Question #5 Diversity/Communications

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Chapter 2: LEGAL RIGHTS AND RESPONSIBILITIES

(Laws Governing the Workplace)

Paradoxes about working for the public sector and legal rights

· How and when do we give up personal rights in public employment?

· Must balance three elements

· Employee rights

· Employer needs

· Policy dictates (governmental needs)

In this chapter on Legal Rights and Responsibilities, we are essentially covering laws governing the workplace, of course focusing on the public sector arena. The introduction points out the particularly important paradoxes of living in a democracy in which we value our personal rights, and yet we must yield up or narrow many of those rights in employment situations. This paradox is founded on the underlying principle that public law is trying to balance three elements: the needs of employers, the needs of employees, and the interests of government in pursuing public policy. The entire chapter looks at how these three elements—employees, employers, and policy dictates—are balanced in a wide variety of areas. On one hand, the balancing that is achieved is a magnificent monument to rationality at its best, because the legal system does an extraordinary job of ensuring fairness for employees, employers, and the implementation of policy. It also allows for varying the balance to suit different issues, to evolve over time, and to consider fact-specific situations. Yet on the other hand, public law can be frustrating too, because the balancing act does vary from area to area, does vary constantly over time, and predictability in fact-specific situations is sometimes in doubt until situations are legally challenged and litigated. Thus, public law can be very challenging and frustrating for public managers. As the book points out, managers must embrace the law to avoid the law. This chapter is the primary means that the MPA program uses to ensure that managers are both informed and relatively comfortable dealing with this challenging aspect of management.

Not all employment requirements stem directly from laws…

Many issues are not covered by laws, but rather by collective bargaining rules and agency guidelines which are nearly as firm

An interesting note is that much of what constrains employers is not in the law itself, but in civil service rules and tenure systems. Such rules are considered to be freely adopted by governments or individual agencies, and in most cases either have the weight of law, or at least a very strong legal weight in litigation and provide a weapon that can be used when individuals and unions seek protection of employee rights. Thus many of the generalizations in the chapter are based on common practices articulated in rules, rather than specific laws themselves. A prime example of this is in discipline, where civil service systems constrain agencies to act through specific procedures which must be followed scrupulously. Governments set up the legal framework, it is further articulated in collective bargaining rules where applicable, and this is articulated in detail in agency rules.

The foundations of employment law… Common law versus civil law systems

This section on the foundation of employment law provides some additional background on the legal system.

The distinction between common law and civil law systems which are the two dominant legal systems is provided. A common law system, of which the U.S. and UK are considered examples, assumes that laws are generic and principle-based, so that the facts of cases are primarily determined by the facts in judicial case law. As important cases are decided, they become precedents, and the body of precedents articulates the legislatively-enacted law. Civil law systems assume that laws will be as highly articulated as possible, and that administrative rule making is an extension of the legal process. France and Germany are famous civil law systems. Two observations apply. First, most experts agree that today most American law making has many comprehensive aspects—consider the many laws that run into hundreds of pages and are really very comprehensive, so our system is in fact a hybrid of common law and civil law systems. Yet we use and value the judicial precedential system to articulate borderline fact-specific cases. Second, legislatures often purposely structure some policy domains to be more based on common law principles than civil law system principles. Despite complaints from many about inviting litigation, such an approach does have a powerful logic. A prominent example is environmental legislation in which the Environmental Protection Agency has vast discretion to decide what is hazardous and at what levels, and all new decisions are invariably tested in court. This common law approach does provide both flexibility to change rules over time, and at the same time, an “open-air” process to ensure fairness.

State level structures

California and New Jersey

The federal system is replicated in most states. For example, in California there are 58 state-level trial courts, called Superior Courts to distinguish them from local government courts. In other words, there is a Superior Count in each county. There are six courts of appeals, and a state-level supreme court. In New Jersey, there is the same system, even though the names applied are slightly different. The inferior courts are the municipal courts, county courts are the primary trial courts, superior courts are the appeals-level courts and, again, there is a single state supreme court.

The foundations of employment law… Judicial structure.

At the federal level, there are 90 district trial courts plus territorial courts and a special tax court making a total of 94 federal district courts, and twelve circuit courts plus a federal circuit court that hears specialized governmental cases. Of course there is only one Supreme Court.

The foundations of employment law… Legal terms

The common-law is built on the doctrine of Stare Decisis ("stand by decided matters").

[Article 6] This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.

But…

[10th Amendment ] The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Let’s cover three terms before discussing specific human resource laws.

· Binding versus persuasive precedents

· Fact specific questions

· Federal preemption

Binding versus persuasive precedent. As stated before, precedents are important in common law systems because they act as relatively binding rules or quasi laws. That is, how will the facts be interpreted, first very broadly by law and then more narrowly by precedent. Not all precedents are equal. Of course all relevant supreme court decisions are absolutely binding. But supreme courts do not set all precedents because they have chosen not to rule in an area or the issue has simply failed to reach that level. Precedents that are set in one’s own district or appeals court area are binding; those that apply but are not in one’s own district or appeals court are merely persuasive. While courts generally honor persuasive decisions in principle, they frequently have slightly different facts and thus decisions often seem at odds, and in rare instances, comparable cases are decided in fundamentally different ways. When this happens, new cases are ripe for appeal to a higher court.

Fact-specific issues. When the law and precedent is settled, then it is a matter of facts. A fact-specific case may argue about whether certain facts are true and/or there are mitigating facts. Yet at the most basic level, not everything is settled by law and precedent, which is the reason for judges and juries. The introduction and use of some facts is often discretionary and based on reasonableness. This responsibility for providing guidelines about the use of facts is shared by agencies who articulate rules and working procedures to guide agency actions. As with persuasive precedents, courts tend to honor agencies’ decisions and try to give deference when agencies are clearly acting within their sphere and with competence. However, courts take their role of review seriously, especially when agencies may be perceived to be acting beyond their legal scope, violating their own rules, or simply being inconsistent in rule application regarding the allowability of facts.

Preemption. Preemption is when a higher level of government can abrogate the laws of another when there are contradictions or inconsistencies. The Supremacy Clause of the U.S. Constitution allows it in specific areas, and it reads: “This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.” In the federal case, preemption is relatively clear in the relatively narrow policy areas actually stipulated for the federal government—defense, monetary policy, bankruptcy, and foreign relations. However much current legislative activity is essentially leveraged from the commerce clause, which essentially has morphed into the right to pass common-good legislation. For example legislation on occupational safety, age discrimination, and disability are not directly based in the Constitution, as is civil rights legislation. Thus preemption becomes more contentious. The Supreme Court has generally allowed preemption in non-Constitutionally based areas, but only if the legislation unequivocally expresses its intent to do so. Not that state constitutions invariably have similar clauses preemption clauses with regard to local governments, and these clauses are usually stronger because state governments create local governments.

The employment relationship

· At-will employment

· Exceptions: civil rights, public employees as state actors, civil service systems

At-will employment is the predominant relationship in American businesses. In at-will situations, employers enjoy the unilateral right to terminate employees without cause. All organizations are constrained by civil rights legislation by setting aside classes of individuals who have special protection from at-will policies that would target them specifically because of race, ethnicity, gender, etc. Importantly, public agencies have two additional exceptions. The first exception is based on the fact that public employees are considered state actors, and therefore come under federal and state provisions, especially due process rules affecting not only discipline, but hiring, promotion and a host of other HR processes. Second, most federal, state and local governments have committed to wholesale civil service systems which are based on “with-cause” protocols for discipline, requiring demonstrated cause before taking action. Such systems are embedded in law. However, while these systems were nearly universal at all but the most executive ranks, there has been some retreat from this ubiquity as pointed out earlier in the cases of the states of Georgia and Arizona, some federal departments, and widespread extension of at-will policies for senior managers.

Balancing Employer, Employee, and Societal Interests…Procedural due process

Cleveland Board of Education v. Loudermill and informally called Loudermill hearings (and Loudermill letters)

[Message from supervisor to manager: We have warned Bill not to be late and to call in on a timely basis orally, in writing, and in a reprimand that he would be fired if it happened yet again. It has. Today Bill was absent and did not send me a message until well after he was due at work. As a school bus driver, this meant that children waited in freezing conditions for over an hour, putting them at danger for frostbite. As we discussed, I recommend that you immediately suspend him while you prepare the paperwork for termination. His conduct has been inexcusable and he was warned.]

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Next day after the employee returned to work and was immediately sent to the manager--

Manager to employee about to be fired: We warned you not to be late for work verbally several times. Then we put it in writing as a written reprimand, and then as a written warning that you would be terminated if you failed to show up on time and give timely notification if late. Because of your absence yesterday and late notification of this absence, school children waited in the subfreezing cold for over an hour while we could get a replacement. You are hereby put on administrative leave. Unless you have powerful and documented mitigating evidence, we will process your termination this week.

School bus driver (Bill): I am sorry that I did not call in yesterday but I was in a bad accident while coming to work. I was broadsided by another car and taken to the hospital in an ambulance because I suffered from a concussion, severe bruising, and whiplash. Although I did not have broken bones, the medics were not sure since my car was totaled. I called from the emergency room to notify my supervisor, but the call went to his messages and so I do not know when he picked up the message. I have the hospital intake forms and other information, as well. Although I did not feel well, I came to work today on time and ready to perform my duties.

Manager: Thank you for this information; I am sorry to hear of your accident and injuries. We will proceed with the administrative leave, without bias, for the rest of this week so that I can further investigate. This will also give you time to recover from the accident and settle your affairs from the accident. If the facts as you have presented them hold up, I assume we will neither terminate or reprimand you.

Procedural due process. Once it is established that public employees have Constitutional property rights, then the procedures to protect those rights become paramount. An important example is in firing. Can one fire someone first, and then justify it later, and if wrong, reinstate the person? This issue focuses on the use of pre and post determination hearings. A predetermination hearing puts a heavy weight on managers and the organization. However, the courts have clearly ruled that predetermination hearings or in some cases just timely notifications are necessary before terminating an employee as articulated in Cleveland Board of Education v. Loudermill and informally called Loudermill hearings. The Court reasoned that the stakes are too high for the employee and the difficulty of getting one’s job back is too tilted toward the employer. Note that Loudermill hearings are called Skelly hearings in California because that case preceded Loudermill. But what if the employee did something really egregious, and necessity demands immediate removal? That is when administrative leave is used to give time for the procedural requirements to catch up with business necessity. In practice, employers rarely alter their decisions at the predetermination hearing. Instead, they routinely use it to offer employees the option to resign and avoid being discharged. There is a vignette on this slide that you can read at your leisure to illustrate the process. The vignette provides an example of where the Loudermill hearing brought important facts to light; in the realistic scenario, Bill may not be an ideal employee but firing him for this instance at this time is almost certainly going to be overturned, and the school district is going to look heartless as well. Note that predetermination hearings are generally only required for dismissals under Constitutional law reasoning, but many jurisdictions extend the same procedure to other substantial adverse actions through statute or collective bargaining.

Those most senior in organizations may not enjoy for-cause protection and may be subject to immediate dismissal. However, they may enjoy the liberty right to a name-clearing hearing. Such hearings provide an opportunity to persons who feel that substantially stigmatizing facts were inappropriately used in their dismissal. A name-clearing allows their side to be heard publicly, even though they generally cannot overturn the at-will decision. This right is generally sufficient to curb city and county legislators from making poorly documented statements about the reasons for dismissal of city or county managers.

Balancing Employer, Employee, and Societal Interests… Adverse Action

Adverse action. Adverse action refers to suspensions, salary reductions, demotions, and terminations. Generally speaking, the following are not adverse actions unless so defined by collective bargaining agreements: reprimands, transfers, alteration of duties, changes in schedule, and denial of promotion. Probationary employees are essentially at-will employees, and enjoy very little due process protection. When adverse action is based on the poor performance of nonprobationary employees, they must be notified of deficiencies, provided an explanation, given remedial assistance, and allowed time to improve. Certainly this is time-consuming and often frustrating. Nonetheless, it can be done by documenting performance, consultation, and lack of progress. The primary problem is the lack of willingness of many managers to write up cases of mistakes, major errors, or sloppy work as the year progresses and to consistently give tough but honest annual evaluations. Adverse action for serious misconduct, such as inebriation on the job, is faster and generally requires the coordination with a senior manager and/or the personnel department, and in which a hearing is offered. Note that adverse actions other than termination frequently automatically go into effect and that the hearing is only triggered by an affirmative employee request.

Balancing Employer, Employee, and Societal Interests…Freedom of speech

Freedom of speech. Private sector employees give up most free speech rights when working for an organization, and while public employees certainly do not give up all free speech rights, there are significant restrictions. The general rule established in Pickering v. Board of Education is that public statements must be of general public interest, not managerial policy. Functionally, public employees can speak out on the policy issue of providing monies for their agencies all the time with only modest fear of recourse. However, employees need to be extremely cautious about criticizing management practices in the public domain, even when sloppy and expensive, as upheld in Connick v. Myers. Such speech is considered disruptive and subject to adverse action. Only when the practices are clearly illegal do they enjoy rights under Whistleblower statutes. However, whistleblower statutes are notoriously weak at protecting whistleblowers.

Balancing Employer, Employee, and Societal Interests…Political activity and affiliation

Boss Tweed used political standards for administrative hiring as a part of the infamous Tammany Hall.

Political activity and affiliation. Political activity was restricted for public employees in order to protect them from political intervention. Boss Tweed was famous for his numerous ways of manipulating public employees to work for his successful political machine. The Hatch Acts of 1939 and 1940 strictly controlled political activity and affiliation to keep employees from being manipulated or from employees using their positions inappropriately. It was loosened in the Federal Employees Political Activities Act of 1993. Even those in at-will appointments cannot be terminated or subject to other adverse action strictly for political affiliation, unless the position is clearly policy making or confidential. A well-known example of where this is that of U.S. attorneys and non-elected district attorneys who may not generally be fired for party affiliation outside the election cycle when wholesale reappointments are made.

Balancing Employer, Employee, and Societal Interests…Compensation

Compensation. Compensation is covered by the 1938 Fair Labor Standards Act (FLSA), and the 1963 Equal Pay Act. Public pensions are not protected by law, but there have not been conditions making this necessary until recently. As public budget deficits grow and structural deficits become more chronic, pension reform will become a greater issue and legislative activity may occur in this area at the federal and state levels.

Balancing Employer, Employee, and Societal Interests…Safety and health

Safety and health. The primary statute in this area is the 1970 Occupational Safety and Health Act which is administered by the Occupational Safety and Health Administration or OSHA. While protections are afforded, the Act does not provide the right to sue. Instead, remedies are afforded under worker’s compensation acts. All governments provide core workers with health insurance which they do by statute. However, parttime, temporary and even term employees may not be provided health coverage, and this may be a substantial number of employees in some agencies. The extent of the coverage has often been quite broad and superior to standard private sector programs. However, these benefits are also under increasing fire during the Great Recession and may be legislatively curtailed over time. The important Family and Medical Leave Act of 1993 and as amended, provides extensive coverage for unpaid leave for childbirth, adoption, or illness of a family member. A state-level version is the California Family Rights Act (CFRA). Examples of extensions of rights under CFRA include 4 months unpaid leave for pregnancy rather than 12 weeks, and the right to use unpaid leave for domestic partners. Other states have similar statutes, but often not as generous as California, such as the New York Family and Medical Leave Act.

Balancing Employer, Employee, and Societal Interests…Individual liability

Those commonly covered by absolute immunity:

Individual Liability. Select employees in policy making and judicial roles have absolute immunity in their job capacities so that they are not constrained or “chilled” in their duties. Such public sector workers include judges, prosecutors, political executives, and legislators. Of course illegal activities such as sexual harassment or bribery void absolute immunity, even for judges and legislators. Qualified immunity is available to almost all public workers in state and federal government, while performing their duties conscientiously; local government employees to not enjoy official immunity. However, in practical terms, almost all suits are routinely converted into suits against the agency for whom the public servant works. Some jurisdictions do not cover employees convicted of egregious behavior leading to criminal convictions.

Privacy Issues…Searches

Searches. Generally speaking, public employees only enjoy privacy at work in terms of what are reasonable expectations. Those expectations can be curbed substantially by prior notification that email and agency space is open to inspection. Searches of persons and private property such as purses and briefcases are normally strictly limited to well-established security issues.

Privacy Issues…

Private sector has more leeway…

It is more constrained in the public sector…

Testing for alcohol and drug use. The general rule is that alcohol and drug testing must be for cause. The likely causes are: reasonable suspicion, postaccident investigation, rehabilitation counseling, job screening, highly sensitive positions such as top security clearance holders, and safety-sensitive positions such as air traffic controllers, police, fire, bus drivers. While the standards are not uniform, broad testing for a drug-free environment is generally not allowed in the public sector as a Constitutional invasion of privacy.

Privacy Issues…

Grooming and dress codes. Rules limiting facial hair are often allowed in public safety, but care must be used to ensure that consistency is maintained. Dress codes are very difficult to enforce, and must be tied to reasonable standards and job relatedness.

Privacy Issues…

Preemployment investigations

Postemployment references.

Preemployment Investigations: All employment inquiries must be job related. For example, it is inappropriate to ask in an interview if someone has a spouse, child or car. One can ask if they will have any difficulties in relocating, meeting the hours for the job, or challenges in getting to the place of employment. For all intents-and purposes, polygraph tests are out. Most personality type tests need to be carefully and professionally vetted for job relatedness and validity but may be of use in some high-volume jobs, especially in public safety. Credit investigations may be requested, and an adverse action in hiring must result in a copy of the report going to the applicant. It is illegal to take action against an employee whose wages have been garnished. In most states, it is not legal to ask about arrests but it is legal to ask about convictions.صدر عليك حكم

Postemployment References. Note that slander is spoken defamation and libel is written defamation. Defamation cases against past employers is overblown as a concern as such cases are exceedingly rare. The big question prospective employers want to know is: would you rehire the applicant? Answering this question honestly is not defamatory. In any case, almost all agencies require the standard verification of facts: rank, time in employment and verification of salary range.

Discrimination

· Antidiscrimination laws

· Title VII of Civil Rights Act of 1964

· Age Discrimination in Employment Act (ADEA)

· American with Disabilities Act (ADA)

The three big antidiscrimination laws are Title VII of Civil Rights Act of 1964, Age Discrimination in Employment Act, and the Americans with Disabilities Act. In sum, governments may not discriminate against employees on the basis of race, color, national origin, religion, gender, age, and disability. Other federal and state laws expand these categories such as married status, political affiliation, military discharge status, and physical appearance. Overall government agencies do relatively well with minority representation, although Hispanic representation has failed to keep pace with the increasing percentage in the labor pool, and proportionate gender representation in high-level positions is still poor.

Discrimination…

· Intentional discrimination

· Retaliation

· Harassment

· Affirmative Action

· Unintentional discrimination

· Age

· Disability

· Religion

Intentional discrimination is also called disparate treatment. The use of direct evidence may include discriminatory comments, that are either written or spoken. Indirect evidence is when there are actions that indicate that bias is more likely than not. In hiring, when an applicant demonstrates s/he is qualified but not hired, the employer must show a legitimate business reason, to which the applicant must convince a hearing officer that the reason was a pretext. This is known as the McDonnel-Douglas burden shifting approach. To defend themselves in advance, most agencies require hiring officials to state authorized reasons as a part of the process, such as “insufficient credentials to interview” and “less experience than the selected candidate.” Intentional discrimination in hiring is rarely proven today.

Retaliation occurs when, after an accusation of discrimination by a current employee, the employer takes an adverse action. About 30% of all EEOC claims are retaliation, so it is an important category. Strategically, it is challenging to employers because an employee who is underperforming may allege discrimination before an adverse action occurs. When the adverse action occurs, the claim of retaliation replaces the claim of discrimination which may be easier to prove because of time proximity.

Harassment is being subjected to unwelcomed behavior of others, usually in reference to sexual comments or behaviors, but occasionally in reference to age, race, or disability. To prevail, a litigant has to prove that a pervasive environment existed, and that the agency failed to rectify the situation. A single comment, even a blatantly discriminatory comment, is rarely sufficient evidence of a hostile environment. However, the consequences are so severe for agencies and the occurrences are so frequent in relation to sexual harassment, that governmental agencies have generally been very proactive in conducting training and being far more proactive in intervention (called the Ellerth/Faragher affirmative defense). Quid pro quo sexual harassment cases are when an employee is threatened with loss of a promotion or their job, if they are unwilling to provide sexual favors.

Affirmative Action. Affirmative action programs seek to increase the representation of select groups. Most programs have been voluntary; in rare cases court-ordered, or involuntary, programs have been mandated because of severe and protracted underrepresentation. Today, many affirmative action programs been suspended. For example, a state ban on all forms of affirmative action was passed in California via Proposition 209 in 1996: "The state shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting." Claims about reverse discrimination have become more commonplace and have been given significant deference in the courts on the grounds that majorities should not be harmed in the pursuit of fixing past injustices to minorities. In the recent case before the Supreme Court, Ricci v. DeStefano, the plaintiffs prevailed in a reverse discrimination case in which the City of New Haven threw out a fire fighter test because of fear that they would be sued by black firefighters, none of whom passed the test. Essentially the high court held that the city should have had a better test in the first place, so it would not have to disqualify the results of those who did well and included an Hispanic firefighter.

Unintentional discrimination evidence usually relies on the 80% rule. If qualification rates of protected groups are less than 80% of the highest group, then the selection device is suspect. However, as just noted, New Haven used the 80% rule to throw out the results of the promotional test, only to fall prey to reverse discrimination. Thus agencies need to be very proactive in managing their applicant pools and in designing their promotional tests to ensure diversity before the tests are put in place. Methods such as scoring each group separately, called race norming, are illegal. One method that continues to pass muster is banding, in which the top candidates are all considered essentially equal and subjective assessments of organizational needs based on fit, representation, and other factors are determining. This “all-things-being-equal” approach, it should be pointed out, can be a method to increase diversity, but improperly used, can as easily aggravate poor representation too.

Age. The ADEA has successfully curbed blatant ageism in the public sector for the most part, although it is still a concern in layoffs when expensive older workers might be targeted, but this is certainly far less than in the private sector.

Disability. Key to the ADA is reasonable accommodation. In hiring, for example, the appropriate question is whether the applicant can perform the essential functions of the job with or without a reasonable accommodation. In other words, the applicant may be able to perform the job without recourse to an accommodation. Yet, should they be unable to do the job without an accommodation, can they do so with a reasonable accommodation? The operative word here is “reasonable,” as well as the phrase “essential elements.” Is an accommodation that costs $1000 reasonable; almost certainly it is. Is an accommodation that costs $100,000 for a special vehicle reasonable; probably not. If a disabled applicant can do all essential elements of the job but only 75% of the nonessential elements, it would probably be sufficient for a candidate when applying legal scrutiny. But a job candidate who could only perform 50% of the essential elements would likely make the applicant unacceptable to an agency and would likely be supported in litigation.

Religion. Title VII prohibits religious discrimination and requires employers to make reasonable accommodations. Again reasonable accommodation is fact-specific and must be determined on a case-by-case analysis. Organizations are not required to compensate workers for time off fulfilling religious duties, nor are they required to alter work schedules if doing so is highly burdensome.

Conclusion

So there you have a quick synopsis about the laws governing the human resource management process and workplace. We talked about the challenges of balancing the needs of employees, employers, and the public good. We reviewed our common law system and compared it to civil law systems. We briefly described the American judicial system at the national and state levels in which there are inferior courts, first level trial courts, appeals courts, and a supreme court. We looked at at-will and for-cause employment relationships, extremely important due process procedures, adverse action, freedom of speech, political activity by public workers, compensation legislation, safety and health issues, individual liability, privacy and searches, and investigations and references. With regard to discrimination, we looked at the overarching laws, intentional and unintentional discrimination, retaliation, harassment, affirmative action, age, disability, and religion. These issues are important for all managers to understand today. With this legal background in place, the next chapter can begin the discussion of specific human resource management processes starting off with recruitment.