Category Archives: Public Sector Employment

White House Takes Executive Action To Ban the Box For Federal Agencies

On November 2, 2015, President Obama announced new executive action to “ban the box” by requiring federal agencies to wait until later in the hiring process to inquire about an applicant’s criminal history. In addition, the President is supporting efforts in Congress to impose similar ban-the-box requirements on the entire federal government as well as federal contractors.

According to the press release, “the President is directing the Office of Personnel Management (OPM) to take action where it can by modifying its rules to delay inquiries into criminal history until later in the hiring process.” This action is intended to allow those with prior criminal histories to receive fair consideration for employment in the federal government.

The President’s executive action follows a number of states and municipalities that have adopted similar “ban the box” requirements. In Minnesota, ban-the-box legislation took effect in January of 2014. A number of other states have similar laws.

Takeaway: The recent executive action to ban the box for federal agencies is reflective of a broader trend towards requiring employers to wait until later in the hiring process to inquire about an applicant’s criminal history.

Can Employers Require Job Applicants To Pay For the Costs Of Background Checks?

Generally no – Minnesota law provides that, unless specifically authorized by law, no employer or prospective employer may “require an employee or prospective employee to pay for expenses incurred in criminal or background checks, credit checks, or orientation.”  Minn. Stat. § 181.645.

The primary exception for the rule is for teachers.  Minnesota law allows a school hiring authority to require any individual who applies to work in a school to pay for the cost of his or her legally required background check with the Bureau of Criminal Apprehension.  Minn. Stat. § 123B.03, subd. 1.

Takeaway:  Unless specifically authorized by law, employers in Minnesota may not require applicants to pay for the costs of their background checks.

Is Employee “Free Speech” A Constitutional Right?

“Free Speech,” or “First Amendment Rights,” is a fundamental concept of modern society, but in the employment context, it has its limitations.

First and foremost, an employee of a private corporation cannot assert that restrictions on the employee’s verbal and non-verbal conduct violate his or her First Amendment rights.  That is for the simple reason that the First Amendment restricts governmental action, not the actions of private individuals or private corporations.  A public employer needs to observe the public employer’s First Amendment rights since it is a government entity.  But for a private employer, the First Amendment has no application.

Only if an employee’s verbal or non-verbal conduct impacts other statutory protections does his or her freedom of speech become an intelligible concept in the employment context.  For example, the NLRB has made clear that private employer restrictions on employee criticism of employers are limited as potential restrictions on the right to protected, concerted activity guaranteed employees under the National Labor Relations Act.  Another example of a “free speech” issue for a private employer would be a restriction on what an employee can or cannot say in response to a suspected illegality or violation of company policy since that could implicate Whistleblower Act protections.  In some cases, certain restrictions on speech could raise discrimination concerns.  But the common variety complaints that an employee may have about employer workplace restrictions on personal discussions, political talk, or other opinions do not fall under the category of constitutionally-protected First Amendment rights.

Takeaway:  When an employer is confronted with an employee complaining that his or her “First Amendment” or “Constitutional Free Speech” rights have been violated, unless the employer is a public employer, the employee has not raised a legal right.  Only if the verbal or non-verbal speech restrictions at issue tie into other employee legally-protected conduct does the concept of “free speech” have any workplace relevance.  If it comes up, the employer should exercise its “right to counsel” and talk it through with an employment lawyer.

Executives Moving From The Private to the Public Sector: In Some Ways a Different World

When a senior executive level employee switches jobs between the private and public sectors, what are some of the changes to the norms of employment?

One key difference is the public nature of employment in the public sector – chiefly because public funds are involved.  Salaries and severance payments are public in the public sectors (for example, the controversy du jour about increases in Minnesota state department head salaries) as are contracts and summary performance evaluations.  The State Open Meeting Law governs performance evaluations and investigations.  The State auditor can have access to public employee accounts and expenditures.  Under many circumstances, the factual bases for a disciplinary action or resignation that occurs while a disciplinary matter is pending are public data.  The public nature of public employment can sometimes come as unwelcome news to an executive used to the private world of the private sector.

Other public sector differences are caps on severance payments for public employees.  Highly-compensated employees (earning more than approximately $72,000 a year) are limited to six month’s compensation in severance, all others are limited to one-year severance.  There are exceptions for sick leave and continued insurance payments.  It is safe to say that public sector higher level executives need to have lower severance pay expectations than in the private sector.

But there are also protections in the public sector not found in private employment chiefly due to the application of constitutional rights.  An example would be rights associated with a disciplinary investigation.  A public sector executive has Loudermill due process rights to know and respond to the reasons for a proposed disciplinary action.  He or she has the Tennessen right to know the potential use of all data that can come out of a disciplinary investigation.  There is the Garrity right to be assured that a compelled statement cannot be used in a criminal proceeding.  Paid administrative leaves are more common as the slower public employment investigation process works out.   There are also provisions in the Data Practices Act protecting non-public private personnel data from disclosure and allowing for rebuttal data.  In short, for any public sector executive in difficult straits there may well be better internal protection than given a private sector executive.

Takeaway:  If you are a senior executive employee in the private sector considering a move to the public sector, it would be a good idea to sit down with legal counsel and get a firm idea of what norms will change in the employment relationship.

An Important Change In Minnesota Public Employer Labor Law

In 2014, the Minnesota Legislature amended the Public Employment Labor Relations Act (PELRA) to establish the Public Employment Relations Board (“PERB”) to investigate, hear and resolve unfair labor practice (“ULP”) charges and complaints.  Previously PELRA ULPs were heard by the district courts, chiefly under injunctive relief motions.

In addition to creating PERB, PELRA was amended to include the following with respect to concerted activity:

Concerted Activity.  Public employees have the right to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection.  Minn. Stat. § 179A.06, subd. 7.

The establishment of PERB and the concerted activities provision helps to bring Minnesota public employer labor law in line with federal labor law procedures and protections for private sector employees.  For discussion of concerted activity in federal labor law and its impact in the private sector, click here.

Significantly, the amendments also include employees of charitable hospitals and charitable hospitals as public employees and public employers for the purposes of filing and processing unfair labor practice charges.  Minn. Stat. § 179A.03, subd. 14 (a)(8); Minn. Stat. § 179A.03, subd. 15(c); Minn. Stat. § 179A.135.

The basic functions of Minnesota PERB are:

  • Receiving and investigating unfair labor practice charges in the public sector;
  • Where appropriate, issuing complaint on unfair labor practice charges;
  • Appointing a hearing officer to hear complaints issued;
  • Holding hearings on complaints issued;
  • Where appropriate, ordering relief for violations found;
  • Where necessary, petitioning the district court for enforcement of the PERB’s orders;
  • Where appropriate, seeking temporary judicial relief upon issuance of a complaint alleging an unfair labor practice;
  • Hearing appeals of BMS decisions relating to unfair election practices.

Takeaway:  Minnesota PERB will change the process and pace for resolution of ULP charges for all employees of public employers covered by PELRA.  Currently, while a PERB Board is appointed, the rulemaking process is still in early days, so the activation of PERB may still not be for several months.  Ultimately, the amendment will likely help unify public employee and private sector employee labor law processes and protections.