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

Abstract

As public employers well know, 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.