From Ohio
Question: I am the president of a firefighter union. We are currently in the begining stages of getting a combined dispatch center (that will answer all initial 911 calls), meaning that our county sheriff’s department, our police department and fire department will be dispatched by the same entity. Our current police dispatchers are under a collective bargaining agreement with the City. The City plans to abolish their positions as police dispatchers (who only answer 911 calls after they were received by the sheriff’s dispatchers) and hire them back as 911 dispatchers. Is there any way that it can legally be accomplished?
Answer: Since the answer to your question will vary somewhat from state to state, we’ll try to stick with general principles. As a rule, employers are free to get into or out of a particular business without restriction. However, if those business decisions have a substantial impact on employees, the employer may be required to bargain the “impact” of the business decision (though not the decision itself). “Impact” bargaining in your context might include layoff order, severance rights, and the like.
We’re assuming that the new combined dispatch center will be a separate legal entity, likely run by a “user board” comprised of representatives from the various agencies you list. Again as a general proposition, the new center has no legal obligation to hire dispatchers from the former dispatch agencies (though it is extremely likely to do so), nor does it have an automatic obligation to collectively bargain with the employees. Each of these propositions, though, is subject to change.
Some states – and Oregon is a prominent example – have statutes that mandate that if one governmental entity assumes the responsibilities of another governmental entity, the new entity must hire any employees displaced by the transfer of responsibility, and must pay to those employees roughly comparable wages and benefits. And, as to the bargaining issue, in most all circumstances, the new dispatch center will be under the same obligations to negotiate with employees if employees go through the state-mandated process for choosing a collective bargaining representative.
From Indiana
Question: I have been informed that it is the City’s policy to pay officers receiving compensation for “other compensentory time” or (Non-FLSA time) at the employee’s prior year’s hourly rate. I believe that the City’s position in that regard is unfounded and contrary to law. I believe that if they (the City) pay us in 2003, they should pay us at the 2003 rate, not the 2002 rate. If they want to pay us at the 2002 rate for those hours, we should recieve payment in 2002. Is this correct?
Answer: Let’s give you the broad answer first, and then list the exceptions. If the compensatory time off is truly non-FLSA compensatory time off (i.e., was earned for overtime hours worked before the employee reached the FLSA’s thresholds), and in the absence of a collective bargaining agreement provision to the contrary, there would not be anything illegal about the City’s practice. However, we caution that under the FLSA, it is an employer’s responsibility to strictly track FLSA and non-FLSA comp time, and to keep each in a separate bank. Many employers who attempt to distinguish between the two types of comp time fail to keep an accurate trail of each type of comp time. Also, you mention that you have collective bargaining. Most collective bargaining agreements would prohibit the practice you describe.
From Oregon
Question: I have an employee who is being transferred to the main jail from the work release center. He has a note from his mental health professional stating that he should not be placed back into the jail due to PTSD issues. He is a good employee where he is, but we have a mandatory rotation and it is his turn to return to the jail. Would this be covered under FMLA and would we have to honor the note from the mental health professional?
Answer: We don’t see any FMLA issues here, but there are at least two possible implications to your question. First, PTSD is very likely a mental impairment protected by the ADA or Oregon’s equivalent law. As such, the County might be required to reasonably accommodate the individual’s disability through an exception to the mandatory rotation policy. Unless . . . There’s a union contract that requires the mandatory rotation policy. Then you’d have to deal with how to reconcile the competing requirements of the contract and the disability law(s).
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.