Joel Dillard PA

Representing Mississippi Workers

The Mississippi Workers' Rights Blog



Why (Most) Government Employees Cannot be Fired At Will

Many people at some time in their life are told - usually by a smug boss - that they can be lawfully fired at any time, without notice, for any reason or no reason. This is not exactly true, but it is not exactly untrue either. The truth is, most employees in the private sector can be fired at will, but the failure to identify a compelling reason opens the employer up to a variety of civil rights claims.

Government employement is a totally different story. Most government employees - including most government employees in Mississippi - have a right to due process, and can only be fired for cause. Indeed, for state-level personnel, the legislature created a Statewide Personnel System which protects all employees of state departments, agencies and institutions as defined herein, with only certain specific exceptions. Miss. Code § 25-9-107. The purpose is to ensure that hiring and firing are based on sound methods of personnel administration and to build a career service in government which will attract, select and retain the best persons. Miss. Code § 25-9-101; see also § 25-9-103. As a result, termination is only for cause. Miss. Code § 25-9-127. Similar civil service protections apply to most other civil servants as well, from the municipality, Miss. Code § 21-31-23; Miss. Code § 21-31-71, to the federal government, 5 U.S.C. § 7513.

In the rare case where a government employee in Mississippi is at will, the statute typically says so explicitly and in no uncertain terms, e.g.: However, any employee which the county administrator is authorized to employ may be terminated at the will and pleasure of the administrator. Miss. Code § 19-2-9(1). As the Fifth Circuit observed, the statutes are usually quite explicit about this: Many Mississippi statutes governing the employment practices of public employers expressly prescribe either a ‘terminable at will’ or a ‘for cause’ standard. Conley v. Board of Trustees of Grenada County Hosp., 707 F. 2d 175, 179 (5th Cir. 1983). At will termination is clearly the exception rather than the rule.

And for good reason. Robust civil service protections are perhaps the key weapon in the ongoing war against corruption and patronage, as a review of our history shows.

The founding fathers understood - as John Adams put it - that when the independence of the civil executive is compromised, it corrupts ‘as necessarily as rust corrupts iron, or as arsenic poisons the human body; and when the legislature is corrupted the people are undone.’ Henry Adams, Civil Service Reform, 109 The North American Review, No. 225, pp. 443-475 (Oct. 1869). The early Presidents maintained a strong but uncodified tradition of executive independence and rational administration over the first half-century or so of the nation. Id. But by the time of the Grant administration, things had definitely changed for the worse, as Adams’ great-grandson Henry observed: the executive which had originally been organized as a permanent system with a permanent and independent existence, and a temporary head, was wholly changed in its nature and as a result, civil servants were terminated for arbitrary or political reasons, resulting in profound corruption through all levels of government. Id. The evils of this system were obvious to all - particularly after President Garfield was assassinated by his own political operative, who was unhappy with the President’s decisions in awarding patronage. This resulted in his successor, President Arthur, signing into law the Pendleton Act of 1883, the first formal step toward preserving an independent corps of civil servants immune from patronage.

Adoption of similar systems in the states was uneven at first - political machines like Tammany Hall exerted enormous pressure to preserve their corruption and forestalled reformers repeatedly over the decades. But when Franklin Roosevelt crushed Tammany Hall by shutting off patronage, and tying the grant of funding to explicit civil service requirements, the fortunes of the reform movement began to turn, and, through slow and incremental progress, good government triumphed. Cf. Gergely Ujhelyi, Civil Service Rules and Policy Choices: Evidence from U.S. State Goverments, 6.2 American Economic Journal 338, 343-45 (2014). By 1950, more than half of states had comprehensive civil service protections. Id. at 347. By 1977, when Mississippi adopted comprehensive merit system protections, it was the 48th state in the nation to do so; robust civil service protections had become the norm. Id. Because patronage was the currency of machine politics, the direct result of the civil service system was to clean up the previously rampant corruption of the machine, from city hall to the state house.

There is a key difference between public and private employment: In the private sector, the at will employment doctrine protects private enterprise against government intervention. Indeed, the private employer’s right to fire employees is itself a property right of the private employer which cannot be deprived without due process. Brock v. Roadway Express, Inc., 481 U.S. 252, 260 (1987). By contrast, in the public sector, at will doctrine does just the opposite, shielding government corruption and arbitrary action. The at will doctrine in public employment explicitly countenances arbitrary action by government. That is a fundamental difference.



The First Amendment Free Speech Rights of Government Employees

It is illegal for a government employer to retaliate against a government employee for engaging in constitutionally protected free speech, like running for office or speaking out on public issues to the newspaper. Pickering v. Board of Ed. of Township High School Dist. 205, Will Cty., 391 U.S. 563 (1968). But not all speech is protected. The only speech which is protected is when the government employee spoke as a citizen on a matter of public concern. Anderson v. Valdez, 845 F. 3d 580, 590 (5th Cir. 2016).

So first, speech as a citizen means that the employee is not speaking in his role as a government employee. If it is in his job description or duties - like a cop's speech while walking his beat, or a teacher's classroom instruction - then it is not really the individual's own speech, it is the government's speech and the government can regulate and control it, including by firing the employee because they disagree with the employee's speech. When the employee is speaking for the government - that is, when the speech is part of the employee's job - then it is not protected by the constitution.

Second, gripes about internal workplace issues - coworker rudeness, disagreement about work rules, etc - is usually not protected either, because the speech must be of public concern. Speech involves matters of public concern when it can be fairly considered as relating to any matter of political, social, or other concern to the community, or when it is a subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public. The inquiry turns on the content, form, and context of the speech. Lane v. Franks, 134 S. Ct. 2369, 2380 (2014).

So speech about a public issue (like an election) in a public forum (like a newspaper) in an article trying to achieve a public objective (like the victory of a particular candidate) is likely to be protected.

But there is one additional hurdle: what the courts call Pickering balancing. The court weighs the public value of the speech against the disruption it causes, and decides whether to protect the speech or not. So even the public speech of private citizens will not always be protected.



Unemployment benefits hearings:

A do-it-yourself guide

In Mississippi, employees who have worked more than six months likely qualify for unemployment benefits if they lose work. But winning them can seem intimidating - particularly after getting a denial letter from the unemployment investigator. That is not the end of the road. Many people successfully win their unemployment benefits after an initial denial, and they do it by themselves using the telephonic appeal process with the Mississippi Department of Employment Security (MDES).

The good news is that most people can successfully represent themselves in an unemployment appeal.

The law governing unemployment benefits

Employees who are fired are usually entitled to unemployment benefits unless the employer can prove that they fired the employees for misconduct. Layoffs, being left off the schedule, and even deep cuts in hours can trigger eligibility for benefits if sufficient pay is lost.

To prove serious misconduct, the employer's burden can be steep. The employer usually must prove either (1) that the employee did something obviously improper, like getting into a fist fight with co-workers; or (2) that the employee violated a written employer rule after clear and specific notice of the rule, as well as notice that termination was a consequence of violating it.

Employees who quit are usually not entitled to unemployment benefits unless they can prove that they left for good reason. This (usually) includes quitting in lieu of a demotion or termination. This (sometimes) includes quitting to avoid very serious harassment. The challenge in these cases is that it is up to the employee - rather than the employer - to prove the case.

For more information on the legal standards, this is probably the best source.

The procedure

There are three key procedural points.

First, employees are required to appeal a denial of unemployment very quickly. The appeal usually must be filed withing two weeks of the investigator's decision. Luckily the appeal request process is easy, and employees can appeal the decision by mail, fax, in person at any WIN job center, or even with a phone call. The instructions should be on the determination letter. Employees that do not timely appeal, usually cannot win benefits.

Second, showing up is half the battle. Both employee and employer will receive a written notice of a hearing date. The hearing is held by phone, and the employee and employer need to be ready to go when the time comes.

Many cases are won simply because one or the other side does not bother to show up for the hearing. Employees should always consider an appeal, even if winning is not certain, because there is a decent chance the employer will not show up to the telephone hearing.

Third and finally, note that anyone that wants to rely on documents in the hearing must send copies of the documents to both the MDES AJ and the other people listed on the hearing letter - and must do so in advance of the telephone hearing.

This is crucially important: if the employer tries to read from documents, testify about documents, or introduce documents into evidence at the AJ hearing and the employee didn't get a copy in advance, the employee can object - which just means telling the judge that the employee does not think the employer should be able to use those documents because the employer did not send them to the employee before the hearing. This includes documents that employer gave the employee at another time - if they didn't specifically give notice of using them at the hearing, then the employee can object.

The same is true for witnesses testifying about things they did not see, hear, smell, touch, etc. If an HR person tries to testify about misconduct that she did not personally witness, the employee can object to her testifying about hearsay, or without personal knowledge. Employees can point out to the judge if the witnesses for the employer did not actually witness the relevant events. This is also a common way these cases are won by employees.

By the same token, employees should be ready to go with their own witnesses testifying to what they saw and heard. This includes the employee's own testimony. If the employee did not get an employee handbook with notice that this was a fireable offense, it is possible that the employee could win the case by pointing that out.

No lawyer necessary

Employees should not be afraid to contest unemployment. Employees can represent themselves, and they often win for procedural reasons.



Specific statutes protecting whistleblowers:

An industry-by-industry guide

Virtually everyone is covered by some OSHA safety regulation or other, but the statute protecting employees that blow the whistle on OSHA safety violations - Section 11(c) of the OSH Act - is famously anemic. It is hard to convince OSHA's whistleblower office that the law has been violated, and if they rule against the employee there is no further recourse.

But there are a number of other industry-specific statutes, many of which do provide extremely robust protections to whistleblowers. These are some of my favorite cases, and this page will provide a brief survey of the law in some of these special industries. This review is not comprehensive.

The strongest protections are in the following industries:

In these cases, if the employee can show that the whistleblowing contributed in any way to their termination, then the employer must affirmatively prove by clear and convincing evidence that they would have fired the employee regardless of the whistleblowing - a difficult standard to meet.

Many of these cases can be tried in either federal court or in the offices of the administrative law judges in the Department of Labor. Although some of the ALJs are worse than others, on the whole the ALJs take their job seriously - and their sole job is, for the most part, protecting whistleblowers, so they really understand these cases.

It is a good forum to be in as an employee - so long as the attorney has experience with the forum and is able to manage the often breakneck pace of this kind of administrative litigation.



Victory for Carpet Installers in Overtime Case

The firm has scored a big victory on behalf of carpet installers in an overtime case in the Southern District of Mississippi. Judge Wingate granted the employees' motion for partial summary judgment, finding that the employer had violated the overtime provisions of the Fair Labor Standards Act. The case will now be set for trial solely on the question of damages. Read the full decision here.

Salary work is not always exempt.

This case is a reminder that an employee cannot be made exempt from overtime merely by paying a salary; the employee must also be performing work duties which qualify for the exemption - that is professional, administrative or supervisory work. Carpet installation and other blue collar manual work can never be exempt salary work.

Commissions are not bona fide if they aren't calculated correctly.

Meanwhile, the commission exemption in Section 7(i) will be lost if the employer does not apply the commissions in a consistent and accurate manner. Unexplained changes or errors in payment will cause an otherwise commission employee to become entitled to overtime.

In addition, the calculation of the guarantee in a commission system requires a great deal of careful accounting, and the balances must be reconciled regularly or else the guarantee will be treated as a salary and the employee may become entitled to overtime.

Entrepreneurs can be individually and personally liable

One final point to note: the owners will not be able to escape liability by bankrupting the company, because they will be individually and personally on the hook for the final judgment. This is one of those unique features of wage and hour law: individuals like owners, managers, and even HR officials can become individually liable to pay the unpaid wages of their employees.

This case was litigated by Joel F. Dillard, P.A., in association with Donati Law of Memphis. 

Too fast, too slow, too crooked, too straight:

The tangled net of federal employee civil rights

Federal employees have a tremendously complicated procedure to vindicate their civil rights. An employee who has been unlawfully terminated can easily miss significant advantages by using the wrong procedure.

Three Choices and No Time to Make Them

A terminated permanent employee can either file a union grievance, file an Equal Employment Opportunity claim with the Agency's internal EEO office, or file with the Merit Systems Protection Board. The choice typically must be made within a matter of only a few weeks. The procedures are widely different. For our purposes right now, I will focus only on the EEO and MSPB.

  1. EEO investigation - The employee contacts the EEO office and initiates an informal complaint. After 30 days of counseling the employee requests a formal investigation, and the Agency takes statements from all potential witnesses and gathers documents to complete a Report known as an ROI. The quality of these investigations varies dramatically from agency to agency.
  2. MSPB - Within 30 days, the employee files an appeal with the MSPB. There is a lightning fast discovery period - the attorney had better be on his game for this - and then a trial, usually within six months.

If you take the EEO route, you can always short-circuit it any time after 120 days to start an MSPB case or go to federal court.

After the MSPB Initial Decision: Four Choices or More

After the MSPB Administrative Judge issues an initial decision against the employee the employee has four options to appeal.

  1. Petition for Review by the full MSPB: An appeal to the Board permits the broadest kind of appellate style review. But right now there is only one MSPB member and the Board has no quorum. There are probably 1,500 petitions for review pending in front of the MSPB right now. So expect big delays and likely bad decisions as the Board affirms everything in sight in a desperate bid to catch up on the backlog.
  2. Appeal to the EEOC: If you don't appeal to the MSPB but wait and let the decision become final, you can appeal the EEO claims in the case to the Equal Employment Opportunity Commission's Office of Federal Operations. But the EEOC OFO is also significantly backlogged. Expect more lengthy delays.
  3. Appeal to the CAFC: The Court of Appeals for the Federal Circuit can also hear appeals from final MSPB decisions. Expect the judges to be most attuned to complex legal issues - rather than the basic fairness of the case.
  4. New trial in District Court: Finally, the most aggressive option is to simply start over with a brand new trial in District Court. Depending where you live, your reception in court will vary. Here in Mississippi, you will be taking your chances; some judges are great, and others less so.

Seriatim

To make things still more complex, these aren't either/or options: you can often string them together. The most thorough method is probably to start the case with the EEO process, then, when the ROI is just finishing, request an MSPB appeal, then file a petition for review with the MSPB, then an EEOC appeal, and only then go into federal court for a brand new trial. The case can sometimes take a decade - particular if you win some of those appeals and there are remands along the way.

Getting Help

If you have enough interest in this topic to have read this far, chances are good that you may need the help of an attorney experienced in representing federal employees. There are no easy answers, but at least the attorney can help you understand the consequences of your choices.



Good Help is Hard to Find

It is extremely hard to judge the skill set of a stranger - or even a friend, if you have not worked with him before. There are those who do just enough to get by, and those who are motivated to be the very best. Whether it is hiring an employee, retaining a lawyer, or finding the right place to get a haircut, the difference between good and merely good enough is subtle.

And yet a wide gulf separates the results these two types of people get. The drive to be constantly improving, and the curiosity to be always seeking out opportunities for growth - these are the things that set a person apart.

And they are particularly important in a lawyer, whose work is such a complex mixture of practical and intellectual enterprise. Experience is not a sum of years; a person who seeks out challenges - and learns from them - can pack more meaningful experience into three years of practice than an incurious person can accumulate over thirty years.

My personal belief is that no amount of hard work and determination can replace the intrinsic motivation of a genuine curiosity. Curiosity makes a hard research problem into a journey of discovery; it makes a dry legal brief into a work of art; it transforms every task into an opportunity for exploration. A person who works out of curiosity, who works in order to learn, will naturally and organically continue to improve.

I call it the school of litigation, and it is what makes my work such a joy, day in and day out.



The Due Process Rights of College Students

The due process rights of students - and college students in particular - is an often murky area. This is no real surprise: Constitutional law is, unfortunately, among the least rational and clear of all areas of law. But here you can learn at least some general concepts and parameters.

State Action

The first concept to bear in mind is that - with the exception of the Thirteenth Amendment (slavery) - the Constitution only limits state action. This means that your private colleges and universities, like Belmont and Mississippi College, are not restricted by the Constitution. This is why - in case you were wondering - private colleges can be religious while e.g. school-mandated prayer is impermissible in public colleges. This does not mean that private schools can do whatever they want, but it means that the discussion which follows is inapplicable to them. This discussion will be limited to public schools like Ole Miss or Jackson State.

Is a college education property?

The due process clause prohibits the state from depriv[ing] any person of life, liberty, or property, without due process of law. And so the first question is whether a college student has any liberty or property interest in their studies. Let's start with property.

Because property itself is a creature of state law - your rights to your land, your car, your gun: all are created (and limited) by state law - the answer will depend on the particular laws of your state.

Thus, in Mississippi, the Mississippi Supreme Court has held that the cases involving public universities demonstrate that a student's interest in attending a university is a property right protected by at least the procedural protections of the due process clause. UMMC v. Hughes, 765 So. 2d 528, 538 (Miss. 2000).

In Texas, by contrast, the Courts have ducked the question and so it is still not entirely clear whether college students have a property right in college. University of Texas Med. School v. Than, 901 SW 2d 926 n.1 (Tex. 1995)

The liberty interest in college education

The liberty interest has been recognized based on harm to a college student's reputation and future prospects because of the expulsion: [W]here a person's good name, reputation, honor, or integrity is at stake because of what the government is doing to him, the minimal requirements of due process must be satisfied. Goss v. Lopez, 419 U.S. 565, 574 (1975). This suggests that, to some extent, the scope of the liberty interest will depend on what the student is accused of doing, and how serious the discipline being imposed will be.

Disciplinary vs Academic actions

Disciplinary actions are one thing. But the Supreme Court has cautioned that the courts should not be involving themselves too heavily in second-guessing the academic decisions of public schools. As the Court said in a case involving a graduate medical school, court review of academic decisions would further enlarge the judicial presence in the academic community and thereby risk deterioration of many beneficial aspects of the faculty-student relationship. Board of Curators of Univ. of Mo. v. Horowitz, 435 US 78 (1978)

The upshot is that academic dismissals are not really subject to much due process under the Constitution.

But what exactly is an academic action? It would seem obvious: flunking out. But unfortunately, certain courts with a special hostility to students have hooked on to a minor footnote in Horowitz and blown it out of all proportion to suggest that virtually everything is academic and nothing disciplinary. Everything from lying to profanity to tardiness have - from time to time - been considered academic by certain courts. As one court admitted: The Court recognizes that this definition of academic dismissal is very broad and leaves a finding of disciplinary dismissal to a narrow range of cases. It justified its decision on pure policy grounds - again, trying to stay out of the school's business. These decisions are - at best - poorly reasoned. But that doesn't mean that they won't carry the day sometimes. Real people lost those cases.

What process is due?

Assuming this is a real disciplinary expulsion case coming from a state where college students have recognized property rights, the next question is what process is due. It depends on the gravity of the discipline - a suspension requires only notice and a chance to respond in an informal give and take with the student, as the Supreme Court noted in Goss.

But an expulsion - particularly an expulsion on extremely serious charges - may require more. The analysis is pretty vague, and involves the weighing of three factors:

  1. How serious the threatened harm to liberty/property;
  2. How useful particular procedural tools would be at making sure the right result is reached;
  3. How annoying, expensive, or time-consuming the procedural tool would be to use.

This is a paraphrase, of course, but these factors come from a seminal case called Mathews, and unfortunately, they are just as wishy-washy and unpredictable as they sound in the actual application. As you can guess, with such open-ended factors to consider, the judge ends up deciding the case more along the lines of the judge's own inclinations toward the parties, since any result whatever can be clothed in factors like these.

Good facts and good lawyering are your best bet at success, but there are no guarantees whatsoever in this area of the law.



The Transformation of Veterans Affairs Employment Law

If you are one of the thousands of Mississippians working for the VA, you should know that the law governing your work has been fundamentally transformed by Congress this summer. The President signed the "Department of Veterans Affairs Accountability and Whistleblower Protection Act of 2017" this summer, and just a few weeks ago signed the "Dr. Chris Kirkpatrick Whistleblower Protection Act of 2017." Both statutes both weaken and strengthen the laws protecting VA employees in ways that it is crucial for all affected employees to understand.

LEARN MORE

Attend an hour-long seminar about these new changes in the law taught by Joel Dillard.

The seminar will be taught around shift changes in early December 2017 at convenient locations within a few blocks of the VA Hospital and VBO in Jackson, Mississippi.

ABOUT JOEL

Joel has worked for the General Counsel's office of the American Federation of Government Employees (AFGE), as well as the General Counsel's Office of the AFL-CIO. He has clerked for the Chair of Equal Employment Opportunity Commission (EEOC), and written EEOC Office of Federal Operations (OFO) opinions governing federal employees. He has clerked for Judge Dyk of the Federal Circuit, where he assisted in reviewing decisions of the Merit Systems Protection Board (MSPB). He has represented dozens of federal employees in disciplinary hearings, before the MSPB and the EEOC, as well as in federal court.

SIGN UP

Sign up online in two easy steps:

  1. Register and select a seminar time by using the linked registration form: REGISTRATION FORM
  2. Make a small registration payment of $19 to cover facilities and materials, using this link: Secure online payment. Enter "VA Seminar Registration" on the memo line.



Fighting against Wage & Hour Retaliation

As with many other statutes, the Fair Labor Standards Act provides protections to employees that are trying to enforce their rights. If an employer fires or disciplines an employee for raising FLSA concerns or filing an overtime/minimum wage lawsuit, the employer can be subject to much greater liability than merely paying for the lost wages. And the FLSA in particular has somewhat stronger protections than most anti-retaliation statutes.

Informal and internal complaints are protected.

[A]n informal, internal complaint may constitute protected activity. Hagan v. Echostar Satellite, LLC, 529 F. 3d 617, 625-27 (5th Cir. 2008).Kasten v. Saint-Gobain Performance Plastics Corp., 131 S. Ct. 1325 (2011) This includes calling HR, or simply telling your supervisor. Of course, complaints to the U.S. Department of Labor or lawsuits filed in court are also protected against retalitaion.

However, the complaint must be about violations of the FLSA. It is not enough to complain that the pay is too low in some vague, general sense. The employee must make it clear that it is minimum wage or overtime violations that are being alleged, whether by using those words or otherwise. And these allegations must be, in general, reasonable and asserted in good faith. As a practical matter, it is important to put these sorts of thing in writing.

It also includes complaints you make on behalf of someone else, other than yourself. One limitation on this, however, is important for managers and HR employees in particular to bear in mind. A complaint which you simply pass along or which you make as part of your job duties is not protected activity.

Emotional distress and other damages are available for retaliation violations.

The remedies available for retaliation claims under Section 15(a)(3) are broader than those available for garden-variety FLSA violations. They include not only back pay for his missed wages since termination, as in any other wrongful termination case, but Congress amended the Act in 1977 to provide that any employer who violates the provisions of section 215 (a)(3) of this title shall be liable for such legal or equitable relief as may be appropriate to effectuate the purposes of section 215 (a)(3) of this title, including without limitation employment, reinstatement, promotion, and the payment of wages lost and an additional equal amount as liquidated damages. As Judge Easterbrook put it in Travis v. Gary Comty. Mental Health Ctr., Inc., 921 F.2d 108 (7th Cir. 1990), this amendment authorizes ‘legal’ relief, a term commonly understood to include compensatory and punitive damages. As the Fifth Circuit recently ruled, this means that employees can get emotional distress damages for wrongful termination in violation of Section 15(a)(3) of the FLSA. Pineda v. JTCH Apts., 843 F. 3d 1062 (5th Cir. 2016).

Personal, individual liability of business owners and managers

Assuming the business meets the jurisdictional limit of doing at least $500,000 per year in business, you should also be aware that the corporate form will be no shield to individual liability by the owners and operators of the company. Under the FLSA specifically, the courts have held that such persons are - individually, jointly, and severally - employers under the Act, and subject to individual liability. Donovan v. Sabine Irrigation Co., Inc., 695 F.2d 190, 194-95 (5th Cir. 1983); Wirtz v. Ross Packaging Co., 367 F. 2d 549 (5th Cir. 1966).

Whistleblower that raise overtime and minimum wage violations have significant legal protections, and no employee should act without knowledge of them.

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First provide the firm with your name, and the name of the person you are making claims against - and no other information. This allows the firm to check for such conflicts of interest. Until you receive confirmation from an attorney that there is NO CONFLICT, none of the information you provide will be considered confidential. Do NOT provide any confidential information before we have asked you to do so.

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