Justice Admin Final

4 things law and litigation may arise out of

federal and state constitutions

statutes

administrative regulations

judicial interpretations and rulings

Fair Labor Standards Act

minimum salary and overtime provisions for public/private sector employees

Title VII Civil Rights Act of 1964

prohibits discrimination in hiring process, working conditions and the unlawful provision of benefits based on race, color, religion, sex, and national origin (also extends to hostile work environments)

Equal Pay Act

prevents sex based discrimination in wages and benefits when men and women do similar work

Pregnancy Discrimination Act of 1978

prohibits unequal treatment of women b/c of pregnancy or related medical conditions (ex. nausea)

Age Discrimination in Employment Act

general prohibits 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

goal of legislation to remove barriers that might prevent otherwise qualified individuals with disabilities from enjoying the same employment opportunities as persons without disabilities

Section 1983

legislation that is the investment by which an employee may sue an employer for civil rights violations based on the deprivation of Constitutional rights

2 remedies that may affect public sector employees

Tort actions

Contractual claims

5 thing hiring tests commonly used to determine…

intelligence, emotional suitability and stability, physical agility, character, and drug use

Hiring tests cannot be…

discriminatory or have unequal treatment of protected groups

Critical question for hiring tests

whether they validly test types of skills needed for the job

A companion concern for tests is whether…

they 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 (ex. physical agility, background check)

Disparate treatment

illegal treating of people differently b/c of age, gender, sex, or other protected status

The Federal Equal Opportunity law prohibits the use of…

selection procedures for hiring or promotion that have a discriminatory impact on employment opportunities of women, POC, or other protected classes

Bona fide occupational qualifier (BFOQ)

rationale for discriminating on the bases of a business necessity in certain situations (ex. color blind, deaf)

“Business justification”

explanation for hiring policies that may have a disparate impact

If a disparate practice does not tie into the BFOQ…

its illegal, cannot be discriminated

Age Discrimination in Employment Act (ADEA)

held that age should not be a BFOQ b/c youthfulness is a 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 over the ADEA

Who did Congress exempt from application of ADEA?

federal employees

Supreme Court and ADEA ruling

another agency cannot adapt same standards without showing an agency specific need

Affirmative action

actions or policies that favor persons or groups who have experienced discrimination, particularly in employment or education

Quotas for affirmative action

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

Affirmative action plans only give preferred treatment…

to affected groups when all other criteria are equal (can be used in a series of qualifications), cannot completely discount another group

Two step test of affirmative action

must act in a remedial way to correct past imbalances OR better mirror the community

Reverse discrimination

argument that preferential affirmative action policies have resulted in unfair treatment for members of majority groups

14th amendment and property rights

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

4 elements of due process claim under Section 1983:

1. Person acting under color of state law

2. Deprived an individual

3. Of constitutionally protected property

4. Without due process of law

Courts have considered the legal view that public employees…

may have a protected right to their job, instead of being fired at will like in the past

Property right in employment

positions that individuals have for which there must be some demonstrated cause for termination (as opposed to an individual in an “at will” position)

3 things employees entitled to before firing

pre termination hearing

post termination hearing

post termination notice and opportunity to respond

Probationary employees

have little or no property interest in employment

Two types of employees exempt from protections

policymaking and probationary

Fair Labor Standards Act (FLSA)

establishes minimum wages and requires overtime compensation in the private sector and to state/local government employees

The FLSA comes into play when…

overtime salaries must be paid, employees on stand by must be paid

Disparate treatment in pay and benefits litigated under…

Title VII or statutes like Equal Pay Act or Equal Protection Clause

Where are criminal justice employee benefits addressed? (3)

Title VII, the ADEA, and the Pregnancy Discrimination Act

Who is exempted from coverage of the Occupational Safety and Health Act (OSHA)?

federal, state, and local governments

Criminal justice work is often dangerous in sense that…

it involves use of force and often occurs in places outside governmental control

Liability for an employees…

injury, disability, or death is a critical concern for CJ agencies

Civil tort actions in these cases can have…

a devastating impact on governmental budgets

Many CJ 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

Supreme Court on freedom of speech, held…

“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”

State limits on freedom of speech

may impose restrictions on employees that it cannot impose on the citizenry, but restrictions must be reasonable

2 situations where police rules may unreasonably restrict officers’ free speech…

when the action is overly broad

when limitations are unreasonable → governmental action is applied

Most protected type of speech is…

political speech

Political behavior of their employees may be…

restricted by governmental agencies, a right upheld by Supreme Court

Hatch Act

limits partisan political activities by government employees and forbids fundraising for candidates, canvasing votes, public endorsement or opposition of candidates

Hatch Act applies to all employees EXCEPT…

president and vice president

If an agency accepts federal funding…

Hatch Act is applied and authority figures may not accept campaign donations for subordinates if running for office

It is a violation of employees 1st amendment rights to discharge them from…

non-policymaking positions solely on basis of political party affiliation

The 1st amendment protects both political and…

non-political associations

Police departments commonly prohibit…

officers from associating with known felons

Police administrations and constitutional authority

may regulate employees’ off-duty associational activities, but regulations must not be overly broad (ex. adultery outside of work may be punished)

Can social media be regulated?

Yes b/c posts reach a lot of people and can reflect negatively on the organization (ex. racist George Floyd post resulted in termination)

4th amendment protects…

“the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures”

4th amendment application to officers

typically applies when at home or off duty in the same manner is applies to all citizens

Police officers can be compelled to…

cooperate with investigations of their behavior, such as appearing in a lineup or searches of department equipment and lockers

Garrity v. New Jersey

court held info coerced from an officer could not be used against them at their criminal trial b/c the 5th amendment forbids use of coerced confessions

Under Garrity, its proper to fire an officer who…

refuses to answer questions if informed that answers will not be used later in a criminal proceeding

Majority of lower courts have held that…

an officer can be required to submit a polygraph examination

If an officer is required to confess or answer questions in a policy evaluation…

their confession cannot be used against them in criminal proceedings b/c its a compelled statement

Criminal vs. administrative investigations

criminal take precedent b/c you can use evidence from criminal in administrative, but not vice versa

Garrity vs. NJ is…

IMPLIED b/c if boss asks you a question, you are expected to answer honestly

It is generally assumed that in taking a CJ position, you agree to…

work odd shifts and abide by various unpleasant conditions

Personnel with least seniority…

generally work the most undesirable shifts

The job and one’s religious beliefs may sometimes be…

in direct conflict, employee may be forced to choose between the two

An alternative to accepting agency demands on religion, some may…

litigate the work-religion conflict

Title VII of the Civil Rights Act prohibits…

religious discrimination in employment

Accommadations for religion

can sometimes be made but must be reasonable

Sexual impropriety in CJ work can range from…

casual flirting while on job to romantic involvement with foreign agent trying to learn delicate matters of national security

Two extremes of sexual incidents…

officers posing nude in magazines’

major departments being compelled by mayors to recruit officers for sexual orientation

Departments try to maintain high standards of…

officer conduct

Officers may litigate sexual cases if…

they believe their right to privacy was intruded upon

Residency requirements

many governmental agencies specifying that all or certain employees must live within city or county of employment

3 possible justifications for residency requirements

1. employees should become familiar with and be visible in jurisdiction

2. employees should live where they are paid by taxpayers to work

3. employees must live within certain proximity of work in order to respond quickly in event of emergency

Residency requirement exception arguments

areas where housing is unavailable or exceptionally expensive

Moonlighting

second job in addition to one's regular employment, agencies often place limitations on amount or kind of outside work employees can perform

Rationale against moonlighting…

if outside employment seriously interferes with keeping the (police and fire) departments fit and ready for action at all times

Police empowered to use…

lethal force when justified

Misuse of firearms may be prevented by…

agency policies regulating use by officers both on and off duty

Regulations on use of firearms must be…

reasonable

3 issues addressed by firearm regulations

1. requirements for safeguarding

2. guidelines for carrying off duty

3. limitations on when it may be fired

Courts and juries becoming harsher in dealing with…

officers who misuse their firearms

Reasoning for alcohol and drug limitations

employees must be able to perform their work with a clear, unaffected head

Police department and prison manuals often specify that…

no alcoholic beverages be consumed within a specified period prior to reporting for duty

3 most controversial drug testing issues

1. whether testing should be permitted with no indication of drug problem

2. whether testing methods are reliable

3. whether a positive test proves on-the-job impairment

2 important cases for drug testing

National Treasury Employees Union v. Von Raab

Skinner v. Railway Labor Executives’ Association

Skinner v. Railway Labor Executives’ Association (1989)

upheld mandatory drug and alcohol testing for railroad workers after accidents or violations, allowing suspicionless testing in safety-sensitive jobs to protect public safety.

National Treasury Employees Union v. Von Raab (1989)

upheld drug testing without suspicion for U.S. Customs employees in safety-sensitive roles (like carrying firearms) to protect public safety

Purpose of procedural safeguards for officers

to protect against what officers perceive as arbitrary infringement on their rights

Peace Officers Bill of Rights (POBR)

legislation mandating due process rights for officers who are subject of internal investigations that could lead to disciplinary action

3 common provisions of POBR state legislation

written notice, right to representation, polygraph examination

Written notice

officer must be given written notice of the nature of the investigation, summary of alleged misconduct, and name of investigating officer

Right to representation

officer may have an attorney or representative of their choosing present during any phase of questioning or hearing

Polygraph examination

officer may refuse to take a polygraph examination and is found to be telling the truth

Employee Polygraph Protection Test

employees cannot be required to take a polygraph test as part of employment → federal state and government employees exception