The Legal Side of Leadership In 2024

Legal news flash: Several hundred fire departments will be sued this year, with most litigation occurring from within. Most of the lawsuits will be federal and involve your personnel; you will lose most of them. Stunning and unnecessary.

If you were to draw fault lines, they would fall along this level: the failure to lead proactively, insulating yourself from the real-world issues facing your department, and the failure to heed warnings from your firefighters, fire officers, and staff.

The fault also lies in allowing the status quo and failing to change knowing existing, developing, or changing laws. Finally, the fault lies in not creating a safe workplace where your firefighters react to poor leadership with litigation.

The litigation within your organization primarily focuses on personnel issues, including discrimination and retaliation, negligence, theft, and embezzlement. External sources of litigation originate from driving, EMS negligence, structure fires with civilian or firefighter deaths, wildland events, hazardous material events, and collapse rescue and rescue.

Litigation occurs in all departments, including combination and volunteer, as most litigation is people-focused. There are about 27,166 registered fire departments in the US. Most fire departments are either combination or volunteer departments, with about 91% of all fire departments registered with the Fire Department Registry (FEMA). Statistically, 9.5% are all career, 5.0% are part career and volunteer, 15.5% are combination/volunteer, and 70.0% are all volunteer. It makes no difference in the organization’s makeup—they are people-dependent and are challenging to manage.

IN THE ABSENCE OF LEADERSHIP, LEGAL ISSUES DRIVE CHANGE IN THE FIRE SERVICE

Our goal as leaders is to reduce the number of legal events affecting your fire department and to create a safe workplace internally and externally, thereby reducing the harm to your personnel.

Our goal in preventing legal fires starts with good, solid, responsible leaders. Our leadership duties are multifaceted. Practice Management by Walking About (MBWA), leaving your office, driving the district, visiting the stations, and catching your firefighters doing good things. Educate your firefighter and develop future leaders. Provide multifaceted training in tactics, budgeting, and personnel management. Of course, you also keep their firefighting, EMS, and command skills intact and up to date. Continual training seeks to improve performance and identify weaknesses in skills that can be reinforced to create a safe working environment.

As leaders, we must stay current with science and technology and up to date on the latest in operational tactics and training. Sitting back and thinking that the status quo will get you by will put you and your department behind the operational curve, especially with the advanced technology already on the streets, such as Electric Vehicles and Lithium-Ion batteries, creating fires of great magnitude and nearly impossible to extinguish. In addition, we need to understand and utilize copious amounts of available data to develop an effective and safer department.

As a leader, there is the expectation to promote customer service externally and internally – yes, we have internal customers in the form of staff and firefighters, and they are equally or more important than external customers. There I said it, and Bruno is probably rolling over in his grave over that statement. Sorry, my friend.

TROUBLE IS LOOKING FOR YOU

Our most important job as leaders is to manage personnel, and it’s easy to get into trouble and challenging to get out of, so let’s identify and solve some of the top issues to prevent these occurrences.

POLICIES

A good set of policies will make a leader’s life easier. Your staff expects you to create a safe workplace internally and externally by implementing and enforcing effective policies to accomplish that goal. Policies are your laws and rules for the department, and they must be comprehensive, up-to-date, and enforceable.

As we cannot possibly write enough policies to cover all potential issues in the fire department, well-crafted Codes of Conduct and Ethical Standards outline a set of principles of conduct within an organization that guide decision-making and behavior. These codes or standards clarify an organization’s mission, values, and principles, linking them with standards of professional conduct. They outline prohibited conflicts, determine the requirement for disclosure of potential conflicts, create an atmosphere of fair dealing, and protect your firefighters and staff against favoritism. The additional benefit of a Code of Conduct is that you can discipline members for violations of the Code of Conduct or Ethical Standards not covered by policy or by not having a specific policy under a term called – Conduct Unbecoming.

Leadership needs to create an Organizational Vision that will set the standard for customer service, develop a model of innovation & professionalism, recognize and embrace diversity, and maintain strong community ties and involvement. As the fire service believes they are family, your Organizational Vision must be family-oriented & genuinely concerned about the needs of each member.

DISCRIMINATION CLAIMS

Problems for leaders arise when faced with discrimination, harassment, bullying, sexual misconduct, retaliation, and gender discrimination. Additional problems arise when enabling prohibited conduct by looking the other way, during hazing, bullying, harassment, sexual harassment, retaliation, or practical jokes gone awry. For the fire service and other industries, these personnel violations are ONE OF THE LARGEST AREAS OF LITIGATION WITH THE COSTLIEST PAYOUT.

Discrimination, Diversity, and Harassment: A Legal Primer for Fire Department Leadership, Part 1 | 2 | 3

Under Federal and State law, employers cannot discriminate against employees based on Race, Gender, Pregnancy, Religion, National Origin, Disability (physical or mental), Age – for workers over 40, Military service or affiliation, Bankruptcy or bad debts, or Citizenship status – for citizens, permanent residents, temporary residents, refugees, and asylees. [i]

COMMON LITIGATION THEMES

Conduct involving inappropriate comments and inappropriate touching includes sexual assault, poorly fitting equipment, tampering with equipment, safety issues, violence in the station, domestic violence, sexual assault, and collecting kid porn. Other issues are promotional bias, hiring bias, termination, and not respecting the employee’s legal rights. Also included are lack of equal opportunity, facility restrictions in bathrooms and sleeping quarters, lack of privacy, and, for your pregnant firefighters returning to work, lactation rooms.

One significant litigation source is the lack of response to complaints by the department, where supervisors or other chief officers essentially bury complaints, coupled with a lack of enforceable policy or unwillingness to enforce the policy. One of the biggest trends we notice is the department retaliating against firefighters filing claims. Retaliation is defined as adverse work action against an employee filing said claims.

DIVERSITY

Another failure is the failure to recognize diversity in the fire service. Our demographics place us in a service that is predominately male and Caucasian (82%); 7% of women are career or volunteer, 9.5% are Hispanic or Latino, 7.7% are Black or African American, and .07% are Asian.

Do these numbers reflect the “face and make-up” of your community? [ii] Diversity is a fact of life in the United States, and projections have shown that by 2050, no racial or ethnic group will make up as much as 50% of the U.S. population (U.S. Census Bureau, 2009). The United States will become a nation of minorities. [iii]

Why is diversity important to the fire service? Diversity drives innovation, diverse groups are more productive, and diversity reflects your community demographics. Firefighters in your department must reflect the diverse makeup of the community. There are numerous legal rulings related to diversity, and those court cases have driven the diversity issues in the fire service. There are also some financial ramifications. When the taxpayers feel alienated, they are less likely to support our efforts, and always for ethical reasons. To promote a diverse workforce, Diversity, Equity, and Inclusiveness (DEI) and Communication Training may assist your department in achieving its goals of creating a diverse workplace.

PREGNANCY DISCRIMINATION AND LACTATION

Another area in which a leader can promote a diverse and equitable workplace is by embracing the updated laws on pregnancy and lactation. In 1978, the U.S. Congress added to Title VII of the Civil Rights Act of 1964 the Pregnancy Discrimination Act of 1978, preventing discrimination towards pregnant workers and clarifying the rights of working expectant mothers. The Pregnant Workers Fairness Act (PWFA) was passed in 2022 and came into effect in June of 2023.

Pregnancy in the Fire Service: A Cultural Shift

Briefly, pregnancy may not be considered in making employment decisions, and employers must treat pregnancy, like other disabilities, with accommodations. The other area concerns your pregnant firefighters returning to work after having a child and the need for lactation spaces. Providing Urgent Maternal Protections Act (PUMP) came into effect in 2022. There have been many legal cases involving nursing mothers and lactation space available while on the job, and this is another protection for nursing mothers. These protections apply to an employee’s pregnancy and pregnancy-related health conditions, including health conditions during and after the baby’s birth, such as the need to breastfeed or express milk.

The Fair Labor Standards Act (FLSA) requires employers to provide reasonable break time for an employee to express breast milk for their nursing child for one year after the child’s birth during the time such employee needs to express the milk. Employees are entitled to a safe, sanitary, and secure place to pump at work, other than a bathroom or hose tower. A space that is shielded from view and free from intrusion from coworkers and the public. [iv]

In summary, the new Pregnancy Workers Fairness Act (PWFA) allows firefighters to request and receive accommodations related to pregnancy, both pre and postpartum, as well as miscarriage (firefighters have double the rate of miscarriage compared to the average population). In the past, workers had to prove they had an ADA-qualifying disability to obtain accommodation. Now, departments must provide reasonable accommodations if workers have a known physical or mental condition related to pregnancy, childbirth, or related medical conditions.

I advise getting ahead of this issue with good policy and education for department members. There is no good reason for a Chief or department to take a pregnancy/lactation issue, lasting for a relatively short period, and turn it into a lawsuit that may take years to resolve. Let’s be more intelligent than that.

LGBTQIA: Transgender and Transitioning Firefighters & EMTs

Sexual orientation and gender ldentity is perhaps one topic nobody wants to discuss, but we must. Gender identity and gender transitioning is a fact of fire and EMS life affecting some of your employees.

A Supreme Court’s recent civil rights law update protecting gay and transgender workers from workplace discrimination was decided in June 2020. The moral argument for your department is that no one should be singled out simply for how they exist in the world – be it for who they are or who they have a relationship with. Everyone deserves to feel safe at work and be free from harassment or discrimination. [v]

The legal argument is the same federal laws that have protected others since 1964 have been clarified in their protections and application to gay and transgender employees. Penalties for such discrimination can reach $300,000 for each offense, depending on the employer’s size. The Supreme Court ruling further enforces that employers should take precautions to prevent sexual discrimination in the workplace. There are several states with anti-trans legislation that is making life difficult for many employees and employers, so create an enforceable policy preventing discrimination, harassment, and retaliation.

SOCIAL MEDIA: NOT SOCIAL AND NOT MEDIA

Your failure to recognize the harm of social media and violating 1st Amendment Rights may lead to cyberbullying, harassment, and threats towards your employees. The department must create an enforceable policy related to social media that also recognizes your firefighter’s First Amendment rights. There are numerous sites where you can obtain a comprehensive social media policy to meet your department’s needs.

Legal Fire Prevention: Social Media Policy

Violating your social media policy has resulted in personal postings that have terminated numerous firefighter and EMS provider careers. Much of this concerns the argument that firefighters and EMTs have unrestricted rights under the 1st Amendment, which is true if they were private citizens. Still, working for the government, your 1^st Amendment rights are limited. [vi] [vii]

CAMERAS

A recent award to the wife of Kobe Bryant, who perished in a helicopter crash, cost the Los Angeles Sheriff and Fire Department $28 million and a policy rewrite of the use of cameras by Fire, EMS, and the Police. A new twist with the addition of body cameras worn by Fire & EMS providers looks at the privacy rights of EMS patients and the general public. Your department must establish security measures and procedures that strictly control and track all images captured, and the policy must include when to take pictures, retention, and destruction.

Deleting scene photographs can be classified as spoliation or violating public records law, a criminal act. It must be the department’s general rule that never, under any circumstance, scene photographs be transmitted electronically to anyone for any reason. The policy must designate individuals authorized to capture images on an emergency scene and specify the image-capturing device. Please do not allow your employees to use their devices to record or take pictures of patients or emergency scenes.

Remember, the public has a right to photograph but only in PUBLIC AREAS, so protect your patients from unwanted pictures. Create a media zone for significant events and staff it with a department PIO to answer questions from the media or public.

Not to be the messenger of doom and gloom for fire service leaders, but your job is tough, and if it were easy, everyone would be doing it. Based on my personal and observed experiences, it is easy to get into trouble and challenging to get out of.

LEADERSHIP LIFE, ACCORDING TO JOHN

My thoughts based on my personal experience and observations related to having a productive and enjoyable litigation-free tenure as a leader of your department involve the following:

Know what you are doing. This is a job where you cannot fly the seat of your pants.
Pay attention to your attorney. A reasonable, knowledgeable attorney is worth the cost and effort as counsel for the myriad of problems you will face.
Be an involved and informed leader, get out of the office, and manage by walking about.
Create enforceable policies that your attorney can defend, pay attention to internal and external warnings, and know your staff and firefighters by name and a little about their families or pets.
Create a safe workplace—internally and externally. Ms. Smiths are everywhere.
Don’t violate your policies or the law. Walk the talk and respect yourself and your firefighters.
Create training programs that emphasize communication, teamwork, and mutual respect. Prepare others for leadership roles.
Explore Diversity, Equity, and Inclusion training along with communication training for your staff.
Hydrate well, exercise daily, and eat healthily.
Take care of your mental well-being.
Most importantly, have fun, pay attention to your family, and vacation occasionally.

ENDNOTES

[i] https://www.eeoc.gov/employers/small-business/3-who-protected-employment-discrimination

[ii] NFPA 2022

[iii] https://www.pewresearch.org/hispanic/2008/02/11/us-population-projections-2005-2050/

[iv] https://www.dol.gov/agencies/whd/nursing-mothers/law

[v] https://www.govdocs.com/supreme-court-1964-civil-rights-act-protects-lgbt-employees-from-workplace-discrimination/

[vi] https://www.legalmatch.com/law-library/article/governmental-employees-limitations-on-your-rights-to-the-freedom-of-speech.html

[vii] https://www.law.cornell.edu/constitution-conan/amendment-1/pickering-balancing-test-for-government-employee-speech

JOHN K. MURPHY, JD, MS. PA-C, EFO, deputy chief (ret.), has been a member of the career fire service since 1974, beginning his career as a firefighter and paramedic and retiring in 2007 as a deputy chief and chief training officer. He is a licensed attorney in Washington State since 2002 and a licensed physician’s assistant since 1977. Murphy consults with fire departments and public and private entities on operational risk management, response litigation, employment policy and practices liability, personal management, labor contracts, internal investigations and discipline, and personal injury litigation. He serves as an expert witness involving fire department litigation and has been involved in numerous cases across the country. He is a legal and management educator, frequent legal contributor to Fire Engineering, participant in Fire Service Court Radio, a blogger and a national speaker on fire service legal issues. He is a distance learning instructor with the University of Florida Fire and Emergency Services undergraduate program.

This commentary reflects the views of the author and not necessarily the views of Fire Engineering. It has not undergone the standard peer-review process, and should not be construed as legal advice or counsel.