Expert answer:Bethel University Employee and Family Related Issu

Solved by verified expert:Please see the below the question that I would like to have answered. This assignment must consist of 300+ words with 2 Scholarly Sources, the below reference must be used as one source. **NO PLAGIARISM WHATSOEVER**Textbook and Reference is attached below:Nigro, L. G., & Kellough, J. E. (2014). The new public personnel administration. (7th ed.). Boston, MA: Wadsworth Cengage Learning.***Question: What should your employer be doing to be more responsive to the family-related needs of employees?
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Chapter
EIGHT
Public Employees: Rights
and Responsibilities
S
M
I
lthough
A
Tpublic personnel administration has much
in common with its private sector counterpart, especially regardH associated with such functions as job
ing management techniques
­evaluation, job pricing, and
, performance appraisal, there are also fun-
damental differences in practices between the two sectors. Many of
those differences are grounded in the political environment of public
management. Public personnel
A practices are open to public scrutiny,
and partisan issues and questions of political control are always on the
D
agenda. Other differences, however, stem from the unique legal enviA management. This chapter will focus on
ronment of public personnel
those differences and the M
ways in which the law makes public personnel management distinct. We will see that many of the most important
legal distinctions have their roots in Supreme Court interpretations
of the U.S. Constitution.2In that regard, we will consider the rights
of public employees under the First, Fourth, Fifth, and Fourteenth
0
Amendments and the balance between those rights and employees’
0 will be considered as well, with a focus
­responsibilities. Statutory issues
on laws that have restricted
8 political participation by public workers.
T
S Public Employment
The Constitution and
A hallmark of democracy is that governmental authority is limited. Indeed, many provisions of the U.S. Constitution are specifically designed to restrain the power of government. Several of those

209

9781305472334, The New Public Personnel Administration, Seventh Edition, Nigro/Kellough – © Cengage Learning. All rights reserved. No distribution allowed without express authorization.
210
Chapter EIGHT
restrictions are found in the first ten amendments, known collectively
as the Bill of Rights, which were originally ratified in 1791 to ­better
constrain the federal government. Here we find limitations including constraints on the government’s authority to restrict freedom of
speech and association (First Amendment), limitations on the government’s right to conduct searches and seizures (Fourth Amendment),
and restrictions on the government’s power to deny persons life,
­liberty, or property without due process of law (Fifth Amendment).
In ­addition, the Fourteenth Amendment, ratified in 1868, requires
states to provide due process of law, limits state authority to deny any
person equal protection of the laws, and has been interpreted to apply
other provisions of the Bill of Rights to the states. Numerous other
important limitations on government authority are also found in the
Constitution and especially in the first 10 amendments, but we highS earlier because they each have a direct
light the limitations articulated
impact on the daily operationMof contemporary public personnel administration. Not only do these constitutional stipulations limit the
I
government’s authority to direct
the behavior of persons within its
jurisdiction in general, but they
also
restrict the manner in which the
T
government as an employer may
H direct its employees.
Stated another way, public employees retain important consti, the public service, and as a result, the
tutional rights when they enter
actions available to personnel managers in the pubic sector are limited
in significant ways. In large part, however, this condition is the product of legal rulings that have A
emerged since the 1950s. As late as the
mid-1950s, the employer-employee
relationship in the public sector
D
was dominated by the employer,
who
was free to impose many condiA
tions on workers that they had to accept to keep their jobs. HistoriM employees did not have any rights in
cally, the courts had ruled that
the job that were based on the Constitution. Thus, in fixing the terms
of ­employment, the public employer could and often did deny work2
ers civil and political rights universally
enjoyed by those in the private
sector. Positions could be offered
0 or denied on nearly any terms the
government devised (Rosenbloom
0 & Bailey, 2003, p. 30).
For example, from this point of view, public employees had
8 proceedings. As the Supreme Court
­virtually no rights in termination
reasoned in Bailey v. Richardson
T (1951), “Due process of law is not
applicable unless one is being deprived of something to which he has
S employees could be dismissed witha right.” As a consequence, public
out explanation or any hearing before termination. The classic declaration in 1892 in which Justice Holmes stated for the majority, “The
petitioner may have a constitutional right to talk politics, but he has
no constitutional right to be a policeman,” summarizes this position
9781305472334, The New Public Personnel Administration, Seventh Edition, Nigro/Kellough – © Cengage Learning. All rights reserved. No distribution allowed without express authorization.
Public Employees: Rights and Responsibilities
211
well (McAuliffe v. Mayor of New Bedford, 1892), and significantly,
Holmes’s point of view held sway for the next 60 years, during which
time the scope of judicial review of personnel actions taken by managers was very limited. As one observer wrote in 1955, “from the assertion that there exists no constitutional right to public employment,
it is also inferred that there can be no constitutional right in public
employment. The progression is that, since there are no fundamental
claims in employment, employment is maintained by the state as a
privilege” (Dotson, 1955, p. 87).
Beginning in the 1950s, however, fundamental questions were
raised regarding this “doctrine of privilege.” If there was no right to
public employment, under what circumstances could it legitimately be
denied? Could it be denied because an employee favored particular
social policies, such as racial integration, or failed to conform to local
norms of behavior such asS
attending church regularly (Rosenbloom &
Bailey, 2003, p. 30)? Under
M the leadership of the Warren Court, the
federal judiciary began issuing a series of decisions that ended the doctrine of privilege and in itsI place developed a standard that required a
balancing of the interests T
of public employees, the government, and
the public in general. As that
H new standard began to emerge, administrative scholar David Rosenbloom noted that under the new doctrine,
,
“whenever there is a substantial
interest, other than employment by
the state, involved in the discharge of a public employee, he can be
removed neither on arbitrary grounds nor without a procedure calcuA legitimate grounds exist” (Rosenbloom,
lated to determine whether
1971, p. 421). In this manner,
the courts narrowed management’s
D
discretion by extending certain
constitutional
protections and guaranA
tees to public employees at all levels of government.
M
Procedural Due Process
2
0 the most important changes was brought
For public workers, one of
about by a series of Supreme
0 Court decisions beginning in the 1970s
establishing that they may have property and liberty interests in their
8 under the due process clause found in the
jobs that warrant protection
Fifth and Fourteenth Amendments
to the Constitution. As defined
T
by the Court, property interests are established when the government
S successful completion of a probationary
promises that following the
period, dismissal will occur for just cause only. With such a promise,
public employees have a reasonable expectation of continued employment provided there is a need for the work to be completed and they
are performing satisfactorily. Of course, one of the pillars of traditional
9781305472334, The New Public Personnel Administration, Seventh Edition, Nigro/Kellough – © Cengage Learning. All rights reserved. No distribution allowed without express authorization.
212
Chapter EIGHT
merit systems in government is relative security of tenure that rests
on the idea that government will terminate employees only for just
cause. As a result, in traditional merit systems, public employees typically have a property interest in employment and may be removed
only when procedural due process is followed. Of course, it is entirely
up to the government to make or withhold the kinds of promises that
establish a property interest. As we have noted, recent reforms in the
states of Georgia, Florida, and elsewhere have removed such promises
from many public employees in an effort to shift their employment to
an at-will basis where termination could proceed for any reason provided it was not specifically prohibited by law.
Liberty interests are triggered when the termination of a public
employee is accomplished in such a way that the employee’s reputation is damaged and his or her freedom to find future work is limited
S whenever the government employer
as a result. This issue can arise
reports negative or otherwiseMunflattering information regarding an
employee’s conduct or behavior on the job as a reason for terminaI
tion. Under such circumstances,
which presumably could be common, termination cannot proceed
T without due process. In addition,
it is important to note that the
H liberty interest will be present even
for probationary employees or others, such as at-will workers, who
have no property interest in ,their jobs. It is incumbent upon public
employers, therefore, to either avoid communicating information that
could potentially damage the reputations of terminated employees, or
A proceedings, due process requirebe certain that in all termination
ments are followed.
D
In a series of cases including
A Board of Regents v. Roth (1972),
Perry v. Sinderman (1972), Arnett v. Kennedy (1974), and Bishop v.
M the conditions under which property
Wood (1976), the Court defined
and liberty interests could exist and what standards of due process applied under specific conditions. In an additional case, Cleveland Board
2 the Supreme Court reiterated that
of Education v. Loudermill (1985),
it was up to the government0to decide whether or not to establish a
property interest for public employees,
but that once such an inter0
est was established, procedural due process was necessary and it was
8 what the Constitution required in
the job of the Court to determine
terms of due process. At a minimum,
the Court reasoned, due process
T
would require that an employee be notified of potentially improper
S
work behavior before termination
and that he or she be afforded a
hearing before termination to provide the employee an opportunity to
respond to the allegations made. The purpose of procedural due process is to ensure fairness or justice within the organization regarding
dismissal procedures.
9781305472334, The New Public Personnel Administration, Seventh Edition, Nigro/Kellough – © Cengage Learning. All rights reserved. No distribution allowed without express authorization.
Public Employees: Rights and Responsibilities
213
Freedom of Speech and Expression
In the area of freedom of expression, the Court has struggled to
­carefully balance the interests of public employees and their ­employers.
In Pickering v. Board of Education (1968), the Court ruled that although public employees could not constitutionally be compelled to
give up a right “they would otherwise enjoy as citizens to comment
on matters of public interest,” the state did have an interest 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.” In other words, what should be balanced in
each case is the interest of public employees as citizens to comment on
matters of public concern and that of the public employer in providing services to the public.
Since Pickering, theSCourt has applied this balancing test to a
number of cases, often with
M the minority expressing the opinion that
the majority had tilted in the wrong direction. Overall, the Burger
I to uphold the employer’s position more
and Rehnquist Courts tended
often than the employee’s,
T and they were reluctant to entertain anything but cases involving what they saw to be fundamental (sweeping) constitutional issues.H
Nonetheless, the Court provided relatively
clear guidelines regarding, freedom of speech for public employees in
Rankin v. McPherson in 1987. The case involved a 19-year-old probationary employee (Ardith McPherson) working in the office of a
ATexas. Immediately after the assassination
local constable (Rankin) in
attempt on President Ronald
D Reagan, McPherson was overheard remarking to a colleague, “If they go for him again, I hope they get
A 1987, p. 381). When the comment was
him” (Rankin v. McPherson,
reported to Constable Rankin,
M he immediately fired McPherson. The
Court ruled that McPherson’s First Amendment right to freedom
of speech had been violated, and in doing so, it articulated the man2
ner in which such cases should
be reviewed. Specifically, the Court
noted that even though McPherson
was a probationary employee, she
0
retained substantive constitutional rights. The Court then reasoned
0
that when a public employee’s
speech is on a matter of public concern (which was true in McPherson’s
case), and when the speech is
8
not disruptive to the discipline and normal operation of the workplace
T
(which was also true in McPherson’s case), it would be constitutionS
ally protected.
In 2006, the Court further defined the boundaries of protected
speech by public employees. The case was Garcetti et al. v. Ceballos
(547 US 410). Mr. Ceballos was a supervising deputy district attorney
in Los Angeles County, California who, following a review requested
9781305472334, The New Public Personnel Administration, Seventh Edition, Nigro/Kellough – © Cengage Learning. All rights reserved. No distribution allowed without express authorization.
214
Chapter EIGHT
by defense counsel in a criminal case determined that the police had
misrepresented facts in an affidavit used to obtain a search warrant.
Mr. Ceballos reported this conclusion to his superiors and prepared a
memorandum outlining his concerns. Nevertheless, the District Attorney’s Office proceeded with the prosecution. During the trial, Ceballos was called by the defense, but the trial court rejected the challenge
to the warrant. In the weeks following these developments, Ceballos claimed that he was subjected to a series of retaliatory actions by
his superiors at the District Attorney’s Office. Ceballos subsequently
filed suit in U.S. District Court claiming, among other things, that
his First Amendment rights had been violated. In a 5 to 4 opinion,
the Court ruled that “when public employees make statements pursuant to their official duties, the employees are not speaking as citizens
for First Amendment purposes, and the Constitution does not insuS employer discipline” (547 US 410, at
late their communications from
421). The majority argued that
Mthis ruling protected employers’ rights
to direct and discipline employees acting in their official ­capacities. In
I
the opinion, the Court determined
that, “Proper application of our
precedents thus leads to theTconclusion that the First Amendment
does not prohibit managerialHdiscipline based on an employee’s expressions made pursuant to official responsibilities” (547 US 410, at
,
424). Thus, for a public employee’s
speech to be protected, it must be
made in the employee’s role as a citizen commenting on a matter of
public concern, not as an employee acting in his or her official capacA not interfere with efficient operation
ity. In addition, the speech must
of the workplace.
D
Freedom of Association
A
M
The right of public employees to associate or refrain from associating
with specific organizations is 2
also protected by the First Amendment.
0
For example, as discussed in Chapter
7, public employees have a right
to not join a union, but where
the
law
permits collective bargaining,
0
the government employer may designate a union as the exclusive bar8 set of public workers and may require
gaining agent for a designated
nonunion employees to pay T
a “fair share” of union dues to support
the union’s bargaining activities (Abood v. Detroit Board of EducaS
tion, 1977). Nonunion employees
may not be compelled, however,
to contribute money to support a union’s partisan political activities
­(Chicago Teachers Union v. Hudson, 1986).
It is also well established that public employees may not be required to support or join a particular political party as a condition of
9781305472334, The New Public Personnel Administration, Seventh Edition, Nigro/Kellough – © Cengage Learning. All rights reserved. No distribution allowed without express authorization.
Public Employees: Rights and Responsibilities
215
employment or to receive beneficial consideration in various employment decisions. Two cases, Elrod v. Burns (1976) and Branti v. Finkel
(1980), involved employees who were dismissed from their jobs when
the partisan leadership of their offices changed and they were deemed
to be of the “wrong” political party. The Court settled the issue by
declaring that dismissal for partisan reasons would only be permissible
when the government could show that political party affiliation was
essential to performance of the duties associated with the job (Branti
v. Finkel, 1980). Later, in Rutan v. Republican Party of Illinois (1990),
the Court held that the same standard would apply to other personnel
actions beyond termination including promotions, transfers, layoffs,
recall after layoffs, and hiring (Daniel, 1992).
S
M
The Fourth Amendment to the U.S. Constitution prohibits government from conductingI “unreasonable searches and seizures.” In
T
criminal cases, where the government
is operating to enforce the law,
judicial warrants based on
probable
cause,
or in cases where a warH
rant is not practical, a reasonable suspicion that criminal activity has
,
occurred are required before
searches and seizures are conducted
The Right to Privacy
(Rosenbloom & Bailey, 2003, p. 35). But what is required when the
government as an employer seeks to search public employees or their
A the Supreme Court ruled in O’Connor
work surroundings? In 1987,
v. Ortega that public employees
retain Fourth Amendment rights,
D
­especially when the employee
has
a reasonable expectation of privacy
A
(Rosenbloom & Bailey, 2003, p. 35). Consequently, searches of an
M
employee’s office, desk, cabinets,
or lockers would be permissible only
when there is a reasonable suspicion that the employee has engaged in
wrongdoing. Routine or unannounced suspicionless searches of those
2 be permitted. Searches of an employee’s
facilities or items would not
clothes or personnel possessions
would also be subject to the same
0
constraint.
0
In the 1980s, significant attention was focused on this issue as
8 implemented anti-drug programs that
the government increasingly
required the random compulsory
drug testing of public employees. In
T
1989, in National Treasury Employees Union v. Von Raab, the Court
S
upheld a drug-screening program
that required urinalysis tests of all
Customs Service employees who sought a transfer or promotion to
positions having a direct involvement in drug interdiction or requiring the incumbent to carry firearms. The Court reasoned that the
government’s interest in maintaining a workforce involved in those
9781305472334, The New Public Personnel Administration, Seventh Edition, Nigro/Kellough – © Cengage Learning. All rights reserved. No distribution allowed without express authorization.
216
Chapter EIGHT
activities that is free from the influence of illegal drugs outweighed
the employees’ privacy interest. As a consequence, public employees
who work in jobs related to public safety and especially those who may
carry firearms may be subjected to drug tests even when there is …
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