Fri, 27 Jun 2014|
John K. Murphy looks in more detail at some of the recurring problems that beset fire departments.
Welcome to Fire Service Legal Minute presented by John Murphy retired Deputy Fire Chief and Attorney at Law on behalf on Fire Engineering [INAUDIBLE] cooperation. Today we're gonna talk a little bit more about what gets fire departments in trouble in a little bit more detail. And we talked about, the last time was that, mostly it's employer issues. That get those organizations into trouble. So, here's a few of them. And there's let, it's almost like word cell. And so we have the American, or I'm sorry, the Age Discrimination in Employment Act. Under the term ADEA. And what that means is anybody over the age of 40 and they're terminated for other than just reasons or they're an apt well employee then there may be a lawsuit based on age. The next one is sexual discrimination and harassment issues. Which is sort of, it seems to be rampant in our industry unfortunately and it may not be as rampant at we think it is but we also see a lot of news media, we see a lot of case law out there. Or sexual harassment, harassment, discrimination issues. Especially against women and firefighters of color, have resulted in huge judgements against fire departments and the millions. Millions of dollars. And those are easily preventable with a few, educational practices and a couple of good policies, may help your organization avoid those sorts of things. Another one that we're seeing is Pregnancy Discrimination Act. And we've seen a case where the federal government. [UNKNOWN] I'm sorry the Department of Justice came in to the fire department down in Davie, Florida where the female firefighters, who were pregnant filed a discrimination claim based on the allegation that light duty afforded to male firefighters wasn't afforded to women firefighters. So they filed a federal complaint. And the Feds came in, the Department of Justice came in. Did an investigation. And says yes, you are correct. You're not administrating your light-duty policies equitably to all employees regardless of gender. And there was a consent decree. Which is a whole 'nother topic we don't wanna get into. Consent decrees. But what a consent decree does is provide judicial federal judicial oversight. And a monitor, a federal monitor coming in and managing essentially your organizations. And so under pregnancy discrimination, you just wanna be very careful that you don't discriminate against your female firefighters. The next on is USERRA which is the, the military leave act, which, allows for, your veterans who are coming back from deployment, a lot of your departments have reserve, military people in there that get deployed, and especially in the recent wars we've had in Afghanistan and Iraq, and, other hot spots across the country. Our firefighters are getting deployed multiple times so they maybe in or out of your organization or maybe gone for a long period of time and under [UNKNOWN] there are specific codes and standards that departments need to follow in allowing your firefighters, your deployed firefighters who are returning to work. And so there's a number of cases out there where employers, both in the fire side and on the non fire side, other public and private employers, are violating veteran's rights, under right to return to work. So those are easy to follow, established policies for those are returning veterans as well. The Family Medical Leave Act, which it appears that nobody really understands. How it works with this time off afforded to your employees, for lots of different reasons, have a birth of child, taking care of a sick parent, sick spouse, sick child, if you have a returning veteran, who has been injured in a war, there's additional time that's afforded, for you to take time off. Now these are generally leave without pay. And many employers will allow you to loo, to use your vacation time or any of your earned benefits including sick time at times. So you get a full paycheck. But after a period of time under Family Medical Leave Act, now you kinda lose those paid benefits and you're kinda off-duty without pay. So. If you're gonna apply an F-M-L-A, or apply for F-M-L-A, the organization, you need to understand what the long-term outcome and ramifications of, of applying for that type of leave is. The fair labor standards act is, ya know, pay for work, hours worked. Many of you who are in. Labor groups, those issues ar pretty much taken care of. You volunteers out there, a lot of times, volunteers are uncompensated for you're service to your organization. Other one, organizations make a modest contributions either in some sort of a point system or other. Return for your investment in the fire department. At the end of the year. So you get a, you know, a small stipend or, or those sorts of things. So you have to understand there's been some court cases where volunteers or part-time employees are counted as full-time employees. When an organization is taking a look at, or there's been a claim against your organization for violation. Under the Fair Labor Standards Act. So be very careful about you characterize your volunteer firefighters and also how you pay your full time employees on a you know, more than a 40 hour work week. For example, labor agreement that make certain allocations for. The 56-hour work week. And now we're fighting organizations that are, are doing the 48-96. Which you know, I'll be, obviously has some issues dealing with modification of your labor contract. So make sure that your firefighters are well-paid, and paid for the work that they do. One of the big things we're startin' to see now is HEPA violations. And HEPA, HEPA is a health insurance portability act, that, allowed employees to move from one job to another without worrying about their health insurance. And so, what we're finding is that there's a very small [UNKNOWN] of that. Hippa that deals with privacy of medical records and we have general obligation to protect our records any way. Our personal records, preventing disclosure of phone numbers social security numbers, addresses, marital status and stuff like that but what we have found under the hippa law. In that there is more protections for patient medical records than we have ever had in the past. Now I think I just want to depend on the rule a bit too far in that we can't talk to anybody about anything, and I think that's probably okay. And most organizations who bill for services are you know, strongly advised to follow HIPAA. Other organizations that don't bill for service. I would invoke the [UNKNOWN] policy that protects the release of medical records. We're seeing that the feds have finally figured out how to, charge, or, file a claim against organizations who illegally released, medical records or medical information to the general public. And we're not looking so much at fire departments and smaller organizations. Now they're looking at large organizations like pharmacies and hospitals, who have a tendency to dump medical records and prescriptions in the dumpster and not shred them. And so there are major fines that have been given to the, those large medical institutions for HIPAA violations. But now that the feds are trying to get, cutting their teeth on the big organizations, they're going to be looking at the smaller organizations. Especially if you're carrying patient information on a laptop or on your cell phone and you lose it, or somebody hacks into your computer system at work and releases. That sort of information. There could be some jeopardy there, not only from the federal government but possibly from the patient as well. And as we talked last time about retaliation and wrongful termination. So, what gets your firefighters into trouble? We're just gonna rip through these here pretty fast but creating a hostile environment, not only as a supervisor but as a firefighter as well. Using the Internet inappropriately. Visiting porn sites. Sending out racist emails. Harassing or stalking somebody which is called cyber stalking. We have a tendency to abuse our emails to send around racy jokes. And nude pictures of women. Mostly sometimes men. I haven't seen those personally. But you know, I'm sure that it happens. And there has been a lot of terminations that have occurred through the misuse of the department's internet. Also off-duty behavior. Seen a number of art writers who have arrested for [UNKNOWN] driving who are selling drugs off duty. You know, conducting themselves in a manner that doesn't. Now quite fit the model or the, the stereotype that we like to see as firefighters. And so they get a lot of problems at home we're seeing some domestic violence issues going on and then like I said earlier, off duty drug and alcohol use. So I think that the issue that we're trying to portray here on the legal issue. Because you have an obligation to your organization not to create unnecessary harm or any harm. You have an obligation to yourself and your family not to get into little liabilities or legal jeopardy but conducting yourselves poorly while you're off duty and I think that on behalf of fire engineering. For this time this is the end of the Fire Service legal minute, and this is John Murphy signing off and thank you very much.