From Utah
Question: During Garrity interviews/interrogations, can the employer compel the employee to submit to a polygraph examination? Concern revolves around the examiner, from another agency, who might be compelled to testify to any criminal information the employee may reveal during the exam and the baseline establishing questions examiners ask that are not pertaining to the specific situation being investigated. Our agency allows the employee the option to request a polygraph exam but does not say specifically if the agency can or cannot compel a polygraph.
Answer: If a polygraph examination is compelled by the employer, then the results of the examination would be protected by Garrity. While the majority of states forbid law enforcement agencies from compelling their employees to submit to polygraphs, and the courts in some other states (i.e., Florida) have struck down the use of the polygraph in employment settings, yet other states still allow the compelled use of the polygraph. We’d recommend you consult with a local attorney to see into which category Utah falls.
From Washington
Question: I have a multi-part question relating to negotiating Kelly Days. When computing time worked in a year we (the Department and Union) looked at FLSA time off, vacation time off, and floating holiday time off. All of these were subtracted from the total hours worked in a year. The first question is when computing time worked will an arbitrator throw out agreed-upon comparables if they don’t work the same shift type (i.e., 12-hour shifts vs. 24-hour shifts)? Second, how may an arbitrator rule if employees have banked vacation/holiday time in excess of 300 hours with regard to giving more Kelly Days? Third, how might an arbitrator rule if the average department in your agreed-upon comparable list receives four more days off than you after adding in Kelly Days, vacation, and floating holidays?
Answer: Since you’re from Washington, we can tell you that there’s little agreement between arbitrators as to how to view paid time off and time off built into the work schedule (e.g., Kelly Days) in the context of a total compensation analysis. Some arbitrators believe that since time off is often treated as the functional equivalent of wages in negotiations, total compensation analysis should be on the basis of “net hourly pay,” dividing total compensation by total scheduled hours (less holidays, vacation, and personal days off). Other arbitrators, including one in a Seattle Fire case, have disregarded the hours worked issues, and have calculated total compensation without regard to actual hours worked. Though we think the majority of arbitrators would follow the first approach, it’s still an open question in Washington.
To submit questions on public safety labor and employment issues, visit our web site at www.LRIS.com. Please be aware that the answers given here are for information purposes only and should not be construed as legal advice.