Important Steps In Employee Firing
(from Maine Townsman, February 1986)
by David Barrett, MMA Personnel Specialist

Every manager or supervisor is at some time faced with the unpleasant task of discharging an employee. This unpleasant situation can turn into a serious legal problem if the termination is not handled with care by the employer. Little can be done to make employee discharge an enjoyable occasion, but much can be done by the employer to prevent subsequent legal claims.

Several cases have been decided recently that address the procedural requirements of discharge. They center on the concept of an employee's "property interest" in the continuation of their employment. A property interest under the United States Constitution is not limited to tangible physical property, like money or land. A property interest can be an intangible quantity, such as an individual's reputation, or for our purposes, an expectation in keeping one's job. Once a property interest is created, the 5th and 14th amendments to the U.S. Constitution prohibit the taking of that property without due process of law.

The Supreme Court rules in Cleveland Board of Education v. Loudermill (53 L.W. 4306) that "a public employee who may be fired only for cause must be given a pre-termination notice and an opportunity to be heard." The Court went on to say that this hearing does not have to be a full blown formal hearing. The pre-termination hearing is to review the facts of the case to make sure that the decision to terminate is based on valid information. This pre-termination hearing is necessary even if the employee has the right to a formal post-termination hearing before a panel or board. This is the minimal "due process" that the court requires to uphold a discharge on procedural grounds.

The pre-termination hearing may be as simple as the employee meeting with the manager to tell his or her side of the story. It need be nothing more than the opportunity to be heard. This is not to say that this pre-termination hearing is a sham. The manager or supervisor should take care in giving thorough consideration to the facts and arguments presented by the employee. The Court in Loudermill merely stated that it is not necessary for it to be a full formal hearing. The manager should tell the employee during this meeting that some form of disciplinary action is likely and that discharge is one of the options being considered. This puts the employee on notice that their behavior is unacceptable, and that it is a serious enough infraction to warrant discharge. At the conclusion of the pre-termination hearing, the manager or supervisor will have the two sides of the story upon which to base a decision.

Prior to this hearing, the employer should have been preparing their case. The only time it is not likely that an employer will have a case history is a case in which the employee has committed an offense that is of a serious enough nature to justify discipline or discharge by itself. In other cases the employer should have a documented record of previous disciplinary actions taken against the employee. Every time an employee is disciplined or record of infraction is entered in their personnel file, the employer should notify the employee. Tell the employee of the violation and that some disciplinary action is being taken. This does two things. It tells the employee that their behavior is unacceptable and must be changed, and notifies them that a record of their violations is being kept. This is important. The employee must be told their behavior is unacceptable and be given a chance to modify their behavior. If the behavior does not change, then further discipline and possibly discharge can be expected.

If it is decided to terminate the employee, inform the employee in writing of the decision. In addition, tell the employee of their right to appeal the decision, the status of any benefits or back pay they are due, and the final day they will work. It is critically important to carry out the discharge according to the provisions of the Town personnel policy or collective bargaining agreement. The best case in the world can be lost due to failure to adhere to the procedures set forth by the town. All discharges should be carried out following the same procedures to ensure fair treatment across employees.

The Maine Supreme Judicial Court, in Barber v. Inhabitants of Town of Fairfield (460 A.2d 1001), held that "property interest requiring due process protection may be created in two ways: (1) by statutory restriction of the grounds upon which a public employee may be removed, and (2) by rules and mutually explicit understandings."

Under Maine law, the first of the methods creating a property interest is in place for many municipal employees. Title 30 2256 M.R.S.A. provides that municipal employees may be removed for cause after notice and hearing. There are certain categories of municipal employees, mainly appointed officials, who do not fall within this definition of municipal employees. By having this statute, the state has created a property interest in one's job for municipal employees. As such, that property interest can only be taken away after notice and hearing.

The second method by which a property interest may be created is through the "practices and policies" of a Town.

The law is unclear as to whether municipal employees who are subject to year-to-year reappointment must be given a hearing when the question before the manager is to reappoint the employee or not reappoint. It is prudent and safe, however, to treat all appointed officials in a similar manner. Give that employee the chance to plead his/her case as to why they should be reappointed. While Maine courts have not directly addressed this issue, the "practices and procedures" the town uses in reappointment may have a large role in deciding whether an employee has a reasonable expectation of continuing employment. If the yearly reappointment session is treated as almost automatic, an employee may well have a reasonable argument that they have been given an expectation of employment due to the automatic nature of past reappointments. If, however, the employee's performance is closely scrutinized in the yearly reappointment, and the town appears to be making the decision each year, that expectation of continued employment may not be created. Procedures used during reappointment are not the only "practices" that may lead to a property interest. An employee handbook that guarantees reappointment may lead to a property interest. An oral statement of a "lifetime" job, no matter how innocuous, may create the property interest. As stated, Maine courts have not specifically addressed what "policies and procedures" may create a continuing expectation of employment. In Barber v. Inhabitants of Fairfield, II (486 A.2d 150), the Court stated that in that specific case, the policies and procedures of the town did not create the expectation of continued employment, hence no property interest.

The process of discharging a public employee has become a much more complicated area for employers in recent times. By taking some time to approach a discharge with care, an employer can guarantee an employee's rights are protected while carrying out an action that is deemed to be in the best interest of the town.

At a recent conference dealing with discharging employees, one of the speakers reminded the participants that managers and supervisors are also employees who will want their rights to be protected if they are ever faced with their own discharge.