EMPLOYMENT LAW FOR

SOCIAL SERVICES ATTORNEYS

Fundamentals of Social Services Law

November 16, 2004Diane M. Juffras

Institute of Government

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

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

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.].

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.

Drug testing is a SEARCH within the meaning of the 4th Amendment.

Balancing Test:

Nature and quality of intrusion on individual’s 4th Amendment privacy interests

v.

Importance of the government’s interest

Discipline and Discharge under the State Personnel Act

The State Personnel Act: Discipline and Discharge for Just Cause Only

• Performance

– Unsatisfactory Job Performance

– Grossly Inefficient Job Performance

• Unacceptable Personal Conduct

Four Types of Disciplinary Actions

• Written Warning

• Suspension w/o Pay

• Demotion

• Dismissal

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

Suspending, Demoting, Dismissing an SPA Employee Requires a Pre-Disciplinary Conference !!!

Follow 25 NCAC 1I.2300 to the letter!!!

Four Exceptions to the Employment-at-Will Rule

•Statutory Exceptions

•First Amendment Exceptions

•Public Policy Exception

•Property Right Exception (the State Personnel Act)

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.

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.

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

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.

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.

Due Process Requirements

IMPARTIAL REVIEW (Local Appeal Process)

1.Prior involvement does not disqualify official.

2.No disqualifying personal bias.

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

Final County DSS Director (or SPC discrimination) decision may be appealed to Superior Court

Ct of Appeals

NC Supreme Ct