Des Moines Office
2700 Grand Avenue, Suite 111
Des Moines, Iowa 50312-5213
Phone: 515-244-0111
Fax: 515-244-8935
Quad Cities Office
Northwest Bank Tower
100 E. Kimberly Road, Suite 400
Davenport, Iowa 52806-5944
Phone: 563-445-2264
Fax: 563-445-2267
Adel Office
1009 Main Street
P. O. Box 99
Adel, Iowa 50003-1454
Phone: 515-993-4545
Fax: 515-993-5214
PUBLIC EMPLOYMENT LAW
Hugh J. Cain
Brent Hinders
Hopkins & Huebner, P.C.
2700 Grand Ave., Suite 111
Des Moines, IA 50312
www.hopkinsandhuebner.com
or www.hhlawpc.com
1
Pre – Termination Hearing
2
Pre-Termination hearing
• Public employees with a property right to
continued employment are entitled to a
pre-termination hearing.
- Board of Regents v. Roth, 408 U.S. 564
(1972)
• If fail to give pre-termination hearing, then
violation of 42 U.S.C. § 1983
3
When Does a Property Right Exist
• Contract
• State law right- state law defines
when “right” exists
• Reputational injury
4
When Does Property Right
Exist?
• Not in “at-will” employment
• Contract right exists in most Collective
Bargaining Agreements (CBA)
• Look for limitation on at will
employment
• “Just” or “Proper” cause to fire
sometimes hidden in management rights
clause
5
When Does a Property Right Exist
• Check to see if employee is subject to
stand alone employment contract
6
When Does a Property Right Exist
• State Law
• Iowa Code §331.321(3) – County
• Iowa Code §372.15 - City
7
When Does a Property Right Exist
• Iowa Code §331.321(3)- County
Except as otherwise provided by state law, a person
appointed as provided in subsection 1 may be removed by
the board by written order. The order shall give the reasons
and be filed in the office of the auditor, and a copy shall be
sent by certified mail to the person removed who, upon
request filed with the auditor within thirty days of the date of
mailing the copy, shall be granted a public hearing before the
board on all issues connected with the removal The hearing
shall be held within thirty days of the date the request is filed
unless the person removed requests a later date.
• Engineers, conservation board, board of health, veteran’s
commissioner, zoning officials, general assistance director
8
When Does a Property Right Exist
• Iowa Code §372.15 – City
• Except as otherwise provided by state or city law, all
persons appointed to city office may be removed by the
officer or body making the appointment, but every such
removal shall be written order. The order shall give the
reasons, be filed in the office of the city clerk, and a copy
shall be sent by certified mail to the person removed who,
upon request filed with the clerk within thirty days of the
date of mailing the copy, shall be granted a public hearing
before the council on all issues connected with the removal.
The hearing shall be held within thirty days of the date the
request is filed, unless the person removed requests a later
date.
9
When Does a Property Right Exist?
• Reputational injury
• Results if firing is for a reason that would
damage reputation (i.e., theft, incompetence)
• Eddings v. City of Hot Springs, 323 F.3d 596 (8th
Cir.2003) (In order to state a claim against a
state employer for deprivation of a protected
liberty interest in a public employee’s
reputation defamation during the course of
termination must be shown).
10
Veteran’s Preference
11
Who is a Veteran?
• Honorably discharged from armed forces who
served during Vietnam, Lebanon, Granada,
Panama, or Persian Gulf (after 08/02/90)
• Former members of the reserve forces who were
honorably discharged after serving at least 20
years in reserve forces
• Iowa Code §35.1(2)(a).
• Veterans have preference for appointment over
applications of no greater qualifications §35C.1
12
Removal Protection
• Remove only for incompetency or
misconduct, after hearing upon due notice
upon stated charges.
• Right of review by Certiorari.
• Iowa Code §35C.6.
13
Misconduct and Incompetency
• Collins v. Iowa Liquor Control Com., 110 N.W.2d
548 (Iowa 1961)
• A person who habitually fails to perform his
work with a degree of skill or accuracy usually
displayed by other persons employed in such
work is incompetent.
• Substantial evidence showing is required.
14
Misconduct and Incompetency
• Edwards v. Civil Service Com., 287 N.W. 285
(Iowa 1939)
• Police officer guilty of misconduct not entitled
to Veteran’s Preference
• Misconduct found when officer violated
department rules that prohibited intoxication,
unbecoming or disorderly conduct, negligent
of duty, and maltreatment of any person
(officer, allegedly intoxicated, got into fight
with person while off duty at a racing event)
15
Veteran’s Preference
• Failure to give hearing is a 42 U.S.C. §1983
violation
• Winter v. Cerro Gordo Conservation Bd.,
925 F.2d 1069 (8th Cir. 1991)
• Couch v. Wilkinson, 939 F.2d 673 (8th Cir.
1991)
16
Veteran’s Preference and Interplay
with Other Laws
• Civil service can trump Veteran’s Preference.
• Andreano v. Gunter, 110 N.W.2d 649 (Iowa
1961) (noting that special civil service statute
prevails over general Veteran’s Preference
statue if the two cannot be reconciled).
• Collective Bargaining Agreement can trump
Veteran’s Preference.
• Kern v. Saydel Cmty. Sch. Dist., 637 N.W.2d
157 (Iowa 2001); Devine v. Des Moines, 366
N.W.2d 580 (Iowa 1985)
17
Abolishment- Veteran’s Preference
and Civil Service
• Under both Veteran’s Preference law and Civil
Service statute, municipalities are not obligated
to keep employees who have rights under either
if it is decided, in good faith, either because of
financial necessity or the dictates of good
business management, that the employee’s
position should be abolished.
• Wood v. Loveless, 58 N.W.2d 368(Iowa 1953)
18
Salary Continuation for Military
Members
Public employees, other than temporary
employees, who are called to active duty
service in national guard or reserves, or who
are inducted into military service, are
entitled to a leave of absence and pay for
the first 30 days.
I.C.A. 29A.28(1)(a)
19
Iowa Whistleblower Act
(Iowa Code §70A.28 and .29)
Prohibits discharge or other adverse employment action
against a government employee for:
 Failing to inform a person that the employee made a
disclosure of information permitted by this section, or
 For a disclosure of any information by an employee to a
member or employee of the general assembly, the office
of citizens’ aide, a state official or political subdivision
official, or a disclosure of information to any other public
official or law enforcement agency, IF
 The employee reasonably believes the information
evidences a violation of law or rule, mismanagement, a
gross abuse of funds, an abuse of authority, or a
substantial and specific danger to public health or safety.
 Iowa Code §70A.28(2) & .29(1).
20
Public Employees First
Amendment Rights to Speech
• First Amendment of the U.S. Constitution:
• “Congress shall make no law…abridging the freedom
of speech…”
• Pickering v. Board of Ed. Of Township High School Dist.
205, Will Cty., 391 U.S. 563 (1963)
— H.S. science teacher wrote a letter to the editor fo
her local paper which was published.
— In her letter, the teacher, who did not mention either
her job or give her position was critical of the
administration’s allocation of funding.
— The teacher, Ms. Pickering, was later terminated for
writing the letter
21
Pickering v. Bd. Of Ed.
• Supreme Court Takes Cert.
• 8-1 Decision
• Pickering Test
• Whether the employee spoke as a citizen on a matter of
public concern?
• If NO, the employee has no First Amendment cause of
action based on the employer’s actions taken in regard
to the speech.
• If YES, the employee may have a cause of action
depending upon –
– Whether the relevant government entity had an adequate
justification for treating the employee differently from any
other member of the general public?
22
Case Law after Pickering
• Mt. Healthy City School District Bd. Of Educ. v.
Doyle, 429 U.S. 274 (1977).
• an employer can escape liability if there were
other legitimate reasons for termination, when
an employee was originally terminated for
engaging in free speech.
23
Case Law after Pickering
(cont.)
• Connick v. Myers, 461 U.S. 138 (1981).
• The Court must balance the substantiality of a public
concern raised by an employee against the need for
the public official to have an efficiently working office
in its determination of whether discipline based on
speech was warranted.
• Public employee speech on “matters only of personal
interest” is generally not protected speech.
• Speech is public concern when it addresses “a matter
of political, social, or other concern in the community.”
24
Case Law after Pickering
(cont.)
• Rankin v. M Pherson, 483 U.S. 378 (1987)
• (5-4 decision) A public employer “may not discharge
an employee on a basis that infringes that employee’s
constitutionally protected interest in freedom of
speech.”
• Waters v. Churchill, 511 U.S. 661 (1994)
– (7-2, 4 separate opinions, 4 judge plurality) “The
government as employer. . . Has far broader powers
than the government as a sovereign” and can regulate
employee’s speech and behavior in the interest of
department disruption.
25
Balance Between Employee and
Employer Interests
• Second Pickering Factor: Balancing “the
interests of the [employee] as a citizen, in
commenting upon matters of public
concern and the interest of the [public
employer], as an employer in promoting
the efficiency of the public services it
performs through its employees.
26
Balance Between Employee and
Employer Interests (cont.)
• Factors for the Court to consider:
1. The need for harmony in the office or workplace;
2. Whether the government’s responsibilities require a close
working relationship to exist between the plaintiff and coworkers when the speech in question has caused or would
cause the relationship to deteriorate;
3. The time, manner, and place of the speech;
4. The context in which the speech arose;
5. The degree of public interest in the speech; and
6. Whether the speech impeded the employee’s ability to
perform his or her duties.
- Belk v. City of Eldon, 228 F.3d 872, 878 (8th Cir. 2000) (citing
Pickering).
27
Balance Between Employee and
Employer Interests (cont.)
• “The Pickering balance is flexible, and the weight to be
given anyone factor depends upon the specific
circumstances of each case.” Shands v. City of Kennett,
993 F.2d 1337, 1344 (8th Cir., 1993).
• “The burden of caution employees bear with respect to
the words they speak will vary with the extent of
authority and public accountability of the employee’s
role entails.”
• If an employee serves a “confidential, policymaking, or
public contact role”, the employee’s speech is more likely
to affect the effective functioning of the public employer
than that of a rank-and-file employee. Rankin v.
McPherson
28
Garcetti, et al. v. Cellos, 547 U.S. 410
(2006)
• An Assistant District Attorney in Los Angeles County was
“punished” by supervisors by being transferred and
demoted after he testified for the defense in a Motion to
set aside a Warrant. Significantly in this case, Ceballos’
testimony was based on a report he authored as part of
his job as a case screening D.A. in the course of his
employment.
29
Garcetti (cont.)
• In holding for the employer in this case the Supreme
Court stated:
• “when public employees make statements pursuant to
their official duties, the employees are not speaking as
citizens for First Amendment purposes, and the
constitution does not insulate their communications
from employer discipline”
• “restricting speech that owes it existence to a public
employee’s professional responsibilities does not
infringe any liberties the employee might have
enjoyed as a private citizen. It simply reflects the
exercise of employer control over what the employer
itself has commissioned or created.”
30
8th Circuit Law of Workplace
“Disruption” and Pickering
• “The more the employee’s speech reflects matters of public
concern, the greater the employer’s showing must be that the
speech was disruptive before the speech can be punished.”
Sexton v. Martin, 210 F.3d 905, 910 (8th Cir. 2000).
• “To trigger the Pickering balancing test, a public employer
must, with specificity, demonstrate the speech at issue
created workplace disharmony, impeded the plaintiff’s
performance or impaired working relationships. “ Lindsey v.
City of Orrick, Mo., 491 F.3d 892, 900 (8th Cir. 2007)
• Mere allegations and unsupported assertations are not
enough. Shockency v. Ramsey Cty., 493 F.3d 941, 949-50
(8th Cir. 2007)
31
8th Circuit Law of Workplace
“Disruption” and Pickering
• Exceptions to “Harm” requirement:
• Public Safety Employer whose operations require close
working relationships (police and firefighters). Tyler v. City
of Mountain Home, Ark., 72 F. 3d 568 (8th Cir. 1995).
• “When close working relationships are essential to fulfilling
public responsibilities, a wide degree of deference to the
employer’s judgment is appropriate. Furthermore, we do
not see the necessity of an employer to allow events to
unfold to the extent that the disruption of the office and
the destruction of working relationships is manifest before
taking action. We caution that a stronger showing may be
necessary if the employee’s speech more substantially
involved matters of public concern.” Connick, (District
Attorney).
32
Social Media, Pickering, and a
Facebook ‘Like’
• Bland v. Roberts, 730 F.3d 368 (4th Cir. 2013).
• Virginia Sheriff fires several deputies after he is re-elected.
One of the deputies was fired because he ‘liked’ the
Facebook page of Roberts’ opponent.
• Eastern District of Virginia Federal Court rules that a
Facebook ‘like’ is not “a substantive statement that has
previously warranted constitutional protection.”
• Fourth Circuit overturned the decision after a voluminous
discussion of what a Facebook ‘like’ mans states that
“Liking” a Facebook comment generates a “pure speech”
textual statement which is a symbolic expression.
• Deputies’ ‘like’ of opponents Facebook page was the same
as putting a campaign sign in the front yard and is protected
political speech.
33
Job Reference Statute
• Iowa Code §91B.2
• An employer who upon request by employee or
upon request by a person who in good faith is
believed to be representative of potential
employer provides work-related information
about an employee, is immune from civil liability
unless employer acted unreasonably in providing
work-related information.
34
Employer acts Unreasonably if:
• Work-related information violates a civil right of an
employee
• Work-related information is knowingly provided to a
person who has no legitimate and common interest in
receiving the work-related information
• The work-related information is not relevant to the
inquiry made, is provided with malice, or is provided with
no good faith belief that it is true.
• Hlubek v. Pelecky, 701 N.W.2d 93 (Iowa 2005) (Driver
education teacher who resigned after allegations of
sexual harassment doesn’t get new job. He claims this is
because of untrue statements provided by former
employer. Court held no evidence, only speculation)
35
Peace Officer’s Bill of Rights
(Iowa Code Chapter 80F)
• Protects police, fire, EMT, jailers, probation/parole
officer, communication officer, anyone certified by ILEA.
• Purpose is to ensure the fair handling and investigation
of complaints against police officers by:
• Requiring an informant to substantiate a complaint;
• Enabling a charged officer the power to review and to
respond to any investigation of his or her conduct, including
the initial complaint and statements concerning the case;
and,
• Establishing a 10-day appeal window after discipline,
enabling an officer to remain on the job before deciding to
appeal a decision concerning his or her case.
36
Political Considerations
1. §400.16 ICA “all officers and employees of cities
shall be selected . . . Without reference to their
political faith or party allegiance.
2. Political firing
Elrod v. Burns, 427 U.S. 347 (1976)
Brandi v. Finkel, 445 U.S. 507 (1980)
Is party affiliation an appropriate requirement for
effective performance of the public office involved?
Do not necessarily look to the label of “policymaker”
or “confidential”
37
Personnel File Problems
38
Personnel File Problems
• Including disability related information
• Including drug testing information. Iowa Code
§730.5(13).
• Medical records must be kept in a file separate from
personnel file (ADA-42 U.S.C. §12112(d)(3)).
• Medical records protected even if not disabled.
• Cassett v. Minn. Power & Light, 188 F.3d 964 (8th Cir.
1999)
39
FMLA Issues
40
FMLA Issues
• All governments are “covered employers.”
29 C.F.R. §825.104.
• However, not all employees are “eligible employees”
• 50 employees within 75 miles, AND
• 1,250 hours worked and 12 months worked.
29 C.F.R. §825.110(a).
41
FMLA Issues
• Can’t automatically fire after 12 weeks absencemust still go through ADA analysis. 29 C.F.R.
§702(a).
• FMLA policy is supposed to be in your handbook.
29 C.F.R. §825.300.
42
FMLA Issues
• FMLA doesn’t allow for “no fault” attendance
policy.
• 29 C.F.R. §825.220(c).
• Beal v. Rubbermaid, 972 F. Supp. 1216 (S.D.
Iowa 1997).
43
Fair Labor Standards Act
44
Overtime Exceptions –
Law Enforcement/Fire Protection
• Law enforcement and fire protection employees do
not need to be paid at an overtime rate unless they
work in excess of 216 hours in a 28 day time period.
45
Overtime Exceptions –
Compensatory Time
• Public employees of the state or local government can be
paid compensatory time for those hours worked in
excess of 40. That is, they must receive time off at a rate
of one and one half hours for each hour worked in excess
of 40.
• An employee may not accrue more than 240 hours (or
480 hours if the employee is seasonal, public safety, or
emergency response employee).
• A civilian employee or office employee is not a “public
safety employee.” So, secretaries and clerical help
working in law enforcement can only accumulate 240
hours.
46
Overtime ExceptionsCompensatory Time
• After accruing either 240 or 480 hours, an
employee must be paid overtime
compensation in money as opposed to
time off. 29 U.S.C. §207(o).
47
Overtime Exceptions Compensatory Time
• Employees who have accumulated comp time
must be able and allowed to use the comp time
within a reasonable period of asking. 29 U.S.C.
§207(o)
• When an employee quits or is terminated and
has a balance in comp time bank, the employer
must pay the comp time in cash. Id.
48
Overtime Exceptions – Compensatory
Time & Law Enforcement
• There are special rules that apply to law enforcement.
There is a complete exemption from the overtime pay
provisions for “an employee of a public agency who in
any work week is employed in fire protection activities or
any employee of a public agency who in any work week
is employed in law enforcement activities (including
security personnel in a correctional institution), if the
public agency employs during the work week less than 5
employees in fire protection or law enforcement
activities.” 29 U.S.C. §213(b)(20).
• If the employer has 5 or more employees engaged in
such activity, then overtime or comp time must be paid.
49
Overtime ExceptionsCompensatory Time & Law
Enforcement
• An “employee in law enforcement activities” is
either a uniformed or plain-clothed officer who
is empowered to enforce statutes, someone who
has the power to arrest, or someone who is
presently undergoing training. 29 C.F.R.
§553.211(a).
• A dispatcher, clerk or stenographer is NOT a
person who works in law enforcement activities.
50
Portal to Portal Act
• Prior to the Portal-to-Portal Act, the United States
Supreme Court had generally held that the Fair Labor
Standards Act included all time spent in physical or
mental exertion controlled or required by the employer
pursued necessarily and primarily for the benefit of the
employer. Tennessee Coal, Iron, and Railroad vs.
Muscoda, Local No. 123, 321 U.S. 590 (1944).
Subsequently in Armour and Company vs. Wantock, 323
U.S. 123 (1944), the Supreme Court held that there need
not be any exertion by an employee in order to be “hours
worked.” A refraining from other activity was a factor in
the readiness to serve. An employer requiring readiness
to serve is using and employee’s services as much as one
who is actually requiring services.
51
Portal to Portal Act
• The Portal-to-Portal Act eliminated from working
time certain travel and walking time and other
“preliminary” and “postliminary” activities
performed prior or subsequent to the workday
that are not otherwise compensable by contract,
custom or practice. 29 C.F.R. §785.9. However,
Portal-to-Portal exemptions do not apply to
“principal activities.” 29 C.F.R. §785.9(a).
52
Portal to Portal Act
• Principal Activities
• Principal activities include all activities
which are an integral part of the
principal activity. These include those
which are so closely related that they are
indispensable for the performance of the
work. §785.24.
53
Portal to Portal Act
• Principal Activity Examples:
• Meat cutter who must sharpen knives both
before and after the performance of work.
• Factory worker who must perform
maintenance on the machine both before and
after hours worked.
• Chemical plan worker who must wear certain
clothes and change into them and out of them
and to shower at the end of shifts.
54
Portal to Portal Act
• Hours worked
• Hours worked include any time that an
employer suffers or permits an employee to
work. If the employer knows or has reason to
know that an employee is performing work
when he or she is otherwise not being paid,
this is work time. 29 C.F.R. §785.11
55
Portal to Portal Act
• The Department of Labor imposes upon management
the duty to control and to see that work is not preformed
if it does not want work to be performed. The rules
specifically prohibit an employer from “sitting back” and
“accepting the benefits without compensating” the
worker for the performance of work services. The rules
further provide that the “mere promulgation of a rule
against such work is not enough.” Employers must
actually enforce the rule and must make every effort to
do so.
56
Volunteer Activities
• Generally “volunteers” are not “employees.”
• An individual is a “volunteer” if he or she
performs hours of service for a public agency for
civic, charitable, or humanitarian reasons,
without promise, expectation, or receipt of
consideration for services rendered.
57
Volunteer Activities
• The critical caveat is that neither the FLSA nor
DOL regulations allow a public employee to
volunteer his/her services to the public agency
when such hours involve the same type of
service which the individual is employed to
perform. 29 U.S.C. §203(e)(4)(A)(ii), 29 C.F.R.
§553.102(a). Under the DOL rules “same type of
services” means “similar or identical services.”
§553.103(a).
58
Drug Testing
• No drug testing of government employees under
Iowa Code §730.5(1)(e) (governmental entities
not included in definition of “employer”).
• Can drug test CDL holders.
• Can do pre-employment drug test.
• Probable cause drug testing may be permitted.
National Treasury Employees Union v. VanRaals,
489 U.S. 656; Skinner v. Railway Labor Executives,
489 U.S. 602.
59
Civil Service
• County:
• Iowa Code §341A- Deputy Sheriffs
• Removal for specific reasons excess incompetency,
dereliction of duty, dishonesty, etc.
• Pre–termination hearing required.
• City:
• Population over 8,000
• Removal for neglect of duty, disobedience,
misconduct, failure to perform duties.
• Pre-termination hearing is required.
60
Other Constitutional Issues
• 4th Amendment- Public employee has reasonable
expectation of privacy in a workplace
• Reduced by practice, procedure & legitimate regulations
• Balance privacy v. need for supervisor control & efficient
operation of workplace
• Warrant? Not if reasonable search
• 5th Amendment- Cannot use threat to terminate to get
someone to incriminate themselves
• 9th and 14th Amendment- Employees have a right not to
disclose personal matters and an interest in making
important personal decisions outside of governmental
interference
61