When At-Will Employment is NOT At-Will

It is important for supervisors and managers to keep in mind that, in some circumstances, the law may require a strict procedure to follow in the termination of an employee and the failure to comply with any step may lead to costly consequences. In the Public and Safety Labor News journal, July 2010 edition, an article written by Will Aitchison titled “Employer Has Burden Of Proving Disciplinary Notice To Employee” illustrates that the significant consequences imposed on the Pineville, Louisiana Fire Department when it did not provide an employee with a written statement regarding his termination.

On July 23, 2003, firefighter Stephan Jones was involved in an accident while driving a fire rig. Pursuant to Pineville’s substance abuse policy, Jones was taken to a clinic to provide a urine sample for drug testing. Jones submitted a sample that the attending nurse found to be at a temperature too high to achieve an accurate test result. When she requested him to provide her with another sample, Jones refused and left the clinic.

After Jones informed his Captain he submitted an invalid urine test, the Captain warned him he could lose his job. Once the Department learned of the matter, Jones was placed on immediate suspension without pay when he refused to resign. His failure to submit a valid sample led the Department to terminate Jones for insubordination. He appealed to the Civil Service Board. When the Board upheld his termination, Jones filed with the court system.

The Louisiana Court of Appeals reversed Jones’ termination primarily due to a statute which states: “In every case of corrective or disciplinary action taken against a regular employee of the classified service, the appointing authority shall furnish the employee and the board a statement in writing of the action and the complete reasons therefore.” Louisiana Revised Statutes 33:2500(D). Since the Mayor of Pineville failed to provide Jones a written statement regarding the reasons why he was terminated, the City was unable to prove a disciplinary action had taken place against him.

What went wrong? While the Department had grounds to terminate Jones’ employment due to his failure to produce a valid urine sample, it overlooked how essential it is to follow the rules, codes and contracts that can govern employee conduct. Thus, whenever looking to terminate or discipline an employee—supervisors need to make sure that they are aware of any relevant policies or law that would govern the discipline procedure. And, when in doubt, it is a good idea to check with a Human Resource Specialist or attorney.

This blog post was written by Katherine Hanson, Paralegal. Feel free to contact her at katherine.hanson@brickgentrylaw.com.

Sick Leave Retaliation

When it comes to sick-time policies, there can be a fine line between an employer enforcing their terms in good faith and using them for purposes of retaliation or discipline. In a January 2010 Public Safety Labor News article titled “Police Department’s Sick Time Policy Violates ADA”, we learn that the Dracut Police Department in Massachusetts is one employer who crossed that line. The Massachusetts Division of Labor Relations ordered the Department to end its use of an illegal sick-time policy, which was being inappropriately administered and was found to be in violation of the Americans with Disabilities Act (ADA).

The bargaining agreement between the Town and the Union contained a policy in which officers were to call in and notify the Deputy Chief of their symptoms, and he would grant or deny the request. However, this policy was only to be used when it was believed the officers were abusing the sick-time policy or if the sick time exceeded four days. A female officer, who used three days of sick time, refused to provide the requested information, as she felt it violated her medical privacy. The Deputy Chief then wrote to the officer, voicing a concern that she may pose a safety risk to the citizens of the town, and demanding that she comply with a variety of tests and random drug screening. The interesting part of this is that she was expected to report to work during the tests.

The Union argued that the actions of the Town were retaliatory and disciplinary, and that the Deputy Chief’s demands for information were in violation of the ADA. The Town’s defense was that these practices were necessary to monitor the usage of sick time and to conduct business. An arbitrator found that the policy did in fact violate the ADA, as it did not measure fitness for duty, especially considering the department allowed her to work during the testing period. The arbitrator found that the Deputy Chief’s actions were not made in a good-faith belief that the sick-time policy was being abused, but that he was retaliating against her for refusing to comply with his request.

It is always best to consult with a legal counsel to ensure the policies in your bargaining agreement are being appropriately administered. Bargaining agreements outline a variety of practices to be used in assessing the fitness for duty of its employees, or to ensure fair use of benefits. However, these practices must not be utilized at the whims of employers for what, in some cases, amounts to disciplinary actions.

This blog post was written by Adriel Lage, Legal Assistant to Matthew Brick. Feel free to contact her at adriel.lage@brickgentrylaw.com.

Darned If You Do, Darned If You Don’t

As an employer, you likely have very few easy decisions to make in regards to your employees. Many actions taken on behalf of employees can bring unexpected and negative results – regardless of your intentions. In the November 2009 issue of The Nebraska Lawyer, there is an eye-opening article title "Discrimination and the 'Strong Basis in Evidence Standard' written by Julie A. Schultz that tells us just how careful employers must be when taking actions based on anticipated discrimination claims.

In 2003, The New Haven, Connecticut fire department conducted promotional exams for the purpose of promoting firefighters. The results showed a significant disparity between the scores of the Caucasian employees and the scores of African American and Hispanic employees. If the City used the scores, along with their promotion standards, the promoted individuals would have been almost entirely Caucasian.

Although the examination had been created by a neutral third party, and was deemed necessary for business, the City believed that using the results to promote firefighters would result in disparate impact claims from the African American and Hispanic employees who were not eligible for promotion. The City chose not to certify the results of the examinations, and did not award any promotions. Here’s where the “darned if you don’t” part comes in.

Despite the City’s best efforts to avoid discriminatory actions, they were sued by the group of individuals who were eligible for promotion based on the exam scores. In Ricci v. DeStefano, the court found in favor of the firefighters. The City was unable to prove that they would be subject to disparate impact liability, and that there was a “strong basis of evidence of an equally valid, less discriminatory testing that the City refused to adopt.”

So what is an employer to do? One may look at a situation like the City of New Haven’s and conclude that the only real “choice” is which kind of lawsuit they want to defend. Words of wisdom: tread lightly, especially when making race-based decisions. If you believe you may be subject to any kind of liability, it is best to seek the legal advice necessary to make an informed decision.

This blog post was written by Adriel Lage, Legal Assistant to Matthew Brick. Feel free to contact her at adriel.lage@brickgentrylaw.com.

ADAA Presentation

As is typical lately, I must again apologize for the length of time between posts. I spent two weeks recently in the Bridger/Teton National Wilderness without any phone/email access, which accounts for much of my delinquency this month. In addition, I have been preparing recently for a presentation on Friday, September 25th to the Iowa League of Cities.

In case anyone is interested, I have attached a link to the presentation below. And, I promise that regular updates will begin again next week.

http://dl.getdropbox.com/u/918952/New%20Requirements%20of%20the%20ADAAA.pdf

The Intersection of Employment Law and Criminal Law

I must concede that my blog postings have been rather sparse of late, but I am reprinting a September 1, 2009 article by Michael Cooley of KSIB Radio in Creston, Iowa that should explain what I have been up to. For more articles by Mr. Cooley or more information on the story below, visit http://www.ksibradio.com/

Chairman King Not Guilty

Union County Board of Supervisors Chair Mike King has been found not guilty in a disorderly conduct trial that finished today. King was charged by the Creston Police Department with disorderly conduct after officials allege a confrontation between King and Union County's Chief Jail Administrator Dave Danielson escalated to a point that charges were necessary. After about an hour of deliberation this afternoon, the jury returned with the “not guilty” verdict at about 2:55pm. King says he was glad to hear outcome.

“I'm very pleased. This is the thing that I've tried to tell the public,” King tells Creston Radio News. “I knew that when my day in court came through that, most people know me, I try to be respectful to the public. They're my customers. I try to be professional, and I work for the public.”

According to King, he won't let the trial get in the way of his job as an elected official.

“My focus right now is to do my job that I was elected, as usual, for the public, to work as hard as I can to try to help bring grant money in these times,” says King, “in the economic stress, to try to improve these roads and try to help all of Union County, period.”

Although the city of Creston is who brought the case against King, he says that he hopes those differences can now be put aside.

“It's time for this county and the city and all the towns in Union County to work together to make this a better community in these times of economic stress,” according to King. “We can make our county shine and work together as a team, and not pull apart and be divisive.”

On the other side of the table, city attorney Skip Kenyon told Creston Radio News that he felt the trial was a fair one. He said all the evidence was presented fairly and the jury did what they needed to.

Court reconvened after lunch this afternoon at 1:15pm where Kenyon was given the chance for rebuttal testimony on behalf of the prosecution. He had none, which sent the trial to final motions and jury instructions. That meant the jury was released for court business, which saw defense attorney Douglas Fulton again move for dismissal of the case with an immediate acquittal of King. Kenyon again voiced his resistance to the move. And again, Judge Monty Franklin denied the motion.

In jury instructions, defense attorney Matt Brick tried adding an instruction, but that also was denied by Franklin, who cited the fact that the instructions involved “items outside of the trial.” With no further objections or additions, the jury was brought back in to hear Franklin read them the instructions before closing statements. The instructions directed the jury that all elements of the city's code needed to be present to find King guilty in the case, including the acts of being loud and raucous, as well as causing unreasonable stress to the occupants of the building.

The media, was not allowed to record the session, but we do have the summary of today. In closing statements, Kenyon started on behalf of the defense. He told the jury that he had presented them several people who witnessed the incident in question and were distressed by King's actions that day, citing that two employees even made notes about it.

Brick's closing statements, meanwhile, tried to poke holes in the testimony of the prosecution's witnesses. Brick told the jury that the testimony of Pam Conley on Monday afternoon didn't seem to match up with that of any other witness in the trial. He also said the defense presented stronger testimony, citing King and courthouse patron Susan Willett.

Kenyon was then given one last chance to respond to the defense's statements, to which he told the jury to remember that the testimony of the witnesses on behalf of the prosecution was difficult because of their requirement to work with King on a daily basis. He also told the jury he believed the only testimony that didn't match with the rest, wasn't that of Conley's but that of King himself.

Before the defense rested its case at 11:45am this morning, and the court recessed for lunch, King took the stand as the defense's last witness. For the first time in the trial, the jury heard firsthand testimony of the discussion between the two individuals. Kenyon chose not to call Danielson during his chance to bring in witnesses.

King told the jury that he's been on the Board of Supervisors for the last 19 years, twelve of which he's been in the position of chair. In testimony tangled in objections and offers of proof from the defense, King was able to tell the jury what happened from his perspective on April 13th. Testimony from both sides has established that Danielson felt he should be allowed to attend a meeting of county officials regarding the county's insurance program. King said the reasoning came from a letter the board received from current Sheriff's Office representative Dorie Schiltz, sealed with the Sheriff's Seal, that she was resigning from the committee and appointing Danielson as her replacement.

King says the letter was received by the board during their weekly meeting that morning. King told the jury that he passed the letter around and found the consensus of the board to be that Danielson would not be allowed in the board room after a past board meeting during which Danielson allegedly caused a scene and King said Sheriff Rick Piel told the board that Danielson would not be allowed back in that room.

King then testified that after the board decided to deny Danielson permission to attend the meeting, King received a phone call from county auditor Sandy Hysell that Danielson was at the office wanting to find out why the decision had been made. King said he told Hysell he'd be there to talk to Danielson. According to further questions, King stated that Danielson was no longer at the office when he arrived and asked Hysell to call to find him. King testified that he tried to be cordial but that Danielson kept asking about the same question. It was then that King says he went into the hallway to go to the board room, where the insurance meeting was being held and that Danielson stepped in front of King and told King, “Fat man, you're not going to keep me out of that meeting.” King stated that he replied, “Dave, don't go there.” King called his tone “stern” but not angry or loud. After more discussion, King alleges that he told Danielson he'd have him arrested if he tried to attend the meeting, to which King said Danielson answered, “Nobody in this courthouse will arrest me.”

King also told the jury through questioning from the defense that a pacemaker and defibrillator, as well as other health issues, meant that there was no way he could have waved his hands and yelled for twenty minutes, as the testimony of Conley suggested. Although in her testimony, Conley also denied multiple times that she touched King, King alleged that Conley used both hands to stop him and tell her how she felt about him talking to the father to her child.

Perhaps a key part of the testimony that brought the “not guilty” verdict, was the defense questioning whether King intended to be loud and raucous, to which King answered, “No.” The jury instructions would later say that the individuals must believe that King “intended” to do the actions for him to be found guilty.

King also told the courtroom that he found out about the charges against him a month later, to which he voluntarily turned himself into the Creston Police Department. In testimony only heard outside the jury, King would tell the rest of the courtroom that Ver Meer said if it were up to him, he would be filing the charges, but that “Danielson hounded Ver Meer” to go through with it. King also talked outside the jury that Danielson filed more than ten grievances against the county and said in a letter that he wanted to see King defeated in the next election. The testimony given outside the jury was the defense's attempt to let the judge decide if the information was pertinent to allow the jury to hear it. Franklin did not allow that information to be heard.

Others called by the defense included Hysell, who confirmed King's testimony that Danielson had wanted to attend the insurance committee meeting. Hysell says when she went back to her personal office to try to contact Danielson via telephone, she was put on hold, and that was apparently when the discussion between the two individuals happened. Hysell testified that she did not hear any loud noises from where she sat and that she did not see anything when she came out of the office about five to seven minutes later.

Cross-examination of Hysell by Kenyon established the close working relationship between Hysell and King. Hysell said that she is the secretary for the Board of Supervisors and that it was that body of individuals who first appointed her to the open position before elections.

Ron Riley, vice-chair of the Board of Supervisors told the jury in his testimony on behalf of the defense that he was in the back Treasurer's office talking with Kelly Busch about landfill financing when the incident must have happened. He also testified that he heard no loud noises. Cross examination by Kenyon saw Riley say that the back office is “fairly isolated.”

The brief testimony of Jack Lipovac was the next one heard by the courtroom. Lipovac is the owner of HR OneSource, who he said has spent the last 15-20 years working with Union County on union negotiations and other employment issues. Objections from Kenyon on multiple elements of the testimony kept Lipovac's statements brief and basic.

Meanwhile, courthouse patron Susan Willett, was heralded by Brick as the only witness who was not in some way affiliated with the county. Prosecution's witness Conley, who was also in the courthouse at the time of the incident, has a 30-year-old daughter with Danielson. Willett told the courtroom that she was getting her driver's license renewed next door at the treasurer's office when the incident occurred. She told Brick that she never saw Danielson, but did notice King say a brief statement. It was mostly Conley filing a complaint after the fact that caught her attention.

Municipal Elections, Patronage and Terminations

As we approach another local election cycle, I want to point out that the Sept./Oct. 2008 issues of the Municipal Lawyer has an interesting article by Lawrence L. Lee titled “Avoiding Workplace Free Speech Claims in the Upcoming Election: Tips to Prevent Liability.”

The primary focus of the article is that public employees and employers need to be aware of the established legal principles of the State and Federal Constitution, as well as relevant state statutes that apply to the ability of a public employee to exercise political speech rights at work. For example, potential legal issues may arise under 42 U.S.C. 1983 for freedom of speech or association claims made under the First Amendment.

The most common issues for public employees include:

1. Can an elected official take employment action against an employee of a different party?

2. Does a public employee have a First Amendment right to express his political views or allegiances on the job?

3. To what extent can he express his political preferences?

In 1976, U.S. Supreme Court held that an elected Democratic sheriff couldn’t constitutionally replace certain Republicans within his office, stating that the cost of the practice of patronage was the unquestionable restraint it placed on the constitutionally-protected right to freedom of belief and association. And, in 1990, Supreme Court expanded to include limitations on retaliary work practices equivalent to termination (i.e., demotions, transfers, recalls). Whereas, posting political signs and intra-office election debates are generally protected under the 1st Amendment.

In cases where an employee is disciplined or terminated for political speech, a municipal employer has some defenses, which are:

A. The government can justify patronage dismissals by proving the employee is in a “policymaking position” and political affiliation is an important precondition for the position.

B. Proving the employee’s expression disrupted office functions.

C. Proving that the employer would have made the same decision even without the protected conduct.

In any event, taking action against a politically active employee in an election season can be a risky road for municipal managers. If a municipal employee feels they have been targeted because of their political beliefs or if a city wants to terminate an employee who also happens to be politically active, it is highly recommend you consult an attorney for a specific course of action.

Does the ADAAA allow employers to terminate for disability-related misconduct?

An article titled “Police Employee Terminated For Misconduct, Not Alcoholism,” from the June 2009 issue of Public Safety Labor News shows how, prior to the ADAAA, a disabled employee was not allowed to use their condition as a shield to prevent discipline for inappropriate conduct. However, now that Congress has made its intent clear to broaden protected under the ADAA, we will need to wait for some appellate court cases to determine whether the changes to the law allow disabled employees to engage in misconduct with greater impunity.

The article referenced above highlights a case involving a Connecticut police office that is an alcoholic. Three times during 2004, the employee’s supervisors spoke to her about her use of sick and vacation time, expressing concern that she had used all of the time she had accrued during her nine years of employment.

In February of 2005, she was arrested for “breach of peace” for conduct while under the influence. As a result, the employee signed a Last Chance Agreement which acknowledged her years of service but also noted her “habitual absenteeism and demonstrated abuse of alcohol which impacts her attendance and performance.” Under this agreement, any violation of policy, inappropriate conduct, or habitual absence would subject her to immediate termination.

The employee was subsequently the subject of police incident reports in July and October of 2005, both involving alcohol. By the end of 2005 and the beginning of 2006, she was the subject of at least one police report a month due to conduct while under the influence of alcohol. On February 1, 2006, she was terminated due to the fact she “continued to demonstrate an unwillingness or inability to report to work on a consistent basis.”

After termination, the employee filed a lawsuit under the Americans with Disabilities Act, saying that alcoholism is an impairment covered by the ADA’s ban on discrimination. A federal trial court dismissed the lawsuit, “citing the difference between an employer terminating an employee for alcoholism and terminating the employee for misconduct that may have been caused by alcoholism.”

Under the ADA, prior to the January 2009 amendments, the Act allowed employers to terminate employees for misconduct if it was caused by a disability involving drugs or alcohol. An employer could hold an employee who engages in illegal use of drugs or who was an alcoholic to the same qualifications and standards for employment, job performance, or behavior that they hold for other employees, even if it’s a result of drug or alcohol use.