Terminating the Employment Relationship

3. R EMEDIES FOR V IOLATING A P ERMANENT E MPLOYEE ’ S D UE P ROCESS R IGHTS Reinstatement has been recognized as an appropriate remedy when an employee has been discharged in violation of his or her constitutional property interest rights. 23 However, if the only due process violation is during an agency’s pre-removal safeguards (e.g., the agency violates an employee’s Skelly rights), the measure of damages is the back pay accrued between the effective date of the termination and the post-termination appeal hearing decision issued by the hearing officer, board, commission etc. 24 An improperly discharged or suspended property interest employee must, however, mitigate his/her damages. 25 A violation of an employee’s due process rights, whether pre-termination or post-termination, can result in a civil rights lawsuit. Attorneys’ fees are available in wrongful termination lawsuits brought under federal civil rights statutes. Consequently, a violating agency may have to pay the employee’s damages and attorneys’ fees. Attorneys’ fees are also recoverable under California’s “private attorney general” statute 26 to an improperly discharged employee when the violation is of general import applicable to agencies and employees. 27 D. P ART -T IME E MPLOYEES Many public agencies have job classifications for part-time and temporary employees (sometimes referred to as provisional or seasonal). Others have classifications for employees who are “temporary” in the sense that they are working on a project of limited duration. 1. D ESIGNATING P ART -T IME E MPLOYEES AS A T -W ILL As discussed above, a constitutionally protected property interest in employment must have a statutory basis giving the employee permanent status and providing the employee with the right to be discharged or disciplined only for cause. An employee does not have a vested contractual right to continue in employment beyond the time or contrary to the terms and conditions fixed by law or statute. Thus, it is generally legally permissible for an agency to create classes of at-will employment. So long as the agency’s charter, municipal code or other applicable law does not prohibit this, agencies can designate part-time or temporary employees as at-will. 2. A VOID D ESTROYING THE A T -W ILL D ESIGNATION While it is legally permissible to designate part-time or temporary employees as at-will, an agency’s designation alone will not be enough to sustain judicial scrutiny if the designation is challenged. Therefore, agencies must take steps to protect their designations.

Terminating the Employment Relationship ©2019 (s) Liebert Cassidy Whitmore 24