Fifty Ways to Leave Your Lawyer, Part 1

By John K. Murphy

Now that I have your attention, I will outline some of the issues that keep chiefs and fire departments extremely close to their attorneys in the attempt to mitigate those prickly legal issues. Many of these examples have been culled from the Fire Service Court radio shows and additional sources outlining the numerous legal issues facing our fire services today. I have attempted to place them in order of importance so your organization can use it as a checklist to determine how to “leave your attorney.” Now, for you attorneys out there, we know that many of our department audiences will not pay attention to this article or our radio show, and that is what keeps us in business.

Stay strong, my attorney brothers and sisters! There will be plenty of work for you in spite of this article.

Personnel issues. One of the most litigated areas of the fire service happens between your firefighters, your fire officers, and your municipalities or districts. Lawyers are making a bundle of money from these lawsuits involving your firefighters and staff. These are mostly based on discrimination claims including age, race, and gender; failure to supervise or manage your firefighters during inter-personnel conflict; failure to adhere to your department polices on discrimination, harassment, hazing, or bullying; and other such failures of leadership. Several recent cases have brought to light the permissive behavior of fire departments and their “culture of silence” so rampant in our industry—not calling out firefighters who harass, haze, bully, or discriminate against their coworkers. Some of these claims are made for millions of dollars and take a very long time for the firefighters and fire department to recover from the polarization of the department these issues create.

Failing to follow federal laws. There is a plethora of federal laws that will jam up a fire department if they are ignored or wrongfully interpreted. The important laws include protecting employees more than 40 years old under the Age Discrimination in Employment Act of 1967 (ADEA); gender discrimination under the Civil Rights Act of 1964; disabilities under the Americans with Disabilities Act (ADA); religious discrimination; family leave under the Family and Medical Leave Act (FMLA); returning military veterans under the Uniformed Services Employment and Reemployment Rights Act (USERRA); wage issues under the Fair Labor Standards Act (FLSA); pregnant firefighters under the Pregnancy Discrimination Act; numerous health and safety laws under the Occupational Safety and Health Administration (OSHA); and your state’s Labor and Industry Division. Also included are the Health Care Initiatives under the Affordable Care Act and several other standards to include the National Incident Management System, applicable standards under National Fire Protection Association, Health Insurance Portability and Accountability Act, and the various laws and standards affecting your volunteer firefighters. It takes vigilance on the part of the chief and his retained counsel to stay current with those laws and create department polices using the federal and state law as the basis of policy.

Policy. Policies are a description of standards under which you expect your firefighters to operate when they are on shift. These are the “laws of the fire department” and can be used in a court room if you violate these policies. In spite of that fact, you will still need some type of written guideline, which can be created under standard operating guidelines (SOGs) or best practices.

We create polices for all of the wrong reasons. They are generally created because of one firefighter doing something wrong who cannot be disciplined; there is no policy prohibiting that behavior. The policies needed by the department should focus on the current federal and state laws protecting the employees and the department. Possibly grooming, fitness, uniforms, driving, and other firefighter activities can be placed into a best practices or SOG for application by members of the department. A department cannot create a policy for every single event which may occur in the department. If you hit the big issues through a policy, you will generally be covered, and it will provide a solid knowledge base for your firefighters when they are wondering if some contemplated action is “against policy.”

Hiring practices. Hiring a firefighter is a time-consuming and complicated process and has provided many legal problems for numerous departments when challenged by disadvantaged candidates. There are several cities who have been sued by candidate firefighters passed over or simply not hired. Look to United States, et al. v. City of New York (recently resolved for $98 million), Lewis v. Chicago, and the recent legal action against the Austin (TX) Fire Department as prime but complicated examples of alleged discrimination in hiring procedures.

Hiring procedures should be fair, equitable, and nondiscriminatory. This sounds simple, but it is not. From the application, the written examination, the physical capacity test, and the oral boards to the offer of employment with subsequent medical and psychological testing are all potential minefields for fire departments. A well-planned hiring process will eliminate most but not all of the potential issues with your hiring practices. One of the big issues is the lack of competent background checks and comprehensive psychological evaluations. Many firefighters you hire now may create many future problems if you do not perform these two important evaluations. My advice is to do them and make sure they are thorough. If they are not, you may have to outsource the background checks to a professional service. Take the time to conduct a legally proper hiring process.

Officer promotions. Qualified candidates are passed over for many reasons such as bias, balancing the racial mix of a community, not enough candidates of a certain color, nationality, or gender. Look to the recent court decision in Buffalo, New York, where firefighters sued the city in 2007, claiming the fire department illegally allowed promotional lists with their names on them to expire so they could promote African-American firefighters instead. Also look at Ricci v. DeStefano, a 2009 case which was a hotly contested decision by the U.S. Supreme Court concerning racially discriminatory employment practices by New Haven (CT) Fire Department. The litigation was based on how New Haven officials invalidated test results because none of the African-American firefighters who passed the exam had scored high enough to be considered for the positions.

There are numerous other examples where discrimination of the candidates during the promotional process was the catalyst for litigation. It is important that the promotional process be carefully planned out and attempts be made to eliminate any bias toward a certain candidate. The best advice is to create an effective but neutral promotional testing process and promote the best qualified candidate. Look to the Ricci v. DeStefano case to see where too much social engineering in this promotional process derailed the promotion of qualified candidates and it took years to resolve.

Stay tuned for Part 2 of this article, which will be posted next month.

JOHN K. MURPHY, JD, MS, PA-C, EFO, retired as a deputy fire chief after 32 years of career service; is a practicing attorney; and is a frequent speaker on legal and medical issues at local, state, and national fire service conferences. He is a frequent contributing author to Fire Engineering and a podcast host.

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