Public sector employees-even if not unionized-usually have greater rights inside their employment than private sector employees. (The exception is “exempt” employees, which are not discussed further here.)

First, public sector employees threatened with discipline generally should be afforded a “Loudermill” hearing, at which time they’re able to present their side from the story ahead of the employer constitutes a decision on discipline, meaning prior to issuance of either discipline or notice of intended discipline. See Loudermill v.Cleveland Board of Education, 470 U.S. 532 (1985).

Second, public sector staff is generally in a position to appeal discipline from the relevant “merit system protection” or personnel statute and/or regulations. For example, in New Mexico a State employer must show on appeal the there seemed to be “just cause” with the discipline. To establish “just cause,” the State Personnel Board must determine both the employee engaged in misconduct and the discipline was appropriate and reasonable in light on the misconduct. Just induce to terminate particularly “exists when a staff member engages in behavior inconsistent using the employee’s position and will include, among other things, incompetency, misconduct, negligent, insubordination, or continuous unsatisfactory performance.” Selmecski v. N.M. Dept. of Corrections, 2006-NMCA-024, ¶15, ¶18, 139 N.M. 122, 127-128 (internal quotations and citations omitted).

Although a business should usually embark on progressive discipline, this isn’t an absolute requirement all of which will instead depend upon the nature and severity in the misconduct and surrounding circumstances.

Frequently, the government’s merit systems protection or personnel act will give you the exclusive remedy to employees trying to challenge discipline beneath the relevant statute. For instance, State employees might not exactly bypass the State Personnel Act’s administrative appeal system to file for a lawsuit directly in state court over a theory of breach of implied contract determined by that same Personnel Act. NOTE, however, that State employees represented with a collective bargaining agreement may tend to challenge discipline in the State Personnel Act or negotiated grievance-arbitration procedures. See § 10-9-18(H) on the State Personnel Act.

II. SPECIAL ISSUES IN PUBLIC SAFETY EMPLOYMENT

Federal law authorizes several significant wage and hour exceptions for public safety (e.g., fire and police) personnel.

First, the place where a city employs below five people in law enforcement officials or fire protection activities throughout the workweek, § 213(b)(20) of FLSA completely exempts those employees from overtime pay requirements. For reasons like this, police and fire are counted separately, no distinction is produced between full-time and part-time employees, or between employees working and employees on leave. See 29 C.F.R. §553.200(b). However, fire and police chiefs higher who embark on fire protection or police activities are counted for reasons like this provision, even though they may normally be exempt from overtime requirements. See 29 C.F.R. §553.216.

Second, public law enforcement officials entities not qualifying for your foregoing “complete exemption” may nonetheless get a “partial exemption” under §207(k) of FLSA. They may be capable to utilize a different “work period” where you can calculate overtime, from 7 to 28 consecutive days. For example, fire protection staff are due overtime under a real plan after 212 hours worked after a 28-day period, while law enforcement officials personnel must receive overtime after 171 hours worked in a 28-day period. For work periods for at least 7 but lower than 28 days, overtime pay is essential when the quantity of hours worked exceeds the variety of hours which bears exactly the same relationship to 212 (fire) or 171 (police) as the variety of days from the work period bears to 28. See 29 CFR § 553.201 (a.k.a., “Section 7(k) exemption”).

Finally, under 29 U.S.C. §207(o) of FLSA a State agency or municipality may be capable to give compensatory time at a rate of not lower than one and one-half hours for every overtime hour worked, instead of cash overtime compensation. However, the employer and employee must reach a legal contract to this affect before any tasks are performed. See 29 CFR§553.23. Additionally, police and fire protection employees might not accrue in excess of 480 hours of compensatory time under this provision. Id.

This is yet another area where experienced legal services should be sought, to attenuate potential overtime liability.