Loudermill Rights - Due Process

In Cleveland Board of Education v. Loudermill, 470 U.S. 532 (1985), the Supreme Court held that employees with a property interest in their jobs are entitled to certain due process rights prior to termination. These rights include oral or written notice of the charges against him/her, an explanation of the employer's evidence, and an opportunity to be heard in response to the proposed action. Subsequent cases have expanded Loudermill rights to other disciplinary actions involving loss of pay, such as suspensions and demotions.

Property interests can be created by limitations placed on the employer's ability to discipline employees, such as contractual provisions requiring just cause for discipline or civil service protections requiring good cause for discipline. Because at-will employees do not have a property interest in their jobs, exempt and probationary employees generally are not entitled to Loudermill rights.

A Loudermill meeting is not a formal hearing during which witness testimony is presented or formal evidence considered, but rather a more informal meeting during which the employee and/or the employee's representative are given an opportunity to give their side of the story and present other reasons that the contemplated disciplinary action should not occur. The employee may present the information orally or in writing.

If the employee is represented, the employee's union representative may attend the Loudermill meeting. If the decision-maker is not personally present at the Loudermill meeting, the employer needs to show that the information from the meeting was actually considered by the decision-maker prior to his/her decision. Thus, someone in attendance will need to be responsible for accurately sharing the information that is presented.

Dos and Don'ts for Loudermill Meetings

• DO make the employee feel comfortable. Explain the process to the employee at the beginning of the meeting and make eye contact with the employee while the employee talks.
• DO ask clarifying questions as a follow-up to the employee's information or presentation if you believe the clarification is necessary to make an informed decision. The clarifying questions should be asked respectfully and in a manner that does not convey disbelief or disagreement.
• DON'T interrogate or cross-examine the employee. The employee is not on trial and this is not a formal hearing.
• DON'T engage in behavior that indicates either agreement or disagreement with the employee's position. This includes nodding, frowning, smirking, etc.
• DO understand that the union representative has a duty to represent the employee, even it the representative personally believes that the misconduct warrants disciplinary action.
• DON'T feel compelled to allow witness testimony if the employee brings witnesses, unless you are required to allow witnesses pursuant to your collective bargaining agreement. Witnesses are only allowed upon mutual agreement and the Loudermill meeting generally is not the appropriate place to hear those witnesses.
• DO follow-up on information presented by the employee that is new and could be considered material to the case, prior to making the final disciplinary decision.
• DON'T treat the meeting as a bargaining session. There is no obligation to make a disciplinary decision on the day of the meeting, nor is there an obligation to lessen the discipline if the original recommendation continues to be appropriate. Do, however, be timely in responding to the employee.
• DO read the investigative file carefully prior the Loudermill hearing. By reading the file in advance, you will be better prepared to identify inconsistencies in statements made by the employee during the meeting, and to clarify those inconsistencies prior to making the disciplinary decision.