EMPLOYEE DUE PROCESS We so often hear terms like due process, freedom of speech, freedom of the press, and freedom of information that we may be tempted to think these rights apply in all our relationships. Not so. The constitutional right of due process limits the ways in which the government can deal with us. Our free speech right only prevents government censorship. Federal and state freedom-of-information acts and sun- shine laws guarantee us access only to certain government information and proceedings.

Except for government employees, the employment relationship generally does not include employee due process rights. An at-will employee can be arbitrarily disciplined or fired without any right to a hearing, without any opportunity to explain or justify the supposedly offending conduct, and without any opportunity to confront the person who supposedly reported any offending conduct. (Of course, arbitrariness is seldom the best way to manage employees.)

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There are a few limited exceptions to an employer’s ability to act out of sheer arbitrariness. An employer cannot, for example, dis- criminate on the basis of race, ethnicity, gender, or other irrelevant characteristics; an employer cannot discharge an employee in violation of a protected leave law or public policy; and an employer cannot act contrary to its contractual obligations.


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