Hank Hernandez
July, 2011
FLSA complaints need not be in writing
An officer tells a supervisor that she thinks the Department is not calculating overtime hours correctly, in violation of the Fair Labor Standards Act (FLSA), but she never files a formal, written complaint. A few weeks later, she begins receiving unwarranted negative comment cards about lack of teamwork, and eventually she’s administratively transferred. Can she file a lawsuit alleging retaliation for making an FLSA complaint? According to the new U.S. Supreme Court decision in Kasten v. Saint-Gobain Performance Plastics Corp., 131 S. Ct. 1325 (2011), the answer is yes. Employees do not have to submit complaints in writing to be covered by the FLSA’s anti-retaliation provisions.
The significant point for LAPD officers made by the court in Kasten is that the Department must take oral complaints by officers seriously. Based on the ruling, the City can no longer defend FLSA retaliation suits based on an employee’s failure to file a written complaint. In our view, the Kasten decision expands the scope of the FLSA’s anti-retaliation provisions by covering oral as well as written complaints. This means that covered employers are potentially liable for retaliatory acts of a much broader variety. Accordingly, the Department should be more diligent than ever regarding officers’ complaints about FLSA issues.
Beware of anonymous, pornographic Internet postings
In San Diego Unif. School Dist. v. Comm. On Prof. Competence, 2011 DJDAR 6297 (May 3, 2011), the California Court of Appeal, Fourth District, affirmed the termination of an experienced male public school teacher for posting an anonymous, sexually explicit advertisement that solicited sex, showed graphic photos of his genitalia and included obscene written text on an “18 and over” Craigslist page. A parent of a student reported the posting to the district. After viewing the posting, the teacher’s principal concluded that she had lost confidence in the teacher’s ability to be a role model to his students.
The court held that the teacher’s position as a role model, the misconduct itself and the failure to accept responsibility or recognize the seriousness of the misconduct demonstrated unfitness to teach. Finally, the court found that public posting of pornographic photos and obscene text constitutes immoral conduct that evidences “indecency” and “moral indifference.”
As we have also noted in past articles in this column, whenever the facts of a disciplinary case include public sexual activity by a police officer, you can expect the courts to go to great lengths to sustain the imposed disciplinary action. For instance, in City of San Diego v. Roe, (2004) 543 U.S. 77, the city terminated a police officer for his off-duty selling of sexually explicit videos of himself on eBay. The videos and video ads did not identify the officer by name, city or his employment with the city. The U.S. Supreme Court not only found that the officer’s rights to freedom of speech were not violated, it also found his conduct “detrimental to the mission and functions of the [city] employer.”
Release of officers’ names
The Department last month received a request pursuant to the California Public Records Act (CPRA) for the names of all officers who, as peace officers, had requested confidentiality from the Department of Motor Vehicles for vehicle registration and driver’s license information. The request came from a person who is challenging the legality of red light camera traffic enforcement by arguing, among other things, that officers receive preferential treatment because red light camera violations cannot be enforced against them in a private vehicle with confidential registered owner information.
The Department initially wished to object and not release the information requested; however, they were informed by the city attorney that their position could not be supported in a court of law. Accordingly, the Department had to release the names of only the officers who had requested confidentiality. No other information was released. We received many calls and emails from officers who received an email notification from the Department regarding the legality of the release of their names.
After discussion with our outside legal firm with expertise in this area, we concluded that the release of these officers’ names was proper pursuant to the CPRA request, and no legal grounds existed to challenge the Department’s actions in this matter. The California Supreme Court decision in Commission on Peace Officer Standards and Training v. Superior Court of Sacramento, et al., (2007) 42 Cal.4th 278, held, among other things, that officers’ names are not confidential. The court only found a narrow exception for undercover officers based on safety concerns. After consulting with the Department’s employee relations administrator, we determined that the names of undercover officers and retirees were not released.
Please contact us at the League if there are any questions. Happy Fourth of July!
