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Back to Archives | Back to August 2006 Contents 

Chief's Counsel

Supervisory Law Basics for New Chiefs and Other Supervisors

By Julie Risher, Legal Advisor, Winston-Salem, North Carolina, Police Department

ecisions of chiefs of police and other supervisors involving their personnel often have federal law implications. Supervisors and managers should be at least generally aware of relevant supervisory law so that they can spot issues that may require legal consideration when they exercise their supervisory duties. New chiefs often have experience with these matters and sometimes attend special training for their new jobs. Most large agencies have employment law training programs for newly promoted supervisors and managers. Some small to midsize agencies do not. Liability exposure and other problems may be lessened by at least teaching supervisors and managers what federal laws may affect their decisions.

The following discussion is in no way intended to be an exhaustive primer on employment and supervisory law. Rather, the following general discussion is intended to acquaint supervisors and managers with certain federal law issues so that they can spot those legal issues in their day-to-day work and then seek legal advice. Of course, supervisors and managers should also consult their legal advisors for further information about state and local employment and supervisory law. The advice of local counsel is essential and highly recommended.

Fair Labor Standards Act (FLSA)
The FLSA establishes federally mandated minimum age and overtime standards, among other things. Pursuant to regulations promulgated by the U.S. Department of Labor, employees are classified as either exempt or nonexempt. Nonexempt, nonsworn employees may work no more than 40 hours in a given week unless the employer pays them overtime or gives them compensatory time at the rate of one and one-half times hours worked. For sworn employees, FLSA contains a special section 207(k) exemption.1 Most state and local governments have declared their intention to apply the section 207(k) exemption, which enables them to declare the work period as a regularly recurring period of seven to 28 days. Many law enforcement agencies use the 28-day, 171-hour exemption. Supervisors who are unsure of the period applied in their agency should consult human resources or the lawyer advising the agency on such matters.

Agencies must be careful when classifying an employee as exempt or nonexempt. Under the DOL's newly promulgated regulations, the administrative and executive exemption tests have been revised. Many smaller agencies may benefit from engaging consultant services to develop a task analysis for positions the agency has classified as, or wishes to classify as, exempt. This task analysis of the actual functions performed by individuals in those positions will enable the agency to seek a legal opinion regarding whether the positions are properly classified as exempt or nonexempt.2

Section 1983
Under 18 U.S.C. 1983, a plaintiff may sue employers and supervisors who negligently hire, supervise, and retain an employee or fail to train an employee. The negligent retention and negligent supervision cases generally involve poor supervisory performance, such as failing to investigate complaints or discipline problem employees. First-line supervisors generally do not have to worry about liability for negligent hiring, but they may face liability for negligent supervision or failure to train. To establish supervisor liability the plaintiff must prove that (1) the supervisor had actual or constructive knowledge that his subordinate was engaged in conduct that posed a pervasive and unreasonable risk of constitutional injury to citizens, (2) the supervisor's response to that knowledge was so inadequate as to show deliberate indifference to or tacit authorization of the alleged offensive practices, and (3) there was an affirmative causal link between the supervisor's inaction and the alleged constitutional injury.3

One of the most instructive cases on section 1983 is Shaw v. Stroud. In this case, the U.S. Court of Appeals for the Fourth Circuit examined and contrasted the behavior of two supervisors in charge of an employee accused of excessive force. The clear lesson from Stroud and other cases like it is that proactive supervisory action to remedy performance of errant employees is imperative.

Title VII
Title VII of the 1964 Civil Rights Act prohibits discrimination based on race, color, religion, sex, or national origin. Generally speaking, an employee may show Title VII discrimination of one of two kinds: disparate impact or disparate treatment. A disparate impact case arises where the employer uses a particular employment practice that is facially neutral but causes a disparate impact on applicants or employees in one of the protected classes. Such a challenged practice may still be shown to be legal (despite the disparate impact) if the employer can demonstrate that the challenged practice is job related and is consistent with business necessity.

In a disparate treatment case, the applicant or employee presents evidence the employee was treated differently because of the employee's membership in a protected class. Disparate treatment cases may arise in the context of hiring, promotion, or termination.

Sexual harassment cases are rooted in Title VII and fall into two categories: quid pro quo (where the rewards or punishments occur to the employee because of the employee's response to a request for sexual favors), and hostile environment claims (where an employee shows that the sexual harassment has created such an intolerable work environment as to be hostile or offensive; proof of loss of a job benefit is not required). Employers are liable for quid pro quo actions committed by their supervisors. Also, an employer may be liable for a hostile work environment claim if the supervisor is aware of the situation and fails to resolve the matter effectively.

Pregnancy and Age Discrimination
The Pregnancy Discrimination Act prohibits discrimination against pregnant employees. The Age Discrimination in Employment Act (ADEA) protects employees 40 years and older. If the employer makes a decision affecting the employee's terms or conditions of employment because of the employee's age, the employer has most likely violated this act. As with Title VII cases, disparate treatment and disparate impact theories may apply.

Americans with Disabilities Act (ADA) and Rehabilitation Act
Although there are differences between these two federal acts, such differences are beyond the scope of this introduction. Familiarity with the issues addressed by these acts will suffice to prepare the supervisor to identify potential issues and to seek further legal guidance. Thus, the discussion will focus on the ADA.

The Americans with Disabilities Act prohibits discrimination against an otherwise qualified individual with a disability. A qualified individual with a disability is an individual who, with or without reasonable accommodation, can perform the essential functions of a particular position. (The ADA also imposes certain access requirements so that individuals with disabilities may avail themselves of government services.)

Under the regulations promulgated pursuant to this statute and under case law, a disability for purposes of the ADA is permanent in nature and affects the employee's ability to perform one or more major life activities. The reasonableness of an accommodation is judged in light of the impact on the employer, with consideration given to the employer's economic resources. Essential job functions (identified through instruments such as job task analyses) are duties the employee must perform. Requiring a police officer to shoot a firearm with specified accuracy is an example of an essential job function.

Not all functions of a particular job are essential, core functions; some may be peripheral functions. For example, a receptionist whose major duty is to provide telephone support may have as additional job duties routine filing and occasionally typing correspondence. Whether filing is an essential job function depends on its frequency, importance, and feasibility of delegation to other employees. In the above example, most likely the receptionist's tasks of filing and occasionally typing correspondence would be nonessential job functions.

To determine what constitutes an essential job function and a reasonable accommodation requires considerations of facts specific to that particular case. However, supervisors should be capable of detecting that a situation may involve an ADA issue and should seek further legal advice.

First Amendment
A governmental employer may not illegally infringe on its employees' First Amendment rights of free speech and free exercise of religion.

Free Speech: A governmental employee's right to free speech is not unfettered. Courts generally have recognized that where the employee is addressing matters of public concern, the employee generally has a right of free speech and the employer may not discipline or unduly restrict the speech. Whether a public employee's speech is a matter of public interest (and therefore entitled to free speech protection) involves a rather fact-specific balancing test. Where the employee is speaking on a topic of private interest that does not bear upon the broader issues of the government relations (to its citizens in general), the employer may regulate the speech and may pursue disciplinary action; in other words, the speech is not protected. Supervisors facing a freedom-of-speech issue should seek legal advice for the specific circumstances involved.

Free Exercise of Religion: Although the First Amendment guarantees that the government shall neither establish nor prohibit a religion nor prohibit the free exercise of religion, the public employee's freedom-of-religion rights are not unfettered in the workplace. Specifically, the employer should take steps to accommodate the employee's religious beliefs, but these steps need not infringe on the rights of other employees or impair the governmental employer's efficiency. Again, cases in this area are rather fact specific, so any supervisor who identifies a freedom-of-religion issue should seek legal advice for the specific facts of the case. ■

1 There's also an exemption for public agencies with fewer than five employees. See 29 U.S.C. 213(b)(20).
2 Discussion of safe harbor provisions and penalties for errors are beyond the scope of this article.
3 Shaw v. Stroud, 13 F.3d 791, 800 (4th Cir. 1994).



From The Police Chief, vol. 73, no. 8, August 2006. Copyright held by the International Association of Chiefs of Police, 515 North Washington Street, Alexandria, VA 22314 USA.

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