In This Issue

• Employees – Pre-Termination Hearings
• Employee Investigations
• PHAs and the WARN Act
• Intentional Tort Suits

Employees – Pre-Termination Hearings

Lawrence F.
Feheley

The constitutional guarantee of Due Process requires that certain public employees are entitled to a hearing before their employment can be terminated. The employees who are entitled to such a hearing are those who have a "reasonable expectancy" of job security. This would usually include any employees whose employment, by statute or otherwise, is not on an at-will basis.

The Ohio courts have recently issued two rulings on the pre-termination hearing requirement. In the first, Velazquez v. Village of Bratenahl, 2003 - Ohio - 878 (Cuy. Co. 2003), the appeals court considered the hearing in the context of an employee's resignation. In this case, the employee, a police officer, turned in his badge, weapon, and other police property. The employee also verbally expressed his intent to resign, and he accepted payment for his accumulated sick and vacation pay. However, the employee then changed his mind and refused to sign a resignation agreement. When the police department held him to his resignation, the employee claimed that the department violated his constitutional rights by discharging him without providing a pre-termination hearing. The court disagreed. The court first ruled that, by his acts and words, the employee had effectively resigned from his employment. Secondly, the court held, since the employee resigned rather than being discharged, the department had no obligation to hold a pre-termination hearing.

The second case, Durham v. Pike County Joint Vocational School, 2002-Ohio-6300 (Pike Co. 2002), considered the contours of the pre-termination hearing. The employee argued that the termination was invalid because she was not afforded the opportunity to cross-examine witnesses against her prior to her termination. The appeals court recognized that state law provides employees with the opportunity to have a thorough post-termination hearing, including the right to cross-examine witnesses. Section 2506.03, Ohio Revised Code. Since a terminated public employee has the right to cross-examine witnesses at this more extensive hearing, the employer was not required to allow the employee to confront and cross-examine witnesses at the pre-termination stage.

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Employee Investigations

Public employees enjoy constitutional rights that do not arise in private employment. One of those rights is the Fifth Amendment's protection against self-incrimination. This right to avoid self-incrimination often complicates investigations into potential employee wrongdoing.

In Atwell v. Lisle Park District, 286 F.3d 987 (7th Cir. 2002), a discharged public employee claimed that her Fifth Amendment rights were violated when she was discharged after an investigation. In this case, the Park District investigated allegations of financial improprieties about one of its employees. The employee refused to be interviewed in the investigation. She was then fired for insubordination and refusing to cooperate in the investigation, as well as for receipt of unauthorized payments.

A public employer is not allowed to force a person to make a statement, even out of court, that might be used as evidence that he committed a crime. In addition, a public employer cannot pressure a person into cooperating by threatening to fire him for refusing to provide self-incriminating evidence. That does not mean that a public employer is helpless. The employer has a right to investigate misconduct, including crimes, by its employees, and even to force them to answer questions relevant to the investigation. However, if the employee is forced to answer the questions, he must be given immunity from criminal prosecution on the basis of his answers, and the public employer cannot use those answers to prosecute the person.

Usually, the employee has no right to refuse to participate in the interview merely because he thinks he may be asked incriminating questions. If the employee exercises his Fifth Amendment right, the public employer may draw an adverse inference from his refusal to answer the questions. Moreover, if the employee refuses to answer a question, and the employee has been offered immunity from criminal prosecution, the employee may be discharged for refusing to cooperate in the investigation.

The lessons seem apparent. When a public employer embarks on an investigation that could involve criminal conduct, the safest course is to advise employees of their Fifth Amendment rights. If the employee refuses to participate in the investigation, the employer has two options. The first is to proceed to reach a conclusion without the employee's information, based on other evidence and any inference to be drawn from the employee's refusal to participate. The second option is to grant the employee immunity, in the form of a commitment that the information will not be used as evidence against him in a criminal proceeding. If the employee continues to refuse to cooperate with the investigation, the employee may be disciplined or discharged for such insubordination.

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PHAs and the WARN Act

The federal Worker Adjustment and Retraining Notification Act (the "WARN Act") requires that an employer give written notice at least sixty days in advance of any covered "plant closing" or "mass layoff." A mass layoff, for example, is a reduction in force that results in an employment loss at a "single site of employment," during a thirty-day period, of at least (a) 50 employees, if they constitute one-third of the active employees, or (b) five hundred employees. The law imposes substantial civil liabilities for failure to give the required notice. Since the requirements of the law are triggered by employment losses at a "single site of employment," the meaning of that term is of critical importance.

The Department of Labor Regulations implementing the WARN Act discuss the criteria that apply to determine whether different worksites under the control of a single employer constitute a "single site of employment," in which event all of the locations would be aggregated in order to determine if the requisite employment loss occurred or, conversely, whether the different sites would be considered separately, requiring the requisite employment loss at an individual site before the WARN Act would be triggered. For example, if a PHA had five different housing communities, and it laid off 50 of its 120 employees, the WARN Act requirements would apply if the five communities were considered to be a "single site of employment." Conversely, if each community was considered separately, and the layoffs were dispersed between them, the Act would not apply and no prior notice would be required.

The Chicago Housing Authority recently learned this lesson the hard way. The Authority terminated the employment of a number of its police officers without providing WARN notices. After suit was filed, the Authority responded to certain discovery requests by stating that it did not recognize or pursue a defense based on the single site of employment issue. Since it had waived and abandoned that important potential defense, the court ruled that all of the police officers were employed at a single site of employment for purposes of applying the WARN Act. Castro v. Chicago Housing Authority, 2002 WL 31324053 (N.D. Ill. 2002).

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Intentional Tort Suits

Injured workers frequently file "intentional tort" claims. These claims, which are over and above the receipt of workers' compensation benefits, allege that the employer is liable to an injured worker because the employer knew, or was substantially certain, that injury would occur and nonetheless directed the employee to perform the work during which he was injured.

The Trumbull County Court of Appeals recently issued a decision in this area that may be very important for public employers. In Sabulsky v. Trumbull County, 2002 - Ohio - 7275 (Trum. Co. 2002), a county corrections officer sought recovery on the basis of an intentional tort after he was injured when a locking mechanism on a door malfunctioned. The County had previously been notified that the door was malfunctioning and that it was a safety hazard. At issue in the case was the scope of the statutory immunity granted by state law.

Under Section 2744.02(B) of the Ohio Revised Code, a political subdivision of the State is not liable for injuries or damages "caused by any act or omission of the political subdivision or an employee of the political subdivision in connection with a government or proprietary function." There are a number of exceptions to the grant of immunity set forth in the statute, many of which allow recovery for a negligent act by an employee of the political subdivision.

The Trumbull County Court ruled that the County, as a political subdivision, was immune from a claim of intentional tort. Accordingly, it dismissed the corrections officer's claims. The Court's reasoning was that, by the express terms of the statute, only negligent acts of the political subdivision are exempted from the grant of immunity. Since the corrections officer claimed that he was injured as a result of "intentional" conduct, rather than "negligent" conduct, his claims had to be dismissed because the statute provided the County with an immunity from intentional tort claims.

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