While there are laws that impact employment and termination and the legal restrictions that employers must operate in, the entirety of the termination process has similarities with the legal system itself. This isn't just in the fact that one can lead into the other under certain circumstances, but that they share certain elements in how they are carried out. One legal element that is expected to be found in both the legal system and in employment termination, and is designed to help keep things lawful, is the concept of due process.

This article will look at the role that due process place in lawful employee termination, including an explanation of what it is and its components. Additional topics will include the rights that due process provides and what issues can arise with due process in the termination process, regardless of how that process is carried out.

What Is Due Process?

• Legal Counsel-In other words, the right to use a lawyer to legally represent you in court. This could also apply to any other representatives that are meant to advocate for you on your behalf during proceedings.

• Defense at Trial-Everyone is legally entitled to have the opportunity to defend themselves and be heard in a formal trial or other formal meeting. This means that they are given the chance to be present at any kind of proceedings, and must be given advanced notice of those proceedings.

• Confront/Examine Witnesses-Witnesses are not infallible, nor are the accusations and evidence they provide. Anyone who is accused has the right to confront their accusers and witnesses, as well as examine their statements.

• Refuse To Self-Incriminate-Under due process, a person can refuse to offer testimony or other statements that may lead to self-incrimination. This means that they can refuse to do or say anything that implicates or exposes themselves as guilty of what they are accused of or other crimes; this protection is granted under the Fifth Amendment (hence the phrase "pleading the fifth").4

In terms of the law, due process is a guaranteed right laid out in the U.S. Constitution in two spots: the Fifth and Fourteenth Amendments. These state that a person cannot have their rights-life, liberty, or property-taken from them without legal due process in accordance with the law.5 The only difference between the two-which are largely worded the same-is that the Fourteenth Amendment improved due process' application on the state level, which the Fifth Amendment was lacking on.

• What Does This Have To Do With Lawful Termination?-Due process is a necessary topic when discussing termination as it can be applied to keep the process and its outcome(s) legal. Employees still have rights, even if they did something completely reprehensible, and those rights entitle them to certain protections when faced with disciplinary action.6 They can contest punishments-including termination-and can have the opportunity to defend their interests in the situation as a result. You cannot deny an employee or employer these rights in the termination process and still have it be considered a lawful termination, even if this was the only unlawful element present.

Procedural Due Process

Due process on its own is a very vague and complex in its legal definition. Normally, it is divided into two forms or designations: procedural and substantive. Procedural due process is best described as the "how" of due process, the analysis of the situation and the requirements of what needs to be done.7 The conduct of the proceedings and the events that have transpired are more in focus with procedural due process than things like the reasoning behind those actions and conduct. So long as there is something at stake and that something has happened, it doesn't matter what it is; the nature of the situation has not impact on the outcome in procedural due process unless it prevents the outcome from happening and disrupts the process.8

With employee termination, procedural due process would be in play regarding the termination process. Is every step in the process being followed as it should? Nothing is being skipped, unless absolutely necessary? Are things being done to ensure an outcome, regardless of what that outcome is? An example would be investigating claims that an employee is embezzling and finding further proof before moving on to the final stages of termination rather than skipping that step altogether. Following the different step in the procedure ensures the legality of the entire process and its outcome, which might not come about if that procedure isn't properly followed in the first place. There are certain expectations that employees have when faced with termination regarding how things will be handled, hence the role and value of procedural due process.9

Substantive Due Process

The other form is substantive due process, which looks at the "why" of the situation and the details in the procedure. A process can be deemed unlawful because of the context of its application, even if there's nothing wrong with the steps or stages themselves. Should any aspect of a situation's substance be considered unlawful-the reasoning behind a person's termination, for example-then it can render the entire situation unlawful even if the proper procedure was followed. This sometimes causes substantive due process to be viewed as too complicated compared to procedural due process and it can be a bit of a controversial topic.11 There's more work in determining that substantive due process is followed or if something has violated substantive due process.

Burden of Proof

In due process, there is an additional concept known as the burden of proof. This is a requirement to present all of the facts and evidence needed to determine if something is true.13 In the legal system, this is the responsibility of the plaintiff in a civil suit (a.k.a. the person who brought the suit) or the prosecutor in criminal case. Sometimes the burden of proof may fall to the defendant in either circumstances should they question the factualness of the information provided by the plaintiff or prosecutor as a part of their defense. Whomever is tasked with the burden of proof only needs to prove their case to a certain extent, dubbed the standard of proof.14

The employer is often the person responsible for the burden of proof in a lawful employee termination. They are the ones who need to prove that the outcome-their decision to terminate the employee's employment-is due to a justifiable reason. Likewise, should the legality of a termination be brought into question by the terminated employee, they would be responsible for the burden of proof in arguing that they were illegally fired. This means that they, or their lawyer, will need to present their evidence and facts that support the idea that their termination was unlawful to an acceptable extent when contesting the termination.

Potential Issues Regarding Due Process and Employee Termination

Due process and its associated elements is a rather complicated concept so it's not uncommon for issues to arise with its application to employee termination. An employer may not be sure how to handle a situation, either due to their inexperience or the complexity of the circumstances, and mistakes can happen. Unfortunately, mistakes regarding due process can impact the legitimacy of a termination and render it unlawful.

Some of the potential issues regarding due process and employee termination are unavoidable because of the circumstances surrounding the termination and the situation that prompts it. Some of those issues include:

• Lack of Burden of Proof-A lack of or weak facts contributing to the burden of proof placed on the employer could mean that they lack the proper justification for the termination. For example, if the evidence presented is circumstantial, meaning that it requires additional reasoning that it lacks on its own in order to be proven true.15 In many cases, an agreement will not be able to withstand scrutiny if there is little to no burden of proof. Should an employer terminate someone without proper or substantial evidence to support the decision, then the termination could be deemed unlawful if contested.

• "On The Spot" Termination-There isn't any investigation, or procedure of any kind with an on-the-spot termination. That means the employee has no chance of defending themselves or the employer a chance to look at all of the information before reaching a decision. Without that preparation and the opportunity for due process to do its job, misunderstandings and errors can occur which can lead to an unlawful termination.16 In some cases, an on-the-spot termination is justified based on what the employee did; the risk of the employee contesting it, however, is going to still be there because of the lack of a formal process.

• Unclear or Complex Situations-A difficult situation where the details are unclear or are too complex to determine a reasonable solution can happen. Termination already is not an easy decision to make, and it can be further complicated by circumstances. As a result, an employer may make mistakes in the termination process as they try to navigate the situation. An example would be skipping necessary steps and violating procedural due process. Or it may be a mistake regarding the details of the situation or the rights of the employee, which would violate substantive due process. Such mistakes can be significant in the long run, even if they don't seem to be on their own or when they first happen, and can impact the legality of the termination.

• Failure to Acknowledge Rights-The rights that an employee has are there for a reason and they cannot be dismissed because they are inconvenient to the situation or because they do not seem relevant. Those rights need to be acknowledged and taken into consideration for the sake of the process' legality. As mentioned above, some circumstances can be on the complicated side and some aspects may be mistakenly forgot or discarded as those involve try to make sense of the situation. However, employers should strive to ensure that none of those aspects are related to the employee's rights. Again, ignoring such aspects in the termination process can make the entire thing unlawful.

• Inconsistent Actions-Due process requires consistency throughout, so any actions that an employer takes while terminating an employee need to remain consistent. This includes the termination process itself (i.e. no major differences from other terminations other than circumstances) and previous disciplinary measures that may have been directed at the employee.17 Procedural errors can bring the legitimacy of the process into question, especially if the errors were done intentionally and there was no clear legal purpose for them. Even if those inconsistencies were accidental, it may prompt a closer look to determine the lawfulness of the employer's decision to terminate the employee.