LRIS First Thursday Podcast

Fire Chief Dan Kerrigan talks about how to minimize the risk factors to firefighter health and how they can achieve and maintain what he calls functional fitness. This interview focuses on firefighters but is applicable to all public safety employees and employers. Topics covered: New awareness of the importance of firefighter fitness (00:02:35) Cardiovascular risks and what firefighters can do to prevent them (00:05:40) Cancer risks for firefighters (00:10:59) The problem of dehydration (00:14:25) Study: Effect of Heat Stress and Dehydration on Cardiovascular Function (00:18:36) Sleep disorders (00:22:26) Obesity (00:26:06) Fire Service Joint Labor-Management Wellness-Fitness Initiative (00:24:46) Dan’s Book: Firefighter Functional Fitness and its 7 recommendations on fitness (00:33:16) Selecting the right doctors for annual medical examinations (00:33:47) Privacy concerns with medical examinations (00:38:30) Functional physical fitness (00:40:14) Proper hydration (00:42:12) Sensible nutrition (00:43:55) Rest and recovery (00:47:55) Exposure reduction (00:52:29) Behavioral health resources (00:54:06) Employee incentives (00:59:22) How Dan has put his principles into play in his agency (01:01:26)

Will Aitchison interviews Ron DeLord, the founder of Combined Law Enforcement Associations of Texas (CLEAT). In addition to being an attorney and experienced contract negotiator, Ron is a published author and respected historian of the law enforcement labor movement. TimestampTopic 0:00 Introduction. 04:10 Ron’s background. 07:15 Founding of CLEAT. 11:28 The unique approach to law enforcement collective bargaining in Texas. 19:33 Books authored by Ron. 23:55 The police union movement in Texas. 27:00 The influence of Saul Alinsky’s Rules For Radicals. 30:10 Ballot measures dealing with police oversight. 43:45 The trend towards progressive prosecutors. 50:10 How do recent trends affect the future of policing? 56:28 Using Chicago as a metaphor, what sort of advice would Ron give to a big-city police union facing a myriad of issues? 1:05:36 How binding arbitration and meet-and-confer differ in getting the best deal for members. 1:11:47 Ron’s take on boycotts lead by police unions, including those of Nike, Dunkin’ Donuts and Beyoncé, and national police unions’ involvement in politics.

Covered in this month’s podcast: Presumptive causation laws Changes to the California Peace Officer Bill of Rights (California Executive Order N-40-20) Philadelphia’s contract rollover for police officers Training Cost Repayment Agreement Cannot Conflict With CBA, Town of Bennington v. Knight, 2020 WL 966350 (Vt. 2020) Injunctions And Grievances Don’t Usually Mix, Fraternal Order of Police Chicago Lodge No. 7 v. City of Chicago, 2020 WL 1304630 (Ill. App. 2020) City of Columbus and Fraternal Order of Police, Capital City Lodge No. 9., 20-1 ARB ¶7530, (Nov. 19, 2019) Arizona Shifts Standards On PTSD Workers’ Comp Claims, France v. Industrial Commission of Arizona, 2020 WL 772524 (Ariz. App. 2020)

Is the employer’s policy centralized? In other words, is there a single document that includes all aspects of your policy as opposed to a dozen different documents in a dozen different forms? (00:01:36) Does the employer have a medical professional available on a 24/7 basis? (00:02:40) Has the employer made arrangements for drive-through or other expedited COVID-19 testing? If so, can asymptomatic employees who are not in any high risk group participate in the testing? (00:03:31) Are vehicles properly stocked with supplies? (N-95 respirator, disposable gloves, gowns, eye protection, contamination bags) (00:04:52) Is the employer required to conduct routine cleaning and disinfection of stations, vehicles, and other work sites? (00:05:56) Does the employer have procedures in place for first responders who encounter an individual who is displaying symptoms consistent with COVID-19? (immediate supervisory review, EMS transport, don’t bring to police station, disposal of PPE, etc.) (00:07:01) If an employee has an on-the-job exposure to an individual who has displayed symptoms consistent with COVID-19 . . . (00:09:40) a. Does the policy define what an “exposure” is? b. Is the employee required to contact a supervisor? c. Will the employee be ordered to leave work? (symptomatic, asymptomatic) d. If so, will the employee be ordered to self-quarantine? e. If so, for how long? f. How will the employee’s time off work be handled? Special sick leave or administrative leave, a requirement that the employee use her own leave, etc.? If an employee has an on-the-job exposure to an individual who has tested positive for COVID-19 . . . (00:17:13) a. Is the employee required to contact a supervisor? b. Will the employee be ordered to leave work? c. If so, will the employee be ordered to self-quarantine? d. If so, for how long? e. How will the employee’s time off work be handled? Special sick leave or administrative leave, a requirement that the employee use her own leave, etc.? If an employee displays symptoms consistent with COVID-19 . . . (00:18:25) a. Is the employee required to contact a supervisor? b. Will the employee be ordered to leave work? c. If so, will the employee be ordered to self-quarantine? d. If so, for how long? e. How will the employee’s time off work be handled? Special sick leave or administrative leave, a requirement that the employee use her own leave, etc.? If an employee has an off-the-job exposure to an individual who has displayed symptoms consistent with COVID-19 . . . (00:20:14) a. Is the employee required to contact a supervisor? b. Will the employee be ordered to leave work? (symptomatic, asymptomatic) c. If so, will the employee be ordered to self-quarantine? d. If so, for how long? e. How will the employee’s time off work be handled? Special sick leave or administrative leave, a requirement that the employee use her own leave, etc.? If the employee tests positive for COVID-19 but is asymptomatic, what happens? (00:20:43) If an employee tests positive for COVID-19, are other employees who came into contact with that employee notified? (00:22:22) Is the employer requiring doctor’s notes for employees absent from work for COVID-19 reasons? (00:25:07) How will the workers’ compensation/pension system treat employees who test positive for COVID-19? Who are simply exposed to COVID-19? (00:28:14) If the employee is ordered to self-quarantine, will the employer provide a pre-paid quarantine location? (hotel) Do the employer’s quarantine-at-home policies change if the employee lives with one or more individuals who are at risk? (compromised immune system, medical condition, age, etc.

In this special podcast, Will covers the latest developments concerning the COVID-19 outbreak and public safety labor and employment. All the links mentioned in the podcast can be found at https://lris.com/wp-content/uploads/2020/03/COVID-19-Issues.pdf/

This month’s cases: * Firefighters, Facial Hair, The ‘Empty Vessel’ Of Light Duty, And The ‘Driving Calculus of Bureaucracy,’ Bey v. City of New York, 2020 WL 467507 (E.D.N.Y. 2020).* Promise Of No Discipline? No Weingarten Rights, Fraternal Order of Transit Police, 51 PPER ¶ 51 (Penn. LRB ALJ 2020)* Another Officer Loses A Brady Lawsuit Against A Prosecutor, Latty v. Polk County Sheriff’s Office, 2020 WL 485526 (D. Ore. 2020).* Union Lawyer Not Liable To Member For Malpractice Claim, Zander v. Carlson, 2019 IL App (1st) 181868 (Ill. App. 2019)* Prison Prep Time Compensable Under FLSA, Aguilar v. Management and Training Corp., 2020 WL 547292 (10th Cir. 2020) (Integrity Staffing Solutions, Inc. v. Busk)* No ‘Error Too Obvious To Be Unintentional’ On The ‘Money Train,’ Washington v. Washington Metro. Area Transit Authority, 2019 WL 6907797 (D.C. Cir. 2019) LISTEN

Developments with the Plain View Project First Lawsuit Against Plain View Project Is Dismissed, Pace v. Baker-White, 2020 WL 134316 (E.D. Pa. 2020) Firefighter Fired For Refusing Vaccination, Accommodation, Horvath v. City of Leander, 2020 WL 104345 (5th Cir. 2020). County Required To Arbitrate ‘Me-Too’ Grievance, County of Rockland, 2019 WL 6720466 (N.Y.A.D. 2019). Romantic Relationships And Sexual Discrimination, Word v. City of Chicago, 2020 WL 57642 (7th Cir. 2020) Requiring Pregnant Officer To Use Up Leave Violates Discrimination Law, Delanoy v. Township of Ocean, 2020 WL 38861 (N.J.A.D. 2020) Officer’s Firing For Facebook Posts Upheld, Venable v. Metropolitan Gov’t of Nashville and Davidson County, 2019 WL 7020353 (M.D. Tenn. 2019). LISTEN

What is resilience, how do emergency personnel develop it and how do departments foster it? Will discusses this important topic with psychologist Stephanie Conn in this special podcast. Topics covered: Dr. Conn’s book Increasing Resilience In Police And Emergency Personnel (00:02:44) What is resilience? (00:06:56) The four-part formula for resilience (00:11:58) I. Organizational resilience (00:14:38) * Steps an employer can take to develop organizational resilience (00:16:34)* Law Enforcement Mental Health and Wellness Programs: Eleven Case Studies* Providing wellness resources to employees (00:18:36)* Positive policies and messaging from employers (00:19:33) II. Personal resilience (00:22:18) * Dealing with the impact of shift work on employee health (00:25:21)* (How can public safety workers develop personal resilience to combat exposure to traumatic events? (00:28:53)* Making families a part of resilience training (00:31:56) III. Resilience preparation (00:39:09) * Emotional needs (00:39:41)* Cognitive and mental (00:44:16)* Physical well-being (00:45:28)* Spiritual (00:51:34) IV. Resilience renovation (00:55:12) * How to develop a peer support team (00:59:52)* The role of a union in developing resilience (01:02:57)* The evolving role of mental health professionals in public safety employee wellness (01:05:07) What is EMDR and how does it work? (01:07:26)

Will interviews Rae Gross and Sarah Kuehnel of the management-side law firm Ogletree Deakins about physical agility tests (PATs). Using a recent blog post on the topic the two attorneys authored as a starting point, the discussion includes the following topics: Why is it that PATs can raise issues under federal law (Title VII, the ADA, the ADEA, the EEOC, and the Office of Federal Contract Compliance Programs)? The types of allegations we generally see when a PAT is challenged.Disparate impact vs. disparate treatment.The 80% rule.How an employer proves job relatedness.The types of PATs used in the public safety world.The role of the ADA and ADEA in PATs. LISTEN

Will Aitchison discusses the fallout from a photo of Detroit firefighters posing in front of a burned house and the dangers of social media posting for public safety employees. ‘No-Contact’ Order Ruled Illegal, Oakdale Police Officers Association v. City of Oakdale, 44 PERC ¶ 99 (Cal. PERB ALJ 2019) The NLRB Approves Greater Confidentiality in Workplace Investigations The Department of Labor Issues New Rules On Calculating The Regular Rate of Pay Employer Required To Bargain Over Many Lexipol Policies, Snohomish County Corrections Guild, 2019 WL 6271824 (Wash. PERC ALJ 2019). The Standard For A Fitness For Duty Evaluation, Gipson v. Tawas Police Authority, 2019 WL 6876619 (6th Cir. 2019) (Related case) County Required To Arbitrate ‘Me-Too’ Grievance, County of Rockland, 2019 WL 6720466 (N.Y.A.D. 2019) LISTEN

Will Aitchison interviews Los Angeles Police Protective League Director Mark Cronin and Judge Steve Siemers on how the LAPPL and LAPD are using alternative dispute resolution, or ADR, to resolve workers' compensation claims. Timestamp Topic 03:56 About the LAPPL 05:38 What inspired Mark to become involved in the ADR process? 07:40 What were the problems with the traditional workers’ comp resolution system? 11:50 What is an ADR program and how did they start in California? 16:53 How does an ADR program work? 25:33 How is this sort of system allowed under the law? 32:18 Have any lawyers involved in the workers’ comp system resisted ADR programs? 37:23 An example of a typical claim from beginning to end under an ADR program. 47:35 How did the LAPPL convince the City of Los Angeles to try the ADR process? 51:43 Who serves as member advocates? Resources: California Labor Code 3201.7 (Permission of Director of Industrial Relations, Petition filed by recognized or certified exclusive bargaining unit representative, and Negotiated labor-management agreement) NAPO Conference 2019 Washington PowerPointDownload CCLEA ADR Presentation PowerPointDownload

Using the Fort Worth, Texas Firefighters as an example, Will discusses health care trusts as an option for delivering health coverage for public safety employees. Michael Glynn, president of the Fort Worth Firefighters, talks about why the association considered a health care trust, how they got the city to buy into the idea and what the results have been thus far. Ron Kirkpatrick, CEO/President and Founder LBG Advisors, LLC, also joins the podcast to give insight on the intricacies of implementing and managing a health care trust. Relevant articles from Fort Worth Firefighters collective bargaining agreement Healthcare Trust Contract LISTEN

This month’s cases: * Employer May Not Unilaterally Impose Waiver Of Right To Bargain, Gator Lodge Number 67, FOP v. City of Gainesville, 46 FPER ¶ 169 (Fla. PERC 2019).* Not Improper ‘Direct Dealing’ For Negotiators To Have Sidebar Discussion, Jamison v. East Lake Tarpon Special Fire Control District, 46 FPER ¶ 153 (Fla. PERC Gen. Coun. 2019)* Firefighter Staffing Per Shift Negotiable, City of Everett v. PERC, 2019 WL 5541502 (Wash. App. 2019).* Pre-Statement Video Review Is A Negotiable Topic, Fraternal Order of Police v. City of Pittsburgh, Case No. PF-C-18-27-W (Pa. LRB ALJ 2019)* Arbitration Panel Rules In Favor Of Pre-Statement Review Of Video, City of Newton, JLMC 17-6002 (McSpiritt, 2019) LISTEN

Will discusses body cameras with Mike Rains and Rocky Lucia of the law firm Rains Lucia Stern St. Phalle & Silver, PC. They look at the history of body camera use in California, body cameras and criminal prosecutions of police officers, privacy matters, and what issues regarding body cameras are typically negotiated between a department and labor union. Studies cited in the podcast: Journal of Experimental CriminologyTemple University Study

This month, Will covers three recent news stories and four cases. News articles: Alaska State Troopers find fix for hiring woes: More pay https://www.adn.com/alaska-news/crime-courts/2019/11/07/pay-hikes-drive-surge-of-job-seekers-to-alaska-state-troopers/ Hennepin County Attorney’s Office on New Protocol: ‘No Privacy Rights in a Criminal Investigation’https://alphanewsmn.com/hennepin-county-attorneys-office-on-new-protocol-no-privacy-rights-in-a-criminal-investigation/ Nevada Highway Patrol Association becomes the third group of state employees to unionizehttps://www.rgj.com/story/news/politics/2019/10/18/nhp-troopers-join-push-unionize-under-new-law/4022638002/ Cases: ‘Witness’ Officer Entitled To Weingarten Representative, Bardelas v. City of Doral, 46 FPER ¶ 91 (Fla. PERC 2019). Corrections Officers Win $113 Million In Wage-And-Hour Lawsuit, Hootselle v. Missouri Dept. of Corrections, 2019 WL 4935933 (Mo. App. 2019).(Referenced case: Integrity Staffing Solutions, Inc. v. Busk, https://www.supremecourt.gov/opinions/14pdf/13-433_5h26.pdf) Favored Treatment To Fellow Officer Violates Ethics Statute, McGovern v. State Ethics Commission, 2019 WL 5078447 (Mass. App. 2019). Termination For Theft ‘Shocks Conscience” Of Court, Matter of Arroyo v O'Neill, 2019 NY Slip Op 06568 (A.D. 2019). LISTEN