From Illinois
Question: With the recent downturn in the economy and officers being laid off due to budgetary restraints, does the “Comp time on Demand” decision hold as much weight as it did a couple of years ago? Can an organization claim that the economy is causing an undue hardship and can’t afford to allow the comp time which results in paying overtime? Is there any new case-law on point on this issue?
Answer: In your area of the country (covered by the Federal Seventh Circuit Court of Appeals), the law on comp time is quite clear thanks to a decision this year in Heitmann v. City of Chicago. Paraphrasing only a little, under Heitmann, an employee has the right to request a particular day off, and the employer must grant the day off unless to do so would unduly disrupt the employer’s operations. The fact that the employer must backfill for the absent employee with another employee on overtime does not amount to the sort of undue disruption that would justify the denial of a request to use compensatory time off.
From Florida
Question: I am a union rep for a fire department and am unclear on employee/employer rights under the FMLA. The FMLA was designed to protect the employee, but I feel that my City is using it against the employee. They require an employee to fill out FMLA request after missing two days of work regardless of accrued leave. Example, I throw out my back and have two months of sick time. After 48 hours (two 24-hour shifts), they require paperwork filled out. Even though I am using sick time, they run FMLA concurrent with sick time. Therefore, let’s say I need surgery and I have over 12 weeks of sick time, by the time I run out of sick leave in two months and need FMLA, the City says, sorry, you already used it. How is this possible? Part Two: The FMLA paperwork states, “I am requesting...” but we’re really not requesting since City policy states the paperwork must be filled out. If an employee doesn’t “want” FMLA can the employee be disciplined for not “requesting” FMLA?
Answer: The FMLA is quite clear that either the employer or the employee has the right to designate leave as FMLA leave provided, of course, that the underlying condition qualifies as a serious health condition under the FMLA. If the employer chooses to designate as FMLA leave an absence for which the employee is using sick leave, that effectively means that the employee is using up FMLA eligibility for the year. These rules, which set the minimally acceptable processes under federal law, can be modified through the bargaining process to the extent they provide more rights to employees.
Thus, the bargaining process could result in some modification of the employer’s right to unilaterally designate time as FMLA leave.
From Arizona
Question: I work for an Arizona Fire District. We participate in a non-binding meet and confer process. We are trying to remove the “at will” clause from our employee policy manual. What are the hurdles in trying to remove this clause? What are the Arizona law restrictions and points to successfully argue for removing the “at will” clause?
Answer: Though this will obviously depend upon the wording of your meet-and-confer ordinance, we’d expect that the question of disciplinary standards would be like any other meet-and-confer topic, and that your ability to bargain the issue will depend solely on your ability to convince the employer to change the at-will status of employees.
From Ohio
Question: An employee is under investigation for a misdemeanor of sexual imposition on a minor. The Employer placed him on administrative leave without pay. The Union has grieved the action as a violation of due process because the contract says discipline cannot be implemented until the grievance decision at the Fire Board level.
Are there standards for placing employees on admininstrative leave with pay versus without pay?
Answer: From a constitutional standpoint, the United States Supreme Court has only approved administrative leave without pay in the absence of a due process hearing in very limited circumstances -- primarily where leaving the employee on the job would pose a serious risk to the employer, and where there eventually is a thorough post-suspension hearing. However, you sound like you’ve got contract language that seems to cover the issue. If there is a contract clause that bars the imposition of discipline until after a hearing, then the employer would have to comply with the clause in addition to any constitutional requirements.