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Employment Law

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"Employment Law." Please respond to the following:

* Analyze Garcetti v. Ceballos, to determine whether or not the Pickering balancing test is applicable to this case and state why or why not.

In the case of Garcetti v. Ceballos, the issue is, “whether job-related speech of public employees should have First Amendment protection” (AAUP, 2014). Richard Ceballos, an employee at the LA County district attorney’s office, suspected that a deputy sheriff included false statements in a search warrant affidavit. Ceballos informed his supervisors and the defense attorney involved in the case of his suspicions. Ceballos was demoted from his position and claimed the demotion occurred in retaliation for speaking out on a matter of public concern (AAUP, 2014).

The lower court in this case dismissed the claim ruling that the First Amendment did not protect Ceballos’s speech because it occurred in a memorandum to his supervisors as part of his job. An appeals court overturned that ruling and found that Ceballos’ speech was protected by the First Amendment (AAUP, 2014). The Supreme Court reversed the appeals courts decision and concluded that “government employers have substantial leeway to instruct their employees about the appropriateness of public comments pursuant to official duties and to discipline employees who do not adhere to the instructions” (Szypszak, 2011).

I believe in this particular case, the Pickering Balancing Test does apply because according to Justice Marshall, the Pickering balancing test is describe in this matter:

The problem in any case is to arrive at a balance between the interests of the [public employee], as citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees. This principle applies regardless of the public employee’s contractual or other claims to a job (Secunda, 2011).

Justice Marshall mentioned that the principle of the test applies regardless of the public employee’s contractual or other claims to a job” so Ceballos was technically protected by the First Amendment. Like in Pickering V. Board of Education, Ceballos spoke out on a matter of public concern.

Sources: http://law.marquette.edu/facultyblog/2010/10/25/the-most-important-public-employment-law-case-pickering-v-board-of-education-391-u-s-563-1968/

Szypszak, C. J. (2011). Understanding Law for Public Administration. Chapel Hill: Jones and

http://www.aaup.org/brief/garcetti-v-ceballos-547-us-410-2006

* Many states are facing budget constraints that are shining a light on public employees’ pay and benefits, which have led to debates about state employees’ collective bargaining rights. From a public administrator perspective, speculate to the short-term and long-term effects if limited collective bargaining is adopted. Hint: Look at all the stakeholders involved.

Collective bargaining is a process in which working people, through their unions, negotiate contracts with employers to determine their terms of employment, including pay, health care, pensions and other benefits, hours, leave, job health and safety policies, ways to balance work and family and more. Employees jointly decide their priorities for bargaining (AFL-CIO, 2014).

President Franklin D. Roosevelt and Congress enacted the 1935 National Labor Relations Act, which awarded collective bargaining rights on private-sector workers, but no such rights were given to public sector employees. “In fact, both Roosevelt and later George Meany, the first president of the AFL-CIO, opposed collective bargaining for the public sector (Crane, 2011). It is left to the individual states to determine whether there is collective bargaining in public sector jobs.

Civil servants who have the right to join together to negotiate with the government regarding their working conditions, pay, and benefits, gain the ability to hold their employer, the government, accountable while ensuring that factors such as money or political affiliation are not causes for mistreatment and termination (Langford, 2012).
For example:
The situations in Wisconsin and other states where public sector employees are losing their right to collective bargaining highlights this point. Governor Scott Walker of Wisconsin removed collective bargaining rights for only a select group of public employees who supported his opponent for the office. Though the Governor claimed his action was about saving money, he continued his push to strip collective bargaining even after the unions agree to dramatic pay and benefit cuts. His continued push clearly demonstrated that his real interests lie in preventing public sector employees from challenging his authority and in crippling the unions’ ability to balance out corporate and money interests in the state’s political system (Langford, 2012).

This situation signifies the importance of bargaining rights in the public sector. Bargaining rights is a human right. In fact, it should be an inalienable right for both public and private sector jobs. Every employer should be able to collectively voice their opinions in regards to their wages, pensions, treatment, etc.… while ensuring that politicians are not mistreating employees that are affiliated with the opposing party. Also, in the long term, “bargaining collectively is beneficial to the economy and to society as a whole as it helps to promote an ownership society that empowers its citizen”(Langford, 2012).

Sources:http://www.sfgate.com/opinion/article/Should-public-employees-have-collective-2473273.php http://www.mackinac.org/14734 http://www.aflcio.org/Learn-About-Unions/Collective-Bargaining/Collective-Bargaining-Fact-Sheet http://www.ifpte.org/news/details/Why-Collective-Bargaining-Rights-Are-Important. "Tort Law." Please respond to the following:

* Examine the Federal Tort Claims Acts (FTCA). Discuss whether these laws reduce the risk to citizens or does it serve a compelling state interest. Analyze Dolan v. United States Postal Service.

The issue in the Dolan case is, “whether the exception of negligent transmission of letters or postal matter from the general waiver of sovereign immunity in the Federal Tort Claims Act cover the negligent placement of mail at its final destination, when that placement causes injury” (Oyez, 2014)?

Barbara Dolan injured herself when she tripped on a package left by a mail carrier. She sued under the FTCA, arguing that her injuries were due to the mailman’s negligence. The government claimed that its sovereign immunity had not been waived in this particular case and moved to have the case dismissed (Oyez, 2014).

The FTCA has an exception for the negligent transmission of letters or postal matter, which contains an exception from authorized tort damage claims for any claim arising out of the loss, miscarriage, or negligent transmission of letters or postal matter (Szypszak, 2011).

Dolan argued that this exception referred only to mail that was lost or damaged by the Postal Service, not to people injured by the placement of the mail, but the district court disagreed (Oyez, 2014).

The Supreme Court disagreed with the district court and ruled that the negligent transmission exception was inapplicable to Dolan's case, and therefore sovereign immunity had been waived and her case could proceed (Oyez, 2014).

I believe statutes such as the exception in the FTCA can manipulate U.S. citizens’ rights to a civil trial. In this particular situation there should not have been any sovereign immunity. The postal worker was negligent. The statute did not apply to Dolan since her case had nothing to do with lost or stolen mail. Sources: Szypszak, C. J. (2011). Understanding Law for Public Administration. Chapel Hill: Jones and Bartlett http://www.oyez.org/cases/2000-2009/2005/2005_04_848 * As a public administrator, discuss which view you find more persuasive – that sovereign immunity should be narrowly or broadly construed. State why with examples or evidence to support your position.

“Sovereign immunity and related principles protect federal and state government from damages liability unless the government waives its protection” (Szypszak, 2011). Sovereign immunity applies to liability for monetary damages to be paid from public funds, with the exception that “sovereign immunity does not prohibit suits against state officials for injunctive relief for violating the Constitution because unconstitutional acts are not undertaken in behalf of the government” (Szypszak, 2011).

I believe that sovereign immunity should definitely be broadly construed. If a state owes one a debt, the state should not succeed do to the 11th amendment, which gives them such immunity.

For example:

Chisholm v Georgia, in which the Court ordered Georgia to pay two South Carolina residents a debt the Court found, was owed them. Georgia legislators were so outraged by the decision that the passed a law declaring that anyone who attempted to carry out the Court's mandate would be hanged with benefit of clergy (Law2, 2014).
Hence the reason we have the eleventh amendment, which declared sovereign immunity to federal and state government from damages liability. The Chisholm court would not have prevailed if the 11th amendment were already in place.

Sources: Szypszak, C. J. (2011). Understanding Law for Public Administration. Chapel Hill: Jones Bartlett

http://law2.umkc.edu/faculty/projects/ftrials/conlaw/eleventhamendment.html

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