How Does Due Process Protect a Public Employee?

Among the lesser-known rights held by each American citizen is the right to due process. This right pertains to whether the government can take your life, liberty, or property interest without giving notice and a fair hearing.

The right to due process exists through the Fourteenth Amendment to the Constitution. It often comes up when the government takes your property for public use. However, government employees also have a right to due process. This right exists when the government attempts to take a property interest in a public employee's job. Before the government fires someone, it must offer them due process of law.

We see due process at stake when the State takes disciplinary action against a government employee. Due process applies if the worker's employment terms exist in a written contract. Most of these cases involve contracts a union rep helps negotiate.

In most states, private employment is "at will." This means the employer may fire someone at any time without due process.

This article will explain what due process is. It will also discuss what due process means in employment law.

The Due Process Clause of the Constitution

As stated above, the due process clause arises from the 14th Amendment to the Constitution. The federal government and the United States Supreme Court passed the amendment to help protect citizens from unlawful and unfair takings.

A taking can be a variety of things. For example, with eminent domain, the government takes property from an individual or business. With an employment contract, a taking may exist when a government employer fires an employee.

The taking does not have to be physical. It can be a liberty interest (freedom), such as when a person goes to jail. It can be a financial interest, such as an employee's right to fair wages. It also includes a job applicant's right to enjoy the same interview process regardless of race, age, or gender.

Does Due Process Exist in Both Public and Private Sector?

The general rule is that the procedural protections of due process do not extend to workers in the private sector. Only people who work in the public sector have the guarantee of substantive and procedural due process.

This doesn't mean state laws don't protect private employees but rather means the safeguards are different. For example, private workers are employees at will. They don't have a chance to tell their side of the story before their employer fires them.

There may also be local laws that protect you from things like employment discrimination. These are different from constitutional due process.

Government Employees and Due Process

Not all government employees have a right to due process. It's only when the employee has a property interest in their job. For example, a public employee without a contract or legitimate claim of entitlement cannot demand due process. Employees also don't have due process rights during their probationary or trial period.

An employee has a property interest in the following situations:

• A written or implied contract says the employee has a property interest.
• The employer's past practices give the employee a property interest. For instance, if the employer gave employees notice and hearing before losing their jobs in the past, future and current employees also have a right to due process.
• A statute or regulation gives the employees a property interest.

A typical example of a government employee with a property interest is a tenured teacher. Administrators can only fire tenured teachers if they have cause. The Board must also give the teacher a hearing.

Once the school fires the teacher, the educator can also demand a post-termination hearing. It depends on what their collective bargaining agreement says. If the teacher wins at this hearing, they'll receive a reinstatement. If they lose, the termination will be firm.

In most cases, teacher unions represent teachers involved in disciplinary processes.

What Does Due Process Give Employees?

Due process does not mean that government employees always keep their jobs. It means the government must do the following before it fires an employee:

• Provide evidence of the reasons for termination
• Give advance notice of the termination
• Hold a hearing on the matter

The government must show a good reason for firing the employee at the hearing. The employee has a chance to argue why they should stay employed.

Employees can sue a public employer if they don't receive their due process rights.

Protect Your Due Process Rights as an Employee: Get Legal Help

Private employment is typically at will. Public employees have more due process protections and must receive due process before termination. You may claim wrongful termination if the government or your employer violates your due process rights.

To learn more, talk to a local employment attorney today.