Chapter 12

1. Chapter 12 The Law & Public Employment

2. Due Process & Employees • Since the Due Process Clause of the U.S. Constitution makes no distinction between fairness to insiders and to outsiders, the same problems of accuracy, rationality and fairness apply to decisions about personnel. • The APA is silent on internal management of agency employees.

3. Fed.& Fla. Gov. workers Can’t strike Workforces • “Employee at Will” Doctrine (prevalent in the private workforces) • “Term Employment” (both public and private workforces) • Labor Laws (Unions) (both public and private workforces) • Government Workers protected by: • bargaining agreements (unions) and • The Civil Service Reform Act of 1978

4. Federal Agency Employees & The Civil Service Reform Act of 1978 • Sec. 7513 requires that an employee who is to be removed, suspended for more then 14 days, reduced in pay or grade, or laid off for 30 days or less be provided with certain protections at the agency level.

5. Formalities: • At least thirty days advanced written notice setting forth the reasons for the action. The requirement is waived if the employee is believed to have committed a crime for which imprisonment is a possible punishment. • Not less than seven days to answer the charges orally and/or in writing to include the submission of affidavits or other documentary evidence • Representation by an attorney or other person • Receipt of a written decision and the reasons for it at the earliest practicable date. • Additionally, at the discretion of the agency, the employee may be afforded a hearing which can be a replacement for the previously mentioned provision #2. Even further, but again at the discretion of the agency, the hearing may be in addition to the provisions of #2.

6. Then…. • Sec. 7701 allows the employee a statutory right to appeal the decision of the agency to the Merit System Protection Board.

7. There is a right to pre- Termination response and Employee alleges he was Never given a chance and Thus he states a cause of Action for the case to Proceed. JUDGE JUDY READY TO RULE---- Case: CLEVELAND BOARD OF EDUCATION V. LOUDERMILL. P.437 Security guard who worked for the Cleveland Board of Education was fired for Not disclosing his prior felony conviction on job application. Employee is never Given an chance to respond prior to his dismissal and thus State law allowing for Such dismissal was Unconstitional.

8. 1st Amendment Protections (freedom of speech and privacy) • Courts have not allowed the firing or sanctioning of governmental employees based on their political affiliation unless they are appointees—not employees. This principal has been extended to those who, though not employees, had contracts with the government to provide services. • Right to Privacy is an “inferred right” in the 1st Amendment and government workers have very little in the workplace (but a little more then the private sector). Reasonable Expectation of Privacy---that is the standard.

9. The Foundation in Law • In a landmark case in 1954, Brown v. Board of Education, the Supreme Court overruled the 1896 Plessey v. Ferguson case and held that “separate but equal” schools violated the Constitution. Thereafter the Civil Rights Act of 1964 was passed. • Title VII of the Civil Rights Act prohibits employment discrimination by the majority of private and public sector employees. Both the 5th & 14th Amendments Equal Protection Clauses can be used to challenge governmental discrimination also

10. Enforcement • The Equal Employment Opportunity Commission is the administrative agency that oversees discrimination laws. It investigates, and if necessary, prosecutes offenders. E E O C

11. Civil Rights Enforcement Equal Employment Opportunity Commission (EEOC): The federal agency responsible for enforcing federal laws forbidding discrimination in employment. The EEOC investigates discrimination claims; attempts to resolve disputes via mediation and conciliation; and, if necessary, engages in litigation. Approximately 80,000 complaints are filed annually with the EEOC. Litigation: After investigating, the EEOC may file a civil suit or issue a right-to-sue letter to the grievant. The EEOC filed only 291 suits in 2000. Many disputes are resolved in arbitration. When litigated, plaintiffs prevail in only about 30% of the suits. Remedies: May include job reinstatement, back pay, seniority relief, compensatory damages, and punitive damages in some instances. Additionally, the EEOC often negotiates consent decrees that may require new procedures to correct wrongful practices.

12. Individual Actions • All offended parties must first file a complaint with the EEOC or State Agency (Fla. Comm. on Human Relations). If these agencies find “reasonable cause” that a violation occurred, it may start a lawsuit on behalf of the offended party. • If no reasonable cause is found, or if the agency elects not to proceed on behalf of the complaining party it issues a “right to sue” letter to give the offended party the right to commence a private lawsuit.

13. Race, Color & National Origin • Title VII prohibits discrimination on the basis of race, color, and national origin (as well as sex and religion). Two primary theories for proving a violation of Title VII are disparate treatment and disparate impact. Sexual preference is not protected under Title VII. 15 States protect against discrimination based on sexual Preference in employment (N.Y. passed it in Dec. 2002) Federal Executive Order by Clinton in 1998 prevents it in Federal employment but not armed forces. There are 180+ municipal or county codes that prevent discrimination on this basis in employment.

14. The Equal Pay Act of 1963 prohibits discrimination to pay on the basis of sex. It only applies if the work is equal--equal in skill, effort and responsibility and performed under similar working conditions. Affirmative defenses: seniority system, merit system or a system which is based on productivity. To adjust wages to comply with the Act, the employer must raise the wages rather then lowering the pay of the “favored” class. Equal Pay

15. Affirmative Action The practice of taking positive steps to increase the employment of minorities & females, often to achieve a goal of a workforce that resembles the relevant labor pool in demographics. It may be ordered by a court after finding of unlawful discrimination or may be adopted voluntarily by employers. Federal government contractors are required by law to meet affirmative action standards. In the summer of 2003 the US Sct. Decided that Affirmative Actions Plans are Constitutional If not based on Quotas (Systems of Preferences OK) Affirmative action activities are being revised around the country. Reverse Discrimination claims can be filed unless The programs are properly designed to Redress past discrimination

16. Affirmative Action However, in 2007 the US Supreme Court ruled (shapely Divided) ruled that RACE cannot be a factor in school Desegregation practices and many feel that this case will Spell the end for affirmative action programs in the workplace As well.

17. Religious Discrimination • Discrimination is permitted only if an employer demonstrates that it cannot reasonably accommodate the employee’s religious beliefs without “undue hardship”

18. ADA The American with Disabilities Act (ADA) prohibits discrimination on the basis of disabilities in employment, public accommodations, public services, transportation and telecommunications. Disabled Person: (1) has a physical or mental impairment that substantially limits one or more major life activities; (2) has a record of such impairment or (3) is regarded as having such impairment.

19. Covered rehabilitated alcoholism rehabilitated drug users many others Not Covered: sexual preference gambling kleptomania pyromania exhibitionism Disabilities: Eye Glasses A Disability? The act requires employers to make reasonable accommodations for disabled persons.

20. Family Medical Leave Act • Workers are entitled to up to 12 weeks of unpaid leave in order to take care for a newborn child, an adopted infant, or a seriously ill family member, while preserving job security and medical benefits.

21. Age Discrimination The Age Discrimination in Employment Act (ADEA) prohibits discrimination on the basis of age against persons 40 years of age and older. Courts have applied both disparate treatment & disparate impact analysis of cases under the ADEA. Happy Birthday-- You’re Fired!

22. Neither the APA or the ADEA requires the FAA To revisit and change This mandatory rule. JUDGE JUDY READY TO RULE---- Case: PROFESSIONAL PIOLTS FEDERATION V. FEDERAL AVIATION ADMINISTRATION FAA refuses to modify its rule that commercial Pilots must retire at the age of 60. Petitioners challenge such refusal to revisit This rule under the APA and ADEA.

23. Sexual Harassment • Sexual harassment is “unwelcome sexual advance, requests for sexual favors, and other verbal or physical conduct of a sexual nature.” It is a form of “sex” discrimination and thus falls under Title VII. There are two “causes of action” or “basis for lawsuits” for plaintiffs to sue under : • quid pro quo theory when a person’s terms & conditions of employment are dependant upon engaging in sexual conduct/sexual favors. • hostile environment theory when the plaintiff’s work environment is made unbearable by sexual comments, innuendoes, suggestions, etc.

25. The U.S. Labor Movement • Unions stem back to the 1800s “Knights of Labor” which was a secret underground type organization and first form of a union to protect workers from employer a buses. Once unions were protected in the 1930’s they became very strong and powerful. Unions eventually reached their “peak” in the late 1950’s & 1960’s and then started to progressively lose membership and power. Eventually the two largest unions united (AFL-CIO). Unions lost much of their power in the US because of increase in federal laws (giving employees protections/rights) replacing the usefulness of unions, union corruption, union dues, change from manufacturing industries to service and the rise of “right to work” states.

26. Has anyone seen Jimmy Haffa? Labor Legislation

27. Unfair Labor Practices Don’t forget that Unions are excluded from Antitrust Section 8(a) of the NLRA sets forth a list of unfair labor practices (ULPs) which were created ensure the rights granted to each side in a labor environment. If either Management or Unions violate these ULP’s, a complaint Can be filed with the NLRB.

28. National Labor Relations Board---NLRB The NLRB is the administrative agency that oversees the NLRA. Its is charged with investigating and resolving ULP complaints and to monitor and oversee elections. The NLRB has mediators who try to resolve conflicts between the Union and management when possible. If a party does not agree with the ultimate NLRB ruling, they can appeal to the judicial branch (court case) after exhausting all other avenues for appeal within the NLRB

29. Starting a Union If the employer refuses to Voluntarily recognize a Unionization request the Following are the steps to take To form a union: STEP #1 A petition is filed with NLRB. Once the petition is filed, and if the employer does not recognize the request voluntarily,the NLRB will investigate the petition. The board will not proceed with any petition unless the union has a “substantial showing of interest” ---at least 30% or greater of employees support

30. Next ... Step #2: The employees who will be entitled to vote in the election (& who will be represented by the union if the election so decides) are referred to as the “bargaining unit”. If union & employer cannot agree upon appropriate bargaining unit the NLRB will establish the unit based on a “community of interest” standard. Certain classes of employees may be excluded from a bargain- ing unit (managers & “confidential employees”)

31. Then ... Step #3 An election is held which is overseen by the NLRB to ensure that it is free from undue or unfair influence by either the employer or the union. Majority vote wins. If Union is voted down, then they must wait for 2 years to restart the process. Keep in mind that both unions & employers Are restricted in the techniques they can Legally use during a campaign for unionization.

32. Workers must have the ability to speack about union ideas on off time or break time. No threats of retaliation for unionizing & No discrimination based on union views. No promises made if employees do not unionize. Must bargain only with union in good faith Parties’ Obligations/Duties Employer

33. Workers have a right to speak against the union. Workers should not be exposed to coercive types of pre-election persuasion on employees. Must bargain in good faith. Parties’ Obligations/Duties Gov. Employees In Florida & Federal Gov. Have No Rights to Strike Union

34. Good Faith Bargaining A question of fact ---- (examples of known “bad Faith Bargaining”): Surface Bargaining: When one side bargains with no Genuine desire to reach an agreement but is simply going through “the motions”. Take-It-or-Leave-It Bargaining: When one side announces An offer under a “take it or leave it” proposal. This is bad Faith as both parties are to negotiate and do counter-proposals Under the NLRA.

35. Special Protections to Some State Government Workers (Example): • Florida Police Officers: “Officers Bill of Rights” • Must be investigated by inside the agency; • Must be given copies of all statements prior to the officer’s statement; • Must be able to have a Union representative present during statement; • Investigation confidential until final decision rendered for sanctions;