FDIC and the Legal Forecast for 2015

The fire services attorneys (Varone, Murphy, Pinsky and Comstock) had the pleasure of presenting legal lectures at FDIC and were live on Blog Talk Radio with our usual legal banter discussing those important issues facing the fire service and some discussion related to avoiding legal jeopardy. In the 25 minutes of the presentation, the attorneys discussed the use of Drones and the restrictions placed on them currently under discussion by the FAA and the upcoming requirement for the drone operator to have a pilot’s license and although the regulations does not address the small recreational devices, the rules will have application on the size of the drone, the mission (think Amazon) and numerous restrictions in the operation around commercial flight paths and other areas including your right to privacy as a citizen.

 Another topic area is the continuation of the issue of Free Speech and the proviso that not all speech is free. Firefighters need to especially cautious of the topic, the forum and whether you are on or off duty and speaking in the public interest. The Supreme Court has opined on the rights of free speech in Pickering v. Board of Education, 391 U.S. 563 (1968) in a three part test that tests the intellect of the common person and states: 1. Did the individual demonstrate that his or her speech address a matter or matters of public interest and concern?; 2. Did the individual demonstrate that his or her speech was a significant or motivating factor in the employer's decision? and 3. Did the court balance the interests of the individual commenting on matters of public concern as a citizen and the public employer's interest in "promoting the efficiency of public service?" Seems so easy to determine if your rights as a citizen and Firefighter are protected, right? There are numerous cases related to firefighters and the interaction between a firefighter’s First Amendment right of free speech and a governmental employer’s right to maintain order and discipline within the fire department is of issue. The word from the attorneys is to be careful what you say and where you say it.

Next the attorneys discussed substance abuse testing and what determines impairment especially in those states where marijuana is legal. In spite of the legislation passing in Washington State and Colorado supporting the recreational use of marijuana, it remains illegal under federal law and most departments have a zero tolerance towards the use of this substance. The real question is what determines if you are “impaired” after you test positive for marijuana. Remember the active ingredient of THC remains in body fat for up to 30 days, and you were partying in Holland or Seattle or Denver while on vacation, are you actually impaired? A tough one for departments to manage: so the default position is that you are impaired if testing positive and depending on your departments polices, you may be terminated.

The final discussion was a return to work under the provisions of the Americans with Disabilities Act (ADA)or hiring our military veterans who may have lost a limb or have PTSD. We are seeing an uptick in hiring these veterans creating an increase evaluation of the candidate’s ability to successfully complete the “essential elements of the job” with an artificial limb. What of those employees that go off on a work related injury and want to return to work? A scrupulous analysis of a return to work standard must be placed in writing and at times the experienced firefighter may not be able to return to work.

Also discussed, if you have a light duty policy it must be administered “equitably” regardless of gender of the firefighter or the medical condition. ( http://www.justice.gov/opa/pr/justice-department-settles-second-pregnancy-discrimination-lawsuit-against-davie-florida-fire)

Our prediction for 2015 unfortunately is more of the same with continued discrimination claims; theft and embezzlement; sexual assault and hazing; use of cameras and free speech; transgender, gay and lesbian issues; guns in the firehouse; ADA issues and the use of psychological testing for discipline purposes and much much more.

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John K. Murphy JD, MS. PA-C, EFO, Deputy Fire Chief (Ret), has been a member of the career fire service since 1974, beginning his career as a firefighter & paramedic and retiring in 2007 as a deputy fire chief and chief training officer. He is a licensed attorney in Washington State since 2002 and in New York since 2011. Mr. Murphy consults with fire departments and other public and private entities on operational risk management, response litigation, employment policy and practices liability, personal management, labor contracts, internal investigations and discipline, personal injury litigation and litigation support. He serves as an expert witness involving fire department litigation and has been involved in numerous cases across the country. He is a frequent Legal contributor to Fire Engineering Magazine, participant in Fire Service Court Blog Radio and a national speaker on fire service legal issues.