Article I and III of the United States Constitution were adopted with the initial constitution and give to the United States Congress broad authority to pass laws and to cause violations of those laws to be heard in federal and state courts. The Eleventh Amendment, however, was adopted by the people after the initial adoption of the Constitution and prevents states from being sued by individuals asserting federal claims. Consequently, the courts hold that Congress cannot abrogate this immunity by exercising power from the original constitution. The Fourteenth Amendment, however, succeeds the Eleventh Amendment and gives Congress specific authority in Section 5 to pass laws supporting the equal protection guarantee of the Fourteenth Amendment.

The Supreme Court has recognized that Congress can abrogate Eleventh Amendment immunity through the exercise of power under the Fourteenth Amendment, but the conditions for such abrogation are limited by two considerations. The first is whether Congress specifically states in the legislation an intent to abrogate immunity, and, secondly, whether Congress identifies a history and pattern of unconstitutional discrimination by the states, at the time it enacted the legislation. It is this latter condition which is being found not to exist. The United States Supreme Court and/or the United States Fifth Circuit Court of Appeal which sits in New Orleans and governs Louisiana have held that Congress failed to identify such a history when it passed the Americans with Disabilities Act, the Family and Medical Leave Act, the Fair Labor Standards Act, and the Age Discrimination in Employment Act. Consequently, these courts have held that Congress did not have the authority to abrogate Eleventh Amendment Immunity when it passed those laws. The result is that individuals may not sue the state in either federal or state court under these laws.

The cases do not hold, however, that Congress did not have the authority to pass these laws at all and to make them applicable to state governments, but only that an individual could not sue a state. It is probably a fair statement of the law at this point that these federal laws do apply to states and can be enforced against states by the United States and its agencies. While the risk of being sued by the United States is probably small, if there is any entity within American society that is duty bound to follow laws, it is government. Further, we have a state counterpart to the Americans with Disabilities Act and to the Age Discrimination in Employment Act, and in the decisions under those laws, the state courts have drawn heavily upon federal jurisprudence interpreting and applying the federal counterparts.

For the attorneys, the relevant citations are University of Alabama vs. Garrett, 121 S. Ct. 955 (2001); Kimel vs. Florida Board of Regents, 120 S. Ct. 631 (2000); Alden, et al. vs. Maine, 119 S.

Ct. 2240 - (1999); Seminole Tribe of Florida vs. Florida, 116 S. Ct. 1014 (1996); Kazmier vs. United States, et al., 225 F. 3rd 519 (5th Cir. 2000); R.S. 46:2251 et seq.; R.S. 23:301 et seq.

ENFORCING TIME AND ONE-HALF AND STRAIGHT COMPENSATORY TIME

The United States Supreme Court has recently held that the Fair Labor Standards Act does not prohibit an employer from requiring an employee to use time and one-half compensatory time. Stated, otherwise, employers have discretion to require their employees to use time and one-half compensatory time. One caveat regarding Family and Medical Leave, however, is discussed below. Regarding straight compensatory time awarded pursuant to Civil Service Rules , the Civil Service Commission in the Appeal of Dobbins, Docket No. 13956, April 5, 2001, held that the same was true for straight compensatory time and that the restrictions on forcing annual leave do not apply. These restrictions were discussed in my newsletter of February 8, 2000. The primary difference is that compensatory time cannot be used to enhance retirement benefits and the most that can be gained from compensatory time is payment for such time which is recognized when time off with pay is given.

Regarding the Family and Medical Leave Act, please keep in mind that the Supreme Court’s decision did not hold that the Fair Labor Standards Act specifically authorized enforcing time and one-half compensatory time, but that it did not prohibit such forced use. The Department of Labor’s regulations implementing the Family and Medical Leave Act, however, at 29 C.F.R. 825.207 provide that " compensatory time off is not a form of accrued paid leave that an employer may require the employee to substitute for unpaid FMLA leave." Given the context of the regulation, I do not believe it can be successfully argued that "unpaid FMLA leave" would not exist where the employee was seeking to use paid leave. I do not believe that we can force the use of FLSA compensatory time when the employee is out on a FMLA absence. Those same regs provide, however, that where the employee elects to use that FLSA compensatory time such time off cannot be counted against the FMLA entitlement.

This same analysis does not hold true for straight compensatory time, however. The FMLA regulation quoted above is specifically addressed to FLSA compensatory time and should not apply to compensatory time given under Civil Service Rules. Without such a restriction and given that the primary goal of the Family and Medical Leave Act is to preserve an employee’s job while they are away from the workplace, I believe that the better argument is that the straight time can be substituted.

By way of brief summary, with the FMLA exception noted above, all compensatory time can be required by the employer to be used by the employee at any time.

The Civil Service Commission citation is listed above, and the United States Supreme Court decision is Christensen, et al. vs. Harris County, et al., 120 S. Ct. 1655 (2000).

It sometimes occurs that a terminated employee and the appointing authority will settle the appeal where a resignation is substituted for the termination. It sometimes further occurs in these cases that the employee will then assert a right to the payment of 300 hours of annual leave pursuant to Civil Service Rule 11.10. Such a claim can present issues requiring detailed legal analysis, but the matter has recently been settled very directly by the Civil Service Commission. In the Appeal of Young, Docket No. S-13808, March 29, 2001, the Commission held that "Civil Service Rule 11.10 is not meant to apply to settlements wherein a resignation is substituted for a termination," because "in such a case the parties are simply settling their differences and there is no separation as contemplated by that rule." The Commission went on to recognize that there was no prohibition against agreeing to such payment, but that Rule 11.10 did not mandate such payment. Stated otherwise, when a resignation is substituted for a termination the employee has no right to the 300 hours of annual leave absent an agreement to the contrary. This decision does not affect the application of Rule 11.10 at the initial separation of the employee.

My newsletter of February 8, 2000 addressed the Commission’s decision in the Appeal of Clary, Docket No. 13189, which fixed the procedure and standard for enforcing annual leave. A subsequent decision in the Appeal of Munson, Docket Nos. 11231 and 11376 (consolidated) further refines enforcing annual leave.

It is the view of the Civil Service Commission that when an employee is suspected of wrongdoing and where removing the employee from the workplace would be in the best interest of state service during an investigation, Rule 12.10 regarding suspensions pending investigation should initially be used. This allows an initial suspension of thirty days and, with the approval of the Director, thirty more days. The Commission is of the view that an investigation should be capable of being concluded within sixty days. It does recognize, however, that some investigations may extend beyond sixty days despite the best efforts of the appointing authority to bring the investigation to a conclusion within that time. In such case, enforced annual leave or enforced compensatory time may be utilized while the investigation is brought to a speedy conclusion.

In Munson, supra, the employee was first placed on enforced annual leave, then forced compensatory time, and finally suspension pending investigation before he was terminated. The Referee in that case upheld the termination, but awarded the restoration of the annual leave that had been enforced. The Referee specifically declined to award compensatory time because the appellant was in a senior management position and would have had his compensatory time cancelled without pay when he left.

Thanks for your attention. I expect that my next newsletter will be on the subject of investigations and the right to counsel.

Sincerely,

Robert R. Boland, Jr.
General Counsel