«EMPLOYEE RIGHTS 1 (People’s Law School) I. Types of Employment: A. Private Sector Employment: 1. “Golden Rule” Employment”At-will” ...»
employee is questioned regarding those allegations. The employee must be given not less than 2 business days to obtain such representation, unless the employee waives the employee’s right to be represented.
Finally Nevada Revised Statutes require the state to conduct a hearing to determine 390 Hearing to determine reasonableness of an employee’s dismissal, demotion or
suspension. In particular, Nevada Revised Statute 284.390 states:
1. Within 10 working days after the effective date of an employee’s dismissal, demotion or suspension pursuant to NRS 284.385, the employee who has been dismissed, demoted or suspended may request in writing a hearing before the hearing officer of the Department to determine the reasonableness of the action.
The request may be made by mail and shall be deemed timely if it is postmarked within 10 working days after the effective date of the employee’s dismissal, demotion or suspension.
2. The hearing officer shall grant the employee a hearing within 20 working days after receipt of the employee’s written request unless the time limitation is waived, in writing, by the employee or there is a conflict with the hearing calendar of the hearing officer, in which case the hearing must be scheduled for the earliest possible date after the expiration of the 20 days.
3. The employee may represent himself or herself at the hearing or be represented by an attorney or other person of the employee’s own choosing.
4. Technical rules of evidence do not apply at the hearing.
5. After the hearing and consideration of the evidence, the hearing officer shall render a decision in writing, setting forth the reasons therefor.
6. If the hearing officer determines that the dismissal, demotion or suspension was without just cause as provided in NRS 284.385, the action must be set aside and the employee must be reinstated, with full pay for the period of dismissal, demotion or suspension.
7. The decision of the hearing officer is binding on the parties.
8. Any petition for judicial review of the decision of the hearing officer must be filed in accordance with the provisions of chapter 233B of NRS.
In addition to the Nevada Revised Statutes the State Personal System has developed additional procedures to further set forth what procedures a state agency or board must
follow to terminate an employee. Nevada Administrative Code 284.646 states:
1. An appointing authority may dismiss an employee for any cause set forth in
NAC 284.650 if:
(a) The agency with which the employee is employed has adopted any rules or policies which authorize the dismissal of an employee for such a cause; or (b) The seriousness of the offense or condition warrants such dismissal.
2. An appointing authority may immediately dismiss an employee for the Lyons Law Firm th 512 South 8 Street Las Vegas, Nevada 89101 Employee Rights Peoples Law School Page 8 following causes, unless the conduct is authorized pursuant to a rule or policy
adopted by the agency with which the employee is employed:
(a) Intentionally viewing or distributing pornographic material at the premises of the workplace, including, without limitation, intentionally viewing or distributing pornographic material on any computer owned by the State, unless such viewing or distributing is a requirement of the employee’s position.
(b) Unauthorized release or use of confidential information.
(c) Participation in sexual conduct on the premises of the workplace, including, without limitation, participation in sexual conduct in a vehicle that is owned by the State.
(d) Absence without approved leave for 3 consecutive days during which the employee is scheduled to work.
(e) The suspension, revocation or cancellation of a professional or occupational license, certificate or permit or driver’s license if the possession of the professional or occupational license, certificate or permit or driver’s license is a requirement of the position at the time of appointment as stated in the standards of work performance, essential functions or class specifications for the position, or in other documentation provided to the employee at the time of appointment, or required thereafter pursuant to federal or state law.
(f) Threatening another person with a deadly weapon during any time in
which the employee is:
(1) On the premises of the workplace; or (2) Conducting state business or otherwise performing any duties of employment.
(g) Stealing or misappropriating any property that is owned by the State or located on state property.
3. The rights and procedures set forth in NAC 284.656 apply to any dismissal made pursuant to this section.
4. As used in this section:
(a) “Material” has the meaning ascribed to it in NRS 201.2581.
(b) “Nudity” has the meaning ascribed to it in NRS 201.261.
(c) “Pornographic material” means material that, all or in part, contains any description or representation of nudity, sexual conduct, sexual excitement or sado-masochistic abuse which predominantly appeals to the prurient, shameful or morbid interest of adults and is without serious literary, artistic, political or scientific value.
(d) “Sado-masochistic abuse” has the meaning ascribed to it in NRS 201.262.
(e) “Sexual excitement” has the meaning ascribed to it in NRS 201.264.
In addition, Nevada Administrative Codes set forth the causes for disciplinary action.
Nevada Administrative Code 284.650 states:
Appropriate disciplinary or corrective action may be taken for any of the following
1. Activity which is incompatible with an employee’s conditions of employment established by law or which violates a provision of NAC
284.653 or 284.738 to 284.771, inclusive.
2. Disgraceful personal conduct which impairs the performance of a job or causes discredit to the agency.
3. The employee of any institution administering a security program, in the considered judgment of the appointing authority, violates or endangers the security of the institution.
4. Discourteous treatment of the public or fellow employees while on duty.
5. Incompetence or inefficiency.
6. Insubordination or willful disobedience.
7. Inexcusable neglect of duty.
8. Fraud in securing appointment.
9. Prohibited political activity.
11. Abuse, damage to or waste of public equipment, property or supplies because of inexcusable negligence or willful acts.
12. Drug or alcohol abuse as described in NRS 284.4062 and NAC 284.884.
13. Conviction of any criminal act involving moral turpitude.
14. Being under the influence of intoxicants, a controlled substance without a medical doctor’s prescription or any other illegally used substances while on duty.
15. Unauthorized absence from duty or abuse of leave privileges.
16. Violation of any rule of the Commission.
17. Falsification of any records.
18. Misrepresentation of official capacity or authority.
19. Violation of any safety rule adopted or enforced by the employee’s appointing authority.
20. Carrying, while on the premises of the workplace, any firearm which is not required for the performance of the employee’s current job duties or authorized by his appointing authority.
21. Any act of violence which arises out of or in the course of the performance of the employee’s duties, including, without limitation, stalking, conduct that is threatening or intimidating, assault or battery.
22. Failure to participate in any investigation of alleged discrimination, including, without limitation, an investigation concerning sexual harassment.
23. Failure to participate in an administrative investigation authorized by the employee’s appointing authority.
Finally, the Nevada Administrative Code further elaborates on the notice an employee
Most counties and/or incorporated cities in the state of Nevada have developed similar codes to the State Personnel System which provide the same due process rights. Clark County has specifically enacted County Ordinances which divide
employee’s into competitive and non-competitive employees. See Clark County
Ordinance 2.40.030. Non-competitive employees are defined as:
(1) The county manager and assistant county manager(s);
(2) The administrative heads of departments and officials elected county-wide;
(3) A number of employees exempted in each department as designated by the department head, excluding the department head, which shall not exceed three percent of the permanently established positions as authorized by the board of county commissioners in accordance with NRS 245.316;
(4) Employees exempted in accordance with NRS 3.310 or by rule of court;
(5) Persons under contract to perform duties for the county;
(6) Temporary or part-time hourly (provisional) employees as defined in the policies and procedures.
See Clark County Ordinance 2.40.030(c). Employees in the noncompetitive service may be separated from the county at the will of the appointing authority. See Clark County Ordinance 2.40.080. All other employees are employees are protected by collective bargaining agreements with various associations representing county employees and or the County Personnel Policies which must provided due process rights as provided by the Due Process Clause of the Fourteenth Amendment.
3. Due Process Rights:
The Due Process Clause of the Fourteenth Amendment prohibits state governments from depriving "any person of life, liberty, or property, without due process
of law...." U.S. Const. amend. XIV, § 1. The Due Process clause has two components:
procedural due process and substantive due process. See County of Sacramento v.
Lewis, 523 U.S. 833, 118 S.Ct. 1708, 1713, 140 L.Ed.2d 1043 (1998). "Analysis of either a procedural or substantive due process claim begins with an examination of the interest which was allegedly violated. Dover Elevator Co. v. Arkansas State Univ., 64 F.3d 442, 445-46 (8th Cir.1995). Furthermore, a condition precedent to a due process claim is the “[t]he possession of a protected life, liberty, or property interest.” Movers Warehouse, 71 F.3d at 718; See also Nunez v. City of Los Angeles, 147 F.3d 867, 871 (9th Cir.1998) ("a plaintiff must, as a threshold matter, show a government deprivation of life, liberty, or property"). "[W]here no such interest exists, there can be no due process violation." Dobrovolny v. Moore, 126 F.3d 1111, 1113 (8th Cir.1997), cert. denied, --- U.S. ----, 118 S.Ct. 1188, 140 L.Ed.2d 319 (1998). The mere labeling of a governmental action as arbitrary and capricious without the deprivation of life, liberty, or property will not support a substantive due process claim. See Regents of Univ. of Mich. v. Ewing, 474 U.S. 214, 226, 106 S.Ct. 507, 88 L.Ed.2d 523 (1985) ("the Court has no license to invalidate legislation which it thinks merely arbitrary or unreasonable" (quotations omitted)); see also Nunez, 147 F.3d at 873 ("There is no general liberty interest in being free from capricious government action."); Valot v. Southeast Local Sch. Dist. Bd. of Educ., 107 F.3d 1220, 1233 (6th Cir.1997) (Ryan, J., concurring) ("merely to state that the Due Process Clause was 'intended to secure the individual Lyons Law Firm th 512 South 8 Street Las Vegas, Nevada 89101 Employee Rights Peoples Law School Page 13 from the arbitrary exercise of the powers of government'... does nothing to state a claim under the substantive component of the Due Process Clause"); Jeffries v.
Turkey Run Consol. Sch. Dist., 492 F.2d 1, 4 n.8 (7th Cir.1974)(Stevens, J.) (no general liberty interest in being free from arbitrary and capricious governmental action).
Thus, in the absence of a life, liberty or property interest a government could be terminated for arbitrary and capricious reasons. Zorzi v. County of Putnam, 30 F.3d 885, 895 (7th Cir.1994).
Substantive Due Process specifically “protects those fundamental rights and liberties which are, objectively, 'deeply rooted in this Nation's history and tradition,' and 'implicit in the concept of ordered liberty,' such that 'neither liberty nor justice would exist if they were sacrificed.' " Washington v. Glucksberg, 521 U.S. 702, 117 S.Ct. 2258, 2268, 138 L.Ed.2d 772 (1997) (citations omitted). Justice Powell articulated that "substantive due process rights are created only by the Constitution," unlike procedural due process rights which can be created by either state law or the Constitution. Ewing, 474 U.S. at 229, 106 S.Ct. 507 (Powell, J., concurring). For this reason, "[t]he protections of substantive due process have for the most part been accorded to matters relating to marriage, family, procreation, and the right to bodily integrity." Albright v.
Oliver, 510 U.S. 266, 272, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994).
In Zinermon v. Burch, U.S., 110 S.Ct. 975, 983, 108 L.Ed.2d 100 (1990), the United States Supreme Court held that to determine whether a procedural due process violation has occurred, courts must consult the entire panoply of predeprivation and postdeprivation process provided by the state. The Supreme Court emphasized, however, that the Due Process Clause normally requires a hearing "before the State deprives a person of liberty or property." Id. at 984 (emphasis in original). The general requirement that a state provide predeprivation process reduces the likelihood that erroneous deprivations of constitutionally protected interests will occur. In some situations, though, the state cannot foresee, and thus cannot avert through implementation of prescriptive procedures. Id. at 984-85.
In Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 535, 105 S.Ct. 1487, 1489, 84 L.Ed.2d 494 (1985), the Supreme Court considered "what pretermination process must be accorded a public employee who can be discharged only for cause."