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COUNTY EMPLOYMENT POLICIES AND PRACTICES: The Laws You Have To Know David A. Cole Partner Freeman Mathis & Gary, LLP
COUNTY EMPLOYMENT POLICIES
AND PRACTICES:
The Laws You Have To Know
David A. Cole
Partner
Freeman Mathis & Gary, LLP
COUNTY
EMPLOYMENT PRACTICES:
The laws you need to know
• Current landscape of employment litigation
• Basic laws governing employment relationship
• Special issues affecting public employers
• Understanding how discrimination is “proven”
• Recent trends in employment law
Agenda
CURRENT LANDSCAPE
OF EMPLOYMENT LITIGATION
Total EEOC Charges
2011 EEOC Charges by Type
Employment Lawsuits: Its About the Firings
LAWS GOVERNING THE
EMPLOYMENT RELATIONSHIP
• Oral employment contract
• Indefinite duration
• Terminable at will by either party . . .
• But exceptions and federal and state laws have eviscerated the at-will rule
The At-Will Rule
• Refusal to commit an unlawful act
– Lie to investigator
– Destroy documents
• Performing a legal obligation
– Testifying at trial
– Serving as a juror
• Exercising a legal right or privilege
– Filing a workers’ compensation claim
– Filing a complaint with a government agency
Public Policy Exceptions
• Promises of Job Security
– “If you do a good job, you’ll never be fired”
– “You’ll always have a job here as long as I’m here”
• Handbooks and Policy Manuals
– Statements of Periodic Compensation
– “Your salary for the first year you are employed will be $20K”
At-Will Exception:Contract Implied In Fact
• Establish conditions that must be satisfied in order to terminate employee
• Create a property in continuing employment that entitle employee to due process
Another At-Will Exception: Civil Service Systems
• Title VII of the Civil Rights Act
• Age Discrimination in Employment Act
• Americans with Disabilities Act
• Equal Pay Act
• Fair Labor Standards Act
• Family and Medical Leave Act
• Immigration Reform and Control Act
• Genetic Information Nondiscrimination Act
Major Federal Statutes
• Georgia Whistleblower Act
• Georgia First Offender Statute
• Potential common law claims:
– Negligent hiring/retention/supervision
– Defamation (libel or slander)
– Invasion of privacy
– Intentional interference with contractual relationships
Other State Law Issues
SPECIAL ISSUES FOR
GOVERNMENT EMPLOYERS
• Subject to most statutes of private employers
• Cannot violate constitutional rights of employees
– Equal protection
– Freedom of speech
– Right of Privacy
– Procedural due process
– Substantive due process
– Right to liberty
Government Employers
• Freedom of Speech, Assembly, and Association
• Right to Petition Government
• Redress of Grievances
• Speech is protected when employee speaks as a “citizen” on matter of “public concern”
• Courts employ balancing test of employee’s right to free speech against government’s need to operate efficiently and serve the public
First Amendment Issues
• City of Ontario v. Quon
• Two step analysis:
– Reasonable expectation of privacy
– If so, search must be reasonable
– Reasonable if: (a) justified at inception, and (b) measures adopted reasonably related to objects and not excessively intrusive.
Invasion of Privacy
• Public employees can have protected property rights to their jobs
• Property rights give rise to due process rights that must be protected from unlawful government taking or intrusion
Due Process Rights
• Statutes
• Regulations
• Ordinances
• Handbooks
• De facto representations
Where do the rights come from?
• Resignations are presumed voluntary and waives the employee’s property interest
• If involuntary, it is a constructive discharge and a violation of due process if a hearing was not held
• Involuntary if
– (1) Employer forces the resignation by coercion or duress; or
– (2) the employer obtains the resignation by deceiving or misrepresenting a material fact to the employee
Waiver of Property Rights and Resignation
• Notice of the charges
• Opportunity to be heard
– This does not necessarily have to be a “hearing.” Oral notice, along with an opportunity to respond, is sufficient.
– Create a record by putting notice of pre-discipline hearing in writing, and giving employee time to respond
– Must continue pay employee until pre-discipline/termination hearing.
Pre-Discipline / Pre-Termination Hearing
• Written notice of charges in sufficient detail
• Names of witnesses
• Hearing within reasonable period
• Employee has opportunity to be heard
• Presentation of evidence
• Right to cross examine
• Impartial tribunal
• Right to counsel
Post-Termination Hearing
• Provide a later procedurally proper hearing
• Cannot violate constitutional requirements unless you don’t fix the problem by allowing another proper hearing
Procedural Violations At Hearings Can Be Cured
• Public employees have right to liberty interest, even if they are at-will
• Liberty interest includes right to good name
• False, stigmatizing statement made public infringes liberty interest
• Inform employee of right to name-clearing hearing
– Limited procedure
– Notice of charges
– Opportunity to refute
– Impartial tribunal
Name Clearing Hearings
• Not all adverse statements are stigmatizing
• Must foreclose employee from other employment
• Must be published
• Truth is the best defense– No hearing required if public statements are true
Name Clearing Hearing
UNDERSTANDING HOW
DISCRIMINATION IS “PROVEN”
• Inconsistent treatment similarly situated
employees
• Employer did not follow its own policies
• Bad behavior by supervisors
• Lack of documentation or poor
documentation
Common Scenarios Where
Employers Lose
• Every termination has an element of risk to it
• It is an individual decision that will always
have two sides to the story
• Do not focus only on your perspective, but
evaluate what employee will argue and be
explain differences in treatment,
documentation issues, and reasons for your
decision
The Bottom Line
• Rise of retaliation claims
• Explosion of FLSA litigation
• Social media and technology in the
workplace
• Complicated ADA and FMLA issues
Trends in Employment Law
Number of Retaliation EEOC Charges
• Increased scope of what is protected activity
• Broader definition of adverse action than in
traditional discrimination claims
• Promotion of the “whistleblower” and
increased perception of retaliation and
suspicion of government and employers
Reasons for the Increase
Excluded from decision & work activity
Given the cold shoulder
Verbally abused by managers
Almost lost job
Not given promotion or raise
Verbally abused by other co-workers
Relocated or reassigned
Other forms of retaliation
Demoted
Physical harm to person or property
Types of Retaliation Experienced by Employees Who Report Misconduct
62%
60%
55%
48%
43%
42%
27%
20%
18%
4%
Source: 2009 National Business Ethics Survey report, Ethics Resource Center.
Increase of FLSA Claims
Increase of FLSA Claims(as % of labor lawsuits)
Settled Claims by Type of Allegation
2007-2011
40%
19%
17%
15%
4%
3%
2% Overtime
Off-the-Clock
Misclassification
Missed Mealsand Breaks
Donning andDoffing
Minimum Wage
Tip Pooling
2011
43%
7%16%
20%
6%
5% 3%
Overtime
Off-the-Clock
Misclassification
Missed Mealsand Breaks
Donning andDoffing
Minimum Wage
Tip Pooling
Source: March 22, 2012 NERA Economic Consulting
• First amendment rights of employees
• Invasion of privacy claims for searching emails, text messages, online posts
• Bring your own device policies and issues
• Online discrimination, harassment, and bullying
• Background and social media searches of job applicants prior to hiring
Social Media and Technology
• Expanded definition of “disability” to the maximum extent possible
• No longer consider mitigating measures like medication and assistive technology
• Increased list of “major life activities”includes major bodily functions
• Employee who is not disabled can be protected if he is “regarded as disabled”
ADA Amendments Act
• Expanded definition of “disability” to the maximum extent possible
• No longer consider mitigating measures like medication and assistive technology
• Increased list of “major life activities”includes major bodily functions
• Employee who is not disabled can be protected if he is “regarded as disabled”
ADA Amendments Act
• FMLA expanded to include service member leave and care for injured service member
• Must follow notice requirements strictly
• Intersection of ADA/FMLA can be complicated– Condition may qualify under both statutes
– Or may qualify as ADA disability, but not FMLA
– ADA may require leave or accommodation after period of FMLA leave expires
FMLA and ADA
FOR MORE INFORMATION ON THIS TOPIC:
HUMAN RESOURCESFEBRUARY 4, 2013 – ATLANTA MARRIOTT MARQUIS
APRIL 27, 2013 – SAVANNAH CIVIC CENTER
ALSO AVAILABLE ON-LINE THROUGH THE VINSON INSTITUTE
WEBSITE WWW.CVIOG.UGA.EDU
