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3/4/2016
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Overview of Public Employment Law
Clerks Certification InstituteMarch 4, 2016
Diane M. JuffrasSchool of Government
How Many of You . . .
1. 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?
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The Rule of Employment At Will
Cathy’s Internet Cafe
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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)
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Exceptions to Employment at Will
• Public Policy Exception
• Statutory Exceptions
• Public Sector Only Constitutional Exceptions
• 14th Amendment Property Right Exception
• 1st Amendment Free Speech Exception
• 4th 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.”
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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.”
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Pre‐Disciplinary Hearing with Right of Appeal
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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
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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.
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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.
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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
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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 attorneyClerkTax Collector
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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
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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
Hiring and Firing Authority for Counties
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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
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What Does the First Amendment
Right of Free Speech Mean?
Public employees may speak on
matters of public concern.
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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?
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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.”
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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.
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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
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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 537852 (11th Cir. 2010)
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The Fourth Amendment Exception to the Employment at Will Rule
Basic Rule:
Searches without consent
or a valid search warrant
are unreasonable.
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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
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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
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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
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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
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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
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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 4th Amendment.
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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 safety‐sensitive positions to undergo random drug testing.
Give Me an Example of Reasonable Suspicion
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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
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• 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
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RANDOM DRUG TESTING
Only safety-sensitive.
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• 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
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Are You Classified as NonExempt?
A. Yes
B. No
Who is an Exempt Employee?
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Salary Basis
Executive,
Administrative or
Professional
Duties Test
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Minimum Weekly Salary of $455 per Week
($23,660 per year)
Executive Exemption
1. Management as primary duty
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Executive Exemption
2. Supervises two or more employees
Executive Exemption
3. Hiring, firing or promotion
authority or influence
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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
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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
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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.
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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?
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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!
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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
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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
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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
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Hours Worked
Nonexempt Employee Comp Time
1 ½ hours paid time‐off for
every hour employee works over 40
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Prior notice needed
Limit: 240 hours
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May require employee to use comp time
before using other paid leave
Cash‐out at termination
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Have a well‐deserved and great weekend!
