Today’s burning question: Does Loudermill apply in states that are “at-will”? Our city administrator said a prominent HR attorney told her that due process, progressive discipline, and a Loudermill hearing process does not have to be followed in our state because we are “at-will”.
Answer: There is alot of confusion over this issue and well-intentioned attorneys who oversimplify the complexity of the law are not necessarily helpful.
Most states presume all employees are “at-will.” Thus, your state is not unusual in this regard. A presumption of at-will employment can be rebutted when an employer’s right to terminate an employee is somehow limited. For public employees, the most common way at-will employment is rebutted is when an employer must establish cause or just cause before terminating an employee. For our purposes, we will assume the terms cause and just cause are synonymous.
Just cause requirements can be found in any of the following:
- State laws
- Local charters
- Local ordinances
- Personnel/civil service regulations
- Rules and regulations of the department
- Employment agreements
- Collective bargaining agreements
When a fire department (as a public employer) can only terminate a firefighter for just cause, the firefighter is considered to have an expectation of continued employment. This in turn creates a property interest in his/her job which gives rise to a right to due process under the 14th Amendment. I know that sounds like lawyer double-speak… and perhaps it is (after a while lawyers don’t realize just how convoluted our thinking can become)… Never the less, understanding the role that just cause plays in creating a property interest is a vitally important point. It gives rise to a right to due process!
The term Loudermill refers to the right of an employee who has a property interest in his/her continued employment… (and thus an expectation of continued employment and thus a right to due process), to have a hearing BEFORE being terminated. It comes from a US Supreme Court case, Loudermill v. Cleveland Board of Education. The right to a Loudermill hearing does not apply to at will employees, only those who have an expectation of continued employment.
If your local legal counsel says your employees are at-will and he/she has evaluated all of the possible laws that could impose a just cause requirement – then it is safe to assume your employees are at will. However, I have seen cases where well intentioned attorneys have not done their homework, made assumptions about the at-will status of employees, and were unaware of a “just cause” requirement that was present in a local charter, local ordinance, or local personnel regulation. Just sayin’….
What we have been discussing up to this point, addresses what is often referred to as procedural due process. While procedural due process may not apply to at-will employees, another type of due process right, referred to as substantive due process, does. Substantive due process prohibits arbitrary or capricious governmental actions that deprive someone of life, liberty or property. While admittedly there is a low threshold to overcome an allegation of arbitrariness, a fire chief who terminates an employee must be able to show a “reasonable basis” in order to overcome a substantive due process challenge that the termination was arbitrary.
Another important limitation on an employer’s right to terminate an at will employee without establishing just cause, arises when the employee is in a protected class. Terminating a protected class member for no valid reason has all the hallmarks of illegal discrimination. I addressed this recently in a post for Lexipol, so I won’t repeat it all here. Suffice it to say, establishing just cause and testing it through a due process hearing requirement may not be required by law, but it certainly can help to avoid some pretty foreseeable problems associated with terminating at-will employees who are members of a protected class! And since an employer cannot have one process for protected class members and a different process for non-protected class members… perhaps requiring just cause for all employees is not all that bad an idea.
There is one final consideration when it comes to firing at-will employees I will leave you with to ponder. A fire department makes an inevitable investment in its people. Recruiting, selection, hiring, training, etc. costs money… taxpayer money. Once hired, firefighters gain practical experience that is invaluable and cannot be replaced simply by hiring a new employee.
It is one thing if I own my own business, I use my own money to recruit, hire and train an employee, and then I let the person go because they are “at will.” After all, it was my money that I am squandering. It is another thing for government to use taxpayer funds to recruit, hire and train an employee, and then some elected official or government appointee decides to let the person go because they are “at will.”
It makes no sense to fire an employee for no reason even though such a practice may be “legal”. It would be like getting rid of a brand-new pumper because it fails to start once. Junking a perfectly good $500,000 pumper that failed to start once would be squandering taxpayer funds. So would firing an employee we invested several hundred thousand dollars in recruiting, testing, hiring, training, and compensating for the past year, when we have no good reason to do so, even though it may be legal.
To a city administrator or a prominent HR attorney, firefighters may be little more than checkers on a checker board. Attorneys in particular tend to answer the question “Can we fire a firefighter who did X” with a strict legal conclusion as opposed to the harder question: “Should we fire a firefighter who does X.” Admittedly – whether we are dealing with an employee or a fire truck, we may have a lemon on our hands. However, in either case given the investment we have made, it is worth the effort to make sure the decision is a sound one. Making sure we have just cause to fire an employee would be one way of ensuring the decision is a sound one.
By the way, progressive discipline is not required by due process or Loudermill, but is advisable when we take into account the investment aspect we have in our employees.