{"id":357849,"date":"2016-04-04T10:45:29","date_gmt":"2016-04-04T15:45:29","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-law\/employment\/wages-and-benefits\/how-does-due-process-protect-a-public-employee.html"},"modified":"2025-03-19T15:43:00","modified_gmt":"2025-03-19T20:43:00","slug":"how-does-due-process-protect-a-public-employee","status":"publish","type":"page","link":"https:\/\/www.findlaw.com\/employment\/wages-and-benefits\/how-does-due-process-protect-a-public-employee.html","title":{"rendered":"How Does Due Process Protect a Public Employee?"},"content":{"rendered":"\n
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How Does Due Process Protect a Public Employee?<\/h1>\n
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\n By Christie Nicholson, J.D.<\/a> | Legally reviewed by Melissa Bender, Esq.<\/a>\n | Last updated\n
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This article has been written and reviewed for legal accuracy, clarity, and style by FindLaw\u2019s team of legal writers and attorneys<\/a> and in accordance with our editorial standards<\/a>.<\/em><\/p>\n\n <\/div>\n <\/details>\n\n

\n \n <\/i>\n Fact-Checked\n <\/summary>\n\n
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The last updated date refers to the last time this article was reviewed by FindLaw or one of our contributing authors<\/a>. We make every effort to keep our articles updated. For information regarding a specific legal issue affecting you, please contact an attorney in your area<\/a>.<\/em><\/p>\n\n <\/div>\n <\/details>\n<\/section>\n

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Key Takeaways<\/h2>\n

In employment law, due process mainly applies to public sector employees with a property interest in their job, such as through a contract or statutory rights. These employees are entitled to reasons for termination, advance notice, and a hearing. Private sector employees are generally "at will" and do not enjoy these protections.<\/p>\n\n <\/div>\n <\/div>\n<\/div>\n

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.<\/p>\r\n

Don’t risk your career. If you’re a public employee facing disciplinary action, understanding your due process rights is crucial. Contact an employment attorney<\/a> in your area to help ensure fair treatment.<\/p>\r\n

The right to due process exists through the Fourteenth Amendment<\/a> to the Constitution. It often comes up when the government takes your property<\/a> for public use. But, 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.<\/p>\r\n

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.<\/p>\r\n

In most states, private employment is "at will<\/a>." This means the employer may fire someone at any time without due process.<\/p>\r\n

This article explains what due process is. It also discusses what due process means in employment law<\/a>.<\/p>\r\n

The Due Process Clause of the Constitution<\/h2>\r\n

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

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>, a taking may exist when a government employer<\/a> fires an employee.<\/p>\r\n

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 <\/a>to fair wages. It also includes a job applicant’s right to enjoy the same interview process regardless of race, age, or gender.<\/p>\r\n

Does Due Process Exist in Both Public and Private Sector?<\/h3>\r\n

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.<\/p>\r\n

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<\/a>. They don’t have a chance to tell their side of the story before their employer fires them.<\/p>\r\n

There may also be local laws that protect you from things like employment discrimination. These are different from constitutional due process.<\/p>\r\n

Government Employees and Due Process<\/h2>\r\n

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.<\/p>\r\n

An employee has a property interest in the following situations:<\/p>\r\n