• May 24, 2020
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    May 07, 2020

       The Labor Injunction

          By Gary Bailey, Attorney - Thursday, May 7, 2020


    Quite often, the legal staff at the Illinois FOP Labor Council is asked whether it is possible to go to court and obtain an injunction or temporary restraining order to stop a public employer from taking actions that violate the contract.  Recently, the Illinois Appellate Court for the First District addressed the legal foundation to obtain this rare judicial remedy in Fraternal Order of Police, Chicago Lodge No. 7, et al.  v. City of Chicago, et al., No. 1-20-0066 (January 21, 2020).

    The City announced that, based upon findings associated with the entry of a consent decree, it was changing the patrol shift schedule by reducing the number of day-off groups from six to three, and changing the patrol start times that had been negotiated.  The Union filed grievances over these two changes and demanded an expedited arbitration.  Two days later, the Union filed an emergency motion in the Circuit Court of Cook County, seeking a Temporary Restraining Order requesting the Court to enjoin both schedule changes until the grievances could be arbitrated.

    Although the circuit court found that the Union had a likelihood of success on the merits of their grievances, which the City was duty-bound to arbitrate, the court held that the hardships cited by the union did not rise to the level of “irreparable harm” needed to establish the extraordinary remedy of injunctive relief.  It determined the Union could obtain reinstatement of the previous schedule if an arbitrator so ordered, and the Union had not proven that it would suffer more from a denial of the injunction than the Police Department would from its issuance. 

    On appeal, the Appellate Court noted that federal and state policies prohibit the issuance of injunctions in labor disputes involving the arbitration of grievances so as to encourage parties to work out their issues without judicial involvement.  However, the Court noted that both Illinois and federal courts have held that there is an exception to that general rule in cases where an injunction was necessary “to preserve the arbitral process”  Under that exception, a court can order an employer to stop the disputed changes and maintain the status quo pending arbitration. 

    To obtain an injunction under this exception, a union must prove that that the grievance is over an issue the parties are bound (by the collective bargaining agreement) to arbitrate; that the breaches are occurring and will continue to occur, or have been threatened and will be committed; that the union has suffered or will suffer irreparable harm as a result; and that the union will suffer more harm from the denial of the injunction that the employer will from its issuance. 

    In addition, a party seeking injunctive relief must also show a likelihood of success on the merits of the underlying dispute.  But in cases involving the arbitration of grievances, courts are wary to infringe upon predetermining the merits of the grievance as it encroaches upon the responsibility of the arbitrator.  Instead, the courts merely examine the dispute to ensure the grievance is not frivolous or a futile exercise.

    In the Lodge 7 case, the Appellate Court viewed the Union‘s evidence (in the form of sworn affidavits) that the changes to the schedule would create child-care problems, ranging from impossible to expensive, and deteriorate quality time with their children, which no adequate remedy at law could compensate.  The Union further argued that changes to day-off groups would destroy long-standing partner relationships, whereby officers would lose peace of mind of their sense of security, both of which were needed to assure back-up safety in dangerous situations.

    The Court examined prior caselaw where injunctions were upheld and were dissolved.  The Court noted that the type of harm that must be established to obtain an injunction is damage to the arbitral process.  The Court found that an arbitrator could grant the union the remedy it wanted: restoration of the previous schedule.  The Court noted that an award might not be able to compensate officers for the full extent of the disruption in their lives, but that factor did not render the arbitration process so meaningless that it justified the issuance of an injunction.  The lower court’s ruling was upheld.


    Mar 24, 2020

       To Use or not Use a Use of Force Expert... That is the Question.

          By Jennifer Sexton, Attorney - Tuesday, March 24, 2020


             Today’s climate is finding more and more officers being disciplined, terminated and even prosecuted for excessive use of force allegations.  While the burden still squarely sits on the employer or prosecutor to prove that excessive force has been used, should the officer be more proactive in fighting the claims? 

    Recently, an Amtrak police officer was charged with first degree murder.  The case involved a suspect who was acting suspiciously and was approached to be searched for weapons.  The suspect began arguing with the officers and then fled on foot.  As the suspect fled, he turned and reached into his left pocket. The officer, believing the suspect to be reaching for a gun, fired his weapon and hit the suspect, killing him.   At trial, a use of force expert testified to the trajectory of the bullet and to the escalating threat that the officer reasonably believed he and his partner were experiencing.   The judge heavily relied on the testimony given by the use of force expert and actually stated that the expert’s testimony alone was enough to raise reasonable doubt.   The officer was found not guilty on all charges.   

    In another example, a male subject with a history of mental health issues went and purchased a pellet gun from a pawn shop.  The pellet gun closely matched a .22 rifle in resemblance.  Three deputies responded to calls about a man with a gun and drew their firearms at the rifle toting suspect, who was carrying the rifle across his back in a crucifix fashion.  Their verbal commands were ignored, while the suspect continued to walk away from deputies and towards a pool full of kids.  The suspect ultimately turned towards the deputies, brought the rifle towards the front of himself and was shot in the chest twice by one of the deputies.  The three deputies all provided different testimony as to how the suspect brought the rifle to the front of him. 

    One deputy said the rifle was kept in a horizontal fashion, another said with the barrel up (port arms style) and the third, the deputy who shot, stated the suspect had shouldered the rifle and raised it towards him.  The discrepancy in statements, and the fact that the suspect was shown to be wearing earbuds at the time, caused controversy.  A Force Science Analyst testified before the grand jury that the different testimonies of the deputies could be compared to that of an NFL game, in which a play can look completely different based on the angle of the camera (or line of sight in this incident).  The analyst showed clearly from the gunshot wounds themselves that the suspect had been squarely facing the deputy who fired. 

    Additionally, the analyst showed how a deputy normally will focus on the threat and may only see the barrel of the rifle.  Therefore, with his complete focus on the barrel, he could have reasonably viewed the rifle as being shouldered.  Action/reaction times were also demonstrated to show the necessity of firing when the deputy did.  Further, the analyst addressed why only one deputy fired, which could be based on varying stress levels of the deputies and the mental processing times involved which can be unique to each individual deputy.  Finally, the analyst spoke to the earbuds by testifying that it is not a requirement that deputies assess hearing capabilities prior to firing and that it is reasonable to expect the deputies to focus on the rifle and not on the earbuds during the incident (indeed all of the witnesses also failed to say, or observe, that the suspect was wearing earbuds since they were also presumably focused on the rifle).  The criminal case against the deputy was dropped.  (This account was provided during a Force Science training attended by Dan Bailey, a Field Representative out of our Springfield Office.)

    There can be a downside to using a use of force expert. Once an officer hires an expert to review his case, the results may be used against the officer.   In a situation where whether  a use of force was justified is a close call,  it may be better to rely on the cross examination of the employer’s or the State’s expert. 


    Jan 21, 2020

       Required to use personal items or have personal equipment damaged on duty?

         You may now be able to be reimbursed….even if your CBA is silent

                                        By Joe Rose, Attorney - Tuesday, January 21, 2020


       

                A new 2019 law in Illinois may allow our members to be reimbursed for expenses or losses that occur through the performance of employment duties.  Prior to this law, only contractual reimbursement agreements between employees and employers could be enforced.

       

                The law (820 ILCS 115/9.5) mandates “[a]n employer shall reimburse an employee for all necessary expenditures or losses incurred by the employee within the employee's scope of employment and directly related to services performed for the employer.”  The law further states, “’necessary expenditures’ means all reasonable expenditures or losses required of the employee in the discharge of employment duties and that inure to the primary benefit of the employer.”  To be liable under the law, the employer must have “authorized or required the employee to incur the necessary expenditure” for the employee to be entitled to reimbursement.   The law, however, will not allow reimbursement if it is found that the employee acted negligently, if the loss was due to normal wear and tear, or if theft of property occurs due to the negligent fault of the employee.

       

                If you think you have a necessary expenditure that the employer should reimburse, you will need to keep supporting documentation and submit a claim to the employer within 30 days, unless an employer’s policy allows a longer deadline.  If you are unable to find supporting documentation or it is missing or lost, the law simply requires that you submit a signed statement regarding any receipts. 

                How much reimbursement on a particular expense or loss does the law mandate? What type of items and expenses does the law cover?  Answers to these questions are not clear under the new law.  What is clear is that employers are allowed, but not mandated, to enact policies with specifications or guidelines for necessary expenditures and reimbursable amounts, as long as those policies do not provide for zero or de minimis (meaning- ridiculously low) reimbursement.  If your employer does not have a pre-defined reimbursement policy that lists unilaterally set reimbursement amounts, the lack of a policy may work in your benefit to get a higher reimbursable rate on a particular expense or loss.

                Like any new law, it will require Illinois Department of Labor and Illinois court guidance to shed light on what type of expenditures and losses must be reimbursed and what may be an acceptable calculation of reimbursement for a particular expense or loss.  Other state court decisions with similar statutory language have found, for instance, employers must reimburse employees for a portion of cell phone or internet service plans when use of such services are required by their employer.  Due to a large number of our members required to answer and be available for work calls both on and off duty, take evidentiary photos, respond to and answer text messages and check and respond to emails through the use of personal devices, a strong argument may be able to be made that this new law will require some amount of employer reimbursement for personal communication devices/data plans.

       

                Members should keep this new law in mind if they are also required to personally purchase any duty equipment that is required by the employer.  Additionally, members should examine any employer reimbursement policy.  Under the new law, failure to abide by an employer’s written expense reimbursement policy may result in denial of a claim.

       

                If your CBA has provisions on reimbursement of expenses or losses you can contact your FOP-LC representative if you have any questions.  If contractual options are limited or unavailable, the law allows you to seek civil enforcement and monetary recovery.  If you believe you may have a civil claim, you should contact the Illinois Department of Labor and/or a civil attorney to seek remedy. 




    Page Last Updated: May 07, 2020 (09:41:02)
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