1. Due Process
PUBLIC EMPLOYEE DEPARTMENT

2. 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

3. 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

4. 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

5. 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

6. 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