Employment contract

Private vs. Public: What Are Your Employee Rights?

Private sector employees work for businesses and nonprofits; public sector employees perform official functions, such as law enforcement, public education and public safety. As you can imagine, people in these roles will have different employee rights.

For one, many public sector employees are granted certain rights that are not available to those in the public sector. Conversely, some rights—such as speech and union activity—are limited for public sector employees.

We wanted to explain more of these differences, as some of them are quite dramatic.

Job Security: Cause vs. “At Will”

One of the biggest differences between the public and private sector is grounds for termination.  When facing the potential for termination, public sector employees generally have a constitutional right to a fair process and fair hearing before they can be fired. This means that they have a right to know why they are being disciplined and to explain their side of things before they may be disciplined or fired.

Employment contract

This is a process called a Loudermill hearing – which is based on the name of a court case from the US Supreme Court (Loudermill v. Cleveland Board of Education).

Many private sector employees are at “at will” employees. This means they can be terminated for any reason (other than race, gender, orientation or testifying truthfully for employment rights). On the other hand, public sector employees generally are not able to be terminated or disciplined unless there is proper cause.

If a government employee is disciplined without cause, he or she may present reasons as to why no basis exists for the termination or discipline.

Freedom of speech

Do you remember the story of the controversial memo from the Google employee? An employee released a memo expressing his views on gender equality in the workplace. Shortly after, he was fired. This is legal in the private sector: you can be fired based on the views you express.

Meanwhile, public sector employees are protected for their speech, so long as it doesn’t impede the agency’s ability to function.

Participation in unions

According to federal law, private sector employees are granted the right to join unions, which includes the ability to negotiate wages and protest working conditions. They are not allowed to be fired or punished for joining one.

Public sector, in most states, are also allowed to join and negotiate benefits, they just aren’t protected by federal law.

Self-incrimination and interrogations

In an investigation at the workplace, employers can order employees to talk to them about matters. In the private workplace if the employee talks, the employer may turn their statements over to the police and prosecutors where it may be used against them in court if they are charged with a crime.  

Teacher holding globe

This is not the case with a public sector employee, such as police officers, school teachers or even the local parks and recreation employee. Public sector employees are protected by another US Supreme Court case called Garrity v. New Jersey. They have “Garrity Rights”, which protect them from being forced to talk to their employer (the government) and then having their statements used against them in a criminal court.

Public sector employees don’t get special rights here – they just get the same rights any other citizen has. If the government forces someone to talk by threatening them or ordering them to talk, then their statements can’t be used in a criminal court (any statements made can be used by the government employer to discipline or fire the person, though).

Both public and private sector employees have the right to work with a union representative as protection during workplace investigations.

Know your employee rights in Washington state

In any case, whether you work in the public or private sector, it’s critical to know your employment rights.

At Northwest Legal Advocates, our team brings decades of experience in protecting Washington state’s employees. Should you face an issue or potential employment complication, reach out to us.

Posted on August 29, 2017. Filed under Employment.

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