Yikes, what a year for the fire service and America. A major pandemic, lockdowns, quarantines, changing leadership at all levels, and fire departments weathering legal issues that have a bad habit of returning year after year in spite of the fire lawyers efforts to educate fire departments into changing their behaviors. It was a bonanza year for attorneys.
The COVID-19 pandemic has departments scrambling to “do the right thing” for your firefighters both in career and volunteer agencies. There has been many educational sessions and published material available from Lexipol (Coronavirus (COVID-19) Training & Policies for Individual Access (lexipol.com)), IAFC | International Association of Fire Chiefs, Coronavirus Disease 2019 (COVID-19) | CDC and your local health department among others. I encourage fire chiefs and administrators to review these sites for information and direction especially in pay and benefits when your firefighters required quarantine and does the department use sick leave, time off with or without pay and what the pay issues are under FLSA.
The new issue is COVID-19 Vaccines and the current issue is, can you require your firefighters to obtain the vaccine? This site outlines the issue in layman’s terms as to the EEO’s position on mandatory vaccinations (The EEOC Releases Guidelines on Mandatory Workplace Vaccinations). In a union environment that has a bargaining agreement, departments must negotiate the effects of mandatory vaccine requirements. Please listen to the Fire Attorneys discuss this issue in their last podcast on Fire Engineering (1).
Switching gears and reviewing court cases in 2020, I am seeing the same level of social media tomfoolery, discrimination and workplace harassment and there are numerous cases involving infringement of your firefighter’s legal rights and privileges. Much of this can be attributed to a lack of or absent enforceable policies; inherent bias towards others that don’t look like you mainly affecting women and firefighters of color; poor training by departments in recognizing and stopping discrimination, harassment and bullying.
There is a general attitude among women and firefighters of color that administration is not going to do anything if they report bad behavior and IN FACT, I will be singled out and sometimes treated worse. The silence is deafening.
I believe the fire department is the institutional form of our collective personalities by in large does the honorable thing by respecting the rights and privileges of our firefighters and the community we protect. Remembering, the fire service is a homogenous group of primarily white men, that is ripe for these types of legal conflict. The culture of the organization needs to change to prevent many of the lawsuits affecting the fire service.
Unfortunately, we have a history of suing each other and a majority of the largest lawsuits with large payouts to the aggrieved firefighter involve our own people in the form of harassment, discrimination, bullying and violations of Constitutional protections under the Civil Rights Acts and its sub parts to include Age Discrimination under ADEA, Pregnancy Discrimination under PDA, rights to return to work after military deployment under USERRA, Gender or Sex Discrimination, pay under FLSA, family leave under FMLA including gender identity or transgender status under the Civil Rights Act, Title VII and other violations of the law. These claims against the department costing our industry millions of dollars in settlement claims or court decisions and polarizes the members of that particular fire department.
I know that I have a tendency to repeat myself but much of Preventing Legal Fires has to do with the creation and enforcement of your department policies preventing such behavior. “If only” is an often heard statement when the department is sued for violating its own policies or trying to sweep bad behavior “under the rug.” “If only we had acted sooner”, “if only we listened to that firefighter” or “if only we had a policy”. Create your “if only” statements and fix the issue. Let’s change the “if only” response and replace it with a proactive attitude by recognizing bad behavior and let’s actually recognize and accept the differences in your fellow firefighters and act responsibility.
We also have a smattering of embezzlement and theft from the department from its own employees at all levels. Firefighter to fire chief have been caught stealing from their departments. It’s a good time to stop this career destroying activity.
Let’s look at some of the cases from 2020 affecting the fire department as they are far reaching.
COVID-19 litigation: The good news is, as of this writing there are no Covid 19 related lawsuits against fire departments, however we will soon see litigation based on breaches of pay under FLSA related to overtime or quarantine pay for firefighters sent home after testing positive for the disease; and the use of FMLA for this time off. Is this a proper use of FMLA or your PTO? Some departments are sending Covid positive firefighters home “with pay” for 14 days with no drawdown on their leave bank and other departments are sending firefighters home with a drawdown on their leave bank and no pay. Stay tuned this year for litigation based on these claims.
Social Media: People, people, people…how many warnings does one need to stay off of social media with your opinions, pissing contests, or other egregious comments> Now I know a certain former elected official got away with a lot by using his social medial platforms to air grievances and ultimately got banned from its use. You, on the other hand, cannot and should not use your social media platform in this manner and these are a few (of many) examples of firefighters and other public officials getting terminated.
• A South Carolina firefighter has been terminated over several social media posts that were found to be racist. The Georgetown County firefighter was fired one day after county officials were informed of the posts.
• From Dave Statter’s and Curt Varone’s blog sites you find: In New York, a Hillcrest Fire Chief faced backlash following a post that discussed following rioters home and burning their properties. The fire company announced it was “looking into” the allegations and the Chief posted a mea culpa but was it enough? Would that have been enough to get you off the hook if you did the same?
• In Florida, a battalion chief with Miami-Dade Fire Rescue was been placed on administrative leave following remarks he posted on social media. The firefighter was accused of having posted “We have reached levels of ludicrous. It’s unbelievable—Leaders kneeling, white people kissing the boots of black people. It’s the great capitulation”. A reminder to you firefighters, we are in the 21st century and racial equality should be the norm. Please leave your bias at home no matter how angry you are or unjust you believe the issue to be.
• In California, a Modesto area firefighter is facing a pushback and outcry from the community over their social media comments: “All Lives Splatter” and “Nobody cares About Your Protest” along with a police officer (in a different state) was terminated from his employment after making and wearing “T” shirts with the same or similar slogan on them.
A simple guide for fire service leadership related to social media manner:
1. Create a sound, legally-enforceable social media policy that passes muster in the First Amendment, and where applicable, collective bargaining laws;
2. Train your personnel on the policy so that they understand what they can safely post, and what types of posts are likely to get them in trouble; and
3. Teach effective supervision and enforcement of the policy so that our most valuable asset, our people, are treated in a fair and reasonable manner.
Discrimination: The fire service continually finds itself discriminating against their firefighters in many but not novel ways. Violations of our established laws and provisions of the Constitution ultimately result in a “win” for the firefighter and a “loss” for the fire department with major large money judgments. The reality is, it is a loss for the firefighter AND the fire department. Qualified men and women have left their jobs based on this litigation and all they really wanted to be is a firefighter. Someone or many someone’s have ruined those dreams.
Several examples of many examples:
• A veteran San Francisco firefighter claims to have endured decades of harassment on account of his race and sexual orientation, is suing the city in state court on six state law counts. The firefighter filed suit late last year in San Francisco County Superior Court. The firefighter also filed a First Amendment Complaint. The complaint lists numerous examples of offensive and inappropriate conduct he endured dating back to 1999, but the claims in the suit arise out of the treatment he received most recently in his assignment as Firefighter Recruitment Coordinator that lead to a loss of pay and a reduction in work classification. The litigation can be summed up in the following manner: 1) Discrimination on the basis of sexual orientation under state law; 2) Race discrimination under state law and 3) sexual orientation and or racial harassment under state law
• An Everett (WA) firefighter filed suit alleging race discrimination and retaliation. The firefighter filed suit in US District Court for the Western District of Washington alleging one count of race discrimination under Title VII of the Civil Rights Act of 1964, and one count of retaliation. The firefighter claims he was subjected to a variety of derogatory comments and names during his eighteen-year career. When he reported the conduct, the city took no action and his colleagues shunned him, a common practice in fire departments when an allegation or complaint is filed against it due to non-action based on a complaint.
• A bit of free legal advice to fire department administrators and rank and file, take the complaints serious and make meaningful inquiries, investigations or some affirmative action and stop this behavior.
• A Montebello (CA) fire captain who sued the department for race discrimination in 2013 and 2017, has filed his third race discrimination lawsuit. The fire captain filed suit in Los Angeles Superior Court, alleging for retaliation, disability discrimination, and violation of the California Firefighter Procedural Bill of Rights. The Captain was placed on administrative leave last summer when the department began investigating him. The department issued him a notice of intent to terminate, and his Skelly Hearing (aka Loudermill Hearing for non-Californians) was held. The complaint alleges the current discipline is attributable to his earlier lawsuits as well as his complaints about racism in the department. The Captain prevailed in his first lawsuit, with a jury in 2015 awarding him $935,150 in damages, $185,150 in lost wages and $750,000 for emotional distress. Do the math on this one. The 2017 suit alleged he was wrongfully passed over for promotion to battalion chief. That case is schedule to go to a jury trial in April 2021.
• Last but certainly not the least, an Asian-American firefighter is suing his fire department and a deputy chief for discrimination over comments the chief made related to COVID-19. The Firefighter filed suit against the City of Plainfield, New Jersey and the Deputy Fire Chief. The suit was originally filed July 23, 2020 in Union County Superior Court, but it was dismissed on August 14, 2020. The firefighter’s attorney filed a motion on August 25, 2020 that resulted in the case being successfully reinstated. The firefighter, a 2-year veteran, claims that the Deputy Chief “mockingly” asked him if he had recently traveled to Wuhan, China “while he squinted his eyes so that they narrowed in a racist caricature of Asian facial features and left his mouth open.” This incident occurred during a training session on COVID19, and the remark was made in the presence of at least 19 firefighters, including five lieutenants and a battalion chief.
Theft: Although this recently happened in 2021, I thought it is pertinent to provide this advice – DO NOT STEAL COVID 19 vaccinations and I place this in the category of “what were you thinking?” Polk County (FL) Sheriff’s office has arrested Paramedic Joshua Colon and says it will soon arrest Captain Anthony Damiano in connected with the theft of three vials of coronavirus vaccine. Damiano’s arrest is pending his return from an assignment in California. Polk County Fire Rescue named Colon its 2020 paramedic of the year a few weeks ago. Sheesh.
Finally, we have all heard the old saw of “not dead until cold and dead.” A $50 million dollar lawsuit was filed against a fire department when after a resuscitation was called off after 30 minutes and the patient transported to a funeral home was found to be ALIVE. The family of a disabled 20-year-old Michigan woman who was declared dead by EMS personnel, but later determined to still be alive, has filed a $50 million suit against the City of Southfield, two paramedics and two EMTs. This occurred on August 23, 2020 when personnel from the Southfield Fire Department found the patient not breathing. Personnel performed CPR and other ALS interventions for 30 minutes, but after checking with medical control, resuscitation efforts were ended. The patient was later transported to the James H. Cole Home for Funerals where employees discovered she was still alive.
Unfortunately there are thousands more of these cases of all categories affecting our fire service and there are too many to list in this article. Let’s learn from the mistakes of others and avoid them.
In closing, I am noting that a majority of firefighter deaths in 2020 and now 2021 are from Covid 19. It’s not the old or the infirm that are dying, it’s our healthy firefighters. The numbers are staggering and what’s predicable is preventable. Use the precautions that are available, wear PPE on every EMS call, wash your hands and socially distance yourself. Almost impossible in a fire station but do the best you can. Get tested and above all GET THE VACCINE and be a hero and live to fight another day.
End Notes – listen and read
1. Mandatory COVID-19 Vaccinations for Firefighters? – Fire Engineering
2. Fire Service Court 01/14 by fireengineering | Education (blogtalkradio.com) – Mandatory Vaccine discussion
3. Curt Varone Fire Law Blog – Fire Service and Public Safety Legal Issues Blog by Curt Varone
4. Dave Statter Statter911.com – Firefighter Videos, Firefighting News, Fire Department
5. Gordon Graham – Lexipol.com
6. Most importantly, Firefighters who like to discuss scuttlebutt around the coffee table – listen and learn.
This commentary reflects the views of the author and not necessarily the views of Fire Engineering.
It should not be construed as legal advice or counsel.