Loudermill Hearings
Unfortunately, a return to normal probably means some employers are increasingly having to contemplate the uncomfortable process of terminating employees not meeting expectations or engaging in certain misbehaviors. Before terminating an employee with a reasonable expectation of continued employment, an employer must schedule, notice, and conduct a Loudermill hearing.
Far from being a mysterious or complicated process, a Loudermill hearing is nothing more than a procedural check against errors. While it places the burden of proof upon the employer to prove misconduct or poor performance by the employee, absent a contract or policy requirement to the contrary, the court requires only a limited opportunity to be heard and process to check against errors.
Even still, how much process is due is a function of the totality of circumstances affecting the employee's relationship with the employer, including how long an employee has been employed as well as the contractual rights and policies covering the employment. Employers seeking to deprive an employee of employment would do well to check policies and contracts, and to consider checking off all of the following boxes for the best defenses against error:
- Notice to the employee, which includes:
- Date and time of hearing;
- Location of hearing;
- An explanation of the cause for dismissal;
- All evidence supporting cause;
- Notice of the right to representation at the employee's expense
- The right to cross examine witnesses; and
- A hearing before a neutral party - the employing Board or a hearing officer capable of neutrality;
- Evidence (written documentation and/or witnesses to misconduct); and
- The employee should be able to hear all evidence presented against him or her;
- The employee should have the opportunity to cross examine witnesses; and
- The employee should have the opportunity to call witnesses and present evidence.
Only employees whose liberty or property interests are being deprived or who have a reasonable expectation of continued employment are entitled to a Loudermill hearing, but employers should be aware that whether an employee has a reasonable expectation of continued employment is a function of the totality of the facts of the employee's employment. An at-will employment relationship is not defined strictly by policy, but rather by the totality of the circumstances, including how long the employee has been employee, what actions the employing board has or has not taken with regard to the ongoing employment relationship over its time, and whether employee was made any promises or had a contract for his or her employment.
Employers should be aware that certain classifications, such as teachers, have ongoing contractual rights and specific contractual lengths and rights. For other employees, while the Court's ruling in Cleveland Board of Education v. Loudermill did not require a particularly formal proceeding, the more severe the deprivation or more lengthy the employee's employment, the more that formality in the proceeding will protect the employer from errors.