Public personnel and strategic human resource management

Final Exam

By Nargiza Jedwab

                                                     

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Organizational effectiveness and employee performance are influenced by a

myriad of environmental and personal factors. Employee morale, working conditions,

benefits afforded to employees, opportunities for professional development, availability

of legal protections and many other variables impact the performance of each employee,

whereby influencing the overall organizational effectiveness.

As a result of legislations such as Family Medical Leave Act (FMLA), Americans

with Disabilities Act (ADA) and other constitutional protections, public sector employees

are afforded various legal protections at the workplace. Private sector employers must

also be in compliance with these laws; however there are some differences in the

requirements private sector employers must adhere to. In many cases FMLA and ADA

overlap and employers must be aware of these statutes. In order use these protections

effectively and prevent disruption of organizational activity, every employer and

employee must be aware of these legislations and if necessary seek legal counsel.

Family Medical Leave Act, introduced by the Clinton Administration in 1993 is

intended to balance the employer demand with the needs of families. Under this Act

employer responsibility begins from notifying employers about the existence of FMLA

provisions, to allowing employees return to their workplace and seniority. FMLA’s some

of the most important provisions are: allowing men and women to balance their work and

family lives while protecting them from employer interference in the freedoms ensured

by the Act, as well as unfair discharges and discrimination shown towards any employee

who has taken the FMLA leave (French, p.74, 2009). While FMLA is aimed at helping

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employees, it can prove to be burdensome on the employer. For example, employer loses

qualified workforce and spends money on the absent employee’s health coverage while

the employee receives no payment for the duration of leave.

The government also provides civil protections for employees with disabilities.

According to the ADA, an individual with a disability is one who has a record of

impairment, whether it is physical or mental, which restricts them in major life activities.

The Americans with Disabilities Act (ADA) was signed into law by president H. W.

Bush in 1990 and amended by president G.W. Bush in 2008.

In some cases mitigating measures are used to lessen the effects of a disability.

Courts of law, making decisions on case-by-case method, established that mitigating

measures do not necessarily do away with a disability, and an existence of a disability

should not immediately assume to limit someone’s capacity to do their job (Massengil,

2004, p.185) For example, in the case of Service v. Union Pacific Rail Road Co, an

asthmatic person would suffer from suffocation when exposed to tobacco smoke, was

considered disabled under the ADA, although they used an inhaler to lessen the effect of

asthma. Thus, employers should not assume that because an employee is using a

mitigating measure, they are no longer disabled. In the case of Saks v. Franklin Covery

Co, the court established that the plaintiff was considered disabled under the ADA not

because her condition affected her job performance, but because being infertile is

considered a disability within the meaning of the ADA. In the same vein, employees

should not assume that because they use mitigating measures, they are disabled under the

ADA.

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The ADA requires that employers make accommodations for their disabled

employees, provided such accommodations do not create a burden on the organization.

Several factors such as the size of an organization, structure and resources would

determine whether it would be considered a financial burden for an organization to

accommodate a disabled employee. A reasonable accommodation of a disabled employee

may include but not limited to: change of schedule, modification of equipment and an

additional unpaid leave. During the hiring process, employers may not ask about the

applicant’s health condition and any disabilities, or require them to undergo a medical

examination, however employer may ask about their ability to perform job functions.

Current and prospective employees engaged in the illegal use of drugs are not protected

by the ADA.

A unique and at times controversial system of protection afforded to public

employees and which is becoming increasingly popular in the private sector, are labour

unions. The origin of unions dates back to 1963 when the practice of collective

bargaining was first introduced by an executive order #10988, with the state of Wisconsin

was to first allow collective bargaining (Lecture notes, Dr. Holoviak).

According to the Department of Labor Statistics, in 2009, 37.4% of public

employees are considered unionized compared to only 7.2% of the private sector

workers. As the union population grows, nonprofits are projected to be the next growing

group of unionized workforce (Lecture notes, Dr. Holoviak). Some of the unions,

representing employees of various organizations, include AFSCME (American Federal,

State, County and Municipal Employees) founded in 1932, APSCUF (Association of

Pennsylvania State College and University Faculties), founded in 1937, NACST

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(National Association of Catholic School Teachers), founded in 1978, and others that

“provide the vital services that make America happen and advocate for prosperity and

opportunity for all working families” (www.afscme.org). Unions engage in a collective

bargaining process with employers in order to negotiate salary, benefits, working

conditions and other provisions of employees they represent. In addition, one of the most

important functions of unions is to provide support to employees during grievances and

legal proceedings.

Some of the rights of public employees rest on various decisions of the court of

law. For instance, the right to free speech (Pickeing v.Board of Education, 1968), the

right to privacy (Norton v. Macy, 1989), freedom of religion (Sherbert v. Verner, 1963)

and many others demonstrate that public sector employees are afforded a number of

protections. One of the court’s landmark decisions established a precedent that an

individual’s job in the public sector is their property, of which they cannot be deprived

without the due process of law, guaranteed by the Fourteenth Amendment of the U.S.

Constitution (Goldberg v. Kelly 397 U.S. 254, 1970). The due process clause means that

an employee must be presented an opportunity to hold an evidentiary hearing to

challenge their dismissal. However, the Supreme Court’s decisions on the applicability of

the due process depended on the demands of a particular situation. The case Matthews v.

Eldridge 424 U.S. 319 (1976) introduced the following three-part balance test which

would determine the outcomes of similar cases: 1) private interest affected by the agency

action; 2) risk of erroneous depravation of such interest though the procedures used; 3)

government interest, that is fiscal and administrative burdens that additional procedures

would involve.

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In a more recent court ruling, a so-called class-of-one protection (Roberts, 2008,

p.1) was created by the Supreme Court’s decision of Village of Willbrook v. Olech, 2000,

which reads that public employees can bring lawsuits on the basis of having been

intentionally treated differently from others in similar situations (Village of Willowbrook

v. Olech, 2000, p. 562) As a result of this court decision, many public employees brought

lawsuits against their employers even in cases when uncertainty existed of whether

discrimination ever took place. Roberts (2008) in his paper “The Supreme Court and The

Continuing Deconstitutionalization of Public Personnel Management.” argues that the

decision of Engquist v. Oregon Department of Agriculture, 2008b created a precedent

against the use of class-of-one equal protection, i.e. this decision serves as an effort “to

deconstitutionalize public personnel administration and instead encourage the use of per

se rules (Roberts, p.2. 2008). “ According to Roberts (2008), many public employees

welcome greater deference given to personnel policies, however, if this continues to take

place in the Justice Roberts court, decisions of such nature will diminish the uniqueness

of the public sector and the protections offered to its employees. Roberts (2008) suggests

that:

“…the ongoing deconstitutionalization of public personnel management has significant implications for the management of public organizations. If the trend continues, public employees, much like their private sector counterparts, will become much more dependent on statutory protections and collective bargaining agreements to protect them from arbitrary personnel decisions.” (Roberts, p.1, 2008)     According to a poll conducted in 2004, one in five Americans have worked in

hostile environments, where they experienced some form of discrimination or harassment

(Findlaw, July 2004). In more detail, a hostile work environment can constitute working

conditions where an employee experiences harassment based on race, colour, sex or other

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factors. The Equal Employment Opportunity Commission’s (EEOC) guidelines of 1980

defines sexual harassment as: “unwelcome sexual advances, requests, for sexual favors,

and other verbal or physical conduct of a sexual nature.” Furthermore, sexual harassment

can be categorized as quid pro quo, that is when a superior demands sexual relations with

an employee as a condition of keeping one’s job; or as an environment, which interferes

with an employee’s work performance and that creates an intimidating or offensive work

environment (Civil Rights Act, Title VII, 1965). Title VII of the Civil Rights Act of

1964 governs the harassment and discrimination practices providing an understanding to

employer and employees their rights and responsibilities and proper procedures to be

followed should a need to address discrimination arises.

The first court case that defined the meaning of hostile work environment was

Meritor Savings Bank, FSB v. Vinson, et al that took place in 1968. In 1998 the Supreme

Court’s landmark cases Burlington Industries v. Ellerth and Faragher v. City of Boca

Raton established that under certain conditions an employer may be held liable and that

an employer “may use a defense against liability in claims of supervisory sexual

harassment or discrimination” (Crumpacker, p.2, 2007).

These two cases established the Ellerth-Faragher affirmative defense, which

protects an employer from liability for a discharge, demotion, or undesirable transfer of

an employee. However, for such an affirmative defense to apply, the employer must

prove that: they made provisions for prevention and correction of any kind of harassment

and that the plaintiff-employee failed to take advantage of any preventive or corrective

opportunities provided by the employer. In the case of Pennsylvania State Police v. Suder

(2004), the court clarified that the Ellerth-Faragher defense can be applied in cases when

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the human resources managers ensured a workplace is free of harassment and

discrimination by publishing anti-discrimination and anti-harassment policies, complaint

procedures, training of staff on these procedures and by following a process of review of

such procedures and other means. Nevertheless, it is important for managers and their

subordinates to remember that when a legal action is brought upon an organization,

courts of law have to balance the needs of agencies with the needs of employees.

Employee performance is influenced by a number of variables. A productive

employee is someone whose personal goals are aligned with the goals of the organization

they work for. Factors such as work environment, which can start from a type of an office

space, responsibilities, to relationships with colleagues and superiors, can have

significant impact on how employees perform at their jobs and influence their dedication

to the organization. Many people enter jobs with ambitions of professional growth,

monetary rewards, securing retirement benefits and many other reasons. Thus, it is a

manager’s responsibility to make effort to notice potential in their employees and provide

opportunities for growth as well as accommodating employees’ other needs within the

limits of organization’s resources. Availability of these provisions will help managers

retain and attract the best workforce on the market.

Selden (2009) suggests that employers invest in training in order to increase

psychological commitment to the organization. The organization that provides training

for their employees shows a level of trust and commitment to its employees, which

reciprocates towards the employer (Selden, p.87, 2009) Training may also be used to

attract highly qualified employees but this has to be clearly and strategically

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communicated to applicants. Other factors include health and wellness benefits and

flexible schedules that applicants will take in consideration. Selden (p.85, 2009) also

suggests that a number of organizations spend their capital on training to address specific

organizational needs, which could range from managing people, conflict resolution,

project management, facilitation skills and many others.

In addition to environmental accommodations, human resources managers, must

be aware of various legislative provisions in order to better serve their employees and

protect employer interests. Since various laws and legal principles define human resource

functions of government agencies, it is important that administrators are knowledgeable

about such laws. Failure to do so will put organizations at risk of being brought to court

in cases when lawsuits can be prevented, resulting in unwarranted financial burden and

disruption of organizational activities. Other factors such as succession planning, merit-

based pay systems, integrating diversity, rewarding employee performance and dealing

with poor performers have an impact on organizational performance. A well-experienced

manager will take a holistic approach to employ these factors to enable a successful

achievement of organizational goals.

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References

American Federal, State, County and Municipal Employees Webpage

http://www.afscme.org

Association of Pennsylvania State College and University Faculties Webpage

http://www.apscuf.com

Crumpacker, Martha and Crumpacker, Jill. 2007. “The U.S. Supreme Court Clarifies Constructive Discharge Under Title VII.” Public Personnel Management, 36;1-19. Daley, Dennis. 2008. “The Burden of Dealing with Poor Performers: Wear and Tear on Supervisory Organizational Engagement.” Review of Public Personnel Administration, 28; 44-59. Fisher, Rod. 2009. Administrative Law. Lecture notes. French, P. Edward. 2009. “Implications of the Family and Medical Leave Act for Local Governments: Helping Administrators Understand the Law:” Review of Public Personnel Administration, 29;76-88. Holoviak, Paula. 2010. Strategic Personnel and Human Resource Management. Lecture notes. Massengill, Douglas. 2004. “How Much Better Are You? Impairments, Mitigating Measures and the Determination of Disability.” Public Personnel Management, 33;181-199. Pynes, Joan E. and Newman, Meredith A. 2001. “Nonprofit Sector Unionization and Gender Equity: Learning Lessons From a Case Study of Teacher Organization in the St. Louis Archdiocese.” Review of Public Personnel Administration, 21;5-26. Roberts, Robert. 2008. “The Supreme Court and The Continuing Deconstitutionalization of Public Personnel Management.” Review of Public Personnel Administration., 28;1-17. Selden, Sally. 2009. “Human Capital: Tools and Strategies for the Public Sector”, CQ. Press