Did you know?
As a public sector employee you are already entitled to two special sections of rights in the workplace that are not normally afforded to non-union employees in the private sector. These are referred to as Garrity Rights and Loudermill Rights.
The Fifth Amendment Applies to Interrogations of Public Employees
Public employees have certain constitutional rights that apply in their employment that may not apply to private employees. For example, in Garrity v. New Jersey, the Supreme Court held that statements obtained in the course of an investigatory interview under threat of termination from public employment couldn’t be used as evidence against the employee in subsequent criminal proceedings. If, however, you refuse to answer questions after you have been assured that your statements cannot be used against you in a subsequent criminal proceeding, the refusal to answer questions thereafter may lead to discipline for insubordination. Keep in mind that while statements you make may not be used against you in a subsequent criminal proceeding, they can be used as a basis for discipline.
To ensure that your Garrity rights are protected, you should ask the following questions:
- If I refuse to talk, can I be disciplined for the refusal?
- Can that discipline include termination from employment?
- Are my answers for internal and administrative purposes only and are not to be used for criminal prosecution?
If you are asked to provide a written statement regarding the subject of the interview, the following statement should be included in your report:
“It is my understanding that this report is made for internal administrative purposes only. This report is made by me after being ordered to do so by my supervisor. It is my understanding that refusing to provide this report could result in my being disciplined for insubordination up to and including termination of employment. This report is made pursuant to that order and the potential discipline that could result for failing to provide this report.”
Public Employees Constitutional Right to a Pre-Termination Hearing
In another decision announcing a Constitutional right for public employees not possessed by private employees, the Supreme Court in Cleveland Board of Education v. Loudermill held that most public employees are entitled to a hearing before they are discharged. 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 solely based on the denial of them if the employer can prove that there was just cause for the discharge in any case.
The NCPSO-VA can guide you through the entire representation process and explain your rights to you. Give us a call at 804-266-2201!
