September 19, 2012 by

California District Court Denies Most of City’s Motion to Dismiss: City Failed to Follow Own Rules and Regulations

By Kate Acheson

In Hanford Exec. Mgmt. Employees Ass’n v. City of Hanford the court held that an employee Association could pursue its claims that its members faced unlawful discrimination in retaliation for a Vote of No Confidence against the City Manager.  The U.S. District Court for the Eastern District of California has ruled that an Association’s retaliation claim stated a potential basis for finding several constitutional violations and rejected the City’s efforts to dismiss the lawsuit for “failure to state a claim.”

[Read more…]

Filed Under: Association Rights, Constitutional Rights, Free Speech Rights, Legal Rights
September 17, 2012 by

Recent Blog Articles of Note

By Jim Cline

We are following other Labor and Employment Law Blogs on the Web and will bring to your attention some other articles worth reading. Here are some other articles we think are worth a look:

Counseling as an ADA-Protected Medical Examination  

 (Discusses 6th Circuit Court of Appeals ruling that compelled counseling constitutes a compelled medical examination within the meaning of the ADA, therefore employers must meet ADA job relatedness and business necessity standards before ordering counseling)

Police Officer Disciplined for Off-Duty Photography Hobby

(Discusses First Amendment law suit brought by San Fransisco PD officer “who has long had a love of photography, spends his off-duty hours taking artistic nude photos portraying women as mermaids, vampires and other mythical creatures.”)

An “Indefinite Reprieve” of Essential Functions of Job Not a Reasonable Accommodation under the ADA

 (Discusses EEOC guidelines and a recent court decision regarding duration of leave and the lack of employer duty to accommodate leave of employee who cannot supply “reasonable estimate of return to work.”)

Fresh interpretation of ADA provision heightens demands on employers

 (Discusses recent 7th Circuit decision applying principle that employee may have right to reassignment as an ADA accommodation)

Internal Investigations of Discrimination Complaints Might Not Be As Confidential As You Expect

(Discusses recent EEOC and NLRB rulings voiding employer order imposing confidentiality on workplace investigations.)

Filed Under: Legal Rights
September 6, 2012 by

Correctional Officer’s Claim of a Denial of Equal Protection Against a Supervisor Must be Dismissed Because the Supervisor’s Actions Did not Constitute Sexual Harassment as to Her

By Rick Gautschi

In Duncan v. Dakota County, No. 11-2467, August 3, 2012 (8th Cir. 2012), Toni Duncan worked as a correctional officer for Duncan County, NE, under the supervision of Chief Deputy Sheriff Rodney Herron.  After leaving the job, she sued the County and Mr. Herron officials pursuant to 42 U.S.C. §1983.  She claimed that through the actions of Mr. Herron, the county had, in the forms of sexually harassing and constructively discharging her, denied her equal protection in violation of the Fourteenth Amendment.  Specifically, Ms. Duncan alleged that Mr. Herron had created a sexually charged work environment by fostering widespread sexual favoritism in the form of engaging in sexual relationships with subordinates and rewarding his favorites.  Ms. Duncan produced no evidence that Mr. Herron had ever threatened or humiliated her.  Further, she admitted that she was not promoted to an open position only because she chose not to apply for the position.   Mr. Herron argued that the trial court should have determined that the doctrine of qualified immunity precluded Ms. Duncan from proceeding against him. [Read more…]

Filed Under: Discrimination, Gender/Pregnancy Discrimination, Legal Rights
August 31, 2012 by

EITHER TAKE OUR WELLNESS EXAMS OR “COUGH UP” THE CASH: 11TH Circuit Rules Employer Mandated Work Wellness Programs Fall Within “Safe Harbor” Provisions of (ADA)

By Cynthia McNabb

As open-enrollment season for health insurance approaches, employees may see (if they have not already) options for reducing their health insurance costs by voluntarily enrolling in an employer wellness program.  Alternatively, your union may have even entered into an agreement with your employer that requires you to participate in an employer wellness program, in order to maintain your health insurance.  Billed as your opportunity to save money, participation in employer wellness programs are, in reality, merely fee-shifting endeavors that penalize employees with higher deductibles, higher co-pays, or fees for failure to participate.  Unfortunately, trying to sort out what your rights are with respect to these wellness programs under the ADA, HIPAA and GINA ** (“Genetic Information Nondiscrimination Act) is a complicated undertaking.

[Read more…]

Filed Under: Disability Discrimination, Discrimination, Legal Rights
August 28, 2012 by

Arizona Federal Court Denies Attempt to Dismiss Firefighter’s First Amendment Retaliation Case

By Mitchell Riese

A recent decision from U.S. l District Court in Arizona denied the City of Prescott, Arizona’s attempt to dismiss a lawsuit by a former firefighter, who alleged that he had been coerced into retiring by being threatened with criminal charges for having traded shifts. In  Vicente v. City of Prescott, AZ, 33 IER Cases 1306 (D. Ariz. 2012), Vicente, who had been a firefighter for almost 20 years and a Captain for 10, was vice president of the firefighters union. In that role, he advocated on behalf of two union members who claimed that they were being harassed by certain managers. Not long after Vicente assisted the members in filing formal complaints, he was called into a meeting and told that he had engaged in criminal conduct by trading shifts or obtaining substitutes for shifts with other firefighters. He was told that the situation was serious and that his job could not be saved. Vicente was told that his only option was to retire. Vicente claimed that he was told that he had to cease all union activity because that was the reason why they were all there.

[Read more…]

Filed Under: Constitutional Rights, Free Speech Rights, Legal Rights
August 23, 2012 by

Recent Blog Articles of Note

By Jim Cline

We are following other Labor and Employment Law Blogs on the Web and will bring to your attention some other articles worth reading.  Here’s some other articles we think are worth a look:

“Helping employees become healthier: rewards or penalties and the EEOC”

This blog discusses recent EEOC and court rulings concerning legality of employer wellness programs which involve incentives for health assessments

 “My Employer Says I Have To Resign. What Should I Do?” 

This blog identifies some considerations in addressing the problem facing employees facing resignation in lieu of discharge

“The FMLA in Plain English”

This blog discusses and links to DOL’s recent release of its new “Employee Guide to the FMLA”

“Illinois Prohibits Employers from Seeking Social Networking Passwords”

Illinois becomes the 2nd state, after Maryland, to outlaw employer demands for Facebook passwords

 

Filed Under: Legal Rights
August 20, 2012 by

Arizona Federal Court Judge Rules that Police Department Engaged in Sex Discrimination by Requiring Physical Fitness Test

By Rick Gautschi

In State of Ariz. v. City of Cottonwood, 115 FEP Cases 998, No. CV-11-2-1576-PHX-GMS, July 20, 2012, D. Az., sometime around 2000, as the result of agreements with the Arizona Peace Officers Standards and Training Board (AZ POST) and other law enforcement agencies in Arizona, Fitness Intervention Technologies (FIT) conducted a study for the purpose of developing a physical fitness test for law enforcement officers.  Subsequently, FIT presented the test to AZPOST, whose director rejected the use of the test out of a concern that if administered, it was likely to have a disparate impact on women.  In December 2006, the City of Cottonwood (City) Police Department (CPD) adopted a general order that required incumbent officers and applicants for officer positions to pass the FIT physical fitness test.  The policy gave incumbent officers three years to pass the test.  The policy was silent as to officers who applied for promotions.  Regardless, CPD’s Chief added passing the test to the department’s requirements for promotion.  In early 2007, Monica Kuhlt (Ms. Kuhlt) applied for promotion to sergeant.  She took the physical fitness test but did not pass all the elements of it.  In May 2008, she applied for an open sergeant position, but again she failed the physical fitness test and suffered a back injury in the process of taking the test.  She then filed a claim of discrimination with a state agency.  In February 2009, the agency dismissed the claim but on April 1, 2009, reinstated it at her request.  Subsequently, she supplied a doctor’s note that recommended substituting, for her, an aerobic activity other than the test’s required 1.5 mile run.  CPD sent her to another doctor who opined that because of her inability to run, she was not fit to be a police officer.  A lawsuit for sex discrimination and retaliation for having opposed sex discrimination followed.

[Read more…]

Filed Under: Discrimination, Gender/Pregnancy Discrimination
August 16, 2012 by

A Facebook “Thumbs-Up” Could be a Thumbs Down for your First Amendment Rights

By Cynthia McNabb

In the ever-evolving legal environment regarding use of social media in and outside the workplace, a new case before the 4th Circuit is getting quite a bit of attention.  In Bland v. Roberts, a deputy sheriff (along with five others) went on his Facebook page and, like millions of others every day, clicked the “like” button on a page he was viewing.  The page happened to be a political page for a candidate running against his boss, the Sheriff of Hampton, VA.  Once his boss was re-elected, Deputy Carter, along with Bland, et. all were terminated.  The employer alleged that the employees were terminated for poor work performance and their support of the opposing candidate had disrupted the workplace. [Read more…]

Filed Under: Constitutional Rights, Free Speech Rights, Legal Rights
August 16, 2012 by

Texas Appellate Court Finds that Houston Fire Department Discriminated Against Firefighter Based on Him Having Transient Amnesia Scene of Fire

By Rick Gautschi

In City of Houston v. Proler, No. 14-10-00971-CV, Texas Court of Appeals, Fourteenth District, May 31, 2012 , during March 2006, a captain in a fire suppression unit in the Houston Fire Department (HFD) responded, along with firefighters that he supervised, to a building fire.  While at the scene of the fire, the captain failed to follow orders and was found standing in a smoke-filled room.  Medics at the scene determined that his blood pressure was low.  Subsequently, at the direction of the HFD, he sought medical treatment. [Read more…]

Filed Under: Disability Discrimination
August 16, 2012 by

The U.S. Court of Appeals for the Second Circuit upholds Buffalo, New York’s Fire Department’s Use of an Examination to Determine Promotions

By Rick Gautschi

In M.O.C.H.A, Soc’y, Inc. v. City of Buffalo, Nos. 11-2184-cv and 10-2168-cv, July 30, 2012, 2nd Cir.,as permitted by a state statute, in late 1997, the City of Buffalo contracted with the state of New York’s Civil Service Department (CSD) to have the CSD develop an examination to be administered to fire fighters who sought promotions to the position of fire lieutenant. In response to the request, an associate personnel examiner at CSD spent approximately three years performing a job analysis of fire fighters at all ranks in departments across the state. [Read more…]

Filed Under: Race Discrimination
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