Due Process PUBLIC EMPLOYEE DEPARTMENT

Due Process Rights – Basis in US Constitution US Constitution – Article 14, Section 1: nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. Article 5: nor be deprived of life, liberty, or property, without due process of law PUBLIC EMPLOYEE DEPARTMENT

Due Process Means different things in different contexts: Constitutional/criminal law Deprivation of freedom Miranda rights – police have to affirmatively tell you that you have rights (to remain silent, etc). Employment/Labor law Public workers have a property right to their job. Management DOES NOT have to affirmatively tell you that you have rights PUBLIC EMPLOYEE DEPARTMENT

Due Process: Loudermill v. Cleveland Board of Education Permanent Public Employees are conferred a “property interest” in their public employment Due Process usually applied in private sector union workplaces, too – but those rights come from the CBA, not Constitution. Public sector property rights arise out of both law and contract Cannot be deprived of this property interest (your job) without due process the right to notice of the charge (pre-termination notice) an explanation of the employer’s evidence and an opportunity to present his/her side of the story PUBLIC EMPLOYEE DEPARTMENT

Due Process Applies to permanent (non-probationary and non-temporary) workers Usually can’t be waived – some state courts have ruled on this: Alaska – Court held that DP rights are independent of a CBA requirement granting them NY – said union can waive DP rights in a CBA Legitimate expectation of continued employment Different from at-will PUBLIC EMPLOYEE DEPARTMENT

Contractual Sources for Due Process Rights Just cause provision – usually interpreted to mean that due process is implied Arbitrator can rule due process exists implicitly even if no just cause provision in the CBA CBA may have specific due process guarantees – such as requirements for a written warning before discipline, or a requirement that management must investigate before a final decision is made PUBLIC EMPLOYEE DEPARTMENT