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

AuthorRobert A. Shearer
Published date01 December 1992
Date01 December 1992
DOIhttp://doi.org/10.1177/009102609202100408
Subject MatterArticle
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

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