Fire and Emergency Services Administration - CH.6 PDF

CHAPTER 6 Human Resources Management LEARNING OBJECTIVES After studying this chapter, the student will be able to: ∎ Understand the...

CHAPTER 6 Human Resources Management LEARNING OBJECTIVES After studying this chapter, the student will be able to: ∎ Understand the importance of well-trained and well-equipped professional fire an emergency services (FES) members (p 104). ∎ Understand the function and operation of human resources personnel (pp 104–105). ∎ Recognize ways of providing diversity in the department (pp 109–113). ∎ Examine the legal issues relevant in hiring FES members and recruiting volunteers (p 105–107). ∎ Understand and review the disciplinary process, along with legal issues that may arise (p 121–124). ∎ Examine the process of job analysis and validation (pp 106–108). ∎ Recognize the influence and understand the operation of public sector unions (p 124). ∎ Understand the concept of motivation and review ways to retain members (pp 126–128). Case Study The Fair Labor Standards Act and Overtime In an appeals court decision, Benshoff v. City of Virginia Beach (1999), the court dealt with the issue of Virginia Beach career firefighters volunteering at independent volunteer rescue squads (ambulances) in their jurisdiction. These stations are completely staffed by volunteers and govern themselves. They also do not perform firefighting duties. The court decided that the Fair Labor Standards Act (FLSA) did not grant overtime to career firefighters volunteering at these independent volunteer rescue squads. This decision holds only in the U.S. Fourth Circuit Court of Appeals: Maryland, Virginia, West Virginia, North Carolina, and South Carolina. This points out the frequent involvement of paid firefighters living in the suburbs of a large city volunteering their free time as volunteer firefighters. Even though this may not violate the FLSA, if the firefighter is injured volunteering, who pays the costs? Discussion Questions 1. Does your local paid fire department have a policy to handle this issue? 2. Does the local volunteer fire department have an insurance plan that covers medical and the loss of compensation that is of equal worth as their benefits from their paid firefighter’s position? 3. Some paid fire departments have a policy against volunteering off duty. Is this a beneficial policy or should it be changed? The Most Valuable Resource The staff of a fire and emergency services (FES) organization are its most valuable resource in terms of costs and results FIGURE 6-1. Without well-trained, well-equipped, and well-prepared members, the essential tasks at an emergency scene cannot be accomplished effectively, safely, or competently. Fortunately, most FES members are highly motivated and dedicated to the profession. This makes the FES administrator’s job relatively trouble-free most of the time. However, as discussed in this chapter, some goals may be difficult to implement and/or monitor. In addition to a network of supporting personnel, resources—including stations, emergency apparatus, safety equipment, and specialized tools—are another component critical to success on the emergency scene. FIGURE 6-1 Firefighting is a demanding physical job that includes team work developed from considerable training and ongoing practice. © Glen E. Ellman/Jones & Bartlett Learning. The following depicts the cost of one engine company amortized for 1 year:  Staff: Five firefighters (minimum crew of four plus one to cover leave impact) at $42,000 salary each plus fringe benefits (~40%) for three shifts (53 hours/week) = $882,000 Facilities: One fire station ($3 million using a 30-year bond [6% interest] = $217,947 annually) and one engine ($300,000 using a 20-year bond [6% interest] = $26,115 annually) = $244,062 per year The personnel costs for this engine company are more than three times the costs of the capital items needed to respond to emergency incidents. These costs do not include the overhead expenses of staff and administrative personnel. Behind each piece of emergency equipment are people who need to be hired or recruited, trained, evaluated, and motivated to do the job effectively and professionally. FES personnel management prepares individual members to do their jobs well. The Function and Operation of Human Resources The human resources (HR) department is the agency within the local government responsible for recruiting, hiring, training, evaluating, and paying employees. The employees that make up the HR department have specialized training and education, but generally have limited knowledge regarding FES personnel issues, including the skills and aptitudes required for emergency services operation. Instead, these employees are support staff for line agencies, such as the police, fire other government agencies, and schools. HR uses merit rules and regulations along with union contracts to provide direction for individuals carrying out the job duties. Merit rules are legally adopted by the jurisdiction and contain provisions for employee pay, benefits, discipline, and job descriptions. HR can also play a major role in acquiring additional funding for personnel and selecting the best people for various jobs. It is very important to have a close relationship with the director of the HR office of the municipality. Make an appointment to meet the director and get to know him or her personally. The first step in forming this relationship is to familiarize HR personnel with the unique nature of FES operations. The FES organization needs new members who: Can learn complex skills Work independently to acquire knowledge Have courage Are physically fit Are mentally stable Do not mind getting extremely soiled and sweaty  Can endure temperature extremes (hot and cold) Tolerate working with or around critically injured or deceased victims Enjoy operating in a family-like situation for up to 24 hours Are tolerant of diverse cultural backgrounds of other members Are team players If HR employees are not fully aware of the need for these unique abilities, they may unintentionally hire individuals who cannot perform the essential job functions when faced with other policy goals dictated by the municipal administration. Properly educated HR employees will have a better understanding of FES personnel issues. One way of accomplishing this education is to take them to an FES station or the training academy so they can experience the working environment (minus live fire or medical emergencies) and job tasks. HR employees should don the protective clothing and self-contained breathing apparatus, carry the trauma bag, and perform various job functions. Some of the same multimedia materials, lectures, and demonstrations that are used in public relations or risk reduction education programs can be very helpful in educating these employees. The chief officer should have as much influence over personnel management functions as possible. For smaller organizations, an FES officer should be assigned part time to coordinate with the HR office; a larger department should have permanent staff assigned full time. These officers should have some formal education in personnel management. A civilian employee with the appropriate guidance and knowledge from the chief can carry out this function in some departments. State and Local Hiring Laws Many states have statutes referencing the hiring and, in some cases, operations of FES. For example, in the state of Florida, an applicant must be a state-certified firefighter to become an employee of a municipality. The state specifies the curriculum using National Fire Protection Association (NFPA) Firefighter I and II and a minimum of 360 hours of training. In actual practice, because the State Board of Education must approve the curriculum, these training programs are a minimum of 480 hours. These programs are delivered throughout the state by community colleges, vocational technology centers, and a few larger FES organizations. The state is legally responsible for approving these training programs and their facilities. In addition, each graduate of these firefighter training programs must take a state-administered skills test and a written examination for final certification. This process provides a pool of certified firefighters who become applicants for firefighter positions. A minimum hiring requirement for emergency medical technicians (EMTs) and paramedics is possession of a basic license or certification and a valid cardiopulmonary resuscitation card. Some states require a current National Registry of EMT certification, but other states use the National Registry of EMTs only as a first-time certification assessment. Hiring requirements for paramedics may also include locally required certifications, such as advanced cardiac life support, pediatrics, and trauma training certificates. Candidates must also be tested for competency on optional scope knowledge and skills practices required in their local area. In some counties or regions, the local emergency medical services (EMS) agency requires an orientation on county or jurisdictional medical treatment protocols. Many merit or personnel laws regulate employment at the local level. In addition, union contracts in most cases have stipulations affecting salary and benefits. These are too numerous to discuss here, but are all legally enforceable. Job Analysis A job analysis is a common method of defining job requirements. A good example of the outcome of a job analysis can be found in FIGURE 6-2. In fire and EMS, very detailed training and testing criteria are readily available. There are three distinct parts to a job analysis process: (1) hiring criteria, (2) recruit training and testing, and (3) incumbent evaluation. All three should be consistent with the job analysis.  FIGURE 6-2 Example of firefighter job requirements. Description There have been very few legal challenges to new employee requirements put in place by most FES organizations. For example, a very detailed and comprehensive basic skills test is generally required of a new recruit. However, incumbents are not tested periodically to ensure that they can still perform the basic skills that a recruit must complete. Because a new recruit is on probation, he or she does not have the same legal rights that an incumbent possesses. There may come a time when a future court decision requires equal treatment. Although it seems like a fair and ethical policy to treat all firefighters and EMS personnel equally, it is common to have different requirements for incumbents. Practically speaking, it is a good idea to upgrade new employee and recruit requirements before upgrading incumbents, and then phase in requirements for incumbents. They may need time to relearn some skills. Many HR professionals recommend using incumbents, supervisors, and personnel analysts as sources to develop a job analysis. A good strategy includes using each of these sources in the process; however, one thing to keep in mind is that incumbents may not be able to perform all job functions or not in a timely performance level, thereby skewing the results. The effort to create a job analysis should start with review of a standard, such as NFPA 1001, Standard for Firefighter Professional Qualifications. The administration should also do some research and contact several FES agencies to get copies of what peers are using, asking if they have had any problems with their job descriptions and whether they are happy with the abilities of their new recruits. After this basic research is complete, the information should be consolidated into one comprehensive job description. This draft should be circulated to the incumbents and supervisors in the department. In addition, input should be actively solicited from labor organizations and the personnel office. Because of the possibility that incumbents and their supervisors may not encounter critical job functions on a regular basis, they may not identify some of the job functions as being essential. Advise those questioned that a critical job function may have to be performed only once in a career. It becomes essential not because of daily use or need, but because it is how the public and the national standards expect a firefighter or EMS provider to perform.  To use an example from the Americans with Disabilities ACT (ADA) regulation, the expectation that a lifeguard who works at a pool must be able to bring a heavy person back to safety from deep- water depths is described in detail in the job analysis. This job function is one of the most essential functions because of the life- saving potential, which is the ultimate purpose of a lifeguard. Lifeguards may never face this situation, but they must still meet this essential job requirement. Incumbents can also be valuable when planning an implementation strategy. Testing incumbents provides a realization of where the incumbent’s skill levels are to successfully complete the tests. An implementation plan can be proposed that should allow a phased-in compliance for existing members. Job Classification Most members in any FES organization are at the firefighter or EMT level. The firefighters and EMTs are the people who get the job done at the emergency scene, and the organization should show its respect and acknowledgment of these special qualities, especially as each member gains additional training and experience. The department should continually emphasize that the FES profession is a noble pursuit, requiring high levels of skill, courage, and physical ability. Some FES organizations have an annual awards ceremony that singles out individuals for heroic achievements. Most members are capable of heroic acts, but only a few firefighters or EMTs end up at the right place at the right time. Therefore, rewarding all members for their potential to perform at these heroic levels of service may be warranted and should be acknowledged at these annual awards ceremonies. To reward competent members in a job that is very skill-, knowledge-, and physically-oriented, including the requirement to act instantaneously, the FES organization could use a three-tier promotion system for firefighters: (1) recruit firefighter, (2) firefighter, and (3) senior firefighter. Each new level would have its own set of training requirements, testing, and experience on the job. For example, to gain the firefighter level, the member would have to successfully complete recruit training, a 1-year probation program, and 3–4 years’ experience. The senior firefighter would require an additional 3–5 years of experience, demonstrating competency of all of the basic skills and knowledge tests, and completion of an apprentice program. Each new level would be a promotion with an appropriate increase in salary. Similarly, the National EMS Education and Practice Blueprint has established four levels of EMS providers: (1) emergency responder, (2) EMT-basic, (3) Advanced EMT, and (4) EMT-paramedic. Emergency Medical Responder Emergency medical responders usually have the minimum training and certification to be firefighters and many are often police officers who are trained to carry and use automated external defibrillators at the scene of an emergency medical incident. In some communities, especially senior neighborhoods, groups of qualified residents are organized into response units and alerted when a 911 call is received for their community. They perform lifesaving interventions such as CPR and AED application while awaiting additional EMS response, then transfer responsibility, ensuring a progressive increase in the level of assessment and care. They can assist EMTs and paramedics in the field. Emergency Medical Technician EMTs provide basic emergency medical care interventions for patients who access the emergency medical system. In rural jurisdictions, EMTs may provide the highest level of prehospital care. The EMT is the minimum licensure level for personnel transporting patients in ambulances. This job requires 150–190 hours of training, culminating in certification after rigorous testing of skills and knowledge. Advanced EMT Advanced EMTs provide limited advanced emergency medical care and transportation for patients who access the emergency medical system. The advanced EMT scope of practice includes emergency medical responder and EMT skills and competencies and limited advanced skills, including some pharmacologic interventions. Advanced EMTs may function as part of a tiered response system but are not generally used in systems that have paramedic-level care. This job requires 150–190 hours of training beyond EMT. Paramedic The paramedic’s primary focus is to provide advanced emergency medical care for patients who access the EMS. The paramedic’s scope of practice includes basic and advanced skills with equipment typically found on an ambulance as well as invasive and pharmacologic interventions. In many communities, paramedics provide a large portion, and often the highest level, of prehospital care. This job requires 1,000–1,200 hours of training, leading to a rigorous certification procedure. Community Paramedic A higher proficient EMS professional that has completed an appropriate educational program and has demonstrated competence in the provision of health education, monitoring, and services beyond the roles of traditional EMS. The specific roles and services are determined by community health needs and in collaboration with public health and medical direction. Recruitment Selection of new members is one of the most important decisions for the quality and effectiveness of the agency. Hiring decisions can and often do have long-range impacts regarding the competency and effectiveness of the department. People who do not meet the minimum job requirements should not be hired or accepted as members. The Selection Process Some of the legal ramifications of selecting new members will be discussed later in this chapter. Consideration should be given to cutoff scores and pass-fail requirements for cognitive abilities (speaking, reading, math, listening, and writing skills); medical tests; drug and alcohol tests; criminal background checks; physical fitness; and cigarette smoking. For example, in some cases, firefighter job applicants must sign an affidavit that they have not used tobacco products for 1 year before being hired. Many departments further require firefighters to sign a preemployment agreement to not use tobacco at any time during their employment. For EMS, this is usually a recommendation rather than a requirement, although company policies may vary on this issue. Setting acceptable minimum scores high enough so that the department selects those who will be competent members in their ability to learn and perform the job is a good idea. Selecting marginally functioning members can cause unacceptable performance in the future. Remember, these are selections for new FES members for a minimum 20-year career. Another issue is the option of hiring either trained or untrained certified firefighters. Each option has its merits. Selecting trained firefighters reduces training costs to a brief orientation. This is a substantial cost savings because a new firefighter recruit might be in training for 12–16 weeks. Also, many smaller departments cannot hire enough new firefighters at one time to justify a rookie school. In addition, it is common for larger departments to find that their applicants are trained firefighters from smaller departments looking for better salaries and benefits, or certified volunteers trying to obtain paid positions. Some prospective firefighters may apply to a certified firefighter training center to become a student. The student pays his or her own tuition and other costs for the typically 12- to 16-week training programs. With successful completion of the Firefighter I and II course, applicants are eligible to take the state firefighter certification examination. After they successfully pass the practical and written examinations, they are state certified and can apply for a paid position in the state. Some larger jurisdictions hire personnel and pay them to attend training programs. These departments prefer to train their own recruits so they can impart their organizational culture and the specifics of their department to the recruit firefighters. In addition, some departments also prefer paramedic certification. Many potential career firefighters/medics must have both certifications to be selected for an opening. This trend is becoming more common throughout the nation. Private EMS is simpler to get into. Although private schools may offer shorter EMT classes, many personnel attend semester-long courses offered at community colleges. With the naturally high rate of attrition experienced by private ambulance companies, they will hire right-out-of-class EMTs. Many companies structure their training program with the understanding that this may be the employee’s first job. Additionally, some ambulance providers have their own paramedic schools. It is an advantage to an EMT to seek out these companies, because they may provide employee discounts, or in some cases a scholarship to the company’s program. There is also a likelihood that he or she will be placed in the company as a paramedic after successfully passing the course. This arrangement is mutually beneficial. The EMT gets a discounted rate on training and the hard- to-find internship, and then a job. The company retains a well- trained (and grateful) employee who already knows the policies, procedures, employees, and the response area. In some cases, as part of the paramedic school agreement, the new paramedic may be bound to the company for a period of time. The quality of training programs varies from one company to another, but they generally include an orientation, classroom and/or self-study of EMS knowledge, field training time, emergency vehicle operator training, and a probationary period. After the employee passes initial training, the company may offer further training opportunities or continuing education classes. Diversity in the Department Complete diversity reflects a blend of gender, race, age, education, country of origin, and other characteristics, such as personal values. In the past, the typical FES organization was composed of people with similar characteristics—those who joined were expected to conform. In today’s world, each member wants and deserves to be valued as a distinct individual. People from diverse backgrounds bring diverse values and experiences to their roles. Starting in the 1970s, coalition groups began to support the rights of particular categories of people. These groups are very vocal in their identification of perceived or real discrimination and demands for corrections. Today, most FES organizations have actively recruited minorities and women to compensate for memberships that had been predominately white and male. In a few cases, these organizations were under court orders or consent decrees to provide affirmative action programs to increase the numbers of minorities and women. There is disagreement about the use of affirmative action, preferences, set-asides, and quotas—strategies used to hire minorities and women in many FES organizations. New legislation and contemporary court rulings have changed the laws of the past. For example, judges used to rule discrimination cases based on a lack of a specific percentage of the underrepresented group compared with the general population served. Now, discrimination in the FES organization cannot be proved solely based on these percentages. Many FES departments use the diversity of the municipality as their benchmark for diversity goals. This method may skew the diversity statistic because the local city may have large numbers of one group. It may be better to use a larger area to represent the region where potential new members are recruited. The minimum area probably should be a county; larger departments might use several counties. Affirmative Action Cases The Boston Fire Department Affirmative Action Case Some argue that an affirmative action program may lead to widespread lying on applications to schools and jobs. This was the case in 1990 for the Boston Fire Department. Six firefighters from the department were found to have lied on their applications, claiming false minority statuses. Two of these firefighters, white twin brothers Phillip and Paul Malone, had initially failed their qualifying examinations for the department. However, on subsequent applications, the brothers claimed that their great-grandmother was black, thereby qualifying for minority outreach standards. It was not until 10 years later that their lie was discovered (Vlahos, 2003). The University of Michigan’s Affirmative Action Case This was a 2003 U.S. Supreme Court case that upheld an affirmative action policy at the University of Michigan law school. However, the Court also ruled that the undergraduate policy at the University of Michigan was not legally correct and must be changed. “In that admissions process, which the university now has to revamp, the school literally gave extra points for applicants who were black, Hispanic or Native American” (data from Vlahos, 2003). In fact, the diversity points had the potential to outweigh points given for academic achievement. However, a more recent affirmative action case may affect the decision made in 2016. In Fisher v. University of Texas, Abigail Fisher claims she was denied admission to the school because she was white. The U.S. Supreme Court found that the University of Texas affirmative action program was constitutional on a 5–4 vote. The swing vote was Justice Kennedy and since then he has retired and been replaced by a conservative Justice. This same case would probably have a different outcome today. Although, the court did warn other universities that not all affirmative action programs will pass constitutional muster. For an update, “The Justice Department sued Yale University on Thursday, weeks after prosecutors found the university was illegally discriminating against Asian American and white applicants, in violation of federal civil rights law”. (Ref: https://www.sfgate.com/news/article/Feds-sue- Yale-allege-discrimination-against-15632358.php, October 2020). The New Haven, Connecticut Affirmative Action Case On April 22, 2009, the U.S. Supreme Court sided with firefighters claiming they should have been promoted based on examination results for lieutenant and captain positions. The results of the promotional examination were discarded when the city noticed that no African-Americans scored high enough to be promoted. The firefighters that should have been promoted filed suit, alleging that the city violated Title VII of the Civil Rights Act of 1964, the Equal Protection Clause of the Fourteenth Amendment, and the First Amendment of the U.S. Constitution. The firefighters argued that the examinations should have been race neutral and solely based on job performance and duties. They claimed to have been punished for their race. In June 2009, the U.S. Supreme Court sided with the firefighters (Ref: https://www.law.cornell.edu/supct/html/07- 1428.ZO.html). This specific legal issue, affirmative action, is undergoing many new challenges throughout the country. It is extremely complicated. When faced with political pressure to hire or promote members based on something other than merit, attempt to get the municipal attorney(s) to research the issue and provide guidance. Diversity Selection in Practice What does all this mean for the typical department? The following hiring scenarios comply with the latest U.S. Supreme Court decisions and other legal precedents:  A policy can be used to rate each applicant based on scores or ratings from written and other cognitive examinations. The person with the highest score is chosen first, followed by others, and strictly based on their ranking. The U.S. Supreme Court did not say that this traditional way of selecting new members could not be used legally, but it must use job- related criteria. Court orders must be followed if it has been determined the institution has discriminated. Affirmative action programs must be provided when order by a court, resulting in a mandatory plan and quota. Most have a time table for compliance and termination of the program. Banding A compromise policy called banding takes into consideration both points of view. In a banding program, each applicant is put into a band and each band of applicants must be exhausted before going to the next one. After the applicants take the examinations, they are put on a traditional list and ranked from highest to lowest. One common cutoff for the top band is 85%. Then new members are selected from the top band first. In actual practice, the department may offer jobs to women or minorities first and then offer jobs to white males in a ratio to achieve diversity of the total new hires. All members of the band must be offered jobs (promotions) before going to the next lower band, even if this results in a greater percentage of white males. This helps prevent what some would characterize as reverse discrimination. Legally, there is no reverse discrimination, only discrimination. For example, if there are 100 people in the band, selecting the top 20–30 people by numerical scores often may not provide a diverse group. Banding with a cutoff of 85% to 100% uses a rationale identical to the typical grading schemes in school. For example, an “A” grade is actually a numerical grade of 90% to 100%. This approach takes into account the fact that human beings are consistently inconsistent to some degree in test taking within a small band variance. On any particular day, the numerical grade received and the position on a list can change for each individual within a predicted range. For example, one day’s performance may see a person at the top of the list, but another day that same person may have a lower score, although both scores may be in the top band. To ensure a diverse outcome, the department first has to recruit and encourage minorities and women to apply for the positions on a continuing basis. An affirmative action officer normally handles this job. If the department has vacant positions and the ideal diverse mix cannot be achieved, the positions still have to be filled. There are numerous and varied situations in which this may occur, such as with smaller departments that typically have fewer applicants. The administration must try its best to meet the goal, and if it cannot, the positions must be filled with qualified applicants from the band even if this does not comply with the diversity goals. It is typical in many departments for the chief to have the option of choosing from the top three on a list for a promotion. This option allows the chief to completely skip over someone who did well on the promotion process but who is not acceptable to the chief. It is a compromise with unions who often want the first on the list to be the first promoted. This chief’s option is generally not used to support diversity but to acknowledge the chief’s professional judgment on the qualifications for promotion. Regardless, all individuals in the band must be promoted before promoting candidates on the next lower band. It is never a good idea to lower the job requirements to select applicants outside the band, or to select applicants who cannot meet minimum requirements, such as physical fitness standards. Minimum Job Performance Requirements Diversity should be accepted and encouraged. Society shows that different cultures can peacefully coexist, and the workplace should attempt to reflect that as much as possible. The public can more easily relate to a workforce that is representative of their society. Furthermore, diversity provides a broader perspective in organizational problem solving. However, while attempting to achieve this diversity, the department should not lower standards of performance. Acceptance of the new diversity of employees must be supported by minimum standards for job competencies. For new employees to become part of the family, they must be able to perform the minimum job requirements. In the emergency services profession, members must rely on each other to work in teams and, more importantly, if one member needs help, other members must be able to come to their aid. It is unethical to hire or accept members into FES organizations who are not capable of performing critical job competencies. The public trusts that FES personnel can perform emergency functions safely and efficiently. If the personnel cannot perform to professional standards, they will fail the public and fellow members. There is strong support for this viewpoint as expressed in the International Association of Firefighters/International Association of Fire Chiefs Candidate Physical Ability Test: “Diversity should never come by lowering validated entry standards. Rather, it should come from actively recruiting qualified men and women candidates from all racial and ethnic backgrounds for careers in the fire service” (data from International Association of Firefighters, 2011). Although the private ambulance industry does not have a standard physical agility test like the Candidate (firefighter) Physical Ability Test, physical agility tests may be required by an employer. Some FES organizations, in their efforts to do the right thing regarding diversity, have hired or accepted members who cannot meet minimum job performance criteria. These situations are very challenging to resolve, requiring an administrator with a good understanding of leading change (see the chapter Leading Change). There are three reasons to turn down applicants who do not meet minimum firefighting job requirements:  1. Firefighting is a very hazardous job; skills and physical strength can be a matter of life or death. It is also a team sport and any one member may prevent the team from being successful and/or safe in emergency operations. This is critical to serve the public with competent professional service. 2. If firefighters are not able to adequately perform essential job functions, the public receives inferior service. 3. It is frustrating and demoralizing to the firefighters who do meet the requirements. They may need to make up for the inability of others to perform safely and effectively. EMS jobs may have similar, but slightly different, minimum standards. The following are three reasons to turn down applicants who do not meet minimum EMS job requirements: 1. Candidates need to be in good physical condition and able to lift at least 125 pounds, or a weight required by the company. Even with advanced equipment such as hydraulic gurneys, the EMT or paramedic may have to move a patient out of a cramped bedroom or down a flight of stairs without injuring the patient or themselves. 2. Candidates must show competence with a basic written didactic knowledge test and a skills return practical scenario. The company must confirm that candidates have an adequate job- specific knowledge base and can adequately perform patient assessment skills. This is generally achieved by completing a specific certification process. 3. Candidates must display an attitude indicating they would be well accepted as a partner and patient care technician. They must respond to questions with honesty and without ego, suggestion of bias, or display of negative attitude. Compassionate and respectful interaction with partners, public safety personnel, emergency room employees, and the patient and family are critical. Diversity Sensitivity Training Many agencies have started offering sensitivity training to educate employees about personal and cultural differences. This training works to achieve social harmony in a group that may have little in common. For example, one FES department started an affirmative action program to recruit minorities for firefighter positions. The affirmative action officer decided to go to some local churches where the membership was mostly minorities. The officer found many applicants who successfully passed the written and physical fitness examinations. The new firefighters were assigned to permanent fire stations after completing recruit training. Because the new firefighters were recruited from churches, they had strong religious values and personal beliefs that some existing members did not share, in many cases. The result was a distinct lack of socializing for most of the shift, including when off duty. These situations can be discovered and corrected with professional sensitivity training. Sensitivity training can go a long way in melding diverse personalities to work together in harmony. For some minorities and women, this training can make the difference between feeling welcome and feeling alienated. Individuals who feel alienated could become less motivated on the job, and may show evidence of carelessness, resulting in accidents. In addition, they may resign because they feel out of place, which becomes a big loss to the organization that spent many hours training the employee. “The underlying idea behind sensitivity training is developing respect for each person as an equal and as a human being. Just as we have wants and needs, so do the others around us. And just as we want people to show respect to our feelings and ways of living, so too must we show respect to others. Sensitivity training teaches people to engage in perspective-taking so that it is easier for them to appreciate another point of view and come to a mutual understanding [without being judgmental]. Sensitivity training also involves developing an eye towards what is more and less likely to be offensive, and likewise developing the ability to backpedal and apologize sincerely if feelings are hurt” (Reproduced from Chaubey, Dhani & Subramanian, Kalpathy. (2014). Role of Sensitivity Training and its impact on Organization Behavior in a world of cascading Demographic divide. Management. Volume2. Retrieved from https://study.com/academy/lesson/what-is-workplace-sensitivity- training-for-employees-definition-lesson-quiz.html). Recruitment and Selection of Firefighters to Achieve Diversity It is a good idea to ensure that the company is committed to providing diversity in the organization as new employees are hired or new volunteer members are accepted. It is rare that a formal quota system can be legally used. Quotas are allowed only when a court has ordered a remedy to a proved past discrimination practice. Therefore, the department has to set up a legal recruitment and selection process to attract a diverse mix of applicants. For example, because minorities and women tend to be underrepresented in most FES organizations, the chief officer should assign a member the responsibility of recruiting minorities and women to apply for jobs or membership. There are many techniques for accomplishing this goal, but the department should consider only ethical, legal, and easily implemented techniques. The chief officer should consult with the HR office staff for more options. Additionally, a professional presentation and web site should be created or acquired to help educate and attract applicants. Locations or specific communication channels, including social media, should be identified to reach the selected audience. For example, because firefighting is physically demanding work and generally women are not as strong as men, visits to women’s athletic programs at local colleges and universities can locate good prospects who are physically qualified to be members. Fire and Emergency Services Workforce Issues A common workforce issue concerns the understanding that the typical FES organization is different from other occupations. Most of those differences are because FES work is extremely time-sensitive, risk-oriented, and team-based, with members in close contact with one another for long periods of time. The duration of the typical FES shift and the closeness of the club-like surroundings of the career and volunteer FES organization make it imperative to manage diversity effectively. CHIEF OFFICER TIP Hiring and Recruiting Hiring and recruiting are important issues to the human resources of both career and volunteer departments. Not only do the policies and procedures regarding hiring and recruiting need to comply with all applicable legal and ethical issues, they also must ensure that potential members of the department are well qualified and fit the job description of the position to be filled. NFPA standards such as NFPA 1001, Standard for FireFighter Professional Qualifications, and NFPA 1582, Standard on Comprehensive Occupational Medical Programs for Fire Departments, can be helpful references in the hiring and recruiting using minimum job performance selection criteria. Legal Issues This section contains up-to-date information from recent Supreme Court and legislative actions FIGURE 6-3. The law is constantly changing. Many of the recent Supreme Court cases have been decided by a slim majority (5–4), so replacements for retiring justices may swing the Supreme Court in a different direction. Recent Supreme Court justice appointments are inclined toward “constitutional” or “conservative” viewpoints during President Trump’s term, making it more likely that the Court will follow the original interpretation of the U.S. Constitution in future decisions. Two aspects of legal issues affect FES: the recruitment and retention of members, and emergency operations. This chapter discusses only personnel management issues. Legal representation should be consulted for any changes in local, state, or national laws or interpretations that may make the legal opinions in this section inaccurate. The Screening Process One of the most important labor functions is the hiring of new personnel or the acceptance of a new volunteer member. Any mistake in this process can leave the department with an undesirable member who must either be tolerated or separated. Separation is never an easy or pleasant process.  FIGURE 6-3 The U.S Supreme Court building. © Gary Blakeley/ShutterStock, Inc. The screening process checks learning potential, knowledge, and physical abilities that are needed to master essential job performance functions. For firefighters, the necessary skills for most job functions are not mastered until recruit training is completed. This basic training may occur before or after formal acceptance. It is essential to test for the basic skills that are needed to master the training program. Pass/fail screening tests that indicate a minimum ability in reading, writing, math, and cognitive abilities along with physical fitness should be administered before the start of basic training. This issue is illustrated by the experience of St. Louis in 2007, where “more than 70 percent of about 1,350 applicants failed the test [reading and math]” (data from Wagman, 2007). Three years earlier, in 2004, the city was sued by a group of black firefighters who challenged a promotional test for captain and battalion chief, claiming discrimination against them. A judge ruled that the city did not discriminate; however, the experience left the city wary of future legal battles. Therefore, after receiving the examination results in 2007, the city decided to scrap the test to avoid more controversy. However, Chris Molitor, president of the International Association of Firefighters Local 73, argued, “I don’t think it’s asking too much for someone to read, write, and do basic math. This test was designed to eliminate those people who could not perform those basic functions. It sounds to me as if the test was doing its job” (data from Wagman, 2007). Psychological testing is another area that deserves consideration in light of incidents of destructive behavior and arson by FES members. To keep the public respect and trust, firefighters and EMS personnel need to be upstanding role models. Some basic testing categories to use are: Psychological Aptitude and achievement Minimum cognitive abilities Personality Integrity and honesty Physical fitness To reduce the likelihood of liability, FES organizations should use a standard cutoff score on screening examinations that indicates the minimum qualifications necessary for successful job performance. To compensate for normal variances in all testing results and to guarantee that the applicants selected can perform at minimum levels of competency physically and mentally over a 20- to 30-year career, the minimum cutoff should be above the theoretical lowest scores. It is not a good idea to hire or accept marginally qualified applicants; it is not fair to the applicants, other members, or the public they serve. Reference Checks Many companies have adopted a strict “name, rank, and serial number” approach to requests for information about past and present employees. The reluctance to give negative information about employees’ performance and disciplinary employment records has backfired in some cases, causing liability and negative exposure for these organizations. Furthermore, this practice can lead to increased risk of negligent hiring and retention of employees, which is especially concerning in organizations with public trust. For example, a new employee was hired as a paramedic after a complete background check. A past employer failed to provide information that the individual had stolen jewelry at the scene of a medical emergency incident. The previous employer was held liable for withholding information that was relevant to the employee’s behavior on the job. In response to this type of scenario, the state of Florida recently enacted a statute providing legal protection to employers who furnish information about present or former employees. This protection provides immunity from civil liability when sharing information about employees. The state attorney general can provide guidance about similar statutes in other states. The employer is covered unless it can be shown that the information was knowingly false or deliberately misleading, which would be a violation of the employee’s civil rights, and the employee could seek appropriate legal action. The following are guidelines for providing reference information: Designate one individual in the personnel department as the only contact for requests. Require that a written request be made on company letterhead. Telephone the requesting agency to confirm all requests. Disclose only documented job performance information, not subjective evaluations.  Do not disclose any information regarding discrimination complaints or medical/disability information that may reflect on equal employment opportunity status or a protected category. First Amendment: Freedom of Speech In 2006, in the case Garcetti v. Ceballos, the Supreme Court placed an entire category of speech outside the protection of the First Amendment: statements made by government employees in the course of their official duties. Justice Kennedy, when writing for the majority, said, “[W]hen public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline” (data from Garcetti v. Ceballos, 2006). Fire officials need to be especially careful of this restriction during poor economic times when they may be tempted to blame a fire death on inadequate funding. It should be noted that this restriction does not cover whistle-blowers or union representatives acting for their organization. Civil Rights Several acts of Congress have been based on the 13th and 14th Amendments to the U.S. Constitution guaranteeing equal treatment or protection against discrimination based on race, religion, gender, or national origin. These acts are generally referred to as civil rights acts. In the FES profession, violations of these federal laws have resulted in monetary awards and court-ordered remedies such as affirmative action plans. This area of law has been slowly evolving and is different today than it was 10 or 20 years ago. This subject is also complex, and legal advice should be obtained when considering a change in policy. A brief summary of the present situation follows.  A statistical imbalance between the percentage of a protected class in the workplace and the percentage in the general population is an indicator of a possible problem. The organization must study this imbalance carefully to see if any discrimination has taken place. In the past, this type of imbalance was prima facie evidence that discrimination had occurred. Now it is only a possible symptom, not conclusive evidence. If a department enters into an affirmative action plan voluntarily (in writing or not) without a court order, and that plan contains specific percentage goals to hire minorities and women, the department may be open to civil court action based on reverse discrimination (which is actually just discrimination). Affirmative action plans can be used if they are designed to encourage and attract underrepresented groups to apply for employment or membership, including pursuing promotional opportunities. The Americans with Disabilities Act The ADA provides civil rights protection to people with disabilities and guarantees equal opportunity in employment, public accommodations, transportation, government services, and telecommunications. The act, which is enforced by the Equal Employment Opportunity Commission (EEOC), is designed to protect individuals from discrimination based on a disability that substantially limits a major life activity. Employers must make a reasonable accommodation for a mental or physical disability of an individual, unless it would pose undue hardship on the employer’s operation. In most cases to date, reasonable accommodation for disabilities has been shown to create undue hardship if applied to public safety jobs. Therefore, it is very important to document job performance requirements along with the requisite medical, physical, and mental abilities. Because of the intimidating nature of a federal regulation and the different analyses by many lawyers, some FES organizations have hired or accepted new members who physically or medically were not capable of performing the job of firefighter or EMT. Organizations should be very careful when getting advice about the ADA and research the many articles that have been written specifically about FES workers. Very simply, if standards for job performance are based on verifiable job requirements, they are acceptable and legally defensible. Even though job standards may eliminate some people with disabilities, the standards are valid and meet the exceptions stated in the ADA. Furthermore, organizations should be careful not to fall into the trap of lowering the minimum requirements to accommodate a perceived exposure to legal action based on the ADA, civil rights, or another federal law designed to protect against discrimination. The goal of all FES organizations is to give the best service possible within financial and practical limits of human performance, both mental and physical. The ADA and Hiring Practices During the hiring process, applicants cannot be given a medical examination or asked any specific questions concerning any medical or physical disabilities. However, applicants can be screened using mental and physical ability tests as long as they are validated as needed for essential job functions. For example, for EMS jobs requiring an ambulance driver’s certificate, a physical examination may be required to determine adequate hearing, visual acuity, and basic mobility for driving purposes. In addition, drug and alcohol testing is allowed before a job offer. After an employee has accepted a job offer, he or she may be required to take a medical examination that could be used to rescind the job offer. In addition, it is very important, especially in FES organizations, to have an extended probationary period during which the employee can be separated without cause. It may take many months to evaluate a firefighter, EMT, or paramedic in actual emergency situations or those situations that occur infrequently, such as a large structural fire. The probationary period should run at least 1 year after the successful graduation from a recruit firefighter school, completion of an EMS certification program, or hiring of an employee already trained. The department then has a whole year to evaluate the new employees and be able to separate any who do not meet minimum expectations. The private sector is less standardized; successful orientation and field evaluation generally follows a probationary period lasting about 6–12 months. Any standards for separation should be validated for essential job functions and each employee should be made very familiar with the rules. Legally, probationary employees have very few rights. It is better to make sure everyone, especially the probationary members, knows what the rules are, the justification for them, and how the members are evaluated. It is also typical and preferable to have a 1-year apprentice phase in which the new member learns additional knowledge and skills. For example, in the private ambulance arena, the candidate, after successful completion of pre-employment tests and orientation, may be assigned to a Field Training Officer. Successful completion of this phase is based on competency rather than time, and it is generally shorter than in the fire service. The candidate must successfully meet required training goals, such as competent patient care and equipment handling, understanding of local policies and protocols, and driving skills. Injuries on the Job Policies should be created to ensure documentation and verification of injuries that are reported on the job. Standardized forms should be submitted to the appropriate municipal official for workers’ compensation. High-ranking FES officials and the employee’s immediate supervisors should visit any employee in the hospital or make personal visits to the home, especially in cases of serious injuries on the job (IOJ). Employees heal faster if they believe they are valued and missed. The following was reported in a paper for the Harvard Business Review: “a large number of empirical studies confirm that positive social connections at work produce highly desirable results. For example, people get sick less often, recover twice as fast from surgery, experience less depression, learn faster and remember longer, tolerate pain and discomfort better, display more mental acuity, and perform better on the job” (Cameron and Seppälä, 2015). Supervisors should send a get-well card, make appropriate visits during recuperation, and provide the employee with the paperwork necessary for the workers’ compensation claims and the payment of medical bills FIGURE 6-4. FIGURE 6-4 Injuries are a hazard of the job and can be expected. They should of course be prevented when safety solutions are known.  © Glen E. Ellman/Jones & Bartlett Learning. Supervisors should stay in close contact with the IOJ members until they are released to either light duty or full duty, keeping a constant dialogue to inform the employee of what is going on at work. If the department’s official cannot visit in person, notes should be sent often. Finally, a small welcome-back gathering should be planned with the employee’s close peers. Light Duty To lower workers’ compensation costs, FES departments often bring individuals back to a light-duty position if they are still recovering and are not ready for full duty. The temporary duty assignment should not consist of clerical work, such as answering telephones or filing. Instead, for those firefighters and EMS members who are exemplary, temporary assignments may be provided in such areas as fire inspection, fire safety education, or 911 dispatching. Use caution because these positions are highly technical and require a great deal of knowledge and in some cases certifications, such as fire inspections. A mentoring position with an experienced member is a good way to initiate a light-duty member to their new duties. Basic knowledge, skills, and abilities training can also be provided. This technique seems especially effective for employees who are on shift work and are assigned to light-duty day work. If the administrator brings the injured worker back on light-duty day work, 9 to 5, there seems to be a strong correlation to the injured employee wanting to return to full duty faster than expected. In fact, this policy is effective even when the department can bring the employee back to duty only for short periods at the beginning of recuperation. The important point is to get the employee back in uniform and back to work as soon as possible. Otherwise, employees may get used to a sedentary lifestyle and lose the motivation to get back to work. While the member is on light duty, provide him or her with written guidelines covering work hours, tardiness and absenteeism, rest periods, and personal appearance. Specify the procedure for requesting leave, including IOJ leave for medical appointments and physical therapy. Some employees in the FES organization have attempted to use ADA and its reasonable accommodation feature to claim that an employer has the responsibility to create a light-duty job. However, this is not a requirement of ADA; light-duty positions do not have to be offered to employees who cannot perform the essential functions of their job. CASE STUDY Light Duty Requests For example, consider an employee IOJ who is covered by workers’ compensation. After a recovery period off work, medical evaluation states that this person will never be able to fully recover to perform the essential functions of a firefighter. The employee may want to work in another position in the FES department that does not require strenuous physical work, such as in the dispatch office. However, this would require the department to remove one full-time firefighter position from the staffing of fire and EMS units and transfer the position to the dispatch office. Instead, the employer (government agency) may offer a job in another agency that the employee could manage with his or her permanent physical limitations. In this case, the same rules as for a new hire apply to the new position. Discussion Questions 1. What is the policy of your agency on light duty? 2. What is the policy of your agency on disability benefits? 3. Does the agency owe the employee a duty to provide a job when they are injured and cannot perform the duties of a firefighter? Or should the employee be discharged with a disability pension and allowed to find employment on their own? Pregnancy Issues If a pregnant employee cannot perform the essential functions of her job, should the department provide an alternative light-duty job? In most cases the answer is yes, this is a good policy. Although there is no absolute requirement to provide a light-duty assignment, if the general practice is to provide other employees (especially males) who have temporary disabilities with light-duty positions, then it is advisable to do the same for a pregnant female employee. A pregnancy creates extra weight, changes in equilibrium, and loss of agility. Any of these situations can cause injuries and inability to complete essential job functions. Generally, the department can order a pregnant employee to take a job performance test or be evaluated by the department’s physician at the beginning of the third trimester and earlier if there are any medical complications or observations of substandard job performance. The department should adopt a written policy with input from the physician, the union, and the department’s legal advisor. Previously, employers have prevented pregnant workers from doing their jobs simply because of a concern for the well-being of the fetus. There is some evidence that elevated temperatures and the high concentration of carbon monoxide typically found in firefighting can cause medical harm to the fetus. In EMS, the biggest risk to a pregnant woman comes from lifting patients (especially obese and overweight patients), dealing with combative or assaultive patients, or working at potentially unsafe scenes, such as motor vehicle accidents. There is also concern for communicable disease exposure, especially with diseases such as rubella and of course the unknown COVID-19 consequences, which can harm a developing fetus. However, the Supreme Court has held that the well-being of the fetus is the concern only of the woman. At this time, several states are adopting legislation that restricts abortion and this may also affect these concerns for pregnant workers. In addition, many of these laws are being challenged and new laws are adopted in each state, some pro-choice, some pro-life.  Interestingly, in March 2015, the Supreme Court sided with a former United Postal Service (UPS) worker, Ms. Young, who claimed pregnancy bias after she requested light duty and was denied. The request was documented by her doctor who did not want her to lift over 20 pounds. UPS requires their employees to lift up to 70 pounds, thus the conflict. UPS has since changed its policy, and now says it will try to accommodate pregnant workers for light-duty positions. Subsequently, the EEOC has updated guidance to employers to make clear that they should accommodate people in Young's situation. However, the U.S. Postal Service said it will make no changes to its policy. Again, it is probably helpful to request the advice of the city/county attorney if you encounter this issue as an administrator. Family and Medical Leave Act The Family and Medical Leave Act (FMLA) of 1993 has affected many FES agencies. Those with minimum staffing levels commonly must hire additional personnel or provide overtime for leave impact. Studies have shown that up to 20% of additional personnel must be hired to compensate for leave in traditional sick, annual, and IOJ leave provisions; that is, to maintain four people per company on duty without overtime, the department needs to hire five firefighters. The FMLA mandates that employers with more than 50 employees must offer employees up to 12 weeks of unpaid leave per year for family responsibilities, such as the birth of a child; care of a seriously ill child, spouse, or parent; or a serious illness of the employee. The employer must give workers their previous position back when they return to work. Therefore, during the absence, the FES agency may have to cover the vacant position with overtime. Larger organizations may hire additional personnel to cover these vacancies. The additional cost to cover the shift with overtime may actually cost about the same as hiring additional personnel. This is because a firefighter’s normal pay includes a base salary and benefits, and benefits may run up to 40% or more of the salary. Therefore, it costs the difference between regular pay with benefits and overtime, which is calculated at time and one half or 50% more. Clearly, this can be a substantial unexpected cost. However, the one big advantage to overtime is filling the position with an experienced FES employee on an as-needed basis. This can be a big drawback if the employee becomes fatigued by too many hours or long shifts of overtime. If an employee needs IOJ leave to recover from a worker’s compensation injury or is granted sick or annual leave for family obligations, the employer should notify the employee that the leave of absence is counting against FMLA leave. If this notice is not given, the employee may be able to apply for an additional 12 unpaid weeks off after he or she is found fit for duty from their worker’s compensation injury or when sick or annual leave runs out. In addition, the employer should have a written policy that combines FMLA leave with other paid leave when appropriate. For example, if an employee is off on sick leave for a serious medical condition, the FMLA leave can run concurrently. It is important to have this type of policy to reduce the chance of employees abusing time-off potential. Drug and Alcohol Testing The FES organization should have a written policy prohibiting members from using, consuming, or being impaired by (legal and illegal) drugs or alcohol. In some organizations, this is a policy that needs to be part of a union contract, although the requirement that a member be not under the influence of a chemical substance is normally deemed an employer right because it is necessary for the critical professional service to the public and the safety of the individual and peers. When the policy is first implemented, all existing members and any new applicants should sign a consent form for testing that may be implemented in the following circumstances: preemployment or premembership; at random; after an accident FIGURE 6-5 or injury (as soon as possible); and suspicious activity or behavior. FIGURE 6-5 Governments must be prepared to test immediately for drugs or alcohol since they have a limited time in the body. © Jones & Bartlett Learning/Photodisc. If a member refuses to take a drug or alcohol test, a copy of the signed consent form should be produced and the member reminded that rejecting the test will result in disciplinary action. The alcohol test could use the same pass-fail criteria used for determining an impaired driver under the state’s motor vehicle statutes. Refusal to submit to a drug or alcohol test or a positive result should be considered legal grounds for immediate dismissal. Sexual Harassment The administrator should be aware of two types of sexual harassment: quid pro quo and hostile work environment. Both of these expose an employer to substantial liability that can result in large monetary awards. Therefore, it is important for an employer to set up policies, training, and procedures to prevent and eliminate this conduct. One key to whether sexual harassment has occurred revolves around the issue of whether or not the sexual advances were welcomed. For example, at work, a member becomes friendly with another employee, and eventually asks that person out on a date. At that time, there is no knowledge of whether the advances are welcome. If turned down for a date and the other person makes it clear that there is no romantic interest, any future request for a date may constitute sexual harassment. This is especially true if the person proposing the date is the supervisor of the other employee. Quid pro quo sexual harassment occurs when a person in authority controls an employee’s future in the organization. This type of sexual harassment may occur when a supervisor offers the employee a promotion, raise, or other benefit in exchange for a sexual favor; it may also occur when a supervisor threatens demotion, transfer, or termination. Whether the consequences for the employee being harassed are positive or negative is irrelevant. Hostile environment refers to employees’ conduct of a sexual nature that may be offensive or intimidating. The simplest example of a hostile environment is allowing male employees to post pictures of women either naked or in sexually suggestive poses. The telling of sexually explicit jokes is another good example of a hostile environment. The EEOC has outlined the following factors for determining if a hostile environment is present: Conduct was verbal, physical, or both Conduct was frequently repeated Conduct was hostile or patently offensive Alleged harasser was a coworker or supervisor Others joined in perpetrating the harassment Harassment was directed at more than one individual  The following guidelines are helpful in preventing and defending the organization in sexual harassment situations: Implement a written policy of antiharassment with examples of prohibited actions. Provide training for all members, including a description of conduct that is illegal or unacceptable. Have all members sign a receipt that they have taken the training and understand the policy. Clearly post the policy in work areas. Clearly post and issue standard sleeping attire for the dorm room. Identify the persons or office to be contacted if harassment occurs. Encourage members to report any potential situations that may lead to a violation. Vigorously investigate and discipline any violations. Dating Policies Some organizations have created formal policies covering potential dating relationships at work. An outright ban is usually neither possible nor preferable. In an FES organization where employees are assigned to a shift crew and sleep together in a dorm, it may be preferable to have a policy that requires the transfer of one of the partners in a consensual relationship. This also solves the problem of a possible quid pro quo situation where a supervisor is one of the partners. In the typical FES station, employees spend long shifts together and sleep at the employer’s facility, requiring specific considerations such as sleep clothing. A different policy may need to be used for staff employees working in an office.  Even in a volunteer department, dating can be disruptive to the relationships of the other members if there is any hint of favoritism. A strong chief officer and an oversight board can be very effective at preventing any adverse consequences. Fair Labor Standards Act The core requirements of the Fair Labor Standards Act (FLSA) are fairly simple. Employees must receive overtime pay for hours worked over 40 per workweek at a rate not less than one and one-half times the regular rate of pay. Once covered, employees working more than a designated number of hours in a pay period must be paid overtime. However, public employees have some special rules. First, the employee can accept compensatory time at a rate of 1.5 times instead of overtime. Also, firefighters’ work period is defined as a 28- day cycle, and the average hours per week before overtime are a maximum of 53 (212 in 28 days). These regulations are meant to accommodate the common 24-hour on and 48-hour off shift that many firefighters work. This act has caused controversy in two areas. First, the definition of firefighter contains the provision that a majority of on-duty time be spent in fire protection duties. Some fire departments providing EMS assign firefighters to staff these units, causing them to work more than 40 hours per week. This qualifies as overtime for all other FLSA-covered workers (other than police, who can work up to 171 hours in a 28-day cycle) (U.S. Department of Labor, 2012). In the past, there have been a number of firefighters assigned to full-time EMS duties who have filed lawsuits and won their cases. These were very costly to the jurisdictions, which had to fund large back-pay awards. With more and more fire departments offering EMS, this issue became a major problem. In response to this conflict, Congress passed a new law defining a firefighter’s job requirements as including EMS, fire prevention, and other duties where life, property, or the environment is at risk. This definition now allows FES departments to use the 53-hour workweek as long as these workers are dual-trained in fire and EMS. The second issue surfaced when it was noted that overtime could be awarded if employees volunteer in the municipality where they work. For example, in a large county fire department, an employee may work at Station 1 and be a volunteer member of Station 15. Because of the overtime interpretation, paid employees have been instructed not to volunteer at any FES station in their jurisdiction. This restriction has caused some hardships in combination FES departments. The Financial Impact of Lawsuits Administrators should be keenly aware of the financial consequences of legal improprieties. Although very difficult to quantify in dollars, many of these complaints end up in your local and sometimes national media. In addition, these incidents do not endear you to the city/county mayor or legislators. At best, it may make your job to get your budget approved more difficult or worst case, you may be asked to resign or be fired. Relevant Supreme Court Cases Sutton et al. v. United Air Lines, Inc. (1999) This case concerned two pilots who were refused employment by United Airlines. Even though both pilots met the Federal Aviation Administration vision requirements for the position, they failed to meet United’s more stringent requirements. The two pilots had uncorrected vision of 20/200 but had corrected vision identical to United’s more stringent requirements. They sued United for discrimination under the ADA. Not only did the Court support United’s stringent requirements, but the Court also did not find the pilots substantially limited in any major life activity. Therefore, they were not regarded as disabled under the ADA.  This ruling has application for those departments holding medical examinations to specific standards, such as the NFPA Standard 1582, Standard on Comprehensive Occupational Medical Program for Fire Departments. This standard contains several items that a potential member may argue permits an accommodation under ADA. Provided the department’s medical and physical requirements are based on job performance standards and are essential to the job, they can be used even if they discriminate. Also, this Supreme Court decision supports higher (but not unrealistic) benchmarks, especially for physical pass-fail levels. For example, a department may have a requirement for hiring using the pass-fail mark of running 1.5 miles in 10 minutes. This exceeds the minimum requirement supported by the International Association of Firefighters (IAFF) and the International Association of Fire Chiefs (IAFC), but has been recommended by other experts historically. Therefore, it is legal. Kimel et al. v. Florida Board of Regents (2000) In this case the Supreme Court found the Age Discrimination in Employment Act not enforceable in state and local governments. Therefore, unless a state law prohibits age discrimination (and some have an exemption for police and fire), an FES organization is allowed to have a mandatory minimum or maximum hiring and retirement age. For example, the federal government requires its firefighters to retire at 57 years old. Because of this requirement, and because their retirement plan requires 20 years of service, the maximum hiring age is 37. In another example, a metropolitan department had a maximum age of 29 for hiring and a mandatory retirement age of 55 years old. These types of age requirements were viewed as discriminatory in the past, but are now allowed in state and local governments. In explaining its decision to repeal the Age Discrimination in Employment Act, the Court stated, “Old age does not define a discrete and insular minority because all persons, if they live out their normal life spans, will experience it” (data from Kimel et al. v. Florida Board of Regents, 2000, IV C). If the department is using a mandatory retirement age, the cutoff should be justified using hard data and studies. For example, the 2017 Firefighter Fatalities report from the NFPA states, “The [mortality] rate for firefighters aged 60 and over was two-and-a-half times the average. Firefighters aged 50 and over accounted for half of all firefighter deaths over the five-year period, although they represent only one-quarter of all career and volunteer firefighters in the U.S” (NFPA, 2020). This evidence seems to support a mandatory retirement in the 55–60 year age range. However, these statistics have not been normalized for criteria such as medical and physical fitness levels. It is likely that a firefighter who is medically and physically fit would have a different death risk than the general firefighter population. Therefore, a yearly extension based on a comprehensive medical examination and physical fitness test could be allowed. A comprehensive research paper authored by the Ontario Association of Fire Chiefs in 2009 looked at the ramifications of ending the mandatory retirement age of 65 in Canada. The Canadian study concluded that physical fitness declines with age, but that exercising regularly can slow the process. Therefore, the Ontario Association of Fire Chiefs suggests that “prior to the age of 40 firefighters take a physical fitness test once every five years, between the ages of 40 and 50 once every two years and over 50 once a year” (data from Ontario Association of Fire Chiefs, 2009, p. 44). This issue has been controversial but acceptable because many retirement systems have generous pensions for firefighters at relatively young ages. The argument for physical fitness tests can be furthered by an NFPA report that states that in 2020 “Heart disease and other cardiac issues have long been recognized as significant health risks in the fire service. Sudden cardiac death has consistently accounted for the largest share of on duty firefighter deaths since NFPA began this study in 1977” (NFPA, 2020). These medical problems should have resulted in treatment or forced retirement before the death occurred. Janus v. American Federation of State, County, and Municipal Employees, Council 31 (2018) This was a landmark U.S. labor law case concerning the power of labor unions to collect fees from non-union members. This is common policy in many states for FES employees. The Supreme Court (5–4 vote) ruled that such union fees in the public sector violate the First Amendment right to free speech. Succinctly, government non-union members won the right to cease automatic union fee payments. Discipline Generally, some studies indicate disciplining bad behavior is more effective than rewarding good behavior both at work and home. Although there are recommendations from many behavioral experts that say that rewarding good behavior is a good technique, especially for pre-adolescent children, most people correct bad behavior successfully after experiencing adverse consequences or discipline they receive. These negative observations of inappropriate behavior are best delivered privately. These are remembered vividly by the individual and are labeled “Significant Emotional Events” (NeuroAlchemist, 2016). It is also very difficult for most supervisors (parents) to notice good behavior, so it goes unnoticed and not rewarded in most cases. For example, a station officer does not verbally congratulate each firefighter arriving on time to work. The best technique for encouraging good behavior is to lead/manage by setting a good example. Your example is also noticed when another member of the group commits a violation of a rule or regulation and the supervisor does not discipline the individual. Insubordination To improve morale and workplace harmony, employers may attempt to silence employees who regularly spread unsubstantiated rumors, vociferously challenge management, or publicly attack an organization’s practices and policies. In this endeavor, the administration should be careful not to violate a person’s First Amendment rights (freedom of speech). The government has a legitimate interest in promoting the trust of the public in the services it provides. Therefore, unsubstantiated public statements can be handled as insubordination. Also, any high- ranking officer can be ordered not to communicate with the public.  The preferable way to handle this situation is to assign a public information officer who normally gives all official statements to the media. Then, by written order, all members should be directed to refer any inquiries to the public information officer. This prevents confusion by the public when an official statement is released. Silencing Complaints without Violating the Law First and foremost, psychologists recommend that the best method of reducing worker complaints is to create a safe, respectful, and productive workplace. The administration should listen to and take action, when justified, regarding the concerns and views of members. A formal process is for employees to submit, anonymously if preferred, comments, and constructive criticism should be provided. A post office box and an e-mail account should be used to receive this feedback. In addition, some departments use a telephone number connected to a voice message recorder. It is also important that these concerns be acknowledged and attempts be made to correct unsafe situations. Some type of feedback should be given to employees, such as through an employee newsletter indicating the department’s position and any attempts to solve the situation. If the members see attempts to solve the problem, they are more than likely to support the department’s efforts. For those complaints that are completely unfounded, the chief officer may want to follow this five-step procedure: 1. Remain objective, even in the realization that some members are chronic complainers and there is always a group that is opposed to any changes. 2. Focus on conduct when the complaints are disruptive in nature. 3. Determine if the member needs or could use some professional mental health services for truly disruptive behavior. Privately suggest the member contact the employee assistance program, because it can be helpful for managing his or her dissatisfaction.  4. Evaluate observations and supporting evidence to see if the behavior calls for disciplinary action. 5. Select an appropriate level of discipline. Public Sector Discipline There is a general perception that after a public sector employee is hired and finishes probation, it is impossible to terminate the person. This is not true. Public sector employees have property interests (Cleveland Board of Education v. Loudermill, 470 U.S. 532 (https://supreme.justia.com/cases/federal/us/470/532/)) in their jobs, requiring the employer to use due process in disciplinary procedures to separate an employee. Property interest is a legal term indicating that rights to a job are similar to and as strong as the rights the owner of a piece of real estate has. Before an adverse action can be applied, due process should be followed. The administration should follow these general guidelines: 1. Provide a written notice of charges. This preferably involves a three-step process starting with a verbal reprimand unless the charge is of great consequence to the organization. 2. Include a complete explanation of the evidence and reasoning on which the charge is based. 3. Provide a meaningful opportunity for the employee to be heard by an impartial decision- maker, preferably with a representative of the employee present, such as a union shop steward. Additionally, consider using the following checklist to help guide the administration through the separation or serious disciplinary action: Is there sufficient basis for discipline? Is there appropriate documentation?  Is the inappropriate behavior related to conduct, such as insubordination or tardiness, or performance, such as failure to perform a job requirement? Were all of the employee’s rights respected during the investigation? What is the employee’s previous disciplinary record? Was the violation serious, and were there any mitigating circumstances? Have other employees been disciplined for the same actions; if so, what were their consequences? Were all the appropriate steps in the disciplinary process followed? Did all of the notices clearly detail the observed actions and the violation of the law or policy? Did the employee have adequate time, representation, and opportunity to respond to the charges? Was the agency’s attorney consulted before proceeding with the notice of disciplinary action? Fair, Reasonable, and Evenly Enforced Discipline The first step to ensure that discipline is fair is to make sure written policies and standard operating procedures (SOPs) include a listing of potential inappropriate behaviors and performance standards. In some cases, a general statement and explanation may be sufficient, such as in the case of insubordination. In others, as in illegal drug and alcohol use while on duty, the standards should be specific. Generally, it is a good idea for the administration to limit these policies and SOPs to as few as possible. In the emergency services arena, it is always better to keep rules and regulations simple because many of the critical decisions have to be made in the first few minutes. An ongoing training program to inform all members of inappropriate behaviors and minimum performance standards is mandatory. Members should be given adequate notice and time for compliance, or members may win appeals of the adverse action in many cases, allowing another chance and additional time to comply. The department’s disciplinary actions must also show a consistent and nondiscriminatory record of enforcement; it is very important to have an active enforcement policy. For example, a department has an SOP requiring drivers responding to emergency incidents to come to a complete stop at all stop signs and red traffic lights. During the 3 years after the SOP was issued, the department made no attempt at enforcement. Then, a driver was charged with failure to follow the department’s SOP (this is the first written enforcement record), and a penalty of 1 month’s pay was proposed. Between the severity of the adverse action and the lack of any prior history of enforcement, the department will have difficulty sustaining this action if the employee appeals to an arbitrator or the courts. Also, a department should have a policy of due process that outlines a disciplinary procedure starting with a verbal warning and concluding with written warnings and, with continued violations, substantial consequences. Appropriate notices of hearings and the ability to acquire legal or union representation need to be fair and realistic. Probationary Period As stated earlier, a newly hired FES employee should be put through a vigorous probationary program. Many potential employees present extensive qualifications, education, and experience to gain a job offer. This probationary period is a chance to gauge the effectiveness of previous education and experience. The probationary period and its requirements must be documented and presented to the employee. This will assure the employee cannot argue ignorance of the policy or Knowledge, Skills, and Abilities expectations. An organization should have a structured evaluation in place reviewing all of the essential job performance criteria and standards. The assessments should be standardized at prescribed periods, including a formal written evaluation completed by the supervisor. All supervisors should be trained in the use of the evaluation systems and encouraged to make specific comments and observations in the report. The probationary period should emphasize feedback to the employee to aid the individual in becoming a better employee, but should also be designed to weed out those who are not qualified. A formal testing procedure for the basic essential skills and knowledge that the employee should have mastered in recruit training should be used. Supervisors should be reminded of the grave consequences of providing charitable probation evaluations. Retaining an FES member who is not qualified has double-edged consequences. The public does not get the best service and the member cannot operate safely, creating a hazard to himself or herself and the team. A probationary member need not be told the reason for termination; the administration can simply state that the new member has not satisfactorily completed the probationary period. In some cases, it is better not to tell the probationary member the reason for termination, especially in writing. Although the employee has no winnable legal appeal, a written reason may unintentionally encourage a lawsuit. Anyone can instigate a lawsuit, even if there is no chance of winning. Probationary firefighters or EMS personnel should be aware that they have not satisfactorily completed the basic fundamental skills or behavior expectations. Terminations This section discusses appropriate methods for conducting terminations in the hopes of lowering exposure to legal challenges. Even with adequate evidence and support for a performance or disciplinary termination, if handled inappropriately, it can lead to legal disputes that can be costly and disruptive to the FES agency. Members may be motivated to sue simply because they feel they were not treated fairly or with respect. The administration should approach the separation as a situation where there was not a good fit between the member and the job, rather than labeling the member as incompetent, lazy, or another derogatory characterization. Not everyone has the aptitude or mental and physical fitness to perform the demanding FES duties. They are not bad people; they are just in the wrong occupation. Everyone (except the probationary member) has a right to respond to their accusers and have competent representation in the administrative process leading up to termination. Even when it may seem like a clear case, the agency should follow all of the policies that provide due process for the member. Specifics on termination policies vary, but all state and local employees have substantial job protections after their probation period. This protects employees against arbitrary dismissals. In all municipalities, public employees have legal rights to receive notice and the opportunity to discuss the inadequate job performance before they can be fired. Things are more complicated in civil service systems, which provide specific protections such as the right to appeals. In union environments, the process is complicated further. Nobody wants to be fired, and it’s easier to find a new job when still employed, so the counseling approach to a dismissal situation can often be effective, resulting in the employee leaving voluntarily for another job. Sometimes there could be an opportunity to find another position within the municipal government where there is a good fit. Reductions in force (RIF) is another situation that calls for employee termination. It is absolutely imperative to have an established RIF policy and to make all members aware of the selections process. RIF decisions that may be discriminatory, such as selecting all members older than 50 years old, should be avoided. From an accountant’s perception, terminating one chief officer may create a cost savings equivalent in salary and benefits to terminating two or three firefighters or EMTs. A task force of members should provide recommendations and adopt a written policy. In the situation of a voluntary termination (the employee quits), the supervisor should gather as much information about the member’s motivation as possible through an exit interview. The objective is to uncover any issues that could later support a legal claim of discrimination by the member. The supervisor should attempt to find out if any underlying reasons for the resignation were stated previously by the member, and whether these complaints should have been addressed by the agency, such as would be appropriate for discrimination. Ask the following questions: Why is the member leaving? Would he or she consider returning to the organization? What plans does the member have in the near future? Does he or she believe that the FES should consider changes? If so, what changes and why? Constructive Discharge Constructive discharge is a legal term indicating that the member was somehow convinced to resign because of intolerable working conditions. Some common example scenarios are: Hostile work environment (e.g., sexual harassment) Unsafe working conditions (check Occupational Safety and Health Administration and NFPA safety standards for compliance) Insufficient information about alternatives in disciplinary or performance actions  Not given the option of continuing employment in lieu of an early retirement (sometimes used with RIF to reduce the payroll). This is sometimes a preferred technique during reduction of funding in FES. The employees who have reached their minimum retirement benefit are good candidates because they have higher salaries in merit systems. Even though they may benefit in several more years of service to increase pension pay, they may be encouraged to retire early, possibly with incentives. Unions Some states are known as “right-to-work states” because they do not provide for the organization of public unions. In these states, it is common to not have a union contract or formal discussion with unions or other employee organizations. Even if not required, it is a good idea to meet with employee representatives on a regular basis and discuss topics such as salary, benefits, working conditions, and safety issues. This practice generally raises the morale of members. Public Sector Unions Unions are groups of workers who have formed an association to discuss issues with management. Unions protect jobs and negotiate to improve salary and benefits, including safety issues from local governments. They also promote companionship and respect for fellow members. This creates a strong loyalty to the union that sometimes can conflict with the main mission or goal of the FES organization—namely, quality service to the public. The relationship between unions (and the representatives of the public, e.g., chief officers, mayors, county executives) is a system of checks and balances—the administration is watching out for the best interest of the public at a reasonable cost, and the unions are looking out for the rights of their members. This relationship can be especially challenging for a chief hired in from outside. This can be a difficult situation for the new chief because they do not know about any politically influential individuals or groups in the municipality (see Chapter 2, Power Elite). However, this is an oversimplification; there are many situations in which unions have supported changes that were primarily for the benefit of the public. Unions come in all sizes and types. Some are extremely strong and influential; others are mere social clubs. In right-to-work states, unions tend to be weak and more advisory in their actions. As an administrator, never underestimate the power of the local union. You do not have to give in to all of their demands simply because they have influence; however, the chief officer must respect their opinions and give them a chance to voice their concerns and beliefs. Union Dues for Non-Members In a February 2018 decision, the Supreme Court decided that forcing union non-member public employees to pay union fees violates free speech. This affects every employee who decides not to join the union. In many political jurisdictions, the non-union employee is required to pay the union dues, even though they are not a member. The union in most cases was obligated to provide protection for the non-members , rights, including bargaining for salary and benefits. The rationale for this decision is that non-union members support the union’s political endeavors even if they disagree with the politician, policy, or party being financially supported. Private Sector Unions The National Labor Relations Act was enacted by Congress in 1935 to protect the rights of employees and employers, to encourage collective bargaining, and to curtail private sector labor and management practices that could harm the welfare of workers. There are many varied opinions concerning the pros and cons of union affiliation. Whether a union is effective depends on the union itself and the agreements made with the company. When employers deny the rights of employees to organize and refuse to accept the procedure of collective bargaining, this can lead to strikes. Generally, strikes are not an option for most fire service organizations and are in most cases not allowed by state or local legislation. Strikes and Job Actions In most labor unions, the strike is the ultimate tool to gain agreement for an improved salary or benefit. Without this negotiating tool, public safety unions are at a great disadvantage in discussions with the dominant governments. Some states allow binding arbitration for public safety employees. This permits a fair and equal status for labor and management. However, in right-to-work states, binding arbitration is rare. In these situations, it is common to lack a written contract or for negotiations to continue endlessly. This can be very bad for the morale of members, resulting in safety concerns, which may have a negative impact on service to the public. Bargaining Units It is very common for there to be two bargaining units—one for workers and one for officers. In many cases, both units may be represented by the same union president or are in some way combined into the same organization. Representing two classes that may be in opposition can cause a conflict of interest for the union. For example, in some departments, only the fire chief is not a member of the union. If both the worker and supervisor are members of the same labor organization, they may become friends in the social atmosphere that surrounds these organizations. When differences surface, it can become a one-person administration versus everyone else. This can isolate administration and make it very difficult to negotiate solutions to problems. It can be very difficult for supervisory or management personnel to separate their loyalty to the firefighters from the duties they must perform as a supervisor. In the day-to-day running of the department, and in the negotiation process, supervisory personnel may not know where their loyalty should stand. This situation is exacerbated by the nature of FES work. Personnel perform their duties in small teams that become very close professionally and personally. Firefighters often become very close friends. Often, one of these friends may be promoted and become th