In Washington, as in other jurisdictions, many public employees have a property right in their employment. As with other property rights, the person holding the right is entitled to due process before the government deprives the person of his or her property.1 The due process required before such a person's employment might suffer significant impairment is often referenced as "Loudermill rights" or the right to a "Loudermill hearing."2
Even employees who do not have a property right in their employment, however, have liberty interests. As with a property right, the government may not impair a person's liberty without due process. Thus, even a public employee who would not be entitled to a Loudermill hearing could still be entitled to a "name clearing hearing" if terminated based on publicly disclosed but false allegations of misconduct that would seriously stigmatize the employee and her ability to earn a living.
Loudermill
A public employee's property right in employment does not arise directly from the U.S. Constitution. Rather, this right comes from an external source such as state law.3 An example would be a state statute providing that a state employee who has attained "permanent" status in a classified position may only be disciplined (suspended, reduced in pay, demoted, dismissed) for "cause."4 The key to determining whether a property right has been established is whether the state has created a "legitimate expectation of continued employment" for the employee.5
If the employee possesses a property right in employment, then what process is required to protect that right, and when must it take place?6 Can an employee demand process before being terminated, for example, or will a full hearing, held after the deprivation, suffice?
Due process "is not a technical conception with a fixed content unrelated to time, place and circumstances. É [R]ather, it is flexible and calls for such procedural protections as the particular situation demands."7 In Mathews v. Eldridge,8 the U.S. Supreme Court articulated a balancing test for determining what kind of process is necessary to protect property rights. Under this test, a court balances three factors: (1) the interest affected; (2) the risk of erroneous deprivation of that interest through the procedures to be used; and (3) the cost and administrative burdens that additional procedures would entail.9 Although Mathews involved a property right that did not arise from employment, courts have adopted this balancing test for use in cases involving the property right in employment.10
There is no "absolute rule" that the employer must provide pre-deprivation process in every situation.11 The general practice, however, is to provide some process before imposing a deprivation, particularly a significant one.12
Pre-deprivation process serves as an "initial check."13 The process need not be elaborate. All that is required is basic notice of the charges, oral or written, some explanation of the employer's evidence and an opportunity to respond.14 A pre-termination hearing need not resolve the propriety of the discharge.15
Post-deprivation process must generally be more formal, although, again, due process is not inflexible.16 Usually, acceptable post-deprivation proceedings include the attributes of a trial-like or, at least, adversarial, proceeding, with notice of the parties' positions (including the charges against the employee), some sort of hearing using evidence (whether or not the rules of evidence are applied), and an opportunity for the employee to respond to witnesses and accusers.17 Procedures may be established in a number of ways, such as grievance processes and appeals set forth in collective bargaining agreements18 or through statutory and regulatory personnel procedures.19
Name Clearing Hearings
Whether or not a person has a property right to continued public employment, the U.S. Constitution protects that person's "liberty" interests. In the public employment context, liberty interests include, but are not limited to, First Amendment rights of political expression20 and association,21 as well as privacy.22
The ability to be protected from false, but public, stigma associated with a termination - stigma so severe that it significantly forecloses the person's ability to take advantage of other employment opportunities - also is a recognized liberty interest.23 A "name clearing hearing" is a remedy for someone who can establish that his liberty interests would be violated by dissemination of information.
What implicates an employee's "liberty interest?" Although different courts have articulated the elements in various ways, to show that his liberty interests would be infringed in the absence of a name clearing hearing the employee must show that the allegations: (1) have been made relating to his termination;24 (2) are public;25 (3) are disputed;26 (4) would impugn the employee's integrity, honesty or morality (allegations of incompetence are insufficient);27 and (5) would do more than simply damage the person's reputation - "stigma plus" is required.28 The fact of a termination, even if derogatory remarks have been made about the employee, is not necessarily enough to implicate the employee's liberty interests.29
If an employee's liberty interests are implicated, what process is due? That is, when must a name clearing hearing be provided and what form should it take? The balancing test of Mathews v. Eldridge may be used in this situation also.30
A full trial-like, adversarial proceeding is not necessarily required, but the employee should have an opportunity to be heard in a meaningful manner.31 The purpose for the hearing is to determine whether the allegations are true.32 A post-termination hearing may be adequate, but, as with the hearing to protect property rights, a pre-charging hearing is more surely protective of the employee.
This short article can provide only a description of "Loudermill rights" and "name clearing hearings." It offers general information to assist in understanding the issues and to provide a beginning point for further and more directed research. Although there is now substantial federal and state authority on many issues that arise in the context of protecting employee property and liberty interests, applying this authority to any specific situation requires careful analysis of the actual facts presented in that situation.
