LA Court Rules Firefighters Cannot be Ordered to Work in Higher Rank

Louisiana’s Fifth Circuit Court of Appeal has upheld a trial court ruling that firefighters in Kenner cannot be ordered to work “out of class”. The case was brought in 2019 by Firefighter Brian Drumm, an apparatus operator, on behalf of all firefighters similarly situated. Kenner Fire Fighters Association, IAFF Local 1427 was also a plaintiff.

The suit sought injunctive relief to stop the city’s practice of ordering firefighters to “temporarily work ‘out of class’ against their wills and under threat of disciplinary action instead of calling available employees who hold the higher positions on an overtime basis, or creating new permanent higher ranking positions, in an effort to reduce payroll costs to Kenner.”

Jefferson Parish District Court granted Drumm a preliminary injunction against the city “from forcing Petitioners to accept temporary or substitute appointments ‘out of class’ under threat of discipline or other employment action.” The city appealed the ruling.

The city claimed that state law, specifically La. R.S. 33:2496, authorized the making of temporary appointments, which in turn gives the fire chief the authority to make mandatory temporary appointments. The Court of Appeals found the statutory language to be ambiguous.

  • Under Kenner’s broad interpretation of this statute, the appointing authority has the right to force any employees to work out of class, even those who may be unqualified by other standards set forth in the statute for the classification of firefighters.
  • A newly-hired, untrained firefighter may be forced to work as an operator or captain against his will.
  • At the extreme, the appointing authority could hypothetically appoint “any one,” even a nonemployee, to temporarily fill a vacant position.
  • This is a potentially absurd and dangerous consequence of Kenner’s interpretation.
  • Kenner’s position, that the Fire Chief may force persons to work jobs outside their class against their will under threat of disciplinary action denies the existence of a voluntary, contractual agreement of employment in which both parties may freely negotiate their duties and responsibilities.
  • Recognizing that plaintiffs’ employment with Kenner is a voluntary, contractual agreement, we conclude that the “appointment” referenced in La. R.S. 33:2496 is in the nature of an offer and acceptance of employment.
  • Forcing an employee to work out of class against his will under threat of discipline or other employment action is an unlawful act, and therefore plaintiffs were not required to show irreparable harm.
  • Accordingly, we find Kenner’s argument that the district court legally erred in granting the preliminary injunction is without merit.

Here is a copy of the decision:

About Curt Varone

Curt Varone has over 45 years of fire service experience and 35 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, 4th ed. 2022) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.

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