Third Circuit Rules on Due Process Claims by Former New Jersey State Employees

Employment in New Jersey is considered to be “at will,” meaning that an employer can terminate an employee for any reason, or no reason at all, as long as they do not violate any employment statutes or contractual provisions. Some government employees have an additional layer of protection under the Due Process Clause of the Fourteenth Amendment, or the Fifth Amendment in the case of federal government employees. The Third Circuit Court of Appeals, whose jurisdiction includes New Jersey, ruled on a Due Process claim against Passaic County and several county officials in early May 2019. The ruling, along with several earlier Third Circuit decisions, offer some ideas about how a civil service employee could assert a constitutional claim based on deprivation of a property interest.

The Due Process Clauses of the Fifth Amendment and the Fourteenth Amendment prohibit the government, its agencies, and its officials from depriving people “of life, liberty, or property, without due process of law.” An employee must establish that they have a property interest in some aspect of their employment, and that their employer wrongfully deprived them of it. A 1972 decision by the U.S. Supreme Court, Bd. of Regents v. Roth, found that establishing a property interest requires “a legitimate claim of entitlement,” rather than merely “a unilateral expectation.”

The Third Circuit cited Roth in a 2006 decision holding that, in an at-will employment state, a person’s job is not inherently a property interest protected by the Constitution. The court ruled that the question of entitlement to a benefit, including retaining one’s job, is a matter of state law. Since the case originated in an at-will employment state, the plaintiff did not have a protected property interest in their job. The court also found that an employee could still demonstrate the deprivation of a constitutionally-protected liberty interest, based on the manner in which their employer terminated them or took some other adverse action. That particular case involved a claim of defamation against the employer. The court left open the possibility that various claims in tort or other law could support a Due Process claim.

A decision issued by the Third Circuit in February 2019 took a deeper look at state law than the 2006 case. Whether an employee has a constitutionally-protected property interest in an employment benefit, the court held, depends on how much discretion state law gives an employer or agency over that benefit. The broader the government’s discretion to grant or deny a benefit, the less likely it is that the employee has a protected property interest.

The May 2019 decision mentioned earlier based its ruling in substantial part on the February case. The plaintiffs had previously worked for the county but had been terminated for performance-related reasons. They alleged that the county violated their Due Process rights by removing their names from a “rehire list” maintained by the New Jersey Civil Service Commission (CSC). The court found that state regulations give the CSC very broad authority to place people on the list, remove people from the list, or decide not to have a list at all. Based on this, the court ruled for the county.

If you and your employer are involved in a dispute in New Jersey or New York, the Resnick Law Group’s employment attorneys are available to answer your questions, discuss your options, and advocate for your rights. Please contact us today at 973-781-1204, at 646-867-7997, or through our website to schedule a confidential consultation to see how we can help you.

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