As an employment law attorney for over 30 years, I’ve been asked many times to sum up the legal differences between civil service employment in the state or federal sector as compared with employment in the private sector.
Simply put, the distinction is this: State and federal employees – often referred to as “public servants” – enjoy due-process rights. That is not the case for non-union private-sector workers, often referred to as “at-will” employees.
When it comes to protecting one’s employment, this difference is huge.
Indeed, public servants are said to hold an actual “property interest” in the preservation of their employment. That interest is legally deemed worthy of heightened protection, often referred to as “job tenure.”
By contrast, the careers of at-will private-sector workers are left largely to the whims of their employers, to whom the law gives wide latitude to hire, fire and promote as they see fit.
The bottom line: As long as public servants maintain good conduct and successful job performance, they have a constitutional right to challenge all negative actions that may affect or threaten their employment status.
This can be an enormous benefit when one’s public-sector career is threatened. But only if you know how to properly exercise those civil service rights.
Best of both worlds?
In most cases, public civil servants enjoy union protection and civil service protection. But in a disciplinary proceeding, the employee must choose whether to dispute the matter by way of a union grievance or through a civil service appeal to the state Civil Service Commission.
In just about every disciplinary case that I’ve been involved with, this is the fundamental first question at hand. By law, the employee must elect one or the other dispute-resolution proceeding at the outset of the case.
My advice is almost always to recommend filing a civil service appeal, so long as the matter is covered under the Civil Service Commission’s jurisdiction. The primary reason for this recommendation is that state and federal civil service laws and regulations provide covered employees with a full range of substantive and procedural due-process rights and procedures.
- A structured litigation process involving notice
- Pre-litigation tools such as discovery and rules of evidence
- The opportunity to fully litigate a disciplinary matter
By contrast, I’ve learned from experience that the union grievance process – while certainly preferable to no disciplinary dispute process – generally lacks the full range of due-process rights, including the ability to fully litigate the matter.
State vs. federal?
Not all civil service laws are equal, however. While state and federal civil service laws are similar, they have very different appeal procedures. For example, federal civil service laws have specific jurisdictional rules limiting the kinds of cases accepted on appeal. In some of these cases, it may become necessary to resort to a union grievance to dispute a disciplinary action, should the civil service board lack jurisdiction over a particular disciplinary matter.
If you’re a civil service employee, I urge you not to go it alone. Your written notice of disciplinary action is likely to include a notification of your appeal rights. This includes the right to elect between a union and civil service remedy.
To ensure that your rights are fully protected – not to mention your job – you’ll want an experienced employment attorney at your side.