EMPLOYMENT LAW FOR SOCIAL SERVICES ATTORNEYS Fundamentals of Social Services Law November 16, 2004...
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EMPLOYMENT LAW FOR
SOCIAL SERVICES ATTORNEYS
Fundamentals of Social Services Law
November 16, 2004Diane M. Juffras
Institute of Government
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Types of County Employees• Regular County
Employees – appted by County Manager
• Sheriff, Register of Deeds “have the exclusive right to hire, discharge and supervise” employees in their offices
Commissioners must appoint:• Clerk• County Attorney• Tax Collector• Deputy Tax Collector• County Assessor
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Types of County Employees• Regular County
Employees – appted by County Manager
• Sheriff, Register of Deeds appt. own employees
• Commissioner appointees
• Competitive Service Employees– Dept. of Social
Services – Health Dept.– Mental Health– Emergency
ManagementAll hired/fired by their directors
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The Hiring and Firing of County Social Services Employees
• G.S. 108A-12: County board of social services appoints county DSS director. Dismissal of director governed by SPA (Ch. 126).
• G.S. 108A-14: County DSS director has exclusive authority to hire and fire county DSS employees -- See In re Brunswick County, 81 N.C.App. 391 (1986) – but s/he must do so in accordance with the SPA [G.S. 126-5(a)(2)b.].
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Personnel PoliciesCounty Board of Commissioners has ultimate personnel policy authority
– Create & abolish offices, positions, depts.
– Determine pay schedules, benefits
– May grant property rights in employment
– Adopt personnel policies re: leave, holidays, drug-testing
Managers and “independent” department head are responsible for administration of compensation programs and personnel rules.
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Drug testing is a SEARCH within the meaning of the 4th Amendment.
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Balancing Test:
Nature and quality of intrusion on individual’s 4th Amendment privacy interests
v.
Importance of the government’s interest
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Discipline and Discharge under the State Personnel Act
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The State Personnel Act: Discipline and Discharge for Just Cause Only
• Performance
– Unsatisfactory Job Performance
– Grossly Inefficient Job Performance
• Unacceptable Personal Conduct
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Four Types of Disciplinary Actions
• Written Warning
• Suspension w/o Pay
• Demotion
• Dismissal
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Procedures: Written Warnings
• Explicitly characterize as warning
• Specific issues leading to warning
• Dates, others involved, consequences of
poor performance/conduct to dept.
• Specific improvements required
• Time frame for improvements
• Consequences of failure to improve
• Cannot be appealed
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Suspending, Demoting, Dismissing an SPA Employee Requires a Pre-Disciplinary Conference !!!
Follow 25 NCAC 1I.2300 to the letter!!!
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Four Exceptions to the Employment-at-Will Rule
•Statutory Exceptions
•First Amendment Exceptions
•Public Policy Exception
•Property Right Exception (the State Personnel Act)
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A Property Right in Employment
An employee with a legitimate claim to continuing employment, because of – state statute
(e.g., the State Personnel Act)– local ordinance
has a “property right” that is protected by the 14th Amendment of the U.S. Constitution.
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If a property right exists, so what?• Fourteenth Amendment guarantees
that no state shall “deprive any person of life, liberty, or property, without due process of law.”
• This means that:
– employee gets “notice and an opportunity to be heard” BEFORE any adverse employment action, and
– employee entitled to impartial review of any adverse employment action.
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Notice
NOTICE OF PROPOSED ACTION1.In writing2.Setting forth specific acts and
omissions that form the basis for proposed action Include specific dates, times,
locations
3.Evidence of employer
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PROPOSED TERMINATION FOR UNSATISFACTORY JOB
PERFORMANCE• You failed to see the expected
number of clients in a day.
• You failed to complete your client notes in a timely manner.
• You were insubordinate.
• You have had excessive absences.
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Opportunity to Be Heard
PRE-DISMISSAL “HEARING”1.Opportunity for employee to
respond to charges in notice2.Determination of whether
there are reasonable grounds to believe charges are true.
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Due Process Requirements
IMPARTIAL REVIEW (Local Appeal Process)
1.Prior involvement does not disqualify official.
2.No disqualifying personal bias.
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The Appeals Process• Decision by County DSS Director• Follow agency/county grievance procedure
– Exception for charges of discrimination
• Appeal to Office of Administrative Hearings Recommended decision by ALJ
• ALJ decision reviewed by State Personnel Commission– Must explain disagreement w/ ALJ w/ specificity
• SPC decision advisory to County DSS Director– If claim is discrimination, SPC decision binding
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Final County DSS Director (or SPC discrimination) decision may be appealed to Superior Court
Ct of Appeals
NC Supreme Ct