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Christmas Taser Prank Results In Two Chiefs Under Arrest
Last year about this time we covered the case of a Florida firefighter who was charged with arson for setting the pants of another firefighter on fire at a Christmas Party. He was fired for his prank.
This year, some good’ol boys in North Carolina took a slightly different tact and Tasered one of their younger members … NINE TIMES…. Seriously!!!!
Two ranking members of the East Spencer Fire Department are facing assault charges following their use of a police officer’s Taser on an 18 year old volunteer firefighter as a prank at the department Christmas party. East Spencer Fire Chief Shane Cranfield and former chief Allen Carlyle borrowed the device from officer James Lambeth, who was on duty at the time.
An internal investigation showed the device was discharged 18 times in a 3 minute period, and allegedly shocked the victim, John Resino, at least 9 of those times. Officer Lambeth has since resigned and faces criminal charges for allowing the assault to happen.
Resino was never taken to a hospital. The state police and county Sherriff’s office have been asked to investigate.
Another Race Discrimination Suit for FDNY
Five FDNY electricians have filed a race discrimination lawsuit against three coworkers and the FDNY. The 36 page complaint alleges that supervisors and coworkers subjected the employees to ridicule, scorn, threats, and retaliation, and that they were denied overtime and promotional opportunities.
The case made headlines over a year ago when the plaintiffs, Gregory Seabrook, Ismael Ortiz, Edward Pitre, Joe Adams, and Dudley Placide, filed their administrative complaints with the New York State Division of Human Rights. At that time Seabrook alleged that a noose was left near his locker, and they all claimed that they were being harassed because of their race. Seabrook, Adams and Placide are black, while Ortiz and Pitre are Hispanic.
The five allege that two supervisors, Robert Zerillo and John Forrentino, and a co-worker, Richard Cassidy, were among those responsible for the harassment. All three were named personally in the suit as defendants, as was the FDNY. The suit was filed on December 20, 2011, less than 2 weeks after they received their right to sue letter from the EEOC.
The complaint sets forth a number of detailed allegations, including:
- Supervisors not posting information about promotional opportunities
- Over $200,000 in overtime being worked by a white supervisor and his son-in law, that should have been distributed among all employees
- Collective bargaining agreement violations
- Excessive work demands, threats, ridicule, and verbal abuse
Here is a copy of the complaint: Seabrook v FDNY
The suit joins several other race related suits pending against the FDNY, including:
- A major suit by the EEOC and the Vulcan Society alleging race discrimination in hiring that has prompted major changes in the hiring process for FDNY;
- Suit by the wife of recruit Jamiel Sears who died during training that alleges discrimination;
- Suit by EMS Lt. Valarie Brancato alleging discrimination.
Incidentally, the Seabrook complaint cites to the EEOC/Vulcan society suit, and Judge Garaufis’s finding that the FDNY was guilty of an “pattern, practice, and policy of intentional discrimination”.
Posted in Civil Suit, Constitutional Rights, Discrimination
NJ Volunteer Firefighter Alleges Sexual Harassment and Assault
A New Jersey volunteer firefighter has filed a sexual harassment suit against another firefighter alleging sexual assault.
Rebecca Wooton filed suit earlier this month naming Lou Turner as the primary defendant. The suit also names Fire Chief Timothy Clement in his capacity as the chief of the Laurel Lake Fire Company. The suit alleges that between 2006 2008 she was subjected to “severe, regular and pervasive acts of sexual harassment of physical and non-physical nature”.
The suit alleges that Turner touched Wooton’s breast and buttocks, and seeks punitive damages.
Posted in Civil Suit, Discrimination, Sexual Harassment, Sexual misconduct, Volunteers
Appeals Court Rejects New York Reverse Discrimination Suit
The 2nd US Circuit Court of Appeals issued a ruling yesterday in a reverse discrimination case brought by a white firefighter from Mount Vernon, New York.
Firefighter Joseph Carroll took a lieutenant’s exam in 2004 and ranked 9th on the list. The list was good for 2 years, and due to expire in 2006. When the development of a new promotional list was delayed, the expiration date of the 2004 list was extended to July 19, 2007.
By 2007, Carroll ranked second on the lieutenant’s list. A new test was finally administered on March 24, 2007 to replace the old list, but Carroll’s new rank on the list was 16th.
As the expiration deadline for the 2004 list approached in July of 2007, there were two lieutenant vacancies that needed to be filled. Carroll and another white firefighter, Justin Chase, were being considered and were granted interviews with the Mayor. The Vulcan Society intervened and contended that the extension of the old list from 2006 to 2007 violated a consent decree that the city agreed to.
The city opted to move the effective date of new list up to July 9, 2007 and let the deadline pass without making the promotions. That decision prompted Carroll’s suit alleging reverse discrimination.
The trial court ruled against Carroll in 2010, finding he could not prove that the city’s motivation in moving up the effective date of the new list was race-based. On appeal, the Second Circuit agreed, concluding that Carroll “offered no evidence that the City’s decision to accelerate the effective date of the 2007 List was made after the Vulcan Society threatened to bring litigation if the 2004 List were used…. Indeed, the only reference in the record to acceleration of the effective date of the 2007 List … suggests that the decision to accelerate it from July 19 to July 9 or 10 was made before the Vulcan Society threatened litigation.”
Here is a copy of the ruling. Carroll v Mt Vernon
Posted in Civil Suit, Constitutional Rights, Discrimination, Promotions
Sexual Assault Alleged in London Fire Station
A woman is claiming she was sexually assaulted in a London, England fire station following a Christmas Party on December 19, 2011. Scotland Yard is investigating the case that appears to involve two firefighter-colleagues.
The Daily Mail is reporting that incident may have involved off duty personnel who slept over at the station in South London following the party. Scotland Yard has confirmed that a male suspect in his 20s has been arrested, but the London Fire Brigade has not confirmed whether he is a firefighter or not…. well… sort of. The Daily Mail quoted a department source saying: “We don’t comment on matters involving individual staff members.”
FLSA and Volunteers
Today’s burning question is one that has come up before, and will no doubt come up again: I am the new chief of a mostly volunteer fire department. The six career firefighters, who are all former volunteers, have never been allowed to volunteer their services after hours. They work five days a week, fifty hours a week total. All have expressed to me their willingness to respond to alarms on nights and weekends. Can I let them?
Answer: The short answer is, yes you can allow them to respond to alarms outside their normal hours, provided you are willing to pay them overtime. The long answer is…. well… complicated and involves the Fair Labor Standards Act (FLSA).
Under the FLSA, hourly employees are entitled to overtime compensation after 40 hours a week. There is an exception for public sector firefighters known of the 207K exemption that allows them to work up to an average of 53 hours per week (212 hours in a 28 day period) before overtime is triggered. The distinction between public and private sector departments is important because if your department is a volunteer fire company (a private sector entity) – you may owe your personnel overtime for all hours worked over 40. If your department is a municipal department, a fire district, or other public sector entity, then your firefighters can work their current fifty hours a week at straight time (hourly) rate or for a salary without triggering overtime.
While often misunderstood by firefighters, the FLSA requirement that all hours worked for an employer (even volunteer hours) must be counted as compensable hours worked – actually makes a lot of sense. There are many unscrupulous employers out there who would be all too happy to find ways to induce their employees to “volunteer” to work extra hours if the law permitted them to. While most employers trying to exploit the volunteer angle would not be fire departments – the truth is there would be some departments that would. Hence the FLSA does not allow an hourly employee to “volunteer” for his/her employer without compensation.
Posted in Burning Question, FLSA, Volunteers, Wage and Hour
Text Messaging and Public Records Laws
Today’s burning question: Our union attended a city council meeting, and during the course of the meeting we observed one of the councilmen texting. Are his texts subject to the public record laws? I mean, wouldn’t it be awesome if we could force him to disclose copies of his text messages?
Answer: Text messages are considered to be subject to the public records laws in most states, but before you start doing backflips be careful about what you wish for. If the councilman has to disclose his work related text messages, then so do you while you are on duty.
The Palm Beach Post ran an interesting story yesterday about text messaging and Florida’s Public Records Law. Under state law, text messages, Facebook comments, Tweets and other forms of electronic communications are considered public records when the content of the messages involves government business.
Take a second to absorb that. The entire area of text messaging/public records is fraught with problems:
- Does it matter if the message was sent using a government owned device or personally owned device?
- Do both parties to the message have to consent to its disclosure?
- How long do I have to maintain text messages in order to comply with the public records law?
- How exactly do I get the text messages off the cellphone and on to paper so that copies can be made?
No doubt, the devil is in the details… and the details are different depending upon the state, the text messaging service provider, the device used, and the content of the messages. For example, some providers allow text messages to be forwarded to email addresses for retention purposes, and some can directly archive messages. Software is also available to download text messages from cellphones.
This is an evolving issue where the law has not caught up with the technology, but one that impacts all firefighters and EMS personnel.
Posted in Burning Question, Discovery, Ethics, Evidence, Open Records Laws, Politics
Detroit EMT Sues For Sexual Harassment and ADA Discrimination
An EMT with the Detroit Fire Department has filed suit against the department alleging sexual harassment, sexual assault, and discrimination under the Americans with Disabilities Act.
EMT Kimberly Asaro alleges that she was sexually assaulted and harassed by Battalion Chief Jack Wiley on a number of occasions dating back to 2007. An internal investigation cleared Chief Wiley. Asaro’s suit alleges she was denied a copy of the investigation report, and was told informally that Chief Wiley “meant no harm”.
Asaro also alleges that she had a medical condition, irritable bowel syndrome, that the department refused to accommodate by requiring her to wear a belt. The belt allegedly aggravated her symptoms. Last June, the EEOC found reasonable cause for her ADA claim, and proposed a settlement in the case, but the department refused to accept it.
Posted in ADA, Civil Suit, Sexual Harassment, You Can't Make This Stuff Up
North Carolina EMT Has No Immunity Protection for Chapel Hill Death
A ruling this week in North Carolina has left an EMT without immunity protection in a suit by the family of a high school football player who died after practice in 2008.
Atlas Fraley, 17, died from complications related to dehydration and severe muscle cramps. Following football practice at Chapel Hill High School on August 12, 2008, he went home, felt ill, and called 911. EMT James Griffin from Orange County Emergency Services responded and concluded that Fraley’s condition did not warrant further treatment or transport.
Despite Fraley’s age, Griffin did not transport him, nor contact his parents to obtain a refusal. The age of consent in North Carolina is 18. Griffin gave Farley some instructions on how to relieve the symptoms and told him to call 911 if the symptoms did not improve.
When Fraley’s parents returned home, Atlas was not breathing, and was pronounced dead by responding EMS personnel. Griffin was subsequently suspended, and chose to resign in lieu of termination.
Atlas’s parents filed suit against Griffin, Orange County Emergency Services, and Orange County for wrongful death. Both OCES and Orange County were dismissed from the suit based on sovereign immunity.
Griffin also sought to be dismissed from the suit based upon the fact that he was acting in an official capacity, and therefore was entitled to public official immunity. The trial court denied the motion in November, 2010, and Griffin appealed to the North Carolina Court of Appeals.
The court’s analysis focused upon whether Griffin was a public official or a public employee. As interpreted under North Carolina case law, a public official exercises discretion and has immunity for his/her decisions, while a public employee carries out ministerial tasks and is liable for his/her negligence.
The court clarified the distinction between an official and an employee by citing case law that held that a public official (1) serves in a position created by the constitution or statutes; (2) exercises a portion of the sovereign power; and (3) exercises discretion.
Based on the 3 point test, the court concluded that an EMT such as Griffin was not a public official, but rather was a public employee, and thus could be held personally liable for his negligence.
Here is a copy of the decision. Fraley v Griffin
Griffin may appeal the decision to the North Carolina Supreme Court.
A couple of bullet points just for the sake of clarity:
- The court did not say that Griffin was negligent, nor that he is liable. It only ruled he has to stand trial.
- The ruling is limited to North Carolina. The vast majority of states offer some level of immunity protection to emergency responders, (usually only for negligence). Most states do not leave a publicly employed EMT personally liable for negligence while allowing the state or municipal employer completely off the hook.
- Most states recognize a distinction between a discretionary act and a ministerial act and provide immunity protection only for discretionary acts. However, states are all over the map when it comes to what they consider to be a discretionary act. Most states do not link discretionary acts to certain positions that are designated as “public officials” for purposes of immunity – but rather find that a given employee may at times act in a discretionary manner, and at other times act in a ministerial manner.
Posted in Civil Suit, Duty to Act, EMS, Immunity, Municipal Liability, Negligence, Wrongful death
On Duty Firefighters Asked to Serve Cocktails Shirtless
Here is today’s burning question: I am a career firefighter and I was recently asked by my fire chief to serve drinks to a group of women at a fund-raising event while on-duty. I know I am a hunk and I’m on the firefighter’s calendar, and I really didn’t have that big a problem with the request – particularly since I was on duty and being paid (some of the other guys were off duty and they agreed to do it for free). However, the chief wanted us to serve the drinks shirtless. Isn’t that going too far? And by the way, what if there was a run while we were out of service for the event? Could we get in trouble?
Answer: Let me answer the question with a question: Your only concern with what happened was that you were asked to take your shirt off? Seriously? Which part of the entire episode sounded like a good idea? The use of on-duty firefighters to perform non-fire department related work at taxpayer expense? The serving of alcohol by on-duty firefighters? The placing of front-line apparatus out of service for a private event? Or was it the mere request to serve drinks topless? Frankly, I think the request to do it topless should be the LEAST of your concerns… below infringing on work that rightfully belongs to the food and beverage servers union.
Fire Chief Scott Vanderbrook, of Estero, Florida, is facing mounting criticism over his decision to use five firefighters to attend and work at a fundraiser on December 8, 2011 held in a private gated community. The five were models in the local firefighter’s charity calendar and the event, attended by 22 women, was a private calendar signing.
Two of the five firefighters were on duty at Station 42 for the event. The station along with Engine 42 were placed out of service and a third firefighter assigned to Station 42 was detailed to another station for the event. The two firefighters were available to respond from the event in a fire department automobile if need be.
The firefighters claim they thought the fundraiser was a public event. They were initially asked by the chief to go shirtless, serve the invitees alcohol and food, and make small talk. When the firefighters expressed their reluctance to go topless, the chief to ask them to either wear a tank top or rip the sleeves off their T-shirts.
After the event the firefighters’ union claimed the men felt like “a bunch of little puppets”. The chief has since apologized to the firefighters involved. Fire commissioners have stood solidly behind the chief’s action, saying that the chief had kept them informed about the event, that there were no rule violations, and that fire protection to the district was not compromised.
Regarding the issue of firefighters serving alcohol while on duty, the commissioners declined any knowledge of the issue. The Estero Fire Rescue Administrative Guidelines state that firefighters cannot be in possession of or consume alcohol while on duty.
Everett Firefighters Prevail in Staffing Related Unfair Labor Practice
The Washington State Public Employment Relations Commission has ruled in favor of Everett Firefighters IAFF Local 46 on an unfair labor practice claim against the City of Everett. The December 2, 2011 ruling concluded that it was improper for the city to refuse to bargain with the firefighters over staffing reductions, brownouts, and assigning mutual aid companies to replace Everett Fire Department units.
In 2010, the city made a financially driven unilateral decision to brownout companies, reduce staffing, and utilize mutual aid departments to respond directly to incidents in Everett. The city alleged they were forced to resort to these measures to reduce spending on overtime.
The PERC concluded that the issues were mandatory subjects for bargaining, and that “the employer’s behavior was inconsistent with a willingness to bargain.” Among the notable quotes from the decision:
- “State law requires that employers of union-represented workers give notice and provide an opportunity for collective bargaining when they want to change wages, hours or working conditions.”
- “The employer was emphatic that it would only look at the staffing approach that it had predetermined to use. The attitude of the Mayor and the CAO/CFO clearly demonstrated to the union that bargaining was futile.”
- “Overtime is a mandatory subject of bargaining since it involves both wages and hours.”
- “The number of fire fighters assigned to equipment that can be deployed to an incident can directly impact fire fighter safety.”
The PERC ruled in the city’s favor on two of the union’s charges, namely the city’s continued use of private ambulances and whether emails sent by the city directly to employees was an attempt to circumvent the union.
On the ambulance issue, the commission concluded that the city’s use of private ambulances was not an unfair labor practice. The parties had engaged in some bargaining over the implementation of fire department ambulances, and while the PERC referred to it as a “close case”, the city’s continued use of private ambulance was ruled not to be an unfair labor practice.
As for the city’s decision to email employees directly with information about the brownouts and staffing reductions, the board concluded that the emails were not attempts to bargain with the employees. Rather the emails were merely intended to inform the members of decisions that had already been made, and as such did not constitute an unfair labor practice.
In making the ruling, the PERC ordered the city to reinstate the previous staffing levels and reimburse members for lost overtime. The city has until December 22, 2011 to appeal.
Here is a copy of the decision: EverettWAUnfairLP
Posted in Labor Law, Municipal Liability, Staffing
Canadian Case Poses Challenge For Volunteers
There is an important case brewing north of the border that pits volunteer fire departments against the provincial Ministry of Labour in Ontario. It is a case that just as easily could be occurring in US courts, and calls into question whether there should be relaxed standards for volunteer fire departments, or if they should be held to the same standard as their career counterparts.
The Ontario Ministry of Labor is prosecuting the Meaford Fire Department alleging that firefighters failed to follow proper safety procedures required under the Occupational Health and Safety Act at a fire where two firefighters were seriously injured.
The fire occurred on September 9, 2009 at a restaurant with people reportedly trapped. Two firefighters sent a distress signal when they were low on air, and a rapid intervention team was assembled and deployed to rescue them. One of the trapped firefighter had to be resuscitated by paramedics. It was later found that there was no one trapped in the building.
The citation has sparked a huge debate about the safety and training procedures followed by the Canada’s volunteer fire departments.
The Ministry of Labor alleged that the department:
“1) Failed to take the reasonable precaution of activating an accountability system to track firefighters entering a burning structure.
2) Failed to provide sufficient training to a firefighter in the use of a self-contained breathing apparatus.
3) Failed to take the reasonable precaution of establishing a medical surveillance system for the purpose of having a record of pre-existing medical conditions of firefighters employed by the department.
4) Failed to take the reasonable precaution of maintaining effective supervision of an incident by establishing a command post at an appropriate location where radio transmissions could be heard by the incident commander.
5) Failed to take the reasonable precaution of providing equipment that would allow two firefighters to breathe from one cylinder without compromising the seals on their face masks, namely: trans fill hoses (extra air-supply connections) or a Rapid Intervention Team pack containing both trans fill hose and a spare breathing air cylinder.
6) Failed to take the reasonable precaution of establishing a Rapid Intervention Team for the protection of firefighters entering a building who may become lost or trapped. ..”
During the course of the case the Ministry of Labor withdrew half of the charges and the case has gone forward based on charges 1 (accountability), 4 (ICS and radio comms) and 6(RIT).
Many in the Canadian fire service feel that the case will discourage people from volunteering, as well as place unreasonable financial burdens on small volunteer fire departments. Some point out the hypocrisy of the provincial government demanding the volunteers provide the additional training and requirements without giving them the additional financial support.
The ongoing discussion about whether volunteers and career firefighters should be held to the same standards remains largely a theoretical one here in the US. Occasionally a case will pop up here or there, but none yet has sharpened the focus of the issues the way the Meaford case has in Canada. The case is ongoing and we will report the outcome as soon as we learn of the final decision.
EEOC Investigating Florida Fire Department Following Complaints
Eight firefighters from Davie Fire Rescue have filed a comprehensive 87 page complaint with the EEOC alleging sex discrimination and retaliation. The complaint comes on the heels of two pending gender-based lawsuits against the department.
As best I can tell the cluster of cases began in 2009 when Fire Inspector Linda Stokoe was terminated. Stokoe sued claiming she was discriminated against, and subjected to a hostile work environment. She alleges that supervisors went so far as to time her bathroom breaks, and did not similarly time the bathroom breaks of male personnel.
Retired Lieutenant Larry Pasko sought the open position as a fire inspector and contends that the town hired a woman, Susan DiPuglia, who lacked the requisite certifications in an effort to conceal its previous discriminatory termination of Linda Stokoe. Pasko’s suit is set for trial in December 2012.
The eight members who filed the most current discrimination complaint with the EEOC include both male and female firefighters, and one retired member. They allege that female personnel in DFR face harsher discipline, are promoted less often, and confront a hostile work environment. The complaint also alleges that anyone who speaks out, male or female, faces retaliation.
Attorney Erik Nelson is representing Stokoe for her termination, Pasko for his discrimination case, and the eight complaining firefighters. He was quoted as saying “We are fully and actively participating in the administrative process with the EEOC and the Department of Justice with the hope that these issues may be resolved without further court action. However, if they are not, we are ready, willing and able to proceed to court.”
Deputy Chief Sues Baltimore City For Race Discrimination
A deputy chief in the Baltimore City Fire Department has filed suit against the department, the fire chief, an assistant chief, a deputy mayor, and the mayor and city council of Baltimore alleging race discrimination.
Deputy Chief Lloyd Carter filed suit on December 12, 2011, alleging he was wrongfully passed over for promotion because he is African American. He also claims that he has been subjected to harassing, embarrassing and humiliating work conditions, and retaliation based upon his race.
Named as defendants in the suit are Fire Chief James Clack, Assistant Chief Donald Heinbuch, Deputy Mayor Chris Thomaskutty, along with the Baltimore City Fire Department and the mayor and City Council. The suit was filed in Federal District Court and seeks $3 million in damages.
Chief Carter has been in charge of recruiting for Baltimore City FD since last July. The suit alleges he has been subjected to a series of unsubstantiated accusations and investigations that have damaged his good name. While not named as a defendant, IAFF Local 984 President Stephen Fugate, stands accused of filing some of the complaints against Chief Carter. IAFF Local 984 is the officers union.
Here is a copy of the complaint. Carter v Baltimore City Fire
Posted in Civil Suit, Constitutional Rights, Discrimination, Municipal Liability
North Hudson Regional Fire Rescue Residency Rule Struck Down
On Tuesday, the US 3rd Circuit Court of Appeals handed down an important fire service ruling involving residency and discrimination.
The case involved the North Hudson Regional Fire & Rescue in New Jersey. The department had a residency requirement that all applicants must be a resident of one of the five communities making up the regional district. The district is 69.6% Hispanic, 22.9% white, and 3.4% African American. The department is 79.5% white, 19.2% Hispanic, and .6% African American.
Suit was brought by the NAACP on behalf of African American applicants claiming that the residency requirement created a disparate impact. The department’s defense was that opening the process up to non-residents would potentially disadvantage Hispanics and other minorities by allowing more white applicants from other towns to apply.
The court noted that some New Jersey fire departments use residency requirements to enhance minority employment opportunities. The court even referenced a 1977 race discrimination case brought by the Federal government against twelve NJ municipalities, where the jurisdictions entered into consent decrees that mandated the use of residency requirements to enhance minority recruitment. Those consent decrees remain in effect today, some 30+ years later.
But the 3rd Circuit rejected the use of a residency requirement by NHRFR in this case finding that it served to limit African Americans from applying to become firefighters, and thereby caused the disparate impact. The court further concluded that the use of the residency requirement could not be justified as a business necessity.
Ultimately, the court’s decision appears to have rested on the conclusions of two statisticians who served as expert witnesses in the case. The two determined through some convoluted sort of reasoning that the residency requirement was responsible for the small numbers of African Americans working for NHRFR. [Please don’t take my word on the convoluted reasoning part – try to read it yourself and then you tell me… see the link to the decision below]
Following the ruling, the NAACP’s attorney, David Rose, was quoted as saying “Obviously, we’re pleased”. Hummmm…. I can’t help but wonder if he and the NAACP realize just what the long term result of their “victory” will be in terms of the applicant pool. It is quite likely NHRFR will now see a dramatic increase in applicants from primarily white suburban and rural areas who previously were prohibited from applying. Personally, I think the NAACP may have (which cliché should I use) won the battle but lost the war… shot themselves in the foot.
Attorney Tom Kobin who represents NHRFR, indicated he will be requesting a en banc hearing before the full 3rd Circuit. Barring that, the case may end up at the US Supreme Court.
Here is a copy of the ruling: NAACP v No Hudson (happy reading – it’s a tough one…)
Posted in Civil Suit, Constitutional Rights, Discrimination, Politics
New Jersey VFD Sued for Sex Discrimination
The Cape May County Herald is reporting that two women have filed a sex discrimination suit against the City of North Wildwood and the North Wildwood Volunteer Fire Company. According to the news report, the women were denied membership.
City Solicitor William Kauffman has confirmed receipt of the summons and complaint, but declined to comment on the allegations. No additional details are available.
Patterson Firefighters Grieve Withholding of Storm Related Overtime Pay
Patterson, New Jersey, Firefighters IAFF Local 4577 have filed a grievance against the city of Patterson over the non-payment of overtime wages for work performed during the flooding associated with Hurricane Irene and Tropical Storm Lee last September. The grievance is similar to one filed last month by the Patterson Police union over the same issue. Between the two locals, the total amounts alleged to be owed exceed $200,000.
The payments appear to be mired in city council action. The council is said to be investigating the overtime and have asked for additional information to “authenticate the additional hours worked.”
Most states have a statute that specifies the time frame that an employer has to pay wages to employees following days that the work is performed. In New Jersey, the law reads as follows:
34:11-4.2. Time and mode of payment; paydays
Except as otherwise provided by law, every employer shall pay the full amount of wages due to his employees at least twice during each calendar month, on regular pay days designated in advance by the employer…. The end of the pay period for which payment is made on a regular payday shall be not more than 10 working days before such regular payday, provided that if the regular payday falls on a nonwork day payment shall be made on the preceding work day.
Basically, overtime wages must be paid within ten days from the closure of the next pay period following the hours worked. The law allows an employer to withhold wages that are disputed:
34:11-4.8. Dispute over amount of wages
a. In case of a dispute over the amount of wages, the employer shall pay, without condition and within the time set by this act, all wages, or parts thereof, conceded by him to be due, leaving to the employee all remedies to which he might otherwise be entitled, including those provided under this act, as to any balance claimed.
b. The acceptance by an employee of a payment under this section shall not constitute a release as to the balance of his claim and any release required by an employer as a condition to payment shall be in violation of this act and shall be null and void.
However, in the event that an employer is found to wrongfully withhold funds, the penalties are substantial – and include a criminal offense. Take a look:
34:11-4.10. Violations
Any employer who knowingly and willfully violates any provision of 34:11-4.1 et seq. shall be guilty of a disorderly persons offense and, upon conviction for a violation, shall be punished by a fine of not less than $100 nor more than $1,000. Each day during which any violation of this act continues shall constitute a separate and distinct offense. …
When you consider that each employee who was wrongfully denied overtime is a separate violation, and that each day between September and December is a separate violation, the cost to Patterson could be enormous – if they are found to have “knowingly and willfully” violated the statute. While at present the case is a contractual grievance (the local alleges the collective bargaining agreement was violated), New Jersey statutes authorize the Commissioner of Labor to investigate violations, and proceed against violators.
Posted in Labor Law, Wage and Hour
Bad to Worse for West Virginia Volunteer Fire Department
A bizarre case involving a West Virginia volunteer fire company has gotten a bit closer to closure. Michael Kevin Brammer, the former president of the Ronceverte Volunteer Fire Department, was convicted this week of one count of conspiracy to commit embezzlement.
Two other officials, former fire chief Jody Campbell and former treasurer William Miller, were also indicted in this case. Miller pled guilty and is on probation while Campbell awaits trial. The cases stem from the use of fire department funds to “assist” members having financial difficulties.
The financial irregularities prompted the City of Ronceverte to move to consolidate control over the RVFD in 2009, which in turn prompted a civil suit by the department claiming the city’s efforts were illegal. Earlier this year, West Virginia State Fire Marshal Sterling Lewis exercised his authority to issue a cease and desist order to the Ronceverte VFD to stop their operations.
SFM Lewis based his order on regulations that prohibit emergency service organizations from employing convicted felons. He alleged that Ronceverte firefighters elected Casey Morgan to be the department’s chief, and Morgan had been convicted of grand larceny.
A video covers more on the situation.
Controversial West Palm Fire Captain Beats DUI Charge
A controversial West Palm Beach firefighter is back in the news following his acquittal on DUI charges. Fire Captain Rick Curtis was originally convicted of drunk driving back in May, sentenced to 3 days in jail, and terminated from West Palm Beach Fire Rescue.
However, when he learned that the judge in the case, Marni Bryson, had an undisclosed relationship with firefighters’ union vice-president Doug Greene, with whom he was at odds, Captain Curtis sought a new trial. The request for a new trial was granted in June, and last Friday Captain Curtis was acquitted. He is now seeking to be reinstated to the department.
Captain Curtis has been involved in a number of lawsuits and EEO complaints against the West Palm Beach Fire department over the past 10 years. Here’s a link to some of the details of those cases.
More on the DUI controversy, and more on the acquittal.
Florida Firefighters Get Reprieve on Strict Social Media Policy
Many fire departments are struggling with how to deal with the social media and digital imagery problems that so often have made headlines. Some departments have adopted strict policies, some have adopted more flexible policies, and some have buried their proverbial heads in the sand – hoping that the next social media train wreck does not involve their department.
Firefighters in Coral Gables, Florida received a reprieve of sorts recently when the department agreed to rescind its strict social media policy that was implement on October 28, 2011. The policy had been drafted by a city attorney.
Brendan Fonock, vice president of the Coral Gables Professional Firefighters IAFF Local 1210, filed a grievance over the policy shortly after it was issued, claiming it restricted the First Amendment Rights of firefighters. “We don’t have a problem with them having a social media policy, but this one was so restrictive of people’s freedom of speech… It’s not against the law to be a firefighter and have an opinion.”
Both sides have agreed to work together to reach a mutually acceptable compromise on a new policy. One challenge with drafting a social media policy is the evolving nature of social media in our lives. The use of sites such as Facebook, Twitter, and LinkedIn have exploded in recent times, and the law simply has not caught up. Many attorneys are not attuned to the emerging issues.
A second challenge is the variety of complex legal issues are potentially raised, including:
- 1st Amendment free speech
- HIPAA and medical confidentiality
- Privacy rights of employees and citizens
- Collective bargaining rights and the right to engage in concerted activities
- Copyright law
- New laws intended to restrict photo taking and dissemination by emergency personnel at incident scenes
Social media policies are not a one size fits all proposition, and copying another department’s policy can be a recipe for disaster. Each workplace is different, with different individuals, values, practices and histories. In an ideal world, there would be a level of trust and openness between labor and management that would lead to a collaborative approach to policy development. In many cases such collaboration is not possible.
A reality that should bring firefighters and fire chiefs together: social media nightmares often claim the careers of the firefighters involved, and just as frequently they damage the career of fire chiefs. A sound social media policy can protect the careers of both firefighters and chiefs.
Posted in Constitutional Rights, First Amendment, Labor Law, Social Media
Missouri Battalion Chief Commits Suicide Following Termination
Last week we covered the story of the Monarch Fire Protection District’s decision to fire four chief officers over their involvement in a sexual harassment suit. According to news reports the men were not personally involved in the harassment, but were accused of not doing enough to stop it.
Now comes word that one of the accused chiefs, Battalion Chief Fred Goodson, committed suicide three weeks after he was let go. Chief Goodson was found in the woods near his home yesterday with what police describe as a self-inflicted wound.
Chief Goodson, 61, had been with Monarch Fire Protection district for thirty-six years. News reports claim the four fired chiefs had been at odds with the firefighters union, and that contributed to the decision to terminate them.
Posted in Civil Suit, Disciplinary Action, Sexual Harassment
Iraq and Afghanistan Firefighters File Suit for Over $100M
On Tuesday, twenty-eight US firefighters filed a class action lawsuit against Wackenhut Services International, Kellog-Brown & Root, LLC (KBR) and Halliburton Corp, claiming fraud, conspiracy, and breach of contract arising out of their work in Afghanistan and Iraq.
The firefighters allege they were deceived into going overseas, not paid the wages and benefits they were promised, and threatened when they tried to complain. The 30 page complaint was filed in Federal District Court in Washington, DC.
The suit alleges that some 2,000 firefighters were wrongfully deprived of “lawful wages required by government contracts – including in-country pay, danger pay, on-call pay, up-lift pay, overtime, and other benefits and compensation”. The suit also alleges that the defendants billed the US government for hours worked by the firefighters for which they were never paid.
According to the complaint, firefighters were required to be on duty 24/7, but were only paid for 12 hours a day. They claim they were told there would be two shifts assigned each day, but when they arrived there was only one shift. The defendants required them to remain at work on-call with no pay for the other 12 hours.
The named plaintiffs were among those who opted out of a proposed arbitration settlement that was negotiated with the defendants back in 2010. The proposed settlement would have granted $1,500 to each firefighter and paid the attorneys who brought the claim $1,000,000. The plaintiffs opted out because their average lost overtime claims exceeded $40,000, exclusive of interests, costs, civil penalties, and attorneys fees – all of which are compensable under the FLSA.
The plaintiffs are seeking to recover compensable damages, statutory damages and penalties, plus over $100,000,000 in punitive damages. While it is a tough read, the complaint is pretty interesting.
Here is the complaint. Hill v Wackenhut
Posted in Civil Suit, FLSA, Politics, Wage and Hour, You Can't Make This Stuff Up
First Amendment Protects Firefighter’s Criticism Of Dive Rescue Cutbacks in Ohio
The United States 6th Circuit Court of Appeals handed down one of the more important fire service decisions of 2011 yesterday in the case of Westmoreland v. Sutherland.
The Ohio case involved the Bay Village Fire Department’s effort to discipline a firefighter, Ron Westmoreland, for criticizing the city’s decision to eliminate the dive rescue team in 2008. The team was eliminated to save money, but shortly thereafter two children drown in separate incidents.
Westmoreland attended a city council meeting following the deaths, and lambasted the elected officials for putting money before lives. The court quoted a portion of his comments:
“You keep rolling the dice, hoping everything will be alright. You cut our manning, you cut our training, and you cut money in various places, which is not my responsibility. But my responsibility lies with the citizens of Bay Village. . . . They pay the taxes that pay all of our salaries. Now a seven year old kid is dead, that last year would have been found in about twenty minutes by the Bay Village Dive Team.”
Following the meeting, Mayor Deborah Sutherland suspended Westmoreland for three 24 hours shifts without pay, citing him for “insubordination, malfeasance, misfeasance, dishonesty, failure of good behavior, and conduct unbecoming of an officer.” The disciplinary notice stated that he made “misstatements, fabrications, insulting and inciteful,” that were not “supported by the facts.”
Westmoreland grieved the discipline, but it was upheld by an arbitrator. Westmoreland filed suit in Federal court against the Mayor and the city claiming that the discipline was an unconstitutional retaliation for the exercise of his First Amendment Rights. The trial court granted summary judgment to the mayor and city, concluding that because Westmoreland’s statements were “knowingly or recklessly false”, he was ineligible for First Amendment protection.
On appeal the 6th Circuit reversed. The court provided an excellent review of what has become the standard 1st Amendment analysis for public employees (which incidentally all firefighters should read and understand – you can download the decision below). In order to have protection under the 1st Amendment, a public employee must be speaking as a private citizen about a matter of public concern.
The court concluded that Westmoreland was speaking as a private citizen at the council meeting because although he did identify himself as a city firefighter, he was off duty, not in uniform, and did not make the presentation as an official task that was within the scope of his duties. The court also made note of the fact that the forum in which the comments were made (a public hearing where it was appropriate to address the mayor and council during a public comment period) was an appropriate one to address the concerns Westmoreland was raising.
The court further concluded that Westmoreland’s comments were clearly matters of public concern, not private or petty grievances. The fact that Westmoreland may have received additional overtime compensation if the dive rescue team was reinstated does not change the public nature of the concerns that he raised.
Next the court considered whether any misstatements that Westmoreland may have made, arose to the level of being “knowingly or recklessly false statements”. Quoting from an earlier fire service case, Chappel v. Montgomery County Fire Prot., 131 F.3d 564, 576 (6th Cir. 1997), the court said: “[a] public employee is not required to prove the truth of his speech in order to secure the protections of the First Amendment.” Rather, the burden is on the city to prove that any statements made were false, and that the employee knew they were false when he made them (or at least was reckless with regard to the truth or falsity of them).
The appellate court then reversed the trial court’s determination that the statements were recklessly false as a matter of law, finding evidence in the record tending to support Westmoreland’s factual contentions. The unanimous three judge panel remanded the case back for a factual determination of the truth or falsity of the statements. If it is proven at trial that Westmoreland’s statements were false, then the court must determine whether the city has met its burden of proving that he knew they were false when he made them, or that he was reckless.
Here is a copy of the decision. Westmoreland OH drowning case
Pennsylvania Township Fire Chief Arrested for Theft
The fire chief of Wilkes-Barre Township, Pennsylvania, was arrested today by State police following a 3 year investigation into financial irregularities in the fire department.
Fire Chief John Yuknavich faces charges of theft, receiving stolen property, and access device fraud. State police claim Yuknavich wrote checks to himself totaling $11,865 in fire department funds, and charged $3,706 on a department credit card.
Yuknavich was in the news last year following a series of run-ins with local police, including driving a fire department vehicle with lights on when there was no emergency. He ended up pleading guilty to a disorderly conduct charge.
Posted in Criminal Law, Disciplinary Action, Volunteers
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