Due Process

While private sector employment in Texas may be at-will, public sector employees have a greater range of protections against adverse employment actions. The Merit Systems Protection Board provides some civil service positions with safeguards against unwarranted adverse action. Likewise, some government employees may have a property interest in their jobs. These employees may be covered by the Fourteenth Amendment to the United States Constitution, which prevents government actors from depriving anyone of their life, liberty, or property without due process. In practice, this means that these government employees with a property interest in their jobs cannot simply be terminated at any time. Their employer must abide by a defined set of regulations, which may be negotiated for by a union, that establish a process by which the termination can take place. One common example of such an employee would be a tenured professor at a state university.

The right to due process, guaranteed under the Fourteenth Amendment, means that applicable public sector employees are entitled to certain administrative protections against termination or other adverse action. These protections most commonly begin with the requirement that an employee receive notice of the action. Their employer must inform them of the intended action and provide a specific and clear reason why it is being taken. After this, the employer is required to provide the employee with access to a hearing at which they can state their case and defend themself. This hearing can be before or after the employment action is officially taken, but it must be at a "meaningful" time and be taken seriously by the employer. A hearing six months after an employee is fired, or a hearing where the result is predetermined, could be violations of the employee's right to due process.

Due process may also involve aspects of an employee's employment contract. If an employee's contract establishes that they can only be fired for just cause, their employer would have to establish that their reason for termination fits the definition of a sufficient cause. If the contract has any other stipulations about discipline procedures, these must be also followed. Importantly, at-will or "term" employees, as well as job applicants, are not considered to have a property interest in their jobs. Because of this, these employees may not receive some of the same due process protections as other employees.

Public employees with a property interest in their jobs who believe their employer did not follow due process in taking action against them may have a cause of action against that employer. When deciding the case, the courts will balance the employee's interest in continued employment with the government's interest in taking action, and will rule on whether the procedures followed or not followed by the employer were sufficient to protect that employee's interests.

Due process has a substantive aspect as well as a procedural aspect. However, the relationship between substantive due process and the employment rights of federal employees is an undeveloped area of the law with very little settled precedent and a hostile judiciary. However, prior Supreme Court precedent has suggested that "arbitrary or capricious" actions by a government employer might violate employees' rights to substantive due process. If you believe your substantive due process rights have been violated, it is best to speak with an employment attorney.

Consulting with an experienced employment attorney can be extremely helpful in due process cases. Wiley Walsh P.C. employs wrongful termination lawyers who have defended government employees in Austin and the surrounding areas, and our attorneys can help you evaluate your options and determine whether to bring a claim. If you are a Texas government employee and you believe you have been wrongfully terminated, you can get in touch with us by filling out our intake form or calling our office at (512) 271-5527.