A review of the 343 cases in which fire fighters lost their lives September 11 has found that 60 of them were off duty when they rushed into the World Trade Center (WTC), according to New York Fire Department (FDNY) officials.
FDNY Deputy Commissioner Francis Gribbons said the finding underscored the selflessness of fire fighters that day. "Those who were off duty joined those who were already working in a valiant and courageous effort to save as many lives as possible."
However, FDNY officials conceded that the heroism added to the confusion at the scene as fire commanders tried to keep track of the number and location of personnel at the chaotic incident. Fire Commissioner Nicholas Scoppetta said the department worked to create a more orderly procedure given the possibility of an event of similar magnitude in the city's future.
No FDNY official has suggested that the department's response or management of the WTC was flawed. All off-duty fire fighters who reported to the scene on September 11 were actually on duty because the FDNY issued a full recall later in the morning, ordering all personnel to report to work at their firehouses immediately. It was the first full recall since 1947.
Many of the off-duty personnel who responded
were at their firehouses because the first plane hit just after the shift
change. These fire fighters remained with their companies and doubled
up on engines.
The FDNY reportedly had no protocol for chiefs to use in assessing how to respond to such a massive incident. Various supervisors apparently organized the reporting off-duty fire fighters into ad hoc companies at the scene. The procedure produced tactical difficulties, however. Many off-duty personnel did not possess radios so scene commanders could not effectively communicate with them, even when orders were issued to evacuate after the first tower collapsed.
Ultimately, determination of the identity of lost fire fighters was hampered by the fact that many of the off-duty personnel had not been officially recorded as being present at the scene. Under department policy "riding lists" are to be filled out listing the names of each fire fighter on the apparatus. One copy of the list is carried by the unit commander while another copy stays on the apparatus. In the urgency of the incident, many "riding lists" were apparently not completely filled out.
Peter Gorman, president of the Uniformed Fire Officers Association, said any new rules should respect the zeal to help that is part of the firefighting temperament.
For the individual investor the fall of energy trading giant Enron has proven to a cautionary tale about the importance of diversification of investments, particularly retirement accounts. Thousands of Enron employees saw their pension accounts vaporize when the company's stock price fell from nearly $100 per share to less than one dollar. Since the 401(k) pension plan was based on company-provided stock, retirement nest eggs vanished. Compounding the heartache was an Enron policy that restricted the ability of employees to sell their Enron holdings when the stock price began to slide.
One of the many good reasons to hold a
government job? Possibly. Since most public employee pension systems
are defined benefit plans, an Enron-type calamity is unlikely to affect
the average fire fighter's pension. Except - a similar circumstance has
befallen fire fighters and paramedics employed by Rural/Metro, the nation's
largest private provider of fire service and emergency medical services.
According to a February 14 article in the Phoenix New Times , aging Rural/Metro fire fighters lack the financial base to contemplate retirement because of a pension plan ravaged by a steep decline in the price of Rural/Metro stock. Rural/Metro Corporation, headquartered in Scottsdale, Arizona, employs about 10,000 persons worldwide. Most are involved in ambulance operations but some in parts of Arizona and Tennessee staff fire departments. Only a portion of the Arizona fire fighters are unionized.
After benefiting from an interest in privatization of government services in the 1980s, Rural/Metro has seen its stock drop from around $40 per share to the current price of under one dollar. The company's pension plan has consisted of an employee having the option of purchasing Rural/Metro stock with the company providing a matching contribution up to two percent of salary. A company rule, however, prohibited employees from selling more than 50 percent of their holdings unless they left the company. Employees now speculate that given the company's financial condition, it might not even make its two percent contribution this March.
Rural/Metro was founded in 1948 as a private fire company in what is now
Scottsdale. In 1978, the company's founder cashed out the generous existing
pension plan and sold the firm to the employees, who began receiving retirement
benefits in the form of stock. For over a decade employees were barred
from selling the stock unless they left the company. In 1993, the company
went public and the rules changed to allow
employees to sell up to 50 percent of their stock. Even if an employee
retired or quit, however, he was barred from selling the remaining 50 percent
for three years, potentially enough time for the price to decline significantly.
Some employees accuse company officials of selling their shares and capturing profits while at the same time telling fire fighters and paramedics that they would become millionaires if they held on to their shares. Shades of Enron?
In 2000, the company signed its first labor contract, a pact with Maricopa County, Arizona, fire fighters. Under the agreement the company provides an additional three percent of salary for employees to use as a retirement vehicle if they so choose. The company has reportedly refused to discuss a union proposal to create a pension plan similar to that of public sector fire fighters.
For the dozens of Rural/Metro fire fighters over 35 years of age, the future looks grim. Even though they currently receive about $50,000 per year in salary, a new pension plan would likely require 25 more years of service to qualify, years they likely don't have. The situation is so bleak that one older fire fighter reportedly carries a "Do not resuscitate" card with him because he lacks the financial means to take care of himself.
Union membership by fire fighters, police officers, and other protective service workers declined slightly over the last year, according to data released in January by the Bureau of Labor Statistics (BLS). In 2001, about 38 percent of employees in protective service occupations belonged to a union, down from 39.4 percent in 2000, but about the same as a decade ago. This rate is the highest of all job categories measured in the nationwide study.
Local government remained as the job sector with the highest share of union members at 43.2 percent. Only about one in ten private sector workers are union members.
While about 2,400,000 protective service
workers were union members, less than half that number of workers - just
over 1,000,000 - were covered by a labor contract.
In examining all workers' pay for 2001, union members nationwide had a median weekly wage of $718 while non-union workers earned a median weekly wage of $575, a 25 percent differential. The difference at least partially reflects the influence of collective bargaining on wages.
BLS statistics aggregate fire fighters, police officers, and correctional officers into the protective service category and do not report data for the individual occupations.
Fire departments across the country are increasingly banning smoking in
firehouses. No smoking policies have become popular in states with so-called
"heart - lung" laws that create a presumption of
occupational disease in fire fighters suffering cardiovascular disorders.
The purpose of no smoking rules is to improve fire fighter health by reducing
tobacco usage. However, a slightly different smoking story has emerged
from the Pacific Northwest. A Seattle ladder truck driver has been
disciplined, but not terminated, for smoking marijuana on the job.
The 38-year-old was removed from duty last November after she drove the ladder
truck the wrong way while responding to a call. Since the
accusations first surfaced, the unidentified 17-year veteran has served a
30-day suspension and has entered a substance abuse treatment program.
She has been transferred from the driver assignment, a move that reduced
her pay by five percent, and has since returned to duty.
In many of the nation’s fire departments, use of alcohol or drugs on duty
is a fireable offense.
A fellow fire fighter had observed the woman smoking what he believed to
be marijuana outside the firehouse. About four hours later he reported
the incident to a supervisor. The accused fire fighter subsequently
told a battalion chief that she had been smoking a cigar but a urine test
subsequently confirmed the presence of marijuana in her system.
Seattle Fire Department (SFD) policy allows for drug testing upon establishment
of reasonable cause. Instead of terminating the fire fighter, the
fire chief allowed the driver to sign a last-chance agreement, which has
been allowed only three times in the last five years. The two prior
incidents did not involve drug use. The driver in this case had no
previous discipline in her record.
SFD Fire Chief Gary Morris said he did not believe the public was ever
at risk or that a wider drug problem existed in the department. Charles
Hawkins, president of the Seattle Firefighters Union, Local 27 of the of
the International Association of Fire Fighters, AFL-CIO, said he believed
the chief made the correct decision in the case.
“The Seattle Fire Department reflects the community. As sad as it
is that we would find a member in trouble, we’ve got to recognize that occasionally
it’s going to happen,” Chief Morris said in referring to the fire fighter’s
use of marijuana.
Members of the Norfolk Department of Fire and Paramedical Services (NFPS) were certified fire fighters who were likewise cross-trained as emergency medical personnel. They worked 24-hour shifts, dividing their time between fire and EMS units. Both fire units and EMS units responded to fire emergencies. If an EMS unit were the first at the fire scene it might well fight the fire, leaving medical services to be performed by a backup unit. If the fire unit arrived first at the scene, then the EMS unit performed the medical services if not otherwise needed. Thus, individual fire fighters might fight fires whether on duty with a fire unit or with an EMS unit. The city had treated the individuals as fire fighters under the Fair Labor Standards Act (FLSA) and, therefore, their eligibility for overtime did not begin until 53 hours had been worked in a workweek. A group of NFPS individuals filed suit against the city seeking overtime compensation. The fire fighters claimed that because of their EMS responsibilities, they fell outside the FLSA partial exemption and should receive overtime compensation for all hours worked over 40. Trial court granted summary judgment for the city and the fire fighters appeal.
HELD: Section 7(k) of the FLSA provides a partial exemption from overtime pay requirements for employees engaged in “fire protection services.” Regulations define who is an “employee in fire protection activities” and also limit the amount of work unrelated to fire protection that such employees may perform without forfeiting the exemption. The fire fighters in this case contend that they do not fall within the FLSA exemption because of a regulation that limits the performance of nonexempt work to no more than 20 percent of an employee’s workweek. Specifically, this regulation states that the non-exempt work has to be performed “incident to or in connection with” fire protection activities. The court is satisfied that in this case even when performing medical services at non-fire emergencies, the fire fighters are still subject to the FLSA exemption from overtime pay. First, they respond to non-fire emergencies but are trained fire fighters. Second, while at non-fire emergencies they are called away to fire emergencies. Third, when called away, they do actually fight fires. Indeed, so integrated are the fire fighting and the EMS duties that the fire fighters are required to have their fire fighting tools with them when performing services at non-fire emergencies. Under the circumstances their performance of medical services, even at non-fire emergencies, is sufficiently “incident to or in conjunction with” their fire protection activities as to satisfy the requirements of federal regulations. Likewise the individuals meet the test for ambulance rescue workers as they are regularly dispatched to crime scenes, riots, natural disasters and accidents. The trial record reflects that EMS units are regularly sent with fire apparatus to accident calls as well as to a majority of law enforcement calls answered by the NFPS. All of this is incidental to the fire protection activities. Prior case law holds that individuals who were training as fire fighters but performed only EMS duties did not fit within the fire fighter exemption. In contrast in this case the medical personnel likewise fight fires and, therefore, fall within the partial exemption of the FLSA from the requirement of being paid overtime after 40 hours of work. Trial court affirmed. [Adams v City of Norfolk, Virginia, 274 F.3d 148 (4th Cir. 2001)]
Aldrup was a 15-year veteran federal fire fighter. Over the course of his career he had twice been suspended for insubordination. Also, over the course of his career he had filed 51 different equal employment opportunity complaints, none of which resulted in a finding of discrimination. One day, Aldrup reported for work at his station and, due to staffing shortages, one of the fire fighters at his station needed to be assigned for the day to another station. On the date in question Aldrup was on the list to cover staffing shortages at the other station. He was ordered to report to the distant station some 23 miles away. Aldrup refused to drive his personal vehicle between the stations citing a federal regulation that prohibited the use of privately owned vehicles for government purposes. He insisted that a government vehicle be provided to transport him between the stations. He was told no such vehicle was available but that he would be reimbursed for the expense of travel. He still refused to report to the remote station. Ultimately, insubordination charges were filed against Aldrup. He was removed from his federal fire fighter position. His administrative appeals were denied. He filed for a judicial appeal. Trial court upheld the termination and former federal fire fighter appeals.
HELD: Aldrup contends that the decision upholding his dismissal was arbitrary and capricious. He asserts he did not fail to report for work but refused to follow an order to use his personal vehicle to report to the distant station. He argues that the punishment of removal was too severe and that also he was terminated because of disability and in retaliation for his prior complaints. The trial court found that while Aldrup presented evidence of retaliation, his government employer presented evidence of a legitimate, non-discriminatory purpose for removing him: to wit, his repeated insubordination. Likewise, Aldrup’s claim under the Americans with Disabilities Act fails because he does not show that he is a qualified individual with a disability. He alleges he suffers from the disability of depression caused by the stress and anxiety of having to work with certain employees at the distant fire station. He produced a letter from a physician concluding that Aldrup was substantially limited in one of life’s major activities. This letter is of little evidentiary weight because it is an unsupported conclusion. Insufficient evidence was produced to raise the question of whether he was disabled. In addition, his termination for insubordination was not excessive in light of his prior record. Under normal circumstances an individual must follow a supervisor’s orders and then complain later. The only exception to refusing to obey an order is when the subordinate is placed in a clearly dangerous situation. Aldrup would not have been placed in such a situation had he followed the order and used his own vehicle. Thus, he was not justified in disobeying the direct order from his supervisor, even if it required him to perform an illegal act. Dismissal of fire fighter affirmed. [Aldrup v. Caldera, 274 F.3d 282 (5th Cir. 2001)]
Rhyce, a female, was employed as a fire fighter. After one year on the job she enrolled in a community college fire science course. The program was specially designed to permit fire fighters to attend class while on active duty, which was difficult given that state law required fire fighters to work 24-hour shifts. Two years later, while still working on her fire science degree, Rhyce enrolled in classes outside of that discipline. When her elective classes conflicted with her work schedule, she applied for vacation and earned annual leave days. Concern that the number of conflicting class days would outnumber her accumulated leave, she requested she be allowed to take half days off from work instead of full days. The deputy fire chief informed her that she would be allowed to split her earned annual leave days, but not her vacation time, into half days. This arrangement, however, did not afford her enough days to take all of the desired courses. After using up the authorized earned annual leave half days, she requested to be allowed time off without pay to attend the classes. This request was denied. She then requested to use leave days of her husband, also a fire district employee. This request likewise was denied. Rhyce then voluntarily resigned her position in order to complete her studies. A month after the resignation, however, Rhyce discovered that other members of her crew, all males, had been allowed to take half days off during the same period that the practice was denied to her. In one instance, they were allowed to do so on the very same day that she was required to take a full day off. At least one male crew member was allowed to take half days to attend school for courses totally unrelated to a fire science degree. Armed with this information Rhyce contacted the chairman of the fire board. After discussion in executive session the fire board admitted that she had been subject to discriminatory practices, apologized, and agreed that she would be reinstated to her position with no loss of seniority and given the opportunity to buy back the vacation time for which she had been paid upon her resignation. She would also be afforded the opportunity to take off half days to complete her education. This agreement was recorded in a memorandum to the fire district civil service board. Rhyce’s reinstatement did not go according to plan, however. An unidentified coworker informed her that a district chief who was president of the fire fighters’ union had publicly stated that he would not allow her to return to her previous assignment but instead would transfer her to a less desirable post at a less desirable station. The coworker also quoted the district chief as saying that he wished to block Rhyce’s attempt to regain her seniority. He also allegedly made other allegedly defamatory statements about her. When Rhyce contacted the chief he denied the request to return to her prior station. About the same time, Rhyce received a threatening phone call in which the anonymous caller warned her that her life was in danger if she returned to fire fighting. She informed the fire chief that she could not return to work because she felt the district had violated the terms of her reinstatement and because she feared for her life. The fire chief was unsympathetic. He acknowledged the district chief’s hostility toward her but offered only to reprimand him. The fire chief suggested Rhyce accept the transfer to another crew and told her that she would not be allowed to take half day leave. Rhyce subsequently did not return to work. Rather, she filed suit against the fire district and nine individuals associated with the district, including the fire chief, the district chief, and various board members. Defendants move to dismiss all claims.
HELD: Rhyce claims that she was discriminated against based on her
sex in the violation of federal fair employment law. In particular,
she argues that she was constructively discharged when she was not allowed
to complete her education and again when the fire district announced the intention
to assign her to a less desirable post, and she received threats on her life.
A constructive discharge claim requires that the employer make working conditions
so intolerable that a reasonable person would feel compelled to resign.
The fire district argues that Rhyce fails to meet this burden because refusing
to allow employees to take half days off is not so intolerable as to force
a resignation nor is assignment to a less desirable position. However,
it is possible that Rhyce’s reassignment could be considered a demotion or
a reduction in job responsibilities that would support a constructive discharge
claim. In light of the district’s refusal to accommodate her educational
needs, her job could be made intolerable and the threat on her life could
convince her not to return to work. This is sufficient evidence to
survive a motion for summary judgment. The defendants also argue that
Rhyce can serve her claim only against the fire district - the employer -
and not against them as individuals. They are correct on this point.
Current case law holds that while governmental power is exercised through
individuals acting as agents of the government, any wrongful act is performed
in their official capacity. Thus, any suit against that person must
be maintained in their official capacity, not as an individual. Under
federal fair employment law a public official cannot be held liable in his
individual capacity for back pay damages. Thus, Rhyce’s claims against
fire department personnel are dismissed. Rhyce also seeks to bring
her gender discrimination claim on the basis of Title 42, United States Code
Section 1983 asserting a violation of equal protection of the law.
While there are conflicting decisions within the Fifth Circuit Court of Appeals
on whether a complainant may maintain a discrimination claim both as a violation
of federal fair employment law and a constitutional violation, this court
adopts the view that both claims can be pursued. The former fire fighter
may pursue a claim for gender discrimination under federal statute as well
as equal protection of the law. The defendants also oppose Rhyce’s
claim that she was deprived of procedural due process. The district
argues that she did not take advantage of the termination proceedings available
to her but rather resigned. Rhyce counters that the district forced
her to resign because it did not want to conduct a pre-termination hearing.
If one accepts the constructive discharge argument, then Rhyce clearly felt
that she had been discharged without just cause when she resigned.
Under Louisiana law at that time, she could have requested a hearing.
Failing to do so is fatal to her procedural due process claim. Case
to proceed on former fire fighters viable claim. [Rhyce v. Martin,
173 F. Supp. 2d 521 (E.D. La. 2001)]
fire fighters
An arbitration panel recently
Under federal fair employment law
approved terms of a four-year contract between the City of Pittsburgh
and the fire fighters' union. The award runs from 2002 to 2005. The first
year provides a four percent pay hike followed by a 3.5 percent jump in
2004. A re-opener was set to discuss wages and benefits for 2005. Senior
fire fighters, who make up a majority of the bureau personnel, will make
a base wage of $48,191 in 2002.
fire fighters
An agreement has been reached between city officials in St. Petersburg and Local 747 of the International Association of Fire Fighters, AFL-CIO. The contract terms grant fire fighters a six percent raise retroactive to last October. A five percent hike comes in October of 2002 and a four percent boost in 2003. Effective January 1, 2004, retiring fire fighters with 25 years service will leave the department at 75 percent of their salary, up from the current 65 percent.
fire fighters
A new three-year deal has been unanimously ratified by Warwick fire fighters.
The contract, which goes into effect July 1, offers financial incentive
for fire fighters to 30 years instead of retiring after 20 years when initially
eligible. The retirement incentive pushed pension pay to 70 percent of
salary. Starting the last day of the contract, pension benefits will be
calculated based on the fire