KemLaw

In 1985, the United States Supreme Court issued a decision that has great importance for public sector employers – Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532.

This case involved the consolidation of two Sixth Circuit cases in which two Ohio employees, both “classified civil servants” under Ohio law were terminated without being given a pre-termination hearing to respond to the charges against them:

• In the first, the Cleveland Board of Education fired a security guard (James Loudermill) for failing to disclose a prior grand larceny felony conviction on his job application.
• In the second, a school bus mechanic (Richard Donnelly) was discharged because he failed an eye examination.

The Supreme Court decision stated that non-probationary public employees, who are facing discipline, are entitled to certain due process rights (now known as the Loudermill Right).

Here’s an explanation of those rights:

1. Public employers must provide public employees with notice of an opportunity to be heard when considering the imposition of discipline that would deprive them of a property interest. The following should be provided to the employee:
   • Oral or written notice of the charges;
   • An explanation of the employer’s evidence;
   • An opportunity for the employee to present his/her side of the story.
2. Public employees with “just cause”, “for cause” or other similar protections through a collective bargaining agreement have a property interest in their public employment. Loudermill applies to disciplinary suspensions (unpaid) as well as termination of employment.
3. How much notice is sufficient? The answer to that question may be established by the collective bargaining agreement.  If not, notice is generally deemed sufficient where the employee was adequately apprised of the disputed issue and given a meaningful opportunity to prepare a defense.  Notice of less than one day in advance has been deemed adequate by the courts in particular situations, but generally more sufficient notice is recommended.  It is the quality, not the quantity, of the notice that determines whether the due process requirements of Loudermill have been met.
4. The notice should describe the charges against the employee, provide a summary explanation of the employer’s evidence, indicate that dismissal or suspension is contemplated and not simply that the dispute will be reviewed and include a description of all charges levied, with reference to applicable rules violations.
5. The manner in which the pre-disciplinary hearing is conducted may be established by contract or practice. The pre-disciplinary hearing may combine investigatory and adjudicatory functions.  An employer should read the charges and summary of the evidence at the outset.  The employer should permit the employee or the employee’s Union representative to question witnesses when it would constructively help illustrate “the other side of the story.”  However, an employer should not allow the employee or the union representative to take advantage of this opportunity.  The Employer should remain in control of this process; if the questions are irrelevant, overly burdensome or repetitive, the employee should be instructed to return to the issues at hand.

Interestingly – since the Loudermill decision was handed down, lower courts have tended to limit the remedy for any violations.

Specifically, reinstatement will not occur if the employer can prove there was just cause for the discharge.  The hearings purpose is simply to give an employee the opportunity to present the reasons why the employer should not take the adverse action being contemplated.

If you’re an employer and have questions about labor and employment law, including due process rights for public employees, consider calling on the attorneys at Kainen, Escalera & McHale in Connecticut.  We do one thing and one thing only – we are an employer defense law firm – in fact, we are one of the largest employer defense law firms in the region.  What’s more, each of our attorneys has over 25 years of experience in employment law and labor law matters and can provide your business with comprehensive legal counsel ranging from assistance with necessary preventive measures to trial advocacy.  Please contact us if we can help you.

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