CJ Administration

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Justice Administration Police, Courts, and Corrections Management

Ninth Edition

Chapter 3

Rights of Criminal Justice Employees

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Overview (1 of 4)

Law and litigation can arise out of federal and state constitutions, statutes, administrative regulations, and judicial interpretations and rulings.

Overview (2 of 4)

Fair Labor Standards Act: Provides minimum salary and overtime provisions for both public and private sector employees.

Title VII of the Civil Rights Act of 1964: Prohibits discrimination in the hiring process, working conditions and the unlawful provision of benefits based on race, color, religion, sex, and national origin.

Also extends to “hostile work environment.

Equal Pay Act: Prevents sex-based discrimination in wages and benefits when men and women do similar work

The Pregnancy Discrimination Act of 1978: Prohibits unequal treatment of women because of pregnancy or related medical conditions (e.g., nausea).

Overview (3 of 4)

Age Discrimination in Employment Act: Generally prohibits the unequal treatment of applicants or employees based on their age, if they are age 40 years or older, in regard to hiring, firing, receiving benefits, and other conditions of employment.

Americans with Disabilities Act of 1990: The goal of this legislation is to remove barriers that might prevent otherwise qualified individuals with disabilities from enjoying the same employment opportunities as persons without disabilities.

Overview (4 of 4)

Section 1983: This major piece of legislation is the instrument by which an employee may sue an employer for civil rights violations based on the deprivation of constitutional rights.

Remedies:

Tort actions

Contractual claims

Recruitment and Hiring

Tests are commonly used to determine intelligence, emotional suitability and stability, physical agility, and character.

Drug tests are frequently used as well.

The critical question for these tests is whether they validly test the types of skills needed for the job.

A companion concern is whether the tests are used for discriminatory purposes or have an unequal impact on protected groups.

A number of private companies provide valid, reliable examinations for use by the public sector.

Disparate Treatment

Treating people differently because of their age, gender, sex, or other protected status is illegal.

Federal equal opportunity law prohibits the use of selection procedures for hiring or promotion that have a discriminatory impact on the employment opportunities of women, Hispanics, blacks, or other protected classes.

Bona fide occupational qualifier:

In certain situations, a rationale for discriminating on the basis of a business necessity; there may be a "business justification" for hiring policies even though they have a disparate impact.

How Old is “Too Old” in Criminal Justice?

ADEA held that age should not be a BFOQ because youthfulness is not a guarantee of public safety.

A physical fitness standard would better serve the purpose of ensuring the ability to perform the tasks of the position.

Congress exempted federal employees from application of the ADEA.

Criminal Justice and Affirmative Action

Affirmative action:

Actions or policies that favor persons or groups who have suffered from discrimination, particularly in employment or education

Quotas have been at the center of legal, social, scientific, and political controversy for more than four decades.

However, the reality of affirmative action is substantially different.

Affirmative action plans give preferred treatment only to affected groups when all other criteria are equal.

The legal question that arises from affirmative action is: When does preferential hiring become reverse discrimination?

Property Rights in Employment

The Fourteenth Amendment provides in part:

“…nor shall any State deprive any person of life, liberty, or property without due process of law.”

Courts have established the legal view that public employees have a property interest in their employment. (as opposed to the old view that employees served "at will“).

Employees are entitled to both a pre-termination hearing and a post-termination notice, as well as an opportunity to respond.

However, a probationary employee has little or no property interest in employment.

Policymaking employees are generally exempted from such protections.

Pay and Benefits

Fair Labor Standards Act (“the administrator’s worst nightmare”):

Establishes minimum wages and requiring overtime compensation in the private sector as well as state and local governmental employees.

Has had a major impact on criminal justice agencies.

Amendments added in 1974 extended its coverage to state and local governmental employees.

The FLSA comes into play when overtime salaries must be paid.

Criminal Justice and a Safe Workplace

Federal, state, and local governments are exempted from the coverage of the Occupational Safety and Health Act (OSHA), in 29 U.S.C. 652.

Nonetheless, criminal justice work is often dangerous, involving the use of force and often occurring in locations outside governmental control.

In one case, the Court specifically stated that an employee could not bring a Section 1983 civil rights action alleging a workplace so unsafe that it violated the Fourteenth Amendment's due process clause.

But what if a police department, with knowledge that its new police vehicles have defective brakes, fails to take immediate action for fear that its officers will refuse to drive the vehicles?

Constitutional Rights of Criminal Justice Employees (1 of 3)

Freedom of Speech and Association:

Many criminal justice executives have attempted to regulate what their employees say to the public.

Executives develop and rely on policies and procedures designed to govern employee speech.

The SCOTUS held that: "the State has interests as an employer in regulating the speech of its employees that differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general."

Constitutional Rights of Criminal Justice Employees (2 of 3)

There are two basic situations in which a police regulation may be found to be an unreasonable infringement on the free speech interests of officers:

When the action is overly broad.

When free speech limitations may be found to be unreasonable in the way in which the governmental action is applied.

The most protected type of speech is political speech.

However, governmental agencies may restrict the political behavior of their employees—and the U.S. Supreme Court has upheld the constitutionality of laws that do so.

Constitutional Rights of Criminal Justice Employees (3 of 3)

Hatch Act:

Limits partisan political activities of governmental employees.

It is a violation of the employees' First Amendment rights to discharge them from non-policymaking positions solely on the basis of their political party affiliation.

Nonpolitical associations are also protected by the First Amendment.

Searches and Seizures

The Fourth Amendment to the U.S. Constitution protects "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures."

The Fourth Amendment usually applies to police officers when they are at home or off duty in the same manner as it applies to all citizens.

Police officers can be compelled to cooperate with investigations of their behavior.

Examples include: appearing in a lineup, searches of department equipment and lockers.

Self-Incrimination

In Garrity v. New Jersey, the Court held that the information coerced from an officer could not be used against him at his criminal trial because the Fifth Amendment forbids the use of coerced confessions.

It is proper to fire a police officer who refuses to answer questions if he has been informed that any answers may not be used later in a criminal proceeding.

Religious Practices

It is generally assumed that one who takes a criminal justice position agrees to work odd shifts and to abide by other various unpleasant conditions.

Generally, personnel with the least seniority on the job must work the most undesirable shifts.

Occasionally one's religious beliefs are in direct conflict.

Employees may be forced to choose between their job and religion.

A number of people have chosen to litigate the work–religion conflict rather than accept agency demands.

Title VII of the Civil Rights Act of 1964 prohibits religious discrimination in employment.

Sexual Misconduct

Instances of sexual impropriety in criminal justice work can range from casual flirting while on the job to becoming romantically involved with a foreign agent whose principal aim is to learn delicate matters of national security.

There have been all manner of incidents between those extremes, including the discipline of female police officers who posed nude in magazines.

Some major police departments have even been compelled by their mayors to recruit officers for their sexual preference (i.e., homosexuality).

Residency Requirements

Many governmental agencies now specify that all or certain members in their employ must live within the geographical limits of their employing jurisdiction.

Such residency requirements have often been justified by employing agencies, particularly in criminal justice.

Perhaps the strongest rationale given by employing agencies is that criminal justice employees must live within a certain proximity of their work in order to respond quickly in the event of an emergency.

Moonlighting

The courts have traditionally supported criminal justice agencies placing limitations on the amount and kind of outside work their employees can perform.

The rationale for agency limitations is that "outside employment seriously interferes with keeping the [police and fire] departments fit and ready for action at all times.

Misuse of Firearms

Police agencies generally have policies regulating the use of handguns and other firearms by their officers, both on and off duty.

The courts have held that such regulations need only be reasonable.

Burden rests with the disciplined police officer to show that a regulation is unreasonable.

Police firearms regulations tend to address three basic issues:

Requirements for the safeguarding of the weapon.

Guidelines for carrying the weapon while off duty.

Limitations on when the weapon may be fired.

Alcohol and Drugs in the Workplace

Criminal justice employees must be able to perform their work with a clear head, unaffected by alcohol or drugs.

Therefore, police departments and prisons will often specify in their manual of policy and procedures that no alcoholic beverages be consumed within a specified period prior to reporting for duty.

Regarding drug testing, three of the most controversial drug-testing issues have been:

Whether testing should be permitted when there is no indication of a drug problem in the workplace

Whether the testing methods are reliable

Whether a positive test proves on-the-job impairment

Rights of Police Officers (1 of 3)

In the last decade, police officers have insisted on greater procedural safeguards to protect themselves against what they perceive as arbitrary infringement on their rights.

Peace Officers Bill of Rights (POBR):

Legislation mandating due process rights for peace officers who are the subject of internal investigations that could lead to disciplinary action

Rights of Police Officers (2 of 3)

Some common provisions of state POBR legislation include:

Written notice: the officer must be given written notice of the nature of the investigation, summary of alleged misconduct, and name of the investigating officer.

Right to representation: the officer may have an attorney or a representative of his or her choosing present during any phase of questioning/hearing.

Polygraph examination: the officer may refuse to take a polygraph examination unless the complainant submits to an examination and is found to be telling the truth.

Rights of Police Officers (3 of 3)

Police officers today are also more likely to file a grievance when they believe their rights have been violated.

Grievances may cover a broad range of issues, including:

salaries, overtime, leave, hours of work, allowances, retirement, opportunity for advancement, performance evaluations, workplace conditions, tenure, disciplinary actions, supervisory methods, and administrative practices.

Workplace Harassment

Defined as “Unwelcome verbal or physical conduct (whether or not of a sexual nature) that creates a hostile work environment, or a change in an employment status or benefits.”

Harassment is a form of discrimination violating the Civil Rights Act of 1964 and other federal laws.

Examples of harassment:

Leering in a sexually suggestive manner.

Making offensive remarks about looks, clothing, body parts.

Touching in a way that makes an employee uncomfortable, such as patting, pinching, brushing against another's body.

Family and Medical Leave Act

Legislation that entitles eligible employees to take unpaid, job-protected leave for specified family and medical reasons

Entitles eligible employees to take up to 12 weeks of unpaid, job-protected leave in a 12-month period for specified family and medical reasons

To be eligible for FMLA benefits, an employee must:

work for a covered employer

have worked for a covered employer for at least 12 months, for at least 1,250 hours

A covered employer must grant an eligible employee unpaid leave for the birth and care of a newborn child of the employee, or for placement with the employee of a child for adoption or child care.

Recent Amendments

2013 U.S. v. Windsor: Ensures that the FMLA affords spouses in same-sex marriages the same ability as all spouses to fully exercise their FMLA rights.

The 2009 and 2010 amendments to the FMLA addressed hardships being placed on military families.

Two new categories of leave were created in the amendments—which are designed to ease the strains.

Qualifying exigency leave

Military caregiver leave

The Americans with Disabilities Act

Criminal justice agencies may not discriminate against qualified individuals with disabilities.

A person has a disability if he or she has a mental or physical impairment that substantially limits a major life activity, such as walking, talking, breathing, sitting, standing, or learning.

This mandate applies to the agency's recruitment, hiring, and promotion practices.

Employers must provide reasonable accommodation to disabled persons, which can include modifying existing facilities to make them accessible, job restructuring, part-time or modified work schedules, acquiring or modifying equipment, and changing policies.

Grooming and Appearance: Employers’ Rights

Dress codes and appearances:

Grooming and tattoos with Millennials is posing challenges to CJ administrators.

Kelley v. Johnson still remains intact and administrators are free to determine that body modifications create an unprofessional appearance.