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'Town meeting' focuses on labor law mandates.

City and town officials and Congressional Staff members attending the labor mandates town meeting in the Dirksen Senate Office Building on March 9th focused on three items of labor legislation on which cities and towns need legislative action during 1993: Fair Labor Standards Act Salary Basis Test, Mandatory OSHA coverage of municipal employees and the lawsuits from older employees of police and fire departments which are expected to begin at the end of this year without Congressional action.

Fair Labor Standards Act (FLSA)

Cases brought under the Labor Department's salary basis regulation to win overtime pay for relatively highly compensated city administrative and professional employees are very easy to win from a municipal employee's attorneys point of view according to San Francisco Deputy City Attorney Art Hartinger. "Go in, take a little discovery and learn that the city will admit generally that they require employees to be accountable, that they pay comp time, that they use leave balance systems and that they have 80 hour per pay period systems-- Bingo you've just found (municipal) liability under the Act." According to Hartinger the Department of Labor simply has never amended their regulations to clearly reflect the accountability aspects of public personnel systems.

Hartinger stressed the large liability of municipal employers in these cases and the fact that in the California city cases which have been followed by San Francisco there is not a single public entity which has won one of these cases.

Age Discrimination

Superintendent Thomas A. Constantine, Superintendent of the New York State Police, and a vice-president of the International Association of Chiefs of Police spoke about the potential of lawsuits when the current exemption for police and fire-fighting personnel from the Age Discrimination and Employment Act (ADEA) expires at the end of this year. Guidelines for the administration of physical and mental fitness tests for police and firefighters were to be proposed by October 31, 1991 well in advance of the expiration of the current exemption but have still not been forthcoming.

According to Constantine, who heads the seventh largest police force in the country, at the end of this year "the level of the least physically fit employee in a department will become the standard." In attempting to formulate testing procedures public agencies potentially will be forced to use testing procedures which are physically invasive and carry risks to employee safety by themselves. The Superintendent cited one department that had administered a physically demanding set of tests to its employees and had three officers suffer heart attacks during the course of the testing.

Constantine also raised the possibility that unless Congress takes action to extend the current ADEA exemption the issue of "firearms dependency" will be exacerbated. Firearms dependency is the situation when law enforcement personnel become more conscious of their physical limitations (often with aging) and thus more prone in confrontations to the early use of firearms rather t/an the use of other control methods involving less deadly force.


Council member Dick Bode of PIano, Texas spoke about the complications and expense which municipal employers would face if the Occupational Health and Safety Act (OSHA) is mandatorily extended to municipal workers by OSHA reform legislation which is expected to reintroduced this year. Last year such legislation was passed by committees in both the House and Senate Committees but never brought to the floor of either chamber because of the threat of a Presidential veto.

Bode stressed that the safety record of Texas (a state without a state OSHA plan) municipal employers is better than average as measured by the experience modifier used in the administration of workers compensation' insurance. Bode described the active safety programs of his city and made the case that unduly restrictive and technical "one size fits all" federal regulations might well divert resources from central safety issues. Bode also raised the question of how the increased fines and criminal penalties proposed in the legislation last year would impact elected city officials.
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Author:Peterson, Doug
Publication:Nation's Cities Weekly
Date:Mar 22, 1993
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