Q & A

From Illinois

Question: Our department just imposed a mandatory two traffic stops a day on all patrol deputies and patrol sergeants. This directive has been titled Traffic Safety Initiative. The two traffic contacts, as they are called, will be defined by the submission of the racial profile form as well as a citation or written warning. Is this just a fancy way of having a traffic quota system?

Answer: This sounds like a quota to us. Some states have laws prohibiting the issuance of ticket quotas. You should definitely check whether Illinois is one of those states. Also, on the few occasions on which it has arisen, quotas have been held to be a mandatory subject for collective bargaining.

From California

Question: If a person is told that they were number one on a promotional exam, but were not going to be promoted due to sick leave usage, is that a violation? We accrue sick leave as a monthly benefit under our MOU.

Answer: The general rule is that, absent a provision in a memorandum of understanding or collective bargaining agreement to the contrary, an employer is allowed to take sick leave use into consideration in making promotional decisions. The employer’s consideration of sick leave, of course, must comport with the Americans With Disabilities Act, which requires that such a consideration be “job related and consistent with business necessity.”

From Wisconsin

Question: I recently had my third child. We are allowed to carry ten days of comp time and have been able to use that towards pay supplementation while on Family Leave. I used comp time for my first two children and now the Department says comp time cannot be used to supplement pay under Family Leave. I am the first officer that this is affecting. Two questions…Can they not allow comp time to be a benefit used to supplement pay? Can they refuse to allow me to cash out my 80 hours of earned comp time (thinking that I would just take unpaid FMLA and then cash out some comp pay)?

Answer: We see several things wrong with the employer’s position here. First, you indicate that you work for an employer that collectively bargains. Issues concerning family leave and compensatory time off are fairly universally treated as mandatory subjects for collective bargaining. As such, a change in practice could not occur without the employer first bargaining over the issue.

Moreover, we think it pretty clear that the employee has the right to “substitute” (in the lingo of the law) compensatory time off for unpaid family leave under the FMLA. Finally, if the compensatory time off was earned under the Fair Labor Standards Act in lieu of cash compensation for overtime, we doubt that an employer could restrict the use of comp time in the manner you describe without violating the FLSA as well.

This article appears in the May 2007 issue