Residency Requirements for Public Employees

Municipalities commonly require, as a term and condition of employment, that municipal employees be residents of the City/Town for whom they are employed. This is a very emotional issue for both citizens and employees. The citizens and elected officials often press for residency requirements on claims that it is a benefit to the community for employees to be residents. The theory is that employees who are residents are more committed to the community. They pay taxes in the community, own homes, use the schools and participate in the civic life. Some argue that it is a fair obligation to be required to be a resident in exchange for public employment. However, such requirements put a large burden on the public employees who lose choice in where they can live. This impacts not only the employee him/herself but also the family of the employee. If a family wants to live together a spouse/partner may be limited in where he/she can work, children are limited as to where to attend school and the employee may be unable to be a close part of his/her extended family, including caring for parents or other family members in need.

Given these important competing interests, there has been a great deal of litigation concerning residency obligations. Nationwide litigation over residency requirements is fairly common. See e.g. Providence Teachers, Union Local 958, AFL-CIO, AFT v. City Council of City of Providence, 888 A.2d 9848 (R. I. 2005) (Rhode Island); Hill v. City of Scranton, 411 F.3d 118 (3rd Cir. 2005) (Pennsylvania); Gusewelle v. City of Wood River, 374 F. 3d 569 (7th Cir. 2004) (Illinois); Eastman v. City of Madison, 117 Wis.2d 106 (1983) (Wisconsin); City of Newark v. PBA Local 3, 272 N. J. Super. 31 (1994)( A.D., New Jersey); New Orleans Firefighters Ass’n Local 632, AFL-CIO v. City of New Orleans, 590 So.2D 1172 (La.1991) (Louisiana); Cleveland Branch, N.A.A.C.P. v City of Parma, 263 F.3d 513 (6th Cir.2001) (Ohio); Morgan v. City of Wheeling, 205 W. Va. 34 (1999) (West Virginia); Lewis v. City of Kinston, 127 N.C.App. 150 (1997) (North Carolina).

The U S Supreme Court has addressed the constitutional issues of a residency requirement and decided that residency requirements do not violate the Due Process Clause or the Equal Protection Clause since they are not “irrational.” In McCarthy v. Philadelphia Civil Service Commission, 424 US 645 (1976), the Court specifically decided that a residency requirement for a public employee does not violate the constitutionally protected right of interstate travel. The Court stated that there is no constitutional right to be employed by the City of Philadelphia while living elsewhere.
Although residency requirements can be proper and enforceable, residency requirements are mandatory subjects of bargaining. City of Worcester and Local 495 SEIU, AFL-CIO MLC (1978). Even in cases where there are city ordinances or charters the duty to bargain should exist. Town of Lee and Lee Police Association, 10 MLC 1262 (1983). Unions are therefore faced with various legal issues. Some examples include:

1. Sudden enforcement of a “dormant” requirement
2. Procedures for measuring compliance with the requirements
3. Definition of residency
4. Exceptions to the requirements

5. Bargaining strategies

Often, the labor relations issues arise when the municipal employer takes action to enforce actively an existing residency requirement. Generally dormant residency requirements can be enforced despite a history of non enforcement or lax enforcement; such lax enforcement does not establish a clear and unequivocal intention on the part of the Employer to forever relinquish its contractual rights with respect to residency. However, individuals who moved believing that they were not required to be residents might be permitted to remain non residents on a reliance theory. Lynn Police Association and City of Lynn (L. Katz, Arbitrator).

Issues also arise over the procedures used for enforcement. Although it is generally accepted that an employer can take action to measure compliance with residency requirements there is much dispute over those mechanisms. Bargaining is also implicated when the Employer changes the procedures or imposes additional obligations. Employers may try to claim that inherent in having a residency requirement is the ability to measure compliance. However enforcement criteria has been found to be bargainable. In re Dracut School Committee 22 MLC 1013 (1995).

Even in cases where compliance procedures are allowed, such procedures cannot require an employee to sign a form consenting to “voluntary termination” for falsification of the residency certification. The employee continues to have contractual just cause protection as well as civil service protection where appropriate. As Arbitrator Roberta Golick found in a case between the City of Boston and the Boston Police Patrolmen’s Association, requiring employees to “voluntarily” terminate their employment is “abhorrent to notions of fairness” and does “violence to the contractual just cause protection.” Therefore enforcement mechanisms should be carefully considered and challenged where they overreach.

The definition of residency for purposes of municipal employee residency requirements is generally stated as “the actual principal residence of the individual, where he or she normally eats and sleeps and maintains normal personal and household effects.” City of Lynn Charter 1999. Even though such a definition may appear straight forward, the application of the residency standards is complicated. For example, there are issues in cases of dual households, where an employer’s family lives outside the city but the employee sleeps at the city residence on workdays. These situations are litigated through city compliance commissions, grievance arbitration or civil service proceedings if the employee is terminated for allegedly being in non compliance with the residency obligation. Determinations are, of course, varied and very fact specific.

Another legal issue that arises is the concept of a “hardship exception” to a residency requirement. Unions can and should take the position that there can be hardship exceptions to any residency requirement. Most often there are employees who have been grandfathered as an exception since they were employed prior to the implementation of a residency requirement. There should therefore be no legal prohibition against creating an exception for hardship as long as that exception has a reasonable basis and is based on principles of fairness.

There are also statutory reasons for a hardship exception. In McDonald v. Menino, 1997 WL 106955 (D. Mass), two disabled employees were fired for violating the Boston residency ordinance. The employees sued for discrimination under the ADA on grounds that the ordinance precluded reasonable accommodations. The City moved to dismiss for failure to state a claim. The court denied the motion finding that the City had provided no reason why the requested accommodation – an exception to the residency ordinance — harmed the City. Therefore even where a residency requirement exists there can be and are exceptions.

Some additional issues can be addressed in bargaining over residency requirements. Unions can negotiate for replacing absolute residency requirements with a requirement that an employee be a resident for a certain number of years and then be permitted to move out of the city. This creates a balance between the claimed benefits to the municipality and the ability of the employee to make choices over where to live. Another method used in bargaining to address the economic burden of residing in an expensive city is for agreements to provide loans or other financing for the purchase of homes in the community. The unions can also establish municipal mortgage programs, such as the one established in Boston by the Boston Unions Residency Coalition.

Considering the clearly emotional and personal aspects to residency requirements it is clear that the challenges will continue.

PERAC – Superlongevity Programs Regulated

At a PERAC meeting on January 25, 2006, there was a change of direction. Instead of adopting proposed legislation as they had voted at the last meeting, they decided to adopt a regulation, a copy of which is attached. This change was based in part upon the belief of some union legislative agents that they could no longer guarantee a favorable outcome (or even reasonably control the outcome) if this issue were put into the hands of the legislature.

The regulation was submitted to the clerk of the legislature on January 31. The regulation will become the law if the legislature approves it or if the legislature does not reject it within 45 days from that submission (that would be March 17, 2006, St. Patrick’s Day). All the legislative agents expect that the legislature will allow the regulation to become effective.

This new regulation grants more extensive grandfather rights than the regulation that was originally proposed. It allows anyone to opt in to a superlongevity plan at any time during a contract that was in effect on January 25, 2006. Such a participant in the plan could then receive his superlongevity benefit for three years, even if that three years took him under a new contract, and he would be able to count the benefit in his retirement. For example, under a contract effective from July 1, 2005 through June 30, 2008, an employee could opt to begin receiving superlongevity as late as June 29, 2008. He would be able to receive superlongevity for 3 years until June 29, 2011 (assuming that the 2008-2011 contract continued to provide superlongevity) and then retire on June 30, 2011 and have his superlongevity counted in his retirement.

If a contract expired on June 30, 2005 (or before) and is continuing beyond January 25, 2006 pursuant to an evergreen clause, an employee who wants superlongevity will have to opt into the plan before that contract is replaced with a new agreement.

When the current contract is going to be replaced, we will need to modify our superlongevity plans to accommodate this regulation. I would recommend that we provide a continuation of superlongevity benefits for those who have already opted into the superlongevity plan, and then provide an alternative benefit all other employees. For an alternative benefit, I would suggest either a large longevity step at 29 or 30 years of service, or a “senior employee benefit” (a new wage step for one or more of the most senior employees in the department).

In advising members or in taking any action with respect to new contract provisions, remember that the regulation is not yet final. Although everyone expects it to become law, anything could happen up at the state house.

PEARC Regulations