Employees Who Work Consecutive Overnight Shifts That Extend Two Workdays Are Not Entitled To Split Shift Premium Pay

The California Court of Appeal recently addressed the issue of whether consecutive overnight shifts, for example if an employee starts a shift in the evening of one workday, ends the morning of the next workday, and then starts a consecutive shift on the evening of the second workday, is a split shift for purposes of Wage Order No. 4.

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An employer blueprint for how to screw up at-will employment

In most states, absent a contract of employment, an employee is considered at-will (i.e., he or she can be fired for any reason or no reason at all). Many employers reinforce — in very prominent locations in employee handbooks — that their employees are at-will.

What happens, however, when an employer later promises an employee that she can take 12 months of leave and then return to her job?

Can the employer later renege and rely upon the at-will employment doctrine as a basis not to reinstate? Or is the employer SOL? Find out, after the jump…

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CFPD Hosted Board Workshop

Multiple Fire District representatives including Chiefs, Board members and firefighters from as far as Moke and Mi-wuk to as close as Copper descended upon Copperopolis Fire Protection Districts’ large meeting room on Saturday 7-9-11 to participate in a ‘Board Workshop’ presented by Larry Crabtree of Crabtree Consulting Services. (Crabtree Consulting Services specializes in “providing the full range administrative and management services to small and medium size fire departments.”)
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Board Workshop Room Available

There are still a few spots available for the Board Workshop this Saturday, July 9, 2011, in Copperopolis, California. Improve your skills as a Board Member or Chief Officer. Topics include: General Laws, Distric Governance, Board Dynamics, Human Resources, Board Meetings, and more.
Call or email today to reserve your spot. The cost is only $100.00 per District.

Board Workshop July 9, 2011

On July 9, 2011, Crabtree Consulting Services, LLC, will be presenting a Board Workshop hosted by the Copperopolis Fire Protection District. The Workshop will run from 9 AM to 4 PM. The cost is only $100.00 per participating district, regardless of how many board members or chief officers attend. Space is limited, so call or email now to reserve your spot. For more information read the brochure by clicking here.

FDAC Annual Conference

If you’re going to Tahoe for the Annual Conference of the Fire Districts Association of California (FDAC) in April (14 – 16), be sure to stop by our booth and say “Hi!”. We’ll also be presenting two workshops in conjunction with Command Strategies Consulting. The first is on Friday afternoon – the topic is the Firefighter Procedural Bill of Rights. The second workshop – on Supervision and the Problem Employee – is on Saturday morning after the Breakfast which we are again sponsoring.

We hope to see you there, at our booth, a workshop, or just for Breakfast on Saturday.

Employers May Collect Training Costs From Separated Employees

An employer that required an employee to repay the cost of her training did not violate the Fair Labor Standards Act, a federal appeals court has ruled.

The City of Oakland requires police officers who voluntarily resign before completing five years of service to repay a prorated share of their police academy training costs.

The plaintiff in Gordon v. City of Oakland, who left her employer after two years of service, claimed that the burden of repaying her training costs amounted to a “kickback” that is not permitted under the FLSA.

The FLSA requires that wages be paid “finally and unconditionally or ‘free and clear’”. If an employee “kicks back” wages to the employer, then the law’s minimum wage requirement may be violated. For example, if an employer deducts the cost of tools that an employee needs to perform her job, the FLSA would be violated if the deduction cuts into the minimum wage or overtime she is owed (29 C.F.R. §531.35).

But the 9th U.S. Circuit Court of Appeals, citing Heder v. City of Two Rivers, Wisconsin, 295 F.3d 777 (7th Cir. 2002), ruled that repaying the cost of training was “repayment of a voluntarily accepted loan,” not a kickback.

The city could have required applicants to obtain their training, in preparation for certification required by the state, independently prior to employment, the 9th Circuit noted. “It is important that this was not training required by the city itself,” noted Shlomo D. Katz, Counsel at Brown Rudnick LLP.  “Since the … certification is not unique to this one police department, the training benefitted the employee, who could take that training and work somewhere else.” (emphasis added)

Because the employer paid the employee her last paycheck in full at a rate above the minimum wage, it had complied with the FLSA’s minimum wage requirement and was thus free after that wage payment “to collect the training costs as an ordinary creditor,” ruled the court. (Gordon v. City of Oakland, No. 09-16167, 2010 WL 4673695 (9th Cir. Nov. 19, 2010))

NOTE: This information is not legal advice.  Before any action is taken based on what you read here you should consult an attorney of your own choosing.

Change To Firefighter Bill Of Rights

A new California state law (AB 2331Skinner) takes effect on January 1, 2011, which will make one change to the appeal process for fire fighters in California.  While this law adds only one new subsection to the law (at Government Code section 3254.5) the change might be substantial for your department.

Current Law

Current law, the Firefighter Procedural Bill of Rights or FBOR, mandates in addition to other requirements, that appeals of discipline be heard in conformance with the California Administrative Procedures Act (APA) (Government Code section 11500).  That Act sets out substantial procedural requirements, rules, and rights, along with mandating that an Administrative Law Judge (ALJ) from the Office of Administrative Hearings (OAH) either hear the appeal directly, or in the alternative, preside over the hearing of the agencies administrative hearing body.  The agency makes the final determination, either after hearing the appeal itself or after receiving the ALJ’s proposed decision.

New Law

This new law would keep the current appeal provisions intact for jurisdictions which don’t have a Memorandum Of Understanding (MOU) with a provision providing for binding arbitration of disciplinary appeals.  Jurisdictions that have an MOU provision for resolution of disciplinary appeals through binding arbitration will now be required to use the binding arbitration provision of the MOU; provided, however, that the hearing itself will still be conducted in conformance with the APA.  NOTE: Advisory arbitration clauses do not fall within the meaning of “binding arbitration” and are unaffected by this new subsection; departments with ‘advisory arbitration’ clauses will continue to fall within the parameters of the existing law.

Impact to Local Fire Departments and Districts

• Departments with Binding Arbitration Provisions in the MOUs:  These departments will be required to follow the arbitration provisions of the current MOUs.  This means that the arbitrator or arbitration panel will hear the discipline appeal and decide the case.  This decision will be binding on the department, effectively usurping the final decision making authority of the agency’s governing body, which is the current law for all departments (until this new law takes effect on January 1, 2011).
• Departments Without Binding Arbitration Provisions in MOUs or Departments Without MOUs:  These departments will continue to follow the existing provisions in the FBOR.  The agency will retain the final decision making authority as it exists in the current law.  There is no change for these departments. These departments will retain the authority for the final decision of disciplinary appeals after either hearing the appeal or receiving a proposed decision from the ALJ who conducted the hearing.
• All Departments:  All departments and districts should review their current policies and, if applicable MOU provisions, regarding discipline and appeals to ensure conformance with the FBOR.  The FBOR is state law and will supersede any district policies and MOUs where there is a conflict. If the department’s or district’s policies or MOUs were developed before the advent of the FBOR, it is likely that there is at the least an inconsistency and at the worst a direct conflict between the department or district policy (or MOU) and the FBOR. These inconsistencies and/or conflicts should be resolved BEFORE the need to use them in a disciplinary case arises.

Reference:
Government Code sections 3250 – 3262
Government Code sections 11500-11529
Assembly Bill 2331 Skinner (Signed by the Governor September 29, 2010)

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Larry Crabtree, a labor manager and retired fire fighter, is now a senior consultant with Crabtree Consulting Services, LLC, which provides administrative services to small and medium size fire departments. He can be reached at 916.271.1991 or by email at Larry@crabtreeconsulting.net

Is Training Critical?

What a silly question.  Every fire fighter, fire chief, and council or board member knows that training is probably the single most critical element of any effective and safe fire department.  We can do with fewer engines, older Jaws, repaired Hooligan Tools; but we must not, ever, scrimp on training.

It’s a safe bet that your department, like almost all departments, has a very extensive policy or set of policies on the training requirements.  You probably have a budget category exclusively identified for training.  You probably send your fire fighters to outside training on a regular basis. And I’ll bet that every fire fighter is required to engage in a minimum number of training hours.

But I’ll also bet that your department does not have a budget category, or even an explicit policy addressing the training of its governing board or city council.  Don’t you want your governing board to lead by example?  Don’t you want to make sure that they, like your line fire fighters, are trained, experienced, and experts in their role in the department?  Why then don’t we (the fire service in general) make it simple and easy, if not mandatory, for our governing bodies to get the training and education that they need to perform their extremely critical function in our departments?

The first step is to simply recognize that there is a need for the governing body to have access to relevant training, and be encouraged to take advantage of that training.  While the fire chief cannot require that his or her governing body complete a particular course of training, the fire chief should certainly encourage that body to get the relevant training.  One of the first steps might be to simply develop and ask the board to adopt a policy recognizing the need for training for both new and current board members.  A logical next step is to identify funds to support that expressed policy of ensuring relevant training for these, the very top members of the department.  This training can take a variety of forms, but should be identifiable, relevant, and reliable.  Don’t wait to begin the process of ensuring training for your leaders, begin today to put something together.

Crabtree Consulting Services, LLC, can assist you both in developing a comprehensive and relevant board policy.  Click here for an example of the beginnings of a comprehensive policy.  But don’t stop there.  Contact us and ask us to bring our Mini-Seminar on Board Roles, Responsibilities, and Dynamics to your own district.  This Mini-Seminar is team taught by a board member and a fire chief who have experienced the good, the bad, and the ugly, of governing boards.

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Crabtree Consulting Services, LLC, is a small business licensed in California. It provides a wide range of fire department administrative services for small and medium size fire departments.

http://crabtreeconsulting.net

Change Made To Firefighter Procedural Bill of Rights (FBOR)

A new law (AB 2331Skinner) taking effect on January 1, 2011, will make one substantial change to the appeal process for fire fighters in California.  The new law adds one new subsection to the law at Government Code section 3254.5.

Current Law

The current law, the Firefighter Procedural Bill of Rights or FBOR, mandates, in addition to other requirements, that appeals of discipline be heard in conformance with the California Administrative Procedures Act (APA) (Government Code section 11500).  That Act sets out substantial procedural requirements and rights, along with mandating that an Administrative Law Judge (ALJ) from the Office of Administrative Hearings (OAH) either hear the appeal directly, or in the alternative, preside over the hearing of the agencies administrative body.  The agency makes the final determination, either after hearing the appeal itself or after receiving the ALJ’s proposed decision.

New Law

This new law would keep the current appeal provisions intact for jurisdictions which don’t have a Memorandum Of Understanding (MOU) with a provision providing for binding arbitration of disciplinary appeals.  Jurisdictions that have an MOU provision for resolution of disciplinary appeals through binding arbitration will now be required to use the binding arbitration provision of the MOU; provided, however, that the hearing itself will still be conducted in conformance with the APA.  NOTE: Advisory Arbitration clauses do not fall within the meaning of “binding arbitration”; departments with ‘advisory arbitration’ clauses will fall within the parameters of the existing law.

Impact to Local Fire Departments and Districts

• Departments with Binding Arbitration Provisions in Current MOUs:  These departments will be required to follow the arbitration provisions of the current MOUs.  This means that the arbitrator or arbitration panel will hear the discipline appeal and decide the case.  This decision will be binding on the department, usurping the final decision making authority of the agency’s governing body, which is in the current law for all departments.
• Departments without Binding Arbitration Provisions in Current MOUs or without MOUs:  These departments will continue to follow the existing provisions in the FBOR.  The agency will retain the final decision making authority as it exists in the current law.  There is no change for these departments.
• All Departments:  All departments and districts should review their current policies and, if applicable MOU provisions, regarding discipline and appeals to ensure conformance with the FBOR.  Crabtree Consulting Services, LLC, is available to assist in this review and any necessary modifications.  Contact us with your questions or comments at: CCS Contact Page

Reference:
Government Code sections 3250 – 3262
Government Code sections 11500-11529
Assembly Bill 2331 Skinner (Signed by the Governor September 29, 2010)

Contact Crabtree Consulting Services, LLC, for this and all your fire department administrative needs.