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Who owns your comp time? Supreme Court to decide
On the opening day of the 1999-2000 term of the United States Supreme Court the justices agreed to consider whether a public employer subject to the Fair Labor Standards Act (FLSA) may, absent a pre-existing agreement, require its employees to use accrued compensatory time. The case, Christensen v. Harris County, Texas, No. 98-1167, is expected to resolve a conflict of law in the federal appeal circuits over who controls the utilization of accrued compensatory time: the employer or the employee.

The matter arises from a dispute in Texas' largest sheriff's department. The FLSA permits a public employer to award compensatory time in lieu of cash for worked overtime. However, accumulation of that time by public safety officers is limited to 480 hours. Upon separation from employment an employee must be paid cash for the banked time. In an effort to control its unbudgeted liability for the "comp time," the Harris County Sheriff's Department began requiring deputies to

 use their time when a particular threshold was reached. The deputies' union, the Harris County Deputies' Organization, IUPA, AFL-CIO, challenged the procedure with the claim that once earned, the time - like cash - belonged to the employee and the employer could not mandate how or when to "spend" it. Following success for the deputies at the trial court, the federal Court of Appeals for the Fifth Circuit last year reversed, finding that the FLSA was silent on the question and, therefore, did not bar such a mandatory use policy. The Supreme Court agreed to consider the matter, apparently because other Courts of Appeal have interpreted this provision of the FLSA differently.

Although this case involves deputy sheriffs, the FLSA regulations regarding accumulation of compensatory time by fire fighters are identical. Given that the review order was issued on October 4, a decision in the case might be possible before the end of the court's term in July of 2000.

IAFF issues safety alert on AED
As a result of several expulsions of batteries on automatic external defibrillators (AED), the International Association of Fire Fighters (IAFF), AFL-CIO, this month alerted its membership to the possible dangers posed by the devices. Additionally, the union has called upon the National Institute of Occupational Safety and Health (NIOSH) to investigate the incidents and prepare a safety fact sheet for AED users.

The manufacturer of the devices, Medtronic Physio-Control Corporation of Redmond, Washington, issued a letter to its customers stating concern over some press and e-mail messages that

 the company characterized as "not only incorrect but may cause unnecessary concern." The letter states that four battery "occurrences" have happened over the last two years out of 144,000 lithium cells in use. The sudden "venting" of the lithium batteries is being investigated in conjunction with the battery manufacturer. The author of the letter, company president Richard O. Martin, said, "We remain convinced this battery technology is appropriate for AEDs. We recommend that you keep your devices in service."

AEDs have received wide acceptance by emergency service providers as a diagnostic and
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emergency response device in cases of cardiac arrests. Training and use of the device is relatively simple, even for laymen. The equipment is being placed in airplanes and other public places for use in cardiac emergencies. When connected to a patient, an AED diagnoses whether an electrical impulse should be transmitted to defibrillate the heart. The emergency care provider must then press a button to provide the treatment.

The incident prompting the IAFF safety alert occurred in a Florida fire department October 15. An assistant fire chief and a fire captain were attempting to determine why a LIFEPAK 500 unit

 would not activate. After removing and reinserting the lithium battery, the assistant chief turned on the unit. The bottom of the AED blew apart, spraying plastic shrapnel about the office. The fire fighters suffered eye, nasal, and throat irritation from the fumes. One of the individuals also sustained a burn to the hand. A second, similar incident was reported to have occurred in another Florida county earlier this month.

The IAFF has requested its members report any problems with AEDs to the union and to the U.S. Food and Drug Administration's Medical Products Reporting Program. 

Missouri fire fighter gains $670,000 in ADA lawsuit
Persistence has paid off for a former Independence, Missouri, fire fighter. Three years ago he sued the city claiming discrimination based upon a disability. Earlier this month a jury awarded him $670,000 after a two-day trial.

Charles Norwood, 51, asserted that he was fired due to injuries he had suffered on the job. He filed suit in 1996, claiming that his termination violated the Americans with Disabilities Act (ADA). According to court documents, Norwood, with over 20 years service, had reached the rank of fire captain. But in June 1995, he injured his back and was placed on light duty. He subsequently underwent surgery for a herniated disk. After returning to work, his physician advised him not to lift any object heavier than 50 pounds. This restriction essentially ended

 his career in fire suppression. 

Norwood met with city officials to discuss his options. While considering receiving disability benefits or taking another job in the department, Norwood asked for the job of arson investigator. This position had been created a few years earlier for another captain with similar health restrictions. In his court filing, Norwood alleged that he was denied this position although he had more seniority and experience. When he turned down other jobs because he was either unqualified or uninterested in them, Norwood was fired.

The federal court jury earlier this month found that the city had unlawfully discriminated against the former fire captain and awarded him money damages. 
Litigation

Supreme Court update
The opening of the Supreme Court's term also saw the justices reject review in two fire fighter-related cases. In one, a group of Knoxville fire fighters emerged victorious, at least temporarily, when the justices refused to consider a lower appeals court ruling that transfer of assignments in apparent retaliation for not supporting the re-election of the mayor could serve as the basis for a suit against the mayor and fire chief. The case, Cureton v. Sharpe, No. 98-1808, arose following the 1995 mayoral election. Five city fire fighters, who had either not campaigned for the mayor or had endorsed the mayor's opponent, were subsequently transferred to different stations and assignments, with no loss of
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pay, or denied discretionary merit raises. They filed suit contending that the personnel actions were in retaliation for the exercise of their First Amendment rights. The mayor and fire chief invoked the defense of qualified immunity, claiming that the law regarding retaliatory transfers was not clearly established at the time of their actions. A trial judge rejected their claim and subsequent appellate review upheld that ruling. The rejection of review by the Supreme Court means the case returns to the trial level for further proceedings.

Meanwhile, the justices also declined to review Dickerson v. City of Dallas, Texas, No. 99-264. In this case a group of fire fighter/paramedics challenged the city's method of computing overtime pay. The fire fighter/paramedics spent half of their time as fire and rescue officers and the other half as paramedics assigned to mobile intensive care units. The city calculated their overtime based on Section 7(k) of the Fair Labor Standards Act (FLSA), that essentially excuses overtime liability until the fire fighters have worked over 53 hours per week. The fire fighter/paramedics argued that they should earn overtime after 40 hours because FLSA regulations require that to qualify for the partial exemption they can spend no more that 20 percent of their work time on non-fire fighting duties. Lower courts found that the individuals met the four-part test in the FLSA regulations and the city could exercise the FLSA partial exemption. The Supreme Court's refusal to review the matter leaves that determination in place. 

A case recently filed and seeking high court review is City of Westminster, California v. Herr, No. 99-465. The city discharged four fire fighters and disciplined two others after they became embroiled in a bitter public controversy concerning the city's funding of fire protection services, the fire fighters' use of public funds, and the political activities of the fire fighters' union. A subsequent lawsuit found that they really had lost their jobs as a result of political retaliation. The fire fighters received substantial monetary damage awards and the city is asking the high court to reverse the judgments. 

Cases of interest

Sex discrimination
The Farmingville Fire District operated a volunteer fire department of approximately 100 members. Pietras was a probationary fire fighter in the department. As such, she was entitled to numerous fire fighter benefits under state law and the bylaws of the department. These included a retirement pension, life insurance, death benefits, disability insurance, and some medical benefits. Before she could become a full member of the department she was required to pass a physical agility test. The test consisted of a series of physical tasks that had to be completed in a specified time limit. The most difficult portion was a charged hose drag, which involved dragging a water-filled hose approximately 150 feet. To determine the appropriate time limit for the agility test, incumbent fire fighters participated in sample exercises. Of the 44 incumbents, 42 were males. Pietras and one other female were the only two female fire fighters tested. Farmingville set the pass-fail line at the average time plus 30 seconds. This resulted in a four minute requirement. Pietras tried and failed the test twice. During the same time period six other female probationary fire fighters took the exam and four successfully completed it. Following her second failure of the test, Pietras was terminated from her volunteer position. She subsequently filed a sex discrimination lawsuit against the fire district. At trial Pietras established statistically that the physical ability test had a disparate impact on females. She also presented testimony of an exercise physiologist that the test was not job related. Trial court concluded that there was no evidence that the four-minute time limit was job related and ruled that Pietras had been a victim of sex discrimination. Fire district appeals.

HELD: The district first contends that the court lacks jurisdiction over the case because Pietras is not an "employee" of the fire department as that term is defined by federal fair employment law. Prior case law holds, however, that while normally
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an "employee" is an individual who receives a salary for his or her work, actual salary is not a necessary requirement. Rather, if an individual receives benefits such as health insurance, vacation or sick time, or similar benefits, they can be viewed as an "employee" within the meaning of federal fair employment law. This is the case with Pietras. She meets the legal definition of "employee." The district also contends that the sample size is so small that the application of the 4/5's rule for determining whether statistical evidence gives rise to an inference of disparate impact was erroneous. While prior case law holds that a disparate impact finding based solely on a sample as small as the one presented here cannot stand, that was not the only evidence Pietras presented. She also presented expert testimony that the physical ability test was not job related. Since the test was not job related and had disparate impact on women, the trial court correctly concluded that Pietras was the victim of sex discrimination. [Pietras v. Board of Fire Commissioners of Farmingville, New York, 180 F.3d 468 (2nd Cir. 1999)] that the treasurer, secretary, attorney and fire surgeon are independent contractors and not employees. Prior case law establishes that the term "employee" is determined by reference to common law agency principles. Thus, if an individual is an independent contractor as that term was understood by the common law of agency, he is not an "employee" for the purposes of federal fair employment law. Review of the facts reveals that each of the individuals operate independently and is compensated, not with wages, but with miscellaneous income. These individuals are simply not employees but rather independent contractors. As to the volunteers, an essential condition of the employment relationship is remuneration. Where no financial benefit is obtained by the purported employee, no plausible employment relationship can be said to exist. Compensation is not limited to wages but can include other benefits paid contemporaneous with the work performed. The only benefit provided to the volunteer fire fighters is participation in the fire district's service award program. This program, established under New York state law, provides a financial entitlement for volunteers who are at least 55 years of age. In order to receive credit for the required number of service years, a volunteer fire fighter must accumulate service points. If the fire fighter does not earn the requisite number of points, he does not receive credit toward the service award. Therefore, the service awards do not provide a guarantee of remuneration for work performed. Nor is the benefit received roughly contemporaneous with the work. The hypothetical possibility of receiving a retirement benefit some time in the future is too speculative to suggest that it can be considered as compensation for purposes of determining a employer/employee relationship. Since the volunteer fire fighters cannot be considered "employees" under federal law, the fire district lacks the requisite 15 employees to provide a jurisdictional basis for Keller's claim. Case dismissed for fire district. [Keller v. Niskayuna Consolidated Fire District 1, 51 F. Supp.2d 223 (N.D.N.Y. 1999)]

Sex Discrimination
Keller, a female, applied for a job as a fire fighter/paramedic with the fire district. She passed the civil service test on three occasions but was passed over each time. Ultimately, she filed suit claiming that in violation of federal fair employment law she did not receive the job because of her gender. Defendant fire district moves to dismiss the case for lack of court jurisdiction. 

HELD: Federal fair employment law prohibits discrimination based on sex to any employer with 15 or more employees. The fire district contends it has only 11 employees and is not covered by the federal statute. Keller argues, however, that four individuals who serve the fire district as treasurer, secretary, attorney, and fire surgeon and the five commissioners, as well as the various volunteer fire fighters, should all be counted as employees for the purposes of establishing the threshold jurisdictional number. The district argues
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of the job. Absent such a showing he is not a qualified individual and not under the protection of the ADA. Various medical personnel testified as to the test performed on Leverett to assess his hearing. The result of this testimony leads to the conclusion that not only is Leverett deaf in one ear but that available technology would not improve his ability to localize sound. Accordingly, he is not a qualified individual under the ADA because he cannot perform the essential functions of a fire fighter, with or without reasonable accommodation. Even assuming he is a qualified individual as a fire fighter, Leverett's claim, nonetheless, fails because the hearing standard is job related and consistent with a business necessity. The ADA provides that a qualification standard may include a requirement that an individual shall not pose a direct threat to the health and safety of other individuals in the work place. The city correctly argues that Leverett would pose a direct threat because of his inability to localize sound. The law does not require that the city put the lives of Leverett and fellow fire fighters, as well as citizens, at risk by taking the chance that he can localize sound when all of the evidence suggests that he cannot localize sound. The lack of a precise or universal test between a job requirement and actual safe and effective performance is not fatal to a claim of job relatedness particularly when the public's health and safety are at stake. The city's hearing requirement is job related, consistent with business necessity insofar as it is related to a direct threat. The city has committed no ADA violation. [Leverett v. City of Indianapolis, Indiana, 51 F. Supp.2d 949 (S.D. Ind. 1999)]

Handicap discrimination
Leverett suffered from total and permanent loss of hearing in his left ear. Despite this hearing loss he had led a normal life and never encountered problems in school or in the work place. In 1996, he applied for a position as a fire fighter. He successfully completed all of the necessary agility and written tests and received a conditional offer of employment, subject to passing a psychological and a physical examination. At the physical examination, Leverett's hearing was tested and it was determined that he had total hearing loss in his left ear. Based on this impairment, Leverett failed to satisfy the city's requirement that every fire fighter be capable of a minimum level of hearing in both ears. Leverett sought a second examination, which came to the same conclusion as the first. He then discussed the possibility of using a specialized electronic hearing instrument to assist him in localizing sounds. A physician suggested that that system was not likely to be able to assist Leverett. Based on the hearing evaluations, the city concluded that Leverett had a hearing problem that could not be reasonably accommodated. He did not receive a final job offer. Leverett files suit under the Americans with Disabilities Act (ADA). 

HELD: To qualify for protection under the ADA, an individual must establish that he is a qualified individual with a disability. Assuming Leverett's hearing loss constitutes a disability under the law, he must still establish that he is a qualified individual. To do so, Leverett must prove that he could perform the essential functions of the job of fire fighter with or without reasonable accommodation. Parties agree that the essential functions of a fire fighter include, among other things, assisting in rescue operations and communicating by voice. Parties also agree that localizing sound and discriminating among sounds is necessary to the performance of these essential functions. Leverett must prove that he can both localize and discriminate among sounds and establish that he can perform the essential functions

Civil liability
The apartment house in which Crowley lived caught on fire. Ultimately, nine engines and four trucks were on the scene. Initially a 35-foot ladder was deployed for rescue purposes after fire fighters observed two people hanging out of windows. Crowley had awakened and crawled out onto the window ledge because her apartment became unbearable. The ladder initially put up to assist her
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did not reach her. The ladder had to be repositioned until Crowley could be coaxed off of the ledge and onto the ladder. While waiting to be rescued her left arm and hand were severely burned. Crowley brought suit against the city alleging negligence in its delay in rescuing her from the fire. Trial court granted summary judgement for the city based on the Illinois tort immunity act. Injured resident appeals.

HELD: The Illinois Local Governmental and Governmental Employee Tort Immunity Act governs whether, and in what situations, local governmental units are immune from civil liability. Under the act, public employees may be granted immunity if they hold a position involving either the determination of policy or the exercise of discretion but that immunity will not attach unless the plaintiff's injuries result from an act performed or omitted by the employee that is both a determination of policy and an exercise of discretion. Additionally, the statute provides immunity for a fire fighter who is exercising his judgement and discretion, even when that discretion is abused. Crowley argues that the process of fighting a fire does not require the exercise of discretion about the particular manner in which ladders are placed; she claims that the fire fighter's placement of the ladder was negligent. However, a fire fighter on the front line of fire fighting and rescue would be more likely to use his or her discretion in determining how the rescue should be made, the placement of the ladder, and whom to rescue first. Such decisions call for training and judgement by the fire fighter, which would not be of a ministerial nature. Extinguishment of fires and rescues cannot be handled in the same manner for every fire since fires are unreliable. Discretion on the part of the fire fighter is necessary. Therefore, immunity from suit exists for the fire fighter. Additionally, Illinois law provides that a public entity is not liable for injuries caused while engaging in fighting of a fire. Crowley argues that rescue services are not covered within the meaning of fighting a fire. Such a narrow reading of the term is inappropriate. It is clear that the term "fire

 fighting" must include rescue services. Finally, Crowley argues that the city owed her a special duty to protect her from the injuries that she suffered. Special duty doctrine is an exception to the immunity act. The special duty doctrine applies where the municipality has a special relationship with the plaintiff that creates a duty different than that owed to the general public. For the special duty exception to apply, the municipality must be uniquely aware of a particular danger or risk to which the plaintiff is exposed, it must be a specific act or omission on the part of the municipality, the specific act must be affirmative or willful in nature, and injury must occur while the plaintiff is under the direct and immediate control of the employees of the municipality. The mere fact that a municipality is aware of another's need for protection does not give rise to a conclusive finding of direct and immediate control required for an application of the special duty exception. Crowley is simply unable to establish the four elements of the special duty doctrine. There was nothing unique about the city's awareness of the danger to Crowley. Crowley does not allege any specific acts or omissions on the part of the city nor does she allege that the city acted willfully against her. Finally, the injuries she suffered were not initiated by the city, as it did not create the fire. Special duty doctrine does not apply in this case. Since the fire fighters were engaged in discretionary acts, the Illinois tort immunity law shields them and the city from liability in this case. Affirmed for city. [Crowley v. City of Berwyn, 713 N.E.2d 1194 (Ill. App. 1 Dist. 1999)]

Duty to bargain
The village and the fire fighters' union engaged in bargaining to replace an expired contract. During a mediation session the parties entered into a pact that formalized their agreement except for two issues, fire lieutenant promotions and disability pay. The parties entered into interest arbitration to resolve these issues. While the arbitration was pending, the village began the process for promotion to the rank of lieutenant. The board of fire
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commissioners outlined parts of the examination process as well as how the exam would be weighed. The union objected and sent a letter to the commissioners expressing concerns over the changes in eligibility requirements. The letter contained the signatures of 79 fire fighters who stated they would not participate in the new promotion process. The union sent a second letter demanding the commissioners cease any promotion process until the dispute was resolved through the interest arbitration proceedings. A third letter followed that contained a signed list of 28 fire fighters who stated they would be interested in participating in the promotion process if all members of the union were allowed to participate. The union filed an unfair labor practice charge against the village. Meanwhile, when time for the promotion test arose, no union member participated in the process. The village then filed unfair labor practice charges against the union. The labor board rejected the claim that the union used improper coercive tactics to discourage fire fighters from taking the promotion test. Village appeals. 

HELD: Illinois statute provides it is an unfair labor practice for a labor organization to restrain or coerce public employees in the exercise of their rights. The village argues that the initial letter containing the names and signatures of the 79 fire fighters who would not participate in the promotion process violates the anti-coercion provision. However, such a charge must contain evidence of union threats or intimidation. Here, the village does not allege any threats or promises made by the union but merely that the format of the petition had a coercive effect. There is nothing coercive, however, about a petition supporting an employee's union. The village also contends that the union violated its duty to bargain when it sponsored the boycott of the fire lieutenant promotion exam. Specifically, the village states that this action constituted a strike by the fire fighters, which is prohibited by Illinois law. The village does not allege that the fire fighters ceased to perform any duties but merely failed to participate in the

 promotion process. The fire lieutenant promotion exam is a voluntary, unpaid undertaking conducted on the employee's, not the employer's, own time. It is not a condition or a requisite of employment. It has no bearing on the terms of employment. Refusing to take the exam could not be construed as withholding of services or a work stoppage. The fire fighters did not refuse to perform any task that they customarily would have performed but for the bargaining dispute. The refusal to take the promotion exam cannot be viewed as a form of work stoppage. Dismissal of unfair labor practice charge against union affirmed. [Village of Skokie v. Illinois Labor Relations Board, 714 N.E.2d 87 (Ill. App. 1 Dist. 1999)]

Compensation
The fire fighters' union and the city were parties to a collective bargaining agreement. The agreement contained a schedule of compensation that provided for merit increases for members of the fire department on July 1, 1991, and December 1, 1991. Because of financial concerns, however, in 1992 the city passed a resolution declaring a moratorium on all merit increases. The resolution froze all merit increases for the fiscal year beginning July 1, 1992. In early 1993, several members of the union filed a grievance protesting the moratorium on wage increases. The union, however, withdrew the grievance and the moratorium continued in effect. Following expiration of the labor contract the city council unilaterally passed an ordinance adopting interim work rules to serve as a bridge between the expired contract and any future contract. The work rules established a four-step grievance procedure culminating in arbitration. The rules specifically provided that "the arbitrator shall have no power to establish a change in any wage rates." The union filed a grievance based on the wage increase moratorium. The city denied the grievance and refused to submit the matter to arbitration. Another grievance was subsequently filed protesting the moratorium on wages and once again the city refused to submit it to arbitration. The union filed
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suit against the city alleging a breach of contract and requested the court to order the city to submit the issue to arbitration. Trial court granted city's motion for summary judgment and union appeals.

HELD: The question of whether an agreement commits an issue to determination by an arbitrator is a matter for determination by the court. If the court determines that the matter is not committed to arbitration by the agreement, then it may proceed to decide the issue. If, however, the court determines that the matter is committed to arbitration by the particular agreement, then the court must send the case for arbitration, without reaching any issue governing the merits of the underlying grievance. As applied here, that means that it is up to the trial court to determine whether the interim work rules committed the grievance about wage increases to arbitration. The interim work rules clearly say that an arbitrator shall have no power to establish a change in any wage rates. The union argues that it is not requesting the arbitrator to change or establish a wage rate but rather to order the city to pay wage increases they had already been adopted in the prior contract. However, nothing appears in the court record to support the union's claim that the city had already established a right to wage increases. The relief the union seeks would require the arbitrator to change or establish wages. "Change" means "to undergo substantial substitution or replacement or to be wholly replaced; to increase or decrease." The word "establish" means "to settle or fix after consideration or by enactment or agreement." The union wants the arbitrator to compel the city to pay its members a higher wage rate than they have previously paid by paying the step wage increases. This would clearly establish or change wage rates for fire fighters. Because the interim work rules specifically provide that the arbitrator has no authority to establish or change wage rates, the grievance is not subject to arbitration. Affirmed for city. [Local 781, International Association of Fire Fighters, AFL-CIO v. City of Independence, 996 S.W.2d 112 (Mo. App. W.D. 1999)]

 Settlements

Manchester, New Hampshire

fire fighters
Implementation of a consultant's salary study forms the cornerstone of the new three-year contract covering Manchester fire fighters and district chiefs. Under the pact, each fire fighter will be placed in a new salary schedule in the step immediately above his current pay. Cost of living boosts, as measured by the Consumer Price Index, will be forthcoming in 2000 and 2001. The COLA will be a minimum of 1.3 percent and no more than 2 percent in 2000 and range from no raise to 3.3 percent in 2001. Additionally, fire service personnel will be eligible for 3 percent merit pay raises in 2000. Critics of the new contract charge that over 95 percent of the fire fighters will receive the merit pay, effectively eliminating any true merit aspect. Local 856 of the International Association of Fire Fighters, AFL-CIO, represents the fire fighters while Local 3820 represents the supervisors.

Rolling Meadows, Illinois

fire fighters
The new three-year labor agreement between the city of Rolling Meadows and Local 3075, International Association of Fire Fighters, AFL-CIO, provides fire fighters with greater flexibility in swapping shifts as well as an increase in compensation. Under the pact, which is effective January 1, 2000, fire fighters will gain a 3 percent pay raise followed by another one percent April 1. Similar pay hikes will follow in the next two years. By 2002, base pay for fire fighters will be $42,405 while top of scale will hit $60,809. Veteran lieutenant salaries move from the current $64,022 to $66,602 next year. By the end of the agreement a top pay-step lieutenant will earn $72,036. In addition, double time will be earned on any of the 12 city holidays. The city made some economic gains through alteration of the payment of health insurance premiums.