Public employers share many of the same or similar concerns and issues as private employers; however, there are some notable differences between the two. Public employers exist in a variety of areas and roles. For instance, the federal government, state and local governments, state and local agencies, schools and housing authorities, to name a few. This chapter outlines certain issues and areas of the law that public employers should consider.
Regulations from the Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) require that certain federal contractors and subcontractors with 50 or more employees prepare written affirmative action programs. The OFCCP requires federal contractors to obtain, when possible, gender race and ethnicity data on applicants and employees. The most reliable method is for the contractor to track data of responses by self-identification by using tear-off sheets, post cards or short forms to request the information. The invitation to self-identify should always state that providing information is voluntary. For a more detailed discussion of the OFCCP regulations for federal contractors and subcontractors, see Chapter 01: Recruiting and hiring.
The Employee Polygraph Protection Act (EPPA) prohibits most private employers from using lie detector tests for pre-employment screening. The EPPA does not apply to federal, state and local governments or any political subdivision of a state of local government. Therefore, public employers can use lie detector tests for pre-employment screening. For more discussion of the EPPA, see Chapter 01: Recruiting and hiring.
All employers are required to report to their state New Hire Reporting Program certain information about employees who have been newly hired, rehired or have returned to work within 20 days of the hiring, rehiring or returning to work. The required information includes all of the following:
For a more detailed discussion of reporting new hires, see Chapter 01: Recruiting and hiring.
Public employees in both federal and state government are typically covered by civil service systems that protect them from unjust discharge. Some employees may also acquire property rights in their jobs that entitle them to additional protections under the due process clause of the Fourteenth Amendment to the U.S. Constitution. These additional rights under the Constitution do not apply to private employees.
Title VII of the Civil Rights Act (Title VII) prohibits employment discrimination based on race, color, sex, religion and national origin and covers public and private employers who have 15 or more employees. Discriminatory actions prohibited under Title VII include, but are not limited to hiring, terminations, transfers, demotions, negative referrals and harassment.
Section 1981 of the Civil Rights Act (Section 1981) protects against race discrimination and retaliation for race discrimination complaints. Section 1981 regulates both public and private action.
The federal Genetic Information Nondiscrimination Act (GINA) was passed by Congress to prohibit discrimination in health coverage and employment based on genetic information. GINA prohibits covered employers from using genetic information for hiring, firing or promotion decisions and for any decisions regarding terms of employment. Title I of GINA pertains to health coverage while Title II pertains to employment protections. Title II applies to private employers and state and local government employers who have 15 or more employees, to employment agencies, to labor unions and to joint labor-management training programs.
For a more detailed discussion of discrimination issues, see Chapter 10: Discrimination.
The Americans with Disabilities Act (ADA) is the most comprehensive federal civil rights statute protecting the rights of people with disabilities. The ADA applies to all private employers with 15 or more employees, including part-time employees, public employees, labor organizations and employment agencies. The ADA does not apply to employers with fewer than fifteen employees, the executive branch of the federal government, private membership clubs, churches, parochial schools or Native-American reservations.
Title I of the ADA requires employers to provide qualified individuals with disabilities and equal opportunities to benefit from the full range of employment opportunities available to non-disabled individuals. Specifically, the ADA prohibits employers from discriminating against persons with disabilities who are able to perform the essential functions of a job, either with or without reasonable accommodation. This protection extends to all areas of the employment relationship, including the application process, testing, hiring, training, assignments, evaluations, disciplinary actions, compensation, promotions, leave, benefits and all other terms, conditions and privileges of employment.
The Pregnancy Discrimination Act (PDA) applies to both private and public employers with 15 or more employees, labor organizations and employment agencies. The PDA prohibits employers from discharging or otherwise discriminating against employees on the basis of pregnancy. The law requires pregnant women to be treated the same as men or non-pregnant women whose ability or inability to work is due to a non-pregnancy related illness or disability. The PDA does not require better treatment for women. For a more detailed discussion of the PDA, see Chapter 12: Discrimination.
The Fair Labor Standards Act (FLSA) establishes standards for a minimum wage rate, maximum number of hours, overtime pay, child labor and record-keeping. In general, the FLSA requires employers to pay a minimum wage for all hours worked and prohibits work In excess of 40 hours in a workweek unless the employers pays the employee a premium of one and one-half times the employee’s regular rate of pay for those hours in excess of 40. Public employers are covered under the FLSA, subject to certain exceptions. Public agencies covered by the FLSA include: the government of the United States, the government of a State or political subdivision thereof, any agency of the United States, a State or a political subdivision of a State and any interstate governmental agency. These exceptions include higher overtime eligibility levels and longer work periods in which to calculate overtime for law enforcement and fire protection employees. Additionally, elected officials and their personal staff members and appointees, as well as members of the legislative branch, are excluded from the FLSA’s coverage of public agencies.
Public employees are able to engage in voluntary sporadic or occasional work for their employer in a different capacity without those hours being combined for overtime purposes.
In general, federal, state and local government employers, with the agreement of their employees, can give compensatory time off at time and one-half rather than paid cash for overtime. For instance, if an employee worked 60 hours in a week, he could get 30 hours of compensatory time off instead of 20 hours of overtime pay. Law enforcement, fire protection and emergency response personnel and employees engaged in seasonal activities may accrue up to 480 hours of comp time. There is a 240-hour cap on compensatory time for all other types of work. When an employee’s employment is terminated, he or she must be paid for all remaining compensatory time at his or her current rate of pay.
For a more detailed discussion on the FLSA, see Chapter 08: Wages and hours.
The Family and Medical Leave Act (FMLA) allows eligible employees to take up to 12 weeks of unpaid leave to recover from illness or pregnancy or to care for sick family members. Employers covered by the FMLA are required to grant such leave and reinstate the employee to the same or an equivalent position upon timely return from FMLA leave. All public employers and educational agencies are covered under the FMLA, regardless of whether they meet the private employer threshold requirements (50 or more employees for 20 or more calendar workweeks). For a more detailed discussion on the FMLA, see Chapter 15: Family and medical leave.
In addition, Executive Order 13706 Final Rule requires certain federal contractors to provide employees with up to seven days (56 hours) of paid sick leave annually, including paid leave for family care. The Rule applies to new contracts and replacements for expiring contracts with the federal government awarded or solicited after January 1, 2017.
The Bill of Rights guards against unreasonable searches and seizures by the federal government and the Fourteenth Amendment applies these privacy protections to state and local governments. Together, the Bill of Rights and the Fourteenth Amendment protect public sector employees (postal workers and state employees) from unjustified invasions of privacy by federal, state and local government employers.
For a more detailed discussion on privacy rights, see Chapter 27: Privacy rights.
State and federal employees have access to their employment records. Employees of federal agencies can, on request, obtain information about themselves contained in any system of records maintained by a federal agency. Persons having custody of public records must, at reasonable times, make these records available to anyone wishing to inspect them. Some information or records may be exempt under statute statutes.
For a more detailed discussion on personnel files, see Chapter 19: Personnel files.
The Uniformed Services Employment and Reemployment Rights Act (USERRA) establishes certain rights for employees of private employers who serve in the uniformed services. The USERRA prohibits private employers from discriminating or retaliating against employees based on their uniformed service and ensures that those employees receive certain benefits and reemployment rights and limited protection from termination upon return from military leave. The USERRA applies to all employers in the United States, including private companies, tax-exempt entities and federal, state or local governments and agencies.
For a more detailed discussion on military leave, see Chapter 16: Military leave.
The Consolidated Omnibus Budget Reconciliation Act (COBRA) is a federal law that requires that most employers extend group health plan privileges to employees who would otherwise lose coverage. Governmental entities and religious organizations are not subject to COBRA.
For a more detailed discussion on COBRA, see Chapter 24: Health insurance continuation coverage.
The U.S. Supreme Court ruled in 2013 that individuals in legal same-sex marriages are required to be treated as married under federal law.
For more detailed discussion on benefits, see Chapter 13: Benefits.
The Health Insurance Portability and Accountability Act (HIPAA):
For a more detailed discussion on HIPAA, see Chapter 28: Health insurance portability and privacy.
Employers with federal contracts and federal grantees must take several steps related to controlled substances in the workplace. The employer must do at least the following:
For a more detailed discussion on drugs and alcohol in the workplace, see Chapter 39: Drugs, alcohol and tobacco.
Policies and Forms
Chapter 35: Public employers