November 1999
Volume 13, Number 11

Congress moves on FLSA exemption
Congress has adjourned until January, but the closing days saw what the International Association of Fire Chiefs has labeled "a major win on Capitol Hill for the fire and emergency services." On November 4, the House of Representatives overwhelmingly approved an amendment to the Fair Labor Standards Act (FLSA) that would clarify the overtime eligibility rules for fire fighters assigned to emergency medical services. The matter now awaits Senate action next year.

The bill, H.R. 1693, spearheaded by Representative Robert Ehrlich, Jr. (R-Md), for the first time defines who is an "employee in fire protection activities" for the purposes of federal wage and hour law. Current law contains no statutory definition but Department of Labor (DOL) regulations do provide an interpretation of the term. Section 7(k) of the FLSA generally permits public employers to defer overtime compensation until a fire fighter has worked over 53 hours in a workweek. However, DOL regulations establish the "80-20 rule" which some courts have interpreted as requiring overtime pay after only 40 hours of work if the fire fighter spends more than 20 percent of his or her time performing EMS activities not directly connected to fire suppression. As fire service personnel increasingly became cross-trained as

 EMT and paramedics and more involved in EMS delivery, the 20 percent limit loomed as a potentially costly impediment. H.R. 1693 is aimed at overriding the DOL definition.

Under the bill:

"Employee in fire protection activities means an employee, including a firefighter, paramedic, emergency medical technician, rescue worker, ambulance personnel, or hazardous materials worker, who:

(1) is trained in fire suppression, has the legal authority and responsibility to engage in fire suppression, and is employed by a fire department of a municipality, county, fire district, or State, and

(2) is engaged in the prevention, control, and extinguishment of fires or response to emergency situations where life, property, or the environment is at risk." 

The International Association of Fire Fighters, AFL-CIO, also supports the measure, noting that operation of a fire department-based EMS is extremely difficult under a strict interpretation of the "80-20 rule" and could motivate some communities to contract out their emergency medical care. 

No date has been set as to when the Senate might consider the measure.

Columbus puts term limit on fire chief
In a move that may be unique in the country, Columbus, Ohio, voters have decided to limit the amount of time an individual may serve as the city's fire chief. Earlier this month, voters approved a city charter amendment that limits the fire chief's term of office to five years with the possibility of reappointment for another five years. 

The charter change came about as a result

 of voter concern over accountability in the police department. The Columbus Police Division has been mired in controversy in recent years and currently is under threat of a U.S. Department of Justice lawsuit that could result in federal oversight of the department. In 1996, the mayor unsuccessfully attempted to oust the incumbent police chief, James Jackson. In response to the
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continuing controversy, voters decided to limit the tenure of the police chief to two five-year terms. Unfortunately for future fire chiefs, the ballot measure also included that position.

Prior to the charter change both the fire chief

 and the police chief were protected under civil service rules and could be removed only for cause. Current Fire Chief Stephen Woltz will not be affected by the new law as the change will apply only to future chiefs.

Philadelphia union claims Hepatitis C "epidemic"
Twenty-five Philadelphia fire fighters have contracted the deadly Hepatitis C virus in an "epidemic" that city officials should recognize as a job-related illness, a union official claims. In an interview on a local television station, George Casey of Local 22 of the International Association of Fire Fighters, AFL-CIO, said many fire fighters contracted the disease while responding to emergencies years ago, before masks and gloves became standard equipment. "I believe we have an epidemic," Casey told WPVI-TV last month. "They used to call us `swoop and scoop' guys. We would get covered with blood and everything at the accident scene."

Hepatitis C is a bloodborne disease of the liver that can cause death if left untreated. As many as 4 million Americans are believed to be afflicted. The virus can remain dormant for up to 20 years.

The union sent a letter to Fire Commissioner Harold Hairston asking him to implement a voluntary testing program for fire fighters. The union also wants Hepatitis classified as a job-related disease and the city to help pay for the cost of medication for treatment. Casey said the medication can cost as much as $2,000 per patient and is putting a strain on the fire fighters' medical plan.

No hoop dreams at Portland firehouses
Portland, Oregon's, bravest have been temporarily banned from playing sports while on duty after four fire fighters suffered injuries playing basketball and two others were hurt playing tennis. "Quite frankly, if we kept having injuries like that, something was going to bust," Grant Coffey, the Fire Bureau's interim chief safety officer, said. 

Chief Bob Wall was mulling changes earlier this fall when a report showed basketball was the fourth-leading cause of fire fighter injuries in 1998. Then came the October pains: one finger tendon, two ankles, one Achilles tendon, one calf muscle and one knee, including three basketball injuries at one station and the potential for months of lost time. So on November 2, the chief banned basketball, tennis, racquetball and volleyball until at least January 1, when a health and wellness committee is scheduled to report back with proposals. 

Not counting the recent injuries, 36 Portland fire fighters have lost time because of basketball injuries since 1994, costing taxpayers $101,000 in

 leave payments and an unknown amount for medical treatment, a city analysis shows. That is far more than other physical fitness activities. In 1998, eight fire fighters were injured playing basketball and took 131 shifts of injury leave. That is more than half of the amount of injury leave taken by the 22 fire fighters hurt during structure fires. 

The fire fighters' union, Local 43 of the International Association of Fire Fighters, AFL-CIO, has filed a labor grievance on the issue, arguing that Wall cannot unilaterally ban team sports. But the union has agreed to table the grievance pending the health committee's deliberations, vice president Stan George said. 

Fire fighters say basketball promotes teamwork and induces more fire fighters to exercise, which is crucial for emergency response and for passing the bureau's annual physical fitness test.

The good news: fire fighters can still shoot around or play H-O-R-S-E, according to Wall's order. 
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Fire fighters at risk of losing sense of smell?
Many fire fighters might gradually lose their sense of smell, a handicap that could impede their ability to protect the public, a pilot study released this month suggests. In a test of 102 male fire fighters in Chicago, 48 percent had significantly impaired smell. 

"They couldn't tell natural gas or smoke from such odors as perfume and bubble gum," says neurologist Alan Hirsch, M.D., of the Smell & Taste Treatment and Research Foundation. The more years on the job, the more likely the fire fighters were to have lost their sense of smell, Hirsch said. The findings were presented earlier this month at a meeting of the American Public Health Association in Chicago. 

Most fire fighters use breathing masks to protect themselves from smoke and toxic chemicals released during fires. But the study found that the

 sense of smell of fire fighters who reported using masks was no better than in those who did not. Even after the fire is under control and the fire fighter sheds the protective mask, chemicals remain in the air and can damage the olfactory nerve, Hirsch says. 

How could a problem potentially this widespread go overlooked for so long? One reason, Hirsch suggests, is that the loss of the sense of smell seemed to come gradually, and so was simply not noticed by many of the fire fighters. 

The study "raises a flag about health and safety," George Burke of the International Association of Fire Fighters told the New York Times. "We'd like to see larger numbers."

The study was prompted when doctors at the Chicago research foundation noticed that within a two-month period, six fire fighters had sought treatment for loss of their sense of smell. 
Litigation

Supreme Court update
Two fire service-related cases of interest are seeking review by the Supreme Court this month. In Collins v. Spokane Valley Fire Protection District No. 1, No. 99-592, the amount of compensatory time that could be earned by a fire fighter was capped at 144 hours. As the banks began to approach the cap, fire officials ordered fire fighters to use the hours. The fire fighters complied but later sued on the grounds that the employee, not the employer, controlled when compensatory time was used. The Court of Appeals for the Ninth Circuit ruled that the Fair Labor Standards Act did not prohibit a public employer from ordering its employees to use their accumulated time. Since the Supreme Court granted review last month to another case involving the same issue _ Christensen v. Harris County, Texas, No. 98-1167 - it is likely no action will be taken in the Collins matter until a decision is rendered in Christensen.

The other matter, Fioriglio v. City of Atlantic City, New Jersey, No. 99-651, involves a fire fighter who was skipped over in the promotion process for battalion chief. He sued alleging that the pass-over was because he had run for mayor against the incumbent officeholder. Lower federal courts have rejected his claim.

Cases of interest

Political rights
As he was reporting for duty at the firehouse, Coady parked his personal vehicle on the sidewalk located next to the firehouse. Several other fire fighters' vehicles were parked there even though the spots were not department property. Like some of the other fire fighters, Coady had a sign on his car
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roof supporting the Democratic candidate for mayor. Other fire fighters apparently had signs and stickers on their vehicles supporting the republican candidate. The fire chief, Steil, was active in Republican Party politics and was openly supporting the Republican candidate. When Steil arrived at the firehouse, he told Coady and the other fire fighters that they would have to move their cars, even though there was a long-standing practice of parking on the sidewalk. After some discussion, Steil allegedly told Coady that if he removed the sign from atop his car he would not have to re-park it. Coady went to his vehicle to remove the sign but it apparently would not fit in the trunk, so he placed it in the rear seat. This apparently did not satisfy Steil. Steil allegedly took Coady into his office at the fire station and cursed at him. He then allegedly struck the fire fighter several times. Subsequently, Coady filed suit alleging that Steil's attack was an unlawful retaliation against him for exercising his First Amendment rights by supporting a candidate for public office. The fire chief moved for summary judgment on the grounds of qualified immunity. The trial court rejected the chief's efforts and he appeals.

HELD: Public officials are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. When a defendant raises this qualified immunity as a defense, the plaintiff must show a violation of a federal constitutional right and that the constitutional standards at issue were clearly established at the time of the alleged violation. To determine whether Coady's actions were protected under the First Amendment, the two-part Pickering test must be followed. The court must determine whether Coady's actions addressed a matter of public concern; and, if they did, the court must determine whether the interest of Coady, as a citizen, in commenting upon the matters are outweighed by the interest of his employer in promoting the efficiency of the public service it performs. Clearly, the sign atop Coady's car was political speech that fits within the definition of a matter of public

 concern. This conclusion leads to application of the balancing factor. The fire chief offered no evidence, with the exception of his own behavior, that Coady's conduct in any way poisoned the atmosphere of the department. The supervisors at the firehouse expressed no displeasure with Coady's off duty conduct. The fire fighter was engaging in essentially the same behavior as the fire chief engaged in during his off duty time. Having established a First Amendment violation, the fire chief might still be able to raise the defense of qualified immunity. The question is whether it was clearly established at the time of the event that a governmental official could not retaliate against a subordinate's exercise of political speech by hitting him. Prior case law shows that the rule was clearly established. A governmental official may not harass subordinate employees because of their individual activities in support of political candidates when the subordinate employee's actions are protected by the First Amendment and not contrary to any state statute. It is clear that being punched in the face would deter anyone from exercising his First Amendment rights. Case law, along with a dose of common sense, should have made it clear to the fire chief that he could not impinge on a fire fighter's exercise of political speech and that he certainly could not retaliate against Coady in the fashion that he did. Denial of summary judgment for fire chief affirmed. [Coady v. Steil, 187 F.3d 727 (7th Cir. 1999)]

Overtime
The City of Omaha provides emergency medical services through its fire department. All fire fighters receive the same basic training, including basic emergency medical training. After working on an engine for a couple of years, fire fighters are allowed to transfer to a rescue squad or medical unit, if so desired. In order to be a paramedic, the individual must have an additional nine months of extensive medical training. Paramedics learn to handle severe trauma cases, cardiac problems, and to employ more sophisticated
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and invasive procedures to stabilize a victim during transport to a hospital. The medical units are based at the fire stations and are dispatched to accident scenes, traffic problems, crime scenes, as well as respond to requests for emergency medical assistance. In addition, a medical unit is dispatched to a fire scene when a fire is reported. While at a fire, the paramedic's primary duty is the medical care of fire fighters and civilians who may be injured at the fire. The incident commander in charge of the fire scene is authorized to use the paramedics for other tasks if required, however. Department practice is also to permit paramedics to fill vacant positions on engines for a shift. Like combat fire fighters, the paramedics work 24-hour shifts. When not handling calls, their time is occupied with maintenance of vehicle and equipment, training, sleeping, and housekeeping chores. A group of fire fighter/paramedics filed suit against the city claiming they were due overtime compensation under the federal Fair Labor Standards Act (FLSA). Trial court found that the paramedics were engaged in fire protection activities and as such fell under the work cycles of regular fire fighters. They were thus not due any overtime compensation. Paramedics appeal.

HELD: Under the FLSA, employees are entitled to pay in the form of one and one-half times their regular hourly rate for each hour worked over 40 in a work week. The law, however, provides a special exemption for public employees engaged in fire protection activities. For them, overtime does not manifest until they have worked in excess of 43 hours a week. The argument presented by the fire fighter/paramedics is that they are not "engaged in fire protection activities" within the meaning of the FLSA and should be paid for any hours over 40 per week. The law creating the partial overtime exemption does not define what is meant by "employee in fire protection activities." However, regulations established by the Department of Labor provide guidance. The regulations establish a four-part test. To be an employee "engaged in fire protection activities", the individual must be: (1)

 employed by a fire department; (2) trained to the extent required by statute; (3) have legal authority and responsibility to engage in controlled extinguishment of fires; and (4) perform activities that are required for, and directly concerned with, prevention, control, and extinguishment of fires. In applying this four-part test to the facts in this case, it is clear that the paramedics meet the first three requirements: they are employed by a fire department, they receive training in fire fighting, and they have legal responsibility to fight fires. They argue, however, that the fourth element of the test is not satisfied because they do not perform activities that are required for and directly concerned with prevention, control, or extinguishment of fires. Even if the paramedics perform nothing other than medical duties, they nonetheless fall within the FLSA exemption. The paramedics overlook the fact that standby medical support is an activity that is required for and directly concerned with the control or extinguishment of fires. Fire fighting is dangerous and at times a complex task. Simply because the division of labor and the development of specialties at the fire scene relegates the paramedics to a medical support function does not mean that they are any less directly concerned with the fire fighting effort than an individual who runs into the burning building with a hose. Paramedics not only provide medical support but also are trained fire fighters who can be pressed into fire fighting functions outside of their medical role. Being available as a backup fire fighter certainly places them in a status that directly concerns itself with the extinguishment of fires. The city carried its burden to show that the paramedics are engaged in fire protection activities and thus fall within the partial exemption afforded by the FLSA. Affirmed for city. [Lang v. City of Omaha, Nebraska, 186 F.3d 1035 (8th Cir. 1999)]

Dismissal grounds
The city fire department required its employees to keep their weight within established guidelines and disciplined those employees who
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were unable to do so. Normally, the department weighed its employees monthly but regulations provided that the fire chief may weigh employees as often as he deemed necessary. An employee found above the maximum weight allowed for his or her height and gender was subject to a disciplinary process determined by the number of times he or she was found to be overweight. Powell began working at the fire department in 1982 and was well acquainted with the department's weight management regulations. Over a seven year period, Powell received seven different disciplinary actions due to exceeding the weight standard. These actions ranged from five-day to fifteen-day suspensions. In early 1998, the department conducted its monthly weigh in of employees on Powell's regular shift. He had taken the day off, however, and did not weigh. The next day, while Powell was substituting for a fellow fire fighter on another shift, the district chief ordered Powell to weigh. Powell refused, citing his belief that it was department practice not to weigh an employee who was not on his regular shift. The district chief nonetheless insisted Powell get on the scales. He again refused. Powell was taken to fire department headquarters where a deputy chief ordered him to weigh. Powell again refused. At this point, Powell was placed on administrative leave. The next day he was charged with refusing to obey a direct order and a recommendation was made that he be terminated. Powell received a disciplinary hearing before the mayor and the city personnel board. Both upheld his dismissal. The former fire fighter filed suit claiming his termination violated several of his constitutional rights. City moves for a summary judgment.

HELD: Powell first alleges that he was terminated in violation of his First Amendment right after the city learned he was to testify in a fellow fire fighter's lawsuit against the city. To make out a case of First Amendment retaliatory discharge, Powell must establish that he engaged in protected conduct and that this conduct was a substantial or motivating factor in the decision to terminate him. He fails to do so in this case. Powell showed no

 evidence that his potential testimony was even a small factor in the decision to terminate him. His name had appeared on a witness list but there was no other evidence that would permit a reasonable jury to conclude that his potential testimony was a substantial or motivating factor in the termination. Powell further contends that he was denied equal protection of the law under the Fourteenth Amendment through the unequal application of the weight management regulations. To prevail on this claim, it must be established that Powell was treated differently than similarly situated persons. Second, it must be established that the city unequally applied the rule for the purpose of discriminating against Powell. The facts show that Powell was not terminated for violating the department's weight management regulations, which he now claims were applied unequally to him. Rather he was terminated for refusing to obey a direct order. If he wished to challenge the unequal application of the weight regulations, he should have obeyed the order and then challenged any adverse personnel action taken as a result of the weight violation. Since Powell never weighed, it was never determined whether he was in fact overweight at the time of the order. Powell also failed to identify other fire fighters who refused to obey direct orders but were not terminated. In two instances fire fighters who refused orders were suspended but eventually complied with the orders. None of these cases involved the weight regulation orders. In summary, because Powell failed to show that another fire fighter similarly situated to him—one who refused to obey a direct order under similar circumstances—was not terminated, he could not succeed on his equal protection claim. Even if he could show that another fire fighter was treated differently, Powell still fails to show that the city acted for the purposes of discriminating against him. Finally, Powell argues that his due process rights were violated by the city terminating him without conducting a proper investigation into the stated reason for refusing to obey the order that led to his dismissal. Due process, however, requires no such investigation. The
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Supreme Court has ruled that due process does require some kind of hearing be held prior to the discharge of an employee who has a constitutionally protected property interest in his employment. The hearing is for the purpose of determining whether reasonable grounds exist to believe that the charges against the employer are true and support the proposed action. Powell was given two full hearings at which he presented his side of the story. Both the mayor and the personnel board found that his reasons for refusing to obey the order were not justified in the light of department regulations. Due process required nothing more. Summary judgment for city upholding dismissal of fire fighter. [Powell v. City of Montgomery, Alabama, 56 F.Supp.2d 1328 (M.D. Ala. 1999)] that the civil service board exceeded its authority by substituting its judgment as to the appropriate disciplinary action for the judgment of the department without first finding that the department did not have good cause for imposing the discipline. Recent Louisiana case law has addressed the parameters of civil service disciplinary proceedings. Courts have held that the dismissal of a civil servant "for cause" is synonymous with legal cause. Legal cause for disciplinary action has been held to exist when the facts found by the board disclose that the conduct of the employee impairs the efficiency of the public service. The civil service board has the duty to decide independently from the facts presented whether the appointing authority has good and lawful cause for taking disciplinary action and, if so, whether the punishment imposed is commensurate with the dereliction. On appeal, a reviewing court should apply the "clearly wrong" standard in deciding whether to affirm the board's findings. Applying these principles to the case at hand, the civil service board was correct in finding that the fire department had legal cause for taking disciplinary action against Lopiccolo but was clearly wrong in reducing the disciplinary action to a mere suspension. Lopiccolo's actions border on the illegal and certainly are a problem to an employer who must ensure the proper operation of the department and fair and consistent treatment of all employees. Misuse of sick leave by its very nature impairs the efficient operation of the public service. The civil service board also had the responsibility to determine whether the imposed punishment was commensurate with the action. The board was not free to simply substitute its judgment for that of the appointing authority. The fire department checked with other city agencies and concluded that the punishment it was imposing was in line with action taken by other city departments. On the other hand, this was Lopiccolo's first offense in a twelve-year career. By reinstating him with back pay, the civil service board permitted the employee to profit from his misdeed. There is no justification in the record for this outcome. While the punishment imposed

Dismissal procedures
Lopiccolo was a fire fighter who telephoned the department and informed the dispatcher that he could not report for work because he had injured his back. Under department regulations it was required that employees give the dispatcher information about where they would be during the day. Lopiccolo told the dispatcher that he would be at home. In fact, he reported for work at a part-time job setting up exhibits at the local convention center. He worked a full day for that company. Three days later Lopiccolo submitted a sick leave request seeking compensation for the missed workday. When confronted by the fire chief about his possible improper use of sick leave, the fire fighter denied it. The chief gave Lopiccolo 24 hours to reconcile any discrepancy. Upon failing to explain his actions to the satisfaction of the chief, Lopiccolo was terminated. The fire fighter appealed his termination to the civil service board which determined that in fact he had not told the truth. The board found that while disciplinary action was appropriate, termination was too harsh. The board ordered him reinstated subject to a ten-day suspension. The fire department appealed and the trial court upheld the board's actions. Fire department appeals.

HELD: Upon appeal, the department argues
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by the department _ termination - was excessive compared to the employee's action, it was also clearly wrong for the civil service board to reduce the punishment to a mere ten day suspension. Accordingly, the matter is remanded for reimposition of punishment. Affirmed in part and set aside in part. [City of Kenner Fire Department v. Kenner Municipal Fire and Police Civil Service Board, 738 So.2d 114 (La. App. 5 Cir. 1999)] fighters ware represented by Local 3398 of the International Association of Fire Fighters, AFL-CIO.

Plant City, Florida

fire fighters
In an unusual move the two dozen Plant City fire fighters have received pay raises even though they have no labor contract. Last month, officers of Local 2103 of the International Association of Fire Fighters decided to take the city up on its offer of retroactive raises of 3.5 percent for the last two years and another 2 percent boost for 1999-2000. Fire fighters also become eligible for merit raises of up to 3 percent. Negotiations had been at a standstill but neither side had declared impasse. Thus, in an effort to improve morale, the city suggested the raises. The union assented and agreed to waive further negotiations of wages. Under Florida law, if the city had granted the raises without giving fire fighters the option to accept or reject the proposal, the union could have filed an unfair labor practice complaint.
Settlements

Brookline, Massachusetts

fire fighters
Brookline fire fighters have a new labor contract retroactive to July 1, 1997. The over 30 month delay in settling was caused primarily by the fate of five civilian alarm operators. Under the new pact, when the town opens its combined police/fire facility in 2001, the alarm operators will be given the choice of joining the fire fighters' union, the police union, or the non-uniformed union. Local 950 of the International Association of Fire Fighters, AFL-CIO, represented the civilians as well the as the uniformed fire fighters in the contract negotiations. Under the agreement, fire fighters will see pay hikes of 2 percent retroactive to July 1, 1997, 3 percent as of July 1, 1998, another 2 percent effective this past July 1, and a final 2 percent January 1, 2000.

Wauwatosa, Wisconsin

fire fighters
Annual raises of 2.75 percent are the economic cornerstone of the tentative agreement reached between Local 1923 of the International Association of Fire Fighters, AFL-CIO, and the City of Wauwatosa. About 150 fire service personnel are covered by the three-year deal. Fire fighters will see their prescription medicine co-pays increase slightly but other health benefits will remain unchanged. Fire fighters also gained $15 in transfer pay in cases where they are moved from one firehouse to another. 

Elk Grove Village, Illinois

fire fighters
A four-year contract featuring a 7.2 percent wage hike has been approved for Elk Grove Village fire fighters. The agreement, retroactive to May 1, raises starting pay to $36,783. Fire department employees will receive a 3.5 percent raise in each of the next three years. By May 2002, starting pay will be $40,781 while top of scale will hit $59,368. Longevity pay increases by $100 in 2001 and 2002. In the last year of the pact fire fighters with 20 or more years of service will gain $150. The fire

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