only use class materiel
Section Seven: Public Employment
Five Types of public employees:
Civil service: merit principle
Unionized: contract-based
Special employees: variable
Elected officials: constitutions and specific laws
Political Appointees: will of appointers, specific laws
Public Employment: First Amendment rights
Requirements of Political Affiliation are generally illegal except for higher policymaking appointees:
Rutan v. Illinois (1990): struck down system that froze all moves within Illinois employment system and where promotions and transfers were considered with political criteria
- Note Scalia dissent
Public Employment: First Amendment rights: SPEECH
Pickering v. Board of Education (1968)
- no damage to organization
- “public significance” of speech
Connick v. Meyers (1983) public significance of speech balanced with general preference of deference to managerial discretion
Garcetti v. Ceballos (2006): internal memos criticizing use of affidavit for search warrant led to retribution and transfer
Kennedy distinguished between speech that is “pursuant to their official duties” and that which contributes to “civic discourse”
First category not protected by First Amendment: memo
- Second category is: addressing public audience
Public Employment: Constitutional Issues
Right to not speak: 5th amendment
- but public officials are expected to cooperate in investigations or they can be fired
Public Employment: Constitutional Issues
Fourth Amendment: Search and Seizure
O’Connor v. Ortega (1987):office privacy case involving director in state psychiatric program at Napa State Hospital
- case by case analysis
- “reasonable expectation of privacy” in offices
- special nature of public employees makes “probable cause” standard impracticable: “reasonableness” can be standard
- thumb on side of employers in scale
National Treasury Employees Union v. Von Raab (1989): “special needs” may make probable cause impracticable
Public Employment
Due Process Concerns
Property interests:
- Hale v. Walsh (1987)
- Board of Regents v. Roth (1972)
Public Employment: Due Process
If property rights are established,
Employer must show firing:
- followed required procedures
- was not for exercise of rights
- same decision would have been made despite exercise of rights
- speech or association is not protected or of public importance
Public Employees: Due Process Concerns
Liberty interests:
Constitutional liberty interest can be created by linking firing to speech: Hale v Walsh (1987)
Liberty interest linked to reputation/good name:
Bishop v. Wood (1976): reasons not made public and did not affect liberty relating to reputation
Safest to not give reasons when firing those without property rights
Public Employment: Due Process
Dismissals allowed for almost any non-elected employee for:
cause: specific actions of malfeasance, nonfeasance. Violations of rules of employment – may require due process
- Financial exigency or programmatic change(subject to contractual review – but may not require hearing since not action against the person)
Unions and Public Employees
Collective Bargaining and Public Unions:
Janus v AFSCME (2018) challenged fair share dues. Union contracts cannot require “fair share” or other union dues for employment. Violates free speech clause.
- Assumed it will make a major impact on union membership over time – the effects have not been as dramatic and conservatives hoped – lower numbers, but more union activism
State law still determines major elements of collective bargaining, including right for public workers to strike.
7
Regulation of Public Sector Collective Bargaining in the States 5
CHART 1 Legality of Collective Bargaining for Select Public-Sector Workers
Firefighters
Police Teachers Illegal North Carolina
South Carolina Tennessee Virginia
Georgia North Carolina South Carolina Tennessee Virginia
Georgia North Carolina South Carolina Texas Virginia
Legal Alaska
Arizona Arkansas California Colorado Connecticut Delaware District of Columbia Florida Georgia Hawaii Idaho Illinois Indiana Iowa Kansas Kentucky Louisiana Maine Maryland Massachusetts Michigan Minnesota
Missouri Montana Nebraska Nevada New Hampshire New Jersey New Mexico New York North Dakota Ohio Oklahoma Oregon Pennsylvania Rhode Island South Dakota Texas Utah Vermont Washington West Virginia Wisconsin Wyoming
Alaska Arizona Arkansas California Connecticut Delaware District of Columbia Florida Hawaii Idaho Illinois Indiana Iowa Kansas Kentucky Louisiana Maine Maryland Massachusetts Michigan Minnesota Missouri
Montana Nebraska Nevada New Hampshire New Jersey New Mexico New York North Dakota Ohio Oklahoma Oregon Pennsylvania Rhode Island South Dakota Texas Utah Vermont Washington West Virginia Wisconsin
Alabama Alaska Arkansas California Colorado Connecticut Delaware District of Columbia Florida Hawaii Idaho Illinois Indiana Iowa Kansas Kentucky Louisiana Maine Maryland Massachusetts Michigan Minnesota Mississippi
Missouri Montana Nebraska Nevada New Hampshire New Jersey New Mexico New York North Dakota Ohio Oklahoma Oregon Pennsylvania Rhode Island South Dakota Tennessee Utah Vermont Washington West Virginia Wisconsin Wyoming
No Statute/ Case Law
Alabama Mississippi
Alabama Colorado Mississippi Wyoming
Arizona
Source: Authors’ analysis. See Appendix for details. Note: See text for discussion of Colorado, Idaho, Tennessee, and Wisconsin.
In almost all of the remaining states, firefighters, police, and teachers have the legal right (but not the requirement) to bargain collectively. Many states have legislation that covers all public employees in the state and establishes both the right to organize and to bargain collectively. In a small number of states, neither legal statutes nor case law clearly establish or prohibit collective bargaining (see the third row of the chart). Firefighters in Alabama and Mississippi, police in Alabama, Colorado, Mississippi, and Wyoming, and teachers in Arizona all find themselves in a legal environment where no set statutes or existing case law governs collective bargaining at the state level. As a result, collective bargaining is permissible at the state level, but the actual legality of collective bargaining depends on local laws.
Regulation of Public Sector Collective Bargaining in the States 5
CHART 1
Legality of Collective Bargaining for Select Public-Sector Workers
Firefighters
Police Teachers
Illegal North Carolina
South Carolina
Tennessee
Virginia
Georgia
North Carolina
South Carolina
Tennessee
Virginia
Georgia
North Carolina
South Carolina
Texas
Virginia
Legal Alaska
Arizona
Arkansas
California
Colorado
Connecticut
Delaware
District of
Columbia
Florida
Georgia
Hawaii
Idaho
Illinois
Indiana
Iowa
Kansas
Kentucky
Louisiana
Maine
Maryland
Massachusetts
Michigan
Minnesota
Missouri
Montana
Nebraska
Nevada
New Hampshire
New Jersey
New Mexico
New York
North Dakota
Ohio
Oklahoma
Oregon
Pennsylvania
Rhode Island
South Dakota
Texas
Utah
Vermont
Washington
West Virginia
Wisconsin
Wyoming
Alaska
Arizona
Arkansas
California
Connecticut
Delaware
District of
Columbia
Florida
Hawaii
Idaho
Illinois
Indiana
Iowa
Kansas
Kentucky
Louisiana
Maine
Maryland
Massachusetts
Michigan
Minnesota
Missouri
Montana
Nebraska
Nevada
New
Hampshire
New Jersey
New Mexico
New York
North Dakota
Ohio
Oklahoma
Oregon
Pennsylvania
Rhode Island
South Dakota
Texas
Utah
Vermont
Washington
West Virginia
Wisconsin
Alabama
Alaska
Arkansas
California
Colorado
Connecticut
Delaware
District of
Columbia
Florida
Hawaii
Idaho
Illinois
Indiana
Iowa
Kansas
Kentucky
Louisiana
Maine
Maryland
Massachusetts
Michigan
Minnesota
Mississippi
Missouri
Montana
Nebraska
Nevada
New Hampshire
New Jersey
New Mexico
New York
North Dakota
Ohio
Oklahoma
Oregon
Pennsylvania
Rhode Island
South Dakota
Tennessee
Utah
Vermont
Washington
West Virginia
Wisconsin
Wyoming
No Statute/
Case Law
Alabama
Mississippi
Alabama
Colorado
Mississippi
Wyoming
Arizona
Source: Authors’ analysis. See Appendix for details.
Note: See text for discussion of Colorado, Idaho, Tennessee, and Wisconsin.
In almost all of the remaining states, firefighters, police, and teachers have the legal right (but not
the requirement) to bargain collectively. Many states have legislation that covers all public employees
in the state and establishes both the right to organize and to bargain collectively.
In a small number of states, neither legal statutes nor case law clearly establish or prohibit collective
bargaining (see the third row of the chart). Firefighters in Alabama and Mississippi, police in
Alabama, Colorado, Mississippi, and Wyoming, and teachers in Arizona all find themselves in a legal
environment where no set statutes or existing case law governs collective bargaining at the state
level. As a result, collective bargaining is permissible at the state level, but the actual legality of
collective bargaining depends on local laws.
March 2014
* Milla Sanes is a Program Assistant at the Center for Economic and Policy Research, in Washington D.C. John Schmitt is a Senior Economist at CEPR.
Regulation of Public Sector Collective Bargaining in the States
By Milla Sanes and John Schmitt*
Center for Economic and Policy Research 1611 Connecticut Ave. NW Suite 400 Washington, DC 20009
tel: 202-293-5380 fax: 202-588-1356 www.cepr.net
Regulation of Public Sector Collective Bargaining in the States 8
A sizeable number of states have no state law or administrative code that addresses the issue of negotiations over wages and benefits. Where there is no regulation, the practice can be deemed “permissible,” determined on a more case-by-case basis, or regulated at local levels.
Right to Strike
CHART 3 Legality of Striking for Select Public-Sector Workers
Firefighters Police Teachers Illegal Alabama
Alaska Arizona Arkansas California Colorado Connecticut Delaware District of Columbia Florida Georgia Idaho Illinois Indiana Iowa Kansas Kentucky Louisiana Maine Maryland Massachusetts Michigan Minnesota Mississippi
Missouri Montana Nebraska Nevada New Hampshire New Jersey New Mexico New York North Carolina North Dakota Oklahoma Oregon Pennsylvania Rhode Island South Dakota Tennessee Texas Utah Vermont Virginia Washington Wisconsin
Alabama Alaska Arizona Vermont Arkansas California Connecticut Delaware District of Columbia Florida Georgia Illinois Indiana Iowa Kansas Kentucky Louisiana Maine Maryland Massachusetts Michigan Minnesota
Mississippi Missouri Montana Nebraska Nevada New Hampshire New Jersey New Mexico New York North Carolina North Dakota Oklahoma Oregon Pennsylvania Rhode Island South Dakota Tennessee Texas Virginia Washington Wisconsin
Alabama Arizona Arkansas Connecticut Delaware District of Columbia Florida Georgia Idaho Indiana Iowa Kansas Kentucky Maine Maryland Massachusetts Michigan Mississippi Missouri
Nebraska Nevada New Hampshire New Jersey New Mexico New York North Carolina North Dakota Oklahoma Rhode Island South Dakota Tennessee Texas Virginia Washington West Virginia Wisconsin
Legal Hawaii
Ohio Hawaii
Ohio Alaska
California Colorado Hawaii Illinois Louisiana
Minnesota Montana Ohio Oregon Pennsylvania Vermont
No Statute/ Case Law
South Carolina West Virginia Wyoming
Colorado Idaho South Carolina Utah West Virginia Wyoming
South Carolina Utah Wyoming
Source: Authors’ analysis. See Appendix for details.