Overview of Public Employment Law

Transcription

1 Overview of Public Employment Law Clerks Certification Institute March 4, 2016 Diane M. Juffras School of Government How Many of You Have no HR responsibilities? 2. Have an HR director or HR dep t? 3. Do all of the HR work? 4. Have some HR responsibilities? 1

2 The Rule of Employment At Will Cathy s Internet Cafe 2

3 Exceptions to Employment at Will Public Policy Exception Statutory Exceptions Title VII: Gender, race, color, religion, n.o. Age Discrimination in Employment Act Americans with Disabilities Act Uniformed Services Employment and Reemployment Rights Act (USERRA) 3

4 Exceptions to Employment at Will Public Policy Exception Statutory Exceptions Public Sector Only Constitutional Exceptions 14 th Amendment Property Right Exception 1 st Amendment Free Speech Exception 4 th Amendment Search & Drug Test Exception A Property Right in Employment An employee has a legitimate claim to continuing employment, when a state statute (State Human Resources Act) or local ordinance says that the employee can only be fired for good cause. 4

5 If a property right exists, so what? The Fourteenth Amendment guarantees that no state shall deprive any person of life, liberty, or property, without due process of law. 5

6 Pre Disciplinary Hearing with Right of Appeal 6

7 Employment at Will Employment is may be terminated at the will or pleasure of either party: o for any reason o for no reason o for a good reason o for a bad reason o for a morally shocking reason o just not for an unlawful reason And if you are a government employer, not for an unconstitutional reason 7

8 How Many of You Come from a Jurisdiction Where Employees A. Are at will employees? B. Have property rights? C.... I don t have a clue. G.S. 160A 171: There shall be a city clerk who shall give notice of meetings of the council, keep a journal of the proceedings of the council, be the custodian of all city records, and shall perform any other duties that may be required by law or the council. G.S. 153A 111: The board of commissioners shall appoint or designate a clerk to the board. The board may designate the register of deeds or any other county officer or employee as clerk. The clerk shall perform any duties that may be required by law or the board of commissioners. The clerk shall serve as such at the pleasure of the board. 8

9 What is the status of city and county clerks in jurisdictions that have adopted just cause protection by ordinance? A. City clerks have a property right unless the charter says otherwise and county clerks are at will. B. Both city and county clerks are at will. C. Both city and county clerks have property rights. D. City clerks are at will and county clerks have a property right. What is the status of city and county clerks in jurisdictions that have adopted just cause protection by resolution? A. City clerks have a property right unless the charter says otherwise and county clerks are at will. B. Both city and county clerks are at will. C. Both city and county clerks have property rights. D. City clerks are at will and county clerks have a property right. 9

10 What is the status of city and county clerks in jurisdictions that have not adopted just cause protection? A. City clerks have a property right unless the charter says otherwise and county clerks are at will. B. Both city and county clerks are at will. C. Both city and county clerks have property rights. D. City clerks are at will and county clerks have a property right. List all of the positions with hiring and firing authority in a NC city or List all six positions with hiring and firing authority in a NC county 10

11 Hiring and Firing Authority for Cities Mayor Council: Council appoints and removes all ees Council may delegate to dept. heads Hiring and Firing Authority for Cities Council Manager: Council appoints Manager Manager appoints and removes employees Exceptions: City attorney Clerk Tax Collector 11

12 Hiring and Firing Authority for Counties 1. Commissioners 2. County Manager 3. Sheriff 4. Register of Deeds 5. Health Director 6. Social Services Director Hiring and Firing Authority for Counties Commissioners appoint: Manager Clerk County Attorney Tax Collector Deputy Tax Collector County Assessor 12

13 Hiring and Firing Authority for Counties Sheriff and the Register of Deeds have the exclusive right to hire, discharge and supervise employees in their offices. Hiring and Firing Authority for Counties County SHRA Employees Health Dept. Dept. of Social Services All hired/fired by directors 13

14 Personnel Policies County Board of Commissioners has ultimate personnel policy authority Create & abolish offices, positions, depts. Determine pay schedules, benefits Adopt personnel policies re: leave, holidays, drug testing Managers and independent department head are responsible for administration of compensation programs and personnel rules. Public Employee Freedom of Speech 14

15 What Does the First Amendment Right of Free Speech Mean? Public employees may speak on matters of public concern. 15

16 The First Amendment Exception to EAW: Freedom of Speech 1. Was the speech made in the course of regular duties? 2. If not part of regular job duties, was the speech on a matters of public concern? 16

17 3. Whose interests are greater: Employee s or Employer s? Protected Speech of Not? An engineer employed by County A spoke out at a County B public hearing against a proposal to erect a power line in County B (where the engineer lives). Only when directly asked by a member of the board of county commissioners did he identify himself as an employee of the County A engineering department. He does not say that he represents County A at the hearing. When the manager of County A read a newspaper report that included the comments of the engineer (identified by name and occupation, but not by employer) in opposition to the power line proposal, he fired the engineer for involving County A in a County B matter. 17

18 A data entry clerk in the sheriff s department and a co worker had been involved in a long standing debate over the President Reagan s social policies. The data entry clerk vehemently objected to the Administration s cuts in social spending and accused the President of trying to balance the budget on the backs of the poor. The co worker was sympathetic to the Administration s policies. After the assassination attempt on President Reagan, the data entry clerk said to her co worker, I hope we are rid of President Reagan. The co worker immediately reported her comment to the sheriff, who immediately terminated her employment. Vicky Meyers is a Child Protective Services social worker with the Paradise County Department of Social Services. She serves as part of the treatment team that made child placement and treatment recommendations to the courts. At a court hearing to determine placement for a child, Meyers testified to the opinion of the treatment team, but when pressed by the judge, she confessed that she had been pressured to change her personal opinion to conform with that of the other team members. One month later, Meyers was transferred from Ongoing Services to Intake Services, a demotion. 18

19 Jack Lindsey had served as public works director for the City of Paradise for four years. After attending a session on open meetings at the School of Government, Lindsey began to complain at city council meetings (which he was required to attend to report public works issues) about the violations of open meetings laws by the city council. Eventually, he identified fifteen instances of what he believed to be open meetings violations by the city council and reported them to the manager. He also met privately with the mayor to discuss his concerns. The council did not change his procedures and the manager ultimately fired Lindsey. The Problem of Social Media 19

20 Laura Miller is an EMT with Paradise County EMS. She posts actively on her Facebook page, mostly about friends and activities outside of work, but occasionally posts humorous stories involving co workers. One day, she posts the following comment, What a day! Had to assist and move an obese, menopausal looney tunes! Literally a 234, as it turns out. In a fit of paranoid delusion, the b tried to strike her husband with a fireplace poker, but slipped and broke her hip instead. I thought she was going to attack the ER receiving team and then, when the ER receiving team got a look at her, I thought they were going to kill us! The post came to the attention (lawfully) of the EMS director. Paradise County was small and it was pretty clear who the patient in question was. The EMS director fired Miller, citing the unprofessional nature of her Facebook post. Hi, I m Tiffany and I m a firefighter with Savannah Fire and Rescue. Marshall v. Mayor and Alderman of the City of Savannah, Georgia, 2010 WL (11 th Cir. 2010) 20

21 The Fourth Amendment Exception to the Employment at Will Rule Basic Rule: Searches without consent or a valid search warrant are unreasonable. 21

22 Exception: Where government s special needs, beyond normal law enforcement, make the warrant requirement impractical. The Reasonableness of a Warrantless Search Nature and quality of intrusion on an individual s 4th Amendment privacy interests v. Importance of government s interest 22

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26 A public employee has a reasonable expectation of privacy in her office desk when it is in a locked office. A. True B. False A public employee has a reasonable expectation of privacy in her office desk when it is in a cubicle. A. True B. False 26

27 A public employee has a reasonable expectation of privacy in her office desk when it is in a cubicle. A. True B. False A public employee has a reasonable expectation of privacy in her office desk when the drawers lock. A. True B. False 27

28 A public employee has a reasonable expectation of privacy in her handbag even at work. A. True B. False A public employee has a reasonable expectation of privacy in her vehicle when locked even when in the employer parking lot. A. True B. False 28

29 A public employee has a reasonable expectation of privacy in her vehicle when unlocked and in the employer parking lot. A. True B. False Nature and quality of intrusion on an individual s 4th Amendment privacy interests v. Importance of government s interest 29

30 Reasonable, individualized suspicion of illegal behavior or workplace misconduct is always a compelling government interest. Drug testing is a search within the meaning of the 4 th Amendment. 30

31 Two Basic Rules 1. A government employer may only require a drug test if it has reasonable, individualized suspicion that an employee is using or under the influence of drugs on the job. 2. One exception: A government employer may require employees holding safetysensitive positions to undergo random drug testing. Give Me an Example of Reasonable Suspicion 31

32 Reasonable suspicion Must Be Based on Specific Objective Facts Direct observations of drug use or possession; Report of observed drug use by reliable and credible source; Direct observation of the physical symptoms of being under the influence of a drug, such as impairment of motor functions or speech; A pattern of abnormal conduct or erratic behavior 32

33 Arrest or conviction for a drug related offense, or the identification of employee as the focus of a criminal investigation into illegal drug possession, use or distribution; On the job accident where evidence indicates drug use played a role; Newly discovered evidence that employee tampered with a previous drug test 33

34 RANDOM DRUG TESTING Only safety-sensitive. 34

35 Law enforcement employee? Dept. receptionist Desk sergeant Parks & Rec Employee EMT Health Dept. Nurse Manager Clerk Bus Driver Zoning Enforcement Officer Firefighter HR Director Dispatcher Transit 911 Wastewater treatment plant employees Use of hazardous chemicals Heavy equipment operators Emergency response req d Finance Director Sanitation Worker Driver or not Vehicle Maintenance IT Director The Fair Labor Standards Act and the Overtime Rule 35

36 A. Yes B. No Are You Classified as NonExempt? Who is an Exempt Employee? 36

37 Salary Basis Executive, Administrative or Professional Duties Test 37

38 Minimum Weekly Salary of $455 per Week ($23,660 per year) Executive Exemption 1. Management as primary duty 38

39 Executive Exemption 2. Supervises two or more employees Executive Exemption 3. Hiring, firing or promotion authority or influence 39

40 Administrative Exemption 1. Primary duty is performance of office or non manual work directly related to management or general business operations of the employer Administrative Exemption 2. Performance of such work includes the exercise of discretion and independent judgment on matters of significance 40

41 What Is Work Directly Related to Management or General Business Operations? Finance, accounting, auditing Purchasing & procurement Safety and health Public relations, advertising, marketing Computer network, database and internet administration Tax HR management and employee benefits Insurance and quality control Legal and regulatory compliance 41

42 Compare administrative duties with duties that carry out the mission of the agency Making an organization able to carry out its basic tasks as opposed to carrying out the basic tasks themselves. 42

43 Some Government Positions Likely to Satisfy the Administrative Duties Test Ass t Manager, Town Administrator, Dep t or Division Heads Admin. Asst to Manager, Director HR Manager Purchasing Agent Is the Clerk an Exempt or a Nonexempt Position? 43

44 How many of you think your city or county misclassified you as exempt when you should be nonexempt? A. I do B. Amazingly, my employer is correct! How many of you think your city or county misclassified you as nonexempt when you should be exempt? A. I do B. Amazingly, my employer is correct! 44

45 How many of you think your city or county misclassified you as nonexempt when you should be exempt? A. I do B. Amazingly, my employer is correct! How many of you earn $970 per week ($50,440 per year)? A. I do B. I do not 45

46 How Many of You... Earn $970 per week ($50,440 per year)? Overtime Non exempt employees 1 and 1/2 times the regular rate of pay for every hour over 40 the employee physically works in a given work week 46

47 Employee s usual schedule is Mon. Fri. 8:30 5 with a ½ hour unpaid lunch Takes 8 hours paid leave on Mon. Works usual schedule Tues. Fri. Called in to work 8 hours on Sat. Employee s usual schedule is Mon. Fri. 8:30 5 with a ½ hour unpaid lunch. Employer rule: No O/T w/o prior authorization Employee comes in ½ hr. early each day that week Employee leaves at scheduled time 47

48 Hours Worked Nonexempt Employee Comp Time 1 ½ hours paid time off for every hour employee works over 40 48

49 Prior notice needed Limit: 240 hours 49

50 May require employee to use comp time before using other paid leave Cash out at termination 50

51 Have a well deserved and great weekend! 51