Q & A

From Florida

Question: Can a subject of an internal affairs investigation claim spousal privilege and refuse to answer an investigator’s questions during a compelled statement?

Answer: As a general rule, the spousal privilege is an evidentiary rule. If that’s the case in Florida, that likely would not allow an employee to claim the spousal privilege rule in the internal affairs process since the process does not involve court proceedings. There might be some sort of privacy rights at issue, but no spousal privilege. The spousal privileges and other privileges are creatures of local law, with the scope and applicability of the privilege usually set by a combination of court decisions and statutes. This is peculiarly an area where you should consult with a local lawyer.

From Illinois

Question: Our department recently changed the policy of calling in sick. Before, you could just call in and tell dispatch that you are sick and they will notify the watch you are scheduled to work. Now, you must talk to a supervisor, state what kind of ailment you have, and when you anticipate returning to work. Do they have a right to ask what your sickness is, or is this a violation of HIPAA?

Answer: There are a couple of cases we’d urge your department and labor organization to consider. Here is a summary of them:

Sick Leave Use: Transport Workers Union of America v. New York City Transit Authority, 341 F.Supp.2d 432 (S.D.N.Y. 2004). Under the Americans With Disabilities Act, employer not allowed to inquire as to why most employees are using sick leave. Limited exceptions exist for employees on a sick leave “control” list who use high levels of sick leave or have suspicious patterns of sick leave use, and for those employees such as bus drivers who might pose significant safety concerns if sick at work. See Fountain v. New York State Department of Correctional Services, 2005 WL 1502146 (N.D.N.Y. 2005)(rule that required doctor slips for all absences greater than three days in length violated ADA) The Court rejected the following arguments that a business necessity justified the rule: (1) That the rule identified whether officers were fit to perform their duties; and (2) That the rule allowed it to guard against the spread of infectious diseases in correctional facilities. The Court found that while these might be legitimate business reasons, the scope of the rule was too broad.

From New Mexico

Question: I work for a Sheriff’s Office. I heard that we must pay deputies overtime for mandatory overtime (for example, court appearances) even if they have not met the “40 hours of work” requirement for overtime. For example, a deputy takes a vacation day in the same workweek that he has to be in court. Do we pay him time and half for the court time even if he took vacation in that week?

Answer: There would be no obligation under the Fair Labor Standards Act to pay overtime under the situation you describe. If such an obligation exists, it would be a facet of a collective bargaining agreement, local personnel practice, or, more rarely, a state wage and hour law.

This article appears in the June 2007 issue