The Supreme Court held that a public employee who can be discharged only for cause is entitled to certain due process rights prior to termination. Loudermill Rights apply to incidents of involuntary termination.
Unlike Weingarten, the employer has an obligation to inform the employee of his/her Loudermill Rights.
The employee has the right to speak or not to speak at the Loudermill (or “pre-disciplinary”) hearing. Also, the employee has a right to union representation, and the union representative may speak on behalf of the employee.
If the employee chooses not to attend the Loudermill (or “pre-disciplinary”) hearing, the employer may proceed with termination.
Loudermill Rights: The Pre-Disciplinary Meeting
1. Oral or Written Notice of Charges Against Them if Employee May Be Deprived of Property Right (Ex.: Suspension, Termination or Demotion)
2. Explanation of Employer’s Evidence
3. Opportunity to Be Heard in Response to Proposed Action
4. Meeting Cannot be a Pro Forma Exercise
Loudermill Rights: Tips
1. Give adequate notice well in advance with time to obtain representation.
2. Give specific details on why discipline is being considered, the proposed range of discipline as applicable, and ensure employee knows this is an opportunity for them to address why discipline should not occur.
3. Conduct thorough investigation prior to meeting.
4. Read the investigatory file thoroughly prior to the meeting to assist in recognizing disparities between it and what the employee says at the meeting.
5. Be professional, and keep emotions in check.
6. Ask questions for clarification as needed.
7. Don’t interrogate or cross-examine the employee. A pre-dismissal meeting is not a formal hearing subject to perjury statutes.
8. Understand that the union rep (if there is one) has a duty to represent the employee, even if the rep personally believes the misconduct warrants disciplinary action.
9. If a union rep is present, listen to his/her viewpoint, but avoid engaging in bargaining over the level of discipline.