§17.1 Residency Requirements for Public Employees

• Library: Labor and Employment Law: Public Sector (OSBar) (2011 Ed.)

§17.1 RESIDENCY REQUIREMENTS FOR PUBLIC EMPLOYEES

Sometimes a governmental entity requires its employees and job applicants to reside within the government's geographic boundaries. Although residency requirements can be problematic, public employers maintain that they promote citizen support of the government, increase employee awareness of municipal issues such as taxation consequences, and enhance safety by promoting quicker responses to emergency situations.

A governmental entity may require either a durational residence, a continuous residence, or both. If durational residency is required, an employee or applicant must have a prior residency of a given duration before appointment or employment. See McCarthy v. Philadelphia Civil Service Comm'n, 424 US 645, 647, 96 S Ct 1154, 47 L Ed2d 366 (1976) (per curiam). A durational residency requirement may be as brief as four months or as long as seven years, depending on the type of public employment being sought. See Kuczka v. Clark, 441 NYS2d 854, 859 (NY Sup Ct 1981), rev'd on other grounds, 448 NYS2d 325 (NY App Div), aff'd, 445 NE2d 204 (NY 1982) (four-month requirement for peace officer applicants); Sununu v. Stark, 383 F Supp 1287, 1289 (D NH 1974) (three-judge panel), aff'd, 420 US 958 (1975) (seven-year requirement for state senatorial candidates); Chimento v. Stark, 353 F Supp 1211, 1212 (D NH) (three-judge panel), aff'd, 414 US 802 (1973) (seven years for gubernatorial candidates).

If continuous residency (also known as bona fide or simple residency) is required, the employee or officeholder must continue to reside within the jurisdiction's boundaries throughout the period of employment. See McCarthy, 424 US at 647.

§17.1-1 Federal Constitutional Concerns

Residency requirements for public officers and employees are subject to federal constitutional scrutiny. Residency requirements may violate the equal protection clause of the Fourteenth Amendment to the Constitution when they unreasonably discriminate against persons or classes regarding qualifying for public employment or public office. See 3 Eugene McQuillin, Municipal Corporations §12.59, at 324 (3d ed 2000) (supplemented periodically). A residency requirement that infringes on a fundamental right, such as the right to travel, or that is based on a suspect class, is subject to strict scrutiny analysis. That is, the requirement will be constitutional only if it is narrowly tailored to serve a compelling state interest. See Maldonado v. Houstoun, 157 F3d 179, 185-189 (3d Cir 1998); Bruno v. Civil Service Com., 472 A2d 328, 345-346, 349-350 (Conn 1984). If no fundamental right or suspect class is implicated by the residency requirement, a lower level of constitutional analysis is involved, and the residency requirement will be sustained as long as it bears a rational relationship to a legitimate government purpose.

Many courts have held that durational residency requirements for employees violate the equal protection clause because they interfere with the fundamental right to travel. See Bruno, 472 A2d at 351 (nonresident recreational supervisor who did not meet one-year durational residency requirement for position of recreational superintendent was unlawfully denied fundamental right of travel because city could not show compelling interest to support its requirement). See also Walsh v. City & County of Honolulu, 460 F Supp2d 1207, 1215 (D Haw 2006) (Hawaii's statutory...