Legal Aspects of Employment in the Fire Service

THE
LIABILITY AUDIT PART 1

            There are several legal aspects to
consider in the fire service.  More and
more, the job of firefighter becomes more popular.  The number of applications continues to rise
year after year.  This can be one of the
most rewarding jobs, with excellent pay and benefits.  However, these jobs must be carefully filled.  Fire departments have begun taking careful
measures in how they hire and train their personnel.  Discipline and firing personnel has also
become a very tricky thing to do without the proper programs and procedures in
place.  This essay will discuss the legal
aspects of various policies and procedures in place for fire departments, as well
as the legal considerations of each area.

HIRING
REQUIREMENTS

            After reviewing several departments
criteria for hiring, there seems to be very specific criteria from most
departments about eligibility.  Most
departments require their employees to be 18 years of age with a high school
diploma.  They must also have no criminal
history and be legally employable in the United States.  Another common criterion is an age
limit.  In most instances, the age limit
for appointment to position of firefighter at the entry level is 36.  Notably, the Indianapolis Fire Department has
added brand new guidelines that state a member completing 20 years of military
service with an honorable discharge will be eligible for appointment until the
age of 40 years and 6 months.  This is
due to the physically demanding nature of the job.  This job requires both physical strength and
stamina, therefore, hiring only those physically capable of performing the job
is of the utmost importance.  Though
every firefighter does not drive, another requirement is a valid driver’s
license.  Over time, each firefighter
typically becomes an engineer at some point, and is responsible for the safe
driving and operation of fire apparatus. 
Lastly, a requirement commonly seen among all departments is the ability
to speak and write effectively in the English language. 

            These requirements are very clear
and expressly written to prevent any misunderstanding.  There should be no legal precedent to
challenge any of these requirements. 
They are all well understood and do not legally prevent anyone from
gaining employment in the United States. 
One area of concern however is the requirement to be able to speak and
communicate effectively in English.  This
could preclude a legal citizen from being eligible for application
consideration.  Title VI and VII of the
Civil Rights act, which are federal law, prohibit language discrimination
unless it is a business necessity.  While
this requirement is completely legal, it may cause frequent defending from a
legal standpoint.  A recommended action
would include written requirements that also express why it is a
requirement.  Placing a disclaimer
statement on the website and all areas application requirements can be found
would alleviate this problem.  This
applies to all the requirements that could potentially be perceived as illegal,
and is not isolated to just the English-speaking requirement. 

JOB
DESCRIPTIONS

            Due to the nature of the job of
firefighting, job descriptions can be extremely difficult to pinpoint for
accurate description.  Given the fact
that no two emergencies are the same, and unknown actions will be required by
emergency personnel to resolve it, there is no way to identify all the dangers
and possible scenarios responders could face. Due to these facts, job
descriptions are vague in nature and simply imply that dangerous duties will be
encountered.  Some common job description
bullet statements include:

• Perform firefighting
  work, including preventing, combating and extinguishing fires to protect lives,
  property and the environment
• Perform emergency medical
  care within scope of practice
• Quickly and effectively
  analyze hazardous situations and take appropriate course of action
• Participate in training,
  classes and drills in firefighting, emergency medical care, disaster response
  and specialized rescue

Due to the dangerous
nature of firefighting duties, job descriptions cannot possibly be summarized
all inclusively.  Therefore, a thorough
understanding of these duties must be discussed to all potential applicants so
that they understand the nature of their job duties.  When someone accepts employment, they are
legally bound to perform these duties by the jurisdiction of employment.  In Fort Worth, Artie Dawson was relieved of
her duties as a firefighter for refusal to follow orders.  (Boyd, 2007). 
As there is no way to identify potential situations that firefighters
may suddenly choose to disobey an order, an improvement that should be
considered is a comprehensive list of actions that could result in
consideration for termination or actions that could be subjected to a review
board for consideration of disciplinary action. 
This specific case was appealed, and legal parties did meet to discuss
the legalities of the termination. 
Ultimately, the termination was upheld. 

TESTING
APPLICANTS

            The firefighter testing process can
involve many different aspects.  These
tests may include written tests, oral interviews and physical fitness
tests.  All fire departments offer a
written test for basic skills as part of the selection process.  The written test includes basic math,
English, reading comprehension and grammar. 
These are important foundational skills necessary for successful
appointment to the position of firefighter. 
The oral interview gives the department a chance to meet the candidate
face to face.  During this interview,
candidates are given scenarios and must verbally respond based on their morals
and beliefs.  Lastly, the physical
fitness test measures both strength and stamina.  Most departments agree that the physical test
is not as difficult as the job itself may be at times.  Certain criteria may be part of the test,
such as setting run distance times or lifting a set amount of weight.

            While these tests seem straight
forward, they can be difficult to administer. 
Forgiveness may be a weakness by the test administrator.  For example, if a 1-mile run is required to
be completed in 8:00 minutes or less, and a candidate finishes in 8:02, an
administrator may pass the candidate even though the time limit was not met by
rule.  It is also important to ensure the
test is fair to all candidates, and that baseline standards are made clear and
met to be considered for employment.  In
Austin, Texas, the written test was determined to disproportionately eliminate
both African American and Latin American candidates.  (Murphy, 2014).  The fire department amended its test in 2013,
but was still found to be unfair for all applicants.  The department also agreed to pay $780,000.00
to candidates eligible for back pay.  For
departments to protect themselves, a thorough review of testing procedures
should be evaluated by a team of legal experts to verify their effectiveness
and legality.

PHYSICAL
AND MENTAL STANDARDS

            During the hiring process,
candidates are required to undergo medical examinations, to include physical
testing and mental evaluations to determine psychological abilities to function
under pressure and endure the stresses firefighters go through.  One of the most important, yet most neglected
aspects is the mental evaluation. 
Firefighters and Paramedics undergo severe stresses and deal with
horrific events.  It is imperative to
monitor the mental health of all current and prospective employees.  These events are difficult to both diagnose
and treat, therefore, careful monitoring must be done.  Indiana Title Code 36 currently provides
provisions for evaluating employees during the application process, then every
5 years if appointed to a police or fire department position.

            To maintain highly functioning
employees, the department needs to be prepared to address mental health issues
immediately upon recognition.  To provide
care for the employees, the department should consider a program to offer free
counseling to members that need assistance at any time.  A counseling hotline would be an effective
outlet.  Regarding legal aspects, the
department could be held liable for any actions performed by employees
suffering from a mental illness or issue that is undiagnosed.  This would be detrimental to the department
and reduce public support.  This could
also result in an unnecessary lawsuit or legal action taken by anyone injured
or endangered by the affected member.

RESIDENCY

            Historically, fire departments have
required their employees to reside in the city or township that they work in,
or within a certain distance of their place of employment.  In larger cities, this works sufficiently due
to the large number of personnel available in these areas.  Smaller departments without a large populous
have had difficulty recruiting due to these parameters.

            The city of Indianapolis currently
requires all firefighters to reside in Marion County, the host county of
Indianapolis, or a surrounding county immediately adjacent to Marion
County.  After acceptance of the
position, the individual has 6 months to comply with this requirement or face
termination.  In Milwaukee, Wisconsin, a
ruling was just made that overturned a law that had been in place since 1938.  The court ruled that its city employees no
longer had legal ability to require its employees to reside in the city
limits.  (Bauer, 2016).  Now more than 7,000 employees have the luxury
of choosing where they live, and the city has more hiring potential with this
law removed.  Indianapolis should also
remove this law.  It is unlikely to
assume that anyone outside Marion County or an adjoining county would seek
employment in the city.  It should also
be assumed that all transportation costs are to be paid by the employee.

AGE
DISCRIMINATION

            Age discrimination can be a
difficult topic to discuss in the firefighting career field.  Due to the physical requirements, it is
customary to employ physically capable personnel of responding to emergencies.  As firefighter’s progress, they generally
assume roles that require less physical strength and stamina, such as Training
Officer, Battalion Chief or higher. 
These roles are supervisory in nature. 
A common cutoff age to be hired is 36. 
This gives the department time to employ its personnel for a long enough
period for them to reach retirement age, while also still being physically fit.

            In a fire department, age is
typically not an issue.  Most departments
have a maximum age requirement for hiring, but not a maximum age that an
employee must resign after reaching.  So
long as the department maintains an active physical fitness program, and the
member meets the requirements of any physical assessment as well as any other
employment conditions, employment cannot be terminated by a factor of age
alone.  In one instance, a California
firefighter filed a lawsuit alleging he had been terminated based on age
discrimination.  At 62, George Corley was
terminated despite having an impeccable service record.  He was ultimately awarded $704,000.00 because
of the lawsuit.  (San Bernadino County
Sun, 2016).  It is critical to eliminate
any discrimination in the workplace, which protects departments from any legal
action by its employees.

PROMOTIONAL
TESTING

            Testing for promotion in the fire
department can be one of the most stressful aspects of being a
firefighter.  Selection is very
competitive and positions are hard to come by. 
In most cases, the jobs only become available from others promoting up,
which is usually only possible when someone retires.  Job satisfaction in the fire service is very
high, but it is nonetheless a job. 
Testing consists of written tests, practical exams depending on the
department and oral interviews.  Clear
standards must be established and followed for selection criteria.  The Indianapolis Fire Department selects
individuals for promotion based on these criteria.  After two years, the promotion list expires.  If not chosen for promotion during this time,
the candidate must retest, and faces the possibility of not being selected
again.

            Regardless of the type of promotion,
fire service promotions are always subject to interpretation and there are
always those that feel they were unfairly passed over for promotion
consideration.  For future promotion
lists, a strong recommendation would include debriefing the non-selected
individuals the areas they were deficient in. 
Providing them with an explanation as to why they were passed over for
promotion would alleviate any rumors and provide closure to the candidate.  An example of the ramifications is found in
the case of Dougherty et al v. City of
Philadelphia et al, where 14 firefighters filed suit against their
department for passing them over for promotion to favor minorities.

RACE
DISCRIMINATION

            Racial discrimination is quite
possibly the most sensitive issue in the workplace, coupled with sexual
harassment.  Racial discrimination can
come in many forms and is widely misunderstood due to a lack of understanding.  One never knows what action, comment or
suggestion will be viewed as offensive. 
In every department researched, there is zero tolerance of racial
discrimination, yet it happens nearly every day.  Current procedures call for an immediate
investigation regarding racial discrimination. 
These cases will be considered substantiated if there is evidence of
discrimination and unsubstantiated if there is no evidence to support a claim
of discrimination.

            After a case in Los Angeles, it is
noted the extent of financial cost and public loss of confidence that a racial
discrimination case can bring upon a department.  A Los Angeles firefighter was awarded 2.7
million dollars after his coworkers put dog food in one of his meals and did
not tell him.  (Becerra, 2013).  This could have been viewed as
discrimination, or simply hazing of a new member of the department.  Either way, the implication was made, and the
case became very public.  It is of the
utmost importance for a department to avoid such high-profile issues.

SEXUAL
HARASSMENT

            Along with racial discrimination
previously discussed, sexual harassment is another leading cause of problems in
the fire service.  As with discrimination
cases, the department also has a zero-tolerance policy on sexual
harassment.  With the sexual harassment
cases, if the case is determined to be substantiated, the violating member is
placed on administrative leave until the conclusion of a disciplinary hearing
to determine what actions to take against the member.  Sexual harassment is similar to discrimination
situations in that it is very difficult to determine what will be considered
offensive from one person to the next.

            There have been several instances of
case law involving sexual harassment. 
According the NFPA in 2012, only 3% of firefighters in the United States
were female.  Harassment of any kind is a
direct violation of Title VII of the Civil Rights Act of 1964, which defines
harassment as employment discrimination. 
Education and training programs must be frequent enough to convey the
importance of proper behavior in the workplace. 
All training should be documented and filed for easy verification.  The training office typically has
responsibility of all department training, and should be accountable for this
training and documentation.  Provisions
shall also be made such that anyone making a report of sexual harassment be
free from reprisal for making such reports of harassment. (Carter, 2014).

PREGNANCY
DISCRIMINATION

            Pregnancy in the fire service is
difficult to isolate into a given policy. 
Each pregnancy is different, and requires careful consideration as to
how to modify duties or place pregnant personnel on medical or maternity
leave.  Department policy is clear in
that an employee cannot be terminated solely because they are pregnant.  To do so would be a violation of the federal
Pregnancy Discrimination Act.  Department
policies are varied from location to location, but at no time should the mother
be placed in a position that the health of the unborn child or mother be placed
in jeopardy.

            There are more than enough cases of
pregnancy discrimination on record to review to ensure that proper legal
considerations are accounted for when making policy.  While there is no clear answer on when to
remove someone from duty for the safety of the pregnancy, the decision should
be made with consent of both the mother and doctor.  Departments must place a firm plan in place
that if the mother and doctor agree that duty should be modified, the
department must accommodate.  In a
related situation, the U.S. Department of Justice brought suit against the town
of Davie, Florida for the fire departments treatment of pregnant women.  Under their policy, women could not be placed
on light duty until the second trimester, regardless of their physical abilities
or doctor recommendation.  The town
denied accusations of their policies, but was still forced to revise their
policies within 120 days. (Varone, 2012).

ALCOHOL
USE

            The use of alcohol is a policy that
must be carefully worded and fully explained to all members of the
organization.  Local and state laws
sometimes leave room for interpretation. 
For example, common knowledge is that .08 is the legal limit for a
Driving Under the Influence (DUI) charge. 
Most states also have a Driving While Impaired (DWI) standard
established.  Departments must ensure
that each individual if aware of the policy in place, and it is recommended to
have a signed statement from each member concurring with the policy after
review of what is appropriate and what is an action that could result in
discipline.  A few examples if
inappropriate behavior and parameters of responding to an emergency in the fire
service outlined below are taken directly from the Green Ridge Volunteer Fire Company:

1. No member of Green Ridge Volunteer
   Fire Company shall respond to an alarm, drive any fire department owned
   vehicle, attend training drills, attend fire department meetings, be on Fire
   Company grounds or attend any fire department event while under the influence
   of either alcohol and/or an illegal controlled substance.

• Members shall be considered to
  be under the influence of alcohol when they appear visibly intoxicated, visibly
  under the influence of an illegally controlled substance or a controlled
  substance not used as prescribed or when their blood alcohol concentration is
  0.04% or above.

• No member of Green Ridge
  Volunteer Fire Company shall, at any time, be permitted to “sleep off” their
  intoxicated state on Fire Company owned property. This includes all members,
  including those that participate in the live-in program.

• The members of Green Ridge
  Volunteer Fire Company agree not to consume any alcoholic beverages or illegal
  controlled substances while on fire department property, while on fire ground
  operations, while on fire department vehicles or while otherwise engaged in
  fire department activities. This includes all functions with the exception of a
  member’s participation in a private hall rental when he or she is engaged in
  Fire Company activities and the exception of Fire Company functions approved by
  the Board of Directors. The Board of Directors shall have the authority to
  enact specific limiting behaviors related to alcohol beverage consumption at
  Fire Company functions, including placing the Company out of service during the
  function.

• No member of Green Ridge
  Volunteer Fire Company shall come into contact with any Emergency Medical
  Services patient with a blood alcohol concentration of 0.04% or above or while
  visibly intoxicated or under the influence of an illegal controlled substance.

• All members of the Green Ridge
  Volunteer Fire Company shall sign this policy indicating that they have read
  and understand this policy, agree to be bound by the policy and consent to be
  tested for the presence of alcohol and/or controlled substances in accordance
  with this policy. Any member who refuses to sign this policy shall not be
  permitted to participate in any emergency or non-emergency Fire Company
  activities.

As you can see
from the sample policy on alcohol use, there are generally very clear
definitions of what is acceptable in the fire service.  Typically, a disciplinary action that does
not result in termination will not have a follow up from a member’s legal
representative, however, they are entitled to legal representation.  So long as the policy in place is clearly
understood, legally sound and signed by the member, the department should have
no cause for concern.  It is also
imperative that alcohol use in the fire service is clearly understood by those
in leadership positions.  In a study
conducted by FEMA’s Research and Development, they found that 85% of career and
71% of volunteer firefighters had consumed alcohol in the past month.
Approximately half of the members surveyed reported binge drinking in the past
month. (Jahnke, 2015).  This highlights
the importance of the issue as well as the importance of administrators and
officers to understand the impacts of alcohol use.

UNION ISSUES

In the
modern workforce, the Union made most of its impact in the construction
industry in its early developmental days. 
Since then, it has gained a significant amount of momentum and has
become very popular in the fire service. 
First in the big cities, then slowly working its way into even the
volunteer departments.  The Union is
widely misunderstood.  There are still
several people who think the Union is a collection of employees banded together
to resist issues brought from leadership. 
This is not the case.  The purpose
of the Union is to establish safe and fair working conditions for all
employees.  Working together mutually is
key to conflict resolution.

When
working with a Union, it is important to understand all the rights Union
members are entitled to before beginning any type of investigation, interview
or disciplinary action.  Advising members
of their Union rights is a responsibility that resides with the Union
representatives.  It is not the responsibility
of the department.  However, a sound
understanding will eliminate any confusion, and avoid conflict with Union
members.  A case decided by the Supreme
Court, National Labor Relations Board v.
J. Weingarten, Inc. in 1975 still stands as one of the most prominent cases
involving the fire service.  This was the
result of being denied Union representation when disciplined or
investigated.  Even today, it is known as
a Weingarten violation.  This violation
will prohibit the member from being disciplined.  This case emphasizes the importance of
maintaining a positive relationship with the Union and its members.

OVERTIME

In
cases of manning shortages, it may be necessary to work individuals above and
beyond the normal scope of their duties. 
In these instances, extra pay will be needed to compensate members for
working beyond the scheduled work week. 
The overtime system must be monitored, and not run without any
oversight.  The biggest reasons are
safety and fatigue.  Firefighters and
emergency responders operate under heavy stress loads and work potentially long
hours of manual labor without breaks.  If
the department has a Human Resources Office, this should be the agency that
monitors the amount of overtime an individual is logging.

Due to
long work hours, overtime is stringently monitored by most departments for
signs of fatigue and stress.  While
driving is only a small part of the emergency services aspect, Maggie’s Law
illustrates an excellent example of how fatigue can lead to disaster.  This law applies to vehicle operators who
cause accidents due to lack of sleep.  When
normal sleep schedules are encountered, which is very common in the fire
service, attention spans and focus are minimized.  This leads to accidents.  Even though Maggie’s Law applies to driving
rules, there is an implication that more legislation will follow over time due
to accidents tied to long work hours and minimal rest.

GROOMING

Grooming
standards in the fire service can be a debatable topic.  Some argue that stringent grooming standards
are necessary for a professional appearance and safety of the employees.  Others argue that there is no bearing on
length of hair and facial hair requirements. 
These are the two biggest areas of discussion with grooming.  A third popular topic, though with little
bearing on safety, is tattoos.  While
tattoos in general do not render someone professional or unprofessional, the
perception from the customers is what is important.

Most of
these issues are expressly written in fire department policy.  Some consideration needs to be given to those
that exceed the limitations due to cultural or religious beliefs.  These individuals cannot be disciplined or forced
to comply with these regulations for any reason, unless there is a true threat
to the safety of the employee of coworkers. 
In past cases, firefighters were asked to shave their beards or cut
their hair to comply with regulations, only to be met by the American Civil
Liberties Union, which frequently represents those who feel their religious or
cultural beliefs have been violated.

In
conclusion, there are many aspects of the fire service that are
overlooked.  It is more than just
extinguishing fires and responding to medical emergencies.  There is a significant amount of public
education and outreach to educate and protect the community that is being
served.  Professional services and
conduct are always paramount while wearing the uniform.  One person can give the entire department a
bad public image.  Every department must
review policies and procedures on at least an annual basis to determine if they
are still valid, appropriate and legal. 
This essay has highlighted some of the various aspects of a liability
audit and their implications when used properly, or not followed.

References

• Language Discrimination.  Retrieved from https://www.americanbar.org/content/dam/aba/administrative/labor_law/meetings/2010/annualconference/034.authcheckdam.pdf
• Indianapolis Fire Department Hiring Policy.  Retrieved from http://www.indy.gov/eGov/City/DPS/IFD/Recruitment/Pages/Hiring%20Process.aspx
• Firefighter Responsibilities and Duties.  Retrived from https://www.indeed.com/hire/job-description/firefighter
• Boyd, D. (2007).  Texas Firefighter Appeals Firing For Refusing to Follow Orders.  Retrieved from https://www.firerescue1.com/labor-issues/articles/328694-Texas-firefighter-appeals-firing-for-refusing-to-follow-orders/
• Murphy, K. (2014). Fire Service Legal Issues-Year End Summary.  Retrieved from http://community.fireengineering.com/profiles/blog/show?id=1219672%3ABlogPost%3A609802
• Indiana Code Title 36.  Retrieved from http://codes.findlaw.com/in/title-36-local-government/in-code-sect-36-8-8-19.html
• Bauer, S. (2016).  Court Rules Wis. City Cannot Enforce Firefighter Residency Requirements.  Retrieved from https://www.firerescue1.com/fire-department-management/articles/101725018-Court-rules-Wis-city-cannot-enforce-firefighter-residency-requirements/
• San Bernadino County Sun. (2016). Former Fire Chief Awarded 704k In Age Discrimination Suit.  Retrieved from https://www.firechief.com/2016/04/14/former-fire-chief-awarded-704k-in-age-discrimination-suit/
• Becerra, H. (2013).  L.A. Firefighter Wins $1.1 Million Racial Discrimination Verdict.  Retrieved from http://www.latimes.com/local/lanow/la-me-ln-fire-department-lawsuit-20131125-story.html
• Carter, H. (2014).  Think Twice: Harassment in The Fire Station.  Retrieved from http://www.firehouse.com/article/12010222/understanding-harassment-in-the-firehouse
• Varone, C. (2012).  Fire Law: Pregnancy Discrimination in The Fire Service.  Retrieved from http://www.firehouse.com/article/10767390/fire-law-pregnancy-discrimination-in-the-fire-service
• Jahnke, S. (2015).  Firefighters and Alcohol, What the Data Says.  Retrieved from https://www.firerescue1.com/fire-chief/articles/2150808-Firefighters-and-alcohol-what-the-data-says/
• Varone, C. (2015).  Your Right to Union Representation.  Retreived from http://www.firehouse.com/article/12084323/fire-law-your-right-to-union-representation
• Murphy, J. (2011).  Mandatory Overtime: A Legal and Safety Issue.  Retrieved from http://www.fireengineering.com/articles/2011/01/mandatory-ot.html