Due Process Liability in Personnel Records Management: Preserving Employee Liberty Interests

• Published date: 01 December 1992
• Date: 01 December 1992
• DOI: http://doi.org/10.1177/009102609202100408
• Subject Matter: Article

Due

Process

Liability

in

Personnel

Records

Management:

Preserving

Employee

Liberty

Interests

As public employers

well

know, the Fifth and Fourteenth Amendments to the United States

Constitution guarantee due process to protect property interests associated

with

workers'

legitimate expectations of continued employment. Equally

well-established,

although prob-

ably

less

often the subject of litigation, are the due process rights of public employees

whose

liberty interests, i.e., their right to be free of unwarranted professional stigma,

are

jeopardized

by employer conduct. This paper analyzes several recent cases in which public employees

charged

liberty interest violations as a result of their employers' placing adverse information

in their personnel

files.

Public sector employers

should

evaluate their exposure to

liability

for

such claims and

develop

strategies to alleviate their risk as

well

as to

carry

out their respon-

sibility

to preserve the due process rights of employees.

By

The Fifth and Fourteenth Amendments to the United States Consti-

Robert

A. Shearer tution provide that the federal and state governments may not deprive

citizens of

life,

liberty, or property without due process of law.1 In the

context

of public employment, it is

well

established through judicial deci-

sions

that

public employees who have a legitimate expectation

of

continued

employment

are

entitled to due process safeguards,

particularly

notice and

opportunity for a hearing, in the termination

process.

In the

landmark

case

of

Board

of

Regents

v. Roth,2 the Supreme

Court

not only clearly delineated

this property interest, but, also, considered the extent to which the liberty

interest is implicated in employment actions adverse to public employees.

The

plaintiff in Roth, a non-tenured university

teacher

whose

contract

was not renewed, was unable to

show

any source in law creating a legiti-

mate

expectation of retaining his position. Thus, the

Court

denied his claim

of

entitlement to a due process

property

interest hearing. He asserted, also,

however, that his professional reputation had been damaged by the non-

renewal, and that he was entitled, therefore, to an opportunity to

clear

his

name.

While the

Court

agreed that notice and an opportunity to be heard

are

essential

when

one's reputation is under

attack

by a governmental

entity, the university had

leveled

no charges against Roth. Merely declin-

ing without comment to reappoint a non-tenured employee, the

Court

said,

did not stigmatize him or foreclose his opportunity to seek other employ-

ment.

The

liberty interest analysis articulated in

Roth

has been applied and

elaborated

upon in many subsequent public employment cases. Even

when

the

loss

of

employment does not impinge upon a legally recognizable

Robert

A. Shearer is a member of

the Florida and Virginia

Bars

specializing

in employment and

labor

law and dispute resolu-

tion. Since

joining

the University

of

South Alabama faculty in

1986,

he has taught courses in

legal environment of

business,

personnel law, and legal ethics

in

business.

He is a certified

cir-

cuit

civil

court mediator in

Flor-

Public

Personnel

Management Vol. 21 No. 4 (Winter 1992)

523