June 2003
DOL proposal could hit fire fighter FLSA rights hard
The U.S. Department of Labor (DOL) recently unveiled proposed regulations
that labor leaders claim would fundamentally alter overtime rights of workers,
including fire fighters and police officers. While touted as ensuring
wage and hour protection for lower wage earners, many higher paid personnel
would become exempt from overtime eligibility under the Fair Labor Standards
Act (FLSA).
Under the proposed guidelines, DOL is seeking to alter the definition of
“white collar” employees. Workers earning less than $22,100 would automatically
qualify for overtime compensation irrespective of the type of work they perform.
The current threshold is $8,060. But, workers who perform office or
non-manual work and draw gross compensation of $65,000 or more annually would
be excluded from overtime requirements! Absent existence of a labor
contract, a municipal employer would be under no obligation to pay time and
one-half to fire fighters and police officers assigned to office positions
and whose annual wages exceed the threshold. Further, a first-line
supervisor who earns over $65,000 would be presumed to be an exempt employee.
Under current law, the “executive, administrative, and professional” exemption,
as it is known, excludes from FLSA overtime rules salaried individuals who
spend substantial portions of their time on the internal management of an
organization. Under the proposal, an employer could invoke the administrative
exemption if any of the employee’s duties are administrative in nature.
Thus, a fire prevention inspector who spends a portion of his time doing
administrative paperwork might fall within the administrative exemption.
Michael Leibig, a labor lawyer who has handled many public and private sector
FLSA suits, expressed concern that the new rules would undermine the value
of over 15 years of legal precedent interpreting the application of the FLSA
to public safety workers.
DOL, to which Congress delegated the authority to issue interpretative regulations
for the FLSA, is accepting written comments on the proposed changes until
June 30. The complete text of the proposal can be found on the Internet
at www.gpoaccess.gov/fr/index.html and searching “page 15560” (be sure to
include quotation marks around the search item) or in the current volume
of the Federal Register beginning on page 15560.
Any changes would not be expected to go into effect until next year.
Under federal administrative procedures, any new regulations will have the
force of law unless overturned by Congress.
Court okays regulation of phone solicitors - sort of
In a rare unanimous decision, justices of the U.S. Supreme Court ruled May
5 that the First Amendment does not prevent a state from suing professional
charitable solicitors for fraud if they “make false or misleading representations
designed to deceive donors about how their donations will be used.”
However, the opinion, authored by Justice Ruth Bader Ginsburg, reaffirms
prior case law holding that the fact a professional solicitor garners a high
percentage of the donations is not sufficient grounds to conclude that consumer
fraud has occurred.
The case, Madigan v. Telemarketing Associates, Inc., No. 01-1806, involves
the efforts of the Illinois Attorney General to sue the firm for fraud.
Telemarketing Associates contracted with a non-profit military veterans’
group, Vietnow, to raise funds. The fundraising company was to receive
80 percent of the gross receipts it obtained on behalf of the charity.
Through telephone solicitations the company raised about $7.1 million, keeping
just over $6 million. The Illinois Attorney General sued the firm for
fraud and breach of fiduciary duty on the grounds that its fee was excessive
and not justified by expenses. Employees of the firm were also alleged
to have lied to prospective donors by telling them that over 90 percent of
the contributions would go to help Vietnam War veterans. Illinois courts
dismissed the case on the grounds that prior Supreme Court decisions held
that efforts to regulate solicitors constituted an unconstitutional prior
restraint on free speech protected by the First Amendment.
Justice Ginsburg noted that high fundraising costs and failure to volunteer
the fundraiser’s fee when contacting a potential donor are insufficient to
establish fraud. However, “the First Amendment leaves room for a fraud
claim” when deceptive statements are made that are designed to intentionally
mislead the would-be donor. Further, the state must establish its fraud
case by “clear and convincing evidence,” a standard of proof much higher
than the normal civil suit requirement of preponderance of evidence.
Many public safety labor organizations contract with for-profit companies
to raise funds for association activities. Critics accuse these solicitors,
who often conduct their business over the telephone, of falsely telling potential
donors how contributions will be used. Additionally, solicitors often
keep a very high percentage of the funds received, leaving the labor group
with only a few cents out of each dollar raised in its name. Several
states have attempted to regulate such solicitations through registration
and disclosure requirements. Justice Ginsburg’s opinion implicitly
approves such efforts but notes that the Supreme Court has previously ruled
that legislative attempts to cap the percentage of funds that can be retained
by a professional fundraiser conflict with the First Amendment and are thereby
unconstitutional.
The Madigan decision does not touch upon the fraud liability, if any, of
the not-for-profit organization that hires unscrupulous fundraisers.
Oregon city fined in death of fire fighters
Oregon state investigators have cited the City of Coos Bay for 16 safety
violations carrying fines of more than $50,000 related to a fire that killed
three fire fighters. However, investigators said the alleged
violations were not directly responsible for the men’s deaths. Citations
included a breakdown in the command structure and communications at the fire,
failing to station fully equipped fire fighters outside the burning building
to rescue fire fighters inside, and failure to properly maintain breathing
gear and show that fire fighters could use it properly.
Oregon Occupational Safety and Health Division (OOSHD) Administrator Peter
DeLuca said he hoped the investigation would lead to safer working conditions
for fire fighters across the state and country. “If we do not learn,
the tragic significance is that much greater,” DeLuca said.
Patrick West, President of the Oregon State Fire Fighters Council, disagreed
with the findings. West said the breakdown in command structure and failure
to follow standard procedures were a factor in the fire fighters’ deaths.
“From the start, it has been clear to us that the management of the fire
department and a clear lack of command at the fire aided in the deaths of
three fire fighters on that fateful afternoon,” said West. “These feelings
have certainly been substantiated by the full investigation conducted by
Oregon OSHA.”
Coos Bay Fire Department Lieutenant Randall Carpenter, 46, and volunteer
fire fighters Jeffery Common, 30, and Chuck Hanners, 33, were killed November
25 while fighting a fire at an automobile supply company. The fire
burned unseen for hours, weakening the roof, which collapsed on the fire
fighters soon after they entered the structure.
The State Fire Marshal’s Office traced the cause of the fire to heat from
the chimney of an oven used to burn grease from parts in a machine shop within
the building. Two men are awaiting trial on charges of negligent homicide
connected to installation of the oven.
OOSHD cited the city for failing to follow incident management standards
set by the National Fire Protection Association. Those included a breakdown
in communications between fire commanders and fire fighters, failure to set
up a team to rescue fire fighters inside the building, and a delay in naming
a safety officer. A citation for failing to station two fully equipped
rescuers outside the building and another for having no standard system for
keeping track of personnel at the fire each carry a fine of $5,000.
Records were also lacking showing that fire fighters could demonstrate they
knew how to use breathing equipment. Fire fighters were not tested
annually on operating their respirators or to be sure they had tight-fitting
face masks. One fire fighter went onto the burning roof without a respirator.
Breathing equipment was not inspected daily, and repairs and maintenance
were not done according to manufacturer recommendations, the investigation
found. The citations carry fines totaling $50,450.
Randy Miles, President of Local 2935 of the International Association of
Fire Fighters, AFL-CIO, agreed with the state’s conclusion that the safety
violations were not responsible for the deaths. “Even if none of these
violations ever happened, those guys would still be gone,” he said.
“They’re going to correct it. I have 100 percent confidence in that.”
Oregon is one of 24 states that require local governmental entities to
comply with occupational safety and health standards. Federal health
and safety law excludes state and local governments from coverage.
Labor Lexicon
CPI
Consumer Price Index issued monthly by the Bureau of Labor Statistics.
The CPI program produces monthly data on changes in the prices paid by
urban consumers for a representative basket of goods and services. It is
commonly used as a measure of the cost of living (inflation).
Litigation
Overtime
The fire department employed three battalion chiefs. The chiefs were
responsible for oversight of the suppression efforts of the fire department.
When a major fire erupted, a battalion chief went to the scene and served
as incident commander. The battalion chiefs worked 24-hour shifts with
48 hours off after each shift, for an average workweek of 53 hours.
They were paid a pre-determined amount every two weeks despite the fact that
during some two-week periods, they worked nine tours and in others, they
worked ten. The battalion chiefs were also covered by the collective
bargaining agreement between the union and the county. The county treated
the battalion chiefs as exempt employees for the purposes of the federal
Fair Labor Standards Act (FLSA) and did not pay them overtime compensation.
Three battalion chiefs sued the county contending that they were not exempt
employees under the FLSA and that they had been retaliated against for pursuing
their FLSA rights. The county moves for summary judgment.
HELD: The FLSA generally requires an employee be paid time and one-half
for work over a specified number of hours per work period. The law,
however, exempts from that requirement any employee employed in a bona fide
executive, administrative, or professional capacity. The county argues
that the battalion chiefs qualify for exempt status because they are bona
fide executive and/or administrative employees.
The FLSA regulations provide a short test and a long test for determining
exemptions. In this case, the so-called short test is applicable.
Under the short test, the employee is classified as a bona fide executive
employee if: (1) he is paid on a salary basis, and, (2) the employee’s primary
duty consists of management of the enterprise in which he is employed, and
includes the direction of the work of two or more other employees.
To be classified as a bona fide administrative employee, the short test likewise
requires the employee be paid on a salary basis, but further requires that
the employee’s primary duty consists of the performance of office or non-manual
work directly related to management policies of his employer. The administrative
employee’s work must include the exercise of discretion and independent judgment.
Here, the battalion chiefs argue that they do not fall within the mandate
of being salaried employees. A salary basis means that an employee
receives a pre-determined amount of compensation that is not subject to reduction
based on the quantity or quality of the work performed. The battalion
chiefs argue that because they are subject to suspension without pay for
periods of less than one week pursuant to the collective bargaining agreement,
their salary is indeed subject to reduction because of variations in the
quality and quantity of the work performed. To be successful in this
claim, however, the plaintiffs must establish either an actual practice of
such deductions being made by the employer or a policy that creates a significant
likelihood of such reductions.
Here, the battalion chiefs presented evidence of only one case where an individual
who was not one of the plaintiffs in the case was suspended without pay for
16 hours for use of profanity. None of the current plaintiffs have
ever been personally suspended or had their pay docked.
Prior case law holds that a non-plaintiff’s disciplinary suspension without
pay is not sufficient to invalidate the salary basis test. Plaintiffs
have failed to demonstrate that the county has an actual practice of salary
reductions of battalion chiefs.
The evidence further shows that the primary goal of the position of the battalion
chief is to supervise the day-to-day operations of suppression personnel.
They serve as incident commanders and make strategic decisions at fire scenes.
They have discretionary responsibility to respond to any scene that sounds
like it’s not being managed well. Further, they prepare annual performance
evaluations of the subordinate lieutenants on each of their shifts.
They have the authority to administer verbal and written reprimands without
the fire chief’s approval and provide input to the fire chief on hiring,
promotion, and termination questions. The battalion chiefs clearly
fit within the requirement of being executive employees.
They also fit the test of being administrative employees. The record
clearly demonstrates that the battalion chiefs’ primary responsibilities
require the exercise of discretion and judgment. The fact that their
decisions may be subject to review by the fire chief and that, on occasion,
the decisions are reversed does not mean that the employee is not exercising
discretion and independent judgment for the purposes of the FLSA. While
they must respond to major fires, they do not actually fight fires themselves.
Nor are they assigned manual tasks around the fire station. They are
responsible for handling interoffice paperwork, however, as well as making
decisions concerning manning issues on each shift. They take employee
complaints and conduct personnel investigations.
The county has satisfied the burden of showing that the battalion chiefs
are paid on a salary basis and qualify as administrative as well as executive
employees. They are, therefore, exempt from the overtime provisions
of the FLSA.
Additionally, the battalion chiefs claim they were the subjects of retaliation
for raising their FLSA claims. The FLSA does declare it unlawful to
discriminate against any employee who files a complaint or initiates proceedings
in an effort to exercise FLSA rights. In this case, one of the complainants
filed a request for overtime after attending a staff meeting while off duty
and for working on his day off. The fire chief denied both requests
and the battalion chief filed a grievance, which was subsequently denied.
The battalion chiefs alleged that as a result of this grievance, the county
reduced their sick leave buy-back compensation and altered the terms of their
employment by suspending their voice mail capabilities and replacing their
sport utility vehicles with pick-up trucks.
The record reflects, however, that the change in sick leave buy-back was
made by the county human resources manager because he had been incorrectly
calculating the battalion chiefs’ pay based on a 40-hour week instead of
a 53-hour week timeframe. Likewise, the suspension of voice mail capabilities
was made by another county official who was concerned about the leaking of
confidential information to the media. In fact, everyone’s voice mail
feature, including the fire chief’s, was suspended during this period of
time. Finally, the decision to replace the sports utility vehicle with
a pick-up was made by an official outside of the fire department and was
not made until two years after the original filing of the request for overtime.
The battalion chiefs’ evidence is insufficient to deny the county a motion
for summary judgment in the case. Held for county. [Debrecht
v. Osceola County, Florida, 243 F. Supp.2d 1364 (M.D. Fla. 2003)]
Arbitrator's authority
Under Texas law, a police officer or fire fighter in a city that has adopted
civil service may appeal a disciplinary suspension either to the local civil
service commission or to a hearing examiner. If the officer chooses
the civil service commission, the officer may appeal that body’s determination
to a trial court. However, if the officer chooses to use a hearing
examiner, the examiner’s decision is final, with no right of appeal unless
the examiner exceeded his authority or if there was fraud or other unlawful
means involved.
Byrd was indefinitely suspended by the chief of police for violating department
rules. He chose to appeal his suspension to a hearing examiner.
Under state law, the city and the officer selected the examiner by alternately
striking names off a list of suggested examiners until only one was left.
In this case, however, the city refused to participate in the hearing and
instead filed suit seeking a court order declaring the hearing examiner option
contrary to the Texas Constitution. Specifically, the city argued that
the statute creating the hearing examiner constituted an impermissible delegation
of legislative power to a private party contrary to Texas Constitution.
Trial court ruled that the law was constitutional and city appeals.
HELD: The Texas Constitution vests the state’s legislative power in
the state Senate and House of Representatives. Thus, the city claims
that the hearing examiner law violates this provision. The police officer,
on the other hand, contends that the hearing examiner is more judicial in
nature than legislative, and, therefore, the provision of the constitution
does not apply.
A look at the civil service statute reveals that the legislature has delegated
to municipalities and their civil service commission the authority to proscribe
rules for the removal and suspension of police officers and fire fighters.
The law further grants the commission the authority to determine whether
or not such rules have been violated. This finding is reached as the
result of a hearing. Legislature has also provided that a police officer
may choose to have the matter resolved by the private hearing examiner who,
by statute, steps into the shoes of the civil service commission with the
same power. It appears that the power delegated to the civil service
commission, and as a consequence to the private hearing examiner, is in fact
more legislative than judicial.
Prior Texas law sets forth a series of factors to determine whether the delegation
of legislative power is constitutional. Among the factors is whether
the delegation is subject to meaningful review by another branch of government,
whether the delegation is limited to making rules, whether the delegation
is narrow in scope, and whether there are sufficient standards to guide the
private delegate in his work. Here, the statute easily tips in favor
of constitutional delegation. The hearing examiner’s decisions are
reviewable in court for any abuse of power. Additionally, while the
affected officer can only appeal a civil service commission ruling, both
parties can seek judicial review of the improper use of authority by the
hearing examiner.
Legislation also provides guidelines for the hearing examiner by requiring
the hearing be conducted fairly and impartially and the decisions to be just
and fair and based solely on the evidence. There are also other procedural
safeguards set forth by statute. Thus, the delegation of authority
to the civil service commission and/or the hearing examiner to review police
and fire discipline is sufficiently limited and guided by legislation to
pass constitutional muster. State statute providing for hearing examiners
on disciplinary appeals is constitutional. [City of Garland v. Byrd,
97 S.W.3d 601 (Tex. App. 2002)]
Dismissal procedures
Perales was a city fire fighter who was arrested on two different occasions
for public intoxication and driving while intoxicated. He subsequently
pled guilty to both offenses. He submitted a letter of resignation
from the fire department.
Two days after submitting his resignation, he attempted to retract it.
The fire chief, however, informed Perales that his resignation had been accepted
and it was non-revocable. Perales then filed a notice of appeal with
the civil service commission. The civil service commission did not
respond to his request for an appeal hearing. When the civil service
commission refused to respond, Perales filed suit seeking a declaratory judgment
and a writ of mandamus to order the civil service commission to hear his
appeal.
The city countered that the trial court lacked jurisdiction to consider
the case. Trial court rejected that argument and city files an expedited
appeal on the question of whether the court has jurisdiction over the fire
fighter’s efforts to obtain a civil service hearing.
HELD: A plea to jurisdiction of a court is an effort to defeat a
cause of action without regard to whether the claims asserted have merit.
Here, Perales seeks a writ of mandamus to order the civil service commission
to hear his appeal. He claims he was forced to resign and that the
civil service commission is violating Texas statute by failing to consider
his appeal.
A review of Texas law, however, reveals that under the state civil service
act the commission only has jurisdiction to hear appeals from promotional
passovers, disciplinary suspensions, and demotions. Because Perales
was neither passed on a promotion, suspended, or demoted, the commission
had no obligation to hold a hearing and review his resignation. Since
the commission cannot lawfully hold a hearing, the court lacks jurisdiction
to order it to hold such a hearing. Trial court erred in denying the
city’s motion to dismiss. Reversed for city with instructions to dismiss
the case. [Cantu v. Perales, 97 S.W.3d 861 (Tex. App. 2003)]
Settlements
Fairfax County, Virginia
fire fighters
Fairfax County Board of Supervisors has adopted a budget accepting a union
proposal to save more than $7 million over the next four years. Public
safety unions offered to take only a 2.1 percent cost-of-living wage hike,
one-half a percent less than originally scheduled, in an effort to keep the
county finances in order. Personnel will continue to be eligible for merit
increases. Local 2068 of the International Association of Fire Fighters,
AFL-CIO, led the effort to put together the proposal to assist the county
in balancing its budget. The Fairfax Coalition of Police and the Fairfax
County Deputy Sheriffs Coalition joined in the cost-cutting effort. The
Board of Supervisors has agreed to conduct a wage survey to determine how
well its employees fare within the region.
Hartford, Connecticut
fire fighters
A contract revision altering fire fighter work schedules is expected to
save the City of Hartford several hundred thousand dollars. Under an agreement
reached with Local 760 of the International Association of Fire Fighters,
AFL-CIO, fire fighters will abandon the current work schedule of three 10-hour
days, three days off, and three 14-hour nights and replace it with a 24-hour
shift followed by 72 hours off. The city expects to save $600,000 in overtime
costs with the change while the fire fighters will receive longer strings
of off days. To help the financially-strapped city, the union also agreed
to give up a two percent cost-of-living raise and to allow 21 jobs be eliminated
through attrition.