ABA Family Legal Guide

Law and the Workplace

On the Job

Special Rights of Public Employees

How does due process protect a public employee?

The Fifth Amendment to the U.S. Constitution provides that no person shall be "deprived of life, liberty, or property, without due process of law." This means that people accused of crimes have certain protections under the law, as do those whose property the government seeks, as when the government needs a homeowner's property to widen a road. But when is a job "property"?

The courts have held that an employee has a property interest in a job if there is a written or implied contract granting the employee a property interest in the job; if past practice of the employer shows that the employee has a property interest in the job; or if a statute gives the employee a property interest in the job. For example, a teacher with tenure is considered to have a property interest in his or her job, because there is the express or implied understanding that a teacher cannot lose that job without just cause.

If a public employee has a property interest in a job, he or she cannot be discharged without due process. Due process requires that the employee be given notice of the reason for being discharged and a fair hearing at which to contest the decision.