A Louisiana judge has ordered the City of New Orleans to pay over $200 million to hundreds of the city’s fire fighters in settlement of a decades-old salary dispute. Civil District Judge Roland Belsome signed the order March 11, for the first time placing a price tag on a legal action brought by New Orleans fire fighters in 1979 to force the city to enact a longevity-based pay system originally mandated by the state legislature.
Paying off the judgment would take over half of this year’s operating budget. “It would basically bankrupt the city,” said City Attorney Charles Rice. Mayor Ray Nagin noted that the city has little choice but to appeal the decision, an action city officials took almost immediately.
Nicholas Felton, President of the New Orleans Fire Fighters Association, Local 632 of the International Association of Fire Fighters, AFL-CIO, urged the city not to delay, saying each day that passes adds about $50,000 in interest to the judgment.
With 24 years of interest factored in, back pay and pension benefits could
swell to $360 million, an average of $240,000 for each of the more than 1,000
fire fighters and their heirs covered by the litigation.
The lawsuit was triggered by a state statute passed in the 1960s that approved
yearly salary adjustments for veteran fire fighters. Under the plan,
which the city implemented only briefly, fire fighters were to receive a
two percent pay increase beginning in their third year of service, with two
percent added annually through the 23rd year. Over four mayoral administrations,
city officials resisted implementing the plan, claiming that the legislature
lacked authority to impose such an unfunded mandate. In 1999, a trial
court ruled that the fire fighters were entitled to the pay, a decision upheld
by the Louisiana Supreme Court in 2001. The current litigation focuses
on whether the city’s liability for back pay and pension contributions extends
back only to 1990 or all the way to 1979 as the union claims. Judge
Belsome sided with the union’s view.
The Nagin administration agreed earlier this year to implement the longevity pay system retroactive to January 1, 2002, presumably shutting off future claims. However, the City Council last December refused to grant fire fighters the same raise awarded other municipal workers. The 2.5 percent raise was originally placed in an escrow account but recently appropriated to pay for the retroactive settlement, a move union officials view as unfair.
Paying such a massive judgment would likely wreak havoc on the city’s
operating budget for many years. One option would be a long-term loan
or bond issue that, with interest payments, would push the total cost considerably
higher. The union’s attorney has suggested that the fire fighters would
be willing to use their political skills to push the state legislature to
help raise revenue needed to pay them.
In a conciliatory mood, union leader Felton noted, “It’s a lot of money.
But there are benefits and pension issues that we can bring to the table
that would smooth this out. We live in the city; we love the city.
We don’t want to do anything that’s going to hurt the city. It’s time
for us to sit down with the city and work this out.”
sovereign immunity
The absolute immunity of a sovereign government, such as a state or municipality,
from being sued. Many jurisdictions have partially or totally waived immunity
but some place a limit on the amount of monetary damages.
New Mexico Governor Bill Richardson on March 7 signed collective bargaining legislation into law that restores public employees’ rights to negotiate agreements with management. Public employees lost those rights in 1999 when the previous administration vetoed legislation that would have extended collective bargaining rights. The prior law had lapsed due to a sunset clause. State and local governments will now be required to bargain with all public employees.
“Today is a great victory for our public workers across New Mexico. Many of you were denied your rights under the previous administration. I have long believed that all workers have earned the right to negotiate. During my entire 15 years in Congress, I was always a proud supporter of collective bargaining. Under my administration, and from now on in New Mexico, you have a seat at the table,” Governor Richardson told attendees at the signing ceremony. “But at the same time, I want to raise the bar for what we expect from public employees. In return for reinstating collective bargaining, I expect our state employees to offer their best efforts in improving service to our state.”
“I am so proud of all the work that our members have done to get back our right to bargain for better working conditions, benefits, and pay,” said Emily Kane, President of the New Mexicio Professional Fire Fighters. “New Mexico’s fire fighters deserve the same basic rights afforded to other employees and we’re willing to fight for them.”
The state’s largest city, Albuquerque, will likely be unaffected by the
law since it operates under its own bargaining ordinance
.
The new law, which overwhelmingly passed both houses of the legislature,
lacks the sunset provision and will make it difficult in the future to eliminate
collective bargaining rights.
City leaders in Broken Arrow, Oklahoma, apparently are unhappy with the political views of some municipal employees and have taken measures to control those views, at least on municipal property. And, not surprisingly, many municipal employees think the action violates their Constitutional rights. Two years ago the City Council enacted an ordinance limiting to two the number of campaign bumper stickers city employees may display on their private vehicles while on city property. Workers argue that the ordinance violates the First Amendment.
Mayor Jim Reynolds defends the ordinance against freedom of speech claims
by noting that the ordinance keeps the city, through its employees, from
appearing to show favoritism among candidates.
However, James Suddath, President of Local 2251 of the International Association
of Fire Fighters, AFL-CIO, says city employees should be allowed to voice
their opinions because they know about city problems first hand. “Who
knows the problems of the city better than the city employees do, in particular,
the fire fighters and police officers?” Suddath asked.
The ordinance allows two bumper stickers, not to exceed 6 by 24 inches each, on private vehicles of city employees while they are at work. Other campaign signs on vehicles or political advertising on clothing are banned. The ordinance evolved out of a city council race two years ago when some municipal employees were accused of unfair campaign practices. Violating the ordinance could result in disciplinary action as well as a fine of $500 or 60 days in jail.
The prohibition extends to all city buildings and city-owned property including city parks, unless a candidate is hosting a campaign rally.
While both the fire and police unions are unhappy about the law, neither plans court action to challenge the ordinance’s constitutionality.
In the March 2003 issue, Fire Service Labor Monthly erroneously
reported that Rochester, New York, was planning to take one engine out of
service at each of the city's four fire stations. The entry should have
referred to Dayton, Ohio, not Rochester. FSLM apologizes
for the error.
Julian was a 60-year-old fire fighter who had served the city since 1968. He became the district chief in 1984. Beginning in 1989, he had sought promotion to assistant fire chief five times. Each time the city denied him promotion. The position of assistant fire chief was an at-will rank that was appointed by the fire chief with the approval of the mayor and city council. The assistant fire chief served at the pleasure of the fire chief.
Believing that he had been discriminated against based on his race, Julian filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC). He was issued a right to sue letter and subsequently filed suit. In addition to alleging race discrimination, he also claimed that the city had discriminated against him on the basis of his age in violation of the Age Discrimination in Employment Act (ADEA).
Trial court ultimately dismissed all of Julian’s claims except the ADEA claim. That matter went to trial and the jury found that the city intentionally failed to promote Julian to the position of assistant chief on the basis of his age and awarded him nearly $110,000 in back pay and benefits. Trial court entered the judgment but refused Julian’s request for front pay. City appeals.
HELD: The city contends that the judgment should be set aside because Julian failed to obtain a right-to-sue notice from the EEOC prior to asserting his ADEA claim. A review of federal law reveals that the right to bring suit for race discrimination does not arise until the EEOC has issued a right-to- sue notice. However, the ADEA has no such requirement. Rather, the ADEA does prohibit an individual from filing suit until 60 days have lapsed after filing a claim with the EEOC. In Texas, the claim must then be filed within 300 days of the last act of discrimination. Julian’s efforts fell within the statutory time limits and as a consequence, the court did not err in considering his claim.
Julian objects to the refusal of the district court to award him front pay. A primary remedial purpose of the ADEA is to make the individual victim of discrimination whole. To accomplish this purpose, Congress gave courts broad authority to grant relief. Although reinstatement is the preferred equitable remedy for discriminatory discharge, the courts have held that front pay, money awarded for future lost compensation, is appropriate when reinstatement is not feasible. That determination came in cases involving discharges, however.
Such is not the case here, for this is a failure-to-promote case. The distinction requires a slight change in terminology. In a failure-to-promote case, the preferred remedy is instatement to an illegally denied position, not reinstatement. If instatement is not feasible, front pay is the appropriate award. The fact that the assistant chief position is an at-will one does not preclude the possibility of recovering front pay.
At-will status is merely a factor for the trial court to consider when determining whether a front pay award is equitably required and for what period of time. The court must employ intelligent guesswork to arrive at the best answer. Because a jury found the city denied Julian a promotion on the basis of age, the fact that calculating front pay will require some degree of speculation is a risk the city must bear as a proven discriminatory employer. Remanded for further proceedings on the question of front pay for fire fighter. [Julian v. City of Houston, Texas, 314 F.3d 721 (5th Cir. 2002)]
Louisville, Kentucky, fire fighters worked 24-hour shifts with 48 hours off before working another 24-hour day. As a result, in a given seven day week, a fire fighter will be on duty either 48 or 72 hours.
Under the collective bargaining agreement with the fire fighter union, work in excess of 40 hours was to be considered “scheduled overtime.” In addition to the scheduled overtime, a fire fighter would on occasion work additional overtime hours above his normal schedule. These were referred to as “unscheduled overtime.” The fire fighters were paid one and a half times their hourly rate of pay for overtime. However, the collective bargaining agreement failed to state the method by which the hourly rate of pay was to be calculated.
The city’s practice was to include various salary supplements, such as longevity pay and educational incentive pay, in calculating the fire fighters’ hourly overtime rate for unscheduled overtime, but not in the calculation for scheduled overtime. A group of active and retired fire fighters filed suit against the city alleging that this method of calculating overtime violated the federal Fair Labor Standards Act (FLSA). The city asserts that many of the claims were barred by the FLSA statute of limitation while the fire fighters seek a determination from the court for equitable tolling of the FLSA statute of limitations.
HELD: The FLSA provides that a suit must be commenced within two years after the cause of action accrues or is forever barred. If the employer has acted willfully in violation of the FLSA, however, the statute of limitation is extended to three years. Prior case law holds that a cause of action for overtime compensation accrues at the regular pay day immediately following the work period during which services were rendered and for which the overtime compensation is claimed. Fire fighters argue that the city’s violation of the FLSA constituted a continuing violation of the law precluding the application of any limitation period. However, prior law is clear. Each violation of the FLSA gives rise to a new cause of action and each failure to pay the overtime begins a new statute of limitations period as to that particular event. The courts have the power, however, from a sense of equity to rule that the statute of limitations has not expired despite the passage of the statutory time. This tolling of the statute of limitations is permitted if, despite all due diligence, the employee was unable to obtain vital information bearing on the existence of his claim.
The fire fighters seek to have the court suspend the statute of limitations. They argue that because of the complexity of calculating overtime and the confusing nature of pay stubs, they were unable to discover that the city was underpaying them. The fire fighters also argue that even if they had known the city was not paying them the correct rate for scheduled overtime, they were unaware the city was legally obligated to do so.
A review of the city pay stubs reveals that while, indeed, there is some confusion, a close examination of the stubs clearly delineates the base pay as well as the scheduled and unscheduled overtime pay. Thus, the fire fighters were put on constructive notice that they were receiving certain overtime pay on some weeks and not others. A simple comparison of pay stubs would allow a fire fighter to easily confirm this conclusion. While the calculations on the pay stubs are not simple, they are also not concealed. It is reasonable to require fire fighters to look at their pay stub received at the end of each pay period and determine what the various lines represent. Even if the correct payments could not be determined, such information posed a duty on the fire fighters to inquire about whether the city was underpaying them. Fire fighters have a variety of resources at their disposal, including supervisors, city officials, their union, and legal counsel hired by the union.
The next issue is whether the fire fighters were on constructive notice of their rights under the FLSA. The statute clearly states that the regular rate upon which overtime is calculated is to include all remuneration for employment unless specifically excluded. The statute’s language is not confusing or difficult to understand. Although the fire fighters may not have been aware of the statutory provision, such information was readily available had they only inquired. They were represented by a union. The union employed an attorney for contract negotiations, including wage and hour matters. These circumstances were enough to put the fire fighters on constructive notice of the city’s duty to pay them an overtime rate including the supplemental pay. Here, the fire fighters had failed to carry the burden of proof necessary to justify suspending the statute of limitations. Equitable tolling of the statute is inappropriate. The claims of all fire fighters who left employment with the city more than three years from the day they joined the suit are dismissed. [Hasken v. City of Louisville, Kentucky, 234 F. Supp.2d 688 (W.D. Ky. 2002)]
In 1993, the mayor promoted Kennedy to the position of fire lieutenant. The fire fighters’ union, to which Kennedy belonged, grieved the appointment, contending that it violated three provisions of the collective bargaining agreement. Specifically, the union argued that posting requirements, as well as other procedures concerning the filling of vacancies, had been violated.
The matter went before an arbitrator who produced an award in favor of the union on the grounds that the position was not vacant when Kennedy was appointed and that the city had ignored the contract’s posting requirement. As a remedy, the arbitrator ordered that Kennedy be returned to his fire fighter position. Trial court confirmed the award.
The city then commenced proceedings to remove Kennedy from his lieutenant position. After a hearing, the city demoted Kennedy to his original fire fighter position. Kennedy appealed the matter to the civil service commission, who reversed the demotion decision. The commission ruled that Kennedy’s appointment did not violate civil service law, and thus Kennedy could be removed from his position only for cause. The commission further concluded there was no cause for Kennedy’s removal because he was not bound by the arbitration decision, since he had not participated in it. City appeals.
Trial judge concluded that a showing of cause was not required for removal of someone from a position that had not been vacant at the time of their appointment. Fire fighter appeals.
HELD: Kennedy’s appointment to the position of lieutenant was clearly covered by civil service laws. Massachusetts statute specifies the manner in which promotions are to be made. The law presumes the existence of a vacancy in the position to which the appointment is made. An appointment is invalid if made to a position that is not vacant. State law does not define the word “vacancy,” but the procedure for determining whether a vacancy exists is a proper subject for collective bargaining.
Here, the parties have stated that arbitration was the agreed upon procedure for determining the existence of a vacancy. The award also stated that there was no such vacancy. Trial court confirmed that award. The award did not conflict with civil service law.
As prior case law has held, one who takes a civil service job knows, or should know that if he has been appointed to a position that was not vacant at the time of his appointment, he takes the job subject to an infirmity and will be unable to continue upon a final determination that no vacancy exists. This is particularly true of someone who is covered by the terms of a collective bargaining agreement containing the procedure for determining when a vacancy exists. Without a vacancy, the appointment was invalid. Because the appointment was invalid, no showing of cause was required to remove the fire fighter from a position he never should have held. Affirmed for city. [Mayor of Lawrence v. Kennedy, 781 N.E.2d 5 (Mass. App. Ct. 2003)]
Schurlknight worked as a fire fighter for more than 24 years. For most of his career, he held the position of captain, which required him to ride in the passenger seat of the fire truck only a few feet from the siren and air horn that sounded continuously on each call. In addition, the volume on the truck radio was turned up in order to be audible over the noise of the siren and horn.
In 1995, Schurlknight was given a hearing test by the fire department as part of a routine physical exam. The doctor found some noise-induced hearing loss, but concluded that the fire fighter was capable of performing his job. He received some follow-up evaluation of the hearing loss. The following year, the hearing loss on retest was found to have worsened. In August, 1997, Schurlknight left the fire department for reasons unrelated to his hearing loss.
In December, 1997, he had his hearing checked again and the doctor determined there had indeed been a substantial decrease in hearing since the original 1995 exam. In May, 1998, five months after his last hearing examination, Schurlknight filed a worker’s compensation claim for noise-induced hearing loss. An examiner found that the fire fighter knew he had a worker’s compensation claim for hearing loss in May 1995, and concluded that the May 1998 filing was outside the state two-year statute of limitations. Former fire fighter appealed and the intermediate appellate court affirmed the determination. Ex-fire fighter appeals.
HELD: Repetitive trauma injuries, unlike injuries that occur on a specific date, have a gradual onset caused by the cumulative effect of repetitive traumatic events or “mini accidents.” It is difficult to determine the date an accident occurred in a repetitive trauma case because there is no definite time of injury.
To require a worker to file a compensation claim upon the initial discovery of symptoms often works to the prejudice of the worker who may discover symptoms of a repetitive trauma injury but continues to work. Most courts that liberally construe worker’s compensation coverage have adopted the “last day of exposure” or the “last day worked” rule premised on the recognition that the injury is caused by trauma that occurs repeatedly until the particular employment ends. This approach is consistent with the policy of the State of South Carolina to liberally construe worker’s compensation in favor of coverage. It has the added advantage of fixing an outside date for filing that avoids the need to litigate the date of actual injury. Since Schurlknight’s last day of exposure - his last day of work - was August 1997, his claim filed in 1998 is well within the two-year statute of limitation. Case remanded for further proceeding. [Schurlknight v. City of North Charleston, 574 S.E.2d 194 (S.C. 2002)]
fire fighters and fire officers
Baltimore's two fire fighter unions recently approved two-year contracts with the city that contains a wage pass the first year while nearly tripling their health care costs. Members of the rank-and-file union, Local 734 of the International Association of Fire Fighters, AFL-CIO, and the officers' union, Local 964, passed the ratification by slim margins. A wage reopener is scheduled for the second year of the pact. Fire fighter contributions to health insurance premiums will jump from 5.8 percent to 15 percent, according to city officials a necessary step to stem escalating municipal healthcare costs. For the first time, fire fighters will also make a co-payment for visits to the doctor.
fire fighters
An arbitrator's ruling in a three-year contract dispute between the city and its police and firefighter unions has ordered across-the-board three percent annual raises for the uniformed employees, retroactive to July 1, 2000. Beginning April 1, 2003, union members will get a two percent pay increase, which will be repeated October 1. In 2004, they will receive a two percent pay hike April 1, followed by a 2.5 percent raise October 1. Officials estimated the retroactive increases and first round of new raises will cost the city $10.5 million in its current budget cycle, which ends June 30. Local 788 of the International Association of Fire Fighters, AFL-CIO, represents the 200 plus fire service personnel.
fire fighters
The 33 fire fighters in Shrewsbury have agreed to a three-year labor deal
that nets a 3.5 percent wage hike the first year, 3 percent the second year,
and another 3.5 percent boost in the final year. The union unsuccessfully
sought additional staffing as the number of fire fighters has not changed
in 30 years although the population has grown by 12,000 people. The contract,
which is retroactive to 2002, now pays a veteran fire fighter $43,788 annually
while a fire captain at the highest pay grade will earn about $8,000 more.