Loudermill Rights

In Cleveland Board of Education v. Loudermill, et al. (1985), the United States Supreme Court held that certain nonprobationary public employees have a constitutionally protected property interest to their employment and are entitled to certain due process rights.  Loudermill rights do not apply to all public employees, only those with a legitimate expectation in continued employment.  Such interest may be derived through inclusion in a state civil service system, tenure, or coverage by a collective bargaining agreement including protective standards such as cause or just cause.  At-will and private sector employees do not have Loudermill rights.

Loudermill rights for public employees are derived from the Fifth and Fourteenth Amendments to the U.S. Constitution.  These Amendments prohibit a person from being deprived of life, liberty, or property by the government without due process.  Due process requires that the government provide a person with notice and a hearing prior to the deprivation of a protected property interest.  Recognition and definition of property interests are contingent upon state and local laws.  Loudermill rights apply in circumstances of potentially severe disciplinary action that are economic in nature (related to deprivation of compensation) such as suspension, demotion, or termination.  These rights are not applicable to documented verbal or written reprimands, unless otherwise established by a contract.

In practice, Loudermill rights include that an employee be provided verbal or written notice of the charges or allegations against them, including an explanation of the employer's evidence; and an opportunity for a hearing in response to the potential disciplinary action.  Standards of notice and proof are shared in Dr. Carroll Daugherty's seven tests of just cause, and a similar standard to a hearing requirement is also shared by tests of investigation and fairness of investigation.  Naturally, an unbiased investigation or Loudermill hearing should not have a predetermined outcome.  However, investigatory interviews do not meet constitutionally protected Loudermill hearing requirements for an employee to have the opportunity to respond to charges.  Further dissimilar to a Weingarten investigation, rather than attend a Loudermill hearing employees may choose to submit a written position to an employer's allegations.

Loudermill rights are in no way intended to be pro forma, though notices and hearings do not adhere to a consistent standard throughout the United States.  There is no required timeframe regarding notice to an employee for a hearing or mandatory conventions about the content of notices, the quality of such may be verbal or written.  Loudermill hearings are not full evidentiary hearings and do not require the opportunity to cross-examine accusers, only the opportunity for an employee to present their "side of the story".  Allegations against an employee may be hyperbolic, and lend to an atmosphere of presumed guilt until proven innocent.  In scope Loudermill rights only apply to certain public employees, and do not apply to all circumstances of disciplinary action.  

The job security protections derived from just cause standards and Loudermill rights reciprocally strengthen each other, but are both presently limited in their scope and consistency of application.  A violation of Loudermill rights may not result in reinstatment of a terminated employee.  A comprehensive new standard should recognize and protect the property interests of both public and private sector employees; including that employers meet a burden of proof to prevent damaging impacts of erroneous termination and severe disciplinary action.