1. 1 Lecture 3 Legal Rights of Public Employees Introduction to Public Personnel Administration Spring 2014

2. 2 Today’s Learning Objectives Understanding the unique legal environment of public personnel management: Public employees’ legal rights The changing perspectives on public employees’ legal rights -The private sector model ( ~1950s) -The individual right approach (1950s~1970s) -The public service model (1970s~ )

3. 3 Public employment and legal rights: United States The Bill of Rights (1791) -The First Amendment: freedom of speech and association (political activities of public employees) -The Fourth Amendment: the right of privacy -The Fifth Amendment: procedural due process -The Fourteenth Amendment (1868): expanding the rights of due process to employees in state governments From “private sector model” to “public service model”

4. Public employment and legal rights: Republic of Korea Relatively less developed rights of public employees Procedural due process: The right to a hearing (legal protection over public employment) Limited freedom of association: Labor union Equal Employment Opportunity (EEO) for public employment -Gender equality of public employment -Credits for military service 4

5. 5 The Private Sector Model ( ~1950s) No constitutional rights to public employment and the “doctrine of privilege”: public employment as a privilege The fear for excessive power of government over public employees Protecting constitutional rights of public employees

6. 6 The Individualized Right Approach (1950s~1970s) The doctrine of privilege discarded by the early 1970s and the “doctrine of substantial interest” gave public employees constitutional rights While this approach afforded public employees expansive constitutional rights, but still lacked clarity

7. 7 The Public Service Model (1970s~ ) Balancing three competing concerns -The public employee or applicant’s constitutional rights and interests -The government’s interest as an employer in having efficient and effective workforce -Public’s interest in the operation of public administration and government The key tenet: “the government’s interest in achieving its goals as effectively and efficiently as possible is elevated from a relatively subordinate interest when it acts as a sovereign to a significant one when it acts as employers.”

8. 8 Procedural Due Process “Property interests are established when the government promises that following the successful completion of a probationary period, dismissal will occur for just cause only.” Employment as a property interest of public employees Reforms in Georgia and Florida: removing relative security of tenure and shifting their employment to an “at will” basis Right to a hearing: right to appeal to decision in 30 days after notice (Korean government)

9. 9 Freedom of Speech and Expression Employee’s constitutional rights to “nonpartisan free speech” under the First and Fourteenth Amendments Balancing between the interest of employees as citizens to comment on matters of public concern and that of the public employer in providing services to the public The right to whistle-blow

10. 10 Freedom of Association The right of public employees to associate or not to associate specific organizations (political parties and labor unions) Public employees may not be required to support or join a particular political party as a condition of employment or to receive beneficial consideration in various employment decisions.

11. Equal Protection of the Laws Equal protection -United States: The Civil Rights Act of 1964 or the constitutional law regarding public employees’ equal protection rights -Korea: Equal Employment Opportunity (EEO) legislation of 1989; Gender Discrimination Prevention and Relief Act of 1999; Women’s Development Act of 1995; establishment of the Ministry of Gender Equality (2001) 11

12. 12 Equal Protection of the Laws The standards of equal protection review -The distinctions between individuals should be based on a rational basis. -Strict scrutiny should be applied “when government classifications limit fundamental freedoms or rights or force distinctions based on race or national origin.” Preferential affirmative action vs. equal protection -Preferences based on race/ethnicity and sex are constitutionally appropriate? -Reverse discrimination against nonminorities ??

13. 13 Political Activities of Public Employees: United States The Hatch Act of 1939: A US federal law of prohibiting federal employees from engaging in partisan political activity. The 1940 Amendment of Hatch Act: extended coverage to state or local employees The 1974 Federal Campaign Act: permitted state and local employees to engage in certain partisan political activities The Hatch Act Reform Amendments of 1993: authorized OPM to regulate political activities of public employees and restrict categories of federal employees who are permitted to participate in certain partisan political activities

14. Political Activities of Public Employees: Republic of Korea 국가공무원법 ( 제 65 조 ) -Prohibited association with political parties -Not permitted to engage in certain political campaign activities for or against political parties or candidates 14

15. 15 Implication for HRM in Public Service High costs of government (e.g., the cost for potential law suits and that for legal representation, legal insurance, and/ or indemnification) -Solution? Outsourcing or privatizing public personnel functions accompanied by the constitutional control over the behavior of contractors in the outsourcing arrangements The call for “constitutional literacy” among higher level federal employees to avoid violations of constitutional rights of public employees