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Local governments employ millions of Americans, from police officers and firefighters to teachers and sanitation workers.
As employers, these government bodies must follow employment laws. They are also shielded by unique legal doctrines and subject to constitutional obligations that create a distinct legal landscape different from private employers.
This guide examines when local governments can be held liable for employment-related issues, explaining the rights of public employees and the responsibilities of their government employers.
Understanding Local Government as an Employer
What Exactly Is a “Local Government”?
The term “local government” encompasses diverse entities that govern specific geographic areas within a state. Understanding these distinctions is crucial, as the specific type of entity can influence its powers, responsibilities, and potential liabilities.
Counties often serve as the largest local government by geographic area. Known as “parishes” in Louisiana and “boroughs” in Alaska, they function as the first-tier administrative division of a state. Their powers vary significantly from state to state. In some New England states, they function primarily as judicial districts, while in others, they have broad authority over housing, transportation, and education.
Municipalities include cities, towns, and villages that have corporate status and defined local government. They are responsible for providing services like police and fire protection, road maintenance, and parks within specific geographic boundaries, which can sometimes span across multiple counties.
Townships exist in many states, particularly in rural areas, where land within a county is further divided into townships. These entities are generally overseen by a governing board and provide a more localized level of administration.
Special Districts are independent government units created for a limited, specific purpose. Common examples include school districts, water and sanitation districts, and public transit authorities. They have their own governing bodies and the power to levy taxes and expend funds for their designated function.
A fundamental principle of American governance is that all these local entities are “creatures of the state.” They are created, chartered, and regulated by their respective state governments through state constitutions and statutes. This subordinate relationship means that a local government cannot pass an ordinance that contradicts state law, and its very structure and authority are ultimately derived from the state.
Federal Laws That Apply to Every Local Government
While local governments are creations of the state, they are not insulated from federal authority. A series of landmark federal laws and Supreme Court decisions have established a baseline of rights for public employees across the nation.
Federal Employment Laws Covering Local Government
Preventing Discrimination and Harassment
Title VII of the Civil Rights Act of 1964 is the foundational federal anti-discrimination law. It makes it illegal for an employer to discriminate based on an individual’s race, color, religion, sex (a category that has been interpreted by courts and the Equal Employment Opportunity Commission to include pregnancy, childbirth, sexual orientation, and gender identity), or national origin.
The original 1964 act excluded state and local governments, but this was changed by the Equal Employment Opportunity Act of 1972, which amended Title VII to extend its protections to public employees. Today, Title VII applies to all state and local government employers with 15 or more employees. The law forbids discrimination in every aspect of employment, from hiring and firing to promotions, pay, job assignments, and training. It also prohibits workplace harassment that creates a hostile work environment based on these protected characteristics.
The Americans with Disabilities Act (ADA), enacted in 1990, provides comprehensive civil rights protections to individuals with disabilities. Title I of the act specifically addresses employment discrimination and applies to state and local governments with 15 or more employees. The ADA’s core mandates are twofold:
It prohibits discrimination against a “qualified individual” with a disability—meaning someone who can perform the essential functions of the job, with or without accommodation.
It requires employers to provide a “reasonable accommodation” for an employee’s known disability, unless doing so would cause an “undue hardship” on the employer’s operations. A reasonable accommodation could include modifying equipment, restructuring a job, or providing a more accessible workspace.
Furthermore, Title II of the ADA applies to all programs and services of state and local governments, regardless of their size, offering an even broader layer of protection against disability discrimination.
The Age Discrimination in Employment Act (ADEA) protects applicants and employees who are 40 years of age or older from discrimination based on their age. The ADEA applies to governments of all sizes. The act generally makes it unlawful to include age preferences in job advertisements unless age is a “bona fide occupational qualification,” a narrow exception for jobs where age is reasonably necessary for performance.
A significant amendment to the ADEA, the Older Workers Benefit Protection Act, established strict legal standards for an employee to waive their ADEA rights, such as in a severance agreement, ensuring that any such waiver is “knowing and voluntary.”
Ensuring Fair Pay and Hours: The Fair Labor Standards Act
The FLSA, first enacted in 1938, is the federal law that establishes minimum wage, overtime pay (typically at a rate of one-and-one-half times the regular rate for hours worked over 40 in a workweek), and recordkeeping standards.
For decades, it was assumed that state and local governments were exempt from the FLSA under principles of federalism. However, in the landmark 1985 Supreme Court case Garcia v. San Antonio Metropolitan Transit Authority, the Court ruled that the FLSA does apply to public sector employers. This decision represented a major shift, asserting the federal government’s power to regulate the wages and hours of state and local employees.
The ruling caused significant operational and financial challenges for public agencies. In response, Congress passed amendments in 1985 that created special rules for public employers to provide some flexibility. The most notable of these is the provision for “compensatory time” or “comp time.” Under specific conditions, local governments can provide employees with paid time off at a rate of one-and-one-half hours for each overtime hour worked, instead of cash overtime payments. However, there are limits on how much comp time can be accrued:
- Up to 480 hours for law enforcement, fire protection, and emergency response personnel
- Up to 240 hours for all other local government employees
The FLSA also includes special overtime calculation rules for police and fire departments, allowing them to establish a “work period” of between 7 and 28 days, rather than a standard 40-hour workweek, to account for the unique schedules common in public safety.
Federal Employment Laws Applicable to Local Governments
| Statute Name | Core Requirement / Protection | Applies to Local Governments With… | Enforced By |
|---|---|---|---|
| Title VII of the Civil Rights Act of 1964 | Prohibits discrimination based on race, color, religion, sex, national origin | 15+ employees | U.S. Equal Employment Opportunity Commission (EEOC) |
| Americans with Disabilities Act (ADA) | Prohibits discrimination based on disability and requires reasonable accommodation | 15+ employees | U.S. Equal Employment Opportunity Commission (EEOC) |
| Age Discrimination in Employment Act (ADEA) | Prohibits discrimination against workers aged 40 and older | All public agencies | U.S. Equal Employment Opportunity Commission (EEOC) |
| Fair Labor Standards Act (FLSA) | Establishes minimum wage and overtime pay standards | All public agencies | U.S. Department of Labor (Wage and Hour Division) |
Protecting Constitutional Rights: Public vs. Private Sector Distinction
Perhaps the most profound difference between public and private employment lies in the application of the U.S. Constitution. Private sector employees generally do not have constitutional protections in their workplace; for example, a private company can typically fire an employee for their political speech. Public employees, however, work for the government itself and are therefore protected by the Constitution from certain actions by their employer.
First Amendment (Freedom of Speech): The Supreme Court has long recognized that public employees do not forfeit their First Amendment rights when they accept a government job. However, this right is not absolute. The Court has developed a multi-part test through a series of landmark cases to balance the employee’s right to speak as a citizen against the government’s interest in maintaining an efficient and orderly workplace.
Pickering v. Board of Education (1968) established the core balancing test. The Court ruled that a teacher could not be fired for writing a letter to a newspaper criticizing the school board, because his speech addressed a “matter of public concern” and did not disrupt school operations.
Connick v. Myers (1983) refined the test, clarifying that speech related primarily to a personal workplace grievance, rather than a broader public issue, is not protected. The “public concern” element became a critical threshold an employee must meet.
Garcetti v. Ceballos (2006) added a major limitation. The Court held that when public employees make statements “pursuant to their official duties,” they are not speaking as citizens for First Amendment purposes, and their speech is not protected. This means a city planner who writes a required internal memo about safety violations is not protected from retaliation, whereas if they wrote a letter to the editor about the same issue as a private citizen, they might be.
Fourteenth Amendment (Due Process): The Fourteenth Amendment states that no state shall “deprive any person of life, liberty, or property, without due process of law.” In the context of public employment, the Supreme Court has ruled that many public employees have a “property interest” in their continued employment. This is a fundamental departure from the “at-will” employment doctrine common in the private sector, where employees can be fired for any reason or no reason at all, as long as it’s not an illegal one.
The landmark case of Cleveland Board of Education v. Loudermill (1985) established the minimum due process rights for a public employee with a property interest in their job. Before being terminated, the employee is entitled to: (1) notice of the charges against them, and (2) a pre-termination opportunity to respond to those charges. This pre-termination hearing does not need to be a full-blown trial, but it must provide a meaningful chance for the employee to present their side of the story.
The Government’s Shield: Immunity and Its Limits
The single most significant legal concept separating public sector employment claims from private ones is the doctrine of governmental immunity. This legal shield protects government entities from being sued, and understanding its origins, its application, and its exceptions is critical to determining when a local government can be held liable.
Understanding Governmental Immunity
The idea that a person cannot sue the government without its consent has deep historical roots. It is an American adaptation of the English common law doctrine of sovereign immunity, which was based on the principle that “the king can do no wrong.” The rationale was that the sovereign made the laws and therefore could not be held to have violated them.
In the modern U.S. legal system, a crucial distinction exists between these two related concepts:
Sovereign Immunity is the doctrine that protects the federal government and state governments from lawsuits unless they have explicitly consented to be sued. This immunity is enshrined in the U.S. Constitution’s Eleventh Amendment for states.
Governmental Immunity is the protection extended by states to their political subdivisions, including counties, cities, and school districts. While the U.S. Supreme Court has stated that true sovereign immunity does not inherently apply to municipalities, nearly every state has enacted statutes or developed common law that provides local governments with a similar form of immunity from tort suits. The public policy behind this is to protect the public purse from endless lawsuits and to allow public officials to make decisions without the constant fear of personal liability.
The Key Distinction: “Discretionary” vs. “Ministerial” Acts
The core of the governmental immunity defense hinges on the nature of the government employee’s action that caused the harm. Courts across the country distinguish between two types of functions.
Discretionary Functions (Immune): These are actions that require an employee to exercise judgment, make a choice among alternatives, or set policy. Often described as “planning-level” decisions, they involve the allocation of limited resources and consideration of social, political, or economic factors. A government entity and its employees are generally immune from liability for injuries resulting from these discretionary acts, even if the decision turns out to be a poor one.
Example: A city’s parks department director, facing budget cuts, decides to fund playground upgrades at Park A instead of repairing a cracked sidewalk at Park B. This allocation of resources is a discretionary policy decision. If someone later trips on the cracked sidewalk at Park B, the city would likely be immune from a lawsuit because the decision not to repair it was a discretionary function.
Ministerial or Operational Functions (Not Immune): These are actions that involve the execution or implementation of an established policy or a prescribed task. These “operational-level” duties do not involve significant judgment or discretion; the employee is required to perform them in a specific manner. A government can be held liable for an employee’s negligence in the performance of a ministerial duty.
Example: Following the parks director’s decision, a maintenance crew is sent to Park A to install the new playground equipment. The crew is required by a city safety manual (an established policy) to put up safety fencing during construction. If they fail to do so, and a child wanders onto the site and is injured, the city could be held liable. The act of putting up the fence was a non-discretionary, ministerial task, and the crew was negligent in performing it.
Piercing the Shield: When Immunity Is Waived
While governmental immunity provides a powerful defense, it is not absolute. There are several legal pathways through which an individual can “pierce the shield” and hold a local government accountable. Successfully suing a local government depends entirely on fitting the claim into one of these established waivers of immunity.
State Tort Claims Acts
Recognizing the potential for injustice under the absolute immunity doctrine, most states have passed legislation known as Tort Claims Acts. These acts function as a limited, statutory waiver of governmental immunity, allowing citizens to sue government entities for certain types of torts—typically those arising from the negligent performance of ministerial duties.
However, these waivers come with strict conditions. State Tort Claims Acts almost always include:
Strict Notice Requirements: A claimant must typically provide a formal “Notice of Claim” to the government entity within a very short period after the injury occurs (e.g., 90 days in New York, 182 days in Colorado). Failure to provide this notice in the proper manner and within the deadline can permanently bar the lawsuit.
Damage Caps: Many acts limit the amount of money a claimant can recover from a government entity. For example, Florida’s waiver limits liability to $200,000 per person and $300,000 per incident, unless the legislature approves a higher amount. Georgia has set limits of $1 million per person and $3 million per occurrence.
Specific Exclusions: These acts often list specific government activities for which immunity is not waived, such as injuries arising from tax collection, the issuance or denial of permits, or riots.
When Federal Law Overrides Immunity
The Supremacy Clause of the U.S. Constitution establishes that federal law is the “supreme Law of the Land.” This means that when Congress passes a federal law and explicitly makes it applicable to state and local governments, that federal law overrides any state-level immunity defense.
This is the primary mechanism through which local governments are held liable for employment discrimination. When Congress passed Title VII, the ADA, and the ADEA and extended their coverage to public employers, it created a federal cause of action that cannot be blocked by a state’s governmental immunity doctrine. Therefore, if a city employee files a lawsuit alleging age discrimination under the ADEA, the city cannot use its state-based governmental immunity as a defense.
The Landmark Case of Monell and “Policy or Custom” Liability
For claims involving the violation of constitutional rights—such as the First Amendment free speech or Fourteenth Amendment due process rights discussed earlier—the path to liability is through a federal statute known as 42 U.S.C. § 1983. This law allows individuals to sue government officials who deprive them of their constitutional rights “under color of state law.”
For many years, it was unclear if a local government itself could be sued under this statute. That changed with the 1978 Supreme Court decision in Monell v. Department of Social Services. In Monell, the Court ruled that municipalities and other local government units are “persons” that can be sued directly under § 1983 for monetary, declaratory, or injunctive relief.
However, the Court placed a critical limitation on this liability. A local government is not liable simply because it employs someone who committed a constitutional violation (a legal doctrine known as respondeat superior). Instead, the government entity itself is only liable when the employee’s action was the result of an official “policy or custom” of the municipality.
To win a Monell claim, a plaintiff must prove that the unconstitutional act was caused by one of the following:
- An explicit policy, statement, ordinance, or regulation formally adopted by the government’s lawmakers (e.g., a city council passing a discriminatory ordinance)
- A persistent and widespread practice or custom that, although not formally written down, is so common and well-settled as to constitute the “standard operating procedure” of the entity
- A decision made by a final policymaker for the government entity (e.g., a police chief with final authority over disciplinary matters making a retaliatory firing decision)
- A failure to adequately train or supervise employees in a way that amounts to “deliberate indifference” to the constitutional rights of the public (e.g., a police department failing to train its officers on the constitutional limits of the use of force)
The Monell “policy or custom” requirement creates a high bar for plaintiffs. It is not enough to show that a single rogue officer or manager violated someone’s rights; the plaintiff must connect that violation to a broader municipal policy or a systemic failure, which can be very difficult to prove.
Common Claims Against Local Governments
The legal principles of federal statutes, constitutional rights, and governmental immunity come to life in the specific claims filed against local governments every day. These lawsuits often arise from actions that employees believe are unfair, discriminatory, or retaliatory.
Discrimination, Harassment, and Retaliation
These are among the most frequent claims and are typically brought under federal laws like Title VII, the ADA, and the ADEA.
Discrimination involves an employer taking an “adverse employment action” (such as firing, demotion, or failure to hire) against an employee because of their protected characteristic. For example, a county fire department might be liable for sex discrimination if it uses a physical agility test that is not job-related and disproportionately screens out female applicants.
In a recent significant case for local governments, Muldrow v. City of St. Louis, the Supreme Court lowered the bar for proving harm in a discrimination case involving a job transfer. The Court held that an employee challenging a transfer under Title VII only needs to show “some harm” with respect to the terms or conditions of their employment, not a “significant” or “material” harm, making it easier for employees to bring such claims.
Harassment occurs when an employee is subjected to unwelcome conduct based on a protected characteristic that is so severe or pervasive it creates a hostile or abusive work environment. For instance, a city sanitation department could be liable if a supervisor repeatedly makes offensive jokes and slurs about an employee’s national origin in front of coworkers, and the city fails to take corrective action after being notified.
Retaliation occurs when an employer punishes an employee for engaging in legally protected activity, such as filing a discrimination complaint, serving as a witness in an investigation, or requesting a reasonable accommodation. An example would be a school district giving a teacher a negative performance evaluation and an undesirable classroom assignment immediately after the teacher reported sexual harassment by the principal.
Wrongful Termination
Beyond claims of discrimination, a local government can be liable for firing an employee for reasons that violate a clear mandate of public policy. This is a crucial exception to the “at-will” employment doctrine. While a private employer might be able to fire an employee for almost any reason, a public employer cannot fire someone for upholding the law or exercising a fundamental right.
Common examples include firing a public employee for:
- Refusing to commit an illegal act, such as a municipal accountant being fired for refusing a supervisor’s order to falsify financial records to hide a budget deficit
- Exercising a statutory right, such as a city hall clerk being terminated shortly after filing a legitimate workers’ compensation claim for an on-the-job injury
- Performing a public duty, like being fired for missing work to serve on a jury
- Whistleblowing, which involves reporting illegal conduct, waste, or fraud by the government agency to the proper authorities
Violating Constitutional Rights
As government actors, local governments can be sued for violating the constitutional rights of their employees. These claims are typically brought under 42 U.S.C. § 1983 and require the employee to meet the Monell “policy or custom” standard to hold the entity liable.
First Amendment Retaliation: A classic example is a public works employee who is fired after speaking at a city council meeting to criticize the department’s spending priorities. This speech is likely a matter of public concern, and if the employee can prove the speech was the motivating factor for the firing, they may have a valid claim under Pickering. Conversely, if that same employee was disciplined for complaining to their boss about their work schedule—a personal grievance—the speech would not be protected under Connick.
Due Process Violations: A tenured public school teacher who has a property interest in their job cannot be fired on the spot without any explanation or chance to be heard. If the school district terminates them without providing notice of the specific charges and a pre-termination hearing, it has violated the employee’s procedural due process rights as established in Loudermill.
How to File an Employment Claim
For an employee who believes their rights have been violated, knowing the correct procedural steps is just as important as having a valid claim. The government has created a system with multiple, short, and unforgiving deadlines that can trap even those with meritorious claims.
Step 1: The Internal Complaint
Most government agencies have internal grievance or complaint procedures. While not always a legal prerequisite to an external claim, it is often a wise first step to try and resolve the issue internally and to create a record that the employer was put on notice of the problem.
Step 2: Filing with the EEOC (for Discrimination Claims)
For any claim of discrimination under Title VII, the ADA, or the ADEA, an employee must first file a formal “Charge of Discrimination” with the U.S. Equal Employment Opportunity Commission before they can file a lawsuit in court. The process generally involves:
Submitting an Inquiry: The process begins by submitting an online inquiry through the EEOC’s Public Portal.
EEOC Interview: The EEOC will then conduct an interview with the individual to gather facts and determine if the claim falls under its jurisdiction.
Filing the Charge: If the claim is viable, the EEOC will help the individual draft and file a formal Charge of Discrimination, which is then served on the employer.
Crucial Time Limits: There are strict, non-negotiable deadlines for filing an EEOC charge.
- The charge must be filed within 180 calendar days from the day the discrimination took place
- This deadline is extended to 300 calendar days if the state or locality has its own anti-discrimination law and an agency (known as a Fair Employment Practices Agency or FEPA) that enforces it
- Missing this deadline will almost certainly result in the permanent loss of the right to sue under these federal laws
Step 3: Navigating State Tort Claims Procedures (for Negligence Claims)
For claims based on state tort law (such as a claim of simple negligence), the process is dictated by the state’s Tort Claims Act. A nearly universal requirement is that the claimant must first provide a formal “Notice of Claim” to the specific government entity they intend to sue.
This notice must be filed before a lawsuit can be initiated and serves to inform the government of the potential claim so it can investigate. These notice periods are often extremely short—sometimes as little as 90 days from the date of injury—and failure to comply with the exact requirements for what the notice must contain and how it must be delivered can be fatal to the case.
Legal Resources for Public Employees
Navigating the complexities of an employment claim against a local government can be daunting. Numerous federal, state, and non-profit organizations provide information and assistance.
Federal Agencies
U.S. Equal Employment Opportunity Commission (EEOC): The primary federal agency for enforcing anti-discrimination laws. Provides extensive resources for employees and a portal to file charges.
U.S. Department of Labor (DOL): Enforces the FLSA and provides information on wages, hours, and other labor standards.
State Agencies
Every state has its own labor department and often a human rights or civil rights commission that handles employment issues. These agencies are a crucial resource for understanding state-specific laws.
Examples include:
- Colorado Department of Labor and Employment
- New York State Department of Labor
- Georgia Department of Labor
- Idaho Department of Labor
Non-Profit Legal Aid
For employees who cannot afford a private attorney, several organizations offer free or low-cost legal assistance in civil matters, including employment disputes.
Legal Services Corporation (LSC): A federally funded non-profit that supports local legal aid offices across the country.
LawHelp.org: A resource that helps people with low and moderate incomes find free legal aid programs in their communities.
Legal Aid at Work: A non-profit that provides free legal services and resources specifically for workers, particularly in California.
National Disability Rights Network: Provides legal advocacy services for people with disabilities in every state.
The landscape of local government employment law reflects the complex balance between protecting public employees’ rights and allowing government entities to function effectively. Understanding these rules empowers public employees to know their rights while helping government employers navigate their legal obligations.
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