Calling staff to the break room to explain layoffs can be traumatic.

Throughout the campaign, week in and week out, the incumbent showed up at every function with the same hands in tow, the ones who gave people buttons and pamphlets and looked out for the candidate's every need. To the challenger, these people were the enemy, just as much as the campaign manager and the county chair of the opposing party.

Despite the odds, the challenger prevailed. And she knew what her first priority would be: fire all those county employees who worked so hard for the incumbent -- clean house of the people whose loyalties were with the past, instead of the future. The big broom sweeps clean.

But although newly elected officials have the legal right to terminate staff who were hired "at will," the determination to indiscriminately clear out the cobwebs often proves to be a costly proposition for the county's taxpayers, not to mention forcing the new officeholder to devote hours to lengthy paperwork or uncomfortable lawsuits. At a minimum, fired employees will cost the county the expense of paying unemployment compensation claims (See related article "Temporary employment relief paid by taxpayers").  "It may well be appropriate for someone who's coming into office to send packing those people who they don't feel comfortable with, but new officials need to realize that there can be serious costs involved if the matter is hand-led poorly," said Richard Slagle, manager of loss control services at the Texas Association of Counties.
     

The veteran personnel specialist said many supervisors  do not take into account that the long-standing concept of "at will" employment -- the idea that anyone can be hired or fired at the employer's uncontrolled discretion -- has been narrowed considerably in recent years by new laws designed to prevent discrimination against various protected classes: sex, race, age, disability, religion, etc.
     

"The problem with cleaning house too broadly is that if some employee falls within a protected status of employment and  can prove the firing was for that reason, or even that the people not terminated don't fall within that class, then an attorney may well convince a judge or jury that the decision was based on bias or discrimination for an illegal reason," Slagle said. "If a dozen people are terminated but three white Protestant females are kept on, those who are not white Protestant females may have a good case that they were wronged."
    

Besides claims of discrimination (See "EEOC process a nightmare"), canned employees can take the county to court with allegations that they have been retaliated against for exercising various legal rights. Federal and state laws grant protection against retaliation for those who file workers compensation claims, for example, as well as those who take advantage of Fair Labor Standards Act rights, Family and Medical Leave Act opportunities, Americans with Disabilities Act protections or Whistleblower Act allegations.

And of course, there is a constitutional right to exercise free speech, which may arise if an employee is outspoken about how good the former incumbent was or how little regard he has for the new officeholder.  "Generally the right to exercise free speech in employment situations involves speaking out on an issue of public interest, as opposed to personal interest," Slagle said. "That is, an employee is protected in commenting that an action is bad public policy but not in saying that some decision is bad for them personally."

Sometimes a change-of-office housecleaning sweeps too cleanly, Slagle said.  "Most employees feel like they work for the county more than they work for an individual public official -- they work for the public," he said. "Often we hear of officials who wished that they had thought twice about losing longtime employees who brought years of experience to an office. Keeping people who understand county procedures and have  knowledge of why things have been done certain ways can prevent having to re-invent the wheel in your office."

Slagle said experience has taught that the best reason to get rid of an employee is for a valid work-related reason that has to do with failure to meet a measurable standard of job performance. Not only is that the best legal defense but it also is the fairest approach, he said.  "On your first day in office, call people in and let them know what you expect of them," he said. "As you get to know each employee's role, set standards of performance and then evaluate each person on how well he or she is meeting those standards over a reasonable period of time."

On the other hand, some new officials will feel justified in letting go those who were aggressively involved in supporting the incumbent. "If someone campaigned hard against you or slandered your good name across the county, those facts are likely to be regarded as legally valid reasons to put someone off the payroll," Slagle said.  "Our system of employment protections that are in place generally regard it as acceptable to expect political loyalty from your employees whenever they occupy certain key positions orÊwork in a small office," he said. "There are times when it's acceptable to inform such a person that you don't feel that you can count on their loyalty or that you can work comfortably with the individual or develop a productive working relationship. But it's probably wise to consult your attorney in such situations, because of evolving case law."
 

But if all an employee did was put up their boss' campaign sign in their yard, then "you'd better be sure that all those potential allegations of discrimination or wrongful termination don't come into play. And besides, if they just put up a sign, that may have been the least they could do to show loyalty to their previous employer."

caption:Calling staff to the break room to explain layoffs can be traumatic.