Thorny Issues Examined in Law Update

Although the biggest legal stir of the last year was the 2009 Ricci v. DeStefano case regarding promotional testing, there have been plenty of additional issues in the courts that impact the fire service, attendees heard at Firehouse Expo 2010.

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At the session “Fire Service Law Update” by John Rukavina, Public Safety Service Director in Wake County, N.C., topics included social media and recording technologies; firehouse free speech; more on hiring and promotion; and privacy on employer-issued communications devices.

Departments can prohibit or limit the use of recording technologies, Rukavina said. While it’s impossible to always prevent employees from taking photos or video recordings on duty and distributing them on the web, employers can make sure they know the consequences.

One tactic is to make it policy that any such material is the property of the fire department and can’t be shared.
 
“What I’m warning you about is the landmine field you’re walking through if you don’t have any standards at all,” he said.

If damaging material is released, showing mistakes, poor conduct, etc., Rukavina says it’s often better for the department to publicly be up front about it and treat it as a training opportunity.

He also suggested rules for employee social media behavior, including “standards of conduct still apply.” In addition, he explained when employers can legally access employees’ social media sites. The answer is when they are open for public viewing or when the employee agrees to grant access. Employers can not use trickery or threats to gain access, and Rukavina doesn’t recommend a policy requiring access.

When asked about actual fire departments posting on sites such as Facebook, he answered: “Congratulations for being daring and stepping out on the edge of the legal universe.” Some departments are doing this, and need to make sure they have firm control, he said.

Rukavina next touched on freedom of speech, such as when a fire official wants to publicly comment on issues like lack of funding. He said context is critical and ran through scenarios for the audience. “We have sort of a narrow window we can speak through and be protected,” he said.

In re-visiting the issue of hiring and promotional testing, Rukavina noted that following a recent decision in Lewis v. City of Chicago, the city gave up grading on their exams because they couldn’t demonstrate that a better grade equaled better firefighting aptitude, and faced claims that the test had a disparate impact on black applicants. Rukavina said the city now grades the test pass/fail and uses additional hiring factors such as interviews.

In touching on employer-owned communications devices such as cell phones and pagers, Rukavina highlighted the recent case of Quon v. City of Ontario, in which a California police officer was discovered to be sending sexually explicit messages to both his wife and his mistress, another police department employee - and the city had acquired the transcripts.

The underlying problem was that the employee had been given mixed messages on privacy and personal use, Rukavina said. The Supreme Court decided that the law was in a state of flux in this area, and didn’t address the question of the employee’s expectation of privacy. The court stuck to whether the employer’s search was reasonable, and decided “yes.”

So where does that leave fire departments? With little new guidance in these areas other than to have clear, written policies, and to make sure employees know about them and the repercussions of failing to follow them.

“Where you get in trouble as employers is when employees don’t know,” Rukavina said.

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