March 2003

Budget woes costing fire fighter jobs nationwide

All of a sudden government has no money.  A sluggish economy, post-September 11 anti-terrorism expenses, and extraordinary snow removal costs have taxed government budgets across the nation.  Numerous cities, both large and small, are reporting substantial shortfalls in revenues or expenses beyond the norm.  How to balance the budget?  Cut fire fighting costs.

Furlough of public safety personnel, a traditional “last resort” strategy to control governmental expenditures, appears to be sweeping the country as at least the temporary means to get budgets under control.  And fire fighters are feeling the sting.

In January, Euclid, Ohio, announced it was laying off four of the city’s 81 fire fighters and closing one of its firehouses whenever staffing falls below minimum requirements.  The city also is furloughing 11 of its 95 police officers.  In nearby East Cleveland, the mayor ordered furloughs for 11 fulltime and 18 part-time emergency medical personnel.  The eight city fire fighters who are certified paramedics along with fire fighter-EMTs will provide emergency medical response for the near future.

Fire fighters in the Oklahoma City suburb of Yukon, along with other city employees, are being required to take one day off without pay for each of the next three months.  Other communities are considering single day furloughs while several cities are asking employees, including fire fighters, to temporarily waive scheduled pay hikes. 

The mayor of St. Paul, Minnesota, has proposed balancing that community’s budget in part by mothballing three engines and demoting 24 captains and apparatus operators.  All 16 firehouses would remain open and each engine would run with four fire fighters, reducing the need for backup crews as is currently necessary when staffing is short, said department officials.  Service levels would not change under the plan.  However, a spokesman for Local 21 of the International Association of Fire Fighters (IAFF), AFL-CIO, said that the city had no data to show that response times would not suffer.

Rochester, New York, has also unveiled a plan to take up to one engine out of service at each of the city’s four firehouses, depending on time of day and staffing availability.  If a company is short a fire fighter, the engine would be deadlined and the remaining personnel would be assigned to emergency medical duties.

Boulder, Colorado, budget cuts have forced the fire department to disband a two-member rescue squad, cut overtime, and leave some outlying fire stations unstaffed on occasion.  The moves are an attempt to avoid fire fighter lay-offs.

In California, a state particularly hard hit with declining revenues, Fremont officials have publicly discussed furloughing city employees while Long Beach is considering reducing fire apparatus staffing from four to three beginning in 2004.  The Long Beach Firefighters Association, Local 372, IAFF, which opposes the measure, has mailed 86,000 postcards to registered voters arguing preservation of the four-person crews.

Many cities, such as Portland, Maine, are planning to eliminate budgeted but unfilled, fire fighter positions.  San Francisco finds itself in perhaps the most unusual situation.  Forty-eight individuals completed the 17-week fire academy February 21 preparatory to becoming San Francisco fire fighters.  The bad news?  The city has announced none will be hired as a fire fighter.  Budget woes along with  fewer retirements than anticipated have combined to mean no jobs exist for the newly trained fire fighters.  The San Francisco fire fighters’ union, Local 798 of the IAFF, has demanded an investigation into who approved the academy class initially.

Legal Lexicon

"Rule of three"

Procedure used in promotion systems whereby the appointing authority is required to select one of the top three scoring candidates on a ranked list for any vacant position. The rule limits, but does not totally eliminate, appointing authority's use of discretion in making promotion decisions. Some jurisdictions use a similar "rule of five."

Nine fire fighters are first to receive national valor medal

On February 14, Attorney General John Ashcroft, joined by Vice President Dick Cheney, recognized the extraordinary achievements of nine fire fighters and one police officer who received the Public Safety Officer Medal of Valor in a ceremony at the Eisenhower Executive Office Building.  The event marked the first presentation of the medal, which is the highest national award for valor by a public safety officer.  The awards are in honor of outstanding heroic deeds these officers performed above and beyond the call of duty. 

“With the presentation of this medal, our nation recognizes the sacrifices and dedicated service of our public safety officers,” said Attorney General Ashcroft.  “They truly are our national heroes, and it is my privilege to recognize their tremendous courage, dedication to duty, and selfless commitment to their fellow citizens.” 

The fire fighter recipients are: Robert Borer, Jeremy Hosek, Guy Jones, Ron Kennett, Rick Klein, and Mike Wright, all of Lincoln, Nebraska; Robert Giorgio of Cherry Hill, New Jersey; Eric Svihovec of Miller Place, New York; and Sean VanAtter of Tampa, Florida. 

Borer, Hosek, Jones, Kennett, and Klein were honored for their efforts to rescue a worker who was struck by a cable 1,200 feet up during erection of a telecommunications tower.  The team worked for two hours to rescue the critically injured worker.  Tragically, the worker died before the rescuers could reach him.  Giorgio, the city’s fire chief, was cited for rescuing a motorist whose automobile was burning while precariously suspended above the ground.  Svihovec, a volunteer fire fighter, garnered the award for rescuing a young mother from her car after it disappeared into a harbor during a storm.  Svihovec returned to the submerged vehicle and rescued her infant daughter.  VanAtter forced his way into a burning vehicle and pulled a family to safety.
The only police officer honoree, Keith Borders of Las Vegas, Nevada, killed a heavily armed suspect despite himself suffering a wound to the head and significant blood loss.  Borders shielded a domestic violence victim from harm during the incident.

The Medal, authorized by the Public Safety Officer Medal of Valor Act of 2001, is awarded to public safety officers cited by the Attorney General.  Public safety officers are nominated by the chiefs or directors of their employing agencies and recommended by the bipartisan Medal of Valor Review Board.  

California disability bias suit settled for $250 million

Fire fighters and police officers whose disability pensions were slashed because they started their careers at 31 or older will receive $250 million in a record age discrimination lawsuit settlement, California’s main public employees retirement system announced January 30.  The settlement of the suit by the federal Equal Employment Opportunity Commission (EEOC) ends an eight-year dispute initiated by a police officer in the San Francisco suburb of Fremont, which eventually became a class-action suit on behalf of hundreds of officers and fire fighters. 

The case alleged that fire fighters and police officers were unfairly given reduced disability pensions if they started their careers after 30 - as prescribed under a 1980 state law.  The agreement effectively kills the law and says that all employees must be paid under the same formula if they are injured while performing their duties as fire fighters, police officers, prison guards, or other public safety officers. 

The agreement pays $50 million in back benefits to 1,700 public safety officers who retired with job-related disabilities under the disputed law between 1992 and 2001.  The same group is expected to accrue an additional $200 million in future benefits.  Until 1980, public safety officers sidelined by a job injury were eligible for a disability retirement equal to 50 percent of their salary.  But the state lifted the age limit of 30 that had been in force for starting public safety jobs, at the same time implementing a formula that reduced disability retirement benefits for officers hired at 31 or older.  Benefits were cut under the formula by about 2 percent for each year over the age of 30. 

The settlement, approved by U.S. District Judge Charles Breyer in San Francisco, frees the nation’s largest retirement fund from the age-based benefit scheme.  PERS viewed the age formula as inequitable and supported several unsuccessful efforts to repeal the law.  Legislators justified the pension limits by suggesting that older hires were more liable to be injured and also more likely to feign injuries to curtail their careers with large benefits.  

EEOC officials said they are not aware of any other states that have such age biases in their disability payments. 

Cleveland barred from using tax return as residency proof

An Ohio judge in January ordered the City of Cleveland to cease its policy of demanding that fire fighters and police officers produce their federal income tax returns as proof they live in the corporate limits.  Cleveland’s charter states that all municipal employees must reside in the city.

Cleveland officials said that the tax returns were the most reliable of several forms of proof of residency.  The city began demanding copies of the returns four years ago.

However, Cuyahoga County Common Pleas Judge Anthony Calabrese, Jr., sided with lawyers for the fire fighters and police unions and said the requirement was an unreasonable intrusion into the employee’s right of privacy.  Union lawyers had argued that the confidentiality of the tax returns are protected by federal law.

The city has been increasingly aggressive in enforcing the domicile standard.  Each month, the Civil Service Commission verifies the residency of about 25 employees.  In addition to tax returns, city employees must turn over any five of ten types of records, such as mortgage information, utility bills, and voter registrations.  However, the city claims that the income tax returns are the most reliable record because workers are less likely to lie to the Internal Revenue Service.

Lawyers for the city have appealed the ruling but have agreed not to seek copies of the returns while a higher court is considering the matter.

Litigation

Age discrimination

Moore, a 35-year-old applicant for employment with the fire department, cleared all hurdles for being hired including the agility test, the aptitude test, and the oral interview.  Indiana law provided that only individuals under 36 years of age could be hired as fire fighters because that was the age at which an individual could qualify to become a member of the pension fund.  However, from January 1, 1994 through September 30, 1996, the 36-year-old age requirement was suspended as a result of the federal Age Discrimination in Employment Act (ADEA).  Subsequently, however, Congress amended the ADEA and removed the age prohibition relative to fire fighters.  Hence, after September 30, 1996, the 36-year-old age standard was reinstated.

Pension board created a temporary transition policy under which it decided not to disqualify applicants who had reached 36 years of age and who had received a conditional offer of employment prior to September 30, 1996.  Moore had not received such a conditional offer at that time.  When Moore reached the thirty-six-year age limit, he was removed from the merit board eligibility list.  The pension fund director, however, wrote a letter to the merit commission stating that it would review Moore’s application as part of the transition variance.  Upon receiving this letter, Moore was reinstated to the merit board’s application list, ranking number one.

Approximately six months later,  he was informed that he did not fit within the pension fund’s transition policy and thus was not qualified for the pension fund or to become a municipal fire fighter.  Moore filed suit against the merit board for refusing to appoint him, claiming that he had been deprived of a constitutionally protected property interest in employment with the city.  Trial judge granted summary judgment for the board and Moore appeals.

HELD:  Prospective fire fighter argues that the transition policy created a mutually explicit understanding between him and the city, and as a consequence, he had a property right in prospective employment with the fire department.  Prior case law holds that in order to create a justifiable and reasonable expectation of employment, and thereby establish a property interest, there must be a mutually explicit understanding between the parties.  To recognize a property interest for appointment to a classified position in the realm of public employment would drastically extend the scope of due process, something the court is unwilling to due.  Prior case law has held that an employee has no property interest in prospective employment or prospective promotion.

The alleged transition policy created no mutually explicit understanding between Moore and the pension board or the city.  Indiana law requires that public employers’ policies be established under a particular procedure, and Moore has not presented any evidence that this procedure was followed.  Thus, the pension board’s transition rules fell short of creating the mutually explicit understanding necessary to establish a property interest on behalf of the prospective fire fighter.  Judgment for city affirmed.  [Moore v. Muncie Police and Fire Merit Commission, 312 F.3d 322 (7th Cir. 2002)]

Race discrimination

Johnson joined the fire department in 1988 and by 1998 became eligible for promotion to fire captain.  She was the first black female in the history of the department to reach that level.  The fire department’s promotion procedure consisted of sending out an announcement at the beginning of each year setting forth the eligibility requirements.  To be eligible for promotion, a fire fighter had to have at least five years of service in certain positions and acceptable performance evaluation and physical fitness ratings.  The fire fighter then sat for a written examination and participated in an assessment center.  Upon attaining a particular score, the candidates moved to the eligibility pool where fire fighters were ranked by scores plus “relevant factor” scores, which added points for seniority, exceptional performance ratings, and education.  Where scores were identical, the candidates were listed in order of hiring date.  In practice, promotions had been made sequentially down the list as they became available.  When candidates with tied scores existed, the first hired candidate was promoted before the others.  Ultimately, the promotion decision lay with the fire chief.  

In 1999, a captain’s position became available.  At the time, Johnson’s name was next on the list to be promoted.  Although she was tied by score with two other males, she was first on the list because she possessed the longest seniority.  Had the department followed the practice of promotion sequentially, Johnson would have been promoted.  However, the fire chief jumped Johnson’s name and promoted one of the white males.  This was the last person promoted for the year because the eligibility list soon expired.  Johnson filed a grievance, which was subsequently dismissed.  She then filed suit claiming race discrimination in the promotion process.  City moves for summary judgment.

HELD:  In race discrimination cases, the plaintiff bears the burden of establishing a prima facie case.  The burden then shifts to the employer to articulate a legitimate, nondiscriminatory reason for the challenged action.  Once the employer produces evidence of nondiscriminatory reason, the plaintiff may counter with evidence to show that the reason is, in fact, a pretext for unlawful discrimination.  

In this case, the city argues that Johnson cannot establish that she was rejected for the position under circumstances giving rise to an inference of discrimination.  The city contends that the white male was promoted over Johnson because the white male had more training hours, was an instructor at the fire academy, and a scout leader that had been recommended for promotion by his supervisor.  The city contends that Johnson was not recommended because her battalion chief thought she lacked command presence.

 The evidence reflects, however, that Johnson’s direct supervisor had noted in her performance appraisals that she handled the position of fire captain well and performed the job excellently when she filled that position temporarily.  The direct supervisor was never asked whether he thought she should be promoted.  Likewise, the battalion chief and the fire chief never reviewed Johnson’s performance appraisals during the promotion process, but, rather reviewed only her training records.

There is ample evidence in the record from which it might be inferred that the city’s reasons for its actions were not credible.  First, the city deviated from its own promotion practice in not following the list sequentially by promoting the white male over Johnson.  Deviation from regular procedures is a classic example of evidence used to show pretext.  Secondly, the city gave various reasons for its decision to pass over Johnson.  At the grievance hearing, the fire chief testified that Johnson needed more experience to develop her skills.  But at the court hearing, he stated that the differences in training and the recommendations were the reason for the pass over.  Pretext can also be inferred when an employer evaluates candidates differently.  Here, the fire chief sought evaluations from supervisors of the white candidate, but did not seek an evaluation from Johnson’s supervisor.  Likewise, the white candidate’s service as a scout leader allegedly made him a better candidate.  But, the department was apparently unaware of Johnson’s community service activities because the fire chief only reviewed her training records.  The city also provides reasons for passing over Johnson that are not supported by the evidence. For example, the position announcement does not list as criteria various other factors that the fire chief used to pass over Johnson.  Fire chief argued that command presence was of huge public importance when selecting fire candidates, yet command presence is not mentioned at all in the promotional announcement.  These facts and others in the record lead to the conclusion that a jury could find that the employer’s job action was discriminatory.  This being the case, the city’s motion for summary judgment is rejected and the case is to proceed to trial.  [Johnson v. City of Charlotte, North Carolina, 229 F.Supp.2d 488 (W.D.N.C. 2002)]

Worker's compensation

Davenport was a 20-year veteran fire fighter whose ultimate professional goal was to become a fire captain.  Davenport took promotional examinations for placement on the list of eligibles for Fire Fighter level II and Fire Fighter level III.  Fire Fighter III was one step below captain.  Dissatisfied with the results of the exams, he appealed the civil service commission.  While the appeal was pending, the fire chief promoted Davenport to Fire Fighter II based on his exam score.  In this position, he was required to serve a six-month probationary period.  

Over a year later, he was again promoted, this time to a vacant Fire Fighter III position.  However, Davenport did not complete his probationary period for Fire Fighter III because the fire department rescinded the promotion and sent him back to his former Fire Fighter II assignment.  The department took this action because a lawsuit had been filed contesting the department’s promotional exam and the list of eligibles for the position of captain.  Davenport was reportedly devastated after being demoted.  When Davenport’s promotion to Fire Fighter III was not reinstated, he was required to sit for the examination again.  Once again he became upset and went on sick leave.  He received medical treatment for a variety of intestinal problems.  
Subsequently, Davenport was reinstated to the Fire Fighter III slot but was required to complete a new six-month probationary period.  During the probationary period, he injured his foot while playing paddleball at the fire station and went on sick leave.  He also began seeing a psychiatrist.  Davenport told the psychiatrist about his depression over the immobility of his foot, and anger and depression over issues at work.  Ultimately, Davenport sought worker’s compensation for a variety of injuries ranging from stress to hypertension.  He was declared to be permanently psychologically disabled, and incapable of working as a fire fighter. 

After much litigation on the matter, the worker’s compensation board found that Davenport had not suffered compensable injuries; his psychiatric problems were not caused by his duty as a fire fighter but from the stress in dealing with the administrative process concerning his promotion.  The board ruled that such psychiatric injuries were outside the scope of employment and not  compensable.  The board did find that he had suffered a psychological injury as a result of his physical work injury and that one was compensable.  Fire fighter appeals.  

HELD:  Hawaiian courts have previously established that purely psychological injuries are within the contemplation of the worker’s compensation statute.  A covered injury is compensable if there is a requisite connection between the employment and the injury.  In Hawaii, as in the majority of jurisdictions, the injury must arise out of, and in the course of, the employment.  The court examines this question by looking at whether there is a sufficient work connection to bring the accident within the scope of the statute.  It is a well-settled rule in Hawaii that worker’s compensation law is to be construed liberally in favor of coverage because of its remedial character and beneficial purpose.  In 1997, the state Supreme Court ruled that psychological stress-related injury resulting from disciplinary action taken in reaction to the employee’s misconduct was a compensable injury under state worker’s compensation laws.  The legislature responded to this decision by amending the worker’s com-pensation law to bar a claim for mental stress resulting solely from disciplinary action taken in good faith by the employer.  The case at hand does not involve disciplinary related stress, however.  Given that the legislature crafted a single, limited exception, the court can only assume that it intended for the statute to cover all other circumstances.  Hence, it does not matter whether Davenport’s psychological injury resulted from his efforts in promotion, or from his demotion from the Fire Fighter III position, or the events related thereto.  Once a connection is established between non-disciplinary personnel action and psychological injury, the injury becomes compensable under Hawaii worker’s compensation law.  Reversed and remanded for fire fighter. [Davenport v. City and County of Honolulu, 59 P.3d 932 (Haw. Ct. App. 2001)]

Civil liability

At approximately 5:30 a.m., a vehicle driven by Molina collided with a New Orleans Fire Department (NOFD) engine that was parked perpendicularly across the road, completely blocking the lanes of travel.  Molina, as well as a passenger, was killed, while another passenger was seriously injured.  At the time of the accident, the engine was being used by the NOFD in an attempt to extinguish a fire at a dump that had been burning for several days.  On the day prior to the accident, the police department had performed traffic control, but had subsequently abandoned traffic control efforts, apparently due to a shortage of manpower.  Although NOFD personnel communicated that the situation was hazardous and requested that the police resume traffic control, no police officers were assigned to the location.  

Several hours prior to Molina’s accident, another vehicle had collided with a different engine that had been parked essentially in the same position.  At the time of the Molina wreck, the engine was visible by means of a light bar across the top, two stationery red lights on the rear, and two small spotlights on each side of the apparatus.  There were no spotlights shining directly toward oncoming traffic and the only traffic control device being used was the placement of four cones approximately 20 feet from the fire engine.  

An investigation subsequently showed that Molina was traveling at nearly 100 miles per hour in a 45 mile per hour zone and had a blood alcohol level of 0.12.  The heirs of the deceased individuals filed suit against the city alleging negligence in the deaths.  At a jury trial, under Louisiana comparative negligence law, fault was assessed at 75 percent for Molina and 25 percent for the city.  Nonetheless, a substantial level of damages was awarded against the city.  Both parties appeal.  

HELD:  The city argues that it was error for the trial court to assess any degree of fault to it considering the excessive speed and intoxication of the driver.  The city argues that under these circumstances, it had no duty to prevent the accident, which was solely caused by driver negligence.  The city is in error, however, because Louisiana law is clear that municipalities have a duty to keep roads safe for both prudent and imprudent, inattentive drivers and their passengers.

When the fault of a motorist and the fault of the governing body responsible for warning motorists of unreasonably dangerous road conditions combine to produce an accident, comparative fault is applicable.  It is unquestioned that the city had a duty to protect the motorists in this case.  Both the fire department and the police department had actual notice of the dangerous situation created by the parked fire truck.  Indeed, traffic control from the police department had been in place earlier and the previous vehicle accident should have alerted public safety personnel to the danger of the truck.  When law enforcement officers become aware of a dangerous traffic situation, they have the affirmative duty to ensure that the public is not subjected to unreasonable risk.  It was reasonable for the trial court to conclude that the combined negligence of both the city employees and the driver of the passenger vehicle caused the accident.  Judgment affirmed.  [Molina v. City of New Orleans, 830 So.2d 994 (La. Ct. App. 2002)]

Dues deduction

For 30 years, the town had routinely adjusted the union dues payroll deduction for union members when advised to do so.  All dues increases that the union had asked the town to implement through payroll deduction had been applied uniformly to all union members.  The union was never asked by the town nor did it ever provide any explanation for the dues increases, nor did it disclose to the town how it intended to spend the increased revenue that it received.  During the course of negotiations for a new contract, the union attempted, without success, to have the town agree to offer a dental insurance plan for fire fighters.

Sometime later, the town fire department filed with the town treasurer a list of some union members who wanted their weekly union dues increased to cover the premium for a dental plan that the union had implemented.  Thus, those members would have a greater dues check-off than other members.  Although the different deduction plans were initially implemented, the town administrator stopped the procedure on advice of counsel, believing that state law did not authorize payroll deductions for the insurance premium.  Specifically, a Massachusetts statute allowed payroll deductions for insurance premiums for plans offered by the town in conjunction with the union.  However, because the town was not a party to this dental plan, the town attorney reasoned that deduction of premiums was not authorized.  Subsequently, the union requested that the town increase payroll deduction for union dues for the same fire fighters who had previously increased their payroll deduction for the insurance plan.  The requested amount of increase reflected precisely the previous amount necessary to cover the dental insurance.  When the town counsel refused to bless the dues deduction scheme, the union informed the town that the reasons that the union spent its dues were solely within its discretion and not subject to town interference.  Union then filed an unfair labor practice charge against the town.  The state labor commission ruled that the town had violated state law by unilaterally altering established union dues check-off practice.  Town appeals.

HELD:  The labor commission’s decision must be based on substantial evidence, such evidence as a reasonable mind might accept as adequate to support a conclusion.  Commission decisions are generally accorded considerable deference by the courts.  It is undisputed that the deduction of union dues from an employee’s paycheck by a public employer and the transmittal of the money collected is a mandatory subject of bargaining.  Moreover, a unilateral change in past practice could violate the duty to bargain such changes.  The evidence shows that for nearly 30 years, the town had automatically adjusted the union dues when so notified by the union.  The union never justified or explained the changes.  

Here, however, it was not the town that deviated from past practice, but rather the union.  The union changed its past practice of having the town deduct union dues in a uniform manner for all members.  Rather, it requested increasing deductions for some members but not all.  Given that the request was for the insurance premiums, it is clear the union was attempting to use the dues check-off procedure to circumvent state law.  Under these circumstances, it is not a prohibited practice for a public employer to refuse to engage in a subterfuge in order to evade a statute.  While the town’s action was indeed unilateral, in that it did not bargain with the union, the town need not bargain because there is no obligation under state law to engage in bargaining over matters controlled entirely by statute.  Eligibility for collecting of the insurance premiums was indeed controlled by state statute.  Generally, a public employer has no right to inquire of a union what it does with its dues.  Similarly, a union has the right to have its own insurance programs.  However, a union cannot use the dues check-off procedure, as was attempted here, to finance the insurance program unless other provisions of the state law are met.  [Town of North Attleboro v. Labor Relations Commission, 779 N.E.2d 654 (Mass. App. Ct. 2002)]

 Worker's compensation

Capano became a volunteer fire fighter at the age of 18 in 1918.  He twice served as chief of the fire company.  By 1994, he was 93 years old and no longer attended drills or responded to the scene of a fire, but did spend considerable time at the firehouse.  He would typically arrive at the firehouse early in the evening, clean up a little, and then watch television and talk with other members.  He had been granted “life member” status with the volunteer company.  While his attendance at the firehouse was essentially social, his name was maintained on the roster of active fire fighters.  Additionally, he would occasionally help mop floors and take care of the woodburning stove.  

One evening, Capano’s granddaughter arrived at the firehouse and she and the company’s lieutenant found Capano on the floor in the back room.  He was nearly 12 feet from the woodburning stove.  Capano stated that he had stepped off a small ledge while putting a log on the woodburning stove.  The fall fractured his hip and his subsequent medical condition meant he had lost the ability to perform the normal acts of daily living.  He moved to a nursing home.  Capano filed a claim for worker’s compensation benefits.  A hearing examiner found him eligible for the benefits on the grounds that he was still considered a fire fighter, and since he was found closer to the stove than to the television set, the evidence supported the conclusion that he was injured while tending to the stove.  Fire company appeals.

HELD:  New Jersey law provides for worker’s compensation for every member of a volunteer fire company doing public fire duty who may be injured in the line of duty.  The phrases “doing public fire duty” and “injured in the line of duty” include working in construction or maintaining or repairing the premises, apparatus, or equipment used by the fire company.  The administrative judge concluded that since Capano had a key to the firehouse and a pager to receive calls and was in daily attendance tending the woodburning stove, he was doing public fire duty.  

The borough claims that its ordinances preclude volunteer fire fighters over the age of 65 unless they present a medical certificate.  There is no evidence, however, that this ordinance had ever been followed.  To enforce the ordinance for purposes of denying worker’s compensation benefits to an injured fire fighter would be an inequity.  The borough also claims that Capano’s disabilities were actually attributable to his age, not to the fall.  Its expert attributed only ten percent of the disability to that event.  While state law does provide that no compensation shall be awarded for conditions due to the natural aging process, the burden of proof is on the employer to establish the pre-existing loss of function.  The borough presented no evidence of such loss at the initial hearing.  

Further, in examining the legislative history of the worker’s compensation law, there is no basis for concluding that maintaining a stove is not “maintenance” of the premises as used within the statute.  The statute provides benefits to all active volunteer first aid or rescue squad workers, and authorized workers of volunteer fire companies.  While Capano may have been given no direct fire fighting duties or assignments, the court will not overturn the judge’s determination that he was a member of the volunteer fire department performing public fire duty by virtue of his maintenance of the firehouse.  A municipality that maintains a volunteer fire company can limit its liability by making sure statutory requirements and ordinances are adhered to and that membership rosters include all appropriate names, but not persons who retain only a social relationship with the squad.  Award of worker’s compensation benefits to 93-year-old individual affirmed.  [Capano v. Bound Brook Relief Fire Co. No. 4, 811 A.2d 510 (N.J. 2002)] 

Overtime

A group of airport fire fighters filed a claim against the state, their employer, seeking compensation for unpaid sleep and mealtime as well as unpaid overtime.  Their union contract established a work schedule of 106 work hours bi-weekly, consisting of four 24-hour shifts and one 10-hour shift, which included nine hours of mealtime and 32 hours of sleep time.  The fire fighters alleged that their salary for this work did not include compensation for their meals and sleep time and thereby violated the federal Fair Labor Standards Act (FLSA).  State court of claims denied their claim stating that they failed to show that their compensation was less than the minimum wage and that the FLSA fire fighter exemption did not require overtime payments until they had worked more than 106 hours.  Fire fighters appeal.

HELD:  Federal courts recognize that the core rights and obligations the FLSA creates are the minimum wage levels and entitlement to overtime pay for work above specified maximum hours.  Accordingly, the congressional purpose is accomplished so long as the total weekly wage paid by an employer meets the minimum weekly requirement of the statute.  In recognizing the unique nature of work performed by fire fighters, Congress provided a partial exemption to the FLSA overtime requirement for them.  The schedule of maximum hours for which a fire fighter must be paid overtime applicable here provides that fire fighters subject to a 14-day work period are eligible for overtime only when their work hours exceed 106.  

Here, the fire fighters are paid overtime for those excessive hours.  Additionally, their 106-hour work periods include meals and sleep time.  The fire fighters contend that their meals and sleep time are effectively excluded from compensable time because they are compensated the same as other state employees of the same pay grade who only work 72 to 80 hours during the same 14-day period.  However, due to the FLSA fire fighter exemption, they can be required to work longer hours without overtime liability.  Given that the fire fighters’ pay exceeds the minimum wage for their 106-hour work schedule and that they receive overtime above 106 work hours, they have no FLSA claim.  Affirmed for state.  [Wooley v. State of New York, 750 N.Y.S.2d 664 (N.Y. App. Div. 2002)] 

  Dismissal procedures

For 16 years, Miech was employed as a fire fighter in the county fire department.  In 1999, his position was eliminated because the county and city fire departments were consolidated.  Miech was given the opportunity to work in the city fire department but declined for personal reasons.  

Miech later argued that he had a property right in his job and that that interest had been terminated without due process.  The claimed source of his asserted property interest was an employment contract implied from the 1980 county personnel policies.  The county claims that the 1980 policies were not in effect when Miech was terminated because subsequent revisions to the policies clearly stated that county employees were at-will and the policies created no implied contract of employment.  Miech, however, argued that none of the revisions to the 1980 policies are valid to him because he was not given consideration for the changes, while the county contends that a newly elected governing body can revise personnel policies without providing consideration.

Miech filed a federal court suit alleging a violation of his due process rights as well as breach of contract.  Court granted the county’s motion for summary judgment on the due process claim, but reserved judgment on the breach of contract claim pending a clarification of Wyoming law from the state Supreme Court.  

HELD:  The question of whether additional consideration is necessary when an employer modifies an employment contract implied from an employee handbook by restoring at-will status turns on two prior Wyoming cases.  One case was held that a newly elected governing body may challenge a government contract entered into by, and extending beyond the term of office of, the preceding governing body if no showing is made that the contract was necessary and of benefit to the governing body at the time the contract was made.  In the second case, it was ruled that in the private sector, additional consideration must be provided to modify an implied “for cause” employment contract to restore an at-will status.  

In this case, the county claims that subsequent county officials effectively modified any employment contract implied from the handbook provided to Miech when he was hired and changes his status to at-will.  Under this theory, Miech was an at-will employee when his position was eliminated and he had no right to continued employment.  Miech, on the other hand, claims that the county could not modify his “for cause” status without providing further consideration.  An analysis of the two cases and other similar litigation leads to the conclusion that no blanket rule exists allowing newly constituted governing bodies to modify implied “for cause” employment contracts without providing additional consideration.  Rather, the question of whether a new governing body must provide additional consideration to modify such an employment contract to restore at-will status must be decided on a case-by-case basis.
In such instances, a court must determine whether an employee has met his burden of proof showing the extended term of the applied “for cause” employment contract was justified by necessity or benefit to the government at the time the contract was made.  One such method of making this showing is by presenting competent evidence that the employment contract promoted a stable, secure, and loyal work force.  If the employee meets that burden, the governing body cannot void the contract and the usual rules of employment contract law apply, including the requirement that additional consideration must be provided when an employment contract is modified.  If the employee fails to establish that the extended contract was justified by necessity or benefit to the government, then the governing body can void the contract and no additional consideration is necessary.  Matter referred back to federal court for resolution of breach of contract claim by former fire fighter.  [Miech v. Sheridan County, 59 P.3d 143 (Wyo. 2002)]

Settlements

Braintree, Massachusetts

fire fighters

An arbitrator's ruling has granted Braintree fire fighters a three percent wage hike in each of the three years of their new contract. The award, which is retroactive to July 1, 2001, rejected the union's request for an annual stipend for hazardous materials training. The arbitrator also rejected a town request to establish a mandatory drug and alcohol-screening program. The town did gain a cap on sick leave accumulation (150 days) for fire fighters hired after July 1, 2002. Currently employed personnel have no accumulation cap. Fire service personnel are represented by Local 920, International Association of Fire Fighters, AFL-CIO.

Hernando County, Florida

fire fighters

After several months of negotiations, fire fighters and Hernando County officials have reached an accord on a three-year labor pact. The contract, which is retroactive to January, will grant an average pay hike of 7.3 percent this year. In 2004, fire fighter salaries will be boosted by five percent. A re-opener clause will be used to determine raises for 2005. An incentive plan to reduce overtime is included in the agreement. Fire fighters will be able to convert unused sick time to vacation time. The county hopes a decrease in sick time usage and control of vacation scheduling will reduce overtime costs which have tripled in the last two years. Local 3760 of the International Association of Fire Fighters, AFL-CIO, is the bargaining agent.

Hoffman Estates, Illinois

fire fighters

The Village of Hoffman Estates and Local 2061 of the International Association of Fire Fighters, AFL-CIO, have finalized agreement on a six year labor contract. The village's 87 fire service employees will see a pay hike of 4.5 percent this year, 4.25 percent in 2004 and in 2005. A wage reopener clause provides for further negotiations on pay hikes and insurance in the final three years of the accord. A base pay increase is also provided for paramedic preceptors, fire fighter/paramedics who shadow newly hired paramedics during their first months on the job. Fire fighters will also be permitted to cash out sick leave upon separation from service, providing a minimum of 960 hours - which takes 15 to 18 years to compile - have been accumulated. The cash will help retiring personnel pay for health insurance during the period between retirement and eligibility for Medicare.