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Special Issues in Public Sector Employment Law

I. DISCIPLINE IN PUBLIC SECTOR EMPLOYMENT

Public sector employees-even when not unionized-usually have greater rights in their employment than private sector employees. (The exception is “exempt” employees, which are not discussed further here.)

First, public sector employees threatened with discipline generally must be afforded a “Loudermill” hearing, at which time they can present their side of the story before the employer makes a decision on discipline, meaning prior to the issuance of either discipline or notice of intended discipline. See Loudermill v.Cleveland Board of Education, 470 U.S. 532 (1985).

Second, public sector employees are generally able to appeal discipline through the relevant “merit system protection” or personnel statute and/or regulations. For example, in New Mexico a State employer must show on appeal the there was “just cause” for the discipline. To establish “just cause,” the State Personnel Board must determine both that the employee engaged in misconduct and that the discipline was appropriate and reasonable in light of the misconduct. Just cause to terminate in particular “exists when an employee engages in behavior inconsistent with the employee’s position and can include, among other things, incompetency, misconduct, negligent, insubordination, or continuous unsatisfactory performance.” Selmecski v. N.M. Dept. of Corrections, 2006-NMCA-024, – 15, – 18, 139 N.M. 122, 127-128 (internal quotations and citations omitted).

Although an employer should usually engage in progressive discipline, this is not an absolute requirement and will instead depend on the nature and severity of the misconduct and surrounding circumstances.

Frequently, the government’s merit systems protection or personnel act will provide the exclusive remedy to employees seeking to challenge discipline under the relevant statute. For instance, State employees may not bypass the State Personnel Act’s administrative appeal system to file a lawsuit directly in state court on a theory of breach of implied contract based on that same Personnel Act. NOTE, however, that State employees represented under a collective bargaining agreement may elect to challenge discipline under the State Personnel Act or the negotiated grievance-arbitration procedures. See – 10-9-18(H) of the State Personnel Act.

II. SPECIAL ISSUES IN PUBLIC SAFETY EMPLOYMENT

Federal law authorizes several significant wage and hour exceptions for public safety (e.g., fire and police) personnel.

First, where a city employs less than five people in law enforcement or fire protection activities during the workweek, – 213(b)(20) of FLSA completely exempts those employees from overtime pay requirements. For purposes of this, police and fire are counted separately, and no distinction is made between full-time and part-time employees, or between employees on duty and employees on leave. See 29 C.F.R. – 553.200(b). However, fire and police chiefs higher who engage in fire protection or law enforcement activities are counted for purposes of this provision, although they may normally be exempt from overtime requirements. See 29 C.F.R. – 553.216.

Second, public law enforcement entities not qualifying for the foregoing “complete exemption” may nonetheless qualify for a “partial exemption” under – 207(k) of FLSA. They may be able to utilize an alternative “work period” in which to calculate overtime, from 7 to 28 consecutive days. For example, fire protection personnel are due overtime under such a plan after 212 hours worked during a 28-day period, while law enforcement personnel must receive overtime after 171 hours worked during a 28-day period. For work periods of at least 7 but less than 28 days, overtime pay is required when the number of hours worked exceeds the number of hours which bears the same relationship to 212 (fire) or 171 (police) as the number of days in the work period bears to 28. See 29 CFR – 553.201 (a.k.a., “Section 7(k) exemption”).

Finally, under 29 U.S.C. – 207(o) of FLSA a State agency or local government may be able to give compensatory time at a rate of not less than one and one-half hours for each overtime hour worked, in lieu of cash overtime compensation. However, the employer and employee must reach an agreement to this affect before any work is performed. See 29 CFR- 553.23. Additionally, police and fire protection employees may not accrue more than 480 hours of compensatory time under this provision. Id.

This is another area in which experienced legal counsel should be sought, to minimize potential overtime liability.

III. SPECIAL ISSUES RELATED TO SEVERANCE OF NEW MEXICO PUBLIC SCHOOL EMPLOYMENT

Terms, conditions and procedures related to New Mexico public school employment are provided for in the School Personnel Act, NMSA – ? 22-10A-1 et seq.

School employees, even where unionized, are uniformly employed under individual employment contracts. Typically, these are annual contracts and they are generally offered toward the end of the school year, and must be accepted, signed and returned by a certain date. Id., -21, -23. If employees are not offered a written contract for the ensuing year, meaning an offer of reemployment, they must instead be provided a written notice of termination. Id., -22. “Termination” is the act of declining to reemploy a certified employee for the ensuring school year, or severing the employment relationship with non-certified employee. Id., -2(E).

Employees with fewer than three years of consecutive service can be terminated for any reason the school deems sufficient, and no reason need be provided except upon request of the employee. Id., -24(A). Employees with three or more years of consecutive employment with a school district or a state agency may only be terminated for just cause, meaning a reason rationally related to the employee’s competence or turpitude or the proper performance of his or her duties, but not in violation of the employee’s civil or constitutional rights. Id., -2(G), -24(D). These employees may request a statement of reasons, to which the employee may in turn respond and obtain an informal, unrecorded hearing before the local school board on the employee’s statement. Id., -24(C), (E) – (F).

In contrast to “termination,” “discharge” refers to the act of severing the employment relationship with a certified school employee prior to the expiration of the current employment contract. Id., -2(A). This may only be done for just cause under any circumstances, and will result in rights to discovery followed by a formal, recorded discharge hearing before the School Board. Id., -27

Thereafter, employees who are either terminated pursuant to – -24 or discharged pursuant to – -27 may appeal to an independent arbitrator, the decision of which will be final and binding. Appeals to an arbitrator are de novo and the burden shall b e on the local school board to show by a preponderance of the evidence that at the time notice of termination or discharge was served on the employee the governing authority had just cause to terminate or discharge the employee. Id., -25(D) and (J), -28(D).

For more information on New Mexico labor an employment law, please review all the articles in this series, or see the NM Labor and Employment law page of my website and/or my various blogs. As a professional neutral whose particular emphasis is labor and employment disputes, I strive to keep abreast of legal issues confronting all parties to the labor and employment relationships.

* Adapted with permission from a page of the author’s website,