Bullying In The Workplace: A Prevention Guide

by Tami Tanoue, CIRSA General Cousel/Claims Manger

Most of us recall the schoolyard bully as a bad but distant memory. However, in some workplaces, a grownup bully continues to cause the same fear, stress, and disruption that we remember from childhood. This article introduces you to the problem, explores some of its consequences, and provides some suggestions for dealing with it.

What is Workplace Bullying?

Susan heads up a department where the deadline pressures are intense. Whenever something goes wrong, she lets loose with shouting and name-calling. Bob is a frequent target of Susan’s ire. “I find it humiliating,” says Bob. “But Human Resources told me that unless she threatens violence, the City’s hands are tied.”
There’s something about Rick that bothers Mary. “Rick’s in the cubicle next to mine. Several times a week, he comes into my cubicle, grabs my chair while I’m sitting in it, and rolls me from one end of the office to the other. He knows it freaks me out, but he won’t stop. Other times, he rolls up in his chair behind me, and just bumps my chair repeatedly with his. I guess he thinks he’s being funny, but I cringe every time I hear someone pass near my cubicle.
City Council meetings in Elmville are pretty contentious; the Council is united only in its distrust of and disdain for the City’s department heads. At every council meeting, at least one department head is singled out for public berating. This Tuesday, it was Marvin, the public works director. At the next day’s staff meeting, Marvin lashes out at his department heads. “I hate myself for taking it out on them,” says Marvin, “but you-know-what rolls downhill.

Workplace bullying is the repeated, health-endangering mistreatment of a person at work by a co-worker, supervisor/manager, or customer. The mistreatment may involve repeated acts of:

Shouting, yelling, screaming, or swearing,
Insults, put-downs, name-calling, or belittling,
Public humiliation, criticism, or “dressing down,”
Cruel or offensive pranks, jokes; or
Physical behavior, such as pushing, blocking, tripping.

More subtle but sustained behaviors or acts of omission may also constitute bullying if sufficiently serious:

“Bad mouthing” behind someone’s back,
“Undermining” or “sabotaging” behaviors,
Spreading malicious and unfounded rumors,
“Silent treatment,” “freezing out” or excluding, or withholding of information, or
Arbitrary, inconsistent, or constantly changing treatment, discipline, or directives.

Bullies and bullying may be difficult to identify and pin down, even for a person who’s the target of the bullying. Sometimes, the behavior is subtle, but its cumulative effect is to wear down, undermine, and stress out the target.

Bullying behavior may not be aimed at gender, race, age, or other traditional protected categories. It may also not constitute or escalate into violence or threatened violence. A bully is often skilled at skirting around the edges of established policies. For these reasons, your current personnel policies, such as those prohibiting harassment or workplace violence, may not address bullying problems effectively.

What’s the Scope of the Problem?

A July 2004 survey by the National Institute for Occupational Safety and Health (NIOSH) indicated that:

Bullying was a problem in 24.5 percent of companies surveyed.
In the most recent reported incidents, 39.2 percent involved an employee as the aggressor, 24.5 percent involved a customer, and 14.7 percent involved a supervisor.
In the most recent reported incidents, 55.2 percent involved an employee as the bullying target, 10.5 percent the customer, and 7.7 percent the supervisor.

Bullying can infect the workplace with fear, anger, stress, loss of confidence, and depression. The result is poor morale and lowered productivity. Certainly no one who’s been targeted for bullying can experience job satisfaction or high motivation. The stress of being a bullying target can lead to illness and absenteeism. High rates of staff turnover can occur. At the extreme, constant bullying could lead to a tragic incident of violence.

Who is the Bully?

A workplace bully may be male or female. Like the school-yard counterpart, a bully is often an insecure person at heart. That insecurity is turned outwards, in the form of attacking, belittling, or intimidating, or abusive behavior.

The bully may be someone who’s charming, obsequious, or subservient in one relationship, but domineering, intimidating, or cruel in another. Depending on how the bully interacts with you, it may be difficult for you to take someone’s complaint of bullying seriously. But don’t dismiss a complaint out of hand just because your own experience is that the accused person is always charming. Look more deeply into the matter before drawing conclusions.

Who is the Target?

The target can be anyone singled out by the bully. Contrary to stereotypes, the target is not necessarily someone who’s vulnerable, a poor performer, or disliked by others. The target may well be capable, respected, and liked. Someone with a cooperative, conciliatory, and non-confrontational personality may be a likely choice to be a bully’s target.

How do you Stop Workplace Bullying?

If you’re a target of bullying:

If you’re comfortable doing so, inform the bully that the behavior is unacceptable and needs to stop. If the behavior doesn’t stop, or if you’re uncomfortable confronting the bully, go to a supervisor or to your human resources department.
If you know that others are being bullied by the same person, let the supervisor know who they are. That way, the supervisor can have a more complete perspective on the behavior, particularly if it’s subtle. If the supervisor knows that several people are having the same problem, the supervisor will be less likely to dismiss your problem as an interpersonal conflict.

If you’re a supervisor or manager:

Maintain an open door policy, and engage regularly in “management by walking around” – keep your eyes and ears open.
If you receive a complaint, take it seriously. Investigate and follow up appropriately.
If you observe any instances of bullying or suspected bullying, follow up promptly. If the person is someone under your supervision, make it clear that the behavior is unacceptable, and impose appropriate consequences.

If you hear excuses or “explanations” like these, they may warrant further scrutiny of a situation:

“It’s just good-natured horseplay and roughhousing.”
“This is just my management style.”
“I’m just a person who needs to vent sometimes.”
“Someone can’t take a joke.”
Make sure an exit interview is done with departing employees, especially when someone quits unexpectedly and seemingly inexplicably. Follow up on any bullying concerns that may be raised at the interview.

Are Your Policies Adequate?

As discussed above, the bullying problem is somewhat related to, yet distinct from, the issues covered by a typical harassment policy or workplace violence policy. For this reason, you may find that your existing policies don’t really address bullying adequately. You may find it useful to discuss with your entity’s counsel the idea of augmenting your policies with anti-bullying provisions. As with other policies of this nature, an anti-bullying policy should contain a clear definition of the unacceptable behavior, describe the consequences of violating the policy, include a complaint/investigation/followup mechanism, and provide anti-retaliation protections. The policy should be disseminated to all employees, and regular training should be conducted on the policy.

CIRSA Property/Casualty members may obtain an updated sample workplace violence policy that addresses bullying by contacting CIRSA.

Most importantly, don’t forget the old saying, “you reap what you sow.” If the leaders of an organization use fear, ridicule, intimidation, insults, or screaming in dealing with those whom they manage or supervise, they shouldn’t be surprised if negativity, disrespect, and mistreatment are permeating the entire workplace. Set the right example by treating everyone, regardless of rank or place in the organization, with the same courtesy and respect with which you would like to be treated.

Employees Gone Wild: The Risks of Tolerating A Culture of Hazing

by Tami Tanoue, CIRSA General Counsel/Claims Manager

Editor’s Note: Elected officials play a critical role in avoiding or attracting liability for the public entities they represent. If you have an elected officials’ liability-related topic you’d like addressed, please feel free to let Tami know at tami@cirsa.org.

As an elected official, you may be aware of municipal departments that maintain a rough-and-tumble work culture. Pranks, jokes, horseplay, bullying, and hazing may be part of the employees’ workday, and may be tolerated or even encouraged by supervisors and managers. But a recent order of the U.S. District Court for Colorado highlights the risks to the entity, and to individual public officials, of allowing a culture of hazing to take hold in any department. The case is Martin v. North Metro Fire Rescue District, 2007 WL 4442373 (D. Colo. Dec. 13, 2007).

The Allegations

Jonathan Martin was a newly hired firefighter in a fire district. His allegations included the following:

He and other probationary firefighters were told during their first week of training that they would be treated “like s___” for a year, and if they complained, the treatment would worsen; and that “anyone can take anything for a year.”
For several months, a supervisor routinely used epithets to refer to Martin in front of others, including “f___-face,” “a__-face,” “dumb-f___,” and “s___-for-brains.”
In one incident, a co-worker struck Martin on the buttocks with a large ceramic plate so hard that he almost dropped to his knees in pain. In other incidents, a co-worker stood just outside Martin’s door with his pants down and his hands on his buttocks, spreading them apart, with the intent that Martin would run into them; and a co-worker snuck into his room with his pants pulled down and touched Martin’s face with his genitals. Martin alleged that this type of sexual harassment was not included in the harassment of female employees.
A supervisory employee had observed this type of lewd behavior in the past.

Martin alleged that his complaints to both his union representative and the station lieutenant were not addressed. Indeed, the lieutenant allegedly responded that it was part of the history and culture of the district to engage in the hazing of probationary employees. Martin alleged that, following his complaints, his co-workers stopped communicating with him except when they had to for work purposes. Subsequently, the division chief allegedly told Martin that he should resign, because if he did not, the division chief would make it impossible for Martin to find another firefighter job in Colorado. Martin allegedly resigned under duress, then filed a lawsuit against the fire district and the division chief.

The Suit

Martin made claims under both federal and state law. He made equal protection claims pursuant to 42 U.S.C. Section 1983 for disparate treatment based on his status as a probationary employee, and for sexual harassment based on his gender. He also made a claim under state law that the division chief was negligent in his supervisory responsibilities.

These claims were the subject of the defendants’ motion to dismiss. The Court, in its order, declined to dismiss any of these claims, including most surprisingly, the negligent supervision claim under state law. We’ll focus on this state law claim because the Court’s order is of serious concern to supervisors and managers from a personal liability standpoint under state law.

The State Law Claim

Along with his federal claims, Martin made a claim, pursuant to the Governmental Immunity Act (GIA), of “willful and wanton” conduct against Joseph Bruce, his division chief. Martin alleged that the district’s management was “complicit” in the incidents about which he complained, and that Bruce, as the district’s operations chief, was responsible for supervising Martin’s supervisors and managers. He alleged that Bruce knew of Martin’s harassment allegations but was among the managers and policy-makers who “allowed, condoned and were deliberately indifferent to” the harassment and hazing of Martin and other probationary employees.

The GIA And “Willful And Wanton” Claims

Under the GIA, public officials enjoy significant immunities where state law claims are concerned. They are generally immune from tort claims unless a claim is one that falls within seven limited areas for which governmental immunity has been waived, or unless the act or omission causing the injury was either outside the scope and performance of the official’s duties, or “willful and wanton” in nature.

“Willful and wanton” is not specifically defined in the GIA. Courts have looked to other statutes to provide guidance as to what the term means in the context of the GIA. See, e.g., Moody v. Ungerer, 885 P.2d 200 (Colo. 1994). For instance, under the statute governing exemplary or punitive damages in civil actions, “willful and wanton conduct” is generally defined as “conduct purposefully committed which the actor must have realized as dangerous, done heedlessly and recklessly, with regard to consequences, or of the rights and safety of others, particularly the plaintiff.” C.R.S. Section 13-21-101(1)(b). A case interpreting the automobile guest statute defined “willful and wanton” as “wholly disregardful of the rights, feelings, and safety of others . . . . at times even imply[ing] an element of evil.” Pettingell v. Moede, 129 Colo. 484, 491, 271 P.2d 1038. 1042 (1954). Black’s Law Dictionary states that “willful and wanton” misconduct must “exhibit conscious disregard for safety of others.”

As these definitions show, there’s a high bar for what constitutes “willful and wanton” conduct; the term implies a level of disregard that is beyond negligent, indeed beyond reckless. Any determination that a public official could have engaged in “willful and wanton” conduct is of great concern for a number of reasons:

Of course, the protections of the GIA are lost when such conduct is found to have occurred. You won’t have the right to be defended at the expense of your public entity, or to have any judgment or settlement against you paid by the entity; you also won’t have the benefit of any monetary limitations on your liability.
Such conduct, because it is not considered to be within the scope of any public official’s duties, also carries the risk that liability insurance coverages will be lost.
Finally, such conduct carries the risk that a jury will choose to award punitive or exemplary damages against a public official. Punitive damages are almost universally excluded from liability insurance coverage.

Lessons

“It ain’t over ‘til it’s over” applies to the status of the Martin case, and it’s possible that the district and its division chief will be vindicated at trial. However, we can glean some lessons from the District Court order even at this stage of the proceedings:

A work culture of pranks, jokes, horseplay, bullying, or hazing is unacceptable. No municipal department should be run like a fraternity house! Excuses like “hazing builds camaraderie” or “we’ve always treated the new recruits this way” don’t cut it. The most important lesson we should learn from this case is that a hazing culture is incompatible with professional management and supervisory practices in this day and age, and those who participate in or tolerate it will face harsh legal consequences.
Don’t tolerate retaliation against those who complain about hazing. In the Martin case, the alleged acts of violence, physical assault, harassment, and humiliation in the name of hazing were not the only problem. Martin also alleged that “ostracism and eventual forced departure from his position” resulted from his complaints. “Shooting the messenger” is not the appropriate remedy when these kinds of complaints are made; it will only multiply your legal woes. Ensure that no acts of reprisal or retaliation are made against the complainant at any level. Make sure appropriate disciplinary action is taken against anyone who participates in such acts.
If adverse working conditions of this nature are called to your attention as an elected official, don’t disregard them. Ensure that allegations are appropriately investigated and followed up. You don’t have to step into the shoes of your city or town manager/administrator or try to micro-manage the situation; but make certain your entity has the proper values, policies, procedures, accountability, and training in place to address these issues before they become problems. It doesn’t appear that the district’s elected officials were parties in the Martin case. However, it’s easy to envision a scenario where elected officials could be individually named in a suit like this along with managers and supervisors. For instance, if allegations of hazing came to the attention of governing body members, and were ignored by them, they could easily be swept into a suit like this. Make sure the mechanisms are in place to deal with issues like this, and hold your top management accountable for seeing that the mechanisms you’ve put into place are followed.

The Bottom Line
At CIRSA, we’ve generally counseled that public officials should have immunity from most state law negligence torts in the employment context, such as negligent hiring, supervisory, and training practices. However, as the Martin case reflects, if the public official’s conduct with respect to such practices is not just negligent, but sufficiently beyond reckless to be “willful and wanton,” that immunity will be lost. The consequence is a significant personal liability exposure for the public official. So the bottom line is that public officials can’t afford to rest on the hope of immunity if they don’t act responsibly with respect to hiring, supervision, and training practices. the public entity will be carried out within the boundaries of prudence and ethics.

This article has pulled out bits, albeit helpful bits, of Boards That Make a Difference for you to consider. Reading the book is highly recommended, because the Model really makes the most sense when viewed in its entirety.

___________________________

¹It’s important to note that this order was in response to a motion by the defendants to dismiss the case. Therefore, the Court accepted, only for purposes of deciding the motion, that the allegations made by Martin were true. Because of the stage of litigation in which the motion was decided, the actual circumstances of the case are yet to be proven.

Mediate? Why Not?

This Legal Lines article was written by B. Brittany Scantland-Lall esq. Mrs. Scantland-Lall is an associate with the law firm of Murray, Dahl, Kuechenmeister & Renaud LLP. She represents local government clients in court and administrative hearings and provides legal counsel to public officials and staff on topics such as public records, open meetings, elections, and municipal tax. She is an adjunct professor in the Business Ethics and Legal Studies department of the University of Denver and is a volunteer mediator for the CBA/DBA Court Mediation Service. Mrs. Scantland-Lall welcomes questions about the article and can be reached at 303.493.6670 or emailed at bscantland@mdkrlaw.com.

Introduction
The purpose of this article is to examine ways an organization deals with conflict and to explore one specific type of conflict resolution: mediation. The invitation is to reflect on any current (or growing) conflicts in your organization. Consider land use disputes, council-manager disputes, council-council disputes, staff-manager disputes, or similar situations. Are negative relationships affecting your organization’s productivity? There are no hard and fast rules as to when a particular situation is ripe for mediation. Why not consider addressing the issue before it becomes a full-blown dispute which serves to disrupt your organization? Why not address it now? Take a moment to audit pending conflicts. Which ones might benefit from mediation? Why not take action to resolve them and move beyond them? Consider the emergence of a conflict as an opportunity to change course, change direction, and change perspective through a mediative process.

Resolution 11-049
October 2011 was Conflict Resolution month in Colorado. In Joint Senate Resolution (“Resolution”) 11-049, the members of the Colorado General Assembly formally joined Governor Hickenlooper in recognition of the import of this month. Among other benefits, Resolution 11-049 recognized that dispute resolution, encompassing the disciplines of mediation, arbitration, facilitation, collaborative decision-making, ombuds activities and restorative justice are all processes which empower individuals, families, communities, organizations and businesses to foster communication and devise solutions that are acceptable to the needs and interests of all parties involved. The Resolution goes on to recognize additional benefits: the process is party-centered, creative, creating durable interest-based reconciliation, increased satisfactions of the parties involved, preservation of relationships and decreasing likelihood of strained relationships in the future. Resolution 11-049. These benefits will be explored in this article.

A Plethora Of Benefits
As Resolution 11-049 highlights, there are numerous benefits to conflict resolution, which would necessarily be found in the mediation process:

Benefits:
Party-centered: Mediation focuses on the parties. There is tremendous value in a party expressing his/her impression of what has occurred and that same party hearing what the other party believes to have occurred. In the context of court, these narratives get distilled to legal principles which may treat the symptoms of the dispute, but not the underlying conflict.

Creativity: In court, a judge or jury is going make a ruling on facts based on application of law to the facts. As to each issue before the court, a party will either win or lose. Often the facts and law alone are not enough to resolve conflict; often there are underlying issues that may have to do with reputation, status, relationship, etc. that a court will not likely consider. In mediation, the parties can actually craft resolution around these intangibles.

Interest-based reconciliation: The distinction of interest vs. position based negotiation is not a new concept, but plays a key role in mediation. Imagine you are a manager and ask a disgruntled employee why there is tension between her and Judy – two possible responses might be:

A: “Judy creates a hostile work environment. I cannot share office space with her.”
B: “I can’t concentrate when Judy is seated near me. She makes several personal phone calls a day and is a loud talker.

The position the employee takes in “A” really gives you, as the manager, no substance. “B” gets to the heart of the frustration. With “B”, you can begin to work on ways to remedy Judy’s disruptive phone habits, rather than simply dismissing the entire situation. Both of these stances could lead to a log jam in the working relationship, but “B” allows for a place to start the discussion and determine if the issues can be resolved. “A” is the start of a lawsuit and “B” is the beginning of a conversation.

Increased satisfaction:True, some satisfaction may come from winning in a courtroom, but even more satisfaction is possible when the parties feel as if they have been heard and have actively participated in crafting the resolution. This even holds true for a party who has had to make several concessions.

Preservation of relationship & fostering communication:What happens as conflict builds? Communication falls apart and relationships suffer, if not fail. In fact, at certain points, litigation actually prevents the parties from talking. Mediation requires the parties talk to one another.

Consider the council-manager dynamic. At some point, it will happen that the City Manager takes action that seems inexplicable to councilmembers. While the council was not necessarily part of the decision making, they received word of the action taken. Little by little, tension builds. Councilmembers become skeptical of any action the Manager takes, and the Manager becomes increasingly defensive over time. After a while, nobody can actually identify what triggered the tension, but conflict (even passive conflict) has defined the council-manager relationship. A facilitated conversation between the Council and the Manager can go a long way to give the parties a structured, safe mechanism for airing concerns and moving beyond the conflict.

Decreased likelihood of strained relationship in the future: Here is one of the great wonders of mediation: parties not only have the opportunity to resolve a current dispute, but they can also be forward-thinking and lay the groundwork for how disputes will be handled in the future. The empowering effect of controlling one’s destiny should not be underestimated.

For example, the parties might include a clause in the Resolution Agreement that states: “To increase communication, we agree to set regular 30-minute meetings for Wednesday mornings. Further, if X happens again, we will refer the matter to mediation if the matter cannot be informally resolved within 5 days of the occurrence of X.”

Listening: A more nuanced benefit of mediation is listening. The parties must actually listen to one another to participate in an effective mediation. Active listening may involve a party stepping into the shoes of the other party and (even briefly) seeing the dispute through the other party’s eyes.

Control over process & outcome: In mediation, the mediator will provide a structured process; however, the process can be adjusted to meet the needs of the parties. Further, parties control the outcome, rather than a court. The parties are the best ones to know what is truly needed to resolve a situation. They can devise the best resolution to a situation. Having actively crafted the resolution, parties are more likely to adhere to it.

Financial & emotional impact: Litigation is expensive. Of course, mediation in certain contexts is not a feasible answer; our courts were created for a reason, and turning to a court for judicial relief is a process and remedy that should be honored, but not overused.

Litigation can also take an emotional toll. This is experienced not just by the parties involved, but also on employees who work with or worked with one or both of the parties. It also may be emotionally exhausting for family, friends or a board of trustees or city council. Those individuals may have relationships with one or both of the parties. Not every dispute or conflict merits the resources (time, money, emotion) that are required to navigate the court system.

Consider these two responses to a threatening letter which states if the City does not allow a particular company access over the City’s easement it will condemn the access necessary (assume for the moment the company would have the right to do so):

A: The City has an easement, and there is nothing this company can do to it. Let’s just say “no”! Have them try to condemn our easement rights!
B: Company, why do you need access over the easement? How deep will you need access? The City’s easement is for a sewer line, so it is essential that it continues to have access over the easement.

“A” launches the parties into condemnation proceedings and further expense. “B” allows for a discussion regarding the company’s interest and opens the door for a win-win solution. In a similar situation that actually occurred, the City’s sewer line was much deeper than the company would ever need to access, and the overlapping easements would only exist at one point. The parties were able to negotiate a simple agreement as to the administration of their overlapping easements.

Confidential: In mediation, a ground rule that is often laid (and recommended) is confidentiality. This allows the parties to raise any and all concerns. Do be aware, however, if it appears that one or both parties are only entering into mediation as a pre-trial, fact-finding mission. Confidentiality should not be abused.

Once a complaint has been filed in court, the details of the dispute are public information. True, there may be times when this publicity is the desired result; however, there may be times when this is simply not necessary. A confidential mediation process might be best for some situations.

Court is a default: There might be times that even after the most well-intentioned mediation, the parties need to proceed to court and have a judge or jury determine their case. Mediation does not prevent a case from proceeding to court. Even if mediation does not bring the parties to a full resolution, it might serve the purpose of narrowing their positions or the list of issues to be litigated.

Process
If a situation in your organization may benefit from mediation, what can you expect? Mediation will provide a structured process, the goal of which is resolution. Ideally, the resulting resolution not only addresses the dispute that brought the parties to the table, but it lays the groundwork for either eliminating or setting the rules of engagement for future disputes. The process could take 2 hours or several meetings. Each situation is different. Below is an example of how the mediation will likely proceed:

Steps:
Agreement to Mediate: The first step in a formal mediation is an agreement to participate in the mediation process. Look, the parties have already agreed on something! General terms include: the role of the mediator, confidentiality, and mediator compensation.

Pre-mediation contact: Depending on the depth of the issue, the mediator may touch base with each party first to determine what each party sees as the issues, and determine logistical considerations such as where the mediation will take place and how much time should be scheduled.

Establishing a process: The mediator will generally describe what s/he sees as the process that will be followed. However, if the parties feel strongly about using a different process, a mediator will generally be open to crafting the process to meet the specific needs.

Narrative: Each party has an opportunity to explain his/her side of the story and what the issues are.

Response: Each party has the opportunity to respond to what they have heard.

Issue identification: As the process moves forward, the mediator will restate and narrow the issues to be visited and help the parties work to resolve each in turn.

Caucus: There can be caucuses – a time for each of the parties to speak to the mediator alone about their specific issues or concerns. But remember, mediation is not a settlement conference. A mediator (unless an exceptional situation truly merits this) will not shuttle back and forth to communicate messages between the parties. Otherwise, the benefits of communication will be lost.

Resolution Agreement: If a resolution is reached, the parties will enter into an agreement at the conclusion of the mediation to memorialize the resolution. If at all possible, have the mediation in a location where a mediator can type and finalize the agreement at the conclusion of the mediation. The parties can then leave the mediation having signed a final agreement. Include terms in the agreement to plan for what happens if a term in the agreement is vague or needs interpreting at a later date. These documents should be as detailed as possible. Like any contract, this agreement can be breached and enforced in court.

ConclusionIt is highly likely that at least one dispute in your organization could best be served by mediation. The process is flexible and can be as formal or informal as needed. Audit any current issues your organization is facing. Try the process. Why not mediate?

What Is An Insurance Property Appraisal?

Each year during renewal, members ask why the building values shown on their property schedule for appraised locations (those designated as an “A” type building on the property schedule) have increased, especially in light of the fact that real estate values around the State have fallen over the past several years.

The answer is that insurance replacement cost appraisals are completely unrelated to real estate values. An insurance replacement cost appraisal provides the estimated cost to replace a building that has been destroyed by a covered cause of loss, from the ground up, with a building of like kind and quality. It also includes the cost to upgrade the building to current codes, and the cost to prepare the site including the demolition of any of the former structure that might remain on the site.

Real estate values, in contrast, are driven by four main factors: market demand, condition of the building including its age, location of the building and plot size.

Market demand is not a factor for insurance appraisals since the building is not intended for sale. As for the condition and age of the building, with real estate appraisals, the age of the building often drives the value down; with insurance appraisals, the age of the building often drives the value up. The CIRSA property program includes coverage for Increased Cost of Construction (also known as “ordinance and law” coverage) which provides for “the increased cost to repair, rebuild or construct the property caused by the enforcement of building, zoning or land use ordinances or laws. The older the building, the more common it is for this coverage to come into play.

The condition of the building is generally not a factor either, because any repair or replacement of the building needs to be completed with new materials (except in the case of certain historic locations). The fact that a building has a 30-year old HVAC system, or a 20 year old roof, does not matter when there is a need to repair or replace it. (This example assumes a claim from a covered cause of loss and not one due to a lack of maintenance. Claims due to a failure to maintain a property may not be covered.)

Location and plot size do not matter for insurance appraisals – it costs the same amount to construct a building with a view of a busy street on a .25 acre parcel of land on the west side of town as it does to construct one on a 5 acre parcel on the east side of town with a view of the mountains.

While the cost of labor has been falling in most areas, the cost of materials has not. One of the more extreme examples is that the cost of steel is up 24% in the first seven months of 2011 over 2010. Overall, the cost of construction (materials and labor combined) is up 3-4% over last year.

We hope the foregoing explains why insurance replacement costs may go up even when real estate values go down.

The Basics of Courtroom Testimony – Establishing Credibility With The Jury

This Legal Lines article was written by Thomas S. Rice and Eric M. Ziporin of the law firm of Senter, Goldfarb & Rice. The firm is a member of CIRSA’s defense counsel panel, and provides legal services to CIRSA and its members in a wide variety of claims. Mr. Rice and Mr. Ziporin welcome any questions regarding this article and will be happy to provide additional information upon request. They can be reached at 303.320.0509.

Testifying in court is a stressful event that very few people look forward to. But as a municipal official, there is a good possibility that, at some point in your municipal career, you will be called on to testify as a witness in a deposition, hearing, or trial. For some municipal officials, such as police officers, the witness chair is a familiar place. But elected officials may be called on to testify in land use matters and other high-level decisions in which they participate. Managers and supervisors may have to testify concerning employment-related decisions they make. Even line personnel, such as water, wastewater, or street personnel, may be called to testify in property damage or personal injury cases. This article introduces you to some of the dos and don’ts for witness testimony.

Witness testimony can make or break the defense in any given case. So when called upon to testify, it is critical that you are not only well prepared and knowledgeable about the case, but that you are also familiar with the process and the basic rules surrounding successful courtroom testimony. This article is meant to provide the reader with the basics of courtroom testimony, to include things to think about prior to trial as well as when you are sitting in the witness chair at trial. Following these basic practices will help you toward achieving the overriding goal of your testimony – establishing credibility with the jury by being truthful, accurate, and honest.

Why Is My Testimony Necessary?
Evidence at trial consists of documents (e.g. written, photographs, diagrams, etc.), tangible items (e.g. recordings, weapons, demonstrative exhibits, etc.), and witness testimony. By far and away the most compelling evidence comes from live witness testimony.

If you are asked to testify by a party in a case, or if you are served with a subpoena to appear in court, your first question will likely be “why me?” You have likely been selected to testify because you have personal knowledge about facts that are relevant to an issue that is in dispute. Perhaps you are needed to support the defense of the case, or maybe the other side thinks that you have information that might be helpful to their case. Either way, both sides need witnesses to establish facts necessary to prove their claims and defenses. The most efficient and compelling way to do this is through witnesses. From our perspective, at trial our witnesses become the “face” of our case, and it is through these witnesses that we build our defense and establish our credibility with the jury.

Direct vs. Cross-Examination
The type of examination that takes place depends on which side of the case calls you as a witness in support of their case. If you are first called to testify by the other side, you will be subjected to cross-examination. If called first by our side of the case, you and counsel will participate in direct examination. In either scenario, the other type of examination will likely immediately follow in order to avoid you having to come back to court and testify again at a later date.

Cross-examination is an “attack” from the adverse party. The attorney can ask leading questions and will attempt to get you into a rhythm of answering questions the way that he/she wants you to. Be mindful of that and slow things down. The attorney will also attempt to impeach you by attempting to point out inconsistencies in your testimony. Cross-examination also has the element of the unknown as you will not know ahead of time the specific areas of inquiry.

On the other hand, direct examination is the chance for you to tell your story. You will be asked open-ended questions and will provide longer, narrative responses to the questions. There is also the benefit of knowing in advance the nature of the questions that will be asked based on your pretrial preparation with counsel.

What Juries Like/Dislike
What juries like can be identified by a simple acronym: CIRR: credible; informed; reasoned; and resolute. Jurors believe witnesses that are credible. They want to hear from a witness that is not only informed about the case but who also help them understand critical issues that are in dispute. A witness that is reasoned and makes sense also goes a long way toward influencing the jury. And finally, jurors tend to believe witnesses that are resolute and not wishy-washy on the witness stand.

Conversely, jurors do not like witnesses who make inconsistent statements and are uncertain about their testimony. Jurors (and the judge) also do not like witnesses who avoid answering the question or are unnecessarily combative with counsel. These witness behaviors negatively impact the likelihood that the jury will like you and view you as a credible witness.

Importance Of Preparation
There is simply no substitute for being prepared. Everyone who appears in court is nervous, and the best antidote for nervousness is preparation. If you know you are prepared, you are confident during your testimony. Confidence builds credibility with the jurors. As the “voice” of the case, the jury will expect that you are prepared and that you know the facts of the case.

If you have given a prior statement or had your deposition taken earlier in the case, it is crucial that you have a complete handle of those statements prior to testifying in court. Those statements need to be read multiple times and essentially memorized in order to avoid testifying at trial in a manner which is inconsistent with those statements. Detailed preparation will also lead to a practiced and smooth presentation in court.

Another critical area of preparation will be to anticipate the attack from the other side. These areas may be obvious given the particular nature of the dispute. However, if they are not obvious, you can identify areas from your deposition that the attorney really honed in on and you can expect that same line of inquiry at trial.

“Rules Of The Road” For Cross-Examination
Cross-examination is by far the most stressful part of courtroom testimony. Below are 7 common sense rules to guide you through that process.

Rule 1: Make sure you understand the question.
Before you answer, make sure you understand the question that is being asked. Maybe you did not hear the question or you were distracted for some reason. The question may be convoluted and confusing. Perhaps counsel used strange or unknown verbiage. Whatever the reason, ask for clarification as many times as you need before you answer to ensure that you fully understand the question. But be careful not to play “word games” with counsel as doing so is unnecessarily combative and can lead to the loss of credibility with the jury.

Rule 2: Do not volunteer.
Once you have heard and understood the question, only answer that which is being asked. Focus only on the information sought by the question, and use short, concise, to-the-point answers. If you can answer a question accurately with a “yes” or “no” – do it. Resist the temptation to say more than is necessary and instead answer the question truthfully, honestly, and accurately. Volunteering information may lead counsel down a line of inquiry that he/she neglected to think about prior to trial. Remember – direct examination is your time to tell your story.

Rule 3: No guessing.
If you do not know the answer – say it. Answering a question with “I don’t know” is truthful, accurate, and honest if you truly do not know. This also holds true for answers that you do not remember. Do not allow your answer to change simply because counsel does not like your answer and asks you the same question more than once. Be mindful of time and distance questions. Lawyers love to pin down witnesses for specifics, but if you do not know, simply say that you cannot answer the question because you would be guessing.

Rule 4: Take your time and be patient.
There is no need to rush your answers. Take the time to pause before you answer to allow time to think. If you are trying to rush to get off the “hot seat,” speed will likely trump the goal of being truthful, accurate, and honest. It will be over soon enough, so just hang in there and focus on accuracy.

Rule 5: Finish your answers and correct misstatements.
If counsel interrupts you and you have not finished your answer – say so. If you realize at some point that you inadvertently made a previous misstatement, correct it at your first opportunity. Admitting misstatements as soon as possible and correcting them builds credibility with the jury and can avoid having those misstatements magnified by opposing counsel later on in your testimony.

Rule 6: Read before you answer.
If you are asked to comment on a document, read it before you answer. Do not assume that you know what it says. Also make sure you ask to see a document if you need it to answer the question. If counsel refuses to show you the document, he/she will look silly and seen by the jury as engaging in unnecessary gamesmanship.

Rule 7: Do not get mad.
You need to go into the courtroom with the agenda of staying calm. Many lawyers employ the strategy of playing on a witness’ emotions, and you will both frustrate the lawyer and build your own credibility by keeping your cool. Sometimes we say things that we do not mean when we get mad, and that is the last thing you want to do when you are under oath.

“Rules Of The Road” For Direct Examination
For the most part, simply reverse the rules of cross-examination. This is the time to tell your story to the jury. The questions that are asked will be open-ended. Expand your answers and serve as a guide for the jury to understand the defense to the case. Jurors want to hear from witnesses – not lawyers – so let your attorney be the facilitator and you should serve as the “voice” of the case.

Conclusion
These are just the basics of courtroom testimony. You can rest assured that your CIRSA appointed attorney will meet with you in advance of trial and not only advise you of these basic rules, but also work with you to develop a game plan as well as identify those likely areas of “attack” from the other side.

3-Point Contact Key To Vehicle Safety

When you think of costly claims—in terms of financial cost, but also in terms of pain, missed work, and lifestyle change—you probably don’t think of a simple act like getting into or out of a vehicle.

Believe it or not, CIRSA has paid millions of dollars in Workers’ Compensation claims for employees in these situations. But the financial outlay cannot even begin to account for the lost worker hours for public entities, the extra work for colleagues filling in for an absent worker, or the pain and suffering of people who must miss work, change personal plans or even face the end of a career due to injury.

Vehicle safety is important in a variety of jobs. All employees should be alert to these dangers on the ground:

Mud, ice and potholes can create slip-and-fall hazards.
Traffic hazards can endanger police officers and employees in work zones.
Wet or icy parking lots can create risk for any employee.

Some of these factors are out of the hands of employees. But workers who take the time to use safety procedures when mounting and dismounting from vehicles and heavy equipment can make a big difference in their own safety.

Always Use 3-Point Contact

Entering and exiting vehicles is especially important for public works or parks and recreation employees, who might be using heavy equipment and working on unstable ground. Environmental conditions such as mud also can be hazardous.

To climb on and off equipment safely, the key is to always maintain three points of contact with the equipment. That means two hands and one foot or two feet and one hand should be on the equipment at all times.

Safe Procedures

Follow these procedures to safely get on and off of heavy equipment:

Check that the machine is equipped with grab rails and steps. (If possible, add stickers to remind workers about safe procedure and mark grab rails and steps.)
Scrape mud off shoes before climbing onto the machine. Also, keep steps and grips clear of mud, grease and other hazards.
Face the machine as you step onto the first step. Maintain 3-point contact at all times (two hands and one foot, or two feet and one hand). Use the surfaces the manufacturer designed for mounting and dismounting—steps, running boards, traction strips, footholds and hand grips.
Climb into the cab or other areas that have non-slip surfaces.
To get off the machine, be sure the machine is first parked and stable. Shut off the machine if necessary.
Step out of the cab or off of the machine—while facing the machine, use the provided surfaces to climb down, always maintaining 3-point contact. Do not jump from equipment! Jumping is dangerous to bones and joints.
Only break 3-point contact with the machine when you reach the ground.

In addition, your CIRSA Loss Control Representative can assist you in demonstrating safe vehicle entrances and exits. For personalized assistance, please call 800.228.7136.

House Bill 10-1168: An Insurer’s Right To Subrogation

This Legal Lines article was written by Steven J. Dawes and Kate L. McDonald of the law firm Light, Kelly & Dawes, P.C. Light, Kelly & Dawes is a member of CIRSA’s defense counsel panel and provides legal services to CIRSA and its members in a wide variety of claims. Mr. Dawes and Ms. McDonald welcome any questions regarding this article and can be reached at 303.298.1601.

Introduction

Legislation adopted in 2010 directly affects an insurer’s right of subrogation for any recovery made on or after August 11, 2010. HB 10-1168 (the “Act”) clarified that an insurer cannot seek reimbursement from an insured under a subrogation clause until the insured is fully compensated out of the judgment for the tortfeasor’s damages.¹ While the Act prioritizes the interests of an insured over that of his insurer when collecting on a judgment from a tortfeasor, it does not affect the principle that a subrogated insured must reimburse the insurer for any doubly recovered treatment costs.² This article discusses how the bill has affected an insurer’s right of subrogation.

Right of Subrogation

Nearly all insurance policies contain a clause which expressly gives an insurance company a right of subrogation. This type of contractual subrogation is known as “conventional subrogation.” It allows an insurance company, which has paid a debt of its insured (medical bills, for example), to pursue a legally responsible third party to recover the amount paid.³ In pursuing its right of subrogation, an insurance company “stands in the shoes of its insured” for all legal purposes and may pursue any rights held by the insured (the “subrogor”). If the insurance company (the “subrogee”) is allowed to pursue the legal claims of its subrogor, the mere existence of subrogation does not transform those claims at law into equitable actions. In other words, a subrogated insurer “has no greater rights than the insured, for one cannot acquire by subrogation what another, whose rights he or she claims, did not have.”⁴

“Fully Compensated” Presumption

The law now recognizes that a full policy settlement on a liability policy is rebuttably presumed not to compensate fully an injury victim, thereby making it difficult for the insurance company to recover under its right of subrogation.⁵ However, if the injured party makes a recovery of an amount that is less than the total amount of coverage available under the policy limits, there is a rebuttable presumption that the injured party has been fully compensated.⁶ Furthermore, if an injured party obtains a judgment, the amount of the judgment is presumed to be the amount necessary to fully compensate the injured party.⁷ These presumptions have an important effect on an insurer’s right of subrogation because an insurer will not legally be entitled to any recovery to the extent the limits of liability coverage do not make the victim whole.

Requirements Under the Act

Subrogation Amount
If the injured party is fully compensated and reimbursement or subrogation of benefits is authorized, the reimbursement or subrogation amount cannot exceed the amount actually paid by the insurer to cover benefits under the policy, contract, or benefit plan. For instance, assume Jane had insurance and accumulated $10,000 in medical bills in an accident, and her health insurance carrier would pay these bills. However, pursuant to a contract between the hospital and Jane’s health insurance carrier, or by negotiation with the insurance company, the hospital might accept $5,000 as payment in full. While Jane is allowed to collect the full $10,000 as damages in any suit against the at-fault third-party, her health insurance carrier can only seek subrogation for the amount it paid (i.e. $5,000), assuming Jane was fully compensated.

Arbitration
Any disputes regarding entitlement to reimbursement or subrogation must be resolved in accordance with subsection (4)(a) of the Act.⁸ Under this subsection, an injured party who obtains a recovery that is less than the sum of all damages incurred must notify the payer of benefits within sixty days of receipt of such recovery.⁹ If the injured party does not give this notice, the insurer will be able to pursue subrogation, despite the fact that the injured party may not be fully compensated. If the notice is properly given and the payer disputes that the settlement is less than the injured party’s damages, then the dispute shall be resolved by arbitration.¹⁰ The payer must request arbitration of such issue no later than sixty days after the receipt of notice from the injured party.

If the parties fail to choose an arbitrator, then the dispute shall be resolved by a panel of three arbitrators: one selected by the injured party, one selected by the payer, and one selected by the two previously selected arbitrators.¹² Upon a finding that the amount of the recovery does not fully compensate the injured party for his damages, the payer shall have no right to repayment, reimbursement, or subrogation.

“Once an arbitration award is entered, the finality of arbitration weighs heavily in its favor and cannot be upset except under exceptional circumstances.”¹⁴ An arbitration award will only be vacated for the reasons enumerated in the Federal Arbitration Act¹⁵ or for “a handful of judicially created reasons.”¹⁶ Therefore, courts are required to “give extreme deference to the determination of the [arbitrator].”¹⁷ In light of this, it is clear that the arbitrator selection process will be a critical step on the road to recovery.

Third-Parties at Fault
An insurer cannot initially bring a direct action for subrogation or reimbursement of benefits against a third-party allegedly at fault for the injury to the injured party or an insurer providing uninsured motorist coverage.¹⁸ However, if the injured party has not pursued such a claim within sixty days of the expiration of the statute of limitations, then the insurer may bring an action against such third-party.

Attorney Fees and Costs
The Act requires the insurer to pay its proportionate share of attorney fees and costs incurred by the injured party in obtaining a recovery against an at-fault third-party.²⁰ In evaluating whether to pursue its right of subrogation, the insurance company should determine whether it will have to pay more for its portion of the attorney fees than it can recover thereby making any recovery cost ineffective. If, however, the insurer obtains a recovery for property damage or uninsured/underinsured (UM/UIM) motorist coverage against an at-fault third-party, then recovery will not be reduced by such fees and costs.²¹

Applicability To CIRSA’s Coverage

CIRSA provides property and liability coverage to its Members.²² The Property and Crime Policy and the Liability Lines Aggregate Coverage Policy give to CIRSA all rights to pursue subrogation, and the Policies require each Member to assist CIRSA in enforcing its right of subrogation.²³ The right of subrogation given to CIRSA can include pursuing recovery of the Member’s deductible. Any such subrogation claims will be subject to the Act.

In addition, not infrequently private insurance companies pursue subrogation claims against CIRSA’s Members, particularly for property damage losses. The subrogation claim of the private insurance company will be subject to the Act. The following examples illustrate the effect of the Act.

Property/Casualty
Previously, an insurer that paid benefits to a person who was injured due to an act or omission of a third party could obtain repayment of those benefits out of any recovery paid to the injured party, regardless of whether the injured party had been fully compensated for his or her losses. For instance, assume Jane had $100,000 in medical bills which her health insurance carrier covered, and she incurred $30,000 in past wage loss, and $60,000 in loss of future earnings, making her total damages $190,000. John, a Member employee driving a Member vehicle rear-ended Jane’s car. John has $150,000 in coverage under CIRSA’s Liability Lines Aggregate Coverage Form.²⁴ Jane’s health insurance carrier could seek recovery of the $100,000 it paid for Jane’s medical expenses from the $150,000 settlement with CIRSA.

This Act, however, limits the ability of an insurance company to obtain such a recovery if the repayment would cause the injured party to not be fully compensated. In the above example, Jane’s health insurance carrier can only recover on its subrogation claim from Jane’s settlement with CIRSA after Jane is fully compensated for her losses. The effect of this may be an increase in the number of disputes between insurers and insureds over the amount of wage loss and non-economic damages claimed by the injured party. Since the Act requires that such disputes be handled in arbitration, this may cause additional expense to consider when evaluating claims, especially since there is no guarantee of any recovery.

Uninsured and Underinsured Motorist Benefits
CIRSA provides uninsured and underinsured (UM/UIM) motorist benefits for bodily injury.²⁵ If an uninsured or underinsured driver injures a Member employee in an automobile accident, the coverage received from the CIRSA UM/UIM coverage will be subject to the Act.

Workers’ Compensation
The requirements of this Act do not apply to claims for workers’ compensation.²⁶

Conclusion

Evaluating the merits of pursuing an insurer’s right of subrogation requires careful consideration, not only in determining whether the insured has been fully compensated so as to ripen the insurer’s claim for subrogation, but also in determining whether pursuing such a claim will be cost-effective. Additionally, close attention must be paid to the time constraints prescribed by the Act.

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¹Codified at C.R.S. § 10-1-135.
² Volunteers of America Colorado Branch v. Gardenswartz, 242 P.3d 1080, 1092 (Colo. 2010).
³ This is distinguished from “equitable subrogation” which is a judicially created remedy that allows a party who has paid the debt of another to pursue reimbursement from a legally responsible third party. See American Family Insurance Company v. Dewitt, 218 P.3d 318 (Colo. 2009),
⁴ American Family Insurance Company v. Dewitt, supra, at 323, citing 16 Couch on Insurance § 222:5 (3d ed.).
⁵ HB 10-1168(3)(d)(I).
⁶ See Id.
⁷ HB 10-1168(3)(d)(II).
⁸ HB 10-1168(4)(a).
⁹ HB 10-1168(4)(a)(II).
¹⁰ HB 10-1168(4)(a)(III).
¹¹ See Id.
¹² HB 10-1168(4)(a)(IV).
¹³ HB 10-1168(4)(b).
¹⁴ Ormsbee Dev. Co. v. Grace, 668 F.2d 1140, 1146-47 (10th Cir. 1982).
¹⁵ Under the Federal Arbitration Act, 9 U.S.C. § 10, the district court wherein an arbitration award was made may vacate the award in four instances: (1) where the award was procured by corruption, fraud, or undue means; (2) where there was evident partiality or corruption in the arbitrators, or either of them; (3) where the arbitrators were guilty of misconduct in refusing to postpone the hearing, upon sufficient cause shown, or in refusing to hear evidence pertinent and material to the controversy; or of any other misbehavior by which the rights of any party have been prejudiced; or (4) where the arbitrators exceeded their powers, or so imperfectly executed them that a mutual, final, and definite award upon the subject matter submitted was not made.
¹⁶ Denver & Rio Grande Western R. Co. v. Union Pacific R. Co., 119 F.3d 847, 849 10th Cir. 1997) (citing W.R. Grace & Co. v. Local Union 759, 461 U.S. 757, 766 (1983) (courts may vacate arbitration awards which violate public policy); Wilko v. Swan, 346 U.S. 427, 436-37 (1953) (courts may set aside arbitration awards which are based upon a manifest disregard of the law), overruled on other grounds, 490 U.S. 477 (1989)).
¹⁷ Brown v. Coleman Co., 220 F.3d 1180, 1182 (10th Cir. 2000).
¹⁸ HB 10-1168(6)(a)(I).
¹⁹ HB 10-1168(6)(a)(II).
²⁰ HB 10-1168(3)(c).
²¹ HB 10-1168(3)(a)(II).
²² The Property and Crime Policy, PR 01-2011, and the Liability Lines Aggregate Coverage Form, LIAB 01-2011.
²³ See the Property and Crime Policy, General Conditions, Paragraph H, and the Liability Lines Aggregate Coverage Form, General Conditions, Paragraph G.
²⁴ See the sublimit for claims subject to the Colorado Governmental Immunity Act.
²⁵ See the Liability Lines Aggregate Coverage Form, Coverage Part I, and Endorsement.
²⁶ HB 10-1168(10)(c).

Donning And Doffing – Are Police Officers Entitled To Be Paid For Getting Dressed?

This Legal Lines article was written by J. Andrew Nathan, Marni Nathan Kloster and Timothy Fiene of the law firm of Nathan, Bremer, Dumm & Myers, P.C. The firm is a member of CIRSA’s defense counsel panel and provides legal services to CIRSA and its members in a wide variety of claims. Mr. Nathan, Mrs. Nathan Kloster and Mr. Fiene welcome any questions regarding this article and will be happy to provide additional information upon request. They can be reached at 303.691.3737.

Donning and doffing of police uniforms and related compensation pursuant to the Fair Labor Standards Act¹ (“FLSA”) has long been an issue for police departments. This issue is important to CIRSA members because the consequences of an FLSA violation can be significant. As examples, willful violators can be criminally prosecuted and fined. Civilly, there can be substantial damages awarded to a plaintiff(s) for violations, including compensatory damages of any unpaid wages for the prior two years, or potentially three if there is a finding of willful violations, as well as an equal amount of liquidated damages. Further, a prevailing plaintiff can be awarded reasonable costs and attorney fees related to any litigation involving an FLSA claim.

This article summarizes several appellate decisions on FLSA issues pertaining to donning and doffing of uniforms and other gear by police officers, and provides some suggestions for dealing with this issue.

Bamonte v. City of Mesa

One of the leading decisions on donning and doffing is Bamonte v. City of Mesa², from the Ninth Circuit Court of Appeals. In that case, officers brought a claim under the FLSA, seeking compensation for time spent donning and doffing their uniforms and protective gear. The City did not have a specific written policy on compensation for such time, but officers had the option to change at the station or at home. The Court of Appeals upheld summary judgment on behalf of the City, noting that there was no rule or law which required the officers to change at work. Therefore, pursuant to the FLSA and the Portal to Portal Act,³ officers who choose to change at work did not need to be compensated. The Court stated that the most pertinent issue was not whether “the uniform itself or the gear itself is indispensable to the job-they most certainly are-but rather, the relevant inquiry is whether the nature of the work requires the donning process to be done on the employer’s premises.”⁴ It should be noted that the Court relied fairly heavily on a May, 2006 Department of Labor memorandum⁵ in reaching its conclusion.

Progeny of Bamonte

In Dager v. City of Phoenix,⁶ there was no requirement or rule that mandated changing at work and therefore summary judgment was upheld in favor of the City based exclusively upon Bamonte.⁷ While the City maintained lockers at the stations for patrol officers for storage of uniforms and equipment, it did not require that the officers change at the work site.

In another case from within the Ninth Circuit, Reed v. County of Orange,⁸relying on Bamonte, the District Court held that “donning and doffing of uniforms is simply not integral and indispensable to Plaintiffs performing their law enforcement deputies . . . Consequently, the County does not have to pay Plaintiffs for putting on and taking off their pants, shirts and boots.”

Musticchi v. City of Little Rock, Ark.⁹ is a decision from a District Court within the Eighth Circuit. In that case, the police department did not have a policy requiring donning and doffing at any particular location and in fact officers nearly universally did so at home. The District Court, indicating there was no on-point decision from the Eighth Circuit Court of Appeals, relied heavily on Bamonte when it granted summary judgment in favor of the City on the grounds that there was no rule or law requiring the officers to change at a specific location.

In Valladon v. City of Oakland,¹⁰ there was a class action by police officers under the FLSA. The Court happened to deny the City’s Motion for Summary Judgment because of a dispute over facts. The Court distinguished the case from the District Court decisions in Bamonte and Dager, as this decision came down before the Ninth Circuit’s ruling on Bamonte, and noted that there were sufficient facts to allow a jury to find a de facto policy of requiring officers to don and doff on the premises.

As for recent cases within the Tenth Circuit, the federal circuit which encompasses Colorado, this matter was recently analyzed by District Court Judge Matsch. In Rogers v. City and County of Denver,¹¹ Denver police officers sought compensation for a number of things, including donning and doffing. Denver did not have a policy which required officers to change at the station. In refusing to grant the Motion for Summary Judgment filed by the City, Judge Matsch determined that changing away from the station was not determinative. Judge Matsch went on to state that the police uniform was not “clothing” in an ordinary sense. Rather, he analogized it to a judicial robe. Judge Matsch also indicated that the fact that officers had not previously been compensated for donning and doffing was not evidence of a custom or practice of non-compensability.

Judge Matsch did not specifically address the Department of Labor’s May, 2006, memorandum which concluded that if employees had the option and the ability to change into their required gear at home, changing was not a principal activity, even if it took place at a plant. Rather, Judge Matsch only considered that memorandum on the issue of willfulness. Judge Matsch also did not cite to or reference Bamonte.

Some portions of the opinion indicate that Judge Matsch felt donning and doffing of a patrol officer’s uniform and equipment is compensable time under the FLSA, as an activity integral and indispensable to their police duties. In denying summary judgment for the City, Judge Matsch noted that there were genuine issues of material fact regarding the time and effort required to don and doff the DPD uniform and protective gear and that the City’s de minimis defense was a factual issue for trial.

Reconciling the Decisions

Given the disparity between Bamonte and Rogers, the case law on this issue is unfortunately less than clear. Because Rodgers is a decision from within the Tenth Circuit, it is relevant. However, because it is a District Court Decision, not a decision from the Tenth Circuit Court of Appeals, it is not dispositive on this issue, nor has it been officially published. Likewise, while Bamonte is a Court of Appeals decision and therefore persuasive authority, it is not from the Tenth Circuit, so it is not dispositive in Colorado.

That being said, given the number of decisions which have cited or relied on Bamonte, we are recommending that the standard set forth in Bamonte be followed. In doing so, we would suggest that departments who do not want to pay their police officers for donning and doffing their uniforms have language in a policy or manual which clearly confirms that officers are not required to put on and/or take off uniforms while at work, as well as other useful language.

Other Suggestions

If a department chooses to adopt policy language related to donning and doffing, it should make sure to do so in an appropriate location in its policies and procedures. It should also ensure that a doffing and donning policy does not conflict with any other policies and procedures currently in effect in the department or municipality-wide. The department should also confirm that the issue is not one governed by a collective bargaining agreement which would require additional action before implementation and take appropriate action with respect to adoption and notification of the language.

Conclusion

This area of the law is currently evolving. For this reason, it is important to continue to watch the case law, because a differing decision, such as one from the Tenth Circuit, could well change the current state of the law.

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¹29 U.S.C. § 201 et seq.
²Bamonte v. City of Mesa, 598 F.3d 1217 (9th Cir. 2010).
³Fair Labor Standards Act of 1938, 29 U.S.C. § 201 et seq.; Portal-to-Portal Act of 1947, 29 U.S.C. § 251 et. seq.
⁴Bamonte, 598 F.3d at 1228.
⁵Dep’t of Labor, Wage & Hour Adv. Mem. No. 2006-2 (May 31, 2006). Since the Bamonte decision, the U.S. Department of Labor has issued another memo. Dep’t of Labor Wage and Hour Div., Administrator’s Interpretation No. 2010-2, June 16, 2010. While interesting, the memo does not, in our opinion, conflict with the decision reached in Bamonte.
⁶Dager v. City of Phoenix, 380 Fed. Appx. 688 (9th Cir. 2010)(Table).
⁷It should be noted that Dager was a Ninth Circuit decision and therefore Bamonte was not only persuasive, but dispositive, which is not necessarily the situation in the Tenth Circuit.
⁸Reed v. County of Orange, 716 F. Supp. 2d 876 (C.D.Cal. 2010).
⁹Musticchi v. City of Little Rock, Ark., No. 4:08cv00419 SWW, 2010 WL 3327998 (E.D. Ark., Aug. 24, 2010).
¹⁰Valladon v. City of Oakland, No. C. 06-0478 SI, 2009 WL 3401263 (N.D. Cal., Oct. 20, 2009).
¹¹Rogers v. City and County of Denver, Civ. No. 07-cv-00541-RPM, 2010 WL 1904516 (D.Colo., May 11, 2010).