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Q & A

From Washington:Question: Can a patrol squad sergeant institute a DUI arrest competition among the officers of his/her squad and then compel the “losing officer” to purchase dinner or breakfast for the squad because he/she came in with the fewest DUI arrests in a certain time frame? Some new officers are too timid to confront the sergeant in not wanting to participate or feel comfortable participating in such a competition….

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Q & A

From FloridaQuestion: Does being informed that the employee is a witness in an investigation negate the witness from asking for representation under Weingarten? He reasonably believed that as a witness, he may be subjected to discipline. The employer did not inform or assure the employee that he wouldn’t be, just stated that as a witness, he was not entitled to representation. Does being called a witness cancel the right…

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Q & A

From OklahomaQuestion: I work for a municipal law enforcement agency in Oklahoma. Nothing in the FLSA relieves employers from their contractual obligations under a collective bargaining agreement. My employer has a practice that conflicts with what is agreed to in the CBA. There is a group of officers in the department that hold upper positions. These officers do not receive overtime. They work nine hours each day and only…

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Q & A

From New Mexico Question: Where in the FLSA does it say that work hours can’t be adjusted to avoid the payment of overtime? Answer: The FLSA’s rules are pretty specific. Under the FLSA, an employer cannot adjust the start of the employee’s FLSA work week or work period for the purposes of avoiding overtime. However, the employer is free to adjust work hours within a work week or work…

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Q & A

From Iowa Question: Do Garrity rights apply during an internal investigation (administrative investigation) for police officers who are not the subject of the investigation but may merely be witnesses? For instance, I sat in on a series of interviews today, and for the first one, the sergeant stated that he understood Garrity only applied to those who were the subject of the investigation, and not witnesses. I asked if…

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Q & A

From Arizona Question: A firefighter was working a fire and went to Re-hab after the fire was out. In Re-hab, the firefighter had elevated CO levels which required a transport to the ER. The shift ended at 0800 and he was transported to the ER and was in the hospital for 2.5 hours. Is the firefighter entitled to compensation for the time he was in the ER? Our Re-hab…

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Q & A

From Florida Question: I’ve often heard from my union’s legal defense plan that we cannot go to arbitration for a written reprimand because the grievant has no “property loss” and that the arbitrator can’t rescind the written reprimand. Often our members feel like this is an excuse by the legal defense plan because the LDP doesn’t want to spend the money on the arbitration. While a written reprimand doesn’t…

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Q & A

From Montana Question: Can the County Attorney’s office legally maintain possession of an internal investigation file of a Deputy in which a district court judge deemed was not Brady material? Answer: Unless there’s something to the contrary in Montana state law or in the County’s ordinances and codes, we see no prohibition that would bar the County Attorney from holding onto the IA file. However, whether the County Attorney…

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Q & A

From New York Question: A little background: We work 12-hour tours. We are permitted to work a maximum of 18 hours continuously. Minimum manning is six dispatchers with one supervisor. NYC has a policy for “equalization of overtime.” Employees have an annual overtime card that is maintained by the supervisor. Employees that have the least amount of overtime are offered overtime prior to those that have higher amounts. When…

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Q & A

From Nevada Question: An officer was a suspect in a criminal investigation. He voluntarily gave detectives an interview/verbal statement under Miranda (not in custody) – while admitting to being “buzzed” (slightly intoxicated). The criminal case was submitted but never approved for prosecution. During the IA (administrative investigation), the officer was interviewed (as subject officer under Garrity). Prior to the interview and during the interview, he had access and referred…

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Q & A

From Montana Question: Can the administration of a police department require/order an officer to have a blood draw after an OIS? Montana has no statute on the issue. What can the results be used for; administrative or criminal or both? Answer: The case that comes closest to your situation is Lynch v. NYPD, 737 F.3d 150 (2d Cir. 2013), where a federal appeals court held that a post-shooting breathalyzer…

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Q & A

From Utah Question: We are in the process of requesting collective bargaining. I have a member who is appealing a practical portion of a promotion test. He is given 10 calendar days to do so which he did, then in our city municipal code they have five calendar days to schedule a hearing, no sooner than 30 days and not more than 45 days. We just received a response…

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Q & A

From North Dakota Question: Can an employee be compelled to use earned compensatory time before other forms of leave are utilized or within a specific date range (i.e. within pay cycle; within 14 days of earning)? Answer: In a non-union environment, the FLSA gives the employer the authority to force the employee to use comp time, even on days when the employee might not want the time off. From…

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Q & A

From Washington Question: Are you familiar with cases where IA investigator pre-interviews complainant for two hours before going on tape but makes no reference to the pre-interview or provides any notes on the pre-interview in the IA file? Answer: This is a practice that used to be fairly common, but by now has largely disappeared in the name of transparency of the IA process. We wouldn’t recommend it. From…

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Q & A

From Connecticut Question: Is there a law that prohibits the commanding officer/chief from being in the same Union as those under his/her command? Seems like Union protection and management rights conflict. Answer: There’s no national-level law on this issue. The composition of bargaining units is exclusively a matter of state law. In some states, even a chief can be in a bargaining unit where in others it would be…

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Q & A

From California Question: In our Collective Bargaining Agreement we are given vacation at an accrual rate based on our years of service. Several employees have noticed that their accrual rate was incorrect and has been for some time. Our employer has determined that it will not be giving employees any retroactive vacation time and will only correct their accrual rate to reflect the accurate rate. Deputies are losing anywhere…

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Q & A

From Minnesota Question: Our chief is proposing to the Civil Service board to change the promotion process for sergeant. Currently it’s a test, interview and in-basket assessment. He wants to change it to just 100% interview. He has already done this for lieutenant, commander and also to become a patrol officer. Is there any research on the processes being strictly interview and any pros/cons to it? Answer: We’re not…

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Q & A

From Maryland Question: Can you poll your members if they use the health care provided to them by the State or by another source (retiree benefit from another jurisdiction, spouse /partner) without violating any laws concerning privacy (HIPAA, ADA, ACA)? Answer: We’re not health insurance experts, but our take on this would be that so long as you were not obtaining any diagnostic information, there would be nothing inappropriate…

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Q & A

From Illinois Question: I represent (mostly unionized) police officers in Illinois and am dealing with Garrity situations on a daily basis. I represent one small organization of railway police officers who are organized under the National Railway Labor Act (RLA). This set of laws is often quite different from NLRB/IPLRA cases (including no ULP/Weingarten charge available). I ran into a situation yesterday where the Railway was unfamiliar with Garrity…

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Q & A

From Illinois Question: I represent (mostly unionized) police officers in Illinois and am dealing with Garrity situations on a daily basis. I represent one small organization of railway police officers who are organized under the National Railway Labor Act (RLA). This set of laws is often quite different from NLRB/IPLRA cases (including no ULP/Weingarten charge available). I ran into a situation yesterday where the Railway was unfamiliar with Garrity…

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Q & A

From Nevada Question: I hear that the Genetic Information Nondiscrimination Act (GINA) prohibits employers from collecting genetic information, family medical history for use in hiring, firing, pay or promotion decisions. Does GINA prohibit the employer from collecting family medical history on their state mandated annual physicals? Answer: As it is being interpreted through EEOC regulations, GINA prevents an employer from collecting family medical history for any purposes. There’s no…

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Q & A

From Tennessee Question: We have an upper management supervisor that belittles officers. He intimidates officers with his position, generally making life miserable for those he supervises. The administration is aware of his actions and agrees it isn’t right, but they refuse to do anything about it. Is there anything that can be done? Answer: The law does nothing to prohibit an intimidating or harassing supervisor. Now if the harassment…

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Q & A

From Oklahoma Question: If a firefighter agrees to voluntarily work overtime, can he/she pay someone else cash to cover their overtime shift and collect overtime from the City when they actually didn’t work it? Answer: There’s little case law out there to provide guidance. Our guess is that if the employees engage in such a transaction without the employer’s knowledge, they would likely be subject to disciplinary charges and…

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Q & A

From California Question: Does the FMLA restrict an employer from contacting an employee who is off on sick leave (stress) to set up a future interview date/time for an IA investigation where the employee is the subject of that investigation? Rumor is the stress medical condition is partly caused by the employee being the subject of the IA investigation. Answer: To the best of my knowledge, this issue isn’t…

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Q & A

From Arizona Question: Under current DOL rules and court cases can an agency tell/order an officer or civilian employee to use comp time to get below what policy says is the maximum allowed, which is far below what the FLSA prescribes? Answer: In Christensen v. Harris County, Texas, 529 U.S. 576 (2000), the Supreme Court held that the FLSA’s compensatory time off provision, § 207(o)(5), “is more properly read…

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