The concept of due process enjoys a long history. It’s been around since before the United States began and is preserved as a core constitutional value in Texas and every other state. It is perhaps most associated with how the government is supposed to treat individuals suspected of criminal or civil wrongdoing to ensure quality of justice.
Despite the recognized value of promoting due process in the broad scope of matters, it was only in 1912 that it began to be applied to federal employment. That’s when the first U.S. law took effect saying that workers could not be removed from a job without specific steps being followed for the protection of rights.
Just because that law is on the books, however, doesn’t mean the ideal is consistently achieved. The fact is, as a recent report to Congress by the Merit Systems Protection Board acknowledges, unjustified adverse actions of retaliation and wrongful termination still occur.
Due process isn’t rocket science, but it can be complicated. The MSPB report offers a rather straightforward, three-step chart of how the flow should go when dealing with serious actions, such as furloughs, suspensions, demotions or removals.
– Identify the apparent issue, investigate and assemble facts and accurate evidence
– Document proposed action to respond to allegations
– Inform the employee what information the agency is considering for the proposed action
– Give the employee at least seven days to respond to proposed action
– If a response is given, consider it along with the other evidence in making any decision
– Once decided, the worker must be informed in writing about the effective date of action and any appeal rights the worker has
– If desired, the employee must be allowed to appeal to the MSPB, file a complaint with the Equal Employment Opportunity Commission or file a grievance under collective bargaining provisions
– If filed, the appropriate appeal agency must provide a response
– The employee can then provide evidence to support an affirmative defense if one is made.
Considering all that’s at stake, making sure each element of due process is fully exercised clearly makes sense.