How do I correctly fire a county government employee?

Question:

I am getting some differing opinions on how to correctly fire a county government employee. One expert says we must follow “Loudermill” letters and hearings, with pre-notifications and a chance for employees to argue why they should not be disciplined before any action is decided upon, as well as a full evidentiary hearing (just because we are a government employer). Another expert is saying we do not need to do any notifications as South Dakota is an at-will state and we have no duty to keep anyone employed, which is stated multiple times in our employee handbook.

And is there any specificity for requirements during an introductory period, for full time vs part time, and for exempt vs non-exempt?

Answer:

More than 20 years ago, the United States Supreme Court issued a hugely important ruling to public sector employees. It stated that non-probationary public employees, who are facing discipline, are entitled to certain due process rights.

The reference to “Loudermill rights” comes from the case Cleveland Board of Education v. Loudermill, 470 U.S. 532 (1985) decided by the U.S. Supreme Court in 1985. The decision laid out that most public employees have a property interest in their jobs, and are therefore allowed due process rights if their employment will be terminated. Loudermill rights include a notice, usually provided in writing, stating the reasons why termination of employment is being considered. Specific evidence describing any charges against the employee must be provided. Additionally, a pre-termination hearing is offered, during which the employee can respond to the charges.

Without some contractual or other specially created right, public employment on its own does not create constitutionally protected property interests in continued employment, and therefore, employees would have no right to due process. However, where a contract, policy, or statutorily required process limits the public employer’s right to terminate employees at-will, constitutional requirements apply. Non-probationary public employees who have such a protection are entitled to due process prior to the termination of their employment, because they have a protected property right to their position of employment.

Probationary employees typically have not yet attained a property right in their job, as they are still within the extended selection process during which the employer is evaluating their suitability for regular status employment. This is the very reason for having a probationary period. Therefore, the requirement for due process provided through a Loudermill hearing is typically not required prior to termination of employment during a new hire probationary period. Thus, if the employee you reference is still in their probationary period.

However, your question is asking about terminating a “county government employee.” So, I feel safe in assuming this will not be the county’s first termination.  Thus, I would think the county has a termination or disciplinary policy, or, at least a past history of practice.  I would generally think it’s a good idea to follow the county’s prior practices, but, in any case, it’s probably a good idea to work with a good local attorney to help you determine if this individual has any Loudermill rights.