Posting Physical Abilities Test Results To Shame Employees

Today’s burning question: Our firefighters have to take a physical ability test twice a year. The fire chief posts the results with names and times on bulletin boards in each fire station. He also sends out an email with the same information. We believe his intent is to sort of shame those who do not perform well. Is it legal for him to post the results from physical abilities tests in this fashion?

Answer: First, let me be clear that my answer will address the legality of such a policy, not the wisdom of it. Second, I invite the legal eagles out there – to join in this discussion and share your perspectives. I may be missing something – and its worth discussing so we get the right info out there. Third, to determine whether such a practice is legal or not, requires an analysis of federal, state and local law. That can only be done by local legal counsel given access to all the facts and the ability to research all of the issues.

Having given my caveat, lets get to the answer: I am not aware of any federal law that expressly prohibits the posting of information such as this. However, to the extent such a practice burdens a protected class (race, gender, disability, or age), I suppose an argument could be made that it may be discriminatory… might be a stretch… but the argument could be made…

As for state laws, some states have relatively strict laws regulating the release of personal information of public employees. As such, the practice of posting physical ability times and employee names would have to be evaluated by examining the state’s public employment laws.

As for local law, many jurisdictions have pretty strict personnel ordinances, regulations, and policies on the release of personal information about their employees. In addition, many personnel regulations, employee handbooks, and HR policies prohibit any conduct that may degrade or humiliate colleagues and subordinates. Arguably what the fire chief is doing by trying to shame employees, would violate such requirements.

My take is that the strongest legal argument against such a practice would come from local laws and policies. Most HR professionals I know would not be happy with the chief’s practice. At the end of the day – the analysis will have to look at the specifics of the workplace and the applicable federal, state and local laws that apply.

About Curt Varone

Curt Varone has over 40 years of fire service experience and 30 as a practicing attorney licensed in both Rhode Island and Maine. His background includes 29 years as a career firefighter in Providence (retiring as a Deputy Assistant Chief), as well as volunteer and paid on call experience. He is the author of two books: Legal Considerations for Fire and Emergency Services, (2006, 2nd ed. 2011, 3rd ed. 2014) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.
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