Common-sense Approaches to Legal Disputes With Public Employees
| Publication year | 1996 |
| Pages | 67 |
| Citation | Vol. 25 No. 5 Pg. 67 |
1996, May, Pg. 67. Common-Sense Approaches to Legal Disputes with Public Employees
In virtually all cases, prelitigation measures employers take to prevent or resolve employee disputes are much less time consuming and expensive than litigation, where defense costs often exceed $100,000 and the preparation necessary for trial can consume hundreds of hours of employer and staff time. The following are legal and practical suggestions to public employers and their attorneys to help avoid and solve legal disputes with employees, as well as build better employee relations.
To reduce the risk of employment litigation, every public employer should provide an employee facing suspension without pay, demotion or termination with at least the following before taking final action against the employee: (1) a written notice of why the employee's conduct or performance is deficient, and (2) a meaningful opportunity to be heard.
Some, but not all, public employees have a property right in continued employment that requires they be given "due process" before they can be "deprived" of such employment.(fn1) This law raises two fundamental issues for every public employer:
1) When does a public employee have a property interest in continued employment?
2) What must a public employer do to be sure its employees are given due process in the event of suspension without pay, termination or demotion?
Unfortunately, there is no precise answer to the question of when a public employee has a property interest in his or her employment. As a general rule, a property interest in continued employment will usually be found where there is a contract, statute, ordinance or rule that provides that the employee can be terminated only for "cause."
In Colorado, employment---even public employment---is usually "at will," meaning that the employment relationship can be terminated by either the employer or the employee at any time, and, with some exceptions, for any reason or no reason (that is, without good cause). Nevertheless, given the uncertainty associated with the law on this issue, it is prudent for all public employers to treat their employees as if they have a property interest in continued employment and give them due process before any final decision to suspend, demote or terminate their employment.(fn2)
In the context of public employment law, the U.S. Supreme Court has determined that there is no formal method for satisfying procedural due process. According to the Court, the essential requirements of due process are: (1) notice and (2) a meaningful opportunity to respond.(fn3) The specific form of notice and what constitutes a "meaningful" opportunity to be heard must be determined on a case-by-case basis.
Generally, to satisfy the minimum requirements of due process, the employee should be given written or oral notice of the reasons for the employer's proposed action and an opportunity to present, orally or in writing, his or her side of the story. Whenever possible, the notice and the opportunity to be heard should be given prior to the employer taking any action against the employee.(fn4) If immediate action is necessary, the employer may suspend the employee, with pay, pending notice and an opportunity to respond.
An employer who proceeds without due process risks reinstatement of the employee, an adverse judgment for substantial damages, or both. Courts look at the harm to the employee that resulted from the failure to give him or her due process and craft a remedy designed to fix the harm on a case-by-case basis.(fn5) Thus, in some instances, courts still determine that reinstatement and back pay are the appropriate remedy. In others, where the termination appears justified on the basis of good cause, the courts do not automatically order reinstatement, but may nevertheless require the employer to pay back pay, benefits, attorney fees and interest if they conclude the employee has not been afforded procedural due process.(fn6) Other damages, if proven, also...
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