Justice Administration Police, Courts, and Corrections Management

Justice Administration Police, Courts, and Corrections Management

Ninth Edition

Chapter 3

Rights of Criminal Justice Employees

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Overview (1 of 4)

Law and litigation can arise out of federal and state constitutions, statutes, administrative regulations, and judicial interpretations and rulings.

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Overview (2 of 4)

Fair Labor Standards Act: Provides minimum salary and overtime provisions for both public and private sector employees.

Title VII of the Civil Rights Act of 1964: Prohibits discrimination in the hiring process, working conditions and the unlawful provision of benefits based on race, color, religion, sex, and national origin.

Also extends to “hostile work environment.

Equal Pay Act: Prevents sex-based discrimination in wages and benefits when men and women do similar work

The Pregnancy Discrimination Act of 1978: Prohibits unequal treatment of women because of pregnancy or related medical conditions (e.g., nausea).

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Overview (3 of 4)

Age Discrimination in Employment Act: Generally prohibits the unequal treatment of applicants or employees based on their age, if they are age 40 years or older, in regard to hiring, firing, receiving benefits, and other conditions of employment.

Americans with Disabilities Act of 1990: The goal of this legislation is to remove barriers that might prevent otherwise qualified individuals with disabilities from enjoying the same employment opportunities as persons without disabilities.

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Overview (4 of 4)

Section 1983: This major piece of legislation is the instrument by which an employee may sue an employer for civil rights violations based on the deprivation of constitutional rights.

Remedies:

Tort actions

Contractual claims

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Recruitment and Hiring

Tests are commonly used to determine intelligence, emotional suitability and stability, physical agility, and character.

Drug tests are frequently used as well.

The critical question for these tests is whether they validly test the types of skills needed for the job.

A companion concern is whether the tests are used for discriminatory purposes or have an unequal impact on protected groups.

A number of private companies provide valid, reliable examinations for use by the public sector.

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Disparate Treatment

Treating people differently because of their age, gender, sex, or other protected status is illegal.

Federal equal opportunity law prohibits the use of selection procedures for hiring or promotion that have a discriminatory impact on the employment opportunities of women, Hispanics, blacks, or other protected classes.

Bona fide occupational qualifier:

In certain situations, a rationale for discriminating on the basis of a business necessity; there may be a “business justification” for hiring policies even though they have a disparate impact.

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How Old is “Too Old” in Criminal Justice?

ADEA held that age should not be a BFOQ because youthfulness is not a guarantee of public safety.

A physical fitness standard would better serve the purpose of ensuring the ability to perform the tasks of the position.

Congress exempted federal employees from application of the ADEA.

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Criminal Justice and Affirmative Action

Affirmative action:

Actions or policies that favor persons or groups who have suffered from discrimination, particularly in employment or education

Quotas have been at the center of legal, social, scientific, and political controversy for more than four decades.

However, the reality of affirmative action is substantially different.

Affirmative action plans give preferred treatment only to affected groups when all other criteria are equal.

The legal question that arises from affirmative action is: When does preferential hiring become reverse discrimination?

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Property Rights in Employment

The Fourteenth Amendment provides in part:

“…nor shall any State deprive any person of life, liberty, or property without due process of law.”

Courts have established the legal view that public employees have a property interest in their employment. (as opposed to the old view that employees served “at will“).

Employees are entitled to both a pre-termination hearing and a post-termination notice, as well as an opportunity to respond.

However, a probationary employee has little or no property interest in employment.

Policymaking employees are generally exempted from such protections.

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Pay and Benefits

Fair Labor Standards Act (“the administrator’s worst nightmare”):

Establishes minimum wages and requiring overtime compensation in the private sector as well as state and local governmental employees.

Has had a major impact on criminal justice agencies.

Amendments added in 1974 extended its coverage to state and local governmental employees.

The FLSA comes into play when overtime salaries must be paid.

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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 U.S.C. 652.

Nonetheless, criminal justice work is often dangerous, involving the use of force and often occurring in locations outside governmental control.

In one case, the Court specifically stated that an employee could not bring a Section 1983 civil rights action alleging a workplace so unsafe that it violated the Fourteenth Amendment’s due process clause.

But what if a police department, with knowledge that its new police vehicles have defective brakes, fails to take immediate action for fear that its officers will refuse to drive the vehicles?

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Constitutional Rights of Criminal Justice Employees (1 of 3)

Freedom of Speech and Association:

Many criminal justice executives have attempted to regulate what their employees say to the public.

Executives develop and rely on policies and procedures designed to govern employee speech.

The SCOTUS held that: “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.”

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Constitutional Rights of Criminal Justice Employees (2 of 3)

There are two basic situations in which a police regulation may be found to be an unreasonable infringement on the free speech interests of officers:

When the action is overly broad.

When free speech limitations may be found to be unreasonable in the way in which the governmental action is applied.

The most protected type of speech is political speech.

However, governmental agencies may restrict the political behavior of their employees—and the U.S. Supreme Court has upheld the constitutionality of laws that do so.

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Constitutional Rights of Criminal Justice Employees (3 of 3)

Hatch Act:

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