The U.S. Supreme Court has concluded the session it began last October, so we have a few months of breathing space until the court changes the law again on a national scale. It's a good time to examine a couple of the court's decisions that haven't yet been thoroughly analyzed, as well as some other recent legal developments.

The FLSA beat goes on It now seems that no Supreme Court term is complete without at least one Fair Labor Standards Act case. One reason is that the U.S. Department of Labor has taken a more aggressive posture in pursuing wages-and-hours violations. According to Reuters News Service, Labor Department flsa investigations increased from 36,000 in 1997 to 45,000 in 1998. The number of employees who got overtime back pay as a result of these investigations rose from 128,000 to 173,000 over the same period.

This term, the Supreme Court overturned a long-standing interpretation of the "overtime comp time" provisions of the flsa (29 usc 207(o)(5)) in Christensen v. Harris County, No. 98-1167 (May 1, 2000).

In many (if not most) local government jurisdictions, the assumption was that, if a worker received time-and-one-half comp time (in lieu of cash time-and-one-half overtime), that worker determined whether or not he or she would use that comp time. An employer could turn down an flsa comp time request if granting that request unduly disrupted the employer's work activity, but that employer could not compel an employee to use flsa comp time against the employee's will - that is, until Christensen.

Christensen was a deputy in the Harris County (Houston, Texas) Sheriff's Department. When Christensen's flsa comp time hours began to get close to the statutory maximum, his boss would ask Christensen to use up some of that comp time so the sheriff's department wouldn't have to pay time-and-one-half overtime in real dollars.

If Christensen and his boss couldn't agree on dates, his boss would unilaterally assign comp time days off. In his suit, Christensen argued that the sheriff's department couldn't compel employees to burn up comp time unless there was a bona fide agreement between the employer and employee authorizing the employer to do so.

The Federal District Court judge agreed with Christensen, but the Fifth Circuit Court of Appeals did not. According to the Fifth Circuit majority, the flsa (and the Department of Labor's accompanying regulations) said nothing about compelled use of comp time, so the Harris County Sheriff's Department was violating no law or regulation with its policy.

The Supreme Court upheld the Fifth Circuit in an opinion written by Justice Clarence Thomas. Thomas said there was no support for Christensen's position in flsa or dol regulations, and nowhere could the majority find language that supported Christensen's proposition that such compulsory comp time use required an agreement between the employer and employee. Justices Stevens, Ginsberg and Breyer dissented. They noted that a comp-time-in-lieu-of-cash overtime policy itself requires such consent, as does use of comp time by mutual agreement, so it would make no legal sense if disposition of flsa comp time was not likewise subject to such an agreement.

The application of this decision in a fire service setting is clear: Barring a collective-bargaining agreement to the contrary, a fire service employer can direct firefighters with flsa comp time balances to use up the comp time on a mutually-agreed-on day (or days), but, if there is no mutual agreement, the fire service employer can pick the comp time days for the firefighter.

(A number of local government attorneys believe that the Supreme Court is just one vote away from overturning 1985's Garcia v. San Antonio Metropolitan Transit Authority decision, the decision that brought the flsa to the public-sector workplace, but I think that's unlikely. While the Rehnquist Supreme Court has nibbled at the edges of Garcia, the refusal of what is arguably the most conservative court in 75 years to overturn the Miranda case is an indication that a majority on the current court isn't interested in a step as extreme as completely discarding the precedent established by Garcia.)

"Pretext-only" discrimination cases When a worker is suspended or fired, and then sues in the belief that the suspension or firing was done for a discriminatory reason, we enter the twilight zone of "burden of proof."

Take the case of Roger Reeves, a 40-year veteran of Sanderson Plumbing Products. His supervisor made it very clear that he thought Reeves had seen better days. According to evidence presented by Reeves, the supervisor told him, "You're so old, you must have come over on the Mayflower" and "You're too damn old to do this job."

Shortly after this exchange of pleasantries, Reeves was fired for alleged falsification of time records for subordinates. Reeves didn't believe this, so he sued, claiming his employer violated his rights under the federal Age Discrimination in Employment Act, a remedy no longer available to state and local employees. (See "adea no longer applies to many state, local workers," Lex de Incendiis, June 2000.)

Court rules require a plaintiff in a lawsuit like Reeves' to prove his or her case, to meet the "burden of proof." So, to get his case to a jury, Reeves had to prove that the reason given for his firing was false (a "pretext") and introduce evidence that on its face ("prima facie") demonstrated that his employer had another, discriminatory reason for firing him.

But when Sanderson Plumbing appealed the case to the Fourth Circuit Court of Appeals, the court ruled that Reeves not only had to prove by a preponderance of the evidence that the reason Sanderson gave for his firing was phony; he also had to prove by a preponderance of the evidence that the real reason was discriminatory. Keep in mind that the Fourth Circuit wasn't saying that Reeves had to prove both contentions to win. What it was saying was that Reeves had to prove both contentions by a preponderance of the evidence to even get to a jury.

In Reeves v. Sanderson Plumbing Products, No. 99-536 (June 12, 2000), the Supreme Court overturned the Fourth Circuit's burden-of-proof rule. If Reeves could prove by a preponderance of the evidence that Sanderson's stated reason for firing him was phony, and introduce credible evidence that at least made the case for discrimination, the burden of proof shifted from Reeves to Sanderson to prove that Sanderson's decision was not based on age discrimination.

How does this apply in a fire service setting? Well, how many times have fire service managers given a marginal firefighter consistent "very good" or "above average" performance evaluations, and later tried to discipline or fire that same firefighter for long-term performance problems? Sound familiar? That firefighter has been placed in an excellent position to shift the burden of proof to the fire department to prove by a preponderance of the evidence that it was not discriminating against that firefighter on the basis of race, gender or religious belief by using a pretextual reason for discipline or termination.

The solution is as obvious as the problem: Be honest when appraising employees, even if it's painful, because honesty is (a) the right thing to do, anyway, and (b) a way to avoid even more pain, embarrassment and financial loss in the long run.

Happy birthday, ADA It's the 10th anniversary of the Americans with Disabilities Act, and the lawsuits continue. In its next term, the Supreme Court will take up the issue of whether the ada will still apply to state (and, perhaps, local) employees in the wake of this past term's Kimel case (see Lex de Incendiis, June 2000).

Meanwhile, in Echazabal v. Chevron, No. 98-55551 (May 23, 2000), the Ninth Circuit Court of Appeals decided that the language in the ada that allows an employer to refrain from hiring an otherwise-qualified person with a disability if that person presents a "direct threat" to other individuals in the workplace did not apply to someone who might pose a direct threat only to himself.

Mario Echazabal had worked at a Chevron refinery in California for 20 years for various refinery maintenance contractors. When an opportunity came for Echazabal to get a job directly with Chevron working on the refinery's "coker unit," he applied, and Chevron offered him the job.

But Chevron's physician discovered that Echazabal had a liver problem, a problem that could potentially worsen if Echazabal were to be exposed to the solvents and other chemicals present in the coker unit work area. So Chevron withdrew its offer, and, further, instructed Echazabal's contractor employer to keep him away from exposure to chemicals. This effectively eliminated any opportunity for Echazabal to work anywhere at the refinery, so Echazabal filed a claim under the ada.

Chevron argued that eeoc regulations allowed an employer to use the direct threat rule as a reason not to consider or hire an otherwise-qualified individual with a disability. ("The term `qualification standard' may include a requirement that an individual shall not pose a direct threat to the health or safety of the individual or others in the workplace." 29 cfr 1630.2(r) (emphasis added) The Ninth Circuit rejected the eeoc interpretation, citing Congressional testimony limiting the defense to a direct threat to other employees.

Chevron also argued that work without risk to one's self was an "essential function" of the coker unit job. The Ninth Circuit was unimpressed, noting that any employer could render the ada meaningless by defining avoidance of personal risk as an essential function of a job (to say nothing of what that would mean to a profession like firefighting, where risk, although minimized to the extent possible, is inherent in the job).

It's important to note that this doctrine has been established only in the seven states covered by the Ninth Circuit Court of Appeals: Alaska, Arizona, California, Hawaii, Nevada, Oregon and Washington. In most other circuits, the question has not arisen. But given fire service use of standards like nfpa 1982, Medical Requirements for Firefighters, which include employment limitations based on medical conditions like gastritis that presumably present no threat to others, but do to the firefighter candidate, it's likely that this question will be raised - and probably litigated.

The ada was also an issue in a Texas Federal District Court case involving a deaf man, Aubray Pyle, who had been cited for driving while intoxicated. Pyle failed his field sobriety test because he couldn't understand the instructions of the Victoria County Sheriff's deputies who tested him.

As it turned out, Pyle was not intoxicated. His ada complaint alleged failure on the part of the sheriff to provide Pyle a way to communicate with the deputies at the time of his sobriety testing and during his three-day jail stay. The jury awarded Pyle $230,000 in damages.

The issue this raises for fire service managers is the availability of people in their jurisdiction who can communicate in American Sign Language or other sign language when dealing with a deaf person in a fire, medical or other emergency incident. Chief officers who've successfully dealt with this issue have firefighters trained in asl, or a "mutual aid" agreement with a law enforcement agency, social or community service agency, or medical facility that has such capability, even if on an after-hours emergency-callback basis.

The keys to a successful defense in a fire service version of the Pyle case are a plan (preferably a written sop) on how to deal with patients or other customers who have a communications disability, evidence that members have been trained in how to use the plan, and evidence that the plan is, in fact, used.

The NLRB and representation in disciplinary meetings In 1975, the National Labor Relations Board ruled that any union member called into a disciplinary meeting (or what might turn into a disciplinary meeting) had the right to be accompanied by a co-worker. On July 10, the nlrb extended that right to all workers, whether union members or not.

It's important to note here that the National Labor Relations Board has no jurisdiction over state or local government employees, so the nlrb's decision isn't directly applicable. And many career-firefighter organizations are organized by the International Association of Fire Fighters, whose collective-bargaining agreements include the right to have a co-worker present.

But in a number of states, public-employee collective bargaining is not recognized; in fact, public officials are prohibited by law from collective bargaining. In those states, the nlrb's decision could be cited by workers in grievance processes and employment-action lawsuits as "best practice."

Chief fire officers in jurisdictions that do not collectively bargain with firefighters and discourage or prohibit an employee from inviting another employee to what may be a disciplinary-action (or pre-disciplinary-action) meeting may want to consider or suggest offering the "nlrb option" to firefighter employees.

A 24-year-old Kansas City, Mo., ordinance prohibiting fire department supervisors and managers from belonging to a bargaining unit with line personnel (or to a separate bargaining unit that shared affiliation "directly or indirectly" with one) was overturned by the U.S. 8th Circuit Court of Appeals in a decision handed down August 8.

The ordinance had previously been unsuccessfully challenged in state courts on constitutional grounds, and in federal court in connection with a First Amendment free-speech claim. But in iaff Local 3808 v. Kansas City, No. 99-4171 (August 8, 2000), the 8th Circuit dealt directly with the question of whether the ordinance's limit on the First Amendment right of free association was justified by Kansas City's concerns over the ability of fire supervisors and managers to fairly exercise their responsibilities when they shared an iaff affiliation with those they supervised, particularly in the context of any dispute between Kansas City and the line firefighters' bargaining unit.

The three-judge panel concluded that Kansas City's concerns were not of sufficient weight to support the limitation of the First Amendment rights of kcfd's supervisors and managers to affiliate with the iaff. [Ed.: For more on chief officer unionization, see "Divided loyalties," August 2000, also available at .]