Loudermill hearing

Last updated

A “Loudermill” hearing is part of the "due process" requirement that must be provided to a public employee prior to removing or impacting the employment property right (e.g. imposing severe discipline).

Contents

The purpose of a "Loudermill hearing" is to provide an employee an opportunity to present their side of the story before the employer makes a decision on discipline.

Prior to the hearing, the employee must be given a Loudermill letter i.e. specific written notice of the charges and an explanation of the employer's evidence so that the employee can provide a meaningful response and an opportunity to correct factual mistakes in the investigation and to address the type of discipline being considered.

In employment law, a Loudermill letter is a letter that public-sector employers may send to employees giving notice of their intent to suspend, demote, or terminate.

Loudermill v. Board of Education

The term stems from Loudermill v. Cleveland Board of Education, in which the United States Supreme Court held that non-probationary civil servants had a property right to continued employment and such employment could not be denied to employees unless they were given an opportunity to hear and respond to the charges against them prior to being deprived of continued employment.

The underlying principle in Loudermill is that because dismissals often involve factual disputes, a hearing provides the employee an opportunity to explain and refute any conclusions the employer reached which caused the employee's discharge. [1]

Expansion

Since the time that case was decided, certain other courts of law have held that the right to hear and respond to the charges extends not just to denials of continued employment, but to denials of continued employment at the current rate of pay. Thus State agencies offer this pre-deprivation hearing or Loudermill hearing in cases of discharge, demotion and unpaid suspension of non-probationary classified employees.

Although Loudermill was a case involving the termination of a public employee, the ruling has been applied to situations where the proposed discipline deprives the employee of any property interest (e.g. wages) or liberty interest (e.g. damage to reputation).

Requirements of the hearing

In addition to a pretermination (Loudermill) hearing, an employee must be afforded a full evidentiary hearing, after the termination takes effect. [2] However, the scope of the pretermination hearing depends upon the scope of the post-termination hearing available to the employee. If a full post-termination hearing is available, the Loudermill pretermination hearing is minimal.

In such situations the employee would have an opportunity to respond in the pretermination hearing as long as she had available a post-termination hearing. Thus, the pre-termination hearing functions as "an initial check against mistaken decision -- essentially a determination of whether there are reasonable grounds to believe that the charges against the employee are true and support the proposed action." [3] If a pretermination hearing is "oral or written notice of the charges against [the employee], an explanation of the employer's evidence [against the employee], and an opportunity [for the employee] to present their side of the story." [4]

In West v. Grand County, [5] the U.S. Court of Appeals for the 10th Circuit quoted Loudermill, stating:

“The Standards for a pre-termination hearing are not stringent because of the expectation that a more formal post-termination hearing will remedy any resulting, deficiencies. ‘[T]he pre-termination hearing though necessary, need not be elaborate. ... [T]he formality and procedural requisites for the hearing can vary, depending upon the importance of the interests involved and the nature of the subsequent proceedings’ ”. [6]

The holding in Loudermill goes on to state, “The pre-termination hearing need not definitively resolve the propriety of the discharge. It should be an initial check against mistaken decisions - essentially, a determination of whether there are reasonable grounds to believe that the charges against the employee are true and support the proposed action.” [7] Thus, this type of hearing does not need to be elaborate and does not require a full-blown court-type evidentiary hearing.

The court in West stated: “We have held that pre-termination warnings and an opportunity for a face-to-face meeting with supervisors and a conversation between an employee and their supervisor immediately prior to the employee’s termination were sufficient to satisfy constitutional requirements.” [8] Thus an employee does not have the right to confront or cross-examine witnesses, nor does he have the right to legal counsel or other representation during the hearing.

See also

Related Research Articles

In employment law, constructive dismissal, also called constructive discharge or constructive termination, occurs when an employee resigns as a result of the employer creating a hostile work environment. Since the resignation was not truly voluntary, it is, in effect, a termination. For example, when an employer places extraordinary and unreasonable work demands on an employee to obtain their resignation, this can constitute a constructive dismissal.

At-will employment is a term used in U.S. labor law for contractual relationships in which an employee can be dismissed by an employer for any reason, and without warning, as long as the reason is not illegal. When an employee is acknowledged as being hired "at will," courts deny the employee any claim for loss resulting from the dismissal. The rule is justified by its proponents on the basis that an employee may be similarly entitled to leave his or her job without reason or warning. The practice is seen as unjust by those who view the employment relationship as characterized by inequality of bargaining power.

Goldberg v. Kelly, 397 U.S. 254 (1970), is a case in which the Supreme Court of the United States ruled that the Due Process Clause of the Fourteenth Amendment to the United States Constitution requires an evidentiary hearing before a recipient of certain government welfare benefits can be deprived of such benefits.

Age Discrimination in Employment Act of 1967 United States labor law

The Age Discrimination in Employment Act of 1967 is a US labor law that forbids employment discrimination against anyone at least 40 years of age in the United States. In 1967, the bill was signed into law by President Lyndon B. Johnson. The ADEA prevents age discrimination and provides equal employment opportunity under conditions that were not explicitly covered in Title VII of the Civil Rights Act of 1964. It also applies to the standards for pensions and benefits provided by employers, and requires that information concerning the needs of older workers be provided to the general public.

Just cause is a common standard in United States labor law arbitration that is used in labor union contracts in the United States as a form of job security.

Rankin v. McPherson, 483 U.S. 378 (1987), is a major decision of the Supreme Court of the United States concerning the First Amendment, specifically whether the protection of the First Amendment extends to government employees who make extremely critical remarks about the President. The Court ruled that, while direct threats on the President's life would not be protected speech, a comment — even an unpopular or seemingly extreme one — made on a matter of public interest and spoken by a government employee with no policymaking function and a job with little public interaction, would be protected.

Board of Regents of State Colleges v. Roth, 408 U.S. 564 (1972), was a case decided by the United States Supreme Court concerning alleged discrimination against a nontenured teacher at Wisconsin State University-Oshkosh.

Cleveland Board of Education v. Loudermill, 470 U.S. 532 (1985), was a United States Supreme Court case in which the Court held that:

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), is a US employment law case by the United States Supreme Court regarding the burdens and nature of proof in proving a Title VII case and the order in which plaintiffs and defendants present proof. It was the seminal case in the McDonnell Douglas burden-shifting framework.

Organizational retaliatory behavior (ORB) is a form of workplace deviance. ORB is defined in the bottom up sense as an employee's reacting against a perceived injustice from their employer. ORB is also a top down issue occurring when an employee speaks out or acts in an unfavorable way against the employer.

Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981), is a US labor law case of the United States Supreme Court.

Disparate treatment is one kind of unlawful discrimination in US labor law. In the United States, it means unequal behavior toward someone because of a protected characteristic under Title VII of the United States Civil Rights Act. This contrasts with disparate impact, where an employer applies a neutral rule that treats everyone equally in form, but has a disadvantageous effect on some people of a protected characteristic compared to others.

In employment law, a public sector employee has a Loudermill right, which may refer to:

Fortunato v. Office of Stephen M. Silston, D.D.S., 856 A.2d 530 is a United States employment law case, concerning wrongful termination.

Waters v. Churchill, 511 U.S. 661 (1994), is a United States Supreme Court case concerning the First Amendment rights of public employees in the workplace. By a 7–2 margin the justices held that it was not necessary to determine what a nurse at a public hospital had actually said while criticizing a supervisor's staffing practices to coworkers, as long as the hospital had formed a reasonable belief as to the content of her remarks and reasonably believed that they could be disruptive to its operations. They vacated a Seventh Circuit Court of Appeals ruling in her favor, and ordered the case remanded to district court to determine instead if the nurse had been fired for the speech or other reasons, per the Court's ruling two decades prior in Mt. Healthy City School District Board of Education v. Doyle.

University of Pennsylvania v. Equal Employment Opportunity Commission, 493 U.S. 182 (1990), is a US labor law case of the US Supreme Court holding neither common law evidentiary privilege, nor First Amendment academic freedom protects peer review materials that are relevant to charges of racial or sexual discrimination in tenure decisions.

Michael A. Smyth v. The Pillsbury Company, 914 F. Supp. 97 was decided on January 18, 1996 in the United States District Court for the Eastern District of Pennsylvania. Michael A. Smyth was a regional operations manager at the Pillsbury Company. Smyth had a company email account that he was able to access from work and home. Pillsbury, on multiple occasions, told its employees that all email communications were private, confidential, and that there was no danger of the messages being intercepted and used as grounds for discipline or termination.

In law, wrongful dismissal, also called wrongful termination or wrongful discharge, is a situation in which an employee's contract of employment has been terminated by the employer, where the termination breaches one or more terms of the contract of employment, or a statute provision or rule in employment law. Laws governing wrongful dismissal vary according to the terms of the employment contract, as well as under the laws and public policies of the jurisdiction.

Ingersoll-Rand Co. v. McClendon, 498 U.S. 133 (1990), is a US labor law case, concerning the scope of labor rights in the United States.

References

  1. See Loudermill, 470 U.S. at 545.
  2. Loudermill, 470 U.S. at 545-46.
  3. Loudermill, 470 U.S. at 545-46.
  4. Loudermill, 470 U.S. at 545-46.
  5. 967 F.2d 362, 367 (10th Cir. 1992)
  6. The court in West cites to Loudermill 470 U.S. at 545 [quoting Boddie v. Connecticut, (1971)]
  7. 470 U.S. at 545-46
  8. 967 F.2d 362, 367 (10th Cir. 1992)