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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Can A Past Practice Change A Contract?

A topic that finds the opinion of arbitrators fractured is whether a past practice can change the clear terms of a contract. The most often cited reference works on past practice are a 1961 law review article by Arbitrator Richard Mittenthal, and the basic treatise on labor arbitration, How Arbitration Works by Frank and Edna Elkouri. Mittenthal’s article, titled “Past Practice and the Administration of Collective Bargaining Agreements,” suggested…

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GPS Surveillance In Discipline Cases

The United States Supreme Court recently made headlines with its ruling in United States v. Jones, a criminal case involving the use of a GPS locator on a criminal defendant’s car. The case started in 2004, when Antoine Jones, owner and operator of a nightclub in the District of Columbia, came under suspicion of trafficking in narcotics and was made the target of an investigation by a joint FBI…

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Sergeant Can’t Resist Racial Humor, Loses Job

Rodney Hicok was a sergeant with the Iowa Department of Public Safety. Hicok’s troubles started in January 2009, when he received an email entitled “FW: The new fashion statement for mug shots!” The email featured 15 mug shots of suspects wearing various versions of tee-shirts in support of President Barack Obama. Twelve of the 15 individuals appeared to be African-American. The forwarded email read: “Chicago Police Dept. mug shots….

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NLRB Offers Additional Guidance on Social Media Issues, Continues To Expand Employee Rights in Social Media Outlets and to Scrutinize Employer Communication Policies

By Doug Hass, Chris Johlie and Amy Zdravecky (Editor’s note: Even though the NLRB does not cover public sector labor organizations, many state labor boards and courts turn to the NLRB’s decisions for guidance on how to interpret state law issues. The NLRB has been extremely active on the topic of an employer’s ability to restrict the off-site use of social media by employees. Because the law in the…

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NYPD Sergeants Not Exempt From Overtime

In Mullins v. City of New York, the canary in a coal mine for a lot of other litigation involving the same issue, the federal Second Circuit Court of Appeals squarely faced the question of whether to defer to the Department of Labor on whether mid-level public safety supervisors were exempt from overtime under the Fair Labor Standards Act. The stakes in the case were high – at issue…

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California County Pension Amounts Not Shielded From Disclosure

California’s County Employees Retirement Law provides: “Sworn statements and individual records of members shall be confidential and shall not be disclosed to anyone except insofar as may be necessary for the administration of this chapter or upon order of a court of competent jurisdiction, or upon written authorization by the member.” When the Sacramento Bee newspaper requested the pension benefits of all Sacramento County retirees receiving more than $100,000…

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