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 how the government cannot take away a citizen's life, liberty, or property interest without giving them notice and a fair hearing.

The right to due process is enshrined in the Fourteenth Amendment to the U.S. Constitution. The right to due process often comes up when the government needs to take someone's property for public use. However, from time to time, government employees have a property interest in their jobs and are entitled to due process before they can be fired.

This typically comes into play when there is a disciplinary action taken against a government employee whose employment terms are spelled out in a contract. This is often the case when that contract is negotiated by a union. In most states, private employment is considered "at will," which means that the employer may terminate employment at any time for any reason without due process.

When is a Government Employee Entitled to Due Process?

Not every government employee has a right to due process. The right only exists when the employee has a property interest in their job. For example, a public employee who doesn't have a contract or a legitimate claim of entitlement is typically not entitled to due process. An employee will also typically not have due process rights during the probationary or trial period of their employment.

An employee has a property interest when:

• A written or implied contract states that the employee has a property interest.
• The employer's past practices give the employee a property interest. In other words, if the employer had been giving its employees notice and hearing before losing their jobs in the past, then future and current employees also have a right to due process before losing their jobs.
• There is a statute or regulation that gives the employees a property interest.

The most familiar example of a government employee with a property interest is a tenured teacher, because typically a tenured teacher can only be fired after the government shows just cause and gives them a hearing. In most cases, teacher unions represent teachers who are involved in disciplinary processes.

What Does Due Process Give Employees?

Due process does not mean that government employees just get to keep their jobs under any circumstance. Instead, it means that the government must do the following when it wants to fire an employee:

• Provide evidence of the reasons for termination,
• Give advance notice of the termination, and
• Give the employee the chance to be heard at a hearing.

At the hearing, the government must show that it has a good reason for firing the employee, and the employee has a chance to argue that they should stay employed.

Public employers are at risk of being sued when they deny eligible employees their due process rights.

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

Although private employment is typically "at will," public employees generally have more protections and must be given due process before being terminated. This generally involves a hearing. At such a hearing, the employee may defend against the employer's claims. If your due process rights are violated, you may have a valid claim of wrongful termination. To learn more, talk to a local employment attorney today.