CHAPTER FOURTEEN Rights of Criminal Justice Employees

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1 CHAPTER FOURTEEN Rights of Criminal Justice Employees Good orders make evil men good and bad orders make good men evil. JAMES HARRINGTON

2 LEARNING OBJECTIVES At the conclusion of this chapter, the student will: be familiar with laws and rights affecting criminal justice employees understand the concept of disparate treatment be familiar with effective action plans know the elements of a due process claim under U.S. Section

3 LEARNING OBJECTIVES (cont.) At the conclusion of this chapter, the student will: understand the impact of the Fair Labor Standards Act on criminal justice employees understand the nature and impact of workplace harassment in criminal justice know the eligibility requirements for Family and Medical Leave Act benefits understand the Americans with Disabilities Act 3

4 Overview Law and litigation affecting criminal justice employees can arise out of federal and state constitutions, statutes, administrative regulations, and judicial interpretations and rulings. Even poorly written employee handbooks or longstanding agency customs or practices may create vested rights. This section focuses on presenting the issues rather than on attempting to settle the law. 4

5 The Employment Relationship Recruitment and Hiring Issues in recruitment, selection, and hiring also often involve internal promotions/assignments to special units, such as a special weapons team. Requirements concerning age, height, weight, vision, education, and a valid driver s license have all been utilized over the years in criminal justice. Tests are commonly used to determine intelligence, emotional suitability & stability. more recently, drug tests have become frequent The critical question for such tests is whether they validly test the types of skills needed for the job. 5

6 The Employment Relationship Disparate Treatment There is nothing in the law that states that an employer must hire or retain incompetent personnel. What is illegal is to treat people differently because of their age, gender, sex, or other protected status; that is disparate treatment. Existing physical agility tests discriminate against women & small men with less upper-body strength. litigation is blossoming in this area Discrimination may also exist in promotions and job assignments. 6

7 The Employment Relationship How Old Is Too Old in Criminal Justice? State and public agencies are not immune from age discrimination suits in which arbitrary age restrictions have been found to violate the law. The US Supreme Court rejected mandatory retirement plans for municipal firefighters & police. The Court also established a reasonable federal standard in a 1984 decision in which it overturned a state statute providing for the mandatory retirement of state game wardens at age 55. 7

8 The Employment Relationship Criminal Justice and Affirmative Action Probably no single employment practice has caused as much controversy as affirmative action. the words bring to mind quotas & unqualified people being given preferential hiring treatment The legal question (to many, a moral one) arising from affirmative action is: When does preferential hiring become reverse discrimination? In summary, whenever a criminal justice employer wishes to implement and maintain job requirements, they must be job related. 8

9 The Employment Relationship Property Rights in Employment The 14th Amendment provides in part that: [n]o state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the US; nor shall any State deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the law. A long line of court cases has established the legal view that public employees have a property interest in their employment. this flies in the face of views employees served at will or until employers no longer needed them 9

10 The Employment Relationship Property Rights in Employment To have a property interest in a benefit, a person clearly must have a legitimate claim of entitlement. Development of a property interest in employment means that due process must be exercised by a public entity before terminating/interfering with an employee s property right. normally, exempt appointments have an automatic exception to contemporary property interest views Property right in one s employment does not have to involve discipline or discharge to afford protections to an employee. 10

11 The Employment Relationship Pay and Benefits - The FLSA The Fair Labor Standards Act (FLSA) has been referred to as the criminal justice administrator s worst nightmare come true. enacted in 1938 to establish minimum wages and to require overtime compensation in the private sect Criminal justice operations take place 24 hours per day, 7 days per week, and often require overtime and participation in off-duty activities such as court appearances and training sessions. FLSA comes into play when overtime must be paid 11

12 The Employment Relationship Pay and Benefits - The FLSA A companion issue with respect to criminal justice pay and benefits is that of equal pay for equal work. disparate treatment in pay & benefits can be litigated under Title VII or statutes such as the Equal Pay Act Other criminal justice employee benefits are addressed in Title VII, the ADEA, and the Pregnancy Discrimination Act (PDA). 12

13 The Employment Relationship 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 USC it is unclear what duties are owed by public employers in providing safe workplaces The Supreme Court has noted the unique nature and danger of public-service employment. other federal courts have ruled inconsistently on the safe workplace issue Liability for an employee s injury, disability, or death is a critical concern for criminal justice agencies. 13

14 Constitutional Rights & Justice Employees Freedom of Speech & Association Many criminal justice executives have attempted to regulate what employees say to the public. on occasion those restrictions will be challenged. a number of court decisions have attempted to define limits of criminal justice employees free speech Although freedom of speech a fundamental right, the Supreme Court has indicated 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. 14

15 Constitutional Rights & Justice Employees Freedom of Speech & Association A related area is that of political activity. governmental agencies may restrict political behavior of their employees At the federal level, political activities by federal employees are controlled by the Hatch Act. constitutionality upheld by the US Supreme Court many states have similar statutes, referred to as little Hatch Acts 15

16 Constitutional Rights & Justice Employees Freedom of Speech & Association It is common for police departments to prohibit officers from associating with known felons or others of questionable reputation on grounds that such associations may give the appearance that the police are not themselves honest and impartial enforcers of the law. However, rules against association, as with other First Amendment rights, must not be overly broad. An individual has an interest in being free to enter into certain private relationships. freedom of association is not an absolute right 16

17 Constitutional Rights & Justice Employees Searches & Seizures; Self Incrimination The 4th Amendment the right of the people to be secure against unreasonable searches and seizures. usually applies to officers as all citizens. because of their job, officers can be compelled to cooperate with investigations of their behavior The Supreme Court has addressed 5th Amendment questions applied to an officer ordered by the attorney general to answer questions or be fired. it held that information obtained could not be used against him at his criminal trial because the Fifth Amendment forbids the use of coerced confessions. 17

18 Constitutional Rights & Justice Employees Religious Practices Criminal justice work often requires that personnel be available, on duty 24 hours a day, 7 days a week. Conflicts can occur between work assignments and attendance at religious services or periods of religious observance. in these situations, the employee may be forced to choose between his or her job and religion Title VII of the Civil Rights Act of 1964 prohibits religious discrimination in employment. but not to the extent that the employee has complete freedom of religious expression 18

19 Constitutional Rights & Justice Employees Sexual Discrimination History and news accounts have shown that wearing a uniform, occupying a high or extremely sensitive position, or being sworn to uphold a code of ethics and maintain an unblemished and unsullied lifestyle does not mean that all people will do so for all time. This is an delicate area in which discipline can be and has been meted out as managers attempt to maintain high standards of officer conduct. it has also resulted in litigation because some officers believe that their right to privacy has been violated 19

20 Constitutional Rights & Justice Employees Residency Requirements In the 70s & 80s, interest in residency requirements for governmental employees heightened, especially in communities experiencing economic difficulties. many governmental agencies now specify employees must reside within the county or city of employment The strongest rationale given is that criminal justice employees must live close enough to their work to respond quickly in the event of an emergency. Strong arguments have been made that in areas where housing is unavailable or exceptionally expensive, a residency requirement is unreasonable. 20

21 Constitutional Rights & Justice Employees Moonlighting Courts have traditionally supported criminal justice agencies placing limitations on the amount and kind of outside work their employees can perform. Rationale for agency limitations is that outside employment seriously interferes with keeping the [police and fire] departments fit and ready. In a Louisiana case, firefighters provided evidence that moonlighting had never caused impairment to a firefighter s work. the court invalidated the ordinance prohibiting moonlighting 21

22 Constitutional Rights & Justice Employees Misuse of Firearms To defend themselves or others & be prepared for any exigency, police officers are empowered to use lethal force when justified. Some officers take this to the extreme, becoming overly reliant on, and consumed by their firepower. In the face of liability suits, police agencies generally have policies regulating the use of handguns and other firearms by their officers, both on & off duty. Courts and juries are becoming increasingly harsh dealing with officers who misuse their firearms, and have awarded damages for acts involving misuse. 22

23 Constitutional Rights & Justice Employees Alcohol & Drugs in the Workplace Alcoholism and drug abuse have taken on a life of their own, and employees must be increasingly wary of the tendency to succumb to these problems. administrative personnel must be able to recognize and attempt to counsel & treat them Criminal justice employees must be able to perform their work with a clear head. police departments & prisons will often specify that no alcoholic beverages be consumed within a specified period prior to reporting for duty. Such regulations have been upheld uniformly. 23

24 Constitutional Rights & Justice Employees Drug Testing Courts have had several occasions to review agency policies requiring employees to submit to urinalysis to determine the presence of drugs or alcohol. it was held as early as 1969 a firefighter could be ordered to submit to a test when the agency had reasonable grounds Three of the most controversial drug-testing issues: 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 24

25 Rights of Police Officers One does give up certain constitutional rights and privileges by wearing a justice system uniform. In the past decade, officers have insisted on greater procedural safeguards to protect themselves against perceived arbitrary infringement on their rights. reflected in statutes, generally known as the Peace Officers Bill of Rights (POBR) This legislation mandates due process rights for peace officers who are the subject of internal investigations that could lead to disciplinary action. 25

26 Rights of Police Officers The statutes identify the type of information that must be provided to the accused officer, the officer s responsibility to cooperate during the investigation, the officer s right to representation during the process, and rules & procedures concerning the collection of certain types of evidence. Some common provisions of state POBR legislation: written notice right to representation polygraph examination Officers expect to be treated fairly, honestly, and respectfully during an internal investigation. 26

27 Workplace Harassment Today most agencies to have a broad policy that applies to all forms of workplace harassment. all such harassment is a form of discrimination that violates Title VII of the Civil Rights Act of 1964 An employee wishing to initiate Equal Employment Opportunity (EEO) complaints of prohibited conduct described above must contact an EEO official within 45 days of the incident(s). 27

28 Workplace Harassment Police supervisors/managers must be vigilant of inappropriate behaviors, seven types of which have been identified: Nonsexual contacts that are sexually motivated Voyeuristic contacts Contacts with crime victims Contacts with offenders Contacts with juvenile offenders Sexual shakedowns Citizen-initiated sexual contacts 28

29 The Family and Medical Leave Act To be eligible for FMLA benefits, an employee must: work for a covered employer, and have worked for at least 12 months, and at least 1,250 hours A covered employer must grant an eligible employee unpaid leave for one or more of the following: Birth and care of a newborn child of the employee. Placement of a child for adoption or child care. To care for an immediate family member with a serious health condition. To take medical leave when the employee is unable to work because of a serious health condition. 29

30 The Americans with Disabilities Act (ADA) Those in an administrative capacity are strongly urged to become familiar with the literature in order to avoid conflicts with ADA mandates. applicable to background checks; psychological & medical exams; agility, drug, & polygraph tests Although certain agencies in the federal government are exempt from ADA, state and local governments and their agencies are covered by the law. It is critical for administrators to develop written policies and procedures consistent with the ADA and have them in place before a problem arises. 30

DATED DISCIPLINARY RULES AND PROCEDURE AND GRIEVANCE PROCEDURE

DATED DISCIPLINARY RULES AND PROCEDURE AND GRIEVANCE PROCEDURE DATED ------------ DISCIPLINARY RULES AND PROCEDURE AND GRIEVANCE PROCEDURE 1 CONTENTS DISCIPLINARY RULES AND PROCEDURE 1. Policy statement...3 2. Who is covered by the procedure?...3 3. What is covered