LOUDERMILL RIGHTS

(Pre-Disciplinary Hearing)

 

With respect to suspension without pay, involuntary demotion, or involuntary termination when just cause is required: Prior to being disciplined:  

“The …tenured public employee is entitled to oral or written notice of the charges against him (or her), an explanation of the employer’s evidence, and an opportunity to present his (or her) side of the story.” This right is known as the “Loudermill Right” based upon the 1985 U.S. Supreme Court decision in the case of Cleveland Board of Education v. Loudermill. Unlike Weingarten,  the employer has an obligation to inform the employee of his/her Loudermill Rights.

 

  • The employee has a right to speak or not to speak at the Loudermill (or predisciplinary) hearing. However, the “hearing” is not a full evidentiary hearing and need not include the opportunity to cross-examine your accusers. All that is required is:

    • Oral or written notice of the charges and time for hearing;

    • An explanation of the employee’s evidence; and

    • An opportunity to present “his side of the story.”

  • Further, since the issuance of the Loudermill decision, the lower courts have strictly limited the remedy for Loudermill violations. Specifically, an employee deprived of his Loudermill rights is not entitled to reinstatement if the employer can prove that   there was just cause for the discharge in any case. The hearings purpose is to give the employee an opportunity to present the reasons why the decision maker should   not take the adverse action being contemplated.

 

  • The employee has a right to Union Representation and the Union Steward may speak on behalf of the employee. In fact, it is advised that the Union Steward speak on behalf of the Union Member. What the employee says can be used against him/her. What the Union Steward says can’t be used against the employee.

 

  • You should prepare for this meeting by looking at the contract to determine what provisions they are citing and/or policies/rules and by learning of any mitigating factors that apply. Remember to take notes at the meeting and put them in your file.