Introduction: Governments find themselves in personnel litigation more often than private sector employers. One reason for this is that public employees have more rights than do their private sector counterparts. This litigation comes in the form of civil service hearings, contract and grievance arbitration, proceedings before governmental agencies such as the Pennsylvania Labor Relations Board, the PA Human Relations Commission, and the U.S. Equal Employment Opportunity Commission and before state and federal courts. Most of the federal litigation is based on constitutional theories under which local elected officials can sometimes incur personal liability, and through which employees (and candidates for employment) who successfully litigate can receive shockingly high verdicts.
Purpose: This article is not a treatise on personnel law applicable to local government. It is a summary of the aspects of public sector personnel management which, in our experience, have shown the greatest potential to "cause trouble". It has particularly been designed for newly elected officials in an effort to keep them from being blindsided by laws which are not always intuitively clear and which continue to evolve. Our basic advice is to be aware that it is in the area of personnel management that the greatest risk exists for troubling litigation. Be careful in this area and seek informed advice early rather than late.
THE TEN POINTS
1. "Political" Personnel Decisions: The U.S. Supreme Court has determined that it violates constitutional law for public employees to be hired, fired, promoted, demoted, furloughed, transferred, etc. based on "political" considerations. Used in this way, the word "political" does not reference only party affiliation, though it includes that. It also refers to affiliation with or support of, or the failure to affiliate with or support, a "political" group, candidate or office-holder, and the holding or failure to hold a particular viewpoint. The only exceptions to this rule occur where some "political" affiliation is actually an aspect of a job, such as some members of an elected official's personal staff, and as to appointed officials in policy-making positions.
2. First Amendment and PA Whistleblower ("Speech") Issues: Public employees have a right to publicly criticize their employer to a degree unheard of in the private sector. The higher the rank of an appointed public employee who chooses to voice such criticism, the less job security he/she has under federal law; however, no public employee ever totally loses First Amendment expression rights to speak on matters of public concern. In addition, the Pennsylvania Whistleblower Act protects those who "in good faith" report alleged governmental "waste" or "wrongdoing." You do have a right to operate your government effectively and efficiently, and this right may outweigh an employee's speech rights (which are not absolute). You are advised to move cautiously when imposing an adverse employment decision on an employee who has been a critic and to seek assistance in determining whether the employee has engaged in protected activity.
3. Sexual Harassment Concerns: Federal and state laws prohibit harassment on the basis of gender in the workplace and require that employers take affirmative steps to prevent unlawful harassment. The amount of sexual harassment litigation against local government is staggering. Elected officials must take seriously their responsibilities in this area. To reduce the possibility of liability, elected officials need to actively support the municipality's policy against sexual harassment, mandate annual sexual harassment training, insure that all complaints of such harassment are promptly and thoroughly investigated, impose discipline or other corrective measures where warranted, and insist that municipal supervisors actively enforce the policy against sexual harassment. These measures will help the municipality to deter sexual harassment as well as to avoid liability in some cases where sexual harassment may have occurred.
4. Americans with Disability Act (ADA) Issues: The ADA prohibits employers from discriminating against qualified individuals with a disability with regard to hiring, firing and all terms and conditions of employment. Employers are also required to provide reasonable accommodations to such individuals to enable the employee to perform the essential functions of the job. Litigation derived from this Act is the fastest growing form of employment litigation. What constitutes a "disability" under the Act is very technical -- making decisions on this vital point without informed help is dangerous. When the municipality does deal with a qualified disabled or possibly disabled employee or applicant, it will need to engage in an "inter-active" discussion with that person regarding what might be a reasonable accommodation. Having, and documenting, such a give-and-take is vitally important. Additionally, those who participate in job interviewing must be trained in what can be lawfully asked (and not asked) under the ADA. This is true for elected officials as well as for managers and supervisors. Asking an unlawful question can create huge amounts of liability, even if the person asked the question is not disabled under the Act.
5. Veterans' Preference: Application of the PA Veterans' Preference Act to "tested" employees (i.e., civil service employees) is not difficult and typically causes no problems. What is often not understood is that veterans' preference also applies to all untested, appointed public employees. As between qualified (not "equally qualified" -- just "qualified") applicants, the veteran has a right to the job. Therefore, it is important to be precise and complete in describing what constitutes being "qualified." This is best done in writing and before the search for the new employee begins. The preference does not apply to an internal promotional opportunity, but it does apply to hiring from the "outside."
6. Act 111 and Act 195 Interest Arbitration: Police, fire and certain county employees who are unionized may not legally strike. When unions representing such employees reach a bargaining impasse, they have the right to have the collective bargaining agreement fixed in what is called interest or contract arbitration. Through this arbitration a neutral party will set, usually for a multi-year period, bargaining unit wages and benefits, including such things as pensions, paid time off, seniority rights, medical and other insurance benefits. Obviously, such awards have the potential to be very expensive and to create management difficulties. Any municipality going into interest arbitration needs experienced help in selecting the neutral arbitrator.
Once that is done, the municipality's case needs to be prepared thoroughly and presented competently. The municipality will be represented in the arbitration both by a presenter and by its non-neutral arbitrator (often these roles can be combined). Experience has shown that the best awards, from a government's perspective, occur when the right neutral arbitrator has been selected and someone well known to that arbitrator represents the municipality. (Remember--the neutral arbitrator will know the union's representative).
7. Disciplining Employees with Property Rights in Their Employment: Under state law certain public sector employees are considered to have property rights in their employment, and their employment cannot be terminated without affording them appropriate due process. Local governments have two types of employees with property rights in their employment -- those covered by collective bargaining agreements which allow disciplined employees access to arbitration and those covered by civil service. In both cases only post-probationary employees have such property rights. This means that such employees cannot be disciplined with the loss of money until they have first been given an informal opportunity (called a Loudermill hearing after the U.S. Supreme Court decision which mandates it) to answer the charges against them. All other local government employees are "at will" employees. They have no constitutional right to a Loudermill hearing. Such "at will" employees do have the right not to be "harmed" for lawful use of a constitutional right (speech) or based on race, color, creed, sex, national origin, age or disability. The failure to provide an employee who has a property right in his/her employment with a timely Loudermill hearing has resulted in a significant amount of litigation in the federal courts.
Bargaining unit employees have access to grievance arbitration to challenge discipline. Civil service employees have access to civil service commissions to challenge discipline (also, furloughs, the order of recall, etc.). &ob;Note: with proper preparation no employee should have access to both arbitration and the CSC&cb; These challenges occur after the Loudermill part of the process. Both the grievance arbitration process, and civil service litigation are very "rule" oriented. More cases are lost for failing to follow the "rules" than are lost on the substantive evidence. To maximize your opportunities to prevail, make sure you are following all the rules. If you are going to use outside legal counsel to represent the municipality in such matters, bring them in at the beginning and not after there are already problems with the disciplinary process.
8. Fair Labor Standards Act Issues: The FLSA mandates the payment of the minimum wage and the payment of overtime or "comp" time to certain employees in certain situations. Failure to follow the Act carries severe penalties. The "common wisdom" as to what entitles an individual to overtime or comp time is usually wrong. The fact is that this is a very complicated and confusing area for all employers. It is even more confusing in the public sector because the FLSA contains a number of special provisions that apply only to government employers or more frequently to them. Please remember that: being "salaried" does not equate with being "exempt" from the overtime/comp time provisions of the Act; the choice of FLSA comp time or overtime payments is the employee's choice if there is a comp time program; the duty to monitor and regulate the hours an employee works rests entirely with the employer; and the employee's "testimony" or records on time worked will carry the day if the employer does not have a reliable system for recording the amount of time worked.
9. Family and Medical Leave Act Matters: The FMLA does not apply to employers of less than fifty (50) employees. It does not apply to employees who have been employed for less than twelve (12) months, or who had less than 1,250 hours of service during the twelve (12) months before leave was sought. The FMLA permits eligible employees to receive up to 12 weeks of leave in a 12 month period for the birth or placement for adoption or foster care of a child, the employee's serious health condition or the serious health condition of a parent, spouse or child. This most recent of the federal "civil rights" laws, with its implementing regulations, can be a liability trap even for the most diligent personnel manager. If proper documentation is not maintained by the employer, an employee may receive even more time off than contemplated by the Act, and the employee may not be disciplined for the absences. What you need to understand is that the FMLA creates "bargaining" issues, notice issues, accommodation issues, and record-keeping issues. You need to have a well-drafted FMLA policy and to study it. You will need to exercise patience with employees who have a right to use their 12 weeks of FMLA leave "intermittently." Do not "jump to conclusions" about whether an employee is entitled to the benefits of the law. When an FMLA issue comes up, get informed advice before responding and be alert to the possible existence of such issues. &ob;Note: FMLA leave questions, ADA issues, and worker's compensation matters often intertwine. When this happens, or seems to be happening, get help. A wrong step taken in a situation where these laws are all involved can create near permanent damage to the ability of the municipality to operate reasonably and effectively.&cb;
10. The Hiring and Employment Process: The process of hiring and retaining employees should be formal. Hiring must be an open process, the mechanics of which are transparent to the public. Word-of-mouth or other informal hiring processes risk violating the ADA, Title VII (prohibiting, among other things, racial discrimination) and federal civil rights law created by our courts. Failing to maintain proper personnel files, or to train, supervise and discipline employees can create civil rights liability. For example, federal courts have found that nepotism, negligent hiring (failure to check references), neglect in the areas of training, supervision and discipline of employees, and uneven treatment of similarly situated employees has created liability on the basis of gender, race, substantive due process, equal protection, and on other bases.
Conclusion: Public sector personnel management is challenging and difficult. It is much more difficult than personnel management in the private sector. False steps in this arena can be expensive and frustrating. They cause governments to waste time, manpower, and real dollars and lead to bad publicity. These false steps also get in the way of improving government, carrying out agendas, and maintaining appropriate relations with employees and, where applicable, with employee unions. Local governments achieve their objectives through their employees -- they do not manufacture things -- they deliver services. For all these reasons, and because one of the primary sources of governmental legal liability is the area of personnel management, elected officials need to manage the personnel aspect of local government in an informed and professional manner. To do this they need to become reasonably well informed about the law in this area. This 10 Point pamphlet is a first step in that direction.