Coolidge Wall Co., L.P.A.
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Government Employers: Do Your Current Termination Practices Protect You from Procedural Due Process Claims?

What is procedural due process? Procedural due process is a constitutionally protected interest. Due to this interest, prior to any taking of life, liberty, or property by the government, United States' citizens are entitled to notice and the opportunity to be heard.

Public employers should particularly be concerned with their employees' property and liberty interests and educate themselves on the type of process due to its employees prior to, and in some cases after, the termination of an employee.

Property Interest

In the public employment context, some employees may have a property interest in their continued employment. To determine whether a property interest in employment exists, the court generally inquires as to whether the employee had a reasonable expectation that their employment could only be terminated for good cause. Courts have determined this reasonable expectation can be created in a variety of ways including: (1) by a law which classifies certain employees that may only be terminated for cause; (2) by mutual understanding via an enforceable contract; or (3) by the employer's unequivocal intent to be bound to a contractual relationship with the employee. This unequivocal intent can even be evidenced by language in an employee handbook.

When an employee has a property interest in their continued employment, employers must give the employee notice and an opportunity to be heard before the employee is terminated. Only extraordinary situations, where some valid governmental interest is at stake, justify postponing the hearing until after the termination.

Terminating employees who have a property interest in their employment without notice and the opportunity to be heard may violate the employee's procedural due process rights and leaves the public employer susceptible to unwanted litigation.

Liberty Interest

All employees have a protected liberty interest in their reputation, good name, honor, and integrity. When an employee is deprived of any one of these in connection with being terminated from their position, they are entitled to due process of the law in the form of a name-clearing hearing. In the Sixth Circuit, which includes Ohio, the employee must request a name-clearing hearing in order for the employer to be liable for violating the employee's liberty interest.

The Sixth Circuit has established five elements that a terminated employee must satisfy in order to show they were deprived of a liberty interest entitling them to a name-clearing hearing:

  1. There must be stigmatizing statements made in conjunction with the employee's termination from employment.
  2. The statements must allege more than improper or inadequate performance, incompetence, neglect of duty, or malfeasance.
  3. The stigmatizing statements or charges must be made public.
  4. The employee must claim that the charges made were false.
  5. The employer's circulation of the information must have been voluntary.

If all five of these elements are established and the employee has requested a name-clearing hearing, the employer must give the employee a hearing, or they may be violating the employee's due process rights.

The only requirement of a name-clearing hearing is that it must provide an opportunity to clear one's name. The requirements of a particular hearing will depend on a fact-intensive review of the circumstances of the termination and how the employee's good name, reputation, honor, and integrity were affected.

For more information on how to develop proper practices for avoiding a constitutional claim against you, contact Jennifer R. Roberts, Esq. at (937) 228-8177 or [email protected].

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