Due Process Liability in Personnel Records Management: Preserving Employee Liberty Interests

Public Personnel Management, Winter 1992 | Go to article overview

Due Process Liability in Personnel Records Management: Preserving Employee Liberty Interests


As public employers well known, the Fifth and Fourteenth Amendments to the United States Constitution guarantee due process to protect property interests associated with workers' legitimate expectations of continued employment. Equally well-established, although probably less often the subject of litigation, are the due process rights of public employees whose liberty interests, i.e., their right to be free of unwarranted professional stigma, are jeopardized by employer conduct. This paper analyzes several recent cases in which public employees charged liberty interest violations as a result of their employers' placing adverse information in their personnel files. Public sector employers should evaluate their exposure to liability for such claims and develop strategies to alleviate their risk as well as to carry out their responsibility to preserve the due process rights of employees.

The Fifth and Fourteenth Amendments to the United States Constitution provide that the federal and state governments may not deprive citizens of life, liberty, or property without due process of law.|1~ In the context of public employment, it is well established through judicial decisions that public employees who have a legitimate expectation of continued employment are entitled to due process safeguards, particularly notice and opportunity for a hearing, in the termination process. In the landmark case of Board of Regents v. Roth,|2~ the Supreme Court not only clearly delineated this property interest, but, also, considered the extent to which the liberty interest is implicated in employment actions adverse to public employees.

The plaintiff in Roth, a non-tenured university teacher whose contract was not renewed, was unable to show any source in law creating a legitimate expectation of retaining his position. Thus, the Court denied his claim of entitlement to a due process property interest hearing. He asserted, also, however, that his professional reputation had been damaged by the nonrenewal, and that he was entitled, therefore, to an opportunity to clear his name. While the Court agreed that notice and an opportunity to be heard are essential when one's reputation is under attack by a governmental entity, the university had leveled no charges against Roth. Merely declining without comment to reappoint a non-tenured employee, the Court said, did not stigmatize him or foreclose his opportunity to seek other employment.

The liberty interest analysis articulated in Roth has been applied and elaborated upon in many subsequent public employment cases. Even when the loss of employment does not impinge upon a legally recognizable property interest, courts generally acknowledge that a public employee has the right to be free from charges by his or her employer that publicly compromise one's reputation without notice and an opportunity to challenge the adverse allegations.|3~ The employee may establish a liberty interest violation by proving he or she was terminated without notice and hearing on the basis of false, published reasons that stigmatized his or her reputation.|4~ Alternatively, an employee could establish a liberty interest deprivation by showing that the employer effectively denied him or her other employment opportunities as a result of a stigmatizing termination without benefit of prior notice or a chance to clear his or her name.|5~

The United States Supreme Court recently emphasized that injury to reputation alone is not a liberty interest issue.|6~ The Court pointed out that the due process right is implicated only when the governmental employer's stigmatizing is made in the context of discharging or failing to rehire an employee who claims a constitutional liberty interest.

Liberty Interest Issues in Personnel Records Management

As the case law indicates, liberty interest claims, as well as the related common law defamation charges that often accompany such actions, require proof of publication, i. …

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