On a PIP in a US government or university job: due process

Does working for a government change what a PIP is?

Mostly not, while it is running. What can change is what happens if it ends in a termination, and that turns on a rule written somewhere other than the Constitution.

The constitutional protection attaches to a deprivation. An ordinary performance plan is not one: it takes away neither the job, nor your rank, nor your pay. So the due-process layer is not live while you are working the plan. If yours also suspends pay, demotes you or cuts salary, that is a different question and this guide has not worked it out.

What the plan does instead is become the record that any later step is about. That makes a dated written response worth the same hour here as it is at a private employer, for exactly the same evidentiary reason, whichever way you are expecting the plan to go. The five parts one contains travel unchanged.

The question to ask in week one

Whether you hold what the cases call a property interest in the job. That is the thing the protection is attached to, and being employed by a government does not by itself supply one.

Board of Regents v. Roth (1972) is express about where it comes from. Property interests "are not created by the Constitution"; they are created and defined by "existing rules or understandings that stem from an independent source such as state law". And the threshold is stated twice over: a person "must have more than an abstract need or desire for it", and "more than a unilateral expectation of it". What is needed is "a legitimate claim of entitlement to it".

So the answer is in a document rather than in a principle. A statute, a civil-service classification, a tenure policy, a staff handbook, a collective agreement. A probationary or at-will public employee may have nothing here at all, and a colleague down the corridor on a different appointment may have a great deal.

Ask, in writing, which policy, rule or agreement governs the end of your employment, and ask for a copy. It is an ordinary question, it is usually answerable out of a handbook that is already public, and everything below it turns on the answer.

If it reaches termination, the Court listed what is owed

Where the interest exists, Cleveland Board of Education v. Loudermill (1985) says three things are owed before the employment ends: "oral or written notice of the charges against him, an explanation of the employer's evidence, and an opportunity to present his side of the story." Notice and a chance to respond are what the Court called "the essential requirements of due process."

That step is a check rather than a trial, and it is meant to be short. The opinion describes it as "an initial check against mistaken decisions—essentially, a determination of whether there are reasonable grounds to believe that the charges against the employee are true and support the proposed action." Requiring more of it, the Court said, would intrude on the government's interest in removing an unsatisfactory employee quickly.

Its thinness is conditional, which is the half that gets dropped. The Court said in terms: "Our holding rests in part on the provisions in Ohio law for a full post-termination hearing." A thin front end is justified by a real back end. Where an employer offers neither a meaningful chance to answer beforehand nor a hearing afterwards, that is a different case from Loudermill rather than an application of it.

Use the appeal, and use it as an appeal

Public and university employers generally carry grievance and appeal stages that private employers do not. Skipping one because it looks like a formality is worth a second thought whichever way you expect the plan to go: it is the employer's own process, it is free, and using it puts your account somewhere the employer has already agreed to read.

Three things about how these plans are administered, from four public-employer forms this guide has read. None of them is sinister and all of them are worth knowing.

• HR approves the plan before you see it. The document that arrives is not a first draft and not a conversation opener. Somebody has already reviewed it against a policy you can ask for.
• Update memos are generated on a schedule, commonly at about 30 days, then 45 to 60, then 60 to 90, each with a named owner. A written record is being made about you on a timetable.
• Recurrence clauses are normal, so completing the plan does not always close the file. Read what yours says happens if the same concern is raised again later.

The practical answer to the second of those is a mirror memo: on the day each employer update lands, write your own. What was said, what was agreed, what was actually provided. It takes a few minutes and it is ordinary prudence, the same as keeping receipts.

Watch the word misconduct

One of those specimen plans carried a consequences clause saying, in substance, that failure to meet expectations or any display of gross misconduct will result in discipline up to termination. That is two different things joined by an "or", so either one of them is enough on its own, and the join widens the grounds without announcing that it has.

The distinction matters twice over. It is what the benefit question turns on if the job ends: the US benefits page has where the line between performance and misconduct sits, and the vocabulary employers are coached to use at it. And in a public body, misconduct is the characterisation most likely to reach a record that somebody else can read afterwards.

So say in writing that you understand the plan to concern performance, and ask for confirmation. Early, while it is a clarifying question rather than an argument.

If you reported something, the constitutional rule is the inverse of the UK one

This is the sharpest thing on this page, and a reader who has been reading British advice will have it backwards.

Garcetti v. Ceballos (2006) holds that "when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline." A public employee who raises a problem because raising it is part of the job has no First Amendment claim for what follows. In the United Kingdom, telling your own employer is the protected route. Here it is the route with no constitutional protection, which is not the same as no protection.

What survives Garcetti is the older route. Speech made as a citizen on a matter of public concern is still protected, and the question then becomes the balance struck in Pickering, which Garcetti expressly preserves. So the same concern raised outside your duties, in a letter to a newspaper or at a council meeting, is a different case from the one the holding decides.

Two limits on that holding reach readers of this page, and both get left out when it is summarised.

• A job description does not decide it. The Court called the inquiry a practical one: formal descriptions "often bear little resemblance to the duties an employee actually is expected to perform", and listing a task in one is "neither necessary nor sufficient". If the thing you reported appears in yours, you have not thereby lost the point.
• The academic case was reserved. The Court said it "need not, and for that reason do not, decide whether the analysis we conduct today would apply in the same manner to a case involving speech related to scholarship or teaching". This page covers public universities, so that reservation belongs to some of its readers.

And no First Amendment claim is not the same as no claim. The Court said its reasoning was reinforced by "the powerful network of legislative enactments" available to people who set out to expose wrongdoing, and named whistleblower protection statutes among them. That is the route the decision itself points at, and it reaches internal reports as well as external ones.

So the inversion above is in the reasoning rather than necessarily in the outcome. The British answer comes from a statute too, and the United States has statutes here as well. This guide has not distilled them, state or federal, which is a gap here rather than an absence in the law, and a reason to ask about them rather than to assume the question is closed.

Who you would be suing is not obvious from the employer's name

The vehicle is 42 U.S.C. § 1983, which gives a remedy against "every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia" who deprives somebody of a federal right. Two halves, and both do work: the colour-of-law half is why none of this page applies at a private employer, and the federal-right half is why it is not a general remedy against a government that has treated you badly.

But Will v. Michigan Dept. of State Police (1989) held that "neither a State nor its officials acting in their official capacities are 'persons' under § 1983." Local government is different, and a city or county can be sued directly. A state university ordinarily is the State, so a county-agency employee and a state-university employee are not in the same position at all.

Against the institution itself, the state employee's routes are the ones that survive Will: prospective relief against officials, or damages against an official in their individual capacity. Which side of that line an employer sits on is a question for a lawyer rather than one to read off a letterhead.

One more thing this guide is naming rather than answering. Roth turned on property, but the same opinion is explicit that a different case arises where the employer makes a charge that "might seriously damage his standing", giving dishonesty and immorality as its examples. That second branch does not depend on a state-law entitlement, so a public employee with no property interest is not automatically outside the Constitution. This guide has not worked that branch out, and says so here so that nobody reads the property question as the whole of it.

Where this guide stops, and why it says so

Fairhanded is not a law firm, and none of the above is an answer about your facts.

Federal employees are outside this page. Much of the constitutional analysis is about public employees generally, but the route to a tribunal for a federal employee runs through a different statute, and this guide has not read it. Do not take the remedies described here as yours.

There is no clock of its own on this page. Any internal grievance or appeal deadline is set by the employer's own policy rather than by law, and those are usually short. The date lives on the document, so read it the day it arrives and write it down.

What moves is the circuit, not the Supreme Court. The four decisions above are from 1972, 1985, 1989 and 2006, and are settled. What is applied case by case below them is what counts as a property interest under a particular state's rules, and where speech stops being "pursuant to official duties". Neither is answerable for a named employer without a lawyer who knows the state. When a PIP needs a lawyer is what to bring to the first meeting.