leslielasherBy Leslie Lasher

A standard piece of advice employment lawyers always give is to “follow your policy.” That tiny piece of advice just became a lot more important for public employers, as the North Carolina Court of Appeals recently held that public employees have a constitutional right in the processes and policies established by their employers.

In the case of Tully v City of Wilmington, the Court of Appeals found that the City violated the constitutional rights of Officer Kevin Tully of the Wilmington Police Department.  An 11-year veteran of the WPD, Tully applied for a promotion in 2011, hoping to achieve the rank of sergeant. As part of the promotional process, the City required a written examination based on knowledge of the law. Tully, after being issued a failing grade and thus having his petition for promotion blocked, challenged the integrity of the examination and its scoring, contending that the questions presented were based on previous law and failed to take into account updated statutes.

The City rejected Tully’s grievance, determining that the challenge to the examination was not “grievable” under the City’s policy.  The trial court found in favor of the City and issued a judgment on the pleadings. The Court of Appeals reversed, holding that the City’s failure to follow its own policies (which allowed employees to “appeal any portion of the selection process”) violated Tully’s right to due process. With a strong dissent, it is likely this case will land in front of the North Carolina Supreme Court.

Regardless of whether appeal is taken, however, Tully v. Wilmington should provoke a risk management discussion for all employers.  Employers should ensure that internal policies, including grievance policies, are up-to-date. As the Court found it, the City’s biggest mistake was the failure to actually follow its own grievance policy. In light of the potential constitutional implications, it is particularly important for public employers to ensure that managers and department heads know how to execute policies appropriately. Issues should be proactively and quickly addressed to avoid the legal expense, possible monetary damages, and detriment to reputation causing decline in both employee engagement and public confidence.

As an attorney focused on employment law, I take the advice of “follow your policies” much further by counseling clients on how to most effectively articulate employment policies, both in writing, through management training, and in application.  My goal is to strike the appropriate balance between employer protection and compliance, promoting a fair workplace where good employees can be recruited and retained, and where public trust is upheld. Please let me know how I can assist with your employment policies and strategies.