1. HUMAN RESOURCE ISSUES IN INVESTIGATIONS OF STAFF SEXUAL MISCONDUCT July 14, 2005 Professor Susan Carle

2. Difference between being an employer vs. a law enforcement officer Garrity – this case involves employees’ rights against criminal self-incrimination This presentation focuses on employment law issues, not criminal law protections i.e., the law that affects managers’ conduct toward employees

3. What is your context? Public employer Private employer Unionized employees Nonunion employees

4. Legal Rules Provide Tools

5. What is your situation? Proactive: developing, instituting, enforcing policies Responding to allegations: investigation, discipline, termination

6. Public employer Provisions of federal and state Constitution apply – 1 st Amendment - freedom of association – 4 th Amendment – privacy, surveillance – 5 th, 14 th Amendment – due process, equal protection Balancing test – weighing intrusion on employee’s constitutional rights against weight of employer’s interest

7. Freedom of association No contact policies – Courts of appeals have generally upheld such policies in light of security interests involved – There are a couple of contrary, “outlier” trial court decisions

8. Employer Interests that Can Support No Contact Policies Interests in on-the-job performance Interests in off-the-job conduct that implicates officer’s fitness for duty Interests in public reputation of correctional institution or probation office

9. What’s okay? Termination of state corrections officer married to man subsequently incarcerated in state prison system for felony Termination of probation officer for buying car at a dealership where probationer under her supervision worked (though was not involved in the sale) Termination of probation officer who exchanged letters with a man she had previously dated who was serving life sentence in prison outside her jurisdiction Denial of probation officer’s request to attend baptism of child of longstanding friend whose older son had been placed on probation

10. Courts upheld employers in all these cases But, standards of analysis differ (e.g., rational basis, intermediate scrutiny) Still unsettled, evolving area of law; strong trend is to uphold no contact policies

11. Privacy Reasonable expectation of privacy Reasonable expectations change with employment context Correctional officers in secure institutional settings vs. community corrections

12. Surveillance Notice Methods Random vs. targeted – Level of suspicion none, individualized or reasonable suspicion, probable cause Objective decisionmaking Balance between intrusiveness and employer need

13. Most reported cases involve contraband Search of employee lockers, cars employees choose to park in lots, pat down searches as employees enter institution, all okay Body cavity searches require at least reasonable suspicion

14. Hypo. One You suspect that a corrections officer is having an improper relationship with an inmate who works as an office typist in an isolated office within the facility You want to conduct surveillance of the office Can you do so? If so, how should you go about it?

15. Proactive Steps: Employee Surveillance Provide general notice about employee surveillance methods Restrict surveillance methods to those reasonably necessary Use even-handed procedures for selecting surveillance targets

16. Contractual obligations Employment manuals Collective bargaining agreements

17. Investigations Union representation – Weingarten rights Criminal vs. employee discipline

18. Discipline Grievance and arbitration Due process rights under state law

19. Hypo. Two Nurse who works for independent contractor that provides health services for corrections institution allegedly engaged in improper sexual conduct with offender How do you proceed?

20. Labor context: Arbitration Both sides have right to legal representation and to present evidence Employer may not interfere with right of employees to testify at arbitration hearing Arbitrator is not required to follow finding of misconduct in another forum, even a criminal court

21. Hypo. Three at an arbitration hearing on the termination of a corrections officer for having sexual relations with an offender, a fellow officer testifies that he never saw any evidence that his colleague engaged in improper conduct on his shift Based on all the evidence, you believe the fellow officer is lying to cover up for his friend What should you do?

22. Hypo. Four You operate under a collective bargaining agreement that does not mention staff sexual misconduct as grounds for first-time termination You want to include sexual misconduct as grounds for termination How do you deal with your union on this issue?

23. Proactive Steps in Union Context Run training sessions, which include clear statement of disciplinary rules Give union policy statement on disciplinary procedures for staff sexual misconduct Review collective bargaining agreement for inconsistent terms; request modifications if necessary

24. Termination and Resignation Employee References Defamation Allegations of Discrimination

25. Law suits Defamation Discrimination

26. Defamation “Qualified privilege” protects representatives of employers who give out allegedly defamatory information for legitimate business purpose Applies to former employee reference checks, provided that employer can show – Lack of malice – Good faith – Belief in truth of statement made

27. Hypo. Five An acquaintance from another state corrections agency calls you for a reference on a former employee who resigned after being charged with improper fraternization with an offender What do you say?

28. Proactive steps Establish and adhere to policy limiting dissemination of information about employee discipline Limit dissemination to “Need to Know” basis Implement policies protecting employee personnel files Implement consistent policy on reference checks

29. Discrimination Requires showing employee was treated differently than others similarly situated Pretext: is the employer’s reason the REAL reason?

30. Hypo. Six An offender has alleged that a corrections officer with an excellent 10 year employment record propositioned her for sex. You disbelieve her allegations, based on the officer’s reputation and work record Last month, a different offender accused a relatively new corrections officer of improper sexual conduct How do you proceed in each case?

31. Consistency makes good policy Training supervisors Minimizing managerial discretion Treat like cases alike Consistently enforce disciplinary rules Maintain up-to-date personnel files Keep contemporaneous documentation of all infractions, even minor ones Protect employment information from general discussion

32. Other Topics Psychological Testing Polygraph Testing

33. Psychological Testing No legal bar to using under federal law, EXCEPT as it may indicate discrimination – e.g., asking about religious views – Check with your legal counsel about state law bars In public sector, privacy concerns re: intrusive questions may also be issue – Recent case holds that requiring prison research analyst to submit to psychological testing did not implicate 4 th Amendment rights against unreasonable intrusion (Greenawalt)

34. Employee Polygraph Protection Act Many states have rules limiting or prohibiting polygraph testing; check with your legal counsel Federal law prohibits most polygraph testing in private sector but exempts public employees