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:
- 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
