From Arizona
Question: We have a firefighter that was forced to resign or be terminated after he struck another vehicle while responding to a call that resulted in the death of another motorist. We are grieving the case on his behalf due to circumstances that led him to being forced to resign or be terminated. Management is now saying that since he “voluntarily” resigned, the case is not grievable and will not engage in the grievance process. Our language in the CBA says nothing about resignation as a disqualifyer but management will not budge. To the best of your knowledge, does resignation automatically disqualify the grievance process?
Answer: The usual rule is that a resignation ends any possibility of filing a grievance challenging the termination of an employee’s employment. There’s one exception to this usual rule – it’s called the “constructive discharge” theory. As described by the United States Supreme Court in Pennsylvania State Police v. Nancy Drew Suders, 524 U.S. 129 (2004), a constructive discharge occurs when working conditions become so intolerable that a reasonable person in the employee’s position would have felt compelled to resign. In such cases, there likely is the opportunity to challenge the resignation as essentially being coerced. We’ll warn you, though – constructive discharge cases are difficult to prove.
From Alabama
Question: Is there a legal basis for scrutinizing police/fire applicants more closely than other individuals who may apply for public jobs with local/city governments? For example, why are police and fire agencies not permitted (or are they?) to eliminate applicants who have adverse behavior histories that indicate undesirable characteristics that historically have shown to be high-liability or outright unfit employees?
Additional Comment: It seems we are being forced by our HR department to hire individuals who were interviewed by an experienced hiring board that recommended against the hiring of them. What can we do to improve the quality of those coming into public service, especially into law enforcement?
Answer: To the best of our knowledge, there are no restrictions on any employer screening out applicants with adverse behavior histories. Possibly the only restriction in the area might be if the individual suffered from a psychological impairment that rose to the level of being a disability under the ADA. Even in that case, though, it’s hard to imagine such an individual being capable of performing the essential functions of the job – a sine qua non for ADA protection – even with reasonable accommodation by the employer.
From Idaho
Question: We are looking to create a waiver to be used in the disciplinary process that would permit an officer to waive his or her right to grieve a form of discipline, in exchange for either a reduced form of discipline or the immediate subjection to the discipline (instead of having to wait 32 days as outlined in the union agreement). Do you have a template that we could use for such a waiver?
Answer: We don’t have a template for this sort of thing. However, we’d caution you that where there’s collective bargaining required, most states would mandate that not just the employee, but the union, be a party to the waiver agreement.