Property Right

Can employers arbitrarily terminate a person’s employment in Florida? Florida is an “at will” state, meaning employers generally can terminate an employee for any lawful reason, just as employees may quit for any reason. Certain public employees, however, enjoy a property interest/right to their employment and may be terminated only for cause.

Both the United States and the Florida Constitutions provide that no person shall be deprived of life, liberty, or property without due process of law. In the employment context, this guarantee of due process functions to protect certain public employees from being deprived of a protected property interest in their employment. Bd. of Regents of State Colleges v. Roth, 408 U.S. 564 (1972). Indeed, in Roth, the United States Supreme Court held that, where public employees have a property right or property interest in their continued employment, the employer may not terminate the employee without certain due process protections.

A property right exists where state or local laws, charters, ordinances, policies, contracts, or agreements provide that the employee will only be disciplined or dismissed for “cause,” “just cause,” “proper cause,” “sufficient cause,” or some similar language. Without an express grant of a property interest, even public employees are generally considered at will employees, with no vested property interest in their employment.

Due Process

If it is determined that an employee has a property right in continued employment, the employer generally must provide what is known as a “Loudermill” hearing prior to termination. In providing guidance, the Supreme Court explained that due process requires “a very limited hearing prior to termination, to be followed by a more comprehensive post-termination hearing.” Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532 (1985).

Pre-termination hearings serve as an initial check against mistaken decisions. Stated another way, pre-termination hearings serve as a determination of whether there are reasonable grounds to believe that the charges against the employee are true and support the proposed termination. A post-termination hearing provides a more formal comprehensive procedure for an employee to present his/her facts and evidence.

Take-Away

The essential requirements of due process are notice and an opportunity to respond. Ideally, the procedural steps of conducting a Loudermill hearing should be explicitly memorialized in the employer’s internal rules and regulations—i.e. an employee handbook or manual. This will help ensure both the employer and the employee understand their rights and obligations with respect to due process, if such process is owed to an employee with a property interest in his/her employment.