Q & A

From Massachusetts

Question: The department disciplined an officer for speeding during a call response. The officer filed a grievance on the issue and a hearing was set up outside of the officer’s normal work hours, which put him into what would have been time paid as overtime had he been working a shift or staying to do a report. The Chief is refusing to pay the officer the overtime, as he says the officer didn’t need to attend the hearing, and it isn’t working anyway. Is there anything in the FLSA covering this?

Answer: The Department of Labor has taken the position that “processing grievances” in a union setting is not hours worked under the FLSA.

From Washington

Question: If there is nothing in our current contract about working out of classification as a supervisor, what constitutes the time he works until he is paid for the out of class time, or is there out of class pay if it is not in our contract?

Answer: If there is nothing in your contract on out-of-classification pay, then if there is a consistent past practice in the area, that will control. In the absence of a consistent past practice, the employer likely will be able to do whatever it wants.

From Indiana

Question: I work as a professional firefighter working 24-hour shifts and I’m also employed part time. I am currently on light-duty status, where according to our Department’s rule book I must work Monday through Friday, straight eight-hour days. The Department is also restricting me from working part time. My part-time job would place me at a desk with no physical activity and would not interfere with my light-duty status. Is my Department in the right?

Answer: In the absence of a union contract to the contrary, it is generally thought that an employer has broad latitude to control an employee’s off-duty jobs. Particularly given your light-duty status, we think it likely that your employer’s rules would be upheld.

From California

Question: Is it legal for a city to impose a residency requirement for fire department personnel and not any other department employee within that same city?

Answer: Assuming that the employer has met all of its bargaining obligations over the issue – and the issue of a residency requirement is widely considered to be mandatory for collective bargaining – we see nothing unconstitutional about applying a residency rule to only one set of employees provided the employer can offer a plausible rationale for doing so.

From California

Question: Recently one of our firefighters was rude to another city worker. Upon learning of the incident, his Captain pulled him into the office, discussed why the behavior was unacceptable, and then issued an oral reprimand to the firefighter. A week later, the Battalion Chief learned of the incident and decided that a written reprimand was more in order and issued one to the employee. At what point is an employee’s punishment case “closed”? In other words, does a protection exist preventing the employee from being punished twice for the same incident? Our Battalion Chief claims that he was unaware of the incident earlier and that the Captain should not have issued the lesser punishment.

Answer: The answer will likely depend upon how discipline is appealed. If you appeal to arbitration, an arbitrator might well find that the second punishment would be impermissible “double jeopardy” that would violate the principles of just cause. If discipline is appealed somewhere else (a court, for example, or a civil service board), the doctrine of double jeopardy would be much less accepted. It seems to us that the employer’s solution here is not to impose a higher level of discipline, but either to (1) better train captains in the employer’s standards for discipline; or (2) remove the ability of captains to impose oral reprimands.

This article appears in the April 2006 issue