The case, Sutton v. United Airlines, Inc., concerned twin sisters with uncorrected visual acuity of 20/200 in one eye and 20/400 in the other. With corrective lenses they could see normally. The airline rejected their applications as commercial pilots because they did not meet the company's 20/100 vision requirement. The sisters sued claiming that the policy violated the ADA. Lower courts held that the sisters were not disabled within the meaning of the law; rather, they simply were unable to meet the qualifications of a particular job, global airline pilot.

Justice Sandra Day O'Connor, writing for the court's majority, concluded that determination of disability must be made after considering corrective measures, such as eyeglasses and medication. "ADA coverage is restricted to only those whose impairments are not mitigated by corrective measures," she wrote. "A `disability' exists only where an impairment `substantially limits' a major life activity, not where it `might,' `could,' or `would' be substantially limiting if mitigating measures were not taken." The justice noted that Congress made a specific finding that 43 million individuals were disabled. Yet, 100 million people have some level of vision impairment. Congress did not intend extension of the ADA to all persons with some level of physical or psychological impairment but only to those substantially disabled. 

In the opinion Justice O'Connor also

Police officer and fire fighter physical and mental requirements would now appear to be safe from legal attack under the ADA except by individuals whose severe disabilities are not appreciably reduced by medicine or other corrective devices. Only those persons will have legal standing under the ADA to challenge the requirements. Even in those cases, the employing agency still possesses the defense that a particular requirement is job-related. Justice O'Connor affirmed that, "The ADA allows employers to prefer some physical attributes over others and to establish physical criteria . . . . An employer is free to decide that physical characteristics or medical conditions that do not rise to the level of an impairment _ such as one's height, build, or singing voice _ are preferable to others, just as it is free to decide that some limiting, but not substantially limiting, impairments make individuals less than ideally suited for a job." 

In recent years, a flurry of ADA litigation has challenged public safety agency requirements regarding eyesight, hypertension, diabetes, and even the necessity of having two limbs - see last month's Police Labor Monthly regarding a suit against the Los Angeles Police Department by an applicant with only one leg. The ruling in Sutton would appear to resolve the legal questions raised in most of those suits.

In Alden, a group of probation officers had sought overtime compensation under the FLSA. They first sued in U.S. District Court but when, in 1996, the Supreme Court ruled that states enjoy sovereign immunity as to many acts of Congress, the case was refiled in state court. The state courts ruled that Maine was also immune from suit in that forum. On appeal, a five-justice Supreme Court majority ruled that sovereign immunity bars private FLSA lawsuits against states. Justices noted, however, that the immunity did not extend to local governmental entities. The court suggested that the federal government could pursue the overtime claim on behalf of the state probation officers. Critics of the decision such as Robert T. Scully, executive director of the National Association of Police Organizations, asserted that reliance upon the federal government to enforce individual FLSA claims is unrealistic. "To do that, they [the federal government] would have to hire hundreds of more lawyers," said Scully whose group had filed a friend-of-the-court brief supporting the probation officers' efforts. 

Legal scholars suggest that the Alden decision is the latest in a line of Supreme Court cases wherein a conservative majority has sought to reestablish the balance of power between the federal government and the states through the use of the Tenth and Eleventh Amendments. In the short run, the decision would seem to indicate that sex and race discrimination claims against state governments will have to be pursued by the EEOC or DOJ, rather than individuals. Over the long term, some scholars see the case as inevitably leading to the implementation of broader restrictions on the power of Congress to enact legislation affecting state and local governments. If the decision is taken to its logical extreme, proposals for a public safety officer's bill of rights, a national public employee bargaining law, and extension of occupational safety laws to public entities may be viewed as beyond the power of Congress. 

The ruling was a political victory for Johnson, a Republican, who several times rejected efforts by Democratic members of the state legislature to give new life to the 1992 public employee bargaining law. When enacted the statute, which obligated state and local governments to

Without the law New Mexico returns to permissive bargaining. Governmental entities will no longer be legally obligated to bargain nor to provide union dues check-off. However, the old law

The ruling stems from Section 159 of the 1935 National Labor Relations Act (NLRA) that prohibits certification of a bargaining unit composed of privately employed guards which are affiliated "directly or indirectly with an organization which admits to membership employees other than guards." Congress devised the section of the law to arrest possible conflicts of interest if privately employed officers were called upon to police picket lines of fellow union members. 

The NLRA does not cover public employees and North Carolina prohibits government workers from collectively bargaining. Duke University, however, is a private institution and as such its employees enjoy federal labor law protection. 

IUPA and DPOA lawyers announced plans to appeal the decision to the full NLRB on the grounds that the officers' relationship with the AFL-CIO is remote at best. Presumably, if the Duke officers formed an independent union, they could force the university to bargain.

In a lawsuit filed in Hackensack, New Jersey, the Port Authority Police Benevolent Association (PAPBA) has accused the Port Authority of New York and New Jersey of violating its labor agreement by hiring doormen instead of

Meanwhile, the Seattle police union has lodged a complaint over the city's fire department forming a dive team. One week after the fire department started a dive-rescue unit, the Seattle Police Guild filed an unfair labor practice complaint with the Washington Public Employment Relations Commission claiming it has exclusive work jurisdiction over water rescues and body recoveries

The fire department started the dive team in an effort to reduce the 15-minute average response time of the police team. Apparently, attempts by police and fire officials to establish protocols prior to implementation of the fire fighter crews proved unsuccessful. The 9 police department divers responded to 170 calls last year, including recovery of 18 bodies. The fire department plan would utilize 26 fire fighters whose primary mission would be water rescues, not body or evidence recovery.

As of yet, neither of the complaints has been resolved. The decisions will likely turn on the interpretaion of the respective contracts.

Supreme Court update

Christensen raises the question of whether a public employer can control when a deputy sheriff uses accumulated compensatory time. The Court of Appeals for the Fifth Circuit ruled that the employer could require the deputy to use his compensatory time. Another federal appeals court in an earlier case held that once earned the time belongs to the employee and the employee generally controls when to use compensatory time. When the court reconvenes October 4, it may choose to hear both, either, or neither of the cases. 

Meanwhile, petitions for review were filed in two other cases of interest. These matters also will have to wait until the court's next term. City of Newark, New Jersey v. Fraternal Order of Police,

In Franklin v. City of Birmingham, Alabama, No. 98-1963, a former police officer is alleging that he was discharged based on the race of an alleged associate. The ex-officer wants the high court to rule that his dismissal violates his First Amendment freedom of association. 

Cases of interest

HELD: The FLSA requires employers to

HELD: Graning argues that her First Amendment rights were violated because she was fired for supporting the other candidate in the 1994 election. The county claims she was fired for breaching the department's confidentiality policy. A state employee's right to freedom of political affiliation is protected under the First Amendment. With the exception of those in policymaking positions, state employees may not be discriminated against because of their political affiliation. To establish a presumptive case of discrimination, an employee must show that she participated in a protected activity, that adverse employment action was taken against her, and that there was a causal connection between the protected activity and the

HELD: The issue of whether an individual is classified as a "volunteer" or an "employee" is a question of law for determination by the court. The FLSA specifically excludes from the definition of "employee" any individual who volunteers to perform services for a public agency, if the individual receives no compensation or is paid expenses, reasonable benefits, or a nominal fee to perform services for which the individual volunteered. Department of Labor regulations define "volunteer" as an individual who performs hours of service for a public agency for civic, charitable, or humanitarian reasons without promise, expectations or receipt of compensation for services rendered. Clearly, Congress did not intend that the minimum wage provision of the FLSA have the undesired effect of discouraging volunteerism. However, if the regulatory definition of volunteer is read strictly, it would apply only to individuals who work for civic, charitable, or humanitarian reasons. In the instant case, the officers worked primarily in order to be able to work the paid private details. Certainly, that motivation is not encompassed within the meanings of "civic, charitable, or humanitarian" reasons. The court concludes, however, that this definition must be applied in a common sense way to achieve the goal of the FLSA. The regulation should be read with the additional phrase "at least in part." The volunteer exemption is not limited solely to those who work for civic, charitable, or humanitarian purposes. When the SLEOs volunteered to work for the township, they did so partially for altruistic reasons as well as their hope of being able to be paid on private details. This benefit was not in any way guaranteed and was subject to the needs of the outside private entities who required security services. The SLEOs likewise fell behind regular police officers who had priority in accepting the details. While the private paid details may have benefited the SLEOs, there was not corresponding

HELD: The "regular rate" is defined as "all remuneration for employment paid to, or on behalf of, the employee." The definition has been construed to mean the hourly rate actually paid the employee for the normal, non-overtime workweek for which s/he is employed. In determining the "regular rate," the court's focus should be on ensuring that employees are getting the full compensation called for under the FLSA. The key point in calculating the regular rate of an employee's compensation is whether it is compensation for work performed during that workweek. The first contested element in this case is whether a monthly payment made by the city in lieu of increased contributions to insurance should be added as part of the regular rate. This payment is a fixed amount set forth in the collective bargaining agreement between the police officers' union and the city. The amount of cash paid to each officer in lieu of

HELD: McCloud contends that the hearing board lacked authority to modify its decision once he had filed his petition for administrative review. Specifically, he argues that under Illinois law the board lost jurisdiction. A review of statutes and case law reveals little guidance on the question of whether an administrative agency may modify a decision after jurisdiction for review has vested in the trial court. Analogous case law, however, provides that a trial court has inherent authority to enter an order at any time to correct clerical errors or matters of form in a prior order to ensure that the record conforms to the judgment rendered by the court. A court's inherent power to correct the record is to ensure justice and to make the record speak the truth. There is no reason why an administrative board should not possess similar abilities to modify clerical errors and decisions it has already rendered. McCloud further argues that the evidence is insufficient to support his termination. A reviewing court considers an administrative board's findings of fact to be prima facie true and correct. A proper inquiry on review is whether the board's findings are contrary to the manifest weight of the evidence. The board's findings will be deemed contrary to the manifest weight of the evidence only where the opposite conclusion is clearly apparent. Here, there is sufficient evidence, as well as reasonable inferences from the evidence, to conclude that McCloud violated the various rules charged. An opposite conclusion is clearly not apparent. The former officer also argues that there is not sufficient cause for his discharge. When faced with a challenge of a board's decision to discharge an officer, the court must determine whether the board's findings provide a sufficient basis for a finding of cause to discharge. Cause is some substantial shortcoming that renders

HELD: In Pennsylvania, in order to recover worker's compensation benefits for a psychic injury, the claimant must prove by objective evidence that he suffered a psychic injury and that such injury is other than a subjective reaction to normal working conditions. The rationale for requiring a showing of abnormal working conditions is to establish the causal connection between a psychic injury and the employment. The focus must be on the stimulus underlying the claimant's reaction. In the present case the investigation and trial were the stimulus for the psychic injury. Being indicted in a homicide case is certainly traumatic, but is at best tangentially related to a police officer's employment. Neither negative publicity nor the arrest and trial are working conditions. Criminal litigation as well as civil litigation is not directly related to a police officer's employment. Denial of psychic injury benefits affirmed. [City of Philadelphia v. Worker's Compensation Appeal Board (Brasten), 728 A.2d 938 (Pa. 1999)]

HELD: Under the South Carolina Constitution, the circuit court has general original jurisdiction in civil and criminal cases and appellate jurisdiction "as provided by law." In this case it must be determined whether appellate jurisdiction has been provided by law to the circuit court. The County and Municipal Employee's Grievance Procedure Act does not contain a provision granting judicial review of an employee's termination. Thus, this act cannot be viewed as granting jurisdiction to the circuit court over this matter. Additionally, the South Carolina Administrative Procedures Act applies only to state agencies. Clearly, neither the city nor the grievance committee falls within the definition within the statute. A writ of certiorari is an extraordinary form of relief that generally is used only in absence of other effective relief. However, a breach of contract or wrongful discharge claim could be pursued in this case. The availability of the breach of contract and wrongful discharge action renders unavailable the certiorari review exercised by the trial court in this case. Circuit court lacks subject matter jurisdiction over the action. Any such judicial review of Rowe's termination should have been brought as a wrongful discharge or breach of contract suit. [Rowe v. City of West Columbia, 513 S.E.2d 379 (S.C. App. 1999)]

HELD: The appearance of fairness doctrine is statutory in the State of Washington. State law provides that during the pendency of any quasi-judicial proceeding, no member of a decision making body may engage in ex parte communications with opponents or proponents with respect to the proposal, except under very limited circumstances. The appearance of fairness doctrine protects public confidence in quasi-judicial proceedings. The test is would a disinterested person, having been apprised of the totality of a commissioner's personal interest in the matter being acted upon, be reasonably justified in thinking that partiality may exist? Bunko bases his appearance of fairness challenge on the three commissioners' spontaneous, innocuous conversations with the

HELD: The retirees first contend that because retirees are not part of the bargaining unit that the labor union could not lawfully negotiate a change in retiree benefits. Prior case law stands for the proposition that a union has no duty to represent retirees but that retirees are free to make the union their agent if they so choose. There is no requirement in Wisconsin that retired employees be represented in collective negotiations. Here, the retirees did not affirmatively agree to have the union represent them, but they accepted the terms of the various collective bargaining agreements negotiated by the union after their retirement, and this acceptance implied that they consented to give the union negotiating authority on their behalf. Next, the retirees assert that they are entitled to the health care benefits in effect at the time each retired. The retirees operated under various collective bargaining agreements that contained provisions that did change over the years. Further, each contract expired after a limited amount of time, generally two years. None of the contracts specifically provided continuation of health care benefits beyond the term of the agreement. In fact, for a significant period of time the contracts specifically provided that health insurance premiums paid by the retirees was a negotiable item beyond the expiration of the agreement. The general rule is that entitlements established by collective bargaining agreements do not survive their expiration or modification. Because none of the labor contracts specifically provided for the vesting of health care benefits and none of the contracts provided that the same level of benefits would continue until the death of the retiree, the retirees have no vested interest in a lifetime insurance benefit. Trial court properly granted summary judgment for the city. [Roth v. City of Glendale, 593 N.W.2d 62 (Wis. App. 1999)]