From the LawBlogs -- for the week ending July 2, 2016

From the LawBlogs -- for the week ending July 2, 2016

Internet links highlighted in color 

Employment Law Daily Blog 
Case summaries published in WK's Employment Law News 

Justices leave public-sector agency fee battle for another day

by Pamela Wolf, J.D.

Whether CDL was essential function of diabetic’s job properly put to jury

by Ronald Miller, J.D.

FMLA notice’s failure to include job restoration rights might be interference if employee prejudiced

by Kathleen Kapusta, J.D.

Texas has standing to challenge EEOC Guidance on criminal background checks as final agency action

by Kathleen Kapusta, J.D.

PA’s pre-leave failure to stay up-to-date on patient charts suggests firing unrelated to FMLA

by Brandi O. Brown, J.D. 

The five most popular NYPPL LawBlog Postings

Health insurance company’s claim for reimbursement...

A probationary employee may not be dismissed from ...

Where the collective bargaining agreement so provi...

Essentials of the "Pickering Balancing Test”

Guide to regulatory enforcement publ

Summaries of articles published in the Fire, Police and Corrections Personnel Reporter 

Posted by AELE  

Disciplinary Interviews and Compelled Reports -- Garrity Warnings - Despite the protections in Garrity, a state employee can waive those rights after he is fired and allow his prior compelled statements to be used by the federal government in a criminal investigation concerning the death and beating of an inmate, provided the waiver was voluntary, knowing, and intelligent. Further, in this case, the statements made by a corrections officer were not compelled because he did not show that he subjectively believed that his statements were compelled on threat of job loss, and that this belief was "objectively reasonable." But even if they were compelled, he adequately waived his Garrityprotections, United States v. Smith, #13-15476, 2016 U.S. App. Lexis 7762 (11th Cir.). 

Disciplinary Procedures - In General - A female tenth grader took a pie to firefighters. One male firefighter gave her a tour of the station and took a picture of her next to a fire engine. He got her email address to send her the picture and subsequently engaged in a risqué exchange of emails. After the girl's father complained, the firefighter was assigned to a training center where he allegedly touched a female co-worker in an unwelcome manner and made "inappropriate" remarks about their private lives. After an investigation, he was fired. In reviewing the disciplinary action, the trial court did not err in finding that the email exchange, if with a willing unmarried adult, would not violate any existing policy, and it was not alleged in any charge that the firefighter knew the girl was a minor, but the question could be further reconsidered on remand. The trial court, which set aside the termination, did err in failing to consider interview transcripts regarding the firefighter's behavior towards the female co-worker. Seibert v. City of San Jose, #H040268, 2016 Cal. App. Lexis 435. 

Fair Labor Standards Act - Overtime in General - Current and former police officers claimed that the city violated the Fair Labor Standards Act (FLSA), 29 U.S.C. 201-19 by failing to include payments of unused portions of their benefit allowances when calculating their regular rate of pay, resulting in lower overtime pay. The federal appeals court agreed with this claim as the money paid for unused benefits was payment for work. The plaintiffs were entitled to liquidated damages because the city failed to show that it attempted in good faith to comply with the law. Flores v. City of San Gabriel, #14-56421, 2016 U.S. App. Lexis 10018 (8th Cir.). 

Firearms Related - Editor's Case Alert - Four retired correctional officers claimed that the District of Columbia improperly deprived them of their federal right to carry a concealed weapon under the Law Enforcement Officers Safety Act (LEOSA), 18 U.S.C. 926C. They claimed that they met the statutory requirements but that they were unable to obtain firearms training because the District refused to certify that, as corrections officers, they had the power to arrest, specifically to arrest parole violators. The federal appeals court found that the complaint sufficiently alleged that they had been unlawfully deprived of a concrete individual right designed to benefit them, which could be remedied under 42 U.S.C. Sec. 1983. Duberry v. District of Columbia, #15-7062, 2016 U.S. App. Lexis 10096 (D.C. Cir.). 

First Amendment Related - A federal employee failed to show that she was not promoted because of comments in her performance evaluation when that evaluation was not shown to be actually used in the promotion process. Accordingly, even if comments in the evaluation referred to her protected First Amendment speech (being quoted in a newspaper article about race discrimination within the agency employing her), she could not show that she was not promoted because she exercised her First Amendment rights. Performance ratings that have a negative impact on promotion potential do not constitute an adverse employment action unless the rating actually led to the denial of the promotion. Wilson v. Miller, #15-1415, 2016 U.S. App. Lexis 7401, 41 I.E.R. Cas. (BNA) 469 (8th Cir.). 

Handicap/Abilities Discrimination – Disability - A courthouse employee who assisted pro se litigators claimed that before she left to take a better job she was discriminated against because of her black race and her disability of chronic fatigue syndrome. Upholding summary judgment for the defendants, the court noted that the county was her employer and that all alleged discriminatory acts had been committed by state employees, and could not impose liability on her employer. Further, the two specific requests she had made on account of disability--seeking time off--had both been granted. Wells v. Winnebago County, #15-1805, 2016 U.S. App. Lexis 7647, 129 Fair Empl. Prac. Cas. (BNA) (7th Cir.). 

Handicap/Abilities Discrimination -- Reasonable Accommodation [Editor's Case Alert] - A firefighter injured his back during a training exercise. A functional capacity evaluation limited his lifting capabilities. After two years on paid leave, he received a workers' comp award saying the limit was permanent. He retired, but argued that his retirement was a constructive discharge in violation of the Americans with Disabilities Act of 1990 (ADA), with him forced to choose between retirement and termination. Rejecting the claim, the court said that "Even if the City regarded Adair as having an impairment, Adair cannot show that he was qualified to meet the physical demands required of firefighters or that the City could reasonably accommodate his lifting restrictions." Adair v. City of Muskogee, #15-7067, 2016 U.S. App. Lexis 9636 (10th Cir.). 

Political Activity - Patronage Employment - The chief deputy clerk in a courthouse asserted that her firing constituted unlawful retaliation for political affiliations as well as gender discrimination. Rejecting the political affiliation claim, the appeals court found it was permissible to fire her on that basis as she was in a job where it was appropriate to require personal and political loyalty. She also failed to provide any evidence that the reasons given for her termination were a pretext for sex discrimination. DePriest v. Milligan, #15-1365, 2016 U.S. App. Lexis 9630 (8th Cir.). 

Retaliatory Personnel Action - An employee of a state agency claimed that she suffered unlawful retaliation for opposing an employment practice prohibited by Title VII and other employment discrimination laws. The conduct she opposed - the amendment of internal procedures in a manner that, she believed, would permit political considerations to influence the evaluation of discrimination claims - was not a “practice made an unlawful employment practice” by Title VII. Cooper v. N.Y. State Dep’t of Labor, #15-3392, 2016 U.S. App. Lexis 7588, 100 Empl. Prac. Dec. (CCH) P45543, 129 Fair Empl. Prac. Cas. (BNA) 44 (2nd Cir.). 

Whistleblower Protection - An employee of the Centers for Disease Control and Prevention claimed that agency officials violated the whistleblower protections of 5 U.S.C. 2302(b)(8)(A) by retaliating against him for disclosures about agency practices, including that the Pocket PCs were outdated, had bad batteries, lost data, and presented data-entry problems. Because of this he was allegedly not invited to certain meetings, and discouraged from participating in certain projects to which he was assigned. Various supervisors also allegedly treated and evaluated him poorly and placed him on a Performance Action Plan. A federal appeals court reversed the dismissal of the claim, finding that the employee had adequately alleged that at least one of his supervisors knew of the disclosure at issue. Cahill v. Merit Sys. Protection Bd., #15-3152, 2016 U.S. App. Lexis 8554 (Fed. Cir.).

Summaries of government, administrative and related law decisions posted by Justia

People ex rel. Feuer v. Progressive Horizon
Business Law, Government Administrative Law
California Court of Appeal

McIntyre v. El Paso Indep. Sch. Dist.
Constitutional Law, Education Law, Government & Administrative Law
Supreme Court of Texas

Tex. Dep’t of Ins., Div. of Workers’ Comp. v. Jones
Labor and Employment Law, Government and Administrative Law, Insurance Law
Supreme Court of Texas

McDonnell v. United States
Criminal Law, Government and Administrative Law, White Collar Crime
U.S. Supreme Court

State of Texas v. EEOC
Civil Procedure, Government and Administrative Law
U.S. Court of Appeals for the Fifth Circuit

Open Door Ministries v. Lipschuetz
Government and Administrative Law, Injury Law, Real Estate and Property Law, Zoning, Planning and Land Use
Colorado Supreme Court

Appeal of Carlos Marti
Labor and Employment Law, Government and Administrative Law, Injury Law
New Hampshire Supreme Court

Appeal of Thomas Phillips
Labor and Employment Law, Government and Administrative Law
New Hampshire Supreme Court

Signal Aviation Services, Inc. v. City of Lebanon
Aviation, Government and Administrative Law, Tax Law
New Hampshire Supreme Court

Indian Spring Land Co. v. Inland Wetlands Watercourses Agency
Government and Administrative Law, Real Estate and Property Law

Connecticut Supreme Court

Laut v. City of Arnold
Government and Administrative Law, Legal Ethics
Supreme Court of Missouri

Mo. Real Estate Appraisers Comm'n v. Funk
Government and Administrative Law, Legal Ethics
Supreme Court of Missouri

Malam v. State, Dep’t of Corr.
Labor and Employment Law, Government and Administrative Law
Supreme Court of Missouri

Warner v. Idaho Transportation Dept
Criminal Law, Government and Administrative Law
Idaho Supreme Court - Civil

Vannoy v. Federal Reserve Bank
Civil Rights, Constitutional Law, Government and Administrative Law
U.S. Court of Appeals for the Fourth Circuit

Bayala v. DHS
Government and Administrative Law
U.S. Court of Appeals for the District of Columbia Circuit

National Fed. of the Blind v. DOT
Civil Procedure, Government and Administrative Law
U.S. Court of Appeals for the District of Columbia Circuit

Lake Hendricks Improvement Ass’n v. Brookings County Planning Zoning Comm’n
Government and; Administrative Law, Zoning, Planning and Land Use
South DakotaSupreme Court

Dept. of Rev. v. River's Edge Investments, LLC
Government and Administrative Law, Tax Law
Oregon Supreme Court

Oakmont, LLC v. Dept. of Rev.
Government and Administrative Law, Real Estate and Property Law, Tax Law
Oregon Supreme Court

City of Richmond v. Va. Elec. and Power Co.
Government and Administrative Law, Tax Law
Supreme Court of Virginia

Bay Area Citizens v. Ass'n Bay Area Gov'ts
Environmental Law, Government and Administrative Law

Jangula v. N.D. Dep't of Transportation
Criminal Law, Government Administrative Law
North Dakota Supreme Court

Solers, Inc. v. IRS
Government and Administrative Law
U.S. Court of Appeals for the Fourth Circuit  

Zajac v. Traill County Water Resource District
Civil Procedure, Government and Administrative Law, Real Estate and Property Law
North Dakota Supreme Court

Independence Day Proclamation

Independence Day Proclamation

Source: New York State Executive Chamber, Andrew M. Cuomo, Governor

New York State Governor Andrew M. Cuomo, noting that on “this day 240 years ago, the United States of America was founded on the principles of equality, liberty and the right of self-governance,” has issued an Independence Day Proclamation  commemorating this critical event in the history of the United States of America.

This Proclamation is posted on the Internet at:  https://www.governor.ny.gov/sites/governor.ny.gov/files/atoms/files/IndependenceDay2016.pdf?elqTrackId=eb84fca5a24243b186999780fc770de6&elq=91e8e168ba414cdcab1f2fad71436fe2&elqaid=137&elqat=1&elqCampaignId=41

Selected reports issued by the Office of the State Comptroller during the week ending July 2, 2016

Selected reports issued by the Office of the State Comptroller during the week ending July 2, 2016

Source: Office of the State Comptroller

Click on text highlighted in color to access the entire report 

Former Alexandria Town Clerk Pleads Guilty in Theft

Former Alexandria Town Clerk Ellen Peck pleaded guilty in Jefferson County Court to stealing $26,285 in public funds. Peck pocketed cash paid by residents for fines, fees and surcharges, according to State Comptroller Thomas P. DiNapoli.

Since taking office in 2007, DiNapoli has committed to fighting public corruption and encourages the public to help fight fraud and abuse.  Individuals can report allegations of fraud involving public funds by calling the toll-free Fraud Hotline at 1-888-672-4555, by transmitting an e-mail to investigations@osc.state.ny.us, by filing a complaint online athttp://osc.state.ny.us/investigations/complaintform2.htm or by mailing a complaint to Office of the State Comptroller, Division of Investigations, 14th Floor, 110 State St., Albany, NY 12236.

CDTA Overtime Expenses and Ridership Growing

The Capital District Transportation Authority’s reported overtime payments accounted for 20 percent of the authority’s total employee compensation in the 2015 fiscal year, more than twice the proportion of other upstate regional transit agencies, amid steady ridership growth in recent years, according to a reportreleased by State Comptroller Thomas P. DiNapoli.

Guide to regulatory enforcement published by McGraw-Hill Education

Guide to regulatory enforcement published by McGraw-Hill Education

Source: Marissa Madill, Smith Publicity, Inc.

In their recently published book, The New Era of Regulatory Enforcement: A Comprehensive Guide for Raising the Bar to Manage Risk, authors Richard H. Girgenti, J.D., [National and Americas Leader for KPMG LLP’s Forensic Advisory Services], and Dr. Timothy P. Hedley, [KPMG’s Global Lead for Fraud Risk Management Services], provide insights into challenges organizations may face in conducting business in a rapidly changing regulatory environment. 

Noting that "In today’s global and digital world, the increasingly complex regulatory and business landscape has created unprecedented challenges and risks for businesses in all industries,” Girgenti and Hedley, supported by KPMG professionals with varied areas of regulatory and enforcement knowledge, explore government policies, strategies and tactics driving enforcement activity, and the most effective approaches for identifying, detecting, avoiding and responding to enterprise and industry risks. 

The New Era of Regulatory Enforcement provides clear guidance on what organizations need to do to mitigate risks, as well as insight into:

Public policies driving increased enforcement activity;

Government expectations for organizational compliance and integrity;

Tools and techniques deployed by the government to identify, investigate and ensure organizational compliance; and

Steps prudent organizations must take to prevent, detect and, as necessary, respond to regulatory enforcement risks.

Girgenti and Hedley also co-authored Managing the Risk of Fraud and Misconduct: Meeting the Challenges of a Global, Regulated, and Digital Environment [McGraw-Hill, 2011]. 

The New Era of Regulatory Enforcement is available in both hardcover and Kindle versions at  bookstores and through the Internet.

Recent decisions by Administrative Law Judges of the NYC Office of Administrative Trials and Hearings

Recent decisions by Administrative Law Judges of the NYC Office of Administrative Trials and Hearings

Human Resources Administration v Smart, OATH Index No. 1325/16

NYC Dept. of Transportation v Harris, OATH Index No. 1531/16 

Matter of Smart: In the Smart case, OATH Administrative Law Judge Kevin F. Casey found that a job opportunity specialist, Averyl Smart, guilty of charges of [1] speaking on her cell phone while a client was waiting, [2] refusing to set up her work voicemail, and [3] burning the edges of a disciplinary memorandum. Judge Casey, however, dismissed the allegation charging that Smith had made disrespectful comments to a supervisor.

Finding that was Smart guilty of three of the four charges alleged against her, the ALJ recommended that a 15-day suspension without pay be imposed as her penalty.

The decision is posted on the Internet at: 

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/16_cases/16-1325.pdf

Matter of Harris: The New York Department of Transportation alleged that Maurice Harris, a highway repairer, intentionally pushed and cursed his supervisor.

Administrative Law Judge Alessandra F. Zorgniotti found that Harris had intentionally pushed his supervisor but had been provoked by the supervisor but that the Department of Transportation had filed to prove that Harris had cursed him.

Considering Harris’ 18 years of service with the Department and his a minor disciplinary record – in 2006 he was given a written reprimand for failing to notify his work location that he was unable to report to work and in 2012 he was suspended for five days for using in appropriate language towards a supervisor -- ALJ Zorgniotti recommended a ten-day suspension without pay.

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/16_cases/16-1531.pdf

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The Discipline Book - A 458 page guide focusing on New York State laws, rules, regulations, disciplinary grievances procedures set out in collective bargaining agreements and selected court and administrative decisions concerning disciplinary actions and the termination of permanent, provisional, temporary and term state and municipal public officers and employees. For more information click on http://booklocker.com/5215.html

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