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Friday, June 6, 2014

Employment Handbook Litigation Landmines

By: Tommy Eden
Terry Freeze was hired by the City of Decherd Tennessee Police Department and later promoted to Chief of Police in August of 2007. Earnest Colvin, Freeze’s brother-in-law, was hired by Freeze as a patrolman in November of 2007.
In a City Board meeting held on February 25, 2009, a group of Board members met with Freeze to discuss the proper procedure for buying dog food for the City’s police canine. During the meeting Freeze was told that the Mayor did not care for Freeze’s wife. According to Freeze’s testimony, he was told that they might need to just let him resign as the Chief and put him in as a sergeant at $15 an hour.” Freeze accepted the demotion rather that contest the issue with the Mayor “who said she thought it was a mistake to hire him in the first place.”
A month later at a regular City Board meeting, another police officer for the City nearly came to blows with a City employee over his suspension. Both Colvin and Freeze stood by and observed and did not intervene to subdue the enraged police officer that was escorted from the meeting and then fired. At this same meeting, the Board voted to terminate the employment of Colvin and Freeze for failure to intervene in the dispute and because “Decherd needed to move on” as well as other grounds for “betterment” of the City. The City did not provide Freeze and Colvin with written notice that their terminations would be considered at the meeting, the opportunity to present witnesses or evidence, there was no hearing on the merits of their discharges and there was no finding supporting a “just cause” termination.
Discovery revealed that in January of 2000 the Board had adopted a Police Resolution that “discipline shall be for cause and shall follow the basic concepts of due process,” including a five step “progressive system when practicable whenever disciplinary action is used,” and that an employee must be informed in writing of the “exact offense violated.” Typical steps followed in a for cause termination.
Freeze and Colvin then filed suit against the City, Mayor and Board members alleging that they were terminated without due process in violation of 42 U.S.C. Section 1983. The 6th Circuit of Appeals last week agreed that the Police Resolution handbook language grant to them a constitutionally protected property right in their City jobs. Case is Freeze v. City of Decherd.
Common Sense Counsel: words do matter and a badly worded employment handbook can create a contract of employment or, in the case of a public entity employee, a constitutionally protected property interest in continued employment that can only be extinguished by following just cause termination steps. An employment handbook can be an employer's best reduction tool or a litigation landmine. Having yours professionally reviewed is the only ways to spot and defuse those landmines.
            Tommy Eden is a partner working out of the Constangy, Brooks & Smith, LLP offices in Opelika, AL and West Point, GA and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. He can be contacted at teden@constangy.com or 334-246-2901. Blog at alabamaatwork.com.