Posted on January 24, 2011 by Tiffany Schmidt

Arbitrator Agrees City Can Sunset Retiree Health Insurance.

The economy is beginning to recover. Public and private sector employers however are still dealing with fallout from this recession. Last fall, I wrote about the impact on cities and counties of a $6 billion dollar budget shortfall facing the State of Minnesota. Our public sector clients have been taking this issue very seriously and attempting to cut budgets in all areas. Everyone knows it isn’t just the salaries paid to employees that affect an employer’s bottom line, but there are also all the benefits, like health and dental insurance, severance packages, and retiree health insurance to name a few, which all add up. More and more, employers have been attempting to get a handle on employee benefits, in order to get budgets under control.

In Minnesota, police officers are considered essential personnel and are prevented from striking. In lieu of a strike, police officers are permitted to go to interest arbitration if a new collective bargaining agreement cannot be reached through negotiations or mediation. In a recent interest arbitration decision (pdf) Arbitrator Richard Miller agreed the City could sunset the retiree health insurance benefit, in order to get a handle on future expenses.

It is a common axiom in arbitration that the party proposing a change to contract language carries the burden of proving their request is necessary and reasonable. I represented the City in this interest arbitration case. The Union’s primary argument against sun-setting the retiree health insurance language was a lack of a quid pro quo from the City. Arbitrator Miller rejected the Union’s argument and agreed with the City; sun-setting the retiree health insurance benefit was not a take-away, no current police officers were losing the benefit, and therefore a quid pro quo was not necessary.

Employers need to look at all avenues available for reducing expenses and controlling budgets. Just because a benefit has previously been provided to employees doesn’t mean it must continue. Public employers must get control of future costs to avoid what some are considering the next major economic tsunami – the bankruptcy of state and local governments.

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Posted on January 10, 2011 by Marylee Abrams

Garrity-What Is It And Why Does It Matter So Much To Public Employers?

Garrity refers to a 1967 United States Supreme Court decision that continues to be a mystery to many public employers. (pdf) It is a case they don’t teach in law school, and in fact it is unfamiliar to many city and county attorneys. It represents a very small niche in workplace investigations, but it can have a nuclear impact if the case is overlooked or misapplied, resulting in a criminal walking free. The principles of the case apply to all public employees who are the subject of an internal affairs investigation.

In Garrity, New Jersey police officers were ordered to answer questions as part of an internal investigation into allegations of traffic ticket-fixing. The police officers were ordered to answer questions asked by the internal affairs investigator, and they were told if they refused to answer the questions, they would be terminated from employment. The answers provided by the officers were then turned over to the prosecuting attorney to assist in criminally prosecuting the police officers. The United States Supreme Court held the officers statements (ordered under threat of termination) were compelled, and therefore violated their Constitutional rights.

Understanding Garrity is crucial to all public employers. While the case may be over 40 years old, it is good law today. Minnesota (pdf) has had several appellate court decisions (pdf) concerning Garrity issues.

On January 13, 2011, our firm is conducting comprehensive Garrity training, in conjunction with the White Bear Lake Police Department. (pdf) We have dissected almost a dozen local Garrity cases. We present the cases fact by fact, to help attendees not only understand, but also apply the Garrity case to real life situations. Our goal is to make sure the Garrity case is known and correctly applied by public employers, and help to avoid a potential disaster.
 

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Posted on January 7, 2011 by Marylee Abrams

Creating Videos on Work Time Leads to Employee Discipline

The Commander of the USS Enterprise (the US Navy sailing ship, not Captain Kirk’s star fleet battleship), ran into rough seas over lewd videos he made while on-duty, and then aired for the crew of his aircraft carrier. Capt. Owen Honors has been temporarily relieved of duty, while the Navy is conducting a formal investigation.

The videos shot in 2006 and 2007 included gay slurs, suggestive shower scenes, and simulated sexual acts. Capt. Honors characterized the videos as an effort to blow off steam and boost morale on the ship, which was not well-received by the Navy. The videos, ”…were not acceptable then and are not acceptable in today’s Navy.” Navy Cmdr. Chris Smith stated, executive officers and other leaders “… are charged to lead by example and are held accountable for setting the proper tone and upholding the standards of honor, courage, and commitment that we expect sailors to exemplify.” Capt. Honors will have rough sailing ahead, and no doubt discipline will follow.

Goofing around with video doesn’t just happen on naval ships out at sea. A local Minnesota police department experienced similar poor judgment when several of its officers, including a supervisor, shot an anti-management video concerning on-going labor negotiations. The officers made a Star Wars parody while on-duty, with costumes and dialogue. The video was edited to include a rolling text screen like the original Star Wars films, a musical score, and credits. Management was portrayed as the evil empire, and the final scene included a picture of a City Council member with a voice over of the evil emperor.

The department conducted an investigation concerning the Star Wars video, which also uncovered that the employees had made other videos while on- duty. The investigation resulted in discipline of the involved officers. I represented the city at arbitration where Arbitrator Beens upheld a five day suspension of one of the officers, and Arbitrator Moeller reduced a ten day suspension of another officer to a seven day suspension. (pdf) Another case is still pending. 

The union argued the videos were part of team-building and stress-relief at work, but neither arbitrator was convinced. I think it is safe to say creating videos on-duty, unless it is part of a legitimate training function, is very problematic. It is activity which will surely lead to an investigation, and more than likely serious workplace ramifications for employees.

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Posted on January 5, 2011 by Tiffany Schmidt

Calling a Female Colleague "Sweet Baby" Sounds Like Sexual Harassment at ESPN

Yesterday, veteran play-by-play announcer Ron Franklin was fired by ESPN for calling sideline reporter Jeannine Edwards “sweet baby” during a production meeting before the Chick-fil-A Bowl. When Ms. Edwards objected to the remark by Mr. Franklin, he called her an “asshole”. Mr. Franklin was removed from ESPN Radio coverage for the 2011 Fiesta Bowl. Mr. Franklin subsequently apologized for his remarks, but that wasn’t enough to save his job.

This isn’t Mr. Franklin’s first incident with the use of inappropriate remarks while working at ESPN. Back in October 2005, ESPN communicated with Mr. Franklin that his on-air comment calling sideline reporter Holly Rowe “sweetheart,” was inappropriate. That matter was addressed internally by ESPN.

The Y! Sports Blog remarked, “The network should be praised for taking a stand, but the fact that it waited four days suggests that if the Franklin story had gone away quickly, he’d still have a job today.”   I respectfully, disagree with the author’s position. My first recommendation would be to conduct an investigation into the alleged incident, before taking any disciplinary action against an employee. Making a knee-jerk reaction generally lands an employer in hot water later. I have no knowledge on what ESPN was doing in the days since the incident occurred on Dec. 31, 2010, but taking four days over a holiday weekend to investigate and review a matter, and then issue the discipline does not seem overly long to me.

ESPN clearly takes workplace issues seriously. Mr. Franklin is not the first employee to receive discipline from the network for inappropriate comments or demeaning behavior towards females. TV host, Tony Kornheiser was suspended last year for comments made on-air about a female anchor’s wardrobe. Baseball analysts Harold Reynolds and Steve Phillips were both fired in separate incidents for demeaning behavior toward female employees. In fact, in 1992 ESPN suspended the current “Monday Night Football” announcer Mike Tirico for harassment.

Kudos to ESPN for actually holding employees accountable for their actions and not just brushing these types of issues under the rug. If you receive a complaint of harassment from an employee, do your due diligence and give it a proper and complete investigation before taking action. Collect all the facts first, so a well-reasoned decision can be made.

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