Do We Really NEED a Lawyer Public employment
Do We Really NEED a Lawyer? Public employment and the law By: Brian D. Schmidt – Attorney at Smith Porsborg Schweigert Armstrong Moldenhauer and Smith
“At-Will” Employment In North Dakota, employment is presumed to be “at-will” which means the employer can terminate an employee with or without case. Authority: Jose v. Norwest Bank North Dakota, N. A. , 1999 ND 175, ¶ 10, 599 N. W. 2 d 293. Sounds simple right? Right now, you are probably thinking “No, I do not NEED a lawyer, I NEED a nap!”
If Employment is “at will” why am I here? “At-will” employment has limitations 1) The Constitution ◦ - Fourteenth Amendment – Due Process 2) Federal Statutes ◦ Civil Rights Act – Title VII, Americans with Disabilities Act, Age Discrimination in Employment Act, Americans with Disabilities Act, Family and Medical Leave Act, Uniformed Services Employment and Reemployment Rights Act 3) North Dakota Law ◦ North Dakota Human Rights Act
The Constitution Fourteenth Amendment ◦ No state shall…deprive any person of life, liberty, or property, without due process of law But this says nothing about public employment…right? Wrong ◦ “A property interest arises from a legitimate claim of entitlement to continuing employment. ” Authority: Voss v. Housing Authority of the City of Magnolia, Arkansas, 2019 WL 910557, *5, (Feb. 25, 2019, 8 th Cir. 2019). ◦ Also, the Fourteenth Amendment applies to cities. Authority: Carlson v. California, 310 U. S. 106, 109 n. 1, (1940).
Fourteenth Amendment What is a “legitimate claim of entitlement to continued employment? ” ◦ It must stem from state law or some other independent source sufficient to establish mutually explicit understandings of entitlement. Authority: Barnes v. City of Omaha, 574 F. 3 d 1003, 1006 (8 th Cir. 2009) Property interests may be created by statutes, regulations, ordinances, contracts and even personnel policies contained in an employee handbook or manual. Authority: Livingood v. Meece, 477 N. W. 2 d 183 (N. D. 1991)
Property Interests in Employment Government employees who are employed under the terms of a “fixed term contract” have a protected property interest in employment until the term of the contract has expired. Authority: Frazier v. Garrison I. S. D. , 980 F. 2 d 1514, 1530 (5 th Cir. 1993). ◦ Ex. City ordinance provides the city engineer is hired for a term of 3 years. The city engineer has a protected property interest in his employment during those 3 years. Civil Service Cities ◦ - Generally, cities that adopt a civil service system provide a “good cause” element to termination and demotions. This is usually sufficient to confer a property interest in public employment. Authority: Preston v. City of Pleasant Hill, 642 F. 3 d 646, 651 (8 th Cir. 2011). ◦ Check your local ordinances if this may apply.
Due Process ◦ Remember the Fourteenth Amendment? ◦ No state shall deprive a person of property without due process of law
Due Process in Public Employment Due process requires pre-termination notice and an opportunity to respond before an employee with a constitutionally protected property interest in continued employment may be terminated or suspended without pay. Authority: Good Bird v. Twin Buttes School Dist. , 2007 ND 103, ¶ 15, 733 N. W. 2 d 601; Maner v. County of Stanislaus, 725 Fed. Appx. 485, 488 (9 th Cir. 2018). ◦ Pre-termination notice is satisfied by providing oral or written notice of the charges, an explanation of the employer’s evidence, and providing the employee with an opportunity to respond prior to the termination or unpaid suspension. Authority: Cleveland Bd. of Educ. v. Loudermill, 470 U. S. 532, 546 (1985) Pre-termination notice must be coupled with post-termination procedures provided by law. Authority: Loudermill, 470 U. S. at 547. ◦ Check your local ordinances
So what happens if I fire or suspend someone without providing Due Process? YOU WILL LIKELY GET SUED!!!! ◦ 42 U. S. C. § 1983 provides a remedy for suit against government employees who violate an individual’s rights secured by federal law. ◦ You can be sued in your individual capacity ◦ The City can also be sued ◦ A successful employee can recover their attorney’s fees if they are successful. Authority: 42 U. S. C. § 1988.
Can this be a problem for me? Yes!!! ◦ Whether a public employee has a property interest rarely has a clear answer. ◦ It depends on a lot of factors. ◦ It is always a good idea to discuss this with an attorney prior to making an employment decision. ◦ You do not want to find yourself as a defendant in a lawsuit. ◦ But if you do, you want to make sure you can win.
Complying with the Constitution does not mean you are in the clear The Constitution is just 1 layer of law ◦ 1) Constitution – law of the land ◦ 2) Federal Statutes – law of the land, but must comply with Constitution ◦ 3) North Dakota law – must comply with federal statues and also the Constitution Federal and state statutes also provide rights to public employees ◦ Federal Law ◦ ◦ ◦ Civil Rights Act Americans with Disabilities Act (“ADA”) Age Discrimination in Employment Act (“ADEA”) Family Medical Leave Act (“FMLA”) Uniformed Services Employment and Reemployment Rights Act (“USERRA”) ◦ State Law ◦ North Dakota Human Rights Act
Civil Rights Act ◦ Title VII of the Civil Rights Act ◦ (a)EMPLOYER PRACTICES It shall be an unlawful employment practice for an employer— ◦ (1)to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or ◦ (2)to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin. Authority: 42 U. S. C. § 2000 e-2
Age Discrimination in Employment Act Prohibition of age discrimination (a)EMPLOYER PRACTICES It shall be unlawful for an employer— ◦ (1)to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age; ◦ (2)to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s age; or ◦ (3)to reduce the wage rate of any employee in order to comply with this chapter. Authority: 29 U. S. C. § 623 What does “age” mean? ◦ At least 40 years old. Authority: 29 U. S. C. § 631
Americans with Disabilities Act (“ADA”) Prohibition on Discrimination ◦ (a)GENERAL RULE ◦ No covered entity shall discriminate against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment. Authority: 42 U. S. C. § 12112 ◦ What is a covered entity? ◦ Any employer who has 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year. Authority: 42 U. S. C. § 12111. ◦ Who is a “qualified individual? ” ◦ an individual who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires. For the purposes of this subchapter, consideration shall be given to the employer’s judgment as to what functions of a job are essential, and if an employer has prepared a written description before advertising or interviewing applicants for the job, this description shall be considered evidence of the essential functions of the job. Authority: 42 U. S. C. § 12111.
ADA (Continued) ◦ What is a disability? ◦ (A) a physical or mental impairment that substantially limits one or more major life activities of such individual; ◦ (B) a record of such an impairment; or ◦ (C) being regarded as having such an impairment. Authority: 42 U. S. C. § 12102 Note: The definition of disability shall be construed in favor of broad coverage of individuals to the maximum extent permitted by law. Authority: 42 U. S. C. § 12102
ADA (Continued) What is a reasonable accommodation? ◦ The term “reasonable accommodation” may include— ◦ (A) making existing facilities used by employees readily accessible to and usable by individuals with disabilities; and ◦ (B) job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities. Authority: 42 U. S. C. § 12111.
FAMILY AND MEDICAL LEAVE ACT (“FMLA”) (a)IN GENERAL ◦ (1)ENTITLEMENT TO LEAVE Subject to section 2613 of this title, an eligible employee shall be entitled to a total of 12 workweeks of leave during any 12 -month period for one or more of the following: ◦ (A)Because of the birth of a son or daughter of the employee and in order to care for such son or daughter. ◦ (B)Because of the placement of a son or daughter with the employee for adoption or foster care. ◦ (C)In order to care for the spouse, or a son, daughter, or parent, of the employee, if such spouse, son, daughter, or parent has a serious health condition. ◦ (D)Because of a serious health condition that makes the employee unable to perform the functions of the position of such employee. ◦ (E)Because of any qualifying exigency (as the Secretary shall, by regulation, determine) arising out of the fact that the spouse, or a son, daughter, or parent of the employee is on covered active duty (or has been notified of an impending call or order to covered active duty) in the Armed Forces. Authority: 29 U. S. C. § 2612
UNIFORMED SERVICES EMPLOYMENT AND REEMPLOYMENT RIGHTS ACT (“USERRA”) Any person whose absence from a position of employment is necessitated by reason of service in the uniformed services shall be entitled to the reemployment rights and benefits and other employment benefits of this chapter if— ◦ (1)the person (or an appropriate officer of the uniformed service in which such service is performed) has given advance written or verbal notice of such service to such person’s employer; ◦ (2)the cumulative length of the absence and of all previous absences from a position of employment with that employer by reason of service in the uniformed services does not exceed five years; and ◦ (3)except as provided in subsection (f), the person reports to, or submits an application for reemployment to, such employer in accordance with the provisions of subsection (e). Authority: 38 U. S. C. § 4312 Put simply, if you have an employee who leaves work for military service, they are very likely entitled to get their job back when they return.
FEDERAL LAW SUMMARY Title VII of the Civil Rights Act ◦ Prohibits discrimination based on race, color, religion, sex, or national origin. ADA ◦ Prohibits discrimination based on disability ◦ Reasonable Accommodations Age Discrimination in Employment Act ◦ Prohibits discrimination based on age against individuals who are at least 40 years old Family and Medical Leave Act ◦ Employees are entitled to miss up to 12 weeks of work for health or family reasons without losing their job USERRA ◦ Members of the armed services are entitled to reemployment when they return
NORTH DAKOTA LAW North Dakota Human Rights Act ◦ It is a discriminatory practice for an employer to fail or refuse to hire an individual; to discharge an employee; or to accord adverse or unequal treatment to an individual or employee with respect to application, hiring, training, apprenticeship, tenure, promotion, upgrading, compensation, layoff, or a term, privilege, or condition of employment, because of race, color, religion, sex, national origin, age, physical or mental disability, status with respect to marriage or public assistance, or participation in lawful activity off the employer's premises during nonworking hours which is not in direct conflict with the essential business-related interests of the employer. Authority: N. D. C. C. § 14 -02. 4 -03
Differences between Federal Law and State Law In North Dakota, you cannot discriminate based on marital status or public assistance ◦ Cannot fire someone because they are or are not married ◦ Cannot fire someone because they receive government benefits In North Dakota, you cannot discriminate because someone participates in lawful activity off the employer’s premises during nonworking hours which is not in direct conflict with the essential business-related interests of the employer. ◦ What on earth does this mean?
Participation in lawful activity This portion of N. D. C. C. § 14 -02. 4 -03 was originally enacted in 1991 to preclude employers from inquiring into an employee’s non-work conduct, including an employee’s weight, smoking, marital, or sexual habits. Authority: Hougum v. Valley Memorial Homes, 1998 ND 24, ¶ 40. So if someone merely does one of the following off your premises, you cannot fire them for that reason alone: ◦ ◦ ◦ Smoking (if over 18) Drinking (if over 21 and no residual effects at work) Eating habits Loves the team you hate Attends a political party’s convention Unless that activity is in direct conflict with your essential business-related interests.
Employee Remedies North Dakota Department of Labor and Human Rights ◦ An employee who believes they are subject to discrimination may file a complaint with the NDDOL Equal Employment Opportunity Commission ◦ If an employee believes the employer violated federal law, then the EEOC will review it too. Either agency will determine whether probable cause exists with respect to discrimination If no probable cause is found, then employee will be sent a notice of dismissal and will have 90 days to sue. (Generally this will end the claim) If probable cause is found, then: ◦ There will be a conciliation period (the agency will try to settle the claim) ◦ Administrative Hearing on probable cause determination ◦ If probable cause is ultimately found it is “prima facie” evidence of a violation ◦ In other words, you will be in an uphill battle Employee will have 90 days to sue you in court to recover damages and usually attorneys’ fees
How does a discrimination or retaliation lawsuit work? 1) Employee must establish the elements of a retaliation or discrimination claim; then 2) Employer must articulate a legitimate, nondiscriminatory or nonretaliatory reason for the employment decision; then 3) Employee must show the reasons offered by the employer were not its true reasons, but rather a pretext for discrimination or retaliation. Authority: Heng v. Rotech Medical Corp. , 2004 ND 204.
WHAT ARE THESE ELEMENTS? Elements of Discrimination 1) Membership in protected class 2) Satisfactory performance of the duties of the position 3) An adverse employment decision 4) Others not in the protected class were treated more favorably Authority: Clausnitzer v. Tesoro Refining and Marketing Co. , 2012 ND 172, ¶ 8. Elements of Retaliation 1) Engaged in a protected activity 2) That activity was causally related to adverse employment action Note: A “protected activity” includes: 1) a good faith report of a violation of law to an employer, governmental body, or law enforcement officer 2) participating in an investigation, hearing or inquiry; 3) Refusing an employer’s order to perform an action that the employee believes violates the law. N. D. C. C. § 34 -01 -20
WHY ARE YOU TELLING ME THIS? Because it can save you! Documentation is vital ◦ You can show an employee was not satisfactorily performing their job duties ◦ You can show your decision was not based on any participation in a protected activity ◦ Paper is better evidence than your memory ◦ Can eliminate he said/she said situations
What should I take away from this presentation? 1) “At-will” employment has a lot of limitations 2) You can violate employment law without doing anything “evil” 3) Violating employment law has consequences 4) You can still fire people BUT before you do: ◦ Contact an attorney ◦ Explain the situation, tell your attorney why you want to terminate the employment ◦ Tell your attorney everything (even the bad stuff) ◦ Follow your attorney’s advice
Questions?
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