spain v. City of Mansfield, 915 F. Supp. 919 (N.D. Ohio 1996)(strikes down ban on communicating with public about fire department rules without the prior written approval of the chief). In Anderson v. Edwards, 505 F. Supp. 1043 (S.D. Ala. 1981), the Court dealt with a challenge to a rule which forbid members of the Mobile Fire Department from making “any public statement that reasonably considered promotes fear or panic to any member of the general public of this community.” The Court upheld the rule, but at the same time fundamentally construed it out of existence, noting: “If read as a broad prohibition on the right of a fireman to speak out on matters of public concern [the rule] is unconstitutional. That follows even if the speech of the fireman would raise some concern as a reasonable member of the community. The fact that speech causes people to entertain doubts or uncertainties does not allow the state to prohibit the speech. However, the Court construes [the rule] to prohibit only fighting words * * * face-to-face words to cause a breach of the peace [by the person hearing the words].” 105 Mansoor v. Trank, 319 F.3d 133 (4th Cir. 2003). 106 E.g., Parow v. Kinnon, 300 F. Supp. 2d 256 (D. Mass. 2004); International Ass’n of Fire Fighters, Local 3233 v. Frenchtown Charter Tp., 246 F. Supp. 2d 734 (E.D. Mich. 2003). 107 Latino Officers Association v. Safir, 13 IER Cases 199 (S.D. N.Y. 1997), vacated on other grounds, 170 F.3d 167 (2d Cir. 1999); Harman v. City of New York, 945 F. Supp. 750 (S.D. N.Y. 1996). 108 See Davis v. Phenix City, Alabama, 2008 WL 401349 (M.D. Ala. 2008). 109 Kessler v. City of Providence, 167 F. Supp. 2d 482 (D. R.I. 2001); Wolf v. City of Aberdeen, 758 F. Supp. 551 (D. S.D. 1991)(strikes down ban on speaking to press without prior departmental approval); Holland v. Dillon, 531 N.Y.S.2d 467 (N.Y. Sup. 1988)(reversal of five-day suspension for speaking to press about overcrowded conditions in jail). 110 Pesek v. City of Brunswick, 794 F. Supp. 768 (N.D. Ohio 1992)(strikes down ordinance forbidding employees from speaking during public meetings on departmental matters). 111 Wolf v. City of Aberdeen, 758 F. Supp. 551 (D. S.D. 1991)(strikes down rule forbidding employees from commenting on internal business decisions or departmental rules); Salerno v. O’Rourke, 555 F. Supp. 750 (D. N.J. 1983)(discipline for speaking with press reversed). 112 Shelton Police Union, Inc. v. Voccola, 125 F. Supp. 2d 604 (D. Conn. 2001); Belch v. Jefferson County, 108 F. Supp. 2d 143 (N.D. N.Y. 2000). 113 Providence Firefighters, Local 799 v. City of Providence, 26 F. Supp. 2d 350 (D. R.I. 1998). 114 Johnson v. Los Angeles County Fire Dept., 865 F. Supp. 1430 (C.D. Cal. 1994). 115 Pesek v. City of Brunswick, 794 F. Supp. 768 (N.D. Ohio 1992). 116 Donaggio v. Arlington County, Virginia, 880 F. Supp. 446 (E.D. Va. 1995). 117 See Los Angeles Police Protective League v. Gates, 579 F. Supp. 36 (C.D. Cal. 1984).

A FIREFIGHTER’S FREEDOM OF SPEECH RIGHTS — 195 118 See National Labor Relations Board v. J. Weingarten, 420 U.S. 251 (1975). 119 See NAACP v. Button, 371 U.S. 415 (1963). 120 Smith v. Price, 446 F. Supp. 828 (M.D. Ga. 1977), reversed on other grounds, 616 F.2d 1371 (5th Cir. 1980). See generally Griswold v. Connecticut, 381 U.S. 479 (1965). 121 See Angola v. Civiletti, 666 F.2d 1 (2d Cir. 1981). 122 Philadelphia Fire Fighters’ Union Local 22 v. City of Philadelphia, 286 F. Supp. 2d 476 (E.D. Pa. 2003). 123 NAACP v. Alabama, 357 U.S. 449 (1958). 124 Shelton v. Tucker, 364 U.S. 479 (1960). See also NAACP v. Alabama, 357 U.S. 449 (1958)(compelled disclosure of an organization’s membership list infringes upon members’ First Amendment rights). 125 Henrico Professional Firefighters v. Board of Supervisors, 649 F.2d 237 (5th Cir. 1981); Napolitano v. Omaha Airport Authority, 2009 WL 1117313 (D. Neb. 2009); Teaford v. City of Selah, 2006 WL 908045 (E.D. Wash. 2006). See also Thomas v. Collins, 323 U.S. 516 (1945). 126 Smith v. Arkansas State Highway Employees, Local 1315, 441 U.S. 463 (1979). 127 Melton v. City of Atlanta, Georgia, 324 F. Supp. 315 (N.D. Ga. 1971). 128 International Ass’n of Fire Fighters, Local No. 3808 v. City of Kansas City, 220 F.3d 969 (8th Cir. 2000). 129 York County Fire Fighters Ass’n v. County of York, Virginia, 589 F.2d 775 (4th Cir. 1978); Appeal of the Philadelphia Fire Officers Union, 477 A.2d 47 (Pa. Cmwlth. 1984). 130 Village of Oak Park v. Illinois State Labor Relations Bd., 522 N.E.2d 161 (Ill. App. 1988); IAFF, Local 1052 v. PERC, 726 P.2d 1260 (Wash. App. 1986). 131 Pa. Stat. Ann. Tit. 43 § § 211.1-211.36 (West 2000). 132 Evanston Firefighters Association, Local 742 v. Illinois SLRB, 609 N.E.2d 790 (Ill. App. 1993). See also Cincinnati v. Ohio Council 8, AFSCME, 638 N.E.2d 94 (Ohio App. 1994)(strikes down ban on all political activity by city employees). 133 Starling v. Board of County Com’rs, 2009 WL 248369 (S.D. Fla. 2009). 134 Roberts v. United States Jaycees, 468 U.S. 609 (1984). See generally Karst, The Freedom of Intimate Association, 89 Yale L.J. 624 (1980).

196 — A FIREFIGHTER’S FREEDOM OF SPEECH RIGHTS CHAPTER 8

THE RIGHT TO BRING CIVIL LAWSUITS

THE RIGHT TO BRING CIVIL LAWSUITS — 197 INTRODUCTION. The last ten years have seen a dramatic increase in the number of civil lawsuits brought by firefighters against those who injure or otherwise damage the firefighter in the course of the firefighter’s job. Once the risk of such injury was thought to “go with the territory” of a firefighter’s job, with the firefighter possibly filing only a workers’ compensation claim for the injury, and without the firefighter even considering filing a lawsuit as a plaintiff in civil court. Today, the traditional reluc- tance of firefighters to bring civil lawsuits has largely disappeared.

NEGLIGENCE LAWSUITS – THE FIREFIGHTER’S RULE. Most lawsuits stemming from on-the-job injuries suffered by firefighters fall under general negligence theories. In general, a firefighter bringing a negligence lawsuit must show: • That he suffered injuries resulting from actions or inaction on the part of a third party which showed… • A lack of the degree of care which a reasonable person would have shown under the circumstances. A significant limit on the rights of firefighters to bring negligence suits is the so-called “firefighter’s rule,” also known as the “fireman’s rule” and the “professional rescuer’s rule.” The firefighter’s rule bars firefighters and other public safety employees from bringing negligence lawsuits against many of those who injure them. The stated reasons for the rule are several: (1) “The public hires, trains, and compensates firefighters and police officers to deal with dangerous, but inevitable situations. Usually, especially with fires, negligence causes the occasion for the safety officer’s presence. * * * The very nature of police work and fire fighting is to confront danger. The purpose of these professions is to protect the public. It is this relationship between police officers, firefighters, and society which distinguishes safety officers from other employees.” (2) Courts believe that it would be unreasonable to impose on landowners the obligation to keep their premises in a condition where no injuries could occur to a firefighter or a police officer arriving at unpredictable times.1 (3) Courts reason that firefighters can receive some measure of compensation for their injuries suffered on the job through a workers’ compensation or disability system. (4) Some courts believe that it is simply against public policy to allow firefighters and other first responders to bring negligence lawsuits

198 — THE RIGHT TO BRING CIVIL LAWSUITS against those whose actions have occasioned the need for their presence.2 While the firefighter’s rule was initially limited just to lawsuits brought by firefighters against the owners or occupiers of land,3 it has been expanded in recent years to apply to all negligence lawsuits brought by firefighters where the injuries suffered were caused by negligence which was the reason for the presence of the firefighter. There has been considerable debate over the years about the fairness and underlying theoretical basis of the firefighter’s rule. The arguments against the firefighter’s rule include the following: • Firefighters and police officers are not the only employees with high risk jobs, and holding that they, and they alone, assume the risks of negligent conduct is inappropriate.4 • The risks of negligent behavior should fall on the person who is negligent, not the firefighter injured by the negligence or society as a whole. The debate about the firefighter’s rule notwithstanding, the majority of courts today have adopted the firefighter’s rule.5 However, there is a clear trend away from the rule. A number of state legislatures have repealed all or part of the firefighter’s rule, allowing firefighters to bring negligence lawsuits under the same circumstances as other employees.6 The supreme courts of Colorado and Oregon have rejected the firefighter’s rule, holding that it is inappropriate to assume that firefighters assume any risks in the course of their jobs.7 In 2000, a Massachusetts appeals court overturned its prior decisions applying the firefighter’s rule, holding that the rule had no continuing validity.8 Yet other courts have narrowed the firefighter’s rule by limiting its application to firefighters engaged in suppression duties, and not applying the rule to emergency medical service personnel,9 or by requiring landowners to warn firefighters of special risks.10 An example of a state court that has narrowed the firefighter’s rules is Illinois, which previously broadly applied the firefighter’s rule to bar firefighter lawsuits. Illinois now allows a firefighter to maintain an action for injuries he sustains where (1) the possessor of land fails to exercise reasonable care in maintaining the property, (2) it is foreseeable that a firefighter could exercise a privilege to enter the property, and (3) a firefighter actually enters the property in the exercise of this privilege, performs his duty in a foreseeable manner and is injured because of the negligent conditions.11 New Mexico has entirely shucked the ties between the firefighter’s rule and land ownership, and formulates the rule as follows: The person creating a peril owes a professional rescuer no duty if the rescuer’s injury (1) was derived from the negligence that occasioned the rescuer’s response; or (2) was derived from the reckless conduct that occasioned the rescuer’s response and was within the scope of risks inherent in the rescuer’s professional duties.12

THE RIGHT TO BRING CIVIL LAWSUITS — 199 EXCEPTIONS TO THE FIREFIGHTER’S RULE. The firefighter’s rule has numerous exceptions and does not bar suits by firefighters for the following: Negligence Which Is Independent Of The Reason The Firefighter Was Called To The Scene. The firefighter’s rule only bars negligence suits where the firefighter’s injuries were suffered as a result of negligence which caused the firefighter to respond to a particular scene in the first place.13 Put another way, the firefighter’s rule only applies where the response by the firefighter aggravates the risk encountered by the firefighter, and the heightened risk causes the injury.14 Examples of suits involving independent negligence that have not been prohibited by the firefighter’s rule include: • A suit by a firefighter who was struck by a vehicle while fighting a fire,15 or a suit by a firefighter who was injured when a paramedic with another agency backed her vehicle into his leg.16 • A suit by a firefighter injured on his way to a fire scene when he fell into a pit constructed by the landowner to dispose of construction debris.17 • A suit brought by a fire inspector who was injured after slipping on wet, slick stairs while performing a safety inspection,18 or a fire inspector who was injured when a sprinkler system he was inspecting exploded.19 • A suit by a firefighter who was injured while fighting a fire where the owner failed to warn the firefighter of hidden dangers in a basement,20 or where the owner failed to warn the firefighter of toxic chemicals.21 • A suit by a fire inspector who slipped and fell in the parking lot of a mall; the inspector was performing a routine inspection of the mall for fire hazards.22 • A suit by a firefighter who was injured in a collision; the firefighter was sitting in the rear jump seat of a fire truck from which the seatbelts had been removed.23 • A suit by a firefighter who was injured when he fell in a pothole in the driveway of the fire station.24 • A suit by a paramedic who was injured when he tripped and fell in a rut created when a utility company installed an underground cable; the paramedic was on the scene to treat and transport an assault victim.25 Higher Than Simple Negligence. A split among the courts exists as to whether the firefighter’s rule bars lawsuits where the defendant has actively engaged in more than simple negligence, and has

200 — THE RIGHT TO BRING CIVIL LAWSUITS acted in either a willful or wanton manner, or has failed to take appropriate precautions in an extremely hazardous situation. The majority of courts hold that the The majority of firefighter’s rule does not bar lawsuits where the conduct of the defendant is more courts hold that the firefighter’s 26 27 than simple negligence or is intentional; a minority of courts apply the rule to rule does not bar bar lawsuits even where the defendant’s conduct is wanton or willful.28 lawsuits where While the degree of negligence may impact whether the firefighter’s rule the conduct of the defendant is applies, the degree of the potential harm has had no impact on the applicability of more than simple the rule. Courts have regularly rejected lawsuits by firefighters where the potential negligence or is risks were extremely high. For example, in one case, a court held that a firefighter intentional. who was overcome by chlorine fumes when responding to a call was barred by the firefighter’s rule from bringing a lawsuit.29 In another case, a court rejected a lawsuit brought by a firefighter’s widow who alleged her husband died after falling through a floor while fighting a fire. The Court found that the alarm company, which failed to alert the correct fire department in a timely fashion when an alarm went off, thereby allowing the fire to burn through many of the house’s timbers, was as shielded by the firefighter’s rule as was the homeowner.30 Failure To Warn Of Hidden Hazards. The firefighter’s rule does not bar lawsuits where the firefighter’s injuries were suffered as a result of an individual’s failure to warn the firefighter of pre-existing hidden dangers. For example, in one case, a court commented that “while smoke and other related conditions are risks reasonably to be anticipated by firefighters, a hole created by removal of a heating grate is not. That hole was a hidden or unanticipated risk.”31 In another case, a court held that “the risk that the owner or occupier of a burning building will deceive a firefighter as to the nature or existence of a hazard on the premises is not an inherent part of a firefighter’s job.”32 Where the hidden hazard consists of the presence of explosives, courts readily discard the firefighter’s rule.33 As one court commented: “The law does not compel firemen in fighting a fire to assume all possible lurking hazards and risks. * * * Although firemen assume the usual risks incident to their entry upon premises made dangerous by the destructive effect of fire, there is no valid reason why they should be required to assume the extraordinary risk of hidden perils of which they might easily be warned.”34

Arson And Other Intentional Conduct. An arson exception to the firefighter’s rule has long been established. As noted by one court, when dealing with the firefighter’s rule, “we do not deal with the arsonist or with one who prankishly or maliciously turns in a false alarm.”35 Along the same lines, the firefighter’s rule does not bar lawsuits alleging that a defendant intentionally injured a firefighter.36 Failure Of Products. A split exists in the courts as to whether the firefighter’s rule bars lawsuits for injuries resulting from the failure of products used by a firefighter. Most courts

THE RIGHT TO BRING CIVIL LAWSUITS — 201 hold that the assumption of risk and public policy underpinnings of the firefighter’s rule do not extend to the risks that equipment will fail. One court following Most courts this approach commented that “certainly the danger that safety equipment may be hold that the defective is not an inherent part of the job and is not a risk knowingly and volun- assumption of risk tarily assumed.”37 Another court considering a lawsuit challenging the failure of and public policy underpinnings of breathing apparatus and a face shield commented that “to absolve the manufac- the firefighter’s turer of defective safety equipment from liability simply because the end user hap- rule do not extend pens to be a firefighter serves none of the policy reasons behind the rule and, in to the risks that equipment will fact, would have the effect of providing unscrupulous businesses with a permanent fail. open season on firefighters.”38 An alternative rationale arriving at the same result is that the safety gear carried by firefighters does not cause fires, and is not within the range of anticipated risks associated with firefighting.39 Courts taking the opposite position hold that “it makes no difference whether the theory for recovery is based on negligence, strict liability for an abnormally dangerous condition or strict products liability,” the firefighter’s rule will bar the lawsuit.40 Lawsuits Against One’s Employer. Where firefighters are allowed to sue their employers for negligence, the firefighter’s rule will not bar a claim that a fire department negligently failed to follow its own rules and procedures, and that the negligence led to the injury or death of a firefighter. In such cases, a court is likely to conclude that the notion inherent in the firefighter’s rule that the public as a whole should bear the risk of injuries to firefighters (through providing workers’ compensation insurance) simply does not apply where the suit is against a public employer. As phrased by one court, “inas- much as the present suit is against a municipality, it appears that any damages awarded ultimately will be distributed among all of the municipality’s citizens.”41 Driving While Intoxicated. If a public safety employee is injured by an intoxicated driver, it is likely that the firefighter’s claim will not be barred by the firefighter’s rule. An important case is McCarthy v. Ehrens, where a New Jersey State trooper was struck by a car and killed while crossing a freeway on foot to try to apprehend a drunken driver who, after disobeying the trooper’s instructions to pull over, had crashed his car into the median.42 The Court rejected the driver’s attempt to have the trooper’s estate’s lawsuit against him dismissed because of the firefighter’s rule. The Court squarely carved out an intoxicated driver exception to the firefighter’s rule: “As long as conduct is willful and wanton, there is no immunity under the ‘firefighter’s rule’ as the public policy underlying the basis of the rule would not be served. When an individual drives upon the highway in an intoxicated condition conscious that injury is likely to result from his conduct and displays reckless indifference to the injurious consequences of his behavior, willful and wanton misconduct may serve as a basis for liability.”

202 — THE RIGHT TO BRING CIVIL LAWSUITS Volunteers And Off-Duty Personnel. Courts are split on whether the firefighter’s rule applies to volunteers and paid firefighters who are acting in an off-duty capacity. Some courts have held that the rule applies even to bar lawsuits by unpaid firefighters.43 An increasing number of courts reject that notion, and hold that it is only the paid status of firefighters, complete with the payment of workers’ compensation and other insurance benefits, that justifies the application of the rule.44

FIREFIGHTERS AS PLAINTIFFS IN LIBEL AND SLANDER LAWSUITS. Another civil cause of action frequently brought by firefighters is that of defa- The tort of mation of character. The tort of defamation of character occurs when an individu- defamation al makes a false statement about another, and the making of the statement causes of character damages to the defamed party. Written defamation is generally called “libel,” occurs when an while oral defamation is termed “slander.”45 While there was once a significant individual makes a false statement distinction in the proof necessary in libel and slander cases, that distinction has about another, all but disappeared today, with libel and slander considered simply variants on the and the making same tort of defamation. of the statement causes damages to the defamed party. THE “MALICE” STANDARD IN DEFAMATION CASES. Firefighters have been notably unsuccessful in bringing defamation lawsuits. At the root of this lack of success is the so-called “public official” rule applied in defamation cases brought by public officials. Under this rule, any public official bringing a defamation action concerning statements about the employee’s official actions must show that the defendant made the statements with “malice.” Most cases hold that firefighters are public officials for the purposes of defamation cases.46 As defined by the Supreme Court, “malice” means that the defendant made the statements either knowing that they were false or with reckless disregard of the truth or falsity of the statements.47 What makes defamation cases difficult to win under the “malice” standard is that, as with any standard of proof involving a subjective state of mind, proof of actual intent or recklessness under the “actual malice” standard is difficult, if not impossible, to obtain.48 It would be a rare and, to say the least, incautious publisher of defamatory material who would admit to having acted intentionally or recklessly in publishing the material. Because of this, even in cases where extremely serious false statements have been made about firefighters, recovery under the “malice” standard has been all but impossible.49 Even if a court finds that a firefighter need not prove malice as a matter of constitutional law, a similar “conditional privilege” standard may well be applied if the alleged defamatory statement was made in the context of employment. In rejecting a firefighter’s defamation case against his supervisors, a court noted that

THE RIGHT TO BRING CIVIL LAWSUITS — 203 “statements made within the context of an employment relationship by and to a plaintiff’s supervisor or coworkers are conditionally privileged if the speaker reasonably believed that his statements were true and acted in good faith.”50

THE “OPINION” RULE IN DEFAMATION CASES. If a firefighter can show that the defendant acted with malice in making certain statements, the next burden the firefighter must meet is to show that the statements were allegations of fact, not expressions of opinion.51 Expressions of Expressions of opinion are protected by the First Amendment and may not be the basis for a opinion are defamation lawsuit.52 As one court held, “an assertion that cannot be proved false protected by the First Amendment cannot be held libelous. A writer cannot be sued for simply expressing his opinion and may not of another person, however unreasonable the opinion or vituperous the expressing be the basis for of it may be.”53 a defamation lawsuit. The real debate under the opinion rule is whether certain statements are dec- larations of fact or expressions of opinion. Since there are no hard and fast rules existing which apply in this area, the decisions of courts are predictably divergent. One case has even gone so far as to say that referring to a firefighter association leader as a “Jimmy Hoffa” could not under any circumstances be considered defamation of character,54 where another case ruled as protected opinion a statement that a fire inspector was “ripping off the system.”55 In addition to the normal “opinion” rule found in defamation cases, yet another privilege exists where an employer is providing information either inter- nally or by way of a job reference about the performance of the employee. Under such circumstances, statements made in the reference cannot be the basis for a defamation action unless the employee shows they were made with malice.56

THE “ABSOLUTE PRIVILEGE” BAR TO DEFAMATION ACTIONS BROUGHT BY FIREFIGHTERS. Even if the firefighter can show that the defendant acted with malice in making false statements about the firefighter and that the statements were not expressions of opinion, that still does not necessarily mean that the firefighter can recover in a defamation action. Some states have, by the decisions of the courts, adopted an “absolute privilege” bar to defamation actions brought by firefighters and other public servants. Under this theory, any citizen is granted an absolute privilege to make statements about the on-the-job conduct of a public servant to the employee’s supervisor. Even if the citizen knows that the statements were false at the time they are made, the statements are considered privileged, and the employee is barred from bringing a suit based upon the statements. Another form of the “absolute privilege” rule exists in some states, shielding “high public officials” from liability for comments made within the scope of their job duties.57

204 — THE RIGHT TO BRING CIVIL LAWSUITS “Absolute privilege” rules have not been adopted by every state. Where they exist, however, they completely foreclose firefighters from bringing defamation actions relating to on-the-job conduct.58

DAMAGES IN DEFAMATION CASES. If a firefighter can clear the malice and privilege hurdles and prevail in a defamation case, the damages which can be obtained are substantial. A successful plaintiff in a defamation case is entitled to monetary recovery for damage to the plaintiff’s reputation, the effect of the defamation on the plaintiff’s promotional and advancement opportunities within the fire protection agency employing the plaintiff, the effect of the defamation on the plaintiff’s home life, and for the effect of the defamation on the plaintiff’s emotional condition. In many cases, if the allegations against the plaintiff are serious enough, courts may assume that damages have resulted to the plaintiff rather than requiring specific proof of damages.59

PRODUCTS LIABILITY LAWSUITS. Firefighters use a variety of equipment in their jobs, ranging from vehicles to fire suppression equipment to safety gear. The failure of any of this equipment can cause the injury or death of the firefighter. As with other areas of “firefighter plaintiff” cases, firefighters have only recently begun to bring lawsuits against the manufacturer or distributor of products that have failed and caused injury to a firefighter.60 The purpose behind the laws establishing product liability is to ensure that the costs of injuries resulting from the use of a defective product are borne by The purpose behind the laws the manufacturer who places the defective product on the market, rather than establishing by the person injured by the product’s failure.61 Liability for selling or reselling product liability a defective product can rest on the seller’s negligence, upon breach of an express is to ensure that the costs of or implied warranty that the product will not fail, upon the notion that a manu- injuries resulting facturer of a safety product has an inherent duty to warn of the limitations of the from the use of a product,62 or upon a theory of strict liability. Strict liability exists where an indi- defective product vidual sells a product in a defective condition which is unreasonably dangerous to are borne by the manufacturer 63 the user or consumer of the product. The advantage in bringing strict liability who places the products liability suits is that any negligence by the firefighter usually cannot be defective product raised as a defense to the lawsuit.64 on the market, rather than by the A classic products liability case is Martin v. Survivair Respirators, Inc. When person injured a firefighter died when a valve in his air mask allegedly became stuck and while by the product’s attempting to rescue another firefighter whose warning device failed to sound, the failure. deceased firefighters’ relatives sued the manufacturer of the air mask and alarm. An appeals court upheld a $27 million judgment against the manufacturer, finding that the failure of the warning device “directly caused or directly contributed to cause the death of the firefighter, and was a sufficient basis to impose liability.”65

THE RIGHT TO BRING CIVIL LAWSUITS — 205 LAWSUITS AGAINST ONE’S EMPLOYER. Virtually all fire protection employers operate under the protection of a “workers’ compensation bar.”66 Under such a bar, which is usually created by state statute, the exclusive remedy an injured firefighter has against his/her employer is that remedy which is provided by applicable workers’ compensation or pension laws.67 In other words, employees are completely barred from bringing negligence or many other lawsuits against their employers, no matter how inadequate or insufficient the workers’ compensation remedy might be.68 The following provision of the Illinois Pension Code is a good example of a workers’ compensation bar: ”Whenever any city * * * enacts an ordinance pursuant to this Division, no common law or statutory right to recover damages against such city * * * for injury * * * sustained by any fireman * * * while engaged in the line of his duty as such fireman * * * other than the payment of the allowances of money and of the medical care and hospital treatment provided in such ordinance, shall be available.”69 For the workers’ compensation bar to apply, the firefighter must be covered by workers’ compensation laws; for these reasons, the workers’ compensation bar applies in some cases even to prevent lawsuits by volunteers, but only if they receive workers’ compensation benefits.70 The workers’ compensation bar generally only applies to negligence lawsuits; it does not prevent lawsuits alleging that a firefighter has been intentionally injured.71 However, in most cases the bar does prevent lawsuits against a fellow employee for negligence provided that the fellow employee did not act intentionally.72

LAWSUITS FOR INTENTIONAL CONDUCT. Some of the torts committed on firefighters are intentional torts. As noted in a leading treatise on torts, the intent necessary to establish an intentional tort need not even be the intent to actually cause harm to another person: “The intent with which tort liability is concerned is not necessarily a hostile intent, or a desire to do any harm. Rather it is an intent to bring about a result which will invade the interests of another in a way that the law forbids. The defendant may be liable although intending nothing more than a good-natured practical joke.”73 The four intentional tort theories most commonly employed by firefighters are assault and battery, malicious prosecution or abuse of process, intentional infliction of emotional distress, and intentional interference with contract.

206 — THE RIGHT TO BRING CIVIL LAWSUITS ASSAULT AND BATTERY. The torts of assault and battery have to be distinguished from the crimes of assault and battery, which usually have a very different meaning. The tort of battery is defined as any act where one person touches another in an offensive or harmful way without permission.74 Batteries of firefighters can occur in a wide variety of settings. A battery occurs every time a firefighter is shot, slugged, slapped, bit, spit upon, kicked, struck by a thrown rock, or wrestled to the ground, or in any other instance where another individual engages in intentional conduct which causes offensive or harmful physical contact with the firefighter. Actions which are tortious batteries are similar to the crime of assault. The tort of assault, on the other hand, is defined as an attempted battery which places an individual in fear that a battery will occur.75 The crime of menacing is usually similar to the tort of assault.

MALICIOUS PROSECUTION AND ABUSE OF PROCESS. An at least occasionally vexing concern in the work life of a firefighter is that he or she is subject to lawsuits for astronomical sums of money. Although the lawsuit may have absolutely no basis in fact, and indeed may be legally barred by a “Good Samaritan” law, it still causes considerable stress for the firefighter, subjects the firefighter and the firefighter’s family to financial insecurity while the lawsuit is pending, and may affect the firefighter’s credit rating. One approach firefight- One approach firefighters have ers have used to counter initiation of baseless legal proceedings against them has used to counter been to bring a civil lawsuit against the person initiating the proceedings. Such a initiation of lawsuit, which involves the torts of “malicious prosecution” or “abuse of process,” baseless legal proceedings seeks to recover for the damages suffered by being the victim of inappropriate legal against them has proceedings. been to bring The torts of malicious prosecution and abuse of process are very similar, and a civil lawsuit against the the elements of each are virtually identical. The tort of malicious prosecution person initiating exists whenever an individual wrongfully initiates criminal proceedings against the proceedings. another. The tort of abuse of process exists whenever the wrongfully initiated proceedings are civil in nature instead of criminal. The elements of a malicious prosecution or abuse of process lawsuit are the following: • That the judicial proceedings were initiated against the defendant without probable cause. If a grand jury indicted a firefighter for the conduct, the firefighter has an extremely heavy burden of overcoming a presumption that there was probable cause for the initiation of the proceedings.76 • That the judicial proceedings were initiated with malice; that is, with knowledge that the underlying basis for the proceedings was false, or in reckless disregard of the truth or falsity of the basis for the proceedings.

THE RIGHT TO BRING CIVIL LAWSUITS — 207 • That the judicial proceedings were finally and completely resolved against the defendant.77 The courts are split on the question of whether an abuse of process suit may be filed against an individual who wrongfully initiates an internal complaint against a firefighter or other public employee. Some courts hold that if the entity conducting the internal investigation has powers and procedures that are equivalent to those of an administrative agency or other quasi-judicial body, the filing of a false complaint with the department may be the basis for an abuse of process suit.78 A court following this reasoning has even held that an abuse of process cause of action can exist where the civil proceedings that have been wrongfully instituted against a firefighter are civil service disciplinary proceedings instead of more formal court lawsuits.79 Other courts reject this reasoning, holding instead that all citizens are absolutely privileged to file complaints with quasi-judicial bodies, no matter whether the complaints are false.80

INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS – THE TORT OF “OUTRAGE.” The third type of intentional tort lawsuit which is brought by firefighters is known as intentional infliction of emotional distress, often called the tort of “outrage.” Because the standards of proof for the tort of emotional distress are so difficult to meet, virtually all of these suits are unsuccessful.81 In order to In order to establish a claim for intentional infliction of emotional distress, establish a claim for intentional the firefighter must prove that the defendant engaged in conduct intending to infliction of inflict emotional distress upon the firefighter.82 The conduct must either be emotional distress, extreme or clearly outrageous and must “go beyond all possible bounds of decency the firefighter 83 must prove that and be regarded as atrocious and utterly intolerable in a civilized community.” the defendant As a court commented in dismissing a firefighter’s lawsuit for intentional infliction engaged of emotional distress, “to a reasonable extent, embarrassment and humiliation are in conduct 84 intending to part of everyday life to which the law provides no remedy.” Examples of conduct inflict emotional which has failed to meet the standard for outrageousness include the following: distress upon the firefighter. • Where charges have been brought by a labor organization against its member firefighters on the grounds that they violated union constitutions by being members of volunteer departments.85 • Where a firefighter was locked in a room and was told he would not be allowed to leave.86 • Sexual harassment in the workplace (even where the harassment is patently offensive).87 • Where an employer based a discharge decision on the unreliable results of a drug test, and refused to notify the employee of the name and address of the laboratory performing the test.88

208 — THE RIGHT TO BRING CIVIL LAWSUITS Occasionally, a court will find that a firefighter has stated a claim for intentional infliction of emotional distress.89 As might be expected from the strict standard of proof in such cases, the level of the employer’s conduct must be truly extreme before a court will let such a suit proceed. An example of a claim for intentional infliction of emotional distress that has been allowed is one in which a fire department’s supervisors implied that a firefighter might physically harm others, arrested him for a recreational fire violation, and banned him from public property after he went on medical leave. The Court found that this conduct by the employer was so “extreme and outrageous as to go beyond all possible bounds of decency.”90

THE RIGHT TO BRING CIVIL LAWSUITS — 209 NOTES 1 Torchik v. Boyce, 905 N.E.2d 179 (Ohio 2009). 2 Bench v. City of Monrovia, 2005 WL 590664 (Cal. App. 2 Dist.. 2005); Babes Showclub, Jaba, Inc. v. Lair, 918 N.E.2d 308 (Ind. 2009). 3 Gibson v. Leonard, 32 N.E. 182 (Ill. 1892)(probable origination of firefighter’s rule). 4 Walters v. Sloan, 571 P.2d 609 (Cal. 1977)(Tobriner, J., dissenting). 5 Arizona, Espinoza v. Schulenburg, 129 P.3d 937 (Ariz. 2006); California, Walters v. Sloan, 571 P.2d 609 (Cal. 1977); Connecticut, Little v. Plant Integration Ass’n & Home Care Solutions, Inc., 2008 WL 2374431 (Conn. Super. 2008); District of Columbia, Windsor v. Whitman-Walker Clinic, Inc., 512 F. Supp. 2d 66 (D. D.C. 2007); Georgia, Davis v. Pinson, 631 S.E.2d 805 (Ga. App. 2006); Idaho, Winn v. Frasher, 777 P.2d 722 (Idaho 1989); Iowa, Pottebaum v. Hinds, 347 N.W.2d 642 (Iowa 1984); Illinois, Gibson v. Leonard, 32 N.E. 182 (Ill. 1892); Indiana, Thompson v. Murat Shrine Club, Inc., 639 N.E.2d 1039 (Ind. App. 1994); Kansas, Calvert v. Garvey Elevators, Inc., 694 P.2d 433 (Kan. 1985); Kentucky, Buren v. Midwest Industries, Inc., 380 S.W.2d 96 (Ky. App. 1964); Maryland, Hart v. Shastri Narayan Swaroop, Inc., 870 A.2d 157 (Md. 2005); Missouri, Phillips v. Hallmark Cards, 722 S.W.2d 86 (Mo. 1986); Nebraska, Lave v. Neumann, 317 N.W.2d 779 (Neb. 1982); Nevada, Steelman v. Lind, 634 P.2d 666 (Nev. 1981); New Hampshire, England v. Tasker, 529 A.2d 938 (N.H. 1987); New Jersey, Berko v. Freda, 459 A.2d 663 (N.J. 1983); New Mexico, Baldonado v. El Paso Natural Gas Company, 176 P.3d 277 (N.M. 2008); New York, Beedenbender v. Midtown Properties, 164 N.Y.S.2d 276 (A.D. 1957); Ohio, Hack v. Gillespie, 658 N.E.2d 1046 (Ohio 1996); Rhode Island, DeLaire v. Kaskel, 842 A.2d 1052 (R.I. 2004); Texas, Thomas v. CNC Investments, L.L.P., 234 S.W.3d 111 (Tex. App. 2007); Virgin Islands, Louis v. Caneel Bay, Inc., 2008 WL 4372941 (V.I. Super. 2008); Virginia, C & O Railway Co. v. Crouch, 159 S.E.2d 650 (Va. 1968); Washington, Beaupre v. Pierce County, 166 P.3d 712 (Wash. 2007); Wisconsin, Clark v. Colby, 249 N.W.2d 567 (Wis. 1977). 6 For example, Minnesota adopted the firefighter’s rule in Hannah v. Jensen, 298 N.W.2d 52 (Minn. 1980), only to have the Minnesota legislature statutorily abolish the rule shortly thereafter. See Lang v. Glusica, 393 N.W.2d 181 (Minn. 1986). The California legislature partially abolished the firefighter’s rule in 1999, Cal. Civil Code § 1714.9, as has New York’s. See General Municipal Law Section 205; Martinez v. Federal Home Loan Mortgage Corp., 943 F. Supp. 280 (S.D. N.Y. 1996); Castro v. Trost, 655 N.Y.S.2d 214 (A.D. 1997); Boardman v. Vin-Al Corp., 646 N.Y.S.2d 26 (A.D. 1996). Florida and New Jersey have statutorily abolished the firefighter’s rule. Fla. Stat. § 112.182(1)(2000); N.J.S.A. 2A:62A-21; see Ruiz v. Mero, 917 A.2d 239 (N.J. 2007). 7 Bath Excavating & Construction Co. v. Wills, 847 P.2d 1141 (Colo. 1993); Christensen v. Murphy, 678 P.2d 1210 (Or. 1984). 8 Hopkins v. Medeiros, 724 N.E.2d 336 (Mass. App. 2000). 9 But see Pinter v. American Family Mutual Insurance Co., 613 N.W.2d 110 (Wis. 2000)(in a split decision, court applies firefighter’s rule to EMT). 10 Louis v. Caneel Bay, Inc., 2008 WL 4372941 (V.I. Super. 2008).

210 — THE RIGHT TO BRING CIVIL LAWSUITS 11 Dini v. Naiditch, 170 N.E.2d 881 (Ill. 1960). 12 Baldonado v. El Paso Natural Gas Company, 176 P.3d 277 (N.M. 2008). 13 Lurgio v. Commonwealth Edison Co., 914 N.E.2d 659 (Ill. App. 2009). 14 Braxton v. City of Yonkers, 717 N.Y.S.2d 326 (A.D. 2000). 15 Kowalski v. Gratopp, 442 N.W.2d 682 (Mich. App. 1989); Lees v. Lobosco, 625 A.2d 573 (N.J. Super. A.D. 1993); see Gibbons v. Caraway, 565 N.W.2d 663 (Mich. 1997); Dubois v. Vanderwalker, 665 N.Y.S.2d 460 (A.D. 1997). 16 Ruffing v. Ada County Paramedics, 188 P.3d 885 (Idaho 2008). 17 Wilbanks v. Echols, 433 S.E.2d 134 (Ga. App. 1993). 18 Donohue v. San Francisco Housing Authority, 20 Cal.Rptr.2d 148 (Cal. App. 1993). 19 Labrie v. Pace Membership Warehouse, Inc., 678 A.2d 867 (R.I. 1996). 20 Clark v. Corby, 249 N.W.2d 567 (Wis. 1977). 21 Bennis v. State Chemical Manufacturing Co., 682 So.2d 574 (Fla. App. 1996). 22 Boyer v. Anchor Disposal, 638 A.2d 135 (N.J. 1994). 23 Weyant v. City of New York, 616 N.Y.S.2d 428 (Sup. 1994). 24 Olson v. City of New York, 650 N.Y.S.2d 291 (A.D. 1996). 25 Sallee v. GTE South, Inc., 839 S.W.2d 277 (Ky. 1992). 26 Mahoney v. Carus Chemical Co., Inc., 510 A.2d 4 (N.J. 1986); Buchanan v. Prickett & Son, Inc., 279 N.W.2d 855 (Neb. 1979); Rishel v. Eastern Airlines, Inc., 466 So.2d 1136 (Fla. App. 1985); Marquart v. Toledo, Peorio & Western R.R. Co., 333 N.E.2d 558 (Ill. App. 1975). 27 Heck v. Robey, 659 N.E.2d 498 (Ind. 1995). 28 Hubbard v. Boelt, 620 P.2d 156 (Cal. 1980). 29 Whiston v. Bio-Lab, Inc., 619 N.E.2d 1047 (Ohio App. 1993). 30 Edwards v. Honeywell, Inc., 50 F.3d 484 (7th Cir. 1995). 31 Johnson v. Miller, 371 N.W.2d 94 (Minn. App. 1985). 32 Lipson v. Superior Court of Orange County, 644 P.2d 822 (Cal. 1982). See also Bennis v. State Chemical Mfg. Co., 682 So.2d 574 (Fla. App. 1996); Clark v. Corby, 249 N.W.2d 567 (Wis. 1977). 33 Kilventon v. United Missouri Bank, 865 S.W.2d 741 (Mo. App. 1993). 34 Bartels v. Continental Oil Co., 384 S.W.2d 667 (Mo. 1964). 35 Giorgi v. Pacific Gas and Electric Co., 72 Cal.Rptr. 119 (Cal. App. 1968). See also Grable v. Valera, 564 P.2d 911 (Ariz. App. 1977); Berko v. Freda, 459 A.2d 663 (N.J. 1983); Puntasecca v. Violent Crimes Compensation Bd., 519 A.2d 890 (N.J. Super. A.D. 1986). 36 Baldonado v. El Paso Natural Gas Company, 176 P.3d 277 (N.M. 2008). 37 Price v. Tempo, Inc., 603 F. Supp. 1359 (E.D. Pa. 1985); Court v. Grzelinski, 379 N.E.2d 281 (Ill. 1978); Hauboldt v. Union Carbide Corp., 467 N.W.2d 508 (Wis. 1991). 38 Shepard v. Morning Pride Mfg., Inc., 636 N.Y.S.2d 173 (A.D. 1996). 39 Martin v. Survivair Respirators, Inc., 298 S.W.3d 23 (Mo. App. E.D. 2009). 40 Calvert v. Garvey Elevators, Inc., 694 P.2d 433 (Kan. 1985); Moreno v. Marrs, 695 P.2d 1322 (N.M. 1984).

THE RIGHT TO BRING CIVIL LAWSUITS — 211 41 Bridges v. City of Memphis, 952 S.W.2d 841 (Tenn. App. 1997). 42 McCarthy v. Ehrens, 514 A.2d 864 (N.J. Super. 1986). 43 Waggoner v. Troutman Oil Co., Inc., 894 S.W.2d 913 (Ark. 1995); Bourgeois v. Duplessis, 540 So.2d 397 (La. App. 1989); Buchanan v. Prickett & Son, 279 N.W.2d 855 (Neb. 1979); June v. Laris, 618 N.Y.S.2d 138 (A.D. 1994); Fiola v. Korman, 592 N.Y.S.2d 429 (A.D. 1993). 44 Espinoza v. Schulenburg, 129 P.3d 937 (Ariz. 2006)(off-duty firefighter); Burt v. Valley Fire Chief’s Training School, 2004 WL 1245174 (Conn. Super. 2004)(volunteer). 45 A defamatory statement is deemed to have been “published” whenever it is made to a third person. As used in this context, “publication” need not necessarily mean the preparation of printed material. 46 McDowell v. Moore, 863 S.W.2d 418 (Tenn. App. 1992); Miller v. Minority Brotherhood of Fire Protection, 463 N.W.2d 690 (Wis. App. 1990); Larchmont Professional Fire Fighters Ass’n v. Larchmont/Marmaroneck Volunteer Ambulance Corps, Inc., 615 N.Y.S.2d 73 (A.D. 1994)(statement in newspaper that union brought charges against firefighter in retaliation for firefighter’s filing of a complaint constitutionally protected as statement of opinion). See generally Comment, “The Constitutional Law of Defamation: Are All Speakers Protected Equally?,” 44 Ohio St. L. J. 149, (1983). But see Jones v. Palmer Communications, Inc., 440 N.W.2d 884 (Iowa 1989)(firefighter not a public official for purposes of defamation lawsuit). 47 Three of the most significant cases defining the “malice” standard are New York Times v. Sullivan, 376 U.S. 254 (1964); Curtis Pub. Co. v. Butts, 388 U.S. 130 (1967); Herbert v. Lando, 441 U.S. 153 (1976). 48 McNabb v. Oregonian Pub. Co., 685 P.2d 458 (Or. App. 1984). 49 Speer v. Ottaway Newspapers, Inc., 828 F.2d 475 (8th Cir. 1987). 50 Cignetti v. Healy, 89 F. Supp. 2d 106 (D. Mass. 2000); Morgan v. Kooistra, 941 A.2d 447 (Me. 2008). 51 Reed v. Northwestern Pub. Co., 512 N.E.2d 828 (Ill. App. 1987). 52 Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974). 53 Hotchner v. Castillo-Puche, 551 F.2d 910 (2d Cir. 1977). 54 Gilbrook v. City of Westminster, 177 F.3d 839 (9th Cir. 1999). 55 Leddy v. Narragansett Television, L.P., 843 A.2d 481 (R.I. 2004). 56 Thomas v. City of Annapolis, 688 A.2d 448 (Md. App. 1997). 57 Smith v. Borough of Dunmore, 2007 WL 762930 (M.D. Pa. 2007). 58 See Putter v. Anderson, 601 S.W.2d 73 (Tex. Civ. App. 1980)(complaint made to internal affairs investigators absolutely privileged). 59 See 50 Am. Jur. 2d, Libel and Slander Section 376 (1995), and cases cited therein. 60 Damage awards in product liability cases can be substantial. In Christofferson v. Michelin Tire Corp., 273 Cal.Rptr. 356 (Cal. App. 1990), a jury awarded $1,591,880 to a highway patrolman who was injured when a tire on his motorcycle failed. In the case, the Court ordered a new trial because the jury had not been informed of the nature of a settlement with the manufacturer of the motorcycle, Kawasaki, where the patrolman received a minimum of $200,000 and a maximum of $1,000,000 (depending upon the outcome of the litigation against Michelin).

212 — THE RIGHT TO BRING CIVIL LAWSUITS 61 See Restatement (Third) of Torts: Prod. Liab. § 2 (1997). 62 Alexander v. Morning Pride Mfg., Inc., 913 F. Supp. 362 (E.D. Pa. 1995). If a company even slightly modifies a product produced by another manufacturer, it may be liable for damages to a firefighter resulting from the failure of the product. See Jackson v. Alert Fire and Safety Equipment, Inc., 567 N.E.2d 1027 (Ohio 1991)(lengthening of firefighter’s coat). 63 See Fish v. Amsted Indus., Inc., 376 N.W.2d 820 (Wis. 1985). 64 Walsh v. Emergency One, Inc., 26 F.3d 1417 (7th Cir. 1994)(where contributory negligence can be raised as a defense to negligence claims, it is inadmissible in products liability suits based on strict liability). 65 Martin v. Survivair Respirators, Inc., 298 S.W.3d 23 (Mo. App. E.D. 2009). 66 See Kirchhoff v. Raciot, 2006 WL 2193818 (Conn. Super. 2006). Washington does not have a workers’ compensation bar. Locke v. City of Seattle, 172 P.3d 705 (Wash. 2007); Beaupre v. Pierce County, 166 P.3d 712 (Wash. 2007). 67 Tighe v. City of Yonkers, 725 N.Y.S.2d 384 (A.D. 2001); Braxton v. City of Yonkers, 717 N.Y.S.2d 326 (A.D. 2000). 68 A workers’ compensation bar only prevents certain types of lawsuits for personal injuries. It does not prevent lawsuits for violation of constitutional or statutory rights, nor typically, does it prevent lawsuits for personal injuries that have been intentionally caused by the employer. 69 40 Ill. Comp. Stat. 5/22-307. 70 Hix v. Jenkins, 453 S.E.2d 551 (N.C. App. 1995). Contra Baxter v. Hog Valley Volunteer Fire Department, Inc., 669 So.2d 285 (Fla. App. 1996); Theodoreu v. Chester Fire Dist., 785 N.Y.S.2d 91 (A.D. 2004); Doty v. Town of South Prairie, 93 P.3d 956 (Wash. App. 2004). 71 Johns-Manville Products Corp. v. Superior Court, 612 P.2d 948 (Cal. 1980). In some states, the workers’ compensation bar prevents even lawsuits for injuries resulting from some types of intentional conduct. See Cole v. Fair Oaks Fire Protection Dist., 729 P.2d 743 (Cal. 1987)(lawsuit against employer for intentional infliction of emotional distress not allowed). 72 Manzo v. Zemstra, 1999 WL 595731 (Conn. Super. 1999); Keller v. Kraft, 671 N.W.2d 361 (Wis. App. 2003). 73 W. Keeton, Prosser and Keeton on Torts 36 (5th Ed. 1984). 74 Restatement (Second) of Torts § 13. 75 Restatement (Second) of Torts § 24; Johns v. Nestucca Rural Fire Protection Dist., 2007 WL 429111 (D. Or. 2007). 76 Deoma v. City of Shaker Heights, 587 N.E.2d 425 (Ohio App. 1990). 77 Pronger v. O’Dell, 379 N.W.2d 330 (Wis. 1985). 78 Lewis v. Allen, 698 S.W.2d 58 (Tenn. 1985). 79 Cignetti v. Healy, 89 F. Supp. 2d 106 (D. Mass. 2000). 80 Miner v. Novotny, 498 A.2d 269 (Md. 1985); Magnus v. Anpatiellos, 516 N.Y.S.2d 31 (A.D. 1987). 81Firefighters are even more unlikely to succeed in court on a separate tort known as the negligent infliction of emotional distress. In most states, negligent infliction of emotion distress only exists if the firefighter is injured as a result of negligence committed in their presence which, though it causes no physical injury to

THE RIGHT TO BRING CIVIL LAWSUITS — 213 the firefighter, causes emotional distress on the firefighter’s part. Does I-VI v. KTNV- Channel 13, 863 F. Supp. 1259 (D. Nev. 1994). 82 Baldonado v. El Paso Natural Gas Company, 176 P.3d 277 (N.M. 2008). 83 Clark v. Township of Falls, 890 F.2d 611 (3d Cir. 1990); Angle v. Dow, 822 F. Supp. 1530 (S.D. Ala. 1993); Binks v. Orange County Fire Authority, 2003 WL 21019621 (Cal. App. 4 Dist. 2003). 84 Peitsmeyer v. Jackson Tp. Bd. of Trustees, 2003 WL 21940713 (Ohio App. 2003); see Aucoin v. Kennedy, 2006 WL 2700711 (E.D. La. 2006). 85 Burrell v. International Association of Fire Fighters, 628 N.Y.S.2d 355 (A.D. 1995)(charges brought by labor organization against firefighters for violating union constitution by being members of volunteer departments could not be the basis for claim of intentional infliction of emotional distress). 86 Johns v. Nestucca Rural Fire Protection Dist., 2007 WL 429111 (D. Or. 2007). 87 Andrews v. City of Philadelphia, 895 F.2d 1469 (3d Cir. 1990). 88 Landrum v. Board of Comm’rs, 685 So.2d 382 (La. App. 1996). 89 Tinney v. New Haven Firefighters, Local 825, 2008 WL 4780571 (Conn. Super. 2008). 90 Garrison v. Bobbitt, 731 N.E.2d 216 (Ohio App. 1999).

214 — THE RIGHT TO BRING CIVIL LAWSUITS CHAPTER 9

FIREFIGHTERS’ RIGHTS UNDER THE FAIR LABOR STANDARDS ACT

FIREFIGHTERS’ RIGHTS UNDER THE FAIR LABOR STANDARDS ACT — 215 INTRODUCTION The Fair Labor Standards Act (FLSA), generally known as the “minimum wage law,” was initially a product of the Depression years following 1929. Congress passed the FLSA in 1938, in one of a number of “New Deal” legislative packages proposed by the administration of President Franklin Roosevelt. The FLSA is administered by the Wage and Hour Division of the Department of Labor (DOL), which has the authority to enact regulations interpreting the FLSA as well as the ability to bring lawsuits against employers who are not complying with the FLSA. As initially enacted, the Fair Labor Standards Act applied only to private sector employers, and specifically excluded from coverage the United States government, state governments, and political subdivisions of state governments such as cities and counties. The major element of the FLSA was the requirement that all private employers pay a specified minimum wage to employees, with the additional requirement that employers pay such employees who work beyond the specified maximum number of hours per week at the rate of time and one-half their regular hourly wage. The general intent of Congress in passing the Fair Labor Standards Act was threefold. First, Congress’ intent was clearly to provide an equalization of wages among the various states, which at the time of the initial passage of the FLSA had widely varying prevailing wage rates. Second, there existed a “public welfare” element of the FLSA, an element which stands even today as a national legislative declaration that the payment of wages below certain minimum levels is contrary to public policy. Third, the FLSA was designed to spread employment among different employees by placing financial pressure on employers through the overtime pay requirements of the FLSA.1 Given these intents, courts have held that the FLSA should be liberally construed and that the provisions of the Act impose an absolute obligation on employers to pay overtime compensation where it is required by the Act.2 In 1966, Congress extended the FLSA for the first time to certain governmental entities, specifically including schools and hospitals.3 In 1974, Congress again The most amended the FLSA to specifically include within the definition of “employer” significant aspect a “public agency.”4 Congress defined a public agency as including not only the of the FLSA is the requirement United States government, but also state and local governmental bodies. Thus, that employees for the first time the FLSA applied to state and local governments, including fire who work more protection employers with five or more employees.5 This extension of the FLSA than the specified maximum time to state and local governments was later held to be constitutional by the Supreme periods under the Court in Garcia v. San Antonio Metropolitan Transit Authority.6 FLSA must receive Insofar as fire protection employees are concerned, the most significant aspect overtime pay at the rate of time of the FLSA is the requirement that employees who work more than the specified and one-half their maximum time periods under the FLSA must receive overtime pay at the rate of regular rate of time and one-half their regular rate of pay. Determining overtime compensation pay. under the FLSA is a three-step process:

216 — FIREFIGHTERS’ RIGHTS UNDER THE FAIR LABOR STANDARDS ACT • Calculating the employee’s total hours worked; • Determining the applicable overtime threshold; and • Calculating the regular rate of pay in order to establish the employee’s overtime rate.

“HOURS WORKED” DEFINED. The first step under the FLSA in determining whether the employee is entitled to overtime compensation is to determine the “hours worked” by the employee. Under the FLSA, the employee is entitled to be paid at time and one-half the regular rate if the employee works hours in excess of the applicable overtime threshold. For many employees, the overtime threshold is the standard 40-hour week. For most fire protection employees, the overtime threshold is established on the basis of a “work period” of seven days (53-hour threshold) to 28 days (212- hour threshold) in duration. The method of selecting a “work period” pursuant to Section 7(k) of the FLSA will be discussed below. In general, “hours worked” should be considered to be all time spent in physi- “Hours worked” cal or mental exertion, whether burdensome or not, which is controlled or required should be by the employer. Such time includes not only work that an employee is assigned to considered to be perform, but also work that an employee is “suffered or permitted” by the employ- all time spent 7 in physical or er to perform. Under the FLSA, an employer has a strict obligation to exercise its mental exertion, control to ensure that the only work which is performed by employees is that work whether which the employer actually desires the employees to perform.8 burdensome or not, which Most of the problem areas in determining whether an employee is engaged in is controlled or “hours worked” under the FLSA fall into the following categories: required by the employer. Sleep Time. Some of the cases decided under the FLSA concerning firefighters revolve around the “hours worked” status of sleep time. The DOL’s regulations on sleep time provide that sleep time must be included as “hours worked” unless the employees are on duty for more than 24 hours and there is an agreement between the employer and employee to exclude sleep time from “hours worked”: “Where the employer has elected to use the Section 7(k) exemption, sleep and meal time cannot be excluded from compensable hours of work where (1) the employee is on duty for less than 24 hours, which is the general rule applicable to all employees, and (2) where the employee is on duty for exactly 24 hours. * * * “Sleep and meal time may, however, be excluded in the case of fire protection or law enforcement employees who are on duty for more than 24 hours, but only if there is an express or implied agreement between the employer and the employee to exclude such time. In the absence of any such agreement, sleep and meal time will constitute

FIREFIGHTERS’ RIGHTS UNDER THE FAIR LABOR STANDARDS ACT — 217 hours of work. If, on the other hand, the agreement provides for the exclusion of sleep time the amount of such time shall, in no event, exceed eight hours in a 24-hour period.”9 One of the leading sleep time cases is Local 2961, IAFF v. City of Jacksonville. The case began when the Jacksonville, North Carolina Fire Department, in response to the Garcia decision, notified its firefighters that the previously required 24-hour shift would be increased by 15 minutes, and that eight hours of sleep time would be deducted from “hours worked” on each shift. The Department did not seek the agreement of its firefighters before taking these actions and implemented its decision over the protests of 32 of its 51 firefighters who were represented by the International Association of Fire Fighters. The Court found the City’s actions to be in violation of the FLSA and ordered that the firefighters be compensated for overtime that would have been paid had the eight hours of sleep time been included in the “hours worked” calculation. In so holding, the Court ruled that a specific agreement must be reached with employees to exclude sleep time from “hours worked,” and that the necessary agreement could not be implied either from the firefighters’ continuing employment or their failure to file comments at the time the policy was adopted. The Court commented: “To uphold [the City’s] argument would mean placing [the firefighters] in a Catch-22, no-win situation. The firefighters would be forced to agree in order to keep their jobs or quit to show their objection. * * * These facts are hardly indicative of a meeting of the minds or mutual consent necessary for finding an implied contract.”10 An agreement An agreement to exclude sleep time from “hours worked” must be supported to exclude sleep time from “hours by sufficient consideration, with the adequacy of the consideration analyzed under worked” must general contract principles.11 If the consideration is inadequate, the agreement to be supported exclude sleep time from “hours worked” will not be upheld. In one case, a City by sufficient consideration, with obtained an agreement with a firefighters’ association to exclude sleep time from the adequacy of hours worked; in exchange, the City agreed to treat battalion chiefs as non-exempt the consideration employees. However, since the battalion chiefs were not exempt from the FLSA analyzed under general contract as a matter of law, a court found that the City’s half of the bargain was illusory principles. and lacked consideration. In the words of the Court, the City only “promised to do what it already was bound to do.”12 In another case, a court found ineffective an agreement that a firefighter signed to exclude sleep time from “hours worked” where the employer had told the firefighter he would be fired if he did not sign the agreement.13 Under some circumstances, the agreement to exclude sleep time from “hours worked” can be implied. For an implied agreement to exist, the employer must have a policy of not counting sleep time as “hours worked” and the employees must not have asserted any verbal or written protest to the policy within a reasonable period of time of (1) the adoption of the policy or (2) when the employee was hired under the policy.14 If employees protest the policy but continue their

218 — FIREFIGHTERS’ RIGHTS UNDER THE FAIR LABOR STANDARDS ACT employment subsequent to its adoption, their continued employment is evidence – but not necessarily conclusive – of their implied consent to its terms.15 Meal Periods. The DOL’s regulations provide that a “bona fide” meal period need not be counted as “hours worked.”16 To be “bona fide” under the regulation, the meal period must be one in which the employee is “completely relieved from duty.” In interpreting this regulation, courts have held that meal periods need not be compensated “as long as the employee can pursue his or her mealtime adequately and comfortably, is not engaged in the performance of any substantial duties, and does not spend time predominantly for the employer’s benefit.”17 Under this test, a court held that an employer with an established policy that EMS employees would not be disturbed during meal periods except in cases of emergency and which allowed the employees to drive their ambulance to a restaurant for food need not compensate the employees for their meal periods.18 On-Call Status. On occasion, fire protection employees, particularly those assigned to specialized functions such as hazardous waste disposal, are given a beeper and are required to remain within range of the beeper while on off-duty status. The general test for whether on-call time is compensable as “hours worked” under the FLSA can be found in a DOL regulation: “Time spent at home on call may or may not be compensable depending on whether the restrictions placed on the employee preclude using the time for personal pursuits. Where, for example, a firefighter has returned home after the shift with the understanding that he or she is expected to return to work in the event of an emergency in the night, such time is normally not compensable. On the other hand, where the conditions placed on the employee’s activities are so restrictive that the employee cannot use the time effectively for personal pursuits, such time spent on call is compensable.”19 Applying this language, courts balance the following factors: The provisions of any collective bargaining agreement, whether the employee is required to remain on the employer’s premises or at any particular place during the on-call time, the degree to which the employee is able to engage in personal activities, and if the employee’s availability during the on-call time is predominantly for the employer’s or the employee’s benefit.20 Most cases result in a finding that on-call time is not compensable under the FLSA.21 For example, in a case involving arson investigators in the New Orleans Fire Department, a court found that the issuance of pagers to the investigators, placing the investigators on call every fifth day for 48 hours, and imposing a response time of 30 to 45 minutes were not requirements so burdensome as to deprive the employees of the ability to use the off-duty time for personal pursuits, and thus did not require that the on-call time be compensated.22 In another case, a court found that on-call time spent by EMTs was not compensable under the FLSA,

FIREFIGHTERS’ RIGHTS UNDER THE FAIR LABOR STANDARDS ACT — 219 even though the EMTs were required to report to a hospital within seven minutes of the time of receiving a page. In the words of the Court, each on-call case must be considered on its own facts: “We do not think that response time is dispositive. It sets a limit on the distance an EMT may live from the hospital, but a person who lives nearby may have ample time to respond. A person who lived well outside Tomahawk would find a 20-minute response time as constraining as EMTs find a seven-minute time, while someone who lived next door to the hospital would think seven minutes generous. Both EMTs live where they did before they asked for first-out status and do not say that they would have moved farther away if the time were longer; the response time has not affected residential choices. Tomahawk is rural and traffic jams are rare. A seven-minute response limit in Milwaukee would not be compatible with effective use of time for personal pursuits; things are otherwise in the countryside. Plaintiffs do not contend that the seven-minute time interferes with sleeping or the care of children. It is long enough to wake up (or finish changing a diaper) and still get to the hospital on time. Seven minutes may be the lower limit, for it takes time to shake off the cobwebs when awakening and to jump into clothes, but we need not explore the question further.”23 If the restrictions on the employee are more stringent – for example, if the firefighter is required to remain at a specified location and to be prepared to respond immediately to a particular event – the time spent on on-call status will be counted as hours worked. In addition, if the firefighters are actually called back to work from on-call status on a frequent basis, the time spent on call must be counted as hours worked. For example, in one case firefighters working a 24-on, 48-off shift were placed on on-call status on their first day off. Since the firefighters were actually called back to work between three to five times during their on- call day, the Court found that the City’s practices deprived the employees of the ability to use the off-duty time for their personal pursuits and that all 24 hours of the on-call time must be compensated as hours worked.24 If on-call time is counted as hours worked, even time spent sleeping while on- call may be included as hours worked.25 Training Time. Under the FLSA, attendance at training sessions is not counted as time worked only if four distinct criteria are met: • Attendance at the training session is outside of the employee’s regular working hours;26 • Attendance at the session is truly voluntary; • The training session is not directly related to the employee’s job; and

220 — FIREFIGHTERS’ RIGHTS UNDER THE FAIR LABOR STANDARDS ACT • The employee does not perform any productive work during the training session.27 Prior to the Garcia decision, many law enforcement and fire protection employers had conducted training sessions while employees were on off-duty status and did not compensate the employees for the training at the overtime rate. With the advent of the applicability of the FLSA, virtually all such uncompensated training time was eliminated. In response to protests from employers about the elimination of this training time, Section 553.226 of the DOL’s regulations made an exception to the general rule in the limited circumstance where attendance at classes required by law for certification need not be counted as hours worked: “Attendance outside of regular working hours at specialized or follow-up training, which is required by law for certification of public and private sector employees within a particular governmental jurisdiction (e.g., certification of public and private emergency rescue workers) does not constitute compensable hours of work for public employees within that jurisdiction and subordinate jurisdictions.”28 Some question has arisen as to the circumstances under which time spent at a fire academy is compensable as hours worked under the FLSA. Section 553.226 of the DOL’s regulations provide only a general indication that the DOL believes that training time in an academy must be compensated: “(c) Police officers or firefighters, who are in attendance at a police or fire academy or other training facility, are not considered to be on duty during those times when they are not in class or at a training session, if they are free to use such time for personal pursuits. Such free time is not compensable.”29 The DOL has issued letter opinions indicating that there is no exception under the FLSA that would make the time spent in classes or remedial training in an academy not compensable as hours worked.30 However, if the individuals attending the academy are not yet employees in that the employer has not yet ten- dered a job offer, the time spent in the academy is not compensable even though the employer operates the academy and attendance at the academy is a prerequisite to being hired by the employer.31 Travel Time. Ordinarily, travel time from home to work is not compensable under the FLSA as “hours worked.” However, if an employee is called to work in an emergency situation to a location which is a “substantial distance” from his home, the travel time in addition to the regular commuting time is counted as “hours worked.”32 The main questions concerning travel time for fire protection employees under the FLSA occur with respect to travel to another city for training or on special assignment. If necessary travel takes a firefighter away from home overnight, the travel time is clearly counted as “hours worked,” though the DOL carves out an exception to this rule if the employee is a passenger during travel time:

FIREFIGHTERS’ RIGHTS UNDER THE FAIR LABOR STANDARDS ACT — 221 “As an enforcement policy, the [Wage and Hour] Division will not consider as work time that time spent in travel away from home outside regular working hours as a passenger on an airplane, train, boat, bus, or automobile.”33

Paid Leave. The time an employee spends on paid leave during a work period or workweek is not counted as hours worked. For example, if a firefighter working five eight- hour shifts per week uses one day of vacation during the workweek, the firefighter will not be entitled to overtime under the FLSA until the firefighter has worked an additional eight hours beyond his or her normal workweek to reach the 40- hour threshold.34

THE 7(K) EXEMPTION. As has been noted above, there exists a partial exemption from the wage and hour provisions of the Fair Labor Standards Act for certain public safety employees. This exemption, which has become known as the “7(k) exemption,” is based upon Section 207(k) of the FLSA, which states as follows: “No public agency shall be deemed to have violated Subsection (a) with respect to the employment of any employee in fire protection activities or any employee in law enforcement activities (including security personnel in correction institutions) if “(1) In a work period of 28 consecutive days the employee receives for tours of duty which in the aggregate exceed 240 hours; (Effective January 1, 1976, 232 hours; effective January 1, 1977, 216 hours; effective January 1, 1978, ‘exceed 216 hours’ is changed to ‘exceed the lesser (A) 216 hours, or (B) the average number of hours (as determined by the Secretary pursuant to Section 6 (c)(3) of the Fair Labor Standards Amendments of 1974 in tours of duty of employees engaged in such activities in work periods of 28 consecutive days in calendar year 1975’) or “(2) In the case of such an employee to whom a work period of at least seven but less than 28 days applies in his work period the employee receives for tours of duty which in the aggregate exceed a number of hours which bear the same ratio to the number of consecutive days in his work period as 240 hours (effective Jan. 1, 1976, 232 hours; effective Jan. 1, 1977, 216 hours; effective January 1, 1978, as 216 hours (or if lower, the number of hours referred to in clause (B) of paragraph (1) bears to 28 days) bears to 28 days, compensation at a rate not less than one and one-half times the regular rate at which he is employed.” Section 7(k) thus creates alternative work periods varying in lengths from seven to 28 days that can be used in place of the workweek as the basis of mea-

222 — FIREFIGHTERS’ RIGHTS UNDER THE FAIR LABOR STANDARDS ACT surement of “hours worked” for fire protection employees. The purpose behind the 7(k) exemption was described by one court as follows: “In extending the coverage of the FLSA to employees engaged in fire protection activities or law enforcement activities, Congress was aware of the work schedules of these employees, and clearly recognized that some adjustment would have to be made in the usual rules for determining hours of work in their case. Thus Congress departed from the standard ‘hours of work’ concept and adopted an overtime standard keyed to the length of the ‘tour of duty.’ In addition, Congress also adopted a new work period concept which may be used instead of the usual workweek basis for determining overtime hours.”35 Section 7(k) specifically authorized the Secretary of Labor to investigate the actual “hours worked” for employees in fire protection activities, and to establish different maximum allowable “hours worked” than those specified in Section 7(k) based upon the findings of the investigation. In 1983, the DOL issued a regula- tory notice indicating that the maximum “hours worked” in a 28-day cycle for fire protection employees would be 212 hours.36 The following table lists the different alternative work periods now permissible for fire protection employees under a 7(k) exemption:

FIREFIGHTERS’ RIGHTS UNDER THE FAIR LABOR STANDARDS ACT — 223 7(K) WORK PERIODS37

WORK MAXIMUM ALLOWABLE HOURS 7 53 8 61 9 68 10 76 11 83 12 91 13 98 14 106 15 114 16 121 17 129 18 136 19 144 20 151 21 159 22 167 23 174 24 182 25 189 26 197 27 204 28 212

The primary effect of electing a 7(k) exemption is to raise the overtime threshold, thus to allow a fire protection employer to work its employees for longer periods of time than would be the case in a 40-hour workweek without paying the employees at time-and-one-half the regular rate. Since the 7(k) exemption is the fundamental equivalent of a 53-hour workweek, a fire protection employer can maintain most (though not all) of the aspects of the traditional 24-on, 48-off work shift without paying any overtime compensation under the FLSA. In order An employer must take some to claim the 7(k) exemption, the employer must prove that the employees are full- affirmative steps to fledged employees of the fire department.38 “establish” a 7(k) Under the DOL’s rules, an employer must take some affirmative steps to exemption. “establish” a 7(k) exemption.39 There is no set procedure an employer must follow

224 — FIREFIGHTERS’ RIGHTS UNDER THE FAIR LABOR STANDARDS ACT to establish the exemption, and the courts have generally allowed even informal measures to suffice to create the exemption. One court, for example, has allowed the employer to claim the 7(k) exemption even though no collective bargaining agreement, ordinance, or charter provision referred to the exemption; instead, the Court found that the existence of an inter-office memorandum referring to the exemption sufficed to establish the exemption.40

THE 7(K) EXEMPTION AND EMERGENCY MEDICAL SERVICE EMPLOYEES. By far the largest amount of litigation involving firefighters and the 7(k) exemption has occurred over whether an employer can claim the 7(k) exemption for emergency medical service (EMS) employees. Under a DOL regulation, the 7(k) exemption applied to EMS employees if the work performed by the employees is “substantially related” to fire protection or law enforcement work.41 An employer could show that the work of EMS employees is “substantially related” if (1) the employees have received training in the rescue of fire, crime, and accident victims or firefighters or law enforcement personnel injured in the performance of their duties; and (2) the employees are “regularly dispatched” to fires, crime scenes, riots, natural disasters, and accidents. The regulation also states that where EMS employees respond both to fire and law enforcement calls, the applicable 7(k) exemption is the one which applies to the activity in which the employee spends the majority of work time during the work period.42 The DOL’s regulations also contained what became known as the 20% rule – providing that “a person who spends more than 20% of his/her working time in nonexempt activities is not considered to be an employee engaged in fire protection or law enforcement activities.”43 Most courts examining the issue found that since far more than 20% of the call load of EMS employees is unrelated to law enforcement and fire protection services, the 20% rule deprives the employer of the ability to claim any 7(k) exemption for EMS employees.44 This landscape significantly changed in 1999, when Congress amended the FLSA to add a statutory definition of “employee in fire protection activities.” The amendment, now found as Section 203(y) of the FLSA, provides that if an employee is trained in fire suppression, has the legal authority and responsibility to engage in fire suppression, is employed by a fire department, and is engaged in the prevention, control, and extinguishment of fires or response to emergency situations where life, property, or the environment is at risk, the employee is covered by the Section 7(k) exemption. Three federal courts of appeal have essentially held that the amendment means that EMS personnel now need never engage in suppression activities to fall under the Section 7(k) exemption; it is sufficient if they are merely trained to do so, have the legal authority to do so, and respond to emergency situations.45 Two other federal courts of appeal have taken a narrower reading of Section 203(y), finding that the frequency with which emergency medi-

FIREFIGHTERS’ RIGHTS UNDER THE FAIR LABOR STANDARDS ACT — 225 cal personnel actually responded to fires is a relevant consideration in determining whether the Section 7(k) exemption applied.46

DISPATCHERS AND ARSON INVESTIGATORS. Issues similar to the coverage of EMS employees by the Section 207(k) exemption arose as to whether fire department arson investigators are covered by the “fire protection” or the “law enforcement” 7(k) exemptions. The difference between the two exemptions is significant – the fire protection exemption is the rough equivalent of a 53-hour week, while the law enforcement exemption is the rough equivalent of a 43-hour week. Courts considering the issue first concluded that, if arson investigators do not have fire suppression responsibilities, they are covered by the law enforcement and not the fire protection exemption.47 Once again, though, the enactment of Section 203(y) in 1999 abruptly changed the landscape. Courts now find that so long as arson investigators are trained to fight fires, have the authority to do so, and respond to some sort of emergency situations, they can be covered by the fire protection Section 7(k) exemption.48

“REGULAR RATE” DEFINED. Once “hours worked” have been calculated and it has been determined that the firefighter is entitled to overtime, the next question which arises is what the firefighter’s overtime rate is. Many fire protection employers have, either through collective bargaining agreements, memoranda of understanding, or historical practices, long considered an employee’s overtime rate as being time and one-half the hourly rate assigned for the job classification in which the employee works. The FLSA, however, and the regulations promulgated by the Wage and Hour Division of the DOL pursuant to the FLSA, require that the overtime rate be the product of time and one-half the employee’s “regular rate,” a figure which may be very different from the employee’s hourly rate. Under the FLSA, the first step in determining an employee’s regular rate is to determine the employee’s hourly rate. Where employees already work at a specified hourly rate, and the hourly rate is a true hourly rate and not a guise for salary, the hourly rate is considered the starting point for calculating the regular rate. The hourly rate will be considered in the initial calculation of the employee’s “regular rate.” Most firefighters, however, do not receive hourly rates of pay, but instead work on the basis of a wage that is computed on a weekly, monthly, or other basis. In such cases, the DOL’s FLSA regulations provide specific instructions as to how weekly and longer salaries are to be converted into an hourly wage. The basic unit of measurement with respect to an employee’s services under the FLSA is the workweek.49 Thus, the process of converting salaries to an hourly rate must begin with a weekly wage. The Code of Federal Regulations provides a calculation mechanism for employees earning a weekly salary:

226 — FIREFIGHTERS’ RIGHTS UNDER THE FAIR LABOR STANDARDS ACT “If the employee is employed solely on a weekly salary basis, his regular hourly rate of pay, on which time and one-half must be paid, is computed by dividing the salary by the number of hours which the salary is intended to compensate. If an employee is hired at a salary of $182.70 for a 35-hour week, it is understood that this salary is compensation for a regular workweek of 35 hours, the employee’s regular rate of pay is $182.70 divided by 35 hours, or $5.22/hour, and when he works overtime he is entitled to receive $5.22 for each of the first 40 hours and $7.83 (one and one-half times $5.22) for each hour thereafter. If an employee is hired at a salary of $220.80 for a 40-hour week, his regular rate is $5.52.”50 As noted in the regulation set forth above, the remuneration for employment for the workweek divided by the hours the employee worked produces the hourly wage. For employees covered by the Section 7(k) exemption, the hours worked over the course of the Section 7(k) work period (of up to 28 days) is divided by the remuneration for employment over the work period.51 The hourly rate for employees who are paid on a monthly basis is computed in much the same fashion as is the case with employees on weekly schedules. Section 778.113(b) of Part 29 of the Code of Federal Regulations requires that monthly or other rates must be converted to the weekly equivalent, with the weekly wage then being reduced to an hourly rate. The FLSA, however, does not define “regular rate” as merely the employee’s salary. Rather, Section 7(e) of the FLSA specifically provides that the “regular Section 7(e) of the FLSA specifically rate” means “all remuneration for employment paid to, or on behalf of the employ- provides that ee.” Prior to the application of the FLSA to state and local governments, many the “regular fire protection agencies calculated the overtime rate solely on the basis of salary. rate” means “all remuneration for Certain other payments to the employee, including incentive plan payments, spe- employment paid cialty pay, and premium pay, had traditionally been excluded from overtime calcu- to, or on behalf of lations. the employee.” The application of the FLSA dramatically changed these practices. The FLSA requires that “all remuneration” (with certain listed exceptions, which will be discussed below) must be taken into account in making overtime calculations. The following is a partial list of the types of remuneration which must be included in the regular rate for the purposes of calculating overtime rates: • Education incentive payments (but not tuition and book reimbursement payments). • Payments for achieving certain levels of fire protection certification. • Longevity premiums. • Hazardous duty pay. • Specialty pay assignments (e.g., engineer premiums). • “Assignment” or “working out of classification” pay.52

FIREFIGHTERS’ RIGHTS UNDER THE FAIR LABOR STANDARDS ACT — 227 While the FLSA does include in the calculation of the regular rate some items of compensation that have not historically been included by fire protection employers and labor organizations in the calculation of an overtime rate, the FLSA also excludes certain forms of remuneration from the calculation of the regular rate. The following is an abbreviated list of the exclusions from the regular rate contained in Section 7(e) of the FLSA: • Any gifts made by the employer to the employee, including Christmas bonuses. However, Christmas bonuses which are “measured by or dependent on” hours worked, production, or efficiency, must be included in the calculation of “regular rate.” • Payments made for vacation time. • Payments made for holiday time. • Payments made to an employee when an employee is utilizing paid sick leave provided by the employer. • Any expenses, including travel expenses and clothing allowances “incurred by the employee in the furtherance of his employer’s interests and properly reimbursable by the employer.”53 • Payments to retirement plans. • Payments of health and other insurance premiums. • Premium payments for “hours worked” on an overtime basis, on Saturdays, Sundays, holidays, or the employee’s regular days of rest.

THE FLSA AND COLLECTIVE BARGAINING AGREEMENTS.

Collective The FLSA merely sets the minimum requirements for overtime compensation bargaining which must be paid to employees – it does not forbid compensating employees agreements more than the minimum levels specified in the FLSA. Accordingly, collective containing provisions that are bargaining agreements containing provisions that are more generous to employ- more generous to ees than the provisions of the FLSA are valid.54 Where a collective bargaining employees than agreement covering firefighters calls for benefits less generous than the benefits the provisions of the FLSA are valid. provided by the FLSA, the collective bargaining agreement is invalid and the provisions of the FLSA will take precedence over any such conflicting provisions in the agreement.55

COMPENSATORY TIME OFF UNDER THE FLSA. As the FLSA was initially enacted, compensatory time off was not a legal form of compensation for overtime “hours worked” unless the compensatory time off was taken in the same pay period in which it was earned.56 After the Garcia deci-

228 — FIREFIGHTERS’ RIGHTS UNDER THE FAIR LABOR STANDARDS ACT sion, both labor organizations and management representatives in the public sector petitioned Congress to amend the FLSA to allow some form of limited compensatory time off. In 1985, Congress enacted Section 7(o) of the FLSA that, for the first time, allows compensatory time off in lieu of cash compensation for overtime: “(1) Employees of a public agency which is a State, a political subdivision of a State, or an interstate governmental agency may receive, in accordance with this Subsection and in lieu of overtime compensation, compensatory time off at a rate not less than one and one-half hours for each hour of employment for which overtime compensation is required by this Section. “(2) A public agency may provide compensatory time under Paragraph (1) only – “(A) Pursuant to (i) applicable provisions of the collective bargaining agreement, memorandum of understanding, or any other agreement between the public agency and representatives of such employees; or (ii) in the case of employees not covered by Subclause (i), an agreement or understanding arrived at between the employer and employee before the performance of the work; and “(B) If the employee has not accrued compensatory time in excess of the limit applicable to the employee prescribed by Paragraph (3).”57 Perhaps the single most important concept to understand under Section 7(o) of the FLSA is that there exists a distinction between “FLSA compensatory time” and “other compensatory time.” “FLSA compensatory time” is earned in lieu of cash payments for work which is considered to be overtime under the FLSA. “Other compensatory time” is received in payment for work which may be considered to be overtime through a local practice or a collective bargaining agreement, but is not overtime under the FLSA. An example of this difference is instructive. If, in a fire protection agency, the employer has adopted a 28-day work period under the 7(k) exemption, overtime need not be paid until an individual employee has worked more than 212 hours in the work period. However, under a collective bargaining agreement, the same employee may be entitled to receive overtime for working more than eight hours a day, more than 40 hours a week, or more than 160 hours in the same 28-day period. The time that the employee works that is not considered to be “FLSA overtime” may be compensated in cash, in compensatory time off, or in other fashions, but is essentially unregulated by the FLSA. The time that an employee works over the 212-hour threshold in the 28-day period, however, is governed by the FLSA, and if compensatory time off is awarded for such overtime hours worked, such compensatory time must meet the minimum requirements of Section 7(o). Even with Section 7(o), the FLSA remains biased in favor of cash compensation for overtime hours worked. Absent a collective bargaining agreement or local practice to the contrary, under no circumstances is an employee entitled to

FIREFIGHTERS’ RIGHTS UNDER THE FAIR LABOR STANDARDS ACT — 229 insist upon compensatory time off as compensation for overtime hours worked. Similarly, with the very limited exceptions discussed below, an employer cannot insist that an employee take compensatory time off in lieu of cash payment for overtime. Under Section 7(o)(2), the FLSA makes it quite clear that compensatory time off can be granted only pursuant either to applicable provisions of a collective bargaining agreement or other agreement between the public agency and representatives of the employees, or, where there is no representative for the employees, an agreement reached between the employer and the employee.58 The FLSA is similarly strict with regard to the conditions under which compensatory time off may be utilized. The Supreme Court has ruled that an employer has the right to compel an employee to use compensatory time off at a time desired by the employer, not the employee.59 Conversely, under Section 7(o), an employee who has accrued compensatory time off “shall be permitted to use such time off” within a “reasonable period” after making the request. The employer may deny the request for compensatory time off only if to grant the time off would “unduly disrupt” the operations of the employer. In its interpretive regulations of Section 7(o), the Wage and Hour Division of the DOL has made it quite clear that the phrase “unduly disrupt” should not be construed to mean “mere inconvenience to the employer” as being a sufficient basis for the denial of a request for compensatory time off: “For an agency to turn down a request from an employee for compensatory time off requires that it should reasonably in good faith anticipate that it would impose an unreasonable burden on the agency’s ability to provide services of an acceptable quality and quantity for the public during the time requested without the use of the employee’s services.”60 Under the “unduly disrupt” standard, the fact that an employer may have to fill in for an employee desiring to use compensatory time off with another employee on an overtime basis is not a sufficient reason to deny the request to use compensatory time off.61 Under Section 7(o), the maximum amount of compensatory time off which may be accrued by a firefighter is 480 hours. For individuals employed in the public sector who do not qualify as firefighters under the FLSA, the maximum accrual of compensatory time off is 240 hours. Upon termination of employment, an employee is entitled to receive compensation for all accrued but unused compensatory time off at the employee’s then-current regular rate of pay.62

TIMELY PAYMENT OF FLSA OVERTIME. The FLSA does not explicitly require that wages be paid on time. However, a variety of courts have long interpreted the statute to include a prompt payment requirement.63 The relevant DOL interpretation provides that: “There is no requirement in the Act that overtime compensation be paid weekly. The general rule is that overtime compensation earned

230 — FIREFIGHTERS’ RIGHTS UNDER THE FAIR LABOR STANDARDS ACT in a particular workweek must be paid on the regular payday for the period in which such workweek ends. When the correct amount of overtime compensation cannot be determined until some time after the regular pay period, however, the requirements of the Act will be satisfied if the employer pays the excess overtime compensation as soon after the regular pay period as is practicable. Payment may not be delayed for a period longer than is reasonably necessary for the employer to compute and arrange for payment of the amount due and in no event may payment be delayed beyond the next payday after such computation can be made.”64

REMEDIES FOR VIOLATION OF THE FLSA. If an employer violates the provisions of the FLSA, it is liable to the employee for the required overtime compensation that was not paid. In most cases, an employee can claim damages for a period of two years preceding the filing of an FLSA lawsuit; if the employee can prove that the employer’s violations were willful, a three-year statute of limitations applies.65 Even though an employer may be following a long-enacted policy in violating the FLSA, each time an employee receives a paycheck that does not include the overtime required by the law, a new Even though an cause of action is created.66 The FLSA also bars retaliation against those asserting employer may be FLSA claims, and allows damages to employees who establish retaliation.67 following a long- enacted policy in Unless the employer can prove that it was acting both reasonably and in “good violating the FLSA, faith,” it is also liable for “liquidated damages” – an additional amount equal to each time an the unpaid overtime.68 “Good faith” requires that an employer have “an honest employee receives 69 a paycheck that intention to ascertain and follow the dictates of the FLSA.” “Reasonableness” does not include means that an employer will be judged on an objective basis taking into consider- the overtime ation how other prudent employers would have acted under the circumstances.70 required by the law, a new Where an employer lacks good faith and reasonable grounds for believing that its cause of action is conduct did not violate the FLSA, a court is required to award liquidated dam- created. ages.71 Factors which are considered in determining whether an employer was acting reasonably and in good faith include whether the DOL had issued any regulations on the particular topic, the effort the employer made to determine the requirements of the law and to conform its practices to those requirements,72 and the general intent of the employer.73 Liquidated damages are also available when the underlying FLSA claim is that the employer unlawfully retaliated against the employee for filing an FLSA claim.74 If an employer’s FLSA policy is the product of an express ruling of the DOL that precisely matches the employer’s factual situation, Section 259(a) of the FLSA may provide it with complete immunity from damages. This defense is extremely limited, however, with courts finding that “the provision provides refuge for an employer only when it relies upon an administrative opinion that addresses the employer’s specific circumstances.” 75

FIREFIGHTERS’ RIGHTS UNDER THE FAIR LABOR STANDARDS ACT — 231 PROTECTION AGAINST RETALIATION UNDER THE FLSA. It is illegal for an employer to discriminate against an employee who asserts rights under the FLSA.76 A leading case involved the City of Murfreesboro, Tennessee, which unilaterally reduced the hourly wage for its firefighters after the firefighters asserted their right to overtime compensation for meal periods. In It is illegal for an employer ordering the City to retroactively reinstate the higher wage rates, the Court com- to discriminate mented as follows: against an “Actions by public employers to reduce employee pay and employee who asserts rights benefits, taken as the sole and direct result of fiscal pressures created under the FLSA. by the mandated extension of Fair Labor Standards Act benefits, run afoul of the strictures of [the FLSA].”77 The anti-discrimination provisions of the FLSA bar retaliation by “any person” against “any employee” who has filed an FLSA claim. In one case, a fire district disbanded and the suppression duties that had been performed by the district were assumed by the City. When the City refused to hire two district firefighters who had been the leading spokespersons in lodging FLSA claims against the district, the firefighters sued, claiming that the City was illegally retaliating against them for their protected actions under the FLSA. The Court had no difficulty in concluding that the City, though not the employer of the firefighters, was a “person” covered by the FLSA’s anti-retaliation provisions. However, the Court rejected the lawsuit, finding that the firefighters were not “employees” of the City, and that the phrase “any employee” in the anti-retaliation provisions of the FLSA requires that an employer-employee relationship exist at some point in time between the alleged perpetrator and victim of the retaliation.78

THE STATUS OF VOLUNTEERS UNDER THE FLSA. Since the FLSA only applies to “employees,” ordinarily the provisions of the law do not apply to volunteer firefighters. Moreover, in 1985, Congress passed amendments to the FLSA “to make clear that persons performing volunteer services for state and local governments should not be regarded as employees under the FLSA.”79 More difficult questions arise where volunteers are paid some form of compensation – whether in the form of stipends, expense reimbursements, or the repayment of training expenses. The Department of Labor has ruled that volunteers may be paid expenses, reasonable benefits, a nominal fee, or any combination thereof without losing their status as volunteers.80 The DOL has found that a payment of $25 per tour of duty was a “nominal” fee that did not convert volunteers into employees.81 However, if fees grow beyond a modest level, then the individuals will lose their volunteer status. In one case, for example, a court easily found the payment of $8.00 per hour labeled as an “expense reimbursement” was really a disguised salary, and that purportedly volunteer firefighters were in fact employees.82

232 — FIREFIGHTERS’ RIGHTS UNDER THE FAIR LABOR STANDARDS ACT Occasionally, FLSA questions arise where full-time firefighters volunteer to perform different duties for what may or may not be the same employer. Under the FLSA, the term “employee” does not include “any individual who volunteers to perform services for a public agency which is a State, a political subdivision of a State, or an interstate governmental agency, if such services are not the same type of services which the individual is employed to perform for such public agency.”83 Applying these rules, the DOL found that a paid firefighter could not volunteer to work for the same agency.84 Similarly, the DOL has ruled that hours worked by city firefighters for the city police department as tactical EMS medics for the SWAT team must be included in determining the firefighters’ overtime hours worked.85 Conversely, a court found that city firefighters volunteering to work in rescue squads were not engaged in work for the same employer, even though the City for which they worked maintained significant control over the rescue squads. The Court found that the rescue squads were not public entities, and that while the City coordinated the activities of the rescue squads, each squad was a privately- organized, non-profit corporation, with a separate board of directors, that was not administered by individuals responsible to public officials or to the general elector- ate.86 In a different set of circumstances, the DOL considered whether time spent on a fire district’s board of directors should be considered “hours worked” under the FLSA. In an opinion letter on the subject, the DOL concluded that board activities involved the “same type of services” for purposes of the FLSA because they were closely related to the firefighters’ actual duties and responsibilities. Accordingly, the DOL ruled, the firefighters’ board activities could not be performed without compensation.87

FIREFIGHTERS’ RIGHTS UNDER THE FAIR LABOR STANDARDS ACT — 233 NOTES 1 Walling v. Helmerich andf Payne, Inc., 323 U.S. 37 (1944). 2 Walling v. Peave-Wilson Lumber Co., 49 F. Supp. 846 (W.D. La. 1943). 3 See 80 Stat. 831 (1966). 4 See 88 Stat. 58-60; 29 U.S.C. § 203 (e)(c)(2001). 5 See Local 2961, IAFF v. City of Jacksonville, 685 F. Supp. 513 (E.D. N.C. 1987). 6 Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528 (1985). The Garcia decision resolved a conflict between prior Supreme Court decisions on the constitutionality of the extension of the FLSA to local governmental bodies. See National League of Cities v. Usery, 426 U.S. 833 (1976)(holds extension of FLSA to state and local governments unconstitutional); Maryland v. Wirtz, 392 U.S. 183 (1968)(holds extension of FLSA to schools and hospitals constitutional). Courts have refused to apply the Garcia case retroactively. E.g., Brooks v. Lincolnwood, 620 F. Supp. 24 (N.D. Ill. 1985). 7 29 C.F.R. § 785.11 (2001). 8 29 C.F.R. § 785.13. See also The FLSA — A User’s Manual (4th Edition), at page 91-92 (Labor Relations Information System, 2004). 9 29 C.F.R. § 553.222 (2001). 10 Local 2961, IAFF v. City of Jacksonville, 685 F. Supp. 513 (E.D. N.C. 1987). Other sleep time cases include Beebe v. United States, 640 F.2d 1283 (Ct. Cl. 1981)(agreement to lengthened shift cannot be implied from continuing to work for employer); Carter v. City of Charleston, South Carolina, 995 F. Supp. 620 (D. S.C. 1997)(inappropriate to exclude sleep time from hours worked); and IAFF, Local 349 v. City of Rome, 682 F. Supp. 522 (N.D. Ga. 1988)(implied agreement to lengthened shift cannot exist if firefighter has expressed opposition to employer’s actions). 11 Johnson v. City of Columbia, South Carolina, 949 F.2d 127 (4th Cir. 1991). 12 Baker v. City of Pomona, 1 WH Cases 2d 1446 (C.D. Cal. 1993). 13 Johnson v. City of Columbia, South Carolina, 949 F.2d 127 (4th Cir. 1991). 14 Bodie v. City of Columbia, 934 F.2d 561 (4th Cir. 1991); Local 2961, IAFF v. City of Jacksonville, 685 F. Supp. 513 (E.D. N.C. 1987). 15 Rotondo v. City of Georgetown, 869 F. Supp. 369 (D. S.C. 1994). 16 29 C.F.R. § 785.19 (2001). 17 Roy v. County of Lexington, 141 F.3d 533 (4th Cir. 1998); Barefield v. Village of Winnetka, 81 F.3d 704 (7th Cir. 1996); Avery v. City of Talladega, 24 F.3d 1337 (11th Cir. 1994); Henson v. Pulaski County Sheriff’s Dep’t, 6 F.3d 531 (8th Cir. 1993); Lamon v. City of Shawnee, 972 F.2d 1145 (10th Cir. 1992); Hill v. United States, 751 F.2d 810 (6th Cir. 1984); Cloutier v. City of Phenix City, 834 F. Supp. 366 (M.D. Ala. 1993); Gehbauer v. EMAS, Inc., 679 N.E.2d 1374 (Ind. App. 1997)(paramedics); Leahy v. City of Chicago, 785 F. Supp. 724 (N.D. Ill. 1992). 18 Roy v. County of Lexington, 928 F. Supp. 1406 (D. S.C. 1996) vacated on other grounds. 19 29 C.F.R. § 553.22 (2001).

234 — FIREFIGHTERS’ RIGHTS UNDER THE FAIR LABOR STANDARDS ACT 20 See St. Clair v. City of Iola, Kansas, 1 WH Cases 2d 987 (D. Kan. 1993). See generally “Annotation, Call or Waiting Time as Working Time Within the Minimum Wage and Overtime Provisions of the Fair Labor Standards Act,” 3 A.L.R. Fed. 675 (1970 & Supp. 1986). 21 Whitten v. City of Easley, 62 Fed. Appx. 477 (4th Cir. 2003). 22 Pfister v. New Orleans, 1 WH Cases 2d 559 (E.D. La. 1993). See also Largent v. East Alabama Water, Sewer and Fire Protection Dist., 330 F. Supp. 2d 1252 (M.D. Ala. 2004); Jackson v. City Council of Augusta, Georgia, 841 F. Supp. 1214 (S.D. Ga. 1993)(on-call time for firefighters not compensable under FLSA even though they were always on call when off duty; only two actual callbacks to work in six-year period, and many firefighters held second jobs). 23 Dinges v. Sacred Heart St. Mary’s Hospitals, Inc., 164 F.3d 1056 (7th Cir. 1999). See generally Andrews v. Town of Skiatook, Oklahoma, 123 F.3d 1327 (10th Cir. 1997); Berry v. Sonoma County, 30 F.3d 1174 (9th Cir. 1994); Birdwell v. Gadsden, 970 F.2d 802 (11th Cir. 1992); Martin v. Ohio Turnpike Commission, 968 F.2d 606 (6th Cir. 1992); Brock v. El Paso Natural Gas Co., 826 F.2d 369 (5th Cir. 1987); Cross v. Arkansas Forestry Commission, 938 F.2d 912 (8th Cir. 1991); Renfro v. Emporia, 948 F.2d 1529 (10th Cir. 1991); Bright v. Houston Northwest Medical Center Survivor, 934 F.2d 671 (5th Cir. 1991)(en banc); Opinion Letter, Wage and Hour Division, 1999 WL 1788136 (July 12, 1999). 24 Renfro v. City of Emporia, Kansas, 948 F.2d 1529 (10th Cir. 1991). 25 Chelan County Deputy Sheriff’s Association v. Chelan County, 745 P.2d 1 (Wash. 1987). 26 See Wirtz v. Healy, 227 F. Supp. 123 (N.D. Ill. 1964). See generally Annotation: Employee Training Time as Exempt From Minimum Wage and Overtime Requirements of FLSA, 80 A.L.R. Fed. 246 (1986). 27 29 C.F.R. § 785.27 (2001). See Wage and Hour Memorandum No. 90-58, March 29, 1990 (Wage and Hour Division, Department of Labor); Opinion Letter, Wage and Hour Division, Department of Labor, 1986 WL 383426; see Atkins v. General Motors Corp., 701 F.2d 1124 (5th Cir. 1983)(employees who actually performed work during training sessions entitled to compensation). But see Ballou v. General Electric Co., 433 F.2d 109 (1st Cir. 1970)(training time not an integral part of the workday and as such is not compensable). 28 29 C.F.R. § 553.226(b)(1)(2001); see Opinion Letter, Wage and Hour Division, 1999 WL 1788163 (September 30, 1999); Administrative Opinion, August 2, 1989 (Wage and Hour Division, Department of Labor). 29 29 C.F.R. § 553.226(c)(2001). 30 Dep’t of Labor Op., (Jan. 24, 1990)(hours worked by trooper recruits at highway patrol academy are compensable under the FLSA and not subject to any exemption); Dep’t of Labor Op., [6A WHM 99:5008] (BNA) (Sep. 12, 1985)(time spent in remedial training compensable as hours worked). 31 Reich v. Parker Fire Protection Dist., 992 F.2d 1023 (10th Cir. 1993); Ballou v. General Electric Co., 433 F.2d 109 (1st Cir. 1970); Walling v. Jacksonville Terminal Co., 148 F.2d 768 (5th Cir. 1945). 32 See 29 C.F.R. § 785.36 (2001). 33 29 C.F.R. § 785.39 (2001). 34 Under most collective bargaining agreements covering firefighters, such paid leave is counted as hours worked in calculating overtime liability. Where a collective

FIREFIGHTERS’ RIGHTS UNDER THE FAIR LABOR STANDARDS ACT — 235 bargaining agreement has benefits greater than those found in the FLSA, the provisions of the collective bargaining agreement must be followed. 35 Beebe v. United States, 640 F. 2d 1283 (Ct. Cl. 1981). 36 The maximum hours allowable under the overtime thresholds created by the 7(k) exemption were later codified in 29 C.F.R. § 553.230(c)(2001). 37 29 C.F.R. § 553.230(c). 38 Koelker v. Mayor and City Council of Cumberland (Maryland), 599 F. Supp. 2d 624 (D. Md. 2009); Ball v. District of Columbia, 795 F. Supp. 461 (D. D.C. 1992)(firefighters who worked exclusively at hospital operated by employer but who were not members of employer’s fire department are not covered by the 7(k) exemption). 39 Miley v. City of Bogalusa, 2009 WL 3672890 (E.D. La. 2009). 40 Milner v. City of Hazelwood, 165 F.3d 1222 (8th Cir. 1999). 41 Bond v. City of Jackson, 939 F.2d 285 (5th Cir. 1991). 42 29 C.F.R. § 553.215(a)(2001). 43 Initially, courts debated whether the 20% rule applied to EMS employees, eventually concluding that the rule did apply. Spires v. Ben Hill County, 980 F.2d 683 (11th Cir. 1993)(20% rule applies); O’Neal v. Barrow County Board of Commissioners, 980 F.2d 674 (11th Cir. 1983)(20% rule applies); Littlefield v. Town of Old Orchard Beach, 780 F. Supp. 64 (D. Me. 1992)(20% rule applies); Horan v. King County, Washington, 740 F. Supp. 1471 (W.D. Wash. 1990)(20% rule applies). 44 Roy v. County of Lexington, 141 F.3d 533 (4th Cir. 1998). See Alex v. City of Chicago, 29 F.3d 1245 (7th Cir. 1994). See also West v. Anne Arundel County, 137 F.3d 752 (4th Cir. 1998); Justice v. Metropolitan Gov’t of Nashville, 4 F.3d 1387 (6th Cir. 1993); Bond v. City of Jackson, 939 F.2d. 285 (5th Cir. 1991); Opinion Letter, Wage and Hour Division, 1999 WL 1002372 (March 5, 1999); Opinion Letter, Wage and Hour Division, 1999 WL 1002371 (February 26, 1999); Opinion Letter, Wage and Hour Division, 1999 WL 776035 (March 5, 1999). 45 Gonzalez v. City of Deerfield Beach, Fla., 549 F.3d 1331 (11th Cir. 2008); Huff v. DeKalb County, Ga., 516 F.3d 1273 (11th Cir. 2008); McGavock v. City of Water Valley, Miss., 452 F.3d 423 (5th Cir. 2006). 46 Lawrence v. City of Philadelphia, Pa., 527 F.3d 299 (3d Cir. 2008); Cleveland v. City of Los Angeles, 420 F.3d 981 (9th Cir. 2005); see Weaver v. City and County of San Francisco, California, 2006 WL 2411455 (N.D. Cal. 2006); Diaz v. City of Plantation, Fla., 524 F. Supp. 2d 1352 (S.D. Fla. 2006). 47 Lockwood v. Prince George’s County, 217 F.3d 839 (4th Cir. 2000); Carlson v. City of Minneapolis, 925 F.2d 264 (8th Cir. 1991). 48 Cremeens v. City of Montgomery, 661 F. Supp. 2d 1253 (M.D. Ala. 2009) 49 See Shain v. Armour and Company, 50 F. Supp. 907 (D. Ky. 1943). 50 29 C.F.R. § 778.113 (a)(2001). 51 Aaron v. City of Wichita, Kansas, 797 F. Supp. 898 (D. Kan. 1992), reversed on other grounds, 54 F.3d 652 (10th Cir. 1995). 52 Monroe Firefighters Ass’n v. City of Monroe, 2009 WL 586735 (W.D. La. 2009). 53 International Federation of Professional and Technical Engineers, Local 21, AFL-CIO v. Superior Court, 165 P.3d 488 (Cal. 2007).

236 — FIREFIGHTERS’ RIGHTS UNDER THE FAIR LABOR STANDARDS ACT 54 Martino v. Michigan Window Cleaning Co., 327 U.S. 173 (1946); Walling v. Harnischfeger Corp., 325 U.S. 427 (1945); Jewell Ridge Coal Corp. v. Mine Workers, 325 U.S. 161 (1945). 55 Mullins v. Howard County, Maryland, 730 F. Supp. 667 (D. Md. 1990). 56 Brennan v. New Jersey, 364 F. Supp. 156 (D. N.J. 1973). 57 29 U.S.C. § 207(o)(2001). 58 Where there is collective bargaining for firefighters, the necessary agreement for compensatory time off purposes cannot be the product of an interest arbitration decision. Brewer v. City of Waukesha, Wisconsin, 691 F. Supp. 160 (E.D. Wis. 1988)(IAFF’s participation in interest arbitration proceeding does not imply agreement to arbitrator’s award of compulsory compensatory time off). 59 Christensen v. Harris County, Texas, 529 U.S. 576 (2000). 60 29 C.F.R. § 553.25(d)(2001). 61 Debraska v. City of Milwaukee, 131 F. Supp. 2d 1032 (E.D. Wis. 2000); Canney v. Town of Brookline, 42 Lab.Cas. ¶34,169 (D. Mass. 2000). 62 See 29 C.F.R. § 553.27(b)(2001). 63 Rogers v. City of Troy, 148 F.3d 52 (2d Cir. 1998); Conzo v. City of New York, 667 F. Supp. 2d 279 (S.D. N.Y. 2009). 64 29 C.F.R. § 778.106 (2001). 65 29 U.S.C. § 255(a). The Supreme Court has defined “willful” in the context of the FLSA to mean conduct that is not merely negligent, but which indicates “the employer either knew or showed reckless disregard” for the FLSA. McLaughlin v. Richland Shoe Co., 486 U.S. 128 (1988); see Monroe Firefighters Ass’n v. City of Monroe, 2009 WL 916272 (W.D. La. 2009). 66 Knight v. Columbus, Georgia, 19 F.3d 579 (11th Cir. 1994); Aaron v. City of Wichita, Kansas, 797 F. Supp. 898 (D. Kan. 1992), reversed on other grounds, 54 F.3d 652 (10th Cir. 1995). 67 Monroe Firefighters Ass’n v. City of Monroe, 2009 WL 772829 (W.D. La. 2009); Taylor v. City of Gatlinburg, 2008 WL 4057805 (E.D. Tenn. 2008). 68 29 U.S.C. § 260. 69 Renfro v. City of Emporia, 948 F.2d 1529 (10th Cir. 1991). 70 Roy v. County of Lexington, South Carolina, 928 F. Supp. 1406 (D. S.C. 1996). 71 Monroe Firefighters Ass’n v. City of Monroe, 2009 WL 916272 (W.D. La. 2009). 72 Aaron v. Wichita, Kansas, 822 F. Supp. 683 (D. Kan. 1993)(City that relied on law firm’s advice and wrote to the Department of Labor concerning issue acted both reasonably and in good faith and should not be assessed liquidated damages). 73 Bratt v. County of Los Angeles, 912 F.2d 1066 (9th Cir. 1990). 74 Braswell v. City of El Dorado, Arkansas, 187 F.3d 954 (8th Cir. 1999). 75 Schneider v. City of Springfield, 102 F. Supp. 2d 827 (S.D. Ohio 1999). 76 29 U.S.C. § 215(a)(3). 77 Blanton v. City of Murfreesboro, 856 F.2d 731 (6th Cir. 1988). The same results have been reached in a number of cases. See Alexander v. City of Plainview, Texas, 694 F. Supp. 221 (N.D. Tex. 1988); Hill v. City of Greenville, Texas, 696 F.

FIREFIGHTERS’ RIGHTS UNDER THE FAIR LABOR STANDARDS ACT — 237 Supp. 1123 (N.D. Tex. 1988). In 1989, the same court that decided Blanton held that it was not impermissible for a fire department to reduce hours of work (as opposed to reducing pay) in order to avoid liability for overtime under the FLSA. Adams v. City of McMinnville, 890 F.2d 836 (6th Cir. 1989); cf. York v. City of Wichita Falls, Texas, 944 F.2d 236 (5th Cir. 1991)(adjustment of wages or benefits must be intended in retaliation for exercise of rights under FLSA for anti-discrimination provisions of FLSA to apply), opinion on remand finding no violation, 856 F. Supp. 1191 (N.D. Tex. 1994). 78 Glover v. City of North Charleston, South Carolina, 942 F. Supp. 243 (D. S.C. 1996). 79 Krause v. Cherry Hill Fire Dist. 13, 969 F. Supp. 270 (D. N.J. 1997), quoting S.Rep. No. 99-159, at 14 (1985). 80 29 C.F.R. § 553.106(a). See Opinion Letter, Wage and Hour Division, 1998 WL 852817 (June 15, 1998). 81 Opinion Letter, Wage and Hour Division, 1999 WL 1788143 (August 6, 1999). 82 Krause v. Cherry Hill Fire District 13, 969 F. Supp. 270 (D. N.J. 1997). 83 29 U.S.C. § 203(e)(4)(A)(ii). 84 Opinion Letter, Wage and Hour Division, 1999 WL 1788154 (September 3, 1999). 85 Opinion Letter, Wage and Hour Division, 1999 WL 1788145 (August 19, 1999). 86 Benshoff v. City of Virginia Beach, 180 F.3d 136 (4th Cir. 1999). See In re Lower Merion Township Fire Department Labor Standards Litigation, 972 F. Supp. 315 (E.D. Pa. 1997); Conway v. Takoma Park Volunteer Fire Dep’t, Inc., 666 F. Supp. 786 (D. Md. 1987). 87 Opinion Letter, Wage and Hour Division, 1998 WL 852758 (March 3, 1998).

238 — FIREFIGHTERS’ RIGHTS UNDER THE FAIR LABOR STANDARDS ACT CHAPTER 10

WORKERS’ COMPENSATION LAWS AND A SAFE WORKING ENVIRONMENT

WORKERS’ COMPENSATION LAWS AND A SAFE WORKING ENVIRONMENT — 239 WORKERS’ COMPENSATION LAWS. The workers’ compensation system strikes a balance between several competing interests. In exchange for employees being denied the right to sue their employers in court for most injuries suffered on the job, employees are allowed In a workers’ to bring workers’ compensation claims against their employers. In a workers’ compensation compensation case, the employee’s fault in causing his or her own injury is not case, the employee’s fault relevant, and the defenses of contributory negligence and assumption of the risk in causing his or cannot be raised.1 Instead, all that is at issue in a workers’ compensation case is her own injury whether the employee was injured on the job and, if so, the extent of the injury. is not relevant, and the defenses In exchange for this system where their fault in causing an injury is not rel- of contributory evant, employees must give up the higher level of damages that could be obtained negligence and in court in lawsuits against their employers.2 Workers’ compensation systems assumption of the classify most injuries on a “scheduled” basis, where, after the degree of injury is risk cannot be raised. assessed, one merely consults a rate schedule to determine what the benefits are for the injury. Compensation for those injuries that are “unscheduled” is usually measured in terms of the percentage of wage earning capacity the employee has lost as a result of the injury. With either a scheduled or an unscheduled injury, the relative level of benefits is low compared to those obtainable in civil litigation. For example, a firefighter in Oregon who loses an eye is entitled to $24,816.60, a figure which is substantially lower than the damages a jury would likely award for the same injury. Workers’ compensation cases come in two varieties – (1) injury claims and (2) claims based on a disease. Of the two, injury claims are easier to establish. All that is generally at issue in an injury claim is the extent of the employee’s injury, since the issue of whether the injury was suffered on or off the job is usually straightfor- ward.3 Injury claims can occur either as a result of a new condition suffered by the firefighter or as the result of the “aggravation” of a pre-existing condition.4 Disease claims are by far the more complicated type of workers’ compensation cases, since it is difficult to determine whether many diseases are caused by on-the-job activities or exposure. The courts seem to have settled on two types of theories for proving on-the-job causation in disease cases. The first theory requires some direct proof of causation, much the same as is the case in injury claim cases.5 The second theory, known as the “exposure” theory, requires a workers’ compensation claimant to show three things in order to establish the necessary link to on-the-job causation: (1) A prolonged exposure to a condition; (2) a causal relationship between the exposure and the disease; and (3) a workplace in which the hazard posed by the condition is greater than that to which the general public is exposed.6 Usually, a disease does not need to be entirely caused by on-the-job conditions to be compensable under a workers’ compensation system; it is sufficient if the on-the-job conditions were a substantial cause of the disease.7 What follows is a description of some of the more frequently occurring types of workers’ compensation cases involving fire protection employees.

240 — WORKERS’ COMPENSATION LAWS AND A SAFE WORKING ENVIRONMENT HEART DISEASE CLAIMS Some of the most troubling workers’ compensation cases involving fire protection employees are those involving heart conditions. The causation of a particular heart condition is always difficult to establish, since a variety of factors ranging from on-the-job stressors and specific strenuous events on the job8 to lifestyle habits may all play a role in causing or aggravating the condition.9 The majority of states have responded to the high incidence of heart conditions among fire protection employees by passing “presumptive causation” laws, which relieve a firefighter suffering from a heart condition of all or most of the burden of showing the condition was caused by on-the-job factors.10 With a presumptive causation law, the underlying condition is presumed to be caused by the job, and unless the employer submits sufficient evidence to overcome the presumption, the illness or injury will be held to be job-related.11 The employer’s task in rebutting the presumption of causation is not an easy one. One court, summing up the view of others, described as “onerous” the employer’s burden of proof.12 In some states, this means the employer must show both that the firefighter’s disease was not caused by his employment, and that there was a non-work-related cause of the disease.13 Presumptive causation laws are constitutional, and do not violate the due process rights of employers.14 In Uniformed Firefighters Association v. Beekman, the Court described the theory behind “presumptive causation” statutes as not only that “heart conditions are an occupational hazard for police officers and firemen, but also that this is a unique condition which generally is not the result of any particular incident but involves a gradual and progressive degeneration as a result of the continuous stress and strain of the job.”15 Oregon’s statute is an example of a presumptive causation law: “Death, disability or impairment of health of firefighters of any political division who have completed five or more years of employment as firefighters, caused by any disease of the lungs or respiratory tract, hypertension or cardiovascular-renal disease, and resulting from their employment as firefighters is an ‘occupational disease.’ Any condition or impairment of health arising under this subsection shall be presumed to result from a firefighter’s employment. However, any such firefighter must have taken a physical examination upon becom- ing a firefighter, or subsequently thereto, which failed to reveal any evidence of such condition or impairment of health which preexisted employment. Denial of a claim for any condition or impairment of health arising under this subsection must be on the basis of clear and convincing medical evidence that the cause of the condition or impairment is unrelated to the firefighter’s employment.”16 Where presumptive causation statutes have been enacted, they have been applied to cover a wide variety of cardiac problems suffered by fire protection employees, including heart attacks,17 arrhythmia,18 aortic valve disease,19 conges-

WORKERS’ COMPENSATION LAWS AND A SAFE WORKING ENVIRONMENT — 241 tive heart failure,20 ischemic coronary artery disease,21 cardiomyopathy,22 abnormally slow heartbeat caused by vagus nerve disorder,23 angina,24 and arteriosclerosis.25 The presumption can also apply to cancers that, though they do not attack the lungs themselves, give rise to lung cancer.26 Whether particular conditions are covered, however, will depend upon the particular wording of the presumptive causation statute.27 In cases involving presumptive causation, the starting point is a conclusion that the heart disease is job-related.28 From that point, it is incumbent upon the employer to prove that the firefighter’s condition was not caused by his or her employment – a departure from the general rule in workers’ compensation cases that the employee is required to prove that the condition is caused by employment.29 Evidence sufficient to overcome the presumption includes evidence of The presumption a pre-existing coronary condition such as atherosclerosis,30 the smoking habits of causation is not 31 32 overcome merely of the firefighter, a family history of heart disease, or an overweight condi- by evidence that tion.33 The presumption of causation is not overcome merely by evidence that the firefighter has the firefighter has other risk factors for coronary disease; instead, the employer other risk factors for coronary must establish by medical evidence that the other risk factors more likely than not disease. caused the disease.34 Most presumptive causation rules apply not just to conditions that were first incurred after the individual became a firefighter, but also to conditions which were present before the individual became a firefighter and which were subsequently aggravated by on-the-job events. For example, in one case, the employer presented evidence that a firefighter’s coronary artery disease was due to his high blood pressure, high cholesterol, heavy smoking and a family history of premature heart attacks. While a court acknowledged that the employer’s evidence was convincing enough to rebut the presumption that the firefighter’s job caused his coronary artery disease, the Court nonetheless found the firefighter’s condition to be compensable under the workers’ compensation laws because the employer did not rebut the firefighter’s claim that his job aggravated his condition.35 Many states have enacted modified presumptive causation statutes that apply to diseases from which firefighters may suffer other than those which are heart and lung related.36 For example, a North Dakota law calls for presumptive causation to apply to any “occupational cancer” as well as “lung or respiratory disease, hypertension, heart disease, or exposure to infectious disease,”37 and a Pennsylvania statute covers Hepatitis-B.38 Under a similar California statute, the firefighter is only required to show a “reasonable link” between the cancer and the job; evidence of such a link can consist of a showing that the firefighter was exposed to carcinogens on the job or evidence of a statistically abnormal rate of incidence in the cancer among firefighters. Once the “reasonable link” has been shown, the cancer is presumed to be occupationally caused.39 Presumptive causation statutes have been applied to a wide range of fire protection employees including not only firefighters, but also those involved in any aspect of fire protection work,40 such as fire inspectors.41 In some states, it may be necessary for a firefighter entering service to undergo a “base-line” physical exami-

242 — WORKERS’ COMPENSATION LAWS AND A SAFE WORKING ENVIRONMENT nation with the employer establishing freedom from heart disease in order to later take advantage of the statutory presumption.42 In other states, the presumption only applies if the symptoms first arise after the firefighter has completed a specified number of years of service.43 If a firefighter fails to establish an entitlement to a presumptive causation law, the firefighter can still obtain workers’ compensation benefits if she proves that, more probably than not, her condition was caused by the job.44 In some states, the presumption even applies to conditions first appearing after the firefighter has retired, provided that the firefighter can show that the condition developed during employment.45 As one court commented, “it is clear that it was in recognition of the special hazards and stresses placed upon firemen during their career that the legislature enacted the statutory presumption. The interpretation which found [the firefighter] entitled to the presumption because he was a duly-employed member of the Fire Department until such time as he was officially retired appears more closely aligned with the legislative intent than the result urged by the City.”46 The presumptive causation rule is just that, a rule that creates a presumption that the condition was caused by the job.47 With sufficient evidence, an employer can rebut the presumption.48 In one case, for example, the employer showed that the firefighter suffered from atherosclerosis, a disease in which plaque gradually accumulates in the arteries of the heart and which can progress more rapidly when certain risk factors are present. The employer’s doctor – the only physician to testify – opined that the firefighter’s heart disease was caused by the presence of multiple risk factors, including a family history of early heart disease, hypertension, elevated levels of cholesterol and heavy cigarette smoking. A court found evidence sufficient to rebut the presumption that the firefighter’s heart disease was caused by the job when the doctor testified that, within a reasonable degree of medical certainty, neither job-related stress, the performance of duty as a firefighter, nor an incident where the firefighter allegedly inhaled smoke while fighting a fire, contributed to or caused his disability.49

PSYCHOLOGICAL AND STRESS CLAIMS. Numerous studies have shown that the job of a firefighter causes elevated stress levels.50 This fact alone, however, does not give fire protection employees carte blanche to file stress-related disability claims. Instead, courts have analyzed the stress claims of fire protection employees in much the same way as they analyze questions of whether diseases were caused by on-the-job exposure.51 Post-traumatic stress disorder, for example, is usually analyzed as an occupational disease.52 There are currently three lines of thought as to what standards a fire protection employee must meet in order to be successful in a stress-related claim. The first of the three standards, which is followed by the greatest number of states, requires that the employee prove that the stress “must have resulted from a situation of greater dimensions than the day-to-day emotional strain and tension which

WORKERS’ COMPENSATION LAWS AND A SAFE WORKING ENVIRONMENT — 243 all employees [in the same occupation] must experience.”53 The second standard uses fundamentally the same test, but compares the stress suffered by the employee to the stress of all employees, not just other fire protection employees.54 A small minority of courts follow the third standard, and deny all compensation for stress claims except in cases where the employee’s stress resulted directly from a physical injury suffered on the job.55 On occasion, the stress disability that is suffered by a fire protection employee is associated with an immediate trauma rather than long-term exposure to stressful situations. In such situations, courts analyze stress from the injury model, rather than using the disease model described above. Under the injury model, the only question becomes whether the employee suffered a significantly stressful situation while on the job, and if so, whether the stressful situation was the cause of an emotional disorder.

HEARING LOSS CLAIMS. Fire protection employees are exposed to significant levels of noise on a regular basis. In addition to the city and motor vehicle noises to which they have daily exposure, high-pitched sirens and the low rumble of diesel motors on the vehicles used by fire departments can contribute to significant hearing loss. Though the general rule in workers’ compensation cases is that claims for compensation must be made within a specific time period after the employee actually encounters the disabling condition, exceptions to this rule have been made in the case of hearing deficits, where the time period for filing a claim is deemed to begin running when the employee first learns that hearing loss is due to on-the-job exposure.56

PULMONARY AND RESPIRATORY DISEASE CLAIMS. In most states, the presumptive causation statutes that apply to heart conditions also apply to pulmonary or respiratory diseases. An example of a presumptive causation statute applying to respiratory diseases can be found in Michigan: “In the case of a member of * * * a full paid fire department, * * * personal injury shall be construed to include respiratory and heart diseases or illnesses * * *. Such respiratory and heart diseases or illnesses resulting therefrom are deemed to arise out of and in the course of employment in the absence of evidence to the contrary.”57 The power of presumptive causation statutes with respect to lung diseases can be seen in a 2001 decision from the North Dakota Supreme Court. In the case, not only did the disabled firefighter smoke, but an expert witness testified that the work environment was not a causative factor in the firefighter’s chronic pulmonary obstructive disease. The Court rejected the expert’s testimony and awarded the firefighter workers’ compensation benefits, holding that “the Legislature’s enact-

244 — WORKERS’ COMPENSATION LAWS AND A SAFE WORKING ENVIRONMENT ment of the firefighter presumption represents a legislatively adopted premise that smoke exposure of firefighters causes lung disease. The expert, by deciding regular smoke exposure of a firefighter was not a substantial contributing factor to that firefighter’s lung disease, was denying the underlying premise that served as the basis for the legislative enactment of the firefighter presumption.”58 In the absence of presumptive causation statutes, claims brought by firefighters for respiratory illness are decided on a case-by-case basis. In one case, a court denied the claim of the widow of a firefighter for compensation when the examining physicians found that although a pulmonary condition directly traceable to massive smoke inhalation was a secondary cause of death, the claim was not compensable because the primary cause of death was a gastrointestinal hemorrhage.59 In another case decided by the same court five years later, a claim for compensation for pneumonia and lung abscesses was approved even though the firefighter suffered from a pre-existing respiratory condition, with the Court reasoning that the presence of the firefighter at a fire scene had aggravated the pre-existing condition.60

HEPATITIS CLAIMS. Many states have amended their presumptive causation rules to include hepatitis claims.61 In states where there is no statutory presumption of causation relating to hepatitis, firefighters have had little luck in filing successful workers’ compensation claims for encountering the disease.62 For example, in one case, an emergency medical technician was denied workers’ compensation coverage because he failed to show that he could not have contracted his Hepatitis-B outside of his employment.63 In another case, a firefighter who contracted Hepatitis-B was denied compensation in spite of a showing that he had been repeatedly exposed to the blood and body fluids of others while on the job, with the Court reasoning that the firefighter had failed to specifically show that any of the blood and body fluids to which he was exposed were contaminated with the hepatitis virus.64

CANCER CLAIMS. Because of the difficulty of proving the causes of cancer, many of the presumptive causation statutes that cover heart conditions also apply to cancer. There are several forms of such statutes, including outright grants of compensability in all cases of cancer and prima facie presumptions (as opposed to outright grants) of compensability. Another form of such a statute, as illustrated by the following passage from California’s law, requires the firefighter to prove that he was exposed to a carcinogen while on the job and that the carcinogen is “reasonably linked” to the cancer suffered by the firefighter: “In the case of [firefighters], the term ‘injury’ as used in this division includes cancer which develops or manifests itself during a period

WORKERS’ COMPENSATION LAWS AND A SAFE WORKING ENVIRONMENT — 245 while the member is in the service of the department or unit, if the member demonstrates that he or she was exposed * * * to a known carcinogen as defined by the International Agency for Research on Cancer, or as defined by the director, and that the carcinogen is reasonably linked to the disabling cancer.”65 Prevailing under such “reasonable link” statutes may be difficult if the cancer has spread or metastasized and it is impossible to pinpoint the originating cancer tumor. In such cases, it may be impossible to draw a “reasonable link” between exposure to a carcinogen and the cancer because of the lack of information about In the absence 66 of presumptive the primary cancer. causation statutes, In the absence of presumptive causation statutes, proving the compensability proving the of cancer is often a difficult proposition.67 An example of a successful workers’ compensability of cancer is compensation claim for cancer is Passe v. City of St. Louis. In that case, the widow often a difficult of a firefighter who died from throat cancer proved the following in convincing a proposition. court to uphold her claim: • That the Saint Louis Fire Department has a policy that whenever possible their employees should fight fires from the inside out. • That the firefighter had fought hundreds of fires during his career, including many involving heavy smoke, debris and chemicals. • That the firefighter often coughed up black debris after fighting fires. • That the firefighter’s physician testified that fighting fires was a direct contributing factor in the firefighter’s death.68

INJURIES SUFFERED WHILE TRAVELING OR COMMUTING. In general, injuries that are suffered while traveling to and from work are not compensable.69 However, an exception to the general rule of non-compensability of such injuries exists if the employer benefits from the presence of the employee while the employee is commuting. The general tests for whether an off-duty injury suffered by a fire protection employee while commuting is compensable are whether (1) an express policy or routine practice of commuting while on duty exists; (2) the employee may be disciplined for failing to render the services; (3) the employee was in uniform at the time of the incident; and (4) the employer provides changing facilities for employees.70

246 — WORKERS’ COMPENSATION LAWS AND A SAFE WORKING ENVIRONMENT OFF-DUTY INJURIES AND INJURIES OCCURRING DURING DOWN TIME WHILE AT THE FIRE STATION. In general, injuries that have been incurred while off duty are usually not compensable under workers’ compensation or disability laws. However, an exception to this general rule exists where the off-duty fire protection employee was injured while taking action which directly benefited the employer. Thus, a court held compensable a claim for compensation for a heart attack suffered by a firefighter while marching in a parade as part of a fire department’s band.71 Another case upheld a workers’ compensation claim filed by a volunteer fire chief who suffered a heart attack after carrying boxes in preparation for the fire department’s annual dinner celebration.72 Following the same line of thought but reaching a different result, another court rejected a workers’ compensation claim from a firefighter who was injured in an intoxicated altercation with a firefighter from a different fire company; the injuries occurred at a party held after a parade in which the firefighters participated, which was an official function. The Court found that the injury arose out of the firefighter’s participation in a social event, not work-related activities.73 Similarly, another court found that a firefighter injured in a “water fight tournament” at a fund-raiser for a local firefighter’s association was injured at a “voluntary recreational activity” and was not entitled to workers’ compensation benefits.74 Analogously, a court found that injuries suffered by a firefighter while participating in an employer-sponsored “Fun Day” at a local amusement park were not sufficiently job-related to be compensable.75 From time to time, employers have taken the position that a portion of a 24- hour shift worked by a firefighter is “off-duty” time and injuries suffered during that time are not compensable under workers’ compensation laws. The courts have rejected most such arguments.76 In a representative case involving a firefighter injured while playing basketball during the evening hours of his 24-hour shift, the Court explained when such injuries are compensable: “Recreational or social activities are within the course of employment when (1) they occur on the premises during a lunch or recreation period as a regular incident of the employment; or (2) the employer, by expressly or impliedly requiring participation, or by making the activity part of the services of an employee, brings the activity within the orbit of the employment; or (3) the employer derives substantial direct benefit from the activity beyond the intangible value of improvement in employee health and morale that is common to all kinds of recreation and social life.

“The accident in this case occurred on the premises during the hours of employment * * * It has been indicated that where the employee is required to remain in a particular place with no duties to perform, compensation may be awarded for an injury suffered in any

WORKERS’ COMPENSATION LAWS AND A SAFE WORKING ENVIRONMENT — 247 reasonable recreational activity that the employee may engage in while waiting.”77 A similar result was reached in the case of a firefighter who was seriously injured while repairing his personal vehicle in his fire station’s docking bay during on-duty “unstructured time,” when a jack supporting the vehicle failed and the car fell upon him. A court acknowledged that “purely personal activities are outside the scope of employment and injuries which occur while engaged in such activities are not compensable.” However, the Court ordered the payment of workers’ compensation benefits to the firefighter, reasoning: “Where, as here, an employee’s job entails intermittent periods of enforced waiting, the employee is free to indulge in any reasonable activity during the waiting period. It was not unusual for firefighters to repair their personal vehicles during unstructured on-duty time at the firehouse, and such repairs were tolerated by department officials. The Board was entitled to conclude that this activity, which occurred in the course of his employment while on duty, was reasonable and sufficiently work-related to have arisen out of his employment.”78

TOTAL DISABILITY AND THE AVAILABILITY OF LIGHT WORK.

As a general rule Though some exceptions exist, as a general rule a fire protection employee a fire protection is not entitled to complete disability benefits if there is work available within the employee is agency that the employee is capable of performing.79 Even if the work is “light not entitled to complete disability duty” in nature, the employee may have an obligation to accept the work in lieu of benefits if there continuing to receive disability benefits. Conversely, the fact that an employer is is work available unable to locate light-duty work for an injured firefighter is conclusive evidence of within the agency 80 that the employee the complete disability of the firefighter. is capable of performing. SOCIAL SECURITY BENEFITS. Severely disabled firefighters may be entitled to Social Security disability benefits. The Social Security Act defines the term “disability” as the “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which...has lasted or can be expected to last for a continuous period of not less than 12 months.” The Act also provides that an individual will be deemed disabled “only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy.”81 Because these standards are so difficult to meet and require such a high level of disability, it is rare to encounter a court case granting a disabled firefighter Social Security benefits.82

248 — WORKERS’ COMPENSATION LAWS AND A SAFE WORKING ENVIRONMENT FEDERAL DEATH BENEFITS. Federal law grants death benefits to the families of “public safety officers” (a term that includes firefighters) if the public safety officer is killed or disabled in the line of duty. The Public Safety Officers’ Benefits Act (PSOBA), enacted in 1968, provides that whenever a public safety officer has died as the “direct and proximate result of a personal injury sustained in the line of duty,” the federal government must pay $100,000 to the family of the officer. The amount of the federal death benefit has increased over time and is now linked with the cost of living. As of January 1, 2010, it was valued at $311,810. The PSOBA program is administered by the Bureau of Justice Administration (BJA). The history of the PSOBA is replete with resistance by the Department of Justice to a broad reading of the law, a resistance that has had to have been overcome by the courts and Congress. When the PSOBA was first being considered, the Department of Justice lobbied to limit the scope of “line of duty.” As the DOJ argued before Congress: “We believe that accidental death is a hazard of many types of employment and we are aware of no rationale that would suggest Federal intervention in these situations. Providing survivor benefits for those who are killed accidentally should be the responsibility of the employer in the same manner as other employment benefits.”83 As one court commented, “the Department of Justice lost that battle.”84 Congress declined to limit the scope of the PSOBA to exclude accidental deaths, and instead required only that a public safety officer incur fatal injuries sustained in the line of duty. Congress authorized the BJA to establish “rules, regulations, and procedures as may be necessary to carry out the purposes of the PSOBA.”85 Pursuant to that authority, The BJA then issued a regulation limiting benefits to the families of employees who were killed in the “course of controlling or reducing crime, enforcing the criminal law, or suppressing fires.”86 A court then struck down this regulation, finding the limited construction of “line of duty” to be inconsistent with the Congressional intent behind the PSOBA.87 In emphasizing that a broad reading should be given to “line of duty” and overturning a BJA decision denying benefits to the family of a public safety officer killed while driving home, a court emphasized that the PSOBA should be liberally construed in favor of allowing benefits: “The grave physical risks facing public safety officers are immi- nent whenever an officer is under a duty to take actions to protect the public. For officers who are under such a duty at all times, the potential for physical risk pervades their daily lives, both on and off the clock. Placing officers under such a continuous duty with its inherent risks confers a significant benefit on society. In exchange, the PSOBA rewards officers with the peace of mind that their survivors shall be provided for should the risks ever prove fatal. The PSOBA benefits also, to some extent, compensate the survivors for the loss of their spouse or parent to a line of duty death.”88

WORKERS’ COMPENSATION LAWS AND A SAFE WORKING ENVIRONMENT — 249 In some states, benefits may also be available from the state government for firefighters disabled in the line of duty, or for the families of firefighters killed in the line of duty.89 Some states also have statutes that require employers to continue health insurance for firefighters who suffer certain types of compensable workers’ compensation injuries.90 Benefits such as these are also a common feature of collective bargaining agreements and/or pension systems.

STATE OCCUPATIONAL SAFETY LAWS APPLICABLE TO FIRE PROTECTION EMPLOYEES. The federal Occupational Safety and Health Act, known colloquially as OSHA, requires every employer to furnish “employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm” to employees.91 However, OSHA exempts from its coverage state governments and political subdivisions of state governments such as cities and counties.92 Thus, in order to avail themselves of a tool to ensure a safe working environment, fire protection employees have turned to state and local safety laws. Thirty-six of the 50 states have passed statutes which are patterned after OSHA, and which are applicable to state and local governments. Oregon’s Safe Employment Act is typical of such laws. The Act begins by imposing on all employers the obligation to take “every” measure which is reasonably necessary to protect the life, safety, and health of employees: “Every employer shall furnish employment and a place of employment which are safe and healthful for employees therein, and shall furnish and use such devices and safeguards, and shall adopt and use such practices, means, methods, operations and processes as are reasonably necessary to render such employment and place of employment safe and healthful, and shall do every other thing reasonably necessary to protect the life, safety and health of such employees.”93 The Oregon Safe Employment Act grants the director of the agency administering the Act broad powers to investigate all safety complaints, including the right to make surprise visits to work sites, and to issue citations upon finding safety violations: “Whenever the director has reason to believe, after an inspection or investigation, that any employment or place of employment is unsafe or detrimental to health or that the practices, means, methods, operations or processes employed or used in connection therewith are unsafe or detrimental to health, or do not afford adequate protection to the life, safety and health of the employees therein, the director shall issue such citation and order relative thereto as may be necessary to render such employment or place of employment safe and protect the life, safety and health of employees therein.”94

250 — WORKERS’ COMPENSATION LAWS AND A SAFE WORKING ENVIRONMENT The Oregon law also grants the director the authority to order changes, Given the fact improvements, and repairs in equipment used on work sites: that such safe “The director may in the order direct that such additions, repairs, employment improvements or changes be made, and such devices and safeguards laws also usually provide for be furnished, provided and used, as are reasonably required to render civil penalties such employment or place of employment safe and healthful, in the for each safety manner and within the time specified in the order.”95 violation, the laws can provide Where such safety employment practices statutes exist, they can be a powerful a significant tool when used by fire protection employees seeking to improve the safety of the incentive for equipment they are provided, or of their general work site. Given the fact that such fire protection employers to safe employment laws also usually provide for civil penalties for each safety viola- provide the safest tion,96 the laws can provide a significant incentive for fire protection employers to possible working provide the safest possible working environment. environment. Laws requiring that law enforcement employers furnish safe working environments for their employees have been enacted in the following states: Alabama, Alaska, Arizona, Arkansas, California, Connecticut, Georgia, Hawaii, Idaho, Illinois, Indiana, Iowa, Kentucky, Louisiana, Maryland, Michigan, Minnesota, Montana, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Carolina, Ohio, Oklahoma, Oregon, South Carolina, Tennessee, Texas, Utah, Vermont, Virginia, Washington, West Virginia, and Wyoming.97

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NOTES 1 The only circumstances in which the employee’s fault is relevant in a workers’ compensation case is where the evidence established that the employee deliberately injured himself. 2 Hisel v. Los Angeles County, 238 Cal.Rptr. 678 (Cal. App. 1987)(bar against bringing lawsuit against employer extends even to estate of firefighter killed while on duty). 3 Hughes v. Firemen’s Relief & Pension Fund, 333 S.W.2d 716 (Ark. 1960)(injury suffered during off-duty fight held not compensable); Kellan v. Firemen’s Pension Fund, 551 N.E.2d 264 (Ill. App. 1990)(back condition resulting from lifting incidents ruled compensable); Pulley v. City of Wilson, 674 S.E.2d 478 (N.C. App. 2009)(injury suffered during walk-through in preparation for “combat course” exercise ruled compensable injury). 4 Ridge Road Fire Dist. v. Schiano, 67 A.D.3d 1342 (N.Y. A.D. 4 Dept. 2009); Miller v. City of New Orleans, 665 So.2d 1293 (La. App. 1995). 5 Bridgett v. Montgomery County, 975 A.2d 231 (Md. App. 2009). 6 See generally Annotation, Determination Whether Firefighter’s Disability is Service-Connected for Disability Pension Purposes, 7 American Law Reports 4th 799 (1981). 7 Monroe Firefighters Ass’n v. City of Monroe, 2009 WL 772829 (W.D. La. 2009). 8 Fattore v. Police & Firemen’s Retirement System, 194 A.2d 363 (N.J. Super. Ct. A.D. 1963)(specific incidents of lifting heavy hose sections). 9 Swanson v. City of Saint Paul, 526 N.W.2d 366 (Minn. 1995); McCarthy v. Board of Trustees, 462 S.W.2d 827 (Mo. App. 1970). 10 Monroe Firefighters Ass’n v. City of Monroe, 2009 WL 772829 (W.D. La. 2009). 11 Byous v. Missouri Local Government Employees Retirement System Bd. of Trustees, 157 S.W.3d 740 (Mo. App. 2005); Repash v. W.C.A.B. (City of Philadelphia), 961 A.2d 227 (Pa. Cmwlth. 2008). 12 Devall v. Baton Rouge Fire Dept., 979 So.2d 500 (La. App. 2007). 13 Metropolitan Washington Airports Authority v. Lusby, 585 S.E.2d 318 (Va. App. 2003). 14 City of Edmond v. Vernon, 210 P.3d 860 (Okla. App. 2008). 15 Uniformed Firefighters Ass’n v. Beekman, 420 N.E.2d 938 (N.Y. 1981). 16 Or. Rev. Stat. § 656.802(4)(1999) The presumption that heart disease is caused by the job can be overcome by a showing that other factors have caused the disease. Vecchiarello v. Board of Trustees, 453 N.Y.S.2d 971 (N.Y. Sup. Ct. 1982). 17 Caldwell v. Division of Retirement, 372 So.2d 438 (Fla. 1979)(in spite of conflicting evidence that firefighter’s heart attack due to arteriosclerosis, compensation claim approved). 18 Vallelungo v. City of New Orleans, 673 So.2d 1292 (La. App. 1996). 19 Miller v. Workers’ Compensation Appeals Board, 266 Cal.Rptr. 908 (Cal. App. 1990).

252 — WORKERS’ COMPENSATION LAWS AND A SAFE WORKING ENVIRONMENT 20 Morgan v. Town of East Haven, 546 A.2d 243 (Conn. 1988)(though compensable for firefighter, benefits did not pass to estate upon firefighter’s death); Rapp v. City of New Orleans, 681 So.2d 433 (La. App. 1996). 21 Godfrey v. City of Portsmouth Fire Department, 2001 WL 345800 (Va. App. 2001). 22 Town of Purcellville v. Bromser-Kloeden, 544 S.E.2d 381 (Va. App. 2001). 23 McCoy v. City of Shreveport Fire Dept., 649 So.2d 103 (La. App. 1995). 24 Cunningham v. Manchester Fire Dept., 525 A.2d 714 (N.H. 1987). Angina is not covered under Florida’s presumptive causation rules. Bivens v. City of Lakeland, 993 So.2d 1100 (Fla. App. 2008). 25 Lovellette v. Mayor & City Council of Baltimore, 465 A.2d 1141 (Md. 1983). 26 City of Philadelphia v. W.C.A.B. (Rilling), 827 A.2d 1258 (Pa. Cmwlth. 2003). 27 Bivens v. City of Lakeland, 993 So.2d 1100 (Fla. App. 2008). 28 Swanson v. City of Saint Paul, 526 N.W.2d 366 (Minn. 1995). 29 Uniformed Firefighters Ass’n, Local 94 v. Beekman, 420 N.E.2d 938 (N.Y. 1981); Wright v. State Accident Insurance Fund, 613 P.2d 755 (Or. 1980)(employer failed to meet burden of proving that heart and lung conditions were unrelated to employment). 30 Bunnell v. New York State Policemen’s and Firemen’s Retirement System, 377 N.Y.S.2d 935 (N.Y. App. Div. 1975). 31 Fischer v. Levitt, 410 N.Y.S.2d 378 (N.Y. App. Div. 1978). 32 City of Wilkes-Barre v. Workmen’s Compensation Appeal Board, 664 A.2d 90 (Pa. Cmwlth. 1995); Buchanan v. Workmen’s Compensation Appeal Board, 659 A.2d 54 (Pa. Cmwlth. 1995). 33 McCarthy v. Board of Trustees, 462 S.W.2d 827 (Mo. App. 1970). 34 City of Norfolk v. Lillard, 424 S.E.2d 243 (Va. App. 1992). 35 City of Wilkes-Barre v. Workmen’s Compensation Appeal Board, 682 A.2d 1357 (Pa. Cmwlth. 1996). In a similar case involving a stress claim, Bart v. City of New Orleans Fire Dept., 661 So.2d 1022 (La. App. 1995), the Court found that a firefighter’s on-the-job back injury aggravated his post-traumatic stress disorder (PTSD). Even though the PTSD had its origins in the firefighter’s service in the Vietnam war, the Court concluded that the aggravation caused by the back injury made the PTSD compensable. See City of Cedar Rapids v. Municipal Fire and Police Retirement System of Iowa, 526 N.W.2d 284 (Iowa 1995)(Court found back injury compensable even though underlying cause was non-work-related degenerative disk disease; Court found that on-the-job back injury was a substantial factor in precipitating the disk disease, and that without repeated aggravations of the injury from work the disk disease probably would not have been disabling). 36 See City of East Providence v. International Ass’n of Fire Fighters Local 850, 982 A.2d 1281 (R.I. 2009)(cancer). 37 Under the North Dakota law, it is the firefighter’s initial burden of proving that the cancer is linked to exposure to smoke, fumes, or other hazardous substances incurred in the line of duty or that such exposure has been linked to an increased risk of incurring the type of cancer from which the firefighter suffers. Once this burden is met, the law presumes that the cancer was occupationally caused. Flermoen v. North Dakota Workers’ Compensation Bureau, 470 N.W.2d 220 (N.D. 1991).

WORKERS’ COMPENSATION LAWS AND A SAFE WORKING ENVIRONMENT — 253 38 City of Philadelphia v. W.C.A.B.(Cospelich), 893 A.2d 171 (Pa. Cmwlth. 2006); see Marmino v. City of Crowley, 829 So.2d 1117 (La. App. 2002)(applies presumptive causation to Hepatitis-B claim); City of Tulsa Fire Dept. v. Miller, 135 P.3d 850 (Okla. App. 2006)(discusses Oklahoma’s statute establishing presumptive causation for Hepatitis-B claims). 39 Riverview Fire Protection Dist. v. W.C.A.B., 28 Cal.Rptr.2d 601 (Cal. App. 1994). 40 Taylor v. Workers’ Compensation Appeals Board, 196 Cal.Rptr. 182 (Cal. App. 1983)(employee whose job involved operation and maintenance of bulldozers used for fire control purposes entitled to benefits of presumptive causation statute); State Employees’ Retirement System v. Workmen’s Compensation Appeals Board, 73 Cal.Rptr. 172 (Cal. App. 1968)(dispatcher); Buescher v. Workmen’s Compensation Appeals Board, 71 Cal.Rptr. 405 (Cal. App. 1968)(maintenance foreman). 41 Pfister v. City of New Orleans, 681 So.2d 426 (La. App. 1996). 42 Volusia County Fire Services v. Taaffe, 27 So.3d 81 (Fla. App. 1 Dist. 2009). 43 Rothell v. City of Shreveport, 626 So.2d 763 (La. App. 1993); Manwill v. Clark County, 162 P.3d 876 (Nev. 2007). 44 Amos v. Ouachita Parish Police Jury, 991 So.2d 102 (La. App. 2008). 45 Vallelungo v. City of New Orleans, 673 So.2d 1292 (La. App. 1996); City of Manchester Fire Department v. Gelinas, 649 A.2d 50 (N.H. 1994)(retired firefighter’s heart attack produced by exertion of playing tennis was the result of an inevitable progression of heart disease first developed during employment). 46 City of Clearwater v. Carpentieri, 659 So.2d 357 (Fla. App. 1995). 47 Gilliland v. City of Monroe, 968 So.2d 270 (La. App. 2007). 48 State ex rel. Worrell v. Ohio Police & Fire Pension Fund, 858 N.E.2d 380 (Ohio 2006); Scheets v. Ada Fire Dept., 83 P.3d 905 (Okla. App. 2003). 49 O’Sullivan v. DiNapoli, 68 A.D.3d 1416 (N.Y. A.D. 3 Dept. 2009). 50 Ford, The Firefighter’s Guide to Managing Stress (1998); Miletich, Police, Firefighter & Paramedic Stress — An Annotated Bibliography (1990). 51 George v. City of St. Louis, 162 S.W.3d 26 (Mo. App. 2005). 52 Fairfax County Fire and Rescue Dept. v. Mottram, 559 S.E.2d 698 (Va. 2002). 53 City of Tampa v. Scott, 397 So.2d 1220 (Fla. App. 1981)(suicide of firefighter resulting from neurosis following work-related back injury ruled compensable); Bocian v. Industrial Commission, 668 N.E.2d 1 (Ill. App. 1996)(suicide of firefighter resulting from neurosis following work-related arm injury ruled compensable); Collado v. City of Albuquerque, 904 P.2d 57 (N.M. App. 1995)(question of fact existed as to whether four traumatic incidents encountered by EMT on the job caused post- traumatic stress disorder); Hennige v. Fairview Fire Dist., 472 N.Y.S.2d 204 (A.D. 1984)(anxiety neurosis suffered by “perfectionist” firefighter who felt unfairly blamed for the death of an individual in a burning house); Crosby v. City of Burlington, 844 A.2d 722 (Vt. 2003)(post-traumatic stress after building collapse). 54 Oliver v. City of Albuquerque, 743 P.2d 118 (N.M. App. 1986); Clark v. City of Asheville, 589 S.E.2d 384 (N.C. App. 2003). 55 Sorensen v. City of Omaha, Public Safety/Fire Division, 430 N.W.2d 696 (Neb. 1988).

254 — WORKERS’ COMPENSATION LAWS AND A SAFE WORKING ENVIRONMENT 56 Schurlknight v. City of North Charleston, 545 S.E.2d 833 (S.C. App. 2001); City of Tulsa v. Heminger, 706 P.2d 917 (Okla. App. 1985)(retired firefighter allowed to file hearing claim). 57 Mich. Comp. Laws Ann. § 418.405. 58 Wanstrom v. North Dakota Workers’ Compensation Bureau, 621 N.W.2d 864 (N.D. 2001). 59 Bruney v. City of Lake Charles, 386 So.2d 950 (La. App. 1980). 60 Savoie v. Fire Protection Dist. No. 1, 483 So.2d 1041 (La. App. 1985). 61 City of Philadelphia v. W.C.A.B.(Cospelich), 893 A.2d 171 (Pa. Cmwlth. 2006). 62 Seminole County Government v. Bartlett, 933 So.2d 550 (Fla. App. 2006). 63 Fulton-DeKalb Hosp. Authority v. Bishop, 365 S.E.2d 549 (Ga. App. 1988). 64 Board of Trustees v. Powell, 554 A.2d 440 (Md. App. 1989). 65 Cal. Lab. Code §3212.1(b) (2000). 66 Zipton v. Workers’ Compensation Appeals Bd., 267 Cal.Rptr. 431 (Cal. App. 1990)(compensation denied where cancer had metastasized and primary cancer could no longer be determined, even where exposure to a variety of carcinogens was proven). 67 Landreneau v. St. Landry Fire Dist., 815 So.2d 936 (La. App. 2002). 68 Passe v. City of Saint Louis, 741 S.W.2d 109 (Mo. App. 1987). 69 Luna v. Workers’ Compensation Appeals Bd., 244 Cal.Rptr. 596 (Cal. App. 1988); Westberry v. Town of Cape Elizabeth, 492 A.2d 888 (Me. 1985); Halsey Shedd RFPD v. Leopard, 44 P.3d 610 (Or. App. 2002). 70 Guest v. Workmen’s Compensation Appeals Bd., 470 P.2d 1 (Cal. 1970); Carillo v. Workers’ Compensation Appeals Bd., 197 Cal.Rptr. 425 (Cal. App. 1983). 71 Dineen v. Islip Fire Dist., 522 N.Y.S.2d 377 (A.D. 1987). 72 Coburn v. Hewlett Fire Dept., 490 N.Y.S.2d 644 (A.D. 1985). 73 Lessard v. Mattituck Fire Department, 606 N.Y.S.2d 850 (A.D. 1994). In another case with unusual facts, in Grenon v. City of Palm Harbor Fire Dist., 634 So.2d 697 (Fla. App. 1994), a court upheld the denial of workers’ compensation benefits to a firefighter who suffered a back injury while putting on his underwear at the fire station during his 24-hour shift. 74 Cary Fire Protection Dist. v. Industrial Com’n, 569 N.E.2d 1338 (Ill. App. 1991). 75 Frost v. Salter Path Fire & Rescue, 639 S.E.2d 429 (N.C. 2007). 76 Floyd v. City of Charleston, 339 S.E.2d 166 (S.C. App. 1986)(injuries suffered while engaged in horseplay with fellow firefighter ruled compensable). 77 Birmingham Retirement and Relief System v. Elliott, 532 So.2d 1019 (Ala. Civ. App. 1988), quoting A. Larson, The Law of Workmen’s Compensation, Section 22.00, at 5-82 (1985). See also Keiter v. Workmen’s Compensation Appeal Board, 654 A.2d 629 (Pa.Cmwlth. 1995). 78 Pedro v. Village of Endicott, 762 N.Y.S.2d 177 (A.D. 2003). 79 Papa v. Board of Trustees, 657 P.2d 1027 (Haw. 1983). 80 Bowman v. Board of Pension Commissioners for Los Angeles, 202 Cal. Rptr. 505 (Cal. App. 1984)(department’s failure to locate suitable light-duty work for

WORKERS’ COMPENSATION LAWS AND A SAFE WORKING ENVIRONMENT — 255 fire captain conclusive evidence of disabled status); Saleem v. Board of Trustees of Firemen’s Pension Fund of Atlanta, 351 S.E.2d 93 (Ga. App. 1986)(unavailability of light-duty work requires award of disability). 81 42 U.S.C. § 423(d)(1)(A). 82 Steele v. Barnhart, 290 F.3d 936 (7th Cir. 2002); Rodriguez v. Astrue, 2009 WL 1619637 (S.D. N.Y. 2009); Spires v. Astrue, 2008 WL 3992654 (D. S.C. 2008). 83 S.Rep. No. 94-816, at 4, reprinted in 1976 U.S.C.C.A.N. 2504, 2506. 84 Hawkins v. U.S., 68 Fed.Cl. 74 (2005). 85 42 U.S.C. § 3796c(a). 28 C.F.R. § 32.2(c)(1). 86 28 C.F.R. § 32.2(c)(1). 87 Hawkins v. U.S., 68 Fed.Cl. 74 (2005). 88 Davis v. United States, 50 Fed.Cl. 192 (2001); see Bice v. U.S., 72 Fed.Cl. 432 (Fed. Cl. 2006); Hillensbeck v. U.S., 74 Fed.Cl. 477 (Fed. Cl. 2006); Demutiis v. United States, 48 Fed.Cl. 81 (2000). 89 E.g., Illinois Public Safety Employee Benefits Act, 820 ILCS 320/10 (West 2004); Minn. Stat. § 299A.465 (2006); see Phalin v. McHenry County Sheriff’s Dept., 886 N.E.2d 448 (Ill. App. 2008); Senese v. Village of Buffalo Grove, 890 N.E.2d 628 (Ill. App. 2008); In re Jerve, 749 N.W.2d 404 (Minn. App. 2008). 90 Krohe v. City of Bloomington, 789 N.E.2d 1211 (Ill. 2003); In re Dahl, 2008 WL 131948 (Minn. App. 2008); Conaway v. St. Louis County, 702 N.W.2d 779 (Minn. App. 2005)(post-traumatic stress disorder a compensable condition triggering health insurance coverage). 91 29 U.S.C. § 654 (2001). 92 29 U.S.C. § 652(5) (2001). 93 Or. Rev. Stat. § 654.010 (1999). 94 Or. Rev. Stat. § 654.031 (1999). 95 Or. Rev. Stat. § 654.031 (1999). 96 See Tenn. Code Ann. § 50-3-403 (2000). 97 Alabama: Alabama Code § 25-1-1; Alaska: Alaska Statutes § 18.60.010; Arizona: Arizona Revised Statutes § 23-401; Arkansas: Arkansas Code Annotated § 11-2-117; California: California Labor Code § § 140-149 and 6300-6708; Connecticut: Connecticut General Statutes § 31-367; Georgia: Official Code of Georgia Annotated § 34-2-10; Hawai’i: Hawai’i Revised Statutes Chapter 396; Idaho: Idaho Code § 72-720; Illinois: Illinois Comp. Statutes Annotated § 820/225- 3; Indiana: Indiana Code Title 22-8; Iowa: Code of Iowa Chapter 88; Kentucky: Kentucky Revised Statutes Chapter 338; Louisiana: Louisiana Revised Statutes 23:13; Maryland: Annotated Code of Maryland Article 89, § 29; Michigan: Michigan Compiled Laws § 408.1001; Minnesota: Minnesota Statutes Chapter 182; Montana: Montana Code Annotated § 50-70-201; Nevada: Nevada Revised Statutes Chapter 618; New Hampshire: New Hampshire RSA Chapter 277; New Jersey: New Jersey Statutes Annotated § 34:6a-26; New Mexico: New Mexico Statutes Annotated § 50-9-1; New York: New York § 27-a, Labor Law; North Carolina: North Carolina General Statutes § 95-126; Ohio: Ohio Revised Code Annotated § 4167.04; Oklahoma: Oklahoma Statutes Annotated Title 40 § 4 01; Oregon: Oregon Revised Statutes § 654.003; South Carolina: Code of Laws of South Carolina § 41-15- 80; Tennessee: Tennessee Code Annotated § 50-501; Texas: Texas Labor Code Annotated § 411.103: Utah: Utah Code Title 35, Chapter 9; Vermont: Vermont

256 — WORKERS’ COMPENSATION LAWS AND A SAFE WORKING ENVIRONMENT Statutes Annotated Title 21; Virginia: Code of Virginia § 40.1; Washington: Revised Code of Washington Title 49, Chapter 17; West Virginia: West Virginia Code Annotated § 21-3a-5; Wyoming: Wyoming Statutes § 27-11-101.

WORKERS’ COMPENSATION LAWS AND A SAFE WORKING ENVIRONMENT — 257 258 — WORKERS’ COMPENSATION LAWS AND A SAFE WORKING ENVIRONMENT CHAPTER 11

THE EMPLOYMENT RIGHTS OF DISABLED FIREFIGHTERS

THE EMPLOYMENT RIGHTS OF DISABLED FIREFIGHTERS — 259 INTRODUCTION. For many years, few job protections were granted to disabled firefighters. In the absence of a statute protecting against disability discrimination, disabled firefighters seeking to remain with their departments, or disabled applicants seeking employment with a fire protection agency, were regularly turned away by the courts. In 1973, Congress passed the Federal Rehabilitation Act, which forbade disability discrimination by any employer receiving federal funds. Most state legislatures followed suit by adding disability discrimination to the list of employment practices prohibited by state law. In 1990, Congress culminated the legislative activity in the area when it passed the Americans With Disabilities Act (ADA). Title I of the ADA, which prohibits discrimination in employment-related matters on the basis of disability, began applying to public sector employers in January 1992.1 Initially, it appeared as though the combination of these laws, and particularly the ADA, would bring about fundamental changes in a wide variety of public safety employment personnel practices ranging from hiring practices to light-duty assignments. Reinforcing this view in the preface to the ADA, Congress expressed the thought that 36 million Americans would be covered by the law, roughly one- sixth of the population. However, the conservative approach taken by the United States Supreme Court and other federal courts towards disability cases almost completely eroded the promise of at least the federal laws concerning disability discrimination. In 2002, for example, the American Bar Association released a survey indicating that employees had lost 94.5% of ADA cases in federal court.2 In 2008, Congress again intervened, passing the ADA Amendments Act of 2008. The ADAAA, as it is known, reverses many of the decisions of the United States Supreme Court that had pared back the ADA’s protections. The ADAAA is sure to usher in a new wave of litigation involving disability claims by firefighters.

THE AMERICANS WITH DISABILITIES ACT. The ADA prohibits discrimination in employment-related matters against The ADA prohibits qualified individuals with a disability because of the disability.3 The ADA defines discrimination in employment- a disability as a physical or mental impairment that substantially limits one or related matters more of the major life activities of the individual. Individuals are protected by the against qualified ADA if they suffer from such an impairment, have a history of such an impair- individuals with a 4 5 disability because ment, or are regarded by the employer as having such an impairment. Under this of the disability. definition, a person need not actually be disabled in order to qualify for the ADA’s protections – it is enough that others, including the employer, believe that the employee is disabled.6 The ADA applies to both physical and psychological conditions.7 It is not necessary for a physical or psychological disorder to be specifically listed in the ADA for the disorder to be covered by the protections of the law.8 The ADA only

260 — THE EMPLOYMENT RIGHTS OF DISABLED FIREFIGHTERS applies to permanent medical or psychological conditions, not temporary, non- chronic ones.9 Moreover, by its terms, the ADA only applies to an “employer” of qualified individuals with a disability.

SUBSTANTIAL LIMITATION OF A MAJOR LIFE ACTIVITY. In order to qualify as a disabled individual under the ADA, the individual’s impairment must “substantially limit” one or more major life activities of the individual.10 The ADAAA contains a non-exhaustive list of major life activities, including: • Caring for one’s self • Performing Manual Tasks • Walking • Seeing • Hearing • Speaking • Breathing • Learning • Working • Reading • Bending • Thinking • Standing • Lifting • Communicating • Concentrating11 Before the passage of the ADAAA, many ADA claims were lost by employees because they were unable to prove that their condition substantially limited a major life activity. In the seminal case of Sutton v. United Airlines, Inc., the Supreme Court held that the “substantially limits” assessment must be made in light of the employee’s corrected condition.12 Thus, the “substantially limits” assessment of an individual with high blood pressure should be made when the individual is taking blood pressure medication, and the assessment of an individual with vision difficulties should be made when the individual is wearing corrective lenses. Obviously, under such an approach, virtually all individuals with treatable impairments will not be considered to be covered by the ADA. Some employees attempted to claim that their physical or psychological condition substantially limited them in the major life activity of “working.” After all, employees reasoned, they were being discharged by the employer because of their condition – that alone must establish they were substantially limited in the major life activity of working. The United States Supreme Court in Sutton again took the lead in holding that the major life activity of “working” meant the ability to engage in a broad range of jobs, not just a single occupation. Thus, a firefighter who has been fired because she cannot perform the full range of duties of a firefighter is not substantially limited in the major life activity of working if there is a broad range of other, non-firefighter related jobs she can perform.13 For example, in Welsh v. City of Tulsa, the Court found that an applicant was not disabled simply because numbness of fingers disqualified him from service as a firefighter,

THE EMPLOYMENT RIGHTS OF DISABLED FIREFIGHTERS — 261 since there was evidence that the applicant could perform numerous other jobs.14 Similarly, in Gilday v. Mencosta County, the Court found that a terminated firefighter suffering from diabetes mellitus was not disabled within the protection of the ADA since he was unable to show that any major life activity, including that of working for other employers, was substantially limited by his condition.15 Sutton also made clear that the disability assessment should be made on a case-by-case basis: “The determination of whether an individual has a disability is not necessarily based on the name or diagnosis of the impairment the person has, but rather on the effect of that impairment on the life of the individual.” In a separate case, Toyota Motor Mfg., Kentucky, Inc. v. Williams, the Supreme Court held that “major life activities” are “those activities that are of central importance to daily life,” and that “to be substantially limited...an individual must have an impairment that prevents or severely restricts the individual from doing activities that are of central importance to most people’s daily lives. The impairment’s impact must also be permanent or long term.”16 Following Sutton and Williams, federal courts routinely dismissed disability claims where individuals have either been fired or not hired because of their physical or emotional impairments, but where the courts view the impairments as not substantially limiting a major life activity. Since Sutton, courts rejected ADA claims for the following impairments: • Amblyopia, or “Lazy Eye”17 • Asthma18 • Attention Deficit Hyperactivity Disorder19 • Bipolar Disorder20 • Blood Clotting Condition21 • Cancer, if in remission22 • Claustrophobia23 • Condomalacia patella condition24 • Depression25 • Diabetes26 • Drug dependency and chronic pain27 • Epilepsy28 • Partial hearing loss29 • Hypertension30 • Morbid obesity31 • Multiple sclerosis, early onset32 • Panic attacks33

262 — THE EMPLOYMENT RIGHTS OF DISABLED FIREFIGHTERS • Partial limb amputation34 • Pulmonary embolism35 • Vision loss in one eye36 Since Congress originally decreed that one-sixth of Americans have a disability, yet the courts are finding that conditions such as diabetes, hypertension, and multiple sclerosis are not disabilities, the likelihood that Congress would respond was high. And respond Congress did, as earlier discussed, with the ADAAA, a law that entirely changes the standards that had arisen in the courts. The ADAAA explicitly rejects both Sutton and Williams as contrary to Congress’ intent in passing the ADA. Reversing Sutton, the ADAAA provides that mitigating measures cannot be considered in determining whether an employee is disabled. Thus, a A person whose person whose condition is controlled by medication, medical supplies or equip- condition is ment, hearing aids, prosthetics, or other assistive technology can no longer be controlled excluded from the definition of disabled because of these mitigating measures. by…assistive technology can The only notable exception is that poor vision that is correctable with lenses is not no longer be considered an impairment. However, the ADAAA prohibits any employment test excluded from or qualification standard that tests applicants based on their uncorrected vision, the definition of unless a certain level of uncorrected vision is consistent with business neces- disabled because of these mitigating sity. Contrary to Williams, the ADAAA’s new definition of “major life activities” measures. requires only that an impairment substantially limit one major life activity to qualify as a disability, and not just those of “central” or primary importance to individuals’ lives.

TYPES OF DISABILITY DISCRIMINATION CLAIMS. The most common single type of disability discrimination claim stems from an employer’s blanket exclusion of employees who suffer from certain types of When an employer makes conditions. Since disability discrimination laws require that each employee or an individualized applicant be evaluated on a case-by-case basis, courts regularly strike down blanket assessment of exclusions from employment. Employees or applicants have successfully challenged an employee’s or applicant’s blanket exclusions for a wide variety of conditions, including epilepsy, HIV-posi- ability to perform tive status,37 Crohn’s disease or enteritis,38 insulin-dependent diabetes,39 a history the job, the of cancer, missing limbs,40 hypertension,41 and uncorrected visual acuity.42 When employer’s decision is much an employer makes an individualized assessment of an employee’s or applicant’s less subject to ability to perform the job, particularly when the employer uses job-related tests to attack under make the assessment, the employer’s decision is much less subject to attack under disability discrimination disability discrimination laws. laws.

THE EMPLOYMENT RIGHTS OF DISABLED FIREFIGHTERS — 263 QUALIFIED INDIVIDUALS WITH A DISABILITY – THE NEED FOR AN EMPLOYEE TO BE ABLE TO PERFORM THE ESSENTIAL FUNCTIONS OF THE JOB, AND AN EMPLOYER’S OBLIGATION TO REASONABLY ACCOMMODATE THE EMPLOYEE’S DISABILITY. Like most disability discrimination laws, the ADA does not broadly prohibit employment-related discrimination against all individuals with a disability. Rather, the law protects only “qualified individuals with a disability” when the employer’s decisions have been based on the individual’s disability.43 The ADA defines qualified individuals with a disability as follows: “The term qualified individual with a ‘disability’ means an individual with a disability, who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.”44 To be a “qualified individual with a disability,” the employee must be able to perform the essential functions of the job either with or without reasonable accommodation.45 The essential job functions are those required by the firefighter’s employer; that a firefighter can perform the essential job functions in other agencies with different standards is not relevant in an ADA case.46 A finding through a workers’ compensation or pension system that the firefighter is permanently and totally disabled may well preclude a conclusion that the firefighter is a “qualified” individual with a disability,47 as may be a finding in a workers’ compensation case that the firefighter is subject to certain medical restrictions while at work.48 In addition, while the issue of light-duty assignments will be treated in greater detail later in this chapter, the clear trend in the law is to hold that a firefighter is not a “qualified” individual with a disability unless the firefighter has the ability to engage in fire suppression activities. This definition illustrates a key element of the ADA – that an employer has an obligation to “reasonably accommodate” a qualified individual with a disability. The ADA provides a number of examples of reasonable accommodation, including: • Making existing facilities accessible; • Job restructuring; • Part-time or modified work schedules; • Acquiring or modifying equipment; • Changing tests, training materials, or policies; • Providing qualified readers or interpreters; and • Reassignment to a vacant position.49

264 — THE EMPLOYMENT RIGHTS OF DISABLED FIREFIGHTERS Ordinarily, the disabled employee must request an accommodation under the ADA, beginning an interactive discussion between the employer and the employee as to potential accommodations.50 Under the ADA, an employer is not required to modify an essential function of the job by way of an accommodation,51 nor is the employer required to change the employee’s supervisory structure.52 An accommodation that involves an assignment to a lower-paying position is not per se unreasonable.53 An accommodation is not “reasonable” if it imposes an “undue hardship” on an employer. “Undue hardship” means significant difficulty or expense and focuses on the resources and circumstances of the employer in relationship to the cost or difficulty of providing an accommodation. As the Equal Employment Opportunity Commission puts it, “undue hardship refers not only to financial difficulty, but to reasonable accommodations that are unduly extensive, substantial, or disruptive, or those that would fundamentally alter the nature or operation of the business.”54 For example, a fire protection employer has no obligation to grant unpaid leave of indefinite length as an accommodation for a disabled employee,55 nor does it have an obligation to allow a disabled firefighter multiple attempts to pass a fitness test.56 The obligation to reasonably accommodate disabled individuals increases The obligation with the size of the fire protection agency. Because of the way the ADA defines an to reasonably undue hardship, a larger agency might be compelled to make an accommodation accommodate disabled that would be considered to be an undue hardship for a smaller agency. The types individuals of possible accommodations range significantly, and can include such things as increases with the modified work schedules and even a ban on smoking in the workplace.57 size of the fire protection agency.

THE ADA’S SPECIFIC BANS ON DISCRIMINATION. The ADA prohibits discrimination in employment-related matters against qualified individuals with a disability. The ADA lists a variety of employment decisions which might constitute illegal discrimination, including discrimination in job application procedures; the hiring, advancement, or discharge of employees; employee compensation; job training; and other terms, conditions, and privileges of employment.58 Congress also listed seven specific examples of prohibited discrimination in Section 102(b) of the ADA: “(1) Limiting, segregating, or classifying a job applicant or employee in a way that adversely affects the opportunities or status of such applicant or employee because of the disability of such applicant or employee. “(2) Participating in a contractual or other arrangement or relationship that has the effect of subjecting an applicant or employee with a disability to the discrimination. “(3) Using standards, criteria, or methods of administration that have the effect of discrimination on the basis of disability; or that

THE EMPLOYMENT RIGHTS OF DISABLED FIREFIGHTERS — 265 perpetuate the discrimination of others who are subject to common administrative control. “(4) Excluding or otherwise denying equal jobs or benefits to a qualified individual because of the known disability of an individual with whom the qualified individual is known to have a relationship or association. “(5) Not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability. “(6) Using qualification standards, employment tests or other selection criteria that screen out or tend to screen out an individual with a disability or a class of individuals with disabilities unless the standard, test or other selection criteria is job-related for the position in question and is consistent with business necessity. “(7) Failing to select and administer tests concerning employment in the most effective manner where the tests end up measuring the impaired sensory, manual, or speaking skills of such employee or applicant rather than the individual’s ability to perform the job.”59 Apart from the requirement to reasonably accommodate, several of these examples of discrimination have brought about changes in fire protection personnel practices. For example, Section 102(b)(6) of the ADA requires employers to carefully scrutinize all physical fitness and agility requirements to ensure that The ADA requires the requirements are both job-related and consistent with business necessity; in employers to response, many fire protection employers discarded physical standards which had carefully scrutinize been used for years either at the entrance level or as part of an incentive plan or all physical fitness and agility continuing requirement for employment, including standards for aerobic capacity, requirements to blood pressure, and cardiovascular capacity. ensure that the Section 102(b)(2) requires employers to carefully consider their contractual requirements are both job-related or other relationships with third parties, since an agency can be liable for the dis- and consistent with crimination carried out by a person with whom it has a contractual or other rela- business necessity. tionship. This requirement has had at least three significant areas of impact: • Fire protection agencies are no longer able to blindly rely on physical fitness standards established by a statewide licensing commission, for if those standards are discriminatory, the agency is liable if it uses the standards to make employment decisions. • Fire protection agencies and labor organizations have had to examine their collective bargaining agreements to ensure that the agreements do not discriminate on the basis of a disability. If a contractual provision such as a physical fitness plan or sick leave incentive program is illegally discriminatory, both the agency and the labor organization may be liable for the discrimination.

266 — THE EMPLOYMENT RIGHTS OF DISABLED FIREFIGHTERS • Fire protection agencies have had to take care that physicians and psychological professionals with whom they contract to examine employees and applicants are aware of the requirements of the ADA and comply with those requirements. If a professional violates the ADA by, for example, breaching the strict confidentiality requirements of the ADA, the law enforcement agency may be liable for the breach.

THE OBLIGATION TO MAKE LIGHT-DUTY WORK AVAILABLE. One of an employer’s obligations under the ADA and other disability discrimination laws is to reasonably accommodate an employee through “job restructuring.” Almost immediately after the enactment of the ADA, firefighters began suing their employers on the theory that the obligation to reasonably accommodate includes the obligation to make light-duty work available. The courts have regularly rejected these claims under both the ADA and other disability discrimination laws. The courts have found instead that the essential function of the job of a firefighter is to engage in fire suppression activities, and that if a disabled firefighter cannot perform this essential function, there is no obligation to offer light-duty work to the firefighter. The leading case on light-duty work for public safety employees remains Simon v. St. Louis County, Mo., a case decided under the Federal Rehabilitation Act. Simon’s eight-year trail of litigation began when a police officer who was rendered paraplegic as the result of a gunshot wound sustained in the line of duty was refused reinstatement to work by his employer. In the initial trial, the lower court found that the injured officer could not meet two requirements of the Department – that he be able to effect a forceful arrest, and that he be eligible to transfer among all positions within the Department.60 The appellate court reversed the trial court’s opinion denying the officer reinstatement, and specifically directed the trial court to consider the reasonableness of these two requirements, and whether the employer had uniformly required such abilities of all employees: “[T]he district court should consider whether the requirements of police officers of St. Louis County * * * are reasonable, legitimate, and necessary requirements for all positions within the Department. The district court should determine whether the ability to make a forceful arrest and the ability to perform all of the duties of all of the positions within the Department are in fact uniformly required of all officers.”61 After a retrial pursuant to the appellate court’s directions, the trial court found that the employer had uniformly required all employees to engage in forceful arrests and to be eligible for transfer to any assignment within the Department, and that a paraplegic employee who could not physically perform such arrests or be eligible for transfer to certain assignments could be refused employment. This decision was later sustained on appeal.62

THE EMPLOYMENT RIGHTS OF DISABLED FIREFIGHTERS — 267 Following the theories of the Simon court, a court in Florida analyzed the light-duty status under the ADA of an HIV-positive firefighter. The firefighter had been offered a light-duty position involving alarm maintenance, running errands, hydrant repair, and other miscellaneous duties. After performing the duties for a while, the firefighter rejected the accommodation, claiming that the job tasks were demeaning. After a 90-day paid medical leave of absence, the fire district terminated him. The Court upheld the termination, reasoning that the firefighter was not “otherwise qualified” for the job of firefighter because he could not perform the full range of rescue and suppression duties.63 With a few exceptions, most courts have held that a public safety agency such as a fire department is not obligated to offer light-duty work to a disabled employee who is not able to perform line duties.64 If an employer does choose to have light-duty jobs for disabled employees, it must make sure that it does not artificially restrict the types of jobs that are offered in a way that assigns menial tasks to those firefighters performing them, or If an employer deprives the firefighter of meaningful promotional opportunities.65 Moreover, if makes light-duty an employer makes light-duty jobs available for some employees with disabilities, jobs available for some employees it may have an obligation to make similar positions available to other disabled with disabilities, employees.66 it may have an obligation to make similar positions HE EED OR HE MPLOYER S ECISION O E ASED available to T N F T E ’ D T B B other disabled PON HE MPLOYEE S ISABILITY ND OT N employees. U T E ’ D , A N O INDEPENDENT GROUNDS. To violate the ADA, the employer’s decision must be based upon the employee’s disability, and not upon independent grounds. For example, in one case a group of public safety employees who had retired on a disability retirement brought an ADA lawsuit against the City of Los Angeles, contending that the City’s policy of reducing pensions by the amount of workers’ compensation benefits received by employees discriminated against disabled employees. A federal appeals court dismissed the lawsuit, finding that since the retirees had the option of choosing a service-based retirement that carried with it no workers’ compensation reduction, the retirees had no claim. The Court stated: “The offset does not treat disabled retirees differently or create disproportionate burdens because of the nature of their limitations or even their status as individuals with disabilities. It simply limits a type of compensation for work-related injuries that happens to be available only to individuals who are disabled.”67

268 — THE EMPLOYMENT RIGHTS OF DISABLED FIREFIGHTERS THE ADA AND HIRING. One fundamental change in fire protection personnel practices resulting from the ADA is in the area of hiring. Under the ADA, illegal discrimination specifically includes compelling applicants to undergo medical examinations and inquiries. The ADA prohibits The ADA also prohibits inquiring whether an applicant has a disability, or asking inquiring whether about the nature or extent of the applicant’s disability. an applicant has Three limited exceptions to these bans exist. First, an employer can compel an a disability, or asking about the employee to undergo a medical examination if it has a reason for doing so which nature or extent is job-related and consistent with business necessity. Second, where an employer of the applicant’s has the right to compel applicants to undergo medical examinations, it may do so disability. only after the employer has made an offer of employment to the applicant which is conditioned on passing the medical examination.68 Such “conditional offers of employment” become binding contracts to hire an applicant if the applicant passes the tests that employment is contingent upon.69 Third, even though an employer cannot inquire into an applicant’s medical condition, it can inquire as to whether an applicant has the physical ability to perform the essential functions of the job. These requirements gave rise to a number of changes in the personnel practices of fire protection agencies, including the following: • In most agencies, applicants were previously required to undergo a medical examination before an offer of employment is made. The ADA forbids this practice. • The Equal Employment Opportunity Commission (EEOC) has indicated that it does not consider a physical agility test to be a “medical examination.” Even if the EEOC’s opinion on this matter is upheld by the courts, a legitimate question arises as to whether a prudent employer would want to give a physical agility test to an individual about whom it has no medical information. In response, many employers have now only required physical agility tests after they have made a conditional offer of employment to an applicant, and after they have had the opportunity to obtain the results of a medical examination of the applicant. • The ban on inquiring about an applicant’s medical condition or history required the revision of many employment application forms, which routinely sought information on such matters. Even requiring an applicant’s history of workers’ compensation claims would appear to violate the ADA. The ban also effectively eliminated pre-offer of employment polygraph examinations in some agencies, since virtually The ADA’s all polygraphers ask questions about an individual’s medical condition as outright ban a prelude to a polygraph examination. on medical examinations The ADA’s outright ban on medical examinations exists only in the hiring exists only in the process. As such, if the employer’s reason for doing so is job-related and consistent hiring process.

THE EMPLOYMENT RIGHTS OF DISABLED FIREFIGHTERS — 269 with business necessity, the employer has the right to insist that employees returning from disability status submit to medical examinations as a predicate to returning to work.70

PENSION FUNDS AND THE ADA. By its terms, the ADA only applies to an “employer” of qualified individuals with a disability. Individual governmental employees, including fire chiefs, are not “employers” under the law and thus are not subject to suit under the ADA.71 For example, in Bell v. Retirement Board, a Chicago firefighter whose leg was partially amputated sought reinstatement to full duty. The City refused the firefighter’s request, citing the pension board’s rules preventing those with partial amputations from returning to full duty. A court held that the City was potentially liable for the pension board’s decision, noting that the pension fund “is an instrumentality of a local government because it is statutorily created and administers money for the benefit of public employees.”72 In Holmes v. City of Aurora, the Court considered whether a pension fund that established physical fitness standards for firefighters and police officers should be treated as an employer under the ADA. The Court concluded that the pension fund was such an employer, reasoning that since it had the responsibility for determining who qualified for admission into the pension plan, it thus had the power to significantly impact the access of an employee to employment benefits and should be treated as an employer.73

REMEDIES FOR BREACH OF THE ADA. Employees or applicants alleging a breach of the ADA are required to file a complaint with the EEOC within 180 days of the alleged discrimination.74 The EEOC can then either take up the case on behalf of the complainant or issue a “right to sue” letter to the complainant, authorizing the employee to bring a claim under the ADA in court. After proceeding through the EEOC, a complaint alleging discrimination under the ADA must be filed in federal court. The ADA incorporates the remedies available under Title VII of the Civil Rights Act of 1964.75 Title VII allows a court to award back pay as well as reinstatement and back pay. Compensatory damages and damages for pain and suffering are not recoverable under Title VII or the ADA. However, though there is a split in the law on the issue, in cases alleging retaliation against an employee who raises ADA claims, both compensatory and punitive damages may be available.76 A court also has the authority to compel an employer to take appropriate action to remedy the discrimination, including the authority to require that specific reasonable accommodations be made for an employee’s disability.

270 — THE EMPLOYMENT RIGHTS OF DISABLED FIREFIGHTERS OTHER LAWS PROTECTING DISABLED EMPLOYEES. As noted above, protections against discrimination on the basis of a disability can be found in areas other than the ADA. First, 47 states have passed statutes forbidding such discrimination, and many have established administrative agencies with the power to enforce such laws. As described earlier in this chapter, state laws can provide greater protections for employees than the ADA. Second, many cities and counties have passed ordinances to the same effect. Third, the “non-discrimination” clauses in many public safety collective bargaining agreements frequently list disabled status as a protected classification.

THE ADA AND SENIORITY CLAUSES. Occasionally, the ADA’s requirements that an employer reasonably accommodate an individual’s disability will conflict with a clause in a collective bargaining agreement that requires that certain assignments be made on the basis of seniority. In such cases, to reassign a junior employee to an assignment or shift where his or her disability can be accommodated may violate the collective bargaining agreement if a senior employee is bumped from the assignment or shift. In such cases, the employer must follow the seniority clause in the contract and not accommodate the disability so long as the seniority clause was adopted for a bona fide non- discriminatory reason.77

THE EMPLOYMENT RIGHTS OF DISABLED FIREFIGHTERS — 271 NOTES 1 The ADA was not applied retroactively. Ethridge v. State of Alabama, 847 F. Supp. 903 (M.D. Ala. 1993). 2 http://www.accessiblesociety.org/topics/ada/abastudy03.html. 3 ADA § 102, 29 CFR § 1630.4. 4 Burris v. City of Phoenix, 875 P.2d 1340 (Ariz. 1994)(history of testicular cancer). 5 Morris v. Mayor & City Council of Baltimore, 437 F. Supp. 2d 508 (D. Md. 2006). 6 29 CFR § 1630.2(h). 7 Stephens v. City of Pasadena Fire Dept., 2009 WL 543189 (Cal. App. 2009). 8 Barry v. City of Madison, 7 AD Cases 160 (W.D. Wis. 1994); Roulette v. Illinois Human Rights Commission, 628 N.E.2d 967 (Ill. App. 1993). 9 Rinkenberger v. City of Clearwater, 44 Fed. Appx. 23 (8th Cir. 2002). 10 Dent v. City of Chicago, 2003 WL 21801163 (N.D. Ill. 2003)(officer’s alleged allergy to pregnant women does not substantially limit one or more major life activities); Tamayo v. City of New York, 2003 WL 21448366 (S.D. N.Y. 2003)(detectives’ “extreme respiratory discomfort” as a result of the employer’s non- enforcement of smoking regulations does not substantially limit one or more major life activities). 11 http://www.dol.gov/ofccp/regs/compliance/faqs/ADAfaqs.htm#Q6. 12 Sutton v. United Airlines, Inc., 527 U.S. 471 (1999); see Murphy v. United Parcel Service, 527 U.S. 516 (1999). 13 Sutton v. United Airlines, Inc., 527 U.S. 471 (1999); Shipley v. City of University City, 195 F.3d 1020 (8th Cir. 1999); Bumstead v. Jasper County, Texas, 931 F. Supp. 1323 (E.D. Tex. 1996). 14 Welsh v. City of Tulsa, 977 F.2d 1415 (10th Cir.1992)(applicant not disabled due to decreased sensation in two fingers); Taraila v. City of Wilmington, 2000 WL 1708218 (D. Del. 2000). 15 Gilday v. Mencosta County, 920 F. Supp. 792 (W.D. Mich. 1996). 16 Toyota Motor Mfg., Kentucky, Inc. v. Williams, 534 U.S. 184 (2002). 17 Knoll v. Southeastern Pennsylvania Transportation Authority, 2002 WL 31045145 (E.D. Pa. 2002). 18 Weiss v. City of New York, 2003 WL 1621403 (S.D. N.Y. 2003)(employee’s asthma was not a disability where it was controllable through medication); Boone v. Reno, 121 F. Supp. 2d 109 (D. D.C. 2000)(applicant for position as FBI agent not protected by ADA since her asthma was controllable through medication); Sanders v. FMAS Corp., 180 F. Supp. 2d 698 (D. Md. 2001)(asthma controllable through medication not a disability); Saunders v. Baltimore County, Maryland, 163 F. Supp. 2d 564 (D. Md. 2001)(asthma does not limit one or more major life activities); Reeves v. City of Dallas, 2001 WL 1609345 (N.D. Tex. 2001)(asthma controllable through medication not a disability); Mayers v. Washington Adventist Hospital, 22 Fed. Appx. 158 (4th Cir. 2001)(asthma controllable through medication not a disability). See also

272 — THE EMPLOYMENT RIGHTS OF DISABLED FIREFIGHTERS Cebertowicz v. Motorola, Inc., 178 F. Supp. 2d 949 (N.D. Ill. 2001)(employer did not regard employee with asthma as disabled). 19 Van Compernolle v. City of Zeeland, 2006 WL 1460035 (W.D. Mich. 2006). 20 Hill v. Metropolitan Government of Nashville, 54 Fed. Appx. 199 (6th Cir. 2002). 21 Dose v. Buena Vista University, 229 F. Supp. 2d 910 (N.D. Iowa 2002). 22 EEOC v. Boyle, 181 F.3d 645 (5th Cir. App. 2000); EEOC v. RJ Gallagher Co., 181 F.3d 645 (5th Cir. 1994). 23 Rodriguez v. City of New York, 644 F. Supp. 2d 168 (E.D. N.Y. 2008); Walker v. Town of Greenville, 347 F. Supp. 2d 566 (E.D. Tenn. 2004). 24 Miller v. Wells Dairy, Inc., 252 F. Supp. 2d 799 (N.D. Iowa 2003). 25 Zeiger v. Illinois Dept. of Corrections, 2008 WL 695366 (C.D. Ill. 2008)(corrections officer’s depression did not substantially limit any major life activity); Williams v. Philadelphia Housing Authority, 230 F. Supp. 2d 631 (E.D. Pa. 2002)(police officers whose depression did not substantially limit one or more major life activities); Julia v. Janssen, 92 F. Supp. 2d 25 (D. P.R. 2000)(employee whose depression was controllable through medication not protected by ADA); Miron v. Minnesota Mining & Mfg. Co., 2001 WL 1663870 (D. Minn. 2001)(employee whose depression was controllable through medication not protected by ADA); Heisler v. Metropolitan Council, 2001 WL 1690052 (D. Minn. 2001)(employee whose depression was controllable through medication not protected by ADA). 26 Burroughs v. City of Springfield, 163 F.3d 505 (8th Cir. 1998)(police officer’s diabetes, controllable through medication, not protected under ADA); Anyan v. Nelson, 68 Fed. Appx. 260 (2d Cir. 2003)(same); Epstein v. Kalvin-Miller International, 100 F. Supp. 2d 222 (S.D. N.Y. 2000)(employee’s diabetes and heart condition, both of which were potentially fatal if not medicated, could not form basis for finding of disability because they were controllable through medication); Beaulieu v. Northrop Grumman Corp., 23 Fed. Appx. 811 (9th Cir. 2001)(diabetes does not substantially limit any major life activity); Tropiano v. Pennsylvania State Police, 2006 WL 2077013 (E.D. Pa. 2006)(trooper applicant’s insulin-controlled diabetes not disability because it does not limit a major life activity); Young v. Chicago Transit Authority, 189 F. Supp. 2d 780 (N.D. Ill. 2002)(diabetes does not substantially limit any major life activity); Anyan v. New York Life Ins. Co., 192 F. Supp. 2d 228 (S.D. N.Y. 2002)(diabetes controllable by medication does not substantially limit any major life activity); EEOC v. Murray, Inc., 175 F. Supp. 2d 1053 (M.D. Tenn. 2001)(treatable diabetes does not substantially limit any major life activity); Sepulveda v. Glickman, 167 F. Supp. 2d 186 (D. P.R. 2001)(treatable diabetes does not substantially limit any major life activity); Grant v. May Dept. Stores Co., 786 A.2d 580 (D.C. 2001); Williams v. H.N.S. Management Co., 56 F. Supp. 2d 215 (D. Conn. 1999). Contra Nawrot v. CPC Inter., 277 F.3d 896 (7th Cir. 2002)(diabetes is a disability under the ADA). 27 Bonieskie v. Mukasey, 540 F. Supp. 2d 190 (D. D.C. 2008). 28 Arnold v. City of Appleton, Wisconsin, 97 F. Supp. 2d 937 (E.D. Wis. 2000)(firefighter applicant not disabled because his epilepsy must be viewed in its treatable condition); Nelson v. Ameritech, 2002 WL 226845 (N.D. Ill. 2002)(epilepsy controlled by medication not disability); Sanglap v. LaSalle Bank, FSB, 2002 WL 47975 (N.D. Ill. 2002)(epilepsy controllable through medication not a disability); Popko v. Pennsylvania State University, 84 F. Supp. 2d. 589 (M.D. Pa.

THE EMPLOYMENT RIGHTS OF DISABLED FIREFIGHTERS — 273 2000)(idiopathic epilepsy [epilepsy-related sleep disorder] is not a disability when viewed in its corrective state of getting eight hours of sleep); EEOC v. Sara Lee Corp., 237 F.3d 349 (4th Cir. 2001)(occasional seizures due to epilepsy did not substantially limit plaintiff in caring for herself). 29 Walton v. U.S. Marshals Serv., 492 F.3d 998 (9th Cir. 2007). 30 Sheehan v. City of Gloucester, 321 F.3d 21 (1st Cir. 2003)(police lieutenant’s hypertension did not render him incapable of performing broad class of jobs, and City did not regard him as disabled even though it involuntarily retired him); Stumbo v. Dnycorp Technology Services, 130 F. Supp. 2d 771 (W.D. Va. 2001)(former police officer applying for security job in war zone not protected by ADA where his hypertension was controlled by medication); see Williams v. Chicago Transit Authority, 2001 WL 855421 (N.D. Ill. 2001)(hypertension controlled by medication not protected by ADA); Lee v. Chicago School Reform Bd. Of Trustees, 2001 WL 709455 (N.D. Ill. 2001)(hypertension controlled by medication not protected by ADA); Williams v. Stark County Bd. Of County Commissioners, 7 Fed. Appx. 441 (6th Cir. 2001)(hypertension controlled by medication not protected by ADA). 31 Caruso v. Camilleri, 2008 WL 170321 (W.D. N.Y. 2008). 32 Yudkovitz v. Bell Atlantic Corporation, 2004 WL 178330 (E.D. Pa. 2004). 33 Reeves v. Johnson Controls World Servs., Inc., 140 F.3d 144 (2d Cir. 1998). 34 Christensen v. City of Los Angeles, 2002 WL 1154578 (Cal. App. 2002). 35 Dose v. Buena Vista University, 229 F. Supp. 2d 910 (N.D. Iowa 2002). 36 Ditullio v. Village of Massena, 81 F. Supp. 2d 397 (N.D. N.Y 2000)(police officer’s complete loss of vision in one eye is not a disability that substantially limits the major life activity of seeing when viewed in light of the unconscious corrective measures that the body takes). 37 Doe v. City of Chicago, 883 F. Supp. 1126 (N.D. Ill. 1994). 38 Antonsen v. Ward, 571 N.E.2d 636 (A.D. N.Y. 1991); Blanchette v. Spokane County, 836 P.2d 858 (Wash. App. 1992). 39 Kapche v. City of San Antonio, 304 F.3d 493 (5th Cir. 2002); Bombrys v. City of Toledo, 849 F. Supp. 1210 (N.D. Ohio 1993). 40 Stilwell v. Kansas City Police Department, 872 F. Supp. 682 (W.D. Mo. 1995); Champ v. Baltimore County, 884 F. Supp. 991 (M.D. Md. 1995). 41 Jurgella v. Danielson, 764 P.2d 27 (Ariz. App. 1988). 42 O’Neil v. Board on Public Safety Standards and Training, 95 Fire & Police Rep. 78 (D. Or. 1994)(strikes down state training agency’s statewide minimum certification requirement for eyesight); City of Belleville v. Human Rights Commission, 522 N.E.2d 268 (Ill. App. 1988). 43 Deckert v. City of Ulysses, 4 AD Cases 1569 (D. Kan. 1995)(officer discharged for motor vehicle accident and other misconduct, not discharged because of disability of diabetes); Hartman v. City of Petaluma, 841 F. Supp. 946 (N.D. Cal. 1994)(applicant who lied about prior drug use during application process not rejected because of disability of drug addiction, but rather because of untruthfulness). 44 ADA § 101(8). 45 Stephens v. City of Pasadena Fire Dept., 2009 WL 543189 (Cal. App. 2009). 46 Vanderheiden v. City of Alameda, 2009 WL 1526002 (Cal. App. 1 Dist. 2009). 47 Pyrcz v. Branford College, 1999 WL 706882 (Mass. Sup. 1999); Lang v. City of Maplewood, 574 N.W.2d 451 (Minn. App. 1998).

274 — THE EMPLOYMENT RIGHTS OF DISABLED FIREFIGHTERS 48 Jackson v. County of Los Angeles, 70 Cal.Rptr.2d 96 (Cal. App. 1998). 49 ADA § 101(9). 50 Warren v. Volusia County, Florida, 188 Fed. Appx. 859 (11th Cir. 2006); Breitfelder v. Leis, 151 Fed. Appx. 379 (6th Cir. 2005); Coley v. Grant County, 36 Fed. Appx. 242 (9th Cir. 2002); Wilson v. County of Orange, 87 Cal.Rptr.3d 439 (Cal. App. 2009). 51 Hoskins v. Oakland County, 227 F.3d 719 (6th Cir. 2000). 52 Moon v. City of Bellevue, 142 Wash. App. 1037 (2008). 53 Lenske v. City of Los Angeles, 2007 WL 18793 (Cal. App. 2 Dist. 2007). 54 http://www.eeoc.gov/policy/docs/accommodation.html#N_92_ 55 Hopkins v. City of Bothell, 117 Wash. App. 1019 (2003). 56 Parker v. City of Williamsport, 406 F. Supp. 2d 534 (M.D. Pa. 2005). 57 Thursby v. City of Scranton, 2006 WL 1455736 (M.D. Pa. 2006). 58 ADA § 102(a). 59 ADA § 102(b)(1)-(7). 60 Simon v. St. Louis County, Mo., 497 F. Supp. 141 (E.D. Mo. 1980). 61 Simon v. St. Louis County, Mo., 656 F.2d 316 (8th Cir. 1981). 62 Simon v. St. Louis County, Mo., 735 F.2d 1082 (8th Cir. 1984). 63 Severino v. North Fort Myers Fire Control District, 935 F.2d 1179 (11th Cir. 1991). 64 Gonzales v. City of New Braunfels, Texas, 176 F.3d 834 (5th Cir. 1999)(diabetic neuropathy); Burch v. City of Nacogdoches, 174 F.3d 615 (5th Cir. 1999)(back injury); Dockery v. City of Chattanooga, 134 F.3d 370 (6th Cir. 1997)(stress); Champ v. Baltimore County, 91 F.3d 129 (4th Cir. 1996)(loss of use of arm); Fedro v. Reno, 3 AD Cases 150 (7th Cir. 1994)(residual Hepatitis-B); Coski v. City and County of Denver, 795 P.2d 1364 (Colo. App. 1990)(quadriplegia); Beal v. Board of Selectmen of Hingham, 646 N.E.2d 131 (Mass. 1995)(chronic fatigue, sleep disorder, and susceptibility to blackouts in high-stress situations); Ensslin v. Township of North Bergen, 646 A.2d 452 (N.J. Super. 1994); Shoemaker v. Pennsylvania Human Relations Commission, 2 AD Cases 1626 (Pa.Cmwlth. 1993)(heart condition); Molloy v. City of Bellevue, 859 P.2d 613 (Wash. App. 1993). See also Fitzpatrick v. Human Rights Commission, 642 N.E.2d 486 (Ill. App. 1994)(sleep disorder; private sector case). But see Stone v. City of Mount Vernon, 118 F.3d 92 (2d Cir. 1997)(paraplegic firefighter); Hamlin v. Charter Township of Flint, 165 F.3d 426 (6th Cir. 1999)(fighting fires not essential function of an assistant fire chief’s job); Chesak v. Orange County Government, 2007 WL 4162942 (M.D. Fla. 2007)(muscular dystrophy does not necessarily limit performance of firefighter in planning and research role). 65 Cripe v. City of San Jose, 261 F.3d 877 (9th Cir. 2001). 66 See generally Dargis v. Sheahan, 526 F.3d 981 (7th Cir. 2008); Johnson v. City of Pontiac, 2007 WL 1013247 (E.D. Mich. 2007). 67 Brown v. City of Los Angeles, 521 F.3d 1238 (9th Cir. 2008). 68 ADA § 102(c). 69 Ardito v. City of Providence, 263 F. Supp. 2d 358 (D. R.I. 2003). 70 White v. City of Boston, 7 Mass.L.Rptr. 232 (Mass. Sup. 1997); see Brumley v. Pena, 62 F.3d 277 (8th Cir. 1995).

THE EMPLOYMENT RIGHTS OF DISABLED FIREFIGHTERS — 275 71 Alsbrook v. City of Maumelle, 184 F.3d 999 (8th Cir. 1999). 72 Bell v. Retirement Board, 2 AD Cases 1425 (N.D. 1993). 73 Holmes v. City of Aurora, 4 AD Cases 1781 (N.D. Ill. 1995); see Piquard v. City of East Peoria, 887 F. Supp. 1006 (C.D. Ill. 1995). 74 Sotolongo v. New York City Transit Authority, 63 F. Supp. 2d 353 (S.D. N.Y. 1999). 75 42 USC § 2000e et seq. 76 Compare Kramer v. Banc of America Securities, LLC, 355 F.3d 961 (7th Cir. 2004)(punitive damages not available) and Bowles v. Carolina Cargo, Inc., 100 Fed. Appx. 889 (4th Cir. 2004)(same) with Salitros v. Chrysler Corp., 306 F.3d 562 (8th Cir. 2002)(punitive damages are available in retaliation cases brought under the ADA); Foster v. Time Warner Entertainment Co., 250 F.3d 1189 (8th Cir. 2001)(same); EEOC v. Wal-Mart Stores, Inc., 187 F.3d 1241 (10th Cir. 1999)(same); Muller v. Costello, 187 F.3d 298 (2d Cir. 1999)(same). 77 US Airways, Inc. v. Barnett, 535 U.S. 391 (2002).

276 — THE EMPLOYMENT RIGHTS OF DISABLED FIREFIGHTERS CHAPTER 12

FIREFIGHTERS AND EMPLOYMENT DISCRIMINATION

FIREFIGHTERS AND EMPLOYMENT DISCRIMINATION — 277 BASIC DISCRIMINATION LAW PRINCIPLES. In the broadest sense, a claim of “discrimination” contends that an employer has treated two otherwise similarly-situated employees, or two classes of employees, in a different manner. In and of itself, discrimination is not illegal. However, when the unequal treatment is based upon an employee’s status as a member of a class of individuals protected under the law, or when the discrimination is in retaliation for the employee having engaged in “protected activity,” the discrimination may violate federal and/or state law. Protected Classes. Different “classes” of employees have varying levels of protection against discrimination. Under the highest standard of review, if employees are treated differently because of their status in a “suspect” classification, then the employer’s use of the classification to make employment decisions will be sustained only if the classification is narrowly tailored to serve a compelling governmental interest.1 Thus far, the Supreme Court has applied this extremely high standard only to three classifications – race,2 alien status,3 and national origin.4 Under the next highest standard of review, if a classification is “quasi-suspect” in nature, then the employer must justify its actions on the grounds that they are substantially related to a legitimate state interest.5 Thus far, the Supreme Court has recognized two classifications as quasi-suspect: gender6 and illegitimacy.7 If, on the other hand, a classification is neither suspect nor quasi-suspect, the only burden an employer who discriminates must meet under the Fourteenth Amendment is that of showing that there is any rational basis for the use of the classification.8 Since some rational basis exists for virtually any classification an employer may use, the categorizing of a classification as neither suspect nor quasi- suspect usually sounds the death knell for an employee’s employment discrimination case. The most prevalent types of employment discrimination cases where the employer has been held to the rational basis test only involve discrimination on the basis of age,9 disability status,10 and residency.11 Protected Activities. It is almost always illegal for an employer to discriminate against an employee because an employee has engaged in activities that are protected under the law. Activities can be protected in a variety of ways. The United States Constitution, for example, provides protection for employees’ free speech, religion, and association rights, as well as other rights including the right to privacy and the right to due process. Similar, or even greater, protections appear in many state constitutions.12 An activity can be protected by federal or state statute as well. For example, almost all non-discrimination statutes, such as Title VII of the Civil Rights Act, the Americans With Disabilities Act, and the Family and Medical Leave Act, provide protections for employees who bring or assist others in bringing discrimination claims. Other employment-related statutes, from workers’ compensation laws to wage and hour laws such as the Fair Labor Standards Act, provide protections to employees who bring claims. State collective bargaining laws also confer “protected activity” status on a variety of workplace behaviors.

278 — FIREFIGHTERS AND EMPLOYMENT DISCRIMINATION “Reverse Discrimination” Cases. A fair portion of discrimination cases today are so-called “reverse discrimination” cases, usually brought by white males claiming they have been discriminated against because of either or both their race and gender. If an employee is the victim of discrimination because of the employee’s race or gender, the employee has the same access to the protection of the law no matter what the employee’s race or gender might be.13 Thus, in “reverse discrimination” cases, courts apply precisely the same legal tests as they would in traditional discrimination lawsuits brought by women or members of racial minority groups.14 Reverse discrimination cases come in a variety of forms. A fair number of them involve claims by applicants for a chief’s position that the applicant was not selected because the employer had an illegal preference for a member of a protected class.15 Others, including the much publicized Supreme Court decision involving the New Haven Fire Department, involve claims of racially discriminatory promotional or hiring practices.16

TITLE VII AND THE FOURTEENTH AMENDMENT. Claims of employment discrimination usually proceed under one of two legal theories. The first theory is that the alleged discriminatory conduct violates Title VII of the federal Civil Rights Act, which provides as follows: “It shall be an unlawful employment practice for an employer – “(1) To fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or “(2) To limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin.”17 The second theory used in employment discrimination cases is that the alleged discriminatory conduct violates the equal protection clause of the Fourteenth Amendment to the United States Constitution, which reads in part as follows: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” Courts have held that employees proceeding under the Fourteenth Amendment must show that their employer has intentionally discriminated against

FIREFIGHTERS AND EMPLOYMENT DISCRIMINATION — 279 them, a burden of proof much higher than that in a Title VII case, which only requires a showing of a discriminatory result. For that reason, most discrimination cases brought by minority and female firefighters proceed under Title VII.18 For reasons which will be discussed below, most so-called “reverse discrimination” lawsuits – lawsuits usually brought by white males challenging affirmative action plans – proceed under the Fourteenth Amendment.

DISPARATE TREATMENT AND DISPARATE IMPACT EMPLOYMENT DISCRIMINATION. There are two general types of employment discrimination cases, disparate treatment and disparate impact cases.19 Disparate treatment occurs when an employee is singled out and treated less favorably from others similarly situated on account of race or any other factor impermissible under Title VII or the Fourteenth Amendment.20 Disparate impact focuses on employment practices which are facially neutral in their treatment of different groups but which, in fact, fall more harshly on one group than another and cannot be justified by a business necessity or a bona fide occupational qualification. For example, a fire department’s physical fitness standards, to the extent they adversely impact women, are reviewed under traditional disparate impact analysis.21

DISPARATE TREATMENT CASES. An employee complaining of disparate treatment must establish that his or her An employee complaining membership in a protected class “played a role in the employer’s decision-making 22 of disparate process and had a determinative influence on the outcome of that process.” The treatment employee may meet this burden with either direct or circumstantial evidence.23 In must establish a disparate treatment case, it is usually difficult to come by direct evidence of dis- that his or her membership in a crimination, since employers will rarely admit that the reason for an employment protected class decision was discriminatory in nature.24 Instead, the evidence of discrimination is “played a role in usually circumstantial or inferential in nature.25 In a circumstantial evidence case, the employer’s decision-making a firefighter must usually prove the following in order to establish a prima facie process and had case of disparate treatment discrimination: a determinative influence on the (1) The firefighter is a member of a protected class; outcome of that process.” (2) The firefighter was qualified for the position the firefighter held or sought; (3) The firefighter suffered an adverse employment action; and (4) The circumstances of the adverse employment action give rise to an inference of discrimination.26

280 — FIREFIGHTERS AND EMPLOYMENT DISCRIMINATION The burden of proving a prima facie case is not a heavy one, though there is an occasional stumbling block. An important part of the required proof is that the employee actually have suffered an “adverse employment action.” Usually, the shorthand is that discharges, suspensions, demotions, transfers, and denials of Discharges, transfers are sufficiently “adverse” to trigger anti-discrimination rights.27 The fol- suspensions, lowing all qualify as adverse employment actions: A failure to promote,28 subject- demotions, 29 transfers, and ing an employee to repeated baseless disciplinary investigations, a negative per- denials of formance evaluation,30 failing to furnish female firefighters with appropriately-fit- transfers are ting clothing,31 the denial of acting pay,32 the denial of overtime opportunities,33 sufficiently “adverse” to and the denial of a reassignment to a position carrying higher prestige and greater trigger anti- promotional opportunities.34 Even forcing a firefighter into additional training, discrimination drilling and testing can amount to an adverse employment action.35 rights. Lesser administrative actions, such as a requirement that an employee participate in a fitness-for-duty evaluation,36 where a firefighter is placed on administrative leave with pay,37 is assigned to a limited-duty position consistent with his physical limitations,38 is denied retraining,39 is given a delayed promotion along with retroactive pay,40 or is given the “cold shoulder,”41 or subjected to biting comments42 are not thought to be sufficiently adverse to allow a discrimination lawsuit. A perceived loss of prestige felt by a deputy chief as a result of departmental reorganization does not qualify as an adverse employment action,43 nor does the denial of a training opportunity. Where a firefighter alleges to have been the victim of a discriminatory disciplinary decision, the firefighter can establish the prima facie case by showing that he or she engaged in conduct similar to that of a person of another race or gender, that he was performing competently on the job, and that disciplinary measures were enforced with more severity against him.44 Where a firefighter cannot show that he or she was treated differently than a member of a non-protected class, the firefighter must then prove that his or her replacement for the position was a member of a non-protected class.45 The key to these requirements is that the firefighter be treated differently than those outside of the protected class; for these reasons, a short female firefighter lost her discrimination lawsuit when she was unable to prove that short male firefighters were treated any differently than her with respect to driving requirements.46 When a firefighter establishes a prima facie case of disparate treatment discrimination, the burden shifts to the employer to produce evidence that the firefighter was rejected for a legitimate, non-discriminatory reason.47 Any of a variety of reasons can suffice to meet the employer’s burden of rebutting the inference of discrimination. Courts have found the following to be sufficient reasons for treat- ing employees differently: • Where the adverse action taken by the employer was because of the firefighter’s violation of the employer’s work rules 48 or because the firefighter was not performing his job adequately;49 • A content-validated promotional or entrance examination;50

FIREFIGHTERS AND EMPLOYMENT DISCRIMINATION — 281 • A four-year college degree requirement for certain promotional positions;51 • Where a firefighter is claiming he has been disciplined for discriminatory reasons, factual differences in the employees’ situations, including the fact that the employee bringing the claim engaged in misconduct of a different nature or during a different time frame;52 • A rule that has some business motivation and generally applicable to all employees (even if it has differing impacts on individual employees);53 • Budgetary or economic concerns;54 • The possible loss of grant funding;55 • The need for an employee to be able to function with particular equipment, such as respirators and boots;56 • Performance or behavior problems on the part of the employee;57 • Where an applicant has not fully completed all the prerequisites for employment as a firefighter,58 including obtaining required state training;59 • Where the non-minority candidates for promotion possessed stronger qualifications,60 or performed better on promotional examinations.61 All of these reasons, and more, can amount to legitimate, non-discriminatory reasons for an employer’s actions. An employer’s business motivation does not need to be a wise or correct one, it must merely be a non-discriminatory, honestly-held one.62 If the employer fails to rebut the firefighter’s prima facie showing of disparate treatment discrimination, the employer will be held to have engaged in discriminatory conduct. If the employer succeeds in making such a showing, the burden shifts back to the firefighter to establish either that a discriminatory reason more likely motivated the employer, or that the employer’s non-discriminatory explanation is not credible, but that it is merely a “pretext.”63 If the firefighter is successful, the employer will be held to have engaged in discriminatory conduct. This three-part test is commonly referred to as the McDonnell-Douglas test after a Supreme Court decision involving the McDonnell-Douglas Corporation.64 To show that an employer’s stated rationale for an employment decision was pretextual, the employee must show that the reason was “unworthy of belief.” This requires evidence from which a jury or a court could infer that the employer’s articulated reasons for the employment decision (1) have no basis in fact; (2) were not really motivating factors for the decision; or (3) were not motivating factors in employment decisions for other employees in the same circumstances.65 Employees are able to meet this burden with indirect evidence, such as discriminatory comments made by the decision-maker,66 through inconsistent or irrational

282 — FIREFIGHTERS AND EMPLOYMENT DISCRIMINATION explanations given by the employer,67 inconsistent treatment of similarly-situated employees,68 or through statistical evidence.69 In recent years federal courts have emphasized that the burden of proving discrimination cases is ultimately a difficult one for employees.70 The following passage from a Pennsylvania case is illustrative of how courts approach the issue: “It is not the role of the courts to second-guess the wisdom, prudence or competence of the employer’s decision. An employee cannot merely show that the employer’s decision was wrong or mistaken, but rather, must demonstrate that the decision was motivated by discriminatory animus. The employee’s evidence must allow a reasonable fact finder to infer that each of the employer’s proffered legitimate, non- discriminatory reasons was either a post hoc fabrication or otherwise did not actually motivate the employment action. In other words, the employee must demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s proffered legitimate reasons for its action that a reasonable fact finder could rationally find them ‘unworthy of credence.’”71

Often, disparate treatment cases come down to whether other employees who Often, disparate have been more leniently treated by the employer are in fact “similarly situated.”72 treatment cases Since employees bring to any situation differences in work history, tenure, rank, come down to whether other disciplinary records, and other characteristics, it has usually proven difficult if not employees who impossible for employees claiming discrimination to establish that other employees have been are “similarly situated.”73 more leniently treated by the If the employer’s proffered reasons for disciplining an employee have shifted employer are in over time, the employee may be able to show that the reasons are a pretext for fact “similarly discrimination.74 At the same time, an employer is permitted to elaborate on its situated.” reasons for making an employment decision, and minor changes in its rationale for discipline will not be sufficient evidence to prove that its decision was a pretext for discrimination.75

DISPARATE IMPACT CASES. Title VII prohibits disparate impact discrimination to rid the workplace of “practices that are fair in form, but discriminatory in operation.”76 Disparate impact cases under Title VII are usually characterized by the same sort of shifting burden of proof typical in disparate treatment cases. In prosecuting a claim of disparate impact, the employee bears the initial burden of proving a prima facie case of discrimination. This prima facie case must be established by a showing that (1) specifically identifies each employment practice that is challenged, and (2) shows that the challenged practice causes or creates a significant disparity for those in a protected class.77 If the employee is successful in establishing a prima facie case, then the employer bears the burden of proving that the challenged employment policy is not discriminatory in intent, and that the policy serves a valid business necessity. If

FIREFIGHTERS AND EMPLOYMENT DISCRIMINATION — 283 the employer demonstrates that the employment policy is job-related, the employee may overcome that demonstration of job-relatedness by showing by a preponderance of the evidence that other selection criteria would serve the employer’s legitimate purposes without a similar discriminatory effect.78 Disparate impact cases start with statistical proof, with the aggrieved employee establishing that an employment practice or particular test results in a statistically disproportionate impact on the protected classification to which the employee belongs.79 To support a claim for discrimination, the “sample size” for the statistical sampling must be sufficiently large. Applying this principle, a court found insufficient to support an inference of discrimination evidence that an oral examination board scored all eight African-American candidates for the position of firefighter higher than all 30 white candidates.80 There are various approaches to statistical analysis that have been used by courts, and no consensus has developed establishing a mathematical standard against which all cases can be measured.81 As the Supreme Court has held, “a case-by-case approach properly reflects our recognition that statistics come in infi- nite variety and their usefulness depends on all the surrounding facts and circumstances.”82 Statistical disparities in examinations raise only an inference of discrimination, an inference that an employer can rebut. In one case, for example, a court found a significant statistical disparity when 74.3% of white candidates for promotional positions in the Buffalo Fire Department passed an examination, but only 42.6% of black candidates did so. The Court nonetheless rejected a claim that the examination constituted race discrimination, finding that the test had been appropriately validated by the employer, was job related, and that the firefighters challenging the examination had failed to suggest an alternative examination.83 A recent case involving the Fire Department of New York illustrates basic disparate impact principles. There was no question but that the entry-level written examination used by FDNY for firefighters had a disparate impact based on race – 1,390 black applicants and 2,125 Hispanic applicants sat for the examination, and yet only 80 black and 187 Hispanic applicants were hired, while almost 2,000 white applicants were hired. The burden of proof then shifted to FDNY to prove that there was a business necessity for its test. The Court found the City failed to meet this burden, and in striking down the test, ruled “the City’s job analysis adequately began by identifying tasks and abilities important to the job of entry-level firefighter. Yet, the undisputed evidence shows that the City nonetheless failed to establish the relationship between the tasks it identified and the abilities it sought to test, and that it failed to rely on an appropriate standard in assessing what abilities should be tested.”84 A case involving the practice of the New Haven, Connecticut Fire Department of “underfilling” promotional positions illustrates the degree of proof necessary to establish a disparate impact case. In setting aside a jury’s verdict that underfilling had an illegal disparate impact on African-American candidates for promotion, a court observed: “Although the evidence established that the practice

284 — FIREFIGHTERS AND EMPLOYMENT DISCRIMINATION of underfilling benefited the class of underfilled lieutenants by increasing their chances for promotion and adversely affected the class of budgeted lieutenants by reducing their chances for promotion, the plaintiffs presented no evidence that the percentage of underfilled African-American lieutenants who were eligible for promotion to captain was smaller than the percentage of budgeted African-American lieutenants. Indeed, the evidence presented by the defendants unequivocally demonstrated the opposite. There was no evidence from which the jury reasonably could have concluded that the practice of underfilling had reduced the chances of African-American firefighters as a class to be promoted or that it had increased the chances of non-African-American firefighters as a class to be promoted.”85

RETALIATION CLAIMS. Title VII also forbids retaliation against an employee for complaining of prohibited employment discrimination.86 To prove retaliation, the employee must present evidence demonstrating: (1) That she engaged in protected participation or opposition under Title VII; (2) that the employer was aware of this activity; (3) that the employer took adverse action against the plaintiff; and (4) that a causal connection exists between the protected activity and the adverse action, i.e., that a retaliatory motive played a part in the adverse employment action.87 Similar to the showing required for claims of discrimination, once the employee has established a prima facie case, the employer can rebut the inference of discrimination by showing a legitimate, independent business reason for its decision, and the employee can rebut the employer’s justification by showing that it is a pretext. The anti-retaliation provision of Title VII, unlike the substantive provisions of the statute, is not limited to discriminatory actions that impact employment terms and conditions. According to the Supreme Court, to prevail on a claim for retaliation under Title VII, “a plaintiff must show that a reasonable employee would have found the challenged action materially adverse, which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.”88 An employee need only show that his employer took an adverse action and that a reasonable employee would find the employer’s action While the initiation of to be adverse. For example, while the initiation of a disciplinary investigation a disciplinary would not amount to the adverse employment action necessary for a discrimina- investigation tion claim, it would suffice to support a retaliation claim.89 would not amount Retaliation claims are different from substantive discrimination claims in to the adverse employment yet another way. In order to prevail on a claim for retaliation, the employee need action not establish that the conduct initially complained of amounted to an unlaw- necessary for a ful employment practice, but need only demonstrate that she had a good faith, discrimination claim, it would reasonable belief that the underlying challenged actions of the employer violated suffice to support the law. Complaints through the employer’s internal affairs process qualify as pro- a retaliation tected activities under anti-discrimination law.90 While the employee must show claim. that a causal nexus exists between her protected activity and the adverse employment action, retaliatory motive need not be the sole cause of the adverse employ-

FIREFIGHTERS AND EMPLOYMENT DISCRIMINATION — 285 ment action, but retaliation must be a substantial or motivating factor behind the adverse action.91 Employees often argue that if an adverse employment action occurs shortly after they have engaged in protected activity, it may be appropriate to draw an inference of discrimination.92 Courts view such arguments with a bit of jaundice, finding that even a three-month gap in time – assuming there is no other evidence of discrimination – is insufficient to raise the inference that the employment action was provoked by the protected activity.93 However, if the gap between the two events is quite close, the quick sequencing of events, standing alone, can raise the necessary inference of causation.

SEXUAL OR RACIAL HARASSMENT. An offshoot of discrimination claims is a claim of sexual or racial harassment. In the past few years, profound changes have occurred in the law of harassment, changes that make most such lawsuits unsuccessful. Today, it is a rarity to find a firefighter prevailing in a harassment lawsuit. To understand the changes in the law, it is important to start with the requirements of Title VII itself. In order to establish a Title VII harassment claim, an employee must show the following: • That he or she belongs to a protected group; • That he or she was subjected to unwelcome sexual or racial harassment; • That the harassment was based on sex or race; and • That the harassment affected a term, condition, or privilege of employment.94 Sexual harassment, broadly defined, includes verbal or physical contact of a Sexual harassment includes verbal or sexual nature which either creates an intimidating, hostile or offensive working physical contact environment, or which unreasonably interferes with an individual’s work per- of a sexual formance.95 Sexual harassment can be perpetrated by members of the same or nature which opposite sex, no matter the sexual orientation of the harasser.96 To the extent that either creates an intimidating, a firefighter is a willing participant in jokes of a sexual nature or sexual banter, the hostile or firefighter’s claim of harassment will be much harder to establish.97 offensive working There are two main types of harassment claims. In the first, so-called “hos- environment, or which tile work environment” claims, the employee is contending that the workplace is unreasonably inappropriately tolerant of racially or sexually offensive behavior. For the employer interferes with an to be sued for a hostile work environment, it must have done something for the individual’s work 98 performance. conduct to be imputed to it. In assessing whether conduct rises to the level of a hostile work environment, courts consider (1) the frequency of the conduct; (2) the severity of the conduct; (3) whether the conduct is physically threatening or humiliating, or a mere offensive utterance; and (4) whether the conduct unreasonably interferes with the employee’s job performance.99

286 — FIREFIGHTERS AND EMPLOYMENT DISCRIMINATION The second main form of sexual harassment is referred to as “quid pro quo” harassment, where a supervisor either states or implies to an employee that the granting of sexual favors will either enhance the employee’s career or ensure that the employee retains a job.100 In addition, if a supervisor is having an affair with a subordinate, it is possible that the affair creates a hostile work environment for coworkers if the subordinate receives benefits or opportunities denied other employees.101 An employer is prohibited from retaliating against employees who file a harassment claim; critical to a finding of retaliation is that the employer’s actions must in fact be motivated by a desire to punish the employee for filing the complaint.102

THE SUPREME COURT’S SIGNIFICANT CHANGES IN HARASSMENT LAW. The law of harassment has changed hugely in the last ten years. The impetus for much of the change was a 1998 United States Supreme Court decision known as Oncale v. Sundowner Offshore Services. In the case, the Court held that Title VII “does not reach genuine but innocuous differences in the ways men and women routinely interact with members of the same sex and of the opposite sex. The prohibition of harassment on the basis of sex requires neither asexuality nor androgy- ny in the workplace, it forbids only behavior so objectively offensive as to alter the ‘conditions’ of the victim’s employment.”103 The hundreds of cases after Oncale show how far the pendulum has swung. For example, in the last few years, courts have found that the following conduct does not constitute harassment under Title VII: • Complaints by an employee that the fire chief (1) hugged her three times; (2) twice made comments to her about being “voluptuous”; (3) said he was not listening to her because he was distracted by her beauty; (4) walked too closely behind her; (5) closed the door when he met with her in his office; (6) told her she looked cute in her pajamas; (7) brought her flowers and bagels to apologize for disturbing her the previous night; (8) complimented her perfume; (9) called her by the wrong name; and (10) grabbed her by the arm when she tried to leave.104 • “Vulgar and profane” language used by male firefighters that was “uncivilized and unprofessional,” but was not gender specific.105 • The repeated display of a nude picture of an overweight woman who resembled a paramedic, along with the comment, “Doesn’t this look like Bonnie (referring to the paramedic)?”106

FIREFIGHTERS AND EMPLOYMENT DISCRIMINATION — 287 • Instances of racial comments, slurs and jokes, where those instances were “isolated.”107 Moreover, the requirement in Oncale that there be discrimination in order to substantiate a sexual harassment claim has led courts to reject harassment lawsuits unless the employee can show an “adverse employment action” such as discharge, demotion, transfer or suspension. Interpreting this requirement strictly, courts have found that the following actions by an employer do not amount to the requisite adverse employment action necessary to sustain a harassment lawsuit: • Pending disciplinary charges.108 • Difference in raises.109 • Assignments to demeaning duties.110 • Negative performance evaluation and diminishment of job duties.111 • Placement on paid administrative leave.112 • Threats.113 • Reprimand.114 • Shift change.115 • Heightened scrutiny from supervisors.116 The Supreme Court was not through with sexual harassment law when it decided Oncale. Also in 1998, the Court decided the companion cases of Faragher v. City of Boca Raton and Burlington Industries v. Ellerth. 117 In both of the cases, the Court dealt with a critical issue in harassment law – when an employer is An employer is vicariously liable for hostile work environment sexual harassment. For many years, liable for a hostile the law has been settled with respect to hostile work environment harassment environment perpetrated by co-workers of equal or lower rank. Under those rules, an employer created by a non-supervisory is liable for a hostile environment created by a non-supervisory coworker only if coworker it was “negligent either in discovering or remedying the harassment” or, in other only if it was words, if it “knew or should have known of the harassment and failed to imple- “negligent either ment prompt and appropriate corrective action.”118 Not surprisingly, successful in discovering or remedying the hostile work environment harassment claims based on co-worker conduct are rare. harassment.” It has also long been established that as the rank or status of the harasser increases, so to does the potential liability of the employer for the harassment.119 Faragher and Ellerth dealt with when an employer is liable for hostile work environment sexual harassment perpetrated by a supervisor. The Court announced a series of new rules in Faragher and Ellerth. Under the rules, an employer is automatically liable for hostile work environment harassment if the harassment is accompanied by adverse employment action such as discharge, demotion, suspension, or transfer. These serious employment decisions are often

288 — FIREFIGHTERS AND EMPLOYMENT DISCRIMINATION referred to as “tangible employment actions.”120 Less substantial employment actions such as reassignments do not qualify as tangible employment actions.121 The vast majority of sexual harassment cases, however, do not involve such overt adverse employment action. Rather, they involve employees who are the victims of solely the harassment, and not any accompanying employer-imposed job actions. In such cases, the Court held, an employer is liable unless it can show that it (1) had a sexual harassment policy and made some effort to stop the harassment; (2) that the employee unreasonably failed to make use of the policy; and (3) that had the employee used the policy to complain about the harassment, the harassment would have stopped. Almost immediately, it became apparent that employers could easily establish all three elements of the Faragher/Ellerth defense, and could escape liability for hostile work environment sexual harassment. The first requirement has proven the easiest to establish, since virtually all employers of any size have sexual harassment policies and, if they receive a harassment complaint, take some minimal steps to correct the harassment.122 An employer is not required to conduct a proceeding in the nature of a trial to investigate allegations of sexual harassment. An employer may conduct an “inquiry informally in a manner that will not unnecessarily disrupt the employer’s business, and in an effort to arrive at a reasonably fair estimate of truth.”123 Federal courts have generally found corrective measures inadequate only when the alleged harasser is not disciplined and harassment is allowed to continue.124 The second of the Faragher/Ellerth requirements – whether the employee unreasonably failed to make use of the policy – has proven just as easy to meet, with courts holding that there is virtually no reasonable basis, including threats of retaliation or the fact that an employer has failed to act on prior harassment complaints, for failing to use a sexual harassment policy.125 In addition, the failure to The failure to timely complain timely complain about the harassment through using the employer’s harassment about the policy almost always acts as a bar to a later lawsuit for the harassment.126 The harassment third requirement has become almost pro forma, since an employer sued for sexual through using the employer’s harassment will unfailingly offer testimony that had the employee complained of harassment policy the harassment, the harassment would have stopped. almost always The Faragher/Ellerth defense does not apply to most of what are known as acts as a bar to a “constructive discharge” cases. A constructive discharge occurs where an employee later lawsuit for the harassment. deliberately and discriminatorily creates work conditions so intolerable that a reasonable person would have felt compelled to resign.”127 Thus, the Faragher/ Ellerth defense is not available to the employer if the employee quits “in reasonable response to an employer-sanctioned adverse action officially changing her employment status or situation, for example, a humiliating demotion, extreme cut in pay, or transfer to a position in which she would face unbearable working conditions.”128 As the Supreme Court has described it, constructive discharge represents a “worst case” harassment scenario, “harassment ratcheted up to the breaking point.”129

FIREFIGHTERS AND EMPLOYMENT DISCRIMINATION — 289 Rounding out its decisions, the Supreme Court held in 2001, in Clark County School District v. Breeden, that a single sexually-suggestive statement and chuckling about the statement was not enough to constitute sexual harassment. Referring to the offensive comment, the Court found that it was “at worst an isolated incident that cannot remotely be considered ‘extremely serious,’ as our cases require.”130 Cases involving firefighters since Clark County have made clear that harassment claims cannot be based on a single offensive comment, or even a relatively small number of offensive comments,131 and that a prolonged environment of racist or sexist behavior is necessary.132 It is difficult to overstate how significant the Supreme Court’s decisions have been in rewriting the law of racial and sexual harassment. Where once the law reporters were replete with examples of successful harassment lawsuits, they are now far fewer than any victories by employees. Though no formal statistics have been compiled, it is a safe statement that today employers prevail in more than 85% of harassment lawsuits.133 Occasionally an employee – usually a firefighter recruit – will complain of abusive conduct by a supervisor that is not related to the employee’s race or gender. If an employer treats men and women identically, the employer’s conduct will not constitute sexual harassment, no matter how offensive the conduct may be.134

AFFIRMATIVE ACTION PROGRAMS. The legal landscape concerning affirmative action programs is currently very unsettled. What can be said is that in the absence of a bona fide affirmative action plan, it is almost always illegal for an employer to base employment decisions upon an individual’s race or gender.135 A court finding that an affirmative action plan is justified is not necessarily a prerequisite for an affirmative action plan.136 An employer must tread very carefully in making race-based decisions in the absence of an affirmative action plan. For example, the Supreme Court’s recent decision in Ricci v. DeStefano, which invalidated the way the City of New Haven, Connecticut went about achieving racial balance in the promotional ranks of its fire department, is an example of the pitfalls an employer can face in taking race into consideration. In Ricci, when a promotional examination produced what the City of New Haven viewed to be an inadequate number of minority candidates, the City discarded the examination. The Court found the City’s actions violated the Title VII rights of the non-minority candidates who performed well on the examination. As the Court ruled, once a promotional process has been established, and “employers have made clear their selection criteria, they may not then invalidate the test results, thus upsetting an employee’s legitimate expectation not to be judged on the basis of race. Doing so, absent a strong basis in evidence of an impermissible disparate impact, amounts to the sort of racial preference that Congress has dis- claimed.”137 A similar result was reached in a case involving the Newark, New Jersey Fire Department. The Department, seeking to achieve racial diversity, used race-based

290 — FIREFIGHTERS AND EMPLOYMENT DISCRIMINATION transfers and assignments to eliminate single-race fire companies. In holding the actions illegal, a federal court of appeals ruled that “while we agree with the City that the elimination of de facto segregation may well benefit individual employees and society at large and is, indeed, a laudable goal, we cannot agree that doing so constitutes a compelling interest that can be achieved by means of a racial classification.”138 A good deal of uncertainty also exists as to whether or when an affirmative action plan is bona fide and thus permissible.139 The uncertainty is directly traceable to the repeated refusal by the Supreme Court to address the ultimate issue of the legality of affirmative action plans. Much of the uncertainty stems from two 2003 Supreme Court decisions, which began with the well-established proposition that any consideration of race by the government must be justified by a “compelling” interest.140 In Grutter v. Bollinger, the University of Michigan’s law school took race into account in a non- specified way as part of the goal of enrolling a “critical mass” of minority students. The Court found that the benefits of diversity were substantial, citing the observa- tions of high-ranking retired officers and civilian leaders of the United States military to the effect that a “highly qualified, racially diverse officer corps is essential to the military’s ability to fulfill its principal mission to provide national security.” The Court concluded that the law school had a compelling interest in considering race in its admissions process, reasoning that “effective participation by members of all racial and ethnic groups in the civic life of our Nation is essential if the dream of one Nation, indivisible, is to be realized.”141 The Court’s decision on the University’s undergraduate affirmative action program, Gratz v. Bollinger, complicated matters. The undergraduate program automatically assigned one fifth of the points needed to guarantee admission to each underrepresented minority applicant solely because of race. The Supreme Court struck down the program as illegal, concluding that the program called for illegal quotas. In the Court’s view, “mechanical, predetermined diversity bonuses” are never acceptable, and if race is to be used at all, it must be in “a flexible, non- mechanical way.”142 At their core, Grutter and Gratz stand for the proposition that an affirmative action program can take race or other protected classes into consideration if there is some compelling reason to do so, but only under limited and unspecified circumstances. This gives little guidance to either employers or employees as to when affirmative action plans are legal. To the extent that an affirmative action plan is legal at all – and many fire department affirmative action plans have now been ruled illegal – it must meet the requirements of Title VII of the Civil Rights Act.143 Specifically, the plan must be “narrowly tailored” only to remedy the prior discrimination and extend no farther than necessary to meet this goal.144 As these requirements have been interpreted by the courts, an affirmative action plan must conform to the following standards to be “narrowly tailored”:

FIREFIGHTERS AND EMPLOYMENT DISCRIMINATION — 291 The Plan Must Be Temporary. Though the affirmative action plan need not have a specific expiration date, the plan must be temporary rather than permanent in nature,145 and cannot last after the vestiges of discrimination have been eliminated.146 The Plan Must Only Select Qualified Candidates. While the employees’ presence in a protected class such as gender or race may be a “plus” factor in selecting between candidates, the selected candidates must still meet all of the minimum qualifications for the job.147 The Plan Cannot Contain Quotas. In order to conform with the Fourteenth Amendment and Title VII, an affirmative action plan cannot impose quotas or fixed percentages of protected classes which will be hired or otherwise affected by an employment decision.148 If a plan sets aside no fixed number of positions for protective classes but merely establishes goals which are to be sought, the plan will not be construed as having an impermissible quota.149 The Plan’s Goals Should Be Set by Reference to the Labor Market. The numeric goals set by the plan should bear a direct relationship to the relevant labor market. For example, if the relevant labor market is 50% African- American, an affirmative action plan should set a goal of hiring or promoting African-Americans until approximately 50% of the work force is African- American.150 The Plan Cannot Create an “Absolute Bar” to Other Applicants. While an affirmative action plan can give preferential treatment to certain protected classes, it cannot act as an absolute bar to the employment or promotion of non-members of the protected classes.151 Use of a fixed black/white ratio in promotions does not constitute an impermissible absolute bar. As noted by the Supreme Court in a case upholding a one-for-one black/white ratio for promotions in the Alabama Department of Public Safety, the ratio “* * * only postpones the promotions of qualified whites. Consequently, like a hiring goal, it imposes a dif- fuse burden foreclosing only one of several opportunities.” The Plan Cannot Use “Race Norming.” The Civil Rights Act of 1991 prohibited the use of “race norming,” in which test scores are adjusted according to an individual’s race or gender before the final hiring or promotional list is developed. Accordingly, an affirmative action plan using race norming is illegal. The Plan Should Have Waiver Provisions. Though perhaps not absolutely necessary, an affirmative action plan is more likely to be upheld if it has provisions which waive affirmative action requirements

292 — FIREFIGHTERS AND EMPLOYMENT DISCRIMINATION under certain circumstances. For example, a plan which waives affirmative action promotions during a period of layoff is more likely to be upheld. The Plan Must Affect a Limited Type of Employment Decisions. To the extent that an affirmative action plan impacts the employment ranks of existing employees, it is less likely to be ruled valid than a plan which merely concerns hiring practices. Similarly, an affirmative action plan which causes the layoffs of existing employees is much less likely to be upheld than a plan which simply gives preferential treatment on promotional decisions to members of protected classes. The reason for these distinctions is that plans which adversely affect the vested rights of existing employees may disrupt seniority rights or expectations under state and local laws. As noted by the Supreme Court: “In cases involving valid hiring goals, the burden to be borne by innocent individuals is diffused to a considerable extent among society generally. Though hiring goals may burden some innocent individuals, they simply do not impose the same kind of injury that layoffs impose. Denial of a future employment opportunity is not as intrusive as loss of an existing job.”152

PREGNANCY DISCRIMINATION. One of the many laws that contributed to Title VII of the Civil Rights Act was the Pregnancy Discrimination Act of 1978.153 Essentially, the Pregnancy Discrimination Act requires employers to treat women affected by pregnancy in the same manner as other applicants or employees with similar abilities or limitations. That means that an employer cannot automatically force pregnant firefighters onto leave status without first determining the firefighters’ ability to perform the essential functions of the job, and even then cannot treat pregnant firefighters differently than non-pregnant firefighters who have medical conditions that produce limitations of the same kind as pregnancy. Thus, if the employer allows other temporarily disabled employees to perform modified job tasks or reassigns them to other positions, the employer must accord pregnant firefighters the same considerations. Apart from the protections provided by the Pregnancy Discrimination Act, a normal pregnancy does not amount to a disability under the Americans with Disabilities Act and related laws.154 Age discrimination AGE DISCRIMINATION. cases filed by firefighters Because the Supreme Court has held that age is not a classification entitled to which proceed the highest levels of protections under the Constitution, age discrimination cases on traditional filed by firefighters which proceed on traditional constitutional grounds have constitutional 155 grounds been almost always unsuccessful. For this reason, virtually all age discrimina- have been tion cases involving firefighters proceed under the federal Age Discrimination in almost always unsuccessful.

FIREFIGHTERS AND EMPLOYMENT DISCRIMINATION — 293 Employment Act of 1967 (ADEA), which provides protection against age discrimination for persons older than 40 years of age.156 The relevant portions of the ADEA provide as follows: “It shall be unlawful for an employer – “(1) To fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age; “(2) To limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise affect his status as an employee, because of such individual’s age.”157 To prove age discrimination under the ADEA, an employee must show either direct discrimination based upon age (usually in the form of incriminating statements made by the employer) or must follow the shifting burden of proof model common to many discrimination claims. Under this model, an employee must make a prima facie case of age discrimination by showing the following: (1) He was within the protected age group; (2) he was doing satisfactory work; (3) he was discharged or otherwise suffered an adverse employment action; and (4) a younger person replaced him or he received less favorable treatment than younger employees.158 If the employee makes this initial showing, the employer has the ability to show that legitimate, non-discriminatory reasons exist for its employment decision concerning the employee. If the employer meets this burden, it successfully defeats the employee’s claim unless the employee is able to show that the employer’s reasons are pretextual in nature.159 In all circumstances, the employee must essentially prove, whether directly or by implication, that the employer’s actions are impermissibly based on the employee’s age, and not on other factors.160 For example, a requirement that only employees over the age of 40 would be required to participate in annual heart examinations would violate the ADEA.161 By prohibiting discrimination on the basis of age, the ADEA immediately brought into question the validity of mandatory retirement ages. Most cases challenging firefighter mandatory retirement ages under the ADEA were successful, with mandatory retirement ages being struck down by courts in dozens of fire protection agencies.162 After indecision that lasted a number of years, Congress amended the ADEA in 1996, allowing a public employer to discharge a firefighter or other public safety employee based on his age, subject to two principal conditions. First, the ADEA specifies that the employee must have attained either the mandatory retirement age that the employer had in place as of March 3, 1983, or if the age limit was enacted after the date the 1996 exemption took effect, the higher of the retirement age specified in the post-1996 enactment or the age of 55. Second, the ADEA requires that the retirement plan be bona fide, and not a “subterfuge” to evade the purposes of the ADEA. Thus far, no court has struck down a retirement age as being

294 — FIREFIGHTERS AND EMPLOYMENT DISCRIMINATION a “subterfuge,” even when the avowed purpose of the retirement age is to phase out older employees.163 The amendments to the ADEA have seemingly laid to rest any questions as to whether maximum retirement ages for firefighters are legal.164 Regulations setting maximum ages upon hire have generally withstood attack, since the ADEA only protects those over the age of 40.165 This has resulted in courts reaching the rather anomalous result that laws which forbid employment as firefighters if the applicant is over the age of 30 are enforceable only against those between the ages of 30 and 40, but not against those who, because they have reached their fortieth birthday, fall within the protections of the ADEA.166 Cases challenging maximum hiring ages under the Fourteenth Amendment to the United States Constitution have similarly been unsuccessful.167 An exception to this pattern of unsuccessful constitutional age discrimination lawsuits came in a lawsuit challenging a Montana statute setting a maximum entry age of 34 for newly-hired firefighters. The Montana Supreme Court found there to be no rational basis for the age limitation, concluding: “Without any factual or empirical basis for drawing a cut-off point at 34 years of age, the limitation is wholly arbitrary. The fact that firefighters in their 50s can perform their functions competently demonstrates that this age limitation is without any rational basis, and is not rationally related to the statute’s objective.”168 As with many other forms of protected class discrimination, an employee has a 169 An employee has right to be free from a hostile work environment based upon age. As with other a right to be free forms of hostile work environment harassment, the employee must prove that the from a hostile impermissible conduct is severe or pervasive, and that the employer failed to have work environment in place remedial measures that would have prevented the harassment.170 based upon age.

DISCRIMINATION ON THE BASIS OF SEXUAL ORIENTATION. Where once there was a fair amount of litigation filed asserting that fire protection agencies wrongfully discriminated on the basis of an employee’s or applicant’s sexual orientation, the cases of employment discrimination of firefighters based on their sexual orientation have largely vanished from the scene, probably owing to changing social sensibilities. Over the years, neither Title VII nor the Fourteenth Amendment had been interpreted to provide much protection against discrimination on the basis of sexual orientation. Most courts have found homosexuality not to be a “protected class” under the Fourteenth Amendment, meaning that an employer need only advance a “rational basis” in order to justify discrimination against homosexuals.171 However, any number of local ordinances forbid discrimination on the basis of sexual orientation. For example, the District of Columbia Human Rights Act includes sexual orientation in its general ban on discrimination: “It shall be an unlawful discriminatory practice to do any of the following acts, wholly or partially for a discriminatory reason based upon the race, color, religion, national origin, sex, age, marital status, personal appearance, sexual orientation, family responsibilities,

FIREFIGHTERS AND EMPLOYMENT DISCRIMINATION — 295 physical handicap, matriculation, or political affiliation, of any individual: “(1) To fail or refuse to hire, or to discharge, any individual; or otherwise to discriminate against any individual, with respect to his compensation, terms, conditions, or privileges of employment, including promotion; or to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities, or otherwise adversely affect his status as an employee.”172 Where the legal status of discrimination on the basis of sexual orientation is still unsure, one case has definitively accorded protections to a pre-operative transsexual firefighter. Quoting from the decision in another case, the Court found that “sex stereotyping based on a person’s gender non-conforming behavior is impermissible discrimination, irrespective of the cause of that behavior; a label, such as ‘transsexual,’ is not fatal to a sex discrimination claim where the victim has suffered discrimination because of his or her gender non-conformity.”173

“CLASS OF ONE” DISCRIMINATION. From time to time, and usually with unfavorable results, firefighters brought lawsuits alleging “class of one” discrimination claims.174 The theory behind a “class of one” lawsuit was that the firefighter had been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment.175 In 2008, through its decision in Engquist v. Oregon Department of Agriculture, the United States Supreme Court abruptly changed the law in the area, holding that “class of one” claims could not be brought by public employees.176 The Engquist decision will almost certainly end any litigation in the area by firefighters.177

DISCRIMINATION AND SENIORITY SYSTEMS. Seniority systems, whether contained in an employer’s rules or in a collective bargaining agreement, usually grant employees with longer tenure benefits in the area of job protection and promotional opportunities. In an agency with a history of prior discrimination where minority employees have only recently been hired, seniority systems can work to adversely affect minority employees by the disproportionate effect such systems have on junior employees. Occasionally such seniority systems are attacked under Title VII on a disparate impact theory. On occasion, seniority systems have been attacked where they collide with the obligation of an employer to reasonably accommodate another employee’s disability, religion, or other protected class status. The general rule is that if a seniority system has been established for a bona- fide (i.e., non-discriminatory) reason, the seniority system will “trump” the rights

296 — FIREFIGHTERS AND EMPLOYMENT DISCRIMINATION of other employees.178 Title VII, for example, gives broad protections to bona fide seniority systems: “It shall not be an unlawful employment practice for an employer to apply different standards of compensation, or different terms, conditions, or privileges of employment pursuant to a bona fide seniority system provided that such differences are not the result of an intention to discriminate because of race.”179 In order to strike down a seniority system under Title VII, an aggrieved firefighter would be required to show not only that the seniority system adversely affected the members of a protected class, but also that the system was the product of a discriminatory intent or illegal purpose.180 This is a burden which is extremely hard to meet, especially if the seniority system on its face is neutral and applies equally to all officers, regardless of race or sex.181

FIREFIGHTERS AND EMPLOYMENT DISCRIMINATION — 297 NOTES 1 City of Cleburne v. Cleburne Living Center, 473 U.S. 432 (1985). 2 Loving v. Virginia, 388 U.S. 1 (1967). 3 Graham v. Richardson, 403 U.S. 365 (1971). But see Ambach v. Norwick, 441 U.S. 68 (1979). 4 Korematsu v. United States, 323 U.S. 214 (1944). 5 Mills v. Habluetzel, 456 U.S. 91 (1982). 6 Mississippi University for Women v. Hogan, 458 U.S. 718 (1982). Gender discrimination includes discrimination because of gender identity. Smith v. City of Salem, Ohio, 378 F.3d 566 (6th Cir. 2004). 7 Lalli v. Lalli, 439 U.S. 259 (1978). 8 Bowers v. Hardwick, 478 U.S. 186 (1986). 9 Meek v. Rideoutte, 56 FEP Cases 575 (D. S.C. 1989). 10 Lowes v. Sayad, 614 F. Supp. 1206 (E.D. Mo. 1985). 11 Morgan v. City of Wheeling, 516 S.E.2d 48 (W.V. 1999). 12 Petersen v. City of Mesa, 83 P.3d 35 (Ariz. 2004). 13 Henry v. Jones, 507 F.3d 558 (7th Cir. 2007). 14 Margerum v. City of Buffalo, 880 N.Y.S.2d 820 (A.D. 2009). 15 Diaz v. City of Inkster, 2007 WL 1424206 (E.D. Mich. 2007)(upholds jury verdict $253,997 to white applicant for chief’s job). 16 Alexander v. City of Milwaukee, 474 F.3d 437 (7th Cir. 2007)(City of Milwaukee liable for chief’s promotional practices that discriminated against white candidates). 17 Title 42, § 2000e-2, United States Code. By its terms, Title VII applies to local governmental bodies. See Title 42, § 2000e(h), United States Code. 18 Washington v. Davis, 426 U.S. 229 (1976). 19 Jauregui v. City of Glendale, 852 F.2d 1128 (9th Cir. 1988). 20 U.S. v. Vulcan Soc., Inc., 637 F. Supp. 2d 77 (E.D. N.Y. 2009). 21 Hayes v. City of Lexington, 2009 WL 3787226 (Tenn. Ct. App. 2009). 22 Terrell v. City of Harrisburg, 549 F. Supp. 2d 671 (M.D. Pa. 2008). 23 Price Waterhouse v. Hopkins, 490 U.S. 288 (1989)(O’Connor, J., concurring); McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); Ross v. City of Perry, Ga., 2009 WL 3190450 (M.D. Ga. 2009). 24 Hammond v. County of Los Angeles, 72 Cal.Rptr.3d 311 (Cal. App. 2008)(rare to find direct evidence of discriminatory intent). 25 Redd v. City of Phenix City, 934 F.2d 1211 (11th Cir. 1991). 26 Wilcox v. Prince George’s County, Fire/EMS Dept., 2009 WL 5174688 (D. Md. 2009). 27 Beyer v. County of Nassau, 524 F.3d 160 (2d Cir. 2008)(denial of transfer); McDonald v. Pierce County Fire Protection Dist. No. 13, 2006 WL 223740 (W.D. Wash. 2006)(discharge); Costantin v. New York City Fire Dept., 2009 WL 3053851

298 — FIREFIGHTERS AND EMPLOYMENT DISCRIMINATION (S.D. N.Y. 2009)(denial of promotion); Griffith v. City of Des Moines, 2003 WL 21976027 (S.D. Iowa 2003)(suspensions). But see Moore v. City of Chicago, 126 Fed. Appx. 745 (7th Cir. 2005)(transfer without loss of pay not an actionable adverse employment decision). 28 Gibson v. King County, 256 Fed. Appx. 39 (9th Cir. 2007). 29 Ellis v. Crawford, 2007 WL 1624773 (N.D. Tex. 2007). 30 Estate of Oliva v. New Jersey, 589 F. Supp. 2d 539 (D. N.J. 2008). 31 Wedow v. City of Kansas City, Mo., 442 F.3d 661 (8th Cir. 2006). 32 Jordan v. City of Cleveland, 464 F.3d 584 (6th Cir. 2006). 33 Carroll v. City of Dallas, Tex., 2005 WL 3543347 (N.D. Tex. 2005). 34 Wyckoff v. Maryland, 522 F. Supp. 2d 730 (D. Md. 2007). 35 Moore v. King County Fire Protection Dist. No. 26, 2005 WL 2898065 (W.D. Wash. 2005). 36 Caver v. City of Trenton, 420 F.3d 243 (3d Cir. 2005); Semsroth v. City of Wichita, 548 F. Supp. 2d 1203 (D. Kan. 2008). 37 Nichols v. Southern Illinois University-Edwardsville, 510 F.3d 772 (7th Cir. 2007). 38 Malais v. Los Angeles City Fire Dept., 58 Cal.Rptr.3d 444 (Cal. App. 2007). 39 Griffith v. City of Des Moines, 387 F.3d 733 (8th Cir. 2004). 40 Mylett v. City of Corpus Christi, 97 Fed. Appx. 473 (5th Cir. 2004). 41 Jones v. Wichita State University, 528 F. Supp. 2d 1182 (D. Kan. 2007). 42 Thorn v. Township of Cranford, 2007 WL 845890 (N.J. Super. A.D. 2007). 43 Berry v. City of South Portland, Me., 525 F. Supp. 2d 214 (D. Me. 2007). 44 Conner v. City of Jackson, Tenn., 2009 WL 3429690 (W.D. Tenn. 2009); Matthews v. City of Houston Fire Dept., 609 F. Supp. 2d 631 (S.D. Tex. 2009); Norwood v. City Of Los Angeles, 2009 WL 3087480 (Cal. App. 2 Dist. 2009). 45 Smith v. Osceola County, 2008 WL 2036826 (W.D. Mich. 2008); Villegas v. Harris County, 2007 WL 4465369 (Tex. App. 2007). 46 Coffman v. Indianapolis Fire Dept., 619 F. Supp. 2d 582 (S.D. Ind. 2008). 47 Costantin v. New York City Fire Dept., 2009 WL 3053851 (S.D. N.Y. 2009); see Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981). 48 Diggs v. Town of Manchester, 303 F. Supp. 2d 163 (D. Conn. 2004); Randolph v. Terrebonne Parish Consol. Government, 2003 WL 22836099 (E.D. La. 2003). 49 Velez v. City of Chicago, 442 F.3d 1043 (7th Cir. 2006). 50 Ogletree v. City of Auburn, 619 F. Supp. 2d 1152 (M.D. Ala. 2009). 51 Frederick v. City of Charlotte, 2007 WL 2695258 (W.D. N.C. 2007). 52 Rioux v. City of Atlanta, Ga., 520 F.3d 1269 (11th Cir. 2008). 53 Johnson v. City Of Denton Fire Dept., 2009 WL 4572826 (5th Cir. 2009); McCann v. Tillman, 526 F.3d 1370 (11th Cir. 2008). 54 Turner v. City of Akron, 324 Fed. Appx. 453 (6th Cir. 2009); Brantley v. City of New Haven, 364 F. Supp. 2d 198 (D. Conn. 2005). 55 Barr v. City of Eagle Lake, 2008 WL 717821 (M.D. Fla. 2008). 56 Hentze v. City of Portsmouth, 2007 WL 4553696 (E.D. Va. 2007).

FIREFIGHTERS AND EMPLOYMENT DISCRIMINATION — 299 57 Matthews v. City of Houston Fire Dept., 609 F. Supp. 2d 631 (S.D. Tex. 2009). 58 Johnson v. City of Denton Fire Dept., 2009 WL 242293 (E.D. Tex. 2009). 59 Terrell v. Contra Costa County, 232 Fed. Appx. 626 (9th Cir. 2007). 60 Hux v. City of Newport News, Va., 451 F.3d 311 (4th Cir. 2006); Holdcraft v. County of Fairfax, VA, 31 Fed. Appx. 97 (4th Cir. 2002); Mitchell v. City of Muncie, 2005 WL 1421744 (S.D. Ind. 2005). 61 Hickman v. City of Dayton, Ohio, 39 Fed. Appx. 243 (6th Cir. 2002). 62 Bell v. Town of Port Royal, S.C., 2008 WL 1816579 (D. S.C. 2008). 63 Wesley v. Arlington County, 2009 WL 4572781 (4th Cir. 2009). 64 McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). 65 Dumont v. City of Seattle, 200 P.3d 764 (Wash. App. 2009). 66 Linker v. City of Flint, 2003 WL 22798949 (Mich. App. 2003). 67 Torgerson v. City of Rochester, 2008 WL 5244761 (D. Minn. 2008); Smith v. City of Mobile, 2007 WL 2580516 (S.D. Ala. 2007). 68 Morrison v. Greeson, 2007 WL 2237624 (S.D. Ind. 2008). 69 Turner v. City of Auburn, 2008 WL 5328639 (M.D. Ala. 2008); Huffman v. City of Conroe, Tex., 2009 WL 361413 (S.D. Tex. 2009); Hentze v. City of Portsmouth, 2007 WL 4553696 (E.D. Va. 2007). 70 Maples v. City of Columbia, 2009 WL 483818 (D. S.C. 2009). 71 Ganaway v. City of Pittsburgh, 2008 WL 336297 (W.D. Pa. 2008). 72 Howe v. City of Akron, 2008 WL 5101239 (N.D. Ohio 2008). 73 E.g., Sellars v. Gary, 453 F.3d 848 (7th Cir. 2006). 74 Hayes v. City of Newnan, Ga., 2007 WL 2765555 (N.D. Ga. 2007). 75 Standard v. A.B.E.L. Servs. Inc., 161 F.3d 1318 (11th Cir. 1998). 76 Howe v. City of Akron, 2009 WL 3245428 (N.D. Ohio 2009). 77 Watson v. Fort Worth Bank & Trust, 487 U.S. 977 (1988). 78 M.O.C.H.A. Society, Inc. v. City of Buffalo, 2009 WL 604898 (W.D. N.Y. 2009); Bradley v. City of Lynn, 443 F. Supp. 2d 145 (D. Mass. 2006). 79 Stewart v. City of St. Louis, Paul E. Davis, 2007 WL 6211634 (E.D. Mo. 2007). See Griggs v. Duke Power Co., 401 U.S. 424 (1971)(general discussion of use of statistics in disparate impact cases). 80 Zottola v. City of Oakland, 32 Fed. Appx. 307 (9th Cir. 2002). 81 Bridgeport Guardians v. City of Bridgeport, 933 F.2d 1140 (2d Cir. 1991)(applies 5% rule – i.e., burden of proving prima facie case met if employee shows that exam results would not occur, on the average, even in one in 20 cases); Ogletree v. City of Auburn, 619 F. Supp. 2d 1152 (M.D. Ala. 2009)(discusses 80% rule, which concludes that if the protected class is selected by a test at less than 80% of the rate for the non-protected class, a prima facie case has been established). 82 Watson v. Fort Worth Bank & Trust, 487 U.S. 977 (1988). 83 M.O.C.H.A. Society, Inc. v. City of Buffalo, 2009 WL 604898 (W.D. N.Y. 2009). 84 U.S. v. Vulcan Soc., Inc., 637 F. Supp. 2d 77 (E.D. N.Y. 2009).

300 — FIREFIGHTERS AND EMPLOYMENT DISCRIMINATION 85 Broadnax v. City of New Haven, 984 A.2d 658 (Conn. 2009). 86 42 U.S.C. § 2000e-3(a). 87 Brannum v. Missouri Dept. of Corrections, 518 F.3d 542 (8th Cir. 2008); Anderson v. Nassau County Dept. of Corrections, 558 F. Supp. 2d 283 (E.D. N.Y. 2008). 88 Burlington Northern & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006). 89 Bressler v. City Of Los Angeles, 2009 WL 200242 (Cal. App. 2 Dist. 2009). 90 Raniola v. Bratton, 243 F.3d 610 (2d Cir. 2001). 91 Davison v. City of Minneapolis, Minn, 490 F.3d 648 (8th Cir. 2007). 92 Monroe Firefighters Ass’n v. City of Monroe, 2009 WL 772829 (W.D. La. 2009). 93 Matthews v. City of Houston Fire Dept., 609 F. Supp. 2d 631 (S.D. Tex. 2009). See Rogers v. Fort Wayne, 2008 WL 821693 (N.D. Ind. 2008)(collecting cases). 94 Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). 95 Coffman v. Indianapolis Fire Dept., 578 F.3d 559 (7th Cir. 2009). 96 Oncale v. Sundowner Offshore Services, 523 U.S. 75 (1998); Nichols v. Azteca Restaurant Enterprises, 256 F.3d 864 (9th Cir. 2001); Doe v. City of Belleville, Illinois, 119 F.3d 563 (7th Cir. 1997); Cromer-Kendall v. District of Columbia, 326 F. Supp. 2d 50 (D. D.C. 2004). 97 Staton v. Maries County, 868 F.2d 996 (8th Cir. 1989); Loftin-Boggs v. City of Meridian, 41 FEP Cases 532 (D. Miss. 1986). 98 Velez v. City of Chicago, 2005 WL 1631137 (N.D. Ill. 2005). 99 Godoy v. Habersham County, 2006 WL 739369 (N.D. Ga. 2006). 100 Pulse v. City of North Tonowanda, 811 F. Supp. 884 (W.D. N.Y. 1993). 101 Candelore v. Clark County, 975 F.2d 588 (9th Cir. 1992); see Dirksen v. City of Springfield, 64 FEP Cases 116 (C.D. Ill. 1994)(chief had affair with co-worker to whom he subsequently showed favoritism). 102 Pontarelli v. Stone, 930 F.2d 104 (1st Cir. 1991); Bedford v. South Eastern Pennsylvania Transit Authority, 867 F. Supp. 288 (E.D. Pa. 1994). 103 Oncale v. Sundowner Offshore Services, 523 U.S. 75 (1998). 104 Hensman v. City of Riverview, 316 Fed. Appx. 412 (6th Cir. 2009). 105 Mangum v. Town of Holly Springs, 551 F. Supp. 2d 439 (E.D. N.C. 2008). 106 Hale v. City of Dayton, 2002 WL 191588 (Ohio App. 2002). 107 Berry v. City of Bossier City, 911 So.2d 333 (La. App. 2005). 108 Williams v. NYC Department of Sanitation, 2001 WL 1154627 (S.D. N.Y. 2001). 109 Milligan v. Citibank, N.A., 2001 WL 1135943 (S.D. N.Y. 2001). 110 Matthews v. City of Houston Fire Dept., 609 F. Supp. 2d 631 (S.D. Tex. 2009). 111 Breland-Starling v. Disney Publishing Worldwide, 166 F. Supp. 2d 826 (S.D. N.Y. 2001). 112 Place v. City of Eugene, 2008 WL 442137 (D. Or. 2008). 113 Rizzo v. Sheahan, 266 F.3d 705 (7th Cir. 2001).

FIREFIGHTERS AND EMPLOYMENT DISCRIMINATION — 301 114 Dority v. City of Chicago, 2001 WL 1155286 (N.D. Ill. 2001). 115 Caples v. Media One Express of Illinois, Inc., 2001 WL 1188882 (N.D. Ill. 2001)(new shift ended at 11:00 p.m. four nights a week; old shift was day shift). 116 NiCastro v. Runyon, 60 F. Supp. 2d 181 (S.D. N.Y. 1999). 117 Faragher v. City of Boca Raton, 524 U.S. 775 (1998); Burlington Industries v. Ellerth, 524 U.S. 742 (1998). 118 Vulcan Pioneers of New Jersey v. City of Newark, 2008 WL 4224941 (D. N.J. 2008). 119 Steck v. Francis, 365 F. Supp. 2d 951 (N.D. Iowa 2005). 120 Faragher v. City of Boca Raton, 524 U.S. 775 (1998). 121 Jones v. District of Columbia, 346 F. Supp. 2d 25 (D. D.C. 2004). 122 See, e.g., Weger v. City of Ladue, 500 F.3d 710 (8th Cir. 2007). 123 Smith v. City of Chattanooga, 2007 WL 4374039 (Tenn. App. 2007). 124 See EEOC v. Harbert-Yeargin, Inc., 266 F.3d 498 (6th Cir. 2001); Mota v. Univ. of Tex. Houston Health Sci. Ctr., 261 F.3d 512 (5th Cir. 2001). 125 E.g., Weger v. City of Ladue, 500 F.3d 710 (8th Cir. 2007)(fear of retaliation not a basis for failing to use employer’s policy); Lauderdale v. Texas Dept. of Criminal Justice, Institutional Div., 512 F.3d 157 (5th Cir. 2007)(employer’s failure to act on prior harassment complaints no excuse for not using the employer’s policy to complain); Leopold v. Baccarat, Inc., 239 F.3d 243 (2d Cir. 2001)(employee’s belief that employer did not take seriously a co-worker’s complaint of sexual harassment no excuse for not using the employer’s harassment policy); Shaw v. Autozone, Inc., 180 F.3d 806 (7th Cir. 1999); Masters v. Town of Monterey, Tennessee, 2008 WL 586563 (M.D. Tenn. 2008)(fear that reporting harassment would be futile no excuse for not following policy); Dedner v. State of Oklahoma, 42 F. Supp. 2d 1254 (E.D. Okla. 1999)(reporting harassment five days after the last incident occurred, but three months after the first incident occurred is unreasonable because the employer is not afforded an opportunity to investigate the first incidents); Bishop v. National Railroad Passenger Corp., 66 F. Supp. 2d 650 (E.D. Pa. 1999); Montero v. AGCO Corp., 19 F. Supp. 2d 1143 (E.D. Cal. 1998); Fierro v. Saks Fifth Avenue, 13 F. Supp. 2d 481 (S.D. N.Y. 1998)(an employee’s fear of retaliation for reporting harassment does not alleviate his duty to use the employer’s complaint policy); Adler v. Wal-Mart Stores, Inc., 144 F.3d 664 (10th Cir. 1998)(a victim may have to suffer repeated harassment while an employer progressively disciplines the perpetrator because excessive discipline would subject employers to claims of wrongful termination); Perry v. Harris Chernin, Inc., 126 F.3d 1010 (7th Cir. 1997), cited in Hailemariam v. Neomedica, Inc., 1999 WL 495136 (N.D. Ill. 1999)(an employee must remain at her job while seeking redress through company policy, unless confronted with an aggravating situation beyond ordinary harassment). 126 Beverly v. Kaupas, 2008 WL 624045 (N.D. Ill. 2008); King v. Village of Gilberts, 2002 WL 1559629 (N.D. Ill. 2002). 127 Ross v. City of Perry, Ga., 2009 WL 3190450 (M.D. Ga. 2009). 128 Pennsylvania State Police v. Suders, 542 U.S. 129 (2004); Hernandez- Payero v. Puerto Rico, 493 F. Supp. 2d 215 (D. P.R. 2007). 129 Pennsylvania State Police v. Suders, 542 U.S. 129 (2004). 130 Clark County School District v. Breeden, 532 U.S. 268 (2001).

302 — FIREFIGHTERS AND EMPLOYMENT DISCRIMINATION 131 Costantin v. New York City Fire Dept., 2009 WL 3053851 (S.D. N.Y. 2009); Stoecker v. North Hudson Regional Fire & Rescue, 2009 WL 3762630 (N.J. Super. A.D. 2009); Thomas v. City of New York, 305 Fed. Appx. 754 (2d Cir. 2009); Belton v. City of Charlotte, 175 Fed. Appx. 641 (4th Cir. 2006). 132 Streeter v. City of Pensacola, 2009 WL 248103 (N.D. Fla. 2009); Thomas v. City of New York, 2007 WL 2156652 (E.D. N.Y. 2007). 133 See Hogan v. City of El Dorado, 455 F. Supp. 2d 876 (W.D. Ark. 2006). A number of recent studies suggests that employees prevail in only 15% of all discrimination cases, including harassment cases. Employment Discrimination Plaintiffs in Federal Court: From Bad To Worse, 3 Harvard Law & Policy Review 1 (2009). 134 Richardson v. City of Albuquerque, 857 F.2d 727 (10th Cir. 1988)(no harassment where all recruits treated equally offensively); Halasi-Schmick v. City of Shawnee, 759 F. Supp. 747 (D. Kan. 1991). 135 Williams v. Consolidated City of Jacksonville, 341 F.3d 1261 (11th Cir. 2003); Vivenzio v. City of Syracuse, 545 F. Supp. 2d 241 (N.D. N.Y. 2008). 136 Dean v. City of Shreveport, 438 F.3d 448 (5th Cir. 2006). 137 Ricci v. DeStefano, 129 S.Ct. 2658 (2009). 138 Lomack v. City of Newark, 463 F.3d 303 (3d Cir. 2006). 139 In United Steel Workers v. Weber, 443 U.S. 193 (1979), the Supreme Court approved voluntary affirmative action programs undertaken by a private employer. The Weber case did not address the question of whether a public employer could, consistent with Title VII, voluntarily adopt an affirmative action program. See generally Kreiling and Mercurio, Beyond Weber: The Broadening Scope of Judicial Approval of Affirmative Action, 88 Dick. L. Rev. 46 (1983). 140 Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995). 141 Grutter v. Bollinger, 539 U.S. 306 (2003). 142 Gratz v. Bollinger, 539 U.S. 244 (2003). 143 E.g., Quinn v. City of Boston, 325 F.3d 18 (1st Cir. 2003). 144 Kohlbek v. City of Omaha, Neb., 447 F.3d 552 (8th Cir. 2006). 145 Youngblood v. Dalzell, 925 F.2d 954 (6th Cir. 1994); Bratton v. City of Detroit, 704 F.2d 878 (6th Cir. 1983); Martinez v. City of St. Louis, 327 F. Supp. 2d 1002 (E.D. Mo. 2003). See generally United Steel Workers v. Weber, 443 U.S. 193 (1979). 146 Martinez v. City of St. Louis, 539 F.3d 857 (8th Cir. 2008); Hammon v. Barry, 826 F.2d 73 (D.C. Cir. 1987); Cleveland Fire Fighters For Fair Hiring Practices v. City of Cleveland, 2009 WL 2602366 (N.D. Ohio 2009); Martinez v. City of St. Louis, 470 F. Supp. 2d 1013 (E.D. Mo. 2005). 147 See Regents of the University of California v. Bakke, 438 U.S. 265 (1978). 148 Dietz v. Baker, 523 F. Supp. 2d 407 (D. Del. 2007). 149 Johnson v. Transportation Agency, Santa Clara County, California, 480 U.S. 616 (1987); Bullen v. Chaffinch, 336 F. Supp. 2d 342 (D. Del. 2004). 150 Detroit Police Officers Association v. Young, 56 FEP Cases 261 (E.D. Mich. 1991). 151 United Steel Workers v. Weber, 443 U.S. 193 (1979).

FIREFIGHTERS AND EMPLOYMENT DISCRIMINATION — 303 152 Wygant v. Jackson Board of Education, 476 U.S. 267 (1986). 153 42 U.S.C. § 2000e; see Dimino v. New York City Transit Authority, 64 F. Supp. 2d 136 (E.D. N.Y. 1999); Lunsford v. Leis, 686 F. Supp. 181 (S.D. Ohio 1988). 154 Larsen v. Township of Branchburg, 2007 WL 135706 (N.J. Super. A.D. 2007). 155 Gregory v. Ashcroft, 501 U.S. 452 (1991); Massachusetts Board of Retirement v. Murgia, 427 U.S. 307 (1976); see Bash v. City of Galena, Kansas, 42 F. Supp. 2d 1171 (D. Kan. 1999); McCann v. City of Chicago, 968 F.2d 635 (7th Cir. 1992)(different retirement ages for sergeants and patrol officers upheld under “rational basis” test of Fourteenth Amendment). 156 29 U.S.C. § § 621-634. 157 Title 29, § 623(a), United States Code. 158 Minell v. City of Minnetonka, 2009 WL 2928317 (Minn. App. 2009); Sheridan v. Jackson Twp. Div. Fire, 2009 WL 714081 (Ohio App. 2009); McVeigh v. City of Reno, 78 Fed. Appx. 639 (9th Cir. 2003). 159 Friedel v. Mountain View Fire Protection Dist., 2008 WL 435280 (D. Colo. 2008). 160 Kentucky Retirement Systems v. E.E.O.C., 128 S.Ct. 2361 (2008). 161 Rodock v. Town of Greenwich, 2008 WL 4633125 (Conn. Super. 2008). 162 Whitfield v. City of Knoxville, 567 F. Supp. 1344 (E.D. Tenn. 1983); Hahoney v. Trabusco, 574 F. Supp. 955 (D. Mass. 1983); EEOC v. Tennessee Wildlife Resources Agency, 859 F.2d 24 (6th Cir. 1988); Heiar v. Crawford County, 746 F.2d 1190 (7th Cir. 1985); EEOC v. Kentucky State Police, 860 F.2d 665 (6th Cir. 1988); Gately v. Commonwealth of Massachusetts, 811 F. Supp. 26 (D. Mass. 1992); EEOC v. City of Bowling Green, 607 F. Supp. 524 (W.D. Ky. 1985); EEOC v. Commonwealth of Pennsylvania, 829 F.2d 392 (3d Cir. 1987); EEOC v. Mississippi State Tax Commission, 837 F.2d 1398 (5th Cir. 1988); EEOC v. State of Florida, 660 F. Supp. 1104 (N.D. Fla. 1986); Coleman v. City of Omaha, 714 F.2d 804 (8th Cir. 1983); EEOC v. City of Minneapolis, 537 F. Supp. 750 (D. Minn. 1982); Dillon v. City of Chicago, 30 ATLA L.Rep. 118 (N.D. Ill. 1988). 163 Feldman v. Nassau County, 434 F.3d 177 (2d Cir. 2006); Minch v. City of Chicago, 363 F.3d 615 (7th Cir. 2004); Kannady v. City of Kiowa, 2006 WL 3452552 (E.D. Okla. 2006). In the 1996 legislation, Congress directed the Secretary of Health and Human Services to report to Congress within three years on the feasibility of testing the ability of police and firefighters to complete public safety tasks. Within four years, the Secretary was to issue advisory guidelines for the use and administration of tests designed to gauge the mental and physical competence of police and firefighting personnel. After those guidelines were issued, the Secretary was directed to issue regulations identifying appropriate tests that a state or local government could use to evaluate the fitness of police officers and firefighters who had reached the mandatory retirement age specified by that government. Once those regulations were in place, state and local governments would be compelled to give their public safety personnel the opportunity to demonstrate their continued fitness for duty once they reached retirement age. P.L. 104-208 § 119(2), 110 Stat. at 3009-24-3009-25. To date, however, no such guidelines or regulations have been issued. 164 Chase v. County of Los Angeles, 2007 WL 646241 (Cal. App. 2007). 165 29 U.S.C. § § 623 and 631.

304 — FIREFIGHTERS AND EMPLOYMENT DISCRIMINATION 166 See Hahn v. City of Buffalo, 596 F. Supp. 940 (W.D. N.Y. 1984); Colon v. City of New York, 535 F. Supp. 1108 (S.D. N.Y. 1982); Sobieralski v. City of South Bend, 479 N.E.2d 98 (Ind. App. 1985). See also EEOC v. University of Texas, 710 F.2d 1091 (5th Cir. 1983). 167 Doyle v. Suffolk County, 786 F.2d 523 (2d Cir. 1986). 168 Jaksha v. Butte-Silver Bow County, 214 P.3d 1248 (Mont. 2009). 169 Sebold v. City of Middletown, 2007 WL 2782527 (D. Conn. 2007). 170 Kassner v. 2nd Ave. Delicatessen Inc., 496 F.3d. 229 (2d Cir. 2007). 171 Padula v. Webster, 822 F.2d 97 (D.C. Cir. 1987). Contra Watkins v. U.S. Army, 837 F.2d 1428 (9th Cir. 1988), opinion withdrawn on unrelated grounds, 875 F.2d 699 (9th Cir. 1989). 172 D.C. Code § 2-1402.11 (2009). See generally Newman v. District of Columbia, 518 A.2d 698 (D.C. App. 1986). 173 Barnes v. City of Cincinnati, 401 F.3d 729 (6th Cir. 2005). 174 Martin v. North Metro Fire Rescue Dist., 2007 WL 4442373 (D. Colo. 2007). 175 Village of Willowbrook v. Olech, 528 U.S. 562 (2000). 176 Engquist v. Oregon Department of Agriculture, 128 S.Ct. 2146 (U.S. 2008). 177 Manemeit v. The Town Of Branford, 2009 WL 1743749 (D. Conn. 2009). 178 U.S. Airways, Inc. v. Barnett, 535 U.S. 391 (2002)(disability); Balint v. Carson City, Nev., 180 F.3d 1047 (9th Cir. 1999)(religion). 179 Title 42, § 2000e-2(h), United States Code. 180 Detroit Branch, NAACP v. Detroit Police Officers Association, 821 F.2d 328 (6th Cir. 1987). See generally International Brotherhood of Teamsters v. United States, 431 U.S. 324 (1977). 181 Black Law Enforcement Officers Association v. City of Akron, 824 F.2d 475 (6th Cir. 1987).

FIREFIGHTERS AND EMPLOYMENT DISCRIMINATION — 305 306 — FIREFIGHTERS AND EMPLOYMENT DISCRIMINATION CHAPTER 13

REMEDIES

REMEDIES — 307 THE CHOICE OF FORUMS – WHERE LAWSUITS ARE BROUGHT. There are a variety of forums available to a firefighter whose rights have been violated. The choice of forum will generally depend upon the nature of the right which was violated. If the right that was violated arises under state collective bargaining laws, one avenue for enforcement of the right may be through the state agency responsible for administering the collective bargaining law. In some states, courts hold that the exclusive jurisdiction over state collective bargaining law issues exists before such administrative agencies, and bar lawsuits in court on the same issues. In other states, the existence of a state agency administering collective bargaining laws does not preclude lawsuits in court on collective bargaining issues. If the right that was violated arises under a collective bargaining agreement, If the right that usually the only avenue open to seek redress of the right is through the grievance was violated arises under procedure in a collective bargaining agreement. Grievance procedures, particu- a collective larly those which end with binding arbitration, are usually considered a final and bargaining binding process, leaving no right to challenge in court the decision reached in the agreement, usually the only avenue grievance procedure unless the decision is illegal or was fraudulently obtained. open to seek If the right which was violated was established by civil service rules, the exclu- redress of the sive forum for the redress of the right is usually the civil service commission or right is through the grievance board which established the rules. Similarly, if the underlying right was established procedure in by state statute or administrative rule, the law or rule giving rise to the right will a collective usually dictate where a challenge to an employer’s decision can be filed. bargaining agreement. The choice of forums becomes more complicated when a firefighter is alleging violation of a federal statute or a provision of the United States Constitution. At a minimum, the firefighter has the option to proceed on such claims in federal court, though in some discrimination cases the firefighter may be required to exhaust administrative remedies through the Equal Employment Opportunity Commission.1 Claims that a state, city, or county agency has violated a federal constitutional right usually can also proceed in state court; whereas claims that the federal government has violated a constitutional right can only proceed in federal court. One significant development in the last five years has been a shift in where federal constitutional claims against fire protection agencies have been litigated by public safety employees. As the federal courts have grown more and more conservative, firefighters are no longer as likely to consider federal court as the first forum of choice for vindication of a violated constitutional right. Many more cases challenging the violation of constitutional rights are being filed in state court than ever before, particularly in states where the courts are considered to be more broad in their interpretation of the Constitution than the federal courts.

308 — REMEDIES LAWSUITS FOR VIOLATION OF FEDERAL CONSTITUTIONAL RIGHTS. Lawsuits for money damages for violation of a firefighter’s federal constitutional rights are controlled by a complicated set of rules. One set of rules deals with the immunity of public officials from damage lawsuits. The other set concerns whether an employer can be held liable for damages for the conduct of its firefighters.

LAWSUITS AGAINST GOVERNMENT OFFICIALS AND PUBLIC AGENCIES; QUALIFIED AND ABSOLUTE IMMUNITY.

Government officials who are performing discretionary functions are cloaked Government with a “qualified immunity” from liability, so long as their actions “could reason- officials who ably have been thought consistent with the rights they are alleged to have violat- are performing ed.”2 Whether a public official is protected by qualified immunity generally turns discretionary functions are on the “objective legal reasonableness” of the official’s actions viewed in light of cloaked with the legal rules that were “clearly established” at the time the actions were taken.3 a “qualified Only if the public official acts in a fashion which violates clearly established legal immunity” from 4 liability, so long rules will the official lose the qualified immunity from damages. As put by one as their actions court, “this standard shields all government officials except those who are either “could reasonably plainly incompetent or who knowingly violate the law.”5 Public officials are only have been thought consistent potentially individually liable for illegal actions in which they personally partici- with the rights pated.6 they are alleged Certain public officials have even a greater amount of immunity from law- to have violated.” suits. If a public official acts in a “quasi-judicial” role – acting as a disciplinary board member or in presenting the employer’s case to a disciplinary board – the official has absolute immunity from any lawsuits arising out of his conduct before the board.7 Public agencies, on the other hand, are not entitled to qualified immunity.8 However, public agencies can only be held liable for money damages for the violation of the federal constitutional rights of their firefighters if the violation is a result of an official policy or custom.9 The employer’s policy or custom “must be the moving force of the constitutional violation in order to establish the liability of a governmental body under Section 1983.”10 To show that an employer had a policy or custom which resulted in the violation of constitutional rights, a firefighter may rely on the actions or decisions of the supervisor who had the final decision- making authority on the issue in question, seeking to establish that the individual is a “policymaker,” and thus the employer should be liable for the individual’s decisions.11 Often, it is difficult to determine who the final policymaker is for purposes of a particular employment decision. Generally speaking, civil service boards or fire commissioners as well as city councils, if vested with final decision-making

REMEDIES — 309 authority, are the policymakers for disciplinary purposes, and not fire chiefs.12 However, if the fire chief is vested with the final authority to make disciplinary decisions, the chief becomes a policymaker for purposes of subjecting the employer to Section 1983 liability.13 A single decision by the final decision-maker may be sufficient to establish that the public employer has a policy that infringes on a person’s constitutional rights.14 Additionally, if the decision which violates a firefighter’s rights is not made by the final decision-maker but is later ratified by the employer, the necessary “policy or custom” may exist.15 Also, if the final decision-maker has knowledge that there is a policy or custom of rights deprivation in the agency and permits the policy or custom to continue, the agency may be liable for money damages.16 A suit against the public agency must A suit against the public agency must be brought against the employer itself, be brought against not an individual division of the employer. For example, where a suit against a city the employer itself, would be proper, a suit against the city’s fire department would ordinarily not be not an individual 17 division of the allowed. employer.

VOLUNTEER FIREFIGHTERS AND THE LAW. Volunteer firefighters stand on a different footing than paid staff with respect to a wide range of rights. In short, volunteer firefighters rarely have any rights, either under federal or state law, and typically only have such rights as a specific statute might grant them. Volunteer firefighters are generally not “employees” for purposes of coverage under Title VII of the Civil Rights Act,18 and thus cannot bring employment discrimination or harassment lawsuits under Title VII,19 nor are they typically covered by the Fair Labor Standards Act.20

DEFERRAL TO ARBITRATION OR ADMINISTRATIVE PROCEDURES. There are occasions where the firefighter is seeking to enforce an underlying right that arises under not only a federal or state statute or constitutional provision, but also under the terms of a collective bargaining agreement. If that is the case, an employer will often argue that the employee is required to proceed under the contract or an administrative appeal process either before or perhaps in lieu of a lawsuit. The usual rule is that if the underlying rights exist as a matter of federal or state law independent of the collective bargaining agreement, there is no obligation to arbitrate the dispute.21 However, if the claim is that the firefighter was denied due process, the firefighter may well be required to exhaust all contractual remedies that would allow a challenge to the employer’s decision.22 Most certainly, one rarely if ever finds a court holding that there is an obligation to arbitrate constitutional claims as opposed to those rights arising under a statute. While it is possible that a labor contract can require the arbitration of stat-

310 — REMEDIES utory rights (as opposed to those arising purely under the contract), courts usually require that the waiver of the right to proceed in court be clearly and unmistak- ably written into the labor contract before they will either find a requirement that the employee “exhaust” the contract’s grievance procedure before filing a lawsuit or conclude that the contract actually waives statutory rights.23 A modest exception to these rules exists with respect to due process cases. Where an employee is claiming in court that the employer’s disciplinary procedures do not comport with due process, the employee must show that he tried to use whatever procedures were in fact available under the employer’s system unless those procedures were obviously inadequate.24

DAMAGES IN FEDERAL CIVIL RIGHTS CASES. Firefighters who have suffered a loss of wages owing to the violation of their constitutional or civil rights are usually entitled to back pay; if discharged from employment, they are usually entitled to reinstatement as well.25 If employees have been wrongly passed over for promotion, they are entitled to a make-whole remedy that includes pay at the higher rate.26 As phrased by one court in a freedom of speech case, the goal of a court is “to restore the plaintiff, as nearly as possible, to the economic position he would have been in, absent the prohibited discrimination.”27 The right to back pay is so strong that it even survives the wrongly-terminated firefighter’s death and is payable to the firefighter’s estate.28 While most courts are in agreement on these basic principles, they are deeply divided over how to apply the principles to particular cases. For example, courts are split over the issue of whether back wages should be offset by any interim earnings received by the firefighter during the period of time the firefighter was discharged. Many courts believe that to allow such an offset is tantamount to giving partial approval to the employer’s violation of the firefighter’s rights.29 Other courts have ruled that an offset for interim earnings is necessary lest the firefighter receive a “windfall” from the litigation.30 Though the matter is not free from controversy, most courts rule that a firefighter is not entitled to recover for lost overtime opportunities.31 Furthermore, the right to recover either pre-judgment and/or post-judgment interest in addition to other amounts owed may depend upon the wording of the statute giving rise to the lawsuit.32 An unusual feature of some constitutional rights damage awards is “front pay,” designed to compensate a firefighter for the loss of future earnings.33 In cases where the firefighter is not being reinstated to employment, a court has the discretion to award front pay representing potential wages lost for a period of time extending as far as the firefighter’s probable retirement date.34 To adjust for the fact that there is always uncertainty as to whether the individual would have remained a firefighter in the future, courts take into account the discharged firefighter’s life expectancy as well as the duty to mitigate damages by finding other work.35

REMEDIES — 311 Even where damages are awarded to compensate a firefighter for the loss of wages, damages for violations of constitutional rights are generally not subject to federal income tax.36 The tax-free nature of the award is often taken into account in the assessment of the level of damages to be awarded. Successful claims under Title VII of the Civil Rights Act are subject to a damages “cap” of between $50,000 and $300,000, depending upon the size of the employer.37 In cases where an employer has violated a firefighter’s procedural due process rights by not granting the firefighter a pre-termination hearing, courts will customarily award back pay up until the time when the new “curative” due process hearing is given.38 Firefighters who successfully claim violations of procedural due

An award of process, and perhaps other constitutional rights, are entitled at least to nominal nominal damages damages, which usually do not exceed $1.00. The grant of $1.00 in damages obvi- establishes the ously is not intended to punish the violator or compensate the wronged firefighter. prevailing party Instead, an award of nominal damages establishes the prevailing party for purpos- for purposes of appeal and the es of appeal and the amount of attorney fees. Such firefighters may recover com- amount of attorney pensatory damages as well if they are able to prove actual mental and emotional fees. distress caused by the denial of procedural due process.39

INJUNCTIONS AND EQUITABLE RELIEF IN FEDERAL CIVIL RIGHTS CASES. In addition to the award of damages, courts have the authority to impose “equitable relief” in civil rights cases. Equitable relief often involves the use of the power of the court to order a governmental agency to do or not to do a particular act. The scope of the equitable relief granted by a court should be no wider than necessary to remedy the constitutional violation.40 The most common form of equitable relief is an injunction, where a court issues an order either requiring or restraining an employer’s actions. In cases where a firefighter is seeking an injunction prohibiting the employer from violating the firefighter’s constitutional rights in the future, the firefighter must show: (1) That the employer has violated the firefighter’s constitutional rights in the past; (2) that it is likely that the firefighter will have encounters with the employer again; and (3) that, in the future encounters, it is likely that the employer will again violate the constitutional rights of the firefighter.41 In cases where the firefighter is alleging that the employer has violated First Amendment freedom of speech rights, the firefighter has a lesser burden of proving that the employer will violate his or her constitutional rights in the future. In appropriate cases, firefighter associations have the ability to request and obtain injunctions on behalf of their members.42 At times, either a firefighter or a labor organization will request that a court Courts only issue issue an injunction stopping an employer from taking disciplinary action or engag- injunctions if there ing in other conduct alleged to be a breach of a collective bargaining agreement. is “no adequate However, courts only issue injunctions if there is “no adequate remedy at law.”43 remedy at law.” Since the remedies available through a grievance procedure are presumed to be

312 — REMEDIES adequate, courts routinely deny such requests for injunctions, and instead direct employees to exhaust the remedies available under the grievance procedure.44 An injunction is not the only form of equitable relief available to a firefighter whose constitutional rights have been violated. In appropriate cases, a court can order that a firefighter be reinstated to his former position, hired, or promoted,45 or that certain materials be removed from the firefighter’s personnel files.46

ATTORNEY FEES IN FEDERAL CIVIL RIGHTS CASES. The successful party in a civil rights case is entitled to recover reasonable attorney fees.47 The amount of hours expended by the attorney as well as the attorney’s hourly rate must be appropriate under the circumstances of the case. Once the amount of attorney fees is established, the amount becomes known as the “lodestar,” which can be increased in the court’s discretion by a “multiplier.” Factors which can persuade a court to increase the lodestar amount include the difficulty of the case, the risk to the attorney in taking the case, and whether the firefighter would have faced substantial difficulties in finding another attorney to handle the case.48 Conversely, if a federal civil rights action so clearly lacks merit that a court deems the suit frivolous, the firefighter bringing the suit may be liable to pay the employer’s attorney fees.49

THE TIMELINESS OF CLAIMS UNDER FEDERAL CIVIL RIGHTS STATUTES. Title VII of the Civil Rights Act requires that discrimination or harassment claims filed under Title VII generally must first be filed with the Equal Employment Opportunity Commission within 180 days of the alleged discrimination.50 An employee cannot bring Title VII claims in a federal lawsuit if they were not included in his EEOC charge.51 However, employees may litigate claims which are reasonably related to the allegations in the EEOC charge and which grow out of the charge.52 Even if the firefighter has appropriately filed a charge with the EEOC, the firefighter’s eventual lawsuit must still be filed in court within the time period set by the applicable statute of limitations. In lawsuits under the federal civil rights laws, federal courts apply whatever statute of limitations exists for filing tort claims in the state where the firefighter was employed.53

CLAIMS UNDER STATE LAWS. Increasingly, firefighters have turned to state rather than federal courts, and to state statutes and constitutional provisions rather than their federal analogues to assert their rights. While state litigation proceeds in much the same manner as

REMEDIES — 313 federal lawsuits, most state claims are subject to the requirements of state governmental claims laws. These laws may require employees to give notice of the intent to sue within a relatively short period of time – often six months after the complained-of conduct. A failure to comply with a state governmental claims notice requirement will typically result in the dismissal of the lawsuit.54

RES JUDICATA, COLLATERAL ESTOPPEL, AND ABSTENTION – WHEN CLAIMS ARE BEING LITIGATED OR HAVE ALREADY BEEN LITIGATED SOMEWHERE ELSE. Two related legal doctrines bar the re-litigation of claims that have already been fully litigated in another forum. The principle of res judicata, or as it is often called, “claim preclusion,” means that the entire legal claim of the employee has previously been litigated.55 The principle of collateral estoppel, or as it is often called, “issue preclusion,” means that certain facts have previously been litigated.56 If either doctrine applies, the earlier judgment will be given what is called “preclusive effect,” meaning it will either entirely prevent or substantially limit the subsequent litigation. The purpose behind the doctrines is to shield parties from the burden of re-litigating claims with the same parties to protect the courts from the inefficiency and confusion that re-litigation fosters.57 For either doctrine to apply, the earlier legal proceedings must be “final,” a term that usually means that all possibility of appeals have been exhausted.58 Under these principles, a federal court must give to a state court judgment the same preclusive effect as would be given that judgment under the law of the state in which the judgment was rendered.59 And, though there are some exceptions, the usual rule is that a federal court need not give preclusive effect to arbitrations conducted under collective bargaining agreements,60 though state courts are more inclined to do so.61 The principles of res judicata and collateral estoppel also apply to bar the re-litigation of claims originally tried in an administrative forum such as before a pension board so long as (1) the issue sought to be precluded is identical to a material issue necessarily decided by the administrative agency in a prior proceeding; and (2) there was a full and fair opportunity to contest this issue in the administrative tribunal.62 A third legal theory, known as “abstention,” will “stay” or hold in abeyance federal court proceedings if roughly the same claim between the same parties is pending in state court.63 Abstention rarely occurs, and courts consider ten factors in deciding whether the circumstances are exceptional enough to support a stay: (1) Whether the state has assumed jurisdiction over property; (2) the inconvenience of the federal forum; (3) the desirability of avoiding piecemeal litigation; (4) the order in which jurisdiction was obtained by the concurrent forums; (5) the source of governing law, state or federal; (6) the adequacy of state court action to protect the federal plaintiff’s rights; (7) the relative progress of state and fed-

314 — REMEDIES eral proceedings; (8) the presence or absence of concurrent jurisdiction; (9) the availability of removal; and (10) the vexatious or contrived nature of the federal claim.64

REMEDIES — 315 NOTES 1 Vaeth v. Board of Trustees, Fire & Police Employees Retirement Systems of Baltimore City, 2009 WL 2487076 (D. Md. 2009)(firefighter with ADA claims must exhaust EEOC remedies). 2 Anderson v. Creighton, 483 U.S. 635 (1987). 3 Harlow v. Fitzgerald, 457 U.S. 800 (1982). 4 Estate of Phillips v. District of Columbia, 355 F. Supp. 2d 212 (D. D.C. 2005). 5 Napolitano v. Omaha Airport Authority, 2009 WL 1117313 (D. Neb. 2009). 6 Higgins v. City of Johnstown, New York, 20 F. Supp. 2d 422 (N.D. N.Y. 1998). 7 Balcerzak v. City of Milwaukee, 980 F. Supp. 983 (E.D. Wis. 1997). 8 Kentucky Bureau of State Police v. Graham, 473 U.S. 159 (1985). 9 Monell v. Department of Social Services of the City of New York, 436 U.S. 658 (1978); Graning v. Sherburne County, 172 F.3d 611 (8th Cir. 1999). 10 Monell v. Department of Social Services of the City of New York, 436 U.S. 658 (1978); see Hailey v. City of Camden, 631 F. Supp. 2d 528 (D. N.J. 2009). 11 City of St. Louis v. Praprotnik, 485 U.S. 112 (1988). 12 Denson v. City of College Park, 2009 WL 302192 (N.D. Ga. 2009). 13 Love v. Rehfus, 918 N.E.2d 448 (Ind. App. 2009). 14 Pembauer v. City of Cincinnati, 475 U.S. 469 (1986). 15 City of St. Louis v. Praprotnik, 485 U.S. 112 (1988). 16 Hailey v. City of Camden, 631 F. Supp. 2d 528 (D. N.J. 2009). 17 Meek v. Springfield Police Department, 990 F. Supp. 598 (C.D. Ill. 1998). 18 Bryson v. Middlefield Volunteer Fire Dept., Inc., 2009 WL 5030799 (N.D. Ohio 2009); Evans v. Wilkinson, 609 F. Supp. 2d 489 (D. Md. 2009). 19 Cooper v. City of Fountain Inn, 2007 WL 2736531 (D. S.C. 2007). 20 See Vonbrethorst v. Washington County, Idaho, 2008 WL 2785549 (D. Idaho 2008)(describes tests for when volunteer firefighters are covered by the FLSA). 21 Campolieti v. Cleveland, 921 N.E.2d 286 (Ohio App. 8 Dist. 2009). 22 Turinski v. Local 104 Intern. Ass’n of Fire Fighters, 269 Fed. Appx. 184 (3d Cir. 2008). 23 Wright v. Universal Maritime Serv. Corp., 525 U.S. 70 (1998); see Gadson v. City of Wilmington Fire Dept., 478 F. Supp. 2d 635 (D. Del. 2007). 24 Garzella v. Borough of Dunmore, 280 Fed. Appx. 169 (3d Cir. 2008); Barrows v. City of Fort Smith, Ark., 2008 WL 2026088 (W.D. Ark. 2008); Staveley v. City of Lowell, 882 N.E.2d 362 (Mass. App. 2008). 25 Haynes v. City of Montgomery, Ala., 344 Fed. Appx. 519 (11th Cir. 2009); Blangsted v. Snowmass-Wildcat Fire Protection Dist., 642 F. Supp. 2d 1250 (D. Colo. 2009). 26 Cloud v. City of Chicago, 2002 WL 1160930 (N.D. Ill. 2002). 27 Loesch v. City of Philadelphia, 2008 WL 2367310 (E.D. Pa. 2008); see Hubbard v. Administrator, Environmental Protection Agency, 735 F. Supp. 435 (D. D.C. 1990).

316 — REMEDIES 28 Jones v. Board of Fire and Police Commissioners of the Village of Mundelein, 562 N.E.2d 1175 (Ill. App. 1990). 29 Della Vecchia v. Town of North Hempstead, 616 N.Y.S.2d 55 (A.D. 1994). 30 Walck v. City of Albuquerque, 875 P.2d 407 (N.M. App. 1994). In courts allowing an interim earnings offset, the employer must prove that the employee could have been working during the period of time the employee was discharged. State ex rel. Butterbaugh v. Ross County Board of Commissioners, 608 N.E.2d 778 (Ohio App. 1992). 31 Kraft v. Police Commissioner of Boston, 629 N.E.2d 995 (Mass. 1994); Trotman v. Brown, 593 N.Y.S.2d 788 (A.D. 1993); Kaminsky v. Board of Fire and Police Commissioners of Wheeling, 559 N.E.2d 87 (Ill. App. 1990). 32 Hooker v. Retirement Bd. of Firemen’s Annuity and Ben. Fund of Chicago, 907 N.E.2d 447 (Ill. App. 2009). 33 Julian v. City of Houston, Tex., 314 F.3d 721 (5th Cir. 2002); Vroman v. Volusia County, Fla., 2009 WL 395501 (M.D. Fla. 2009). 34 Luca v. County of Nassau, 2008 WL 2435569 (E.D. N.Y. 2008). 35 Blangsted v. Snowmass-Wildcat Fire Protection Dist., 642 F. Supp. 2d 1250 (D. Colo. 2009); Terranova v. New York City Transit Authority, 850 N.Y.S.2d 123 (A.D. 2007). 36 Bent v. Commissioner of Internal Revenue, 835 F.2d 67 (3d Cir. 1987). 37 42 U.S.C. § 1981a(b)(3)(D); see Broadnax v. City of New Haven, 141 Fed. Appx. 18 (2d Cir. 2005). 38 Storrs v. Municipality of Anchorage, 721 P.2d 1146 (Alaska 1986). 39 Carey v. Piphus, 435 U.S. 247 (1978). 40 Spagnola v. Mathis, 859 F.2d 223 (D.C. Cir. 1988). 41 City of Los Angeles v. Lyons, 461 U.S. 95 (1983). 42 Doherty v. City of Maryville, 2009 WL 2823670 (E.D. Tenn. 2009). 43 Vedder v. City of Warrensville Hts., 2002 WL 31320350 (Ohio App. 2002). 44 Gerardi v. City of Bridgeport, 2007 WL 4755007 (Conn. Super. 2007). 45 O’Sullivan v. City of Chicago, 540 F. Supp. 2d 981 (N.D. Ill. 2008)(promotion to captain ordered in discrimination case). 46 Chastain v. Kelley, 510 F.2d 1232 (D.C. Cir. 1975). 47 Doherty v. City of Maryville, 2009 WL 3241715 (E.D. Tenn. 2009); Walden v. City of Providence, 2008 WL 4613074 (D. R.I. 2008). 48 Wulf v. City of Wichita, 883 F.2d 842 (10th Cir. 1989)(discussion of general principles of increasing lodestar amount in freedom of speech cases); Fahdl v. City and County of San Francisco, 859 F.2d 649 (9th Cir. 1988)(case rejected by 30 lawyers; multiplier of 2.0 applied to attorney fees). See generally Hensley v. Eckerhart, 461 U.S. 424 (1983). 49 Perry v. Orange County, 341 F. Supp. 2d 1197 (M.D. Fla. 2004); Jerelds v. City of Orlando, 194 F. Supp. 2d 1305 (M.D. Fla. 2002). 50 42 U.S.C. § 2000e-5(e)(1). 51 Teal v. Potter, 559 F.3d 687 (7th Cir. 2009). 52 Stinnett v. City Of Chicago, 2009 WL 3229623 (N.D. Ill. 2009). 53 Fiorucci v. City of Wilkes-Barre, 2007 WL 800848 (M.D. Pa. 2007).

REMEDIES — 317 54 Moore v. Hudson County Correctional Facility, 2008 WL 877961 (D. N.J. 2008); Clanton v. DeSoto County Sheriff’s Dept., 963 So.2d 560 (Miss. App. 2007). 55 Blonder Tongue Laboratories v. Univ. of Ill. Found, 402 U.S. 313 (1971); Reed v. Retirement Bd. of Firemen’s Annuity and Benefit Fund of Chicago, 917 N.E.2d 1073 (Ill. App. 1 Dist. 2009). 56 Ashe v. Swenson, 397 U.S. 436 (1970); Hailey v. City of Camden, 650 F. Supp. 2d 349 (D. N.J. 2009). 57 Gooshaw v. City of Ogdensburg, 67 A.D.3d 1288 (N.Y. A.D. 3 Dept. 2009); Hillgartner v. Port Authority of Allegheny County, 936 A.2d 131 (Pa.Cmwlth. 2007). 58 Sosa v. DirecTV, 437 F.3d 923 (9th Cir. 2006). 59 Migra v. Warren City School Dist. Bd. of Ed., 465 U.S. 75 (1984). 60 McDonald v. City of West Branch, 466 U.S. 284 (1984); Giglio v. Derman, 560 F. Supp. 2d 163 (D. Conn. 2008). 61 Wilson v. City of Tulsa, 91 P.3d 673 (Okla. App. 2004). 62 In re World Trade Center Disaster Site Litigation, 2009 WL 4722250 (S.D. N.Y. 2009); Engle v. City of Livonia, 2007 WL 1206833 (Mich. App. 2007). 63 Bell v. Board of Trustees of the Harvey Firefighters’ Pension Fund, 2006 WL 1517772 (N.D. Ill. 2006). 64 TruServ Corp. v. Flegles, Inc., 419 F.3d 584 (7th Cir. 2005).

318 — REMEDIES INDEX

INDEX — 319 Symbols Qualified individuals with a disability 264 7(k) Exemption Reasonable accommodation 264 Under the FLSA 222 Undue hardship 265 Arson investigators 226 Remedies for breach of 270 Dispatchers 226 Right to privacy 150 EMS employees 225 Seniority clauses 271 A Americans With Disabilities Amendments Act 260 Absenteeism Annexation Discipline 70 As bargaining subject 16 Absolute Immunity 309 Arbitration Abuse of Process Binding 6, 7 Civil lawsuits 207 Disciplinary grievances 63 Adverse Employment Action Final offer 6 Discrimination 281, 288 Interest 6 Affirmative Action Programs Statutory claims 310 As bargaining subject 16 Total package 6 Quotas 292 Arson Race norming 292 Firefighter’s rule 201 Under Title VII 290 Arson Investigators Waivers 292 Under the FLSA 226 Agency Shops Assault And Battery Collective bargaining 49 Civil lawsuits 207 Fair-share payment 50 Assignments Age Discrimination As bargaining subject 16 ADEA, requirements of 293 Assistant Fire Chief Mandatory retirement age 294 Under collective bargaining 13 Maximum hiring ages 295 Association, Freedom Of 156 Agility Tests Freedom of speech 187 Under the Americans With Disabilities Membership in organizations 188 Act 266 Personal relationships 189 Americans With Disabilities Act Right to organize 9, 10, 188 Conditional offers of employment 269 At-Will Employees 62 Discrimination 265, 278 Definition of 62 Employment decisions covered by ADA Attorney Fees 262 Damages in civil rights cases 313 Hiring practices 269 Polygraph examinations 269 B History of 260 Back Pay Light-duty work 267 Damages for violation of rights 311 Major life activities 261 Bargaining Nor Required Model Medical examinations 269 Collective bargaining 7 Pension funds 270 Battalion Chiefs Physical agility tests 266 Under collective bargaining 13 Physical fitness tests 266 Under the FLSA 218 Pregnancy 293

320 — INDEX Battery Civil Service Rules Civil lawsuits 207 As bargaining subject 17 Beards Discipline 62 Grooming codes 160 Property interest in job 114 Bills Of Rights Class Of One Discrimination 296 Disciplinary interviews 108 Closed Shops Discrimination 144 Collective bargaining 49 Loudermill hearings 144 Clothing Allowance Procedural due process 142 As bargaining subject 17 Statutory 142 Collateral Estoppel Weingarten rights 144 Principle of 314 Binding Arbitration 6 Collective Bargaining Final offer 6 Agency shops 49 Interest 7 Assistant and deputy fire chiefs 13 Issue-by-issue 6 Bargaining not required 7 Total package 6 Battalion chiefs 13 Budget Binding arbitration 6 Freedom of speech 175 Captains 12 Bulletin Boards Closed shops 49 As bargaining subject 17 Confidential employees 12 Continuing obligation to bargain 14 C Disciplinary grievances 63 Cancer Discrimination against labor organiza- Workers’ compensation 245 tions 51 Captains Duty of fair representation 47 Under collective bargaining 12 EMTs and paramedics 12 Cardiac Problems Fair share payments 50 Presumptive causation 241 Fire inspectors 13 Certifications FLSA provisions 228 Discipline 82 General 6 Under the FLSA Illegal subjects 14 Included in regular rate of pay 227 Impasse 7 Civil Lawsuits. See also Lawsuits Inclusion in bargaining unit 10 Assault and battery 207 Interest arbitration 6, 14 Defamation 203 Lieutenants 12 Firefighter’s rule 198 Maintenance of benefits clause 15 Libel and slander 203 Management rights clause 15 Malicious prosecution 207 Managerial employees 11 Negligence 198 Mandatory subjects for bargaining 14 Products liability 205 Meet and confer 7 Civil Rights Act Open shops 49 Title VII 278 Part-time firefighters 14 Affirmative action programs 290 Past practices 14 Disparate impact cases 283 Permissive subjects 14 Harrassment claims 286 Property interest in job 113 Public information officers 13

INDEX — 321 Right to join labor organizations 108 Holidays 24 Right to not be a member of labor orga- Hours of work 24 nization 49 Insurance 25 Right to strike 50 Job duties 25 Seniority clauses under the ADA 271 Just cause standard 63 Supervisory employees 11 Layoffs 26 Timeliness violations 42 Light duty 27 Training officers 13 Meal periods 27 Volunteer firefighters 14 Off-duty employment 27 Waiver of due process rights 111 On-call status 219 Waiver of rights 14 Overtime 27 Collective Bargaining Agreements Parity clauses 28 Affirmative action 16 Pay practices 28 Annexation 16 Pensions 29 Arbitration 310 Perfomance evaluations 30 Assignments 16 Physical and psychological Bargaining requirements 17 conditions 30 Bulletin boards 17 Physical examinations 30 Civil service rules 17 Physical fitness 31 Clothing 17 Political activity 31 Compensatory time off 17 Premium pay 31 Composition of bargaining unit 18 Privacy 31 Contract expiration 18 Promotions 32 Contract with union members 18 Property interest in job 113 Cost of living increases 18 Qualifications 32 Criminal investigations 18 Residency rules 33, 162 Days off 18 Retirement 33 Disability benefits 19 Rules and regulations 33 Disability status 271 Safety 34 Disciplinary interviews 108 Shift scheduling 34 Discipline 19 Shift trades 36 Drug testing 20, 156 Sick leave 36 Employee assistance program 20 Smoking 37 Employee rights 20 Staffing 37 Employer facilities 21 Step increases 40 Equipment 21 Subcontracting 40 Family And Medical Leave Act 22 Terminal leave 42 Financial disclosure 22 Training 43 Grievance forum 308 Transfers 43, 117 Grievance procedures 22 Under Fair Labor Standards Act 228 Grooming codes 22, 160 Uniforms 44 Health insurance 23 Union business 44 Health insurance for disabled Vacations 45 firefighters 250 Vehicles 45 Health insurance for retirees 22 Wage issues 45 Hiring practices 24 Workers’ compensation 46

322 — INDEX Working out of classification 46 Defamation lawsuits 205 Compensatory Time Off Due process violations 124, 312 As bargaining subject 17 Federal civil rights cases 311 Under the FLSA 228 FLSA violations 231 Composition Of Bargaining Unit Front pay 311 As bargaining subject 18 Days Off Computers As bargaining subject 18 Right to privacy 158 Death Benefits Conditional Offers Of Employment Public Safety Officers Benefits Act 249 Under Americans With Disabilities Defamation Act 269 Absolute privilege 204 Conduct Unbecoming Civil lawsuits 203 Discipline 66, 71 Damages 205 Confidential Employees Opinion rule 204 Membership in collective bargaining Desks unit 12 Right to privacy 158 Under collective bargaining 12 Disability Conflict Of Interest Americans With Disabilities Act 260 Discipline 74 Discrimination claims 263, 271 Constitutional Rights Federal Disability Act 260 Violation of 309 Freedom of speech 178 Volunteeers 310 Light-duty work 248 Constructive Discharge Workers’ compensation 248 Discrimination 289 Disability Benefits Content-Based Speech As bargaining subject 19 Freedom of speech 186 Disciplinary Interviews Contracts With Union Members Right to representation 66 As bargaining subject 18 Disciplinary Transfers Contract Expiration Procedural due process 117 As bargaining subject 18 Discipline Corruption Absenteeism 70 Freedom of speech 178 Anti-union bias 65 Cost Of Living Increases Arbitration 63 As bargaining subject 18 As bargaining subject 19 Criminal Investigations At-will employees 62 As bargaining subject 18 Certifications 82 Discipline 74 Collective bargaining agreements 63 Criticism Of Department Conduct unbecoming 66, 71 Freedom of speech 174 Conflict of interest 74 Criminal charges 74 D Discrimination 75 Damages Dishonesty 75 American With Disabilities Act Disparate treatment 64 violations 270 Emotional condition 84 Attorney fees 313 Equipment 78 Back pay 311 Exclusionary rule 125

INDEX — 323 Firearms offenses 78 Constructive discharge 289 Freedom of speech 183 Disability claims 263, 271 Garrity rule 100 Discipline 75 Grooming codes 79 Disparate impact Incompetence 79 Testing 284 Insubordination 68, 79, 102 Disparate treatment 280 Just cause 63 Exercising Weingarten rights 111 Liberty interests 117 Family And Medical Leave Act 278 Neglect of duty 82 Fourteenth Amendment 279 Obesity 83 Freedom of speech 178 Off-duty conduct 68 Grooming codes 160 Off-duty employment 83 Hostile work environment 286 Performance of duty 83 Lawsuits, ﬁling of 313 Physical condition 84 Mandatory retirement age 294 Political activities 84 Maximum hiring age 295 Post-deprivation procedures 123 Pregnancy 293 Procedural due process 65 Protected activities 278 Productivity 85 Protected classes 278 Progressive discipline 65, 85, 91 Protection from retaliation under FLSA Property rights 114 232 Racially directed conduct 86 Race 286 Religiously directed conduct 86 Grooming codes 160 Residency rules 87 Retaliation 285 Sexually directed conduct 86 Reverse discrimination 279 Sexual misconduct 87 Seniority systems 296 Sick leave abuse 88 Sexual harassment 286, 288 Sleeping on duty 89 Sexual orientation 295 Standard of proof 63 Under the Americans With Disabilities Substance abuse 89 Act 265 Substantive due process 125 Union activity 51 Supervisory failure 93 Disease Claims Theft 93 Workers’ compensation 240 Transfers Dishonesty Freedom of speech 184 Discipline 75 Vehicles 70 Disparate Impact Weingarten rights 108 Discrimination 283 Whistleblowing 180 Title VII Civil Rights Act 283 Discrimination 283 Disparate Treatment Adverse employment action 281, 288 Discipline 64 Afﬁrmative action programs 290 Discrimination 280 Age 293 Dispatchers Americans With Disabilities Act 278 Under the FLSA 226 Basic principles 278 Disruptive Speech Bills of rights 144 Freedom of speech 181 Civil Rights Act 278 Driving Class of one 296 Discipline 77

324 — INDEX Drug Testing EMTs And Paramedics As bargaining subject 20, 155 Under collective bargaining 12 Random testing 152 Endorsements Reasonable suspicion 153 Freedom of speech 181 Right to privacy 151 Equipment Search and seizure 153 As bargaining subject 21 Due Process. See Procedural Due Process; Discipline for misuse 78 See Substantive Due Process Exclusionary Rule Bills of rights 142 In disciplinary investigations 125 Constitutional 65 Exempt Employees Damages 124 Under the FLSA 218 Fifth Amendment requirements 113 Garrity Rule 100 F Garrity Rule, scope of 106 Fair-Share Payments Illegal search and seizure 125 Collective bargaining 50 Industrial 65 Fair Labor Standards Act Liberty interest 117 7(k) exemption 222 Liberty rights 124 Collective bargaining agreements, Miranda rights 126 relationship to 228 Post-deprivation procedures 123 Compensatory time off 228 Property interest in the job 113 Exemptions 218 Property right to the job 114 History of 216 Weingarten rights 108 Hours worked 217 Duty Of Fair Representation 47 Meal periods 217, 219 Claims against union 48 On-call status 219 E Overtime, payment of 230 Paid leave 222 Education Incentive Regular rate of pay 226 Under the FLSA Certification 227 Inclusion in regular rate 227 Education incentives 227 Electronic Mail Exclusions 228 Right to privacy 159 Hazardous duty pay 227 Emotional Conditions Longevity premiums 227 Discipline 84 Specialty pay 227 Emotional Distress, Intentional Working out of classification 227 infliction of Remedies for violation of 231 Civil lawsuits 208 Retaliation, protection from 232 Employee Assistance Program Sick leave confinement 158 As bargaining subject 20 Sleep time 217 Employee Rights Time spent at fire academy 221 As bargaining subject 20 Training time 220 Employer Facilities Travel time 221 As bargaining subject 21 Unduly disrupt standard 230 EMS Employees Volunteers 232 Under the FLSA 225 False Speech Freedom of speech 180

INDEX — 325 Family And Medical Leave Act Garrity Rule As bargaining subject 22 Basic requirements of 100 Discrimination 278 Discipline 100 Federal Civil Rights Cases Polygraph examinations 104 Damages 311 Reverse Garrity warnings 105 Federal Disability Act 260 Scope of 102, 106 Fifth Amendment Grievance Procedures Due process rights 113 As bargaining subject 22 Liberty interests 117 Under collective bargaining agreements Self-incrimination 100 308 Financial Disclosure Laws Grooming Codes As bargaining subject 22 As bargaining subject 22, 160 Financial Matters Beards 160 Right to privacy 149 Discipline 79 Firearms Offenses Discrimination 160 Discipline 78 Freedom of speech 159 Firefighter’s Rule Right to privacy 159 Arson 201 Tattoos 160 Civil lawsuits 198 Exceptions to 200 H Off-duty employees 203 Hazardous Duty Pay Volunteers 203 Under the FLSA Fire Inspectors Inclusion in regular rate of pay 227 Under collective bargaining 13 Health Insurance First Amendment As bargaining subject 23 Expressions of opinion 204 Disabled firefighters 250 Freedom of speech 172 Health Insurance For Retirees FLSA See Fair Labor Standards Act As bargaining subject 22 Fourteenth Amendment Hearing Loss Discrimination 279 Workers’ compensation 244 Freedom Of Association Heart Disease Claims Membership in organizations 188 Presumptive causation 241 Personal relationships 189 Smoking 242 Freedom Of Information Laws Workers’ compensation 241 Right to privacy 151 Hepatitis Freedom Of Speech Workers’ compensation 245 Discrimination 178 Hidden Hazards Protected speech 174 Civil lawsuits 201 Safety issues 178 Hiring Practices Unprotected speech 180 As bargaining subject 24 Whistleblowing 178 Under Americans With Disabilities Front Pay Act 269 Remedies for violations of rights 311 Holidays G As bargaining subject 24 Homosexuality Garcetti v. Ceballos Right to privacy 157 Freedom of speech 172

326 — INDEX Hostile Work Environment L Discrimination 286 Hours Of Work Labor Organizations As bargaining subject 24 Agency shops 49 Hours Worked Closed shops 49 Under the FLSA 217 Discrimination based on union Meal periods 219 activity 51 On-call status 219 Duty of fair representation 47 Paid leave 222 Fair-share payments 50 Sleep time 217 Membership in 9, 49 Training time 220 Open shops 49 Travel time 221 Right to join 108 Lawsuits I Abuse of process 207 Against employer 202, 206 Illegal Search And Seizure 125 Absolute immunity 309 Immunity Qualiﬁed immunity 309 Transactional 106 Workers’ compensation bar 206 Use and derivative use 106 Assault and battery 207 Impasse Choice of forums 308 Collective bargaining 7 Claims under state laws 313 Incentive Pay 227 Defamation cases 203 Incompetence Damages 205 Discipline 79 Driving while intoxicated 202 Industrial Due Process 65 Duty of fair representation 48 Injunctions 312 Emotional distress, intentional 208 Injury Claims Hidden hazards 201 Workers’ compensation 240 Libel 203 Insubordination Malice standards 203 Discipline 68, 79, 102 Malicious prosecution 207 Insurance Levels Negligence 198 As bargaining subject 25 Product failure 201, 205 Interest Arbitration 6 Product liability 205 Issue-by-issue 6 Slander 203 Internal Investigations Timeliness of civil rights claims 313 Freedom of speech 187 Violation of constitutional rights 309 Intimate Relationships Layoffs Right to privacy 156 As bargaining subject 26 Issue-By-Issue Arbitration 6 Libel J Civil lawsuits 203 Liberty Interests Job Duties Due process 117 As bargaining subject 25 Volunteers 118 Just Cause For Discipline 63 Liberty Rights Due process 124

INDEX — 327 Lieutenants Morale Under collective bargaining 12 Freedom of speech 176, 181 Light-Duty Work As bargaining subject 27 N Under Americans With Disabilities Name-Clearing Hearings Act 267 Procedural due process 124 Workers’ compensation 248 National Labor Relations Act 6, 11, 108 Lockers Neglect Of Duty Right to privacy 158 Discipline 82 Longevity Pay Negligence Under the FLSA Driving while intoxicated 202 Inclusion in regular rate of pay 227 Firefighter’s rule 198 Loudermill Hearings Hidden hazards 201 Bills of rights 144 Product failure 201 Procedural due process 120 Workers’ compensation 240 M Workers’ compensation bar 206 Nepotism Maintenance Of Benefits Right to privacy 157 Under collective bargaining 15 Major Life Activities O Under Americans With Disabilities Obesity Act 261 Discipline 83 Malice Standards Workers’ compensation 242 Civil lawsuits 203 Off-Duty Conduct Malicious Prosecution Discipline 68 Civil lawsuits 207 Off-Duty Employment Management Rights Clause As bargaining subject 27 Under collective bargaining 15 Discipline 83 Managerial Employees Right to privacy 161 Under collective bargaining 11 Off-Duty Injuries Mandatory Retirement Age 294 Workers’ compensation 247 Mandatory Subjects Of Bargaining 14 Offices Meal Periods Right to privacy 158 As bargaining subject 27 On-Call Status Under the FLSA 217, 219 Collective bargaining agreements 219 Media Contacts Under the FLSA 219 Freedom of speech 184 Open Shops Medical Examinations Collective bargaining 49 Under Americans With Disabilities Opinion, Expression Of Act 269 First Amendment 204 Medical Information OSHA 250 Right to privacy 150 Safety laws 250 Meet And Confer Overtime Collective bargaining 7 As bargaining subject 27 Miranda Rights Under the FLSA 217, 230 Due process 126

328 — INDEX P Under Americans With Disabilities Act 269 Paid Leave Post-Deprivation Procedures Under the FLSA 222 Due process 123 Parity Clauses Pre-Disciplinary Hearing As bargaining subject 28 Bias 121 Past Practices Procedural due process 120 Under collective bargaining 14 Pre-Disciplinary Notice Pay Practices Procedural due process 119 As bargaining subject 28 Pregnancy Pensions Discrimination 293 As bargaining subject 29 Premium Pay Under Americans With Disabilities As bargaining subject 31 Act 270 Presumptive Causation Performance Evaluations Cardiac problems 241 As bargaining subject 30 Heart disease claims 241 Performance Of Duty Obesity 242 Discipline 83 Workers’ compensation 241 Personal Appearance Prior Restraints Right to privacy 159 Freedom of speech 185 Personal Dispute Privacy Freedom of speech 180 As bargaining subject 31 Personal Matters Privacy, Right to Right to privacy 148 Americans With Disabilities Act 150 Personal Relationships Association, freedom of 188 Freedom of association 156, 189 Communication system 159 Freedom of speech 189 Disciplinary matters 102 Physical Condition Drug testing 151 As bargaining subject 30 Electronic mail 159 Discipline 84 Financial matters 149 Physical Examinations Freedom of information laws 151 As bargaining subject 30 Grooming codes 159 Physical Fitness Discrimination 160 As bargaining subject 31 Job-related information 151 Physical Fitness Tests Medical information 150 Under Americans With Disabilities Nepotism 157 Act 266 Off-duty employment 161 Political Activities Ofﬁce, locker, desk searches 158 As bargaining subject 31 Personal appearance 159 Discipline 84 Personal matters 148 Freedom of speech 176 Personal relationships 156 Political Issues Public’s right to know 151 Freedom of association 189 Random drug testing 152 Freedom of speech 176, 177 Residency rules 162 Polygraph Examinations Right to be let alone 156 The Garrity rule 104 Search and seizure protection 150

INDEX — 329 Sexual orientation 157 Workers’ compensation 243 Sick leave 157 Public Concerns Smoking 161 Freedom of speech 172 Telephone communication 159 Public Information Officers Probationary Employees Under collective bargaining 13 Liberty interests 117 Public Records Procedural Due Process. See Due Process Liberty rights, impact on 118 Damages for violation of 124, 312 Public Safety Officers’ Benefits Act Enhanced or reduced rights 122 Federal death benefits 249 Fifth Amendment 113 Pulmonary Disease Claims Garrity rule 100 Workers’ compensation 244 General 100 Just cause for discipline 65 Q Liberty interests 117 Qualifications Public records laws 118 As bargaining subject 32 Loudermill hearings 120 Qualified Immunity 309 Name-clearing hearing 124 Qualified Individuals With A Disability Post-deprivation hearings, Under Americans With Disabilities requirements of 123 Act 264 Pre-disciplinary hearing 120 Quotas Pre-disciplinary notice 119 Affirmative action plans 292 Property interest 113 Productivity R Discipline 85 Product Liability Race Norming Civil lawsuits 201, 205 Affirmative action plans 292 Safety 205 Racially Directed Conduct Vehicles 205 Discipline 86 Profanity Discrimination 286 Freedom of speech 181 Freedom of speech 181 Progressive Discipline 65, 85, 91 Random Drug Testing Promotions Right to privacy 151, 152 As bargaining subject 32 Reasonable Accommodation Property Interest In The Job Under Americans With Disabilities Collective bargaining agreements 113 Act 264 Creation of 113 Reduction Of Benefits Property Rights To The Job Collective bargaining 10 Procedural due process 114 Regular Rate Of Pay Post-deprivation procedures 123 Incentive pay 227 Protected Activities Under the FLSA 226 Discrimination 278 Certification 227 Protected Classes Education incentives 227 Discrimination 278 Exclusions 228 Protected Speech Hazardous duty pay 227 Freedom of speech 174 Longevity premiums 227 Psychological Impairments Specialty pay assignments 227 As bargaining subject 30 Working out of classification 227

330 — INDEX Religiously Directed Conduct OSHA 250 Discipline 86 Product liability 205 Remedies State safety laws 250 Federal civil rights cases 311 Search and Seizure Injunctions 312 Drug testing 153 Violation of Americans With Disabilities Right to privacy 150 Act 270 Section 7(k) Exemption Violation of FLSA 231 Under the FLSA 217, 222 Remedies For Violations Of Rights Self-Incrimination Weingarten rights 112 The Garrity rule 100 Representation, Right to Seniority In disciplinary interview 66 Discrimination laws 296 Residency Rules Under Americans With Disabilities As bargaining subject 33 Act 271 Collective bargaining agreements 162 Sexual Harrassment Discipline 87 Discrimination 286, 288 Right to privacy 162 Sexual Misconduct Validity of 162 Discipline 87 Respiratory Disease Sexual Orientation Workers’ compensation 244 Right to privacy 157 Res Judicata Under discrimination laws 295 Principle of 314 Shift Scheduling Retaliation As bargaining subject 34 Discrimination 285 Shift Trades FLSA violations 232 As bargaining subject 36 Freedom of speech 184 Sick Leave Retirement As bargaining subject 36 As bargaining subject 33 Conﬁnement policy 158 Reverse Discrimination 279 Discipline for abuse of 88 Reverse Garrity Warnings Right to privacy 157 Due process rights 105 Sixth Amendment Right To Be Let Alone Miranda rights 126 Intimate relationships 156 Slander Right To Privacy. See Privacy, Right To Civil lawsuits 203 Right To Representation Sleeping On Duty In a disciplinary interview 108 Discipline 89 Miranda rights 126 Sleep Time Under a bill of rights 144 Under the FLSA 217 Weingarten rights 108 Smoking Rules And Regulations As bargaining subject 37 As bargaining subject 33 Heart disease 242 Right to privacy 161 S Social Security Payments Safety Workers’ compensation 248 As bargaining subject 34 Specialty Pay Assignments Freedom of speech 178 Under the FLSA Inclusion in regular rate of pay 227

INDEX — 331 Speech, Freedom Of Strikes Budget 175 The right to 50 Content-based 186 Subcontractors Corruption 178 As bargaining subject 40 Criticism of department 174 Substance Abuse Disability matters 178 Discipline 89 Discipline 183 Substantive Due Process Discrimination 178 Disciplinary procedures 125 Disruptive speech 181 Violations of 125 Endorsements 181 Supervisory Employees False speech 180 Under collective bargaining 11 First Amendment 172 Supervisory Failure Freedom of association 187 Discipline 93 Garcetti v. Ceballos 172 Grooming codes 159 T Internal investigations 187 Tattoos 160 Matters of public concern 172 Telephone Communication Media contacts 184 Right to privacy 159 Membership in organizations 9, 188 Terminal Leave Morale 176, 181 As bargaining subject 42 Personal dispute 180 Testing Personal relationships 189 Disparate impact 284 Political activities 176 Theft Prior restraints 185 Discipline 93 Profanity 181 Timeliness Violations Protected speech 174 As bargaining subject 42 Racial 181 Total Package Arbitration 6 Retaliation 184 Training Right to refrain 187 As bargaining subject 43 Safety 178 Training Officers Staffing levels 175 Under collective bargaining 13 Union activity 173, 177, 188 Training Time Unprotected speech 180 Under the FLSA 220 Whistleblowing 178 Transactional Immunity Staffing In disciplinary interviews 106 As bargaining subject 37 Transfers Freedom of speech 175 As bargaining subject 43 Standards Of Proof Collective bargaining agreements 117 Discipline 63 Disciplinary Statutory Bill Of Rights 142 Freedom of speech 184 Step Increases Liberty rights 118 As bargaining subject 40 Procedural due process 117 Stress Travel Time Workers’ compensation 243 Injuries suffered while traveling 246 Under the FLSA 221

332 — INDEX U Waiver of 111 Weingarten Rule 102 Undue Hardship Whistleblowing Under Americans With Disabilities Discipline 180 Act 265 Freedom of speech 178 Unduly Disrupt Standard Workers’ Compensation 198 Under the FLSA 230 As bargaining subject 46 Unfair Labor Practice 14 Cancer claims 245 Uniforms Death benefits 249 As bargaining subject 44 Disability, total 248 Union Disease claims 240 Anti-union bias 65 General laws 240 Unions. See Labor Organizations Hearing loss claims 244 Union Activity Heart disease claims 241 Discrimination 51 Hepatitis claims 245 Freedom of speech 173, 177 Injuries suffered while traveling 246 Right to organize 188 Injury claims 240 Union Business Negligence 206, 240 As bargaining subject 44 Obesity 242 Use And Derivative Use Immunity Off-duty injuries 247 In disciplinary interviews 106 Presumptive causation 241 V Psychological claims 243 Pulmonary disease claims 244 Vacations Respiratory disease claims 244 As bargaining subject 45 Smoking 242 Vehicles Social Security Benefits 248 As bargaining subject 45 Stress claims 243 Discipline for misuse 70 Workers’ compensation bar 206 Product liability 205 Working Out Of Classification Volunteer Firefighters As bargaining subject 46 Constitutional rights 310 Under the FLSA Firefighter’s rule 203 Inclusion in regular rate of pay 227 Liberty interests 118 Under collective bargaining 14 Under the FLSA 232 W Wages As bargaining subject 45 Waiver Of Right To Bargain 14 Weingarten Rights Bills of rights 144 Disciplinary interviews 108 Discrimination for exercise of 111 Remedies for violation 112 Right to representation 108

INDEX — 333

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