My twitter feed lit up at the images of the trains that was going around a few weeks ago. They do talk about it outside of the BLM ****.

Well, my hope was to respond to each point brought up...but I'm spending a lot of time dissecting and separating what I'm trying to say from the strawmen that inevitably arise. It'd be lovely to have convo about this stuff, but I'm not gonna be able to keep up that pace.

There's a couple of things you need to understand, one of which is very interesting and one plain pathetic.

The interesting one is a group dynamic idea that I believe was first pointed out by a poster called phonebooth. The idea is that the main focus of attacks from a group on the left is others on the left who are in anyway reasonable about political issues. It's a demand for political purity.

The second pathetic one, is that we have a group of posters who's primary purpose is to dunk, mock, troll and prevent anything productive. It's partly an aspect of the purity idea above but there's a long history so don't confuse the ridiculous of it with any lack of skill and determination on their part. You simply have to ignore that group or at least treat them with appropriate seriousness. If you let them waste your time then they will exhaust you because you're putting in real effort and they are not.

You may reasonably decide not to bother but just be aware of it if you decide to struggle on.

I, for one, am flattered that you imputed to me both "skill" and "determination", traits of which I have never been accused before during my short but illustrious posting career.

You are not even remotely correct, except for the vilifying of Me Too.

The Role of Due Process in Lawful Employee Termination


While there are laws that impact employment and termination and the legal restrictions that employers must operate in, the entirety of the termination process has similarities with the legal system itself. This isn't just in the fact that one can lead into the other under certain circumstances, but that they share certain elements in how they are carried out. One legal element that is expected to be found in both the legal system and in employment termination, and is designed to help keep things lawful, is the concept of due process.

This article will look at the role that due process place in lawful employee termination, including an explanation of what it is and its components. Additional topics will include the rights that due process provides and what issues can arise with due process in the termination process, regardless of how that process is carried out.

What Is Due Process?

Due process is a principle that dictates fairness in procedures and legal matters, with the rights and treatment of those involved being kept equal and free from prejudice.1 In the legal system, due process is in place as a safeguard of people's rights and to prevent prejudicial abuse. The concept is applicable to any kind of formal proceeding to ensure that all of the established rules are being adhered to and that they are executed with fairness.2 Most people treat due process as the "correct" or proper means of doing things in a legal setting or when there are legal elements in play. There are imperfections in the legal system and in legal proceedings that elements of due process makes up for. It ensures rights and access to3:


• Legal Counsel-In other words, the right to use a lawyer to legally represent you in court. This could also apply to any other representatives that are meant to advocate for you on your behalf during proceedings.

• Defense at Trial-Everyone is legally entitled to have the opportunity to defend themselves and be heard in a formal trial or other formal meeting. This means that they are given the chance to be present at any kind of proceedings, and must be given advanced notice of those proceedings.

• Confront/Examine Witnesses-Witnesses are not infallible, nor are the accusations and evidence they provide. Anyone who is accused has the right to confront their accusers and witnesses, as well as examine their statements.

• Refuse To Self-Incriminate-Under due process, a person can refuse to offer testimony or other statements that may lead to self-incrimination. This means that they can refuse to do or say anything that implicates or exposes themselves as guilty of what they are accused of or other crimes; this protection is granted under the Fifth Amendment (hence the phrase "pleading the fifth").4

In terms of the law, due process is a guaranteed right laid out in the U.S. Constitution in two spots: the Fifth and Fourteenth Amendments. These state that a person cannot have their rights-life, liberty, or property-taken from them without legal due process in accordance with the law.5 The only difference between the two-which are largely worded the same-is that the Fourteenth Amendment improved due process' application on the state level, which the Fifth Amendment was lacking on.

• What Does This Have To Do With Lawful Termination?-Due process is a necessary topic when discussing termination as it can be applied to keep the process and its outcome(s) legal. Employees still have rights, even if they did something completely reprehensible, and those rights entitle them to certain protections when faced with disciplinary action.6 They can contest punishments-including termination-and can have the opportunity to defend their interests in the situation as a result. You cannot deny an employee or employer these rights in the termination process and still have it be considered a lawful termination, even if this was the only unlawful element present.



Interested in learning more? Why not take an online class in Lawful Employee Termination?
Procedural Due Process

Due process on its own is a very vague and complex in its legal definition. Normally, it is divided into two forms or designations: procedural and substantive. Procedural due process is best described as the "how" of due process, the analysis of the situation and the requirements of what needs to be done.7 The conduct of the proceedings and the events that have transpired are more in focus with procedural due process than things like the reasoning behind those actions and conduct. So long as there is something at stake and that something has happened, it doesn't matter what it is; the nature of the situation has not impact on the outcome in procedural due process unless it prevents the outcome from happening and disrupts the process.8

With employee termination, procedural due process would be in play regarding the termination process. Is every step in the process being followed as it should? Nothing is being skipped, unless absolutely necessary? Are things being done to ensure an outcome, regardless of what that outcome is? An example would be investigating claims that an employee is embezzling and finding further proof before moving on to the final stages of termination rather than skipping that step altogether. Following the different step in the procedure ensures the legality of the entire process and its outcome, which might not come about if that procedure isn't properly followed in the first place. There are certain expectations that employees have when faced with termination regarding how things will be handled, hence the role and value of procedural due process.9

Substantive Due Process

The other form is substantive due process, which looks at the "why" of the situation and the details in the procedure. A process can be deemed unlawful because of the context of its application, even if there's nothing wrong with the steps or stages themselves. Should any aspect of a situation's substance be considered unlawful-the reasoning behind a person's termination, for example-then it can render the entire situation unlawful even if the proper procedure was followed. This sometimes causes substantive due process to be viewed as too complicated compared to procedural due process and it can be a bit of a controversial topic.11 There's more work in determining that substantive due process is followed or if something has violated substantive due process.

With lawful employee termination, substantive due process is usually applied towards the reasoning behind the termination and the specific rights that may be violated. The finer details of the termination come under scrutiny to determine if what has happened is in fact acceptable and that no one is having their rights impinged upon. The rights that are usually under scrutiny with substantive due process are a person's right to autonomy and their right to privacy, or their liberty interests.12 Impinge on these rights when terminating an employee and the entire process can be rendered unlawful.


Burden of Proof

In due process, there is an additional concept known as the burden of proof. This is a requirement to present all of the facts and evidence needed to determine if something is true.13 In the legal system, this is the responsibility of the plaintiff in a civil suit (a.k.a. the person who brought the suit) or the prosecutor in criminal case. Sometimes the burden of proof may fall to the defendant in either circumstances should they question the factualness of the information provided by the plaintiff or prosecutor as a part of their defense. Whomever is tasked with the burden of proof only needs to prove their case to a certain extent, dubbed the standard of proof.14

The employer is often the person responsible for the burden of proof in a lawful employee termination. They are the ones who need to prove that the outcome-their decision to terminate the employee's employment-is due to a justifiable reason. Likewise, should the legality of a termination be brought into question by the terminated employee, they would be responsible for the burden of proof in arguing that they were illegally fired. This means that they, or their lawyer, will need to present their evidence and facts that support the idea that their termination was unlawful to an acceptable extent when contesting the termination.

Potential Issues Regarding Due Process and Employee Termination

Due process and its associated elements is a rather complicated concept so it's not uncommon for issues to arise with its application to employee termination. An employer may not be sure how to handle a situation, either due to their inexperience or the complexity of the circumstances, and mistakes can happen. Unfortunately, mistakes regarding due process can impact the legitimacy of a termination and render it unlawful.

Some of the potential issues regarding due process and employee termination are unavoidable because of the circumstances surrounding the termination and the situation that prompts it. Some of those issues include:

• Lack of Burden of Proof-A lack of or weak facts contributing to the burden of proof placed on the employer could mean that they lack the proper justification for the termination. For example, if the evidence presented is circumstantial, meaning that it requires additional reasoning that it lacks on its own in order to be proven true.15 In many cases, an agreement will not be able to withstand scrutiny if there is little to no burden of proof. Should an employer terminate someone without proper or substantial evidence to support the decision, then the termination could be deemed unlawful if contested.

• "On The Spot" Termination-There isn't any investigation, or procedure of any kind with an on-the-spot termination. That means the employee has no chance of defending themselves or the employer a chance to look at all of the information before reaching a decision. Without that preparation and the opportunity for due process to do its job, misunderstandings and errors can occur which can lead to an unlawful termination.16 In some cases, an on-the-spot termination is justified based on what the employee did; the risk of the employee contesting it, however, is going to still be there because of the lack of a formal process.

• Unclear or Complex Situations-A difficult situation where the details are unclear or are too complex to determine a reasonable solution can happen. Termination already is not an easy decision to make, and it can be further complicated by circumstances. As a result, an employer may make mistakes in the termination process as they try to navigate the situation. An example would be skipping necessary steps and violating procedural due process. Or it may be a mistake regarding the details of the situation or the rights of the employee, which would violate substantive due process. Such mistakes can be significant in the long run, even if they don't seem to be on their own or when they first happen, and can impact the legality of the termination.

• Failure to Acknowledge Rights-The rights that an employee has are there for a reason and they cannot be dismissed because they are inconvenient to the situation or because they do not seem relevant. Those rights need to be acknowledged and taken into consideration for the sake of the process' legality. As mentioned above, some circumstances can be on the complicated side and some aspects may be mistakenly forgot or discarded as those involve try to make sense of the situation. However, employers should strive to ensure that none of those aspects are related to the employee's rights. Again, ignoring such aspects in the termination process can make the entire thing unlawful.

• Inconsistent Actions-Due process requires consistency throughout, so any actions that an employer takes while terminating an employee need to remain consistent. This includes the termination process itself (i.e. no major differences from other terminations other than circumstances) and previous disciplinary measures that may have been directed at the employee.17 Procedural errors can bring the legitimacy of the process into question, especially if the errors were done intentionally and there was no clear legal purpose for them. Even if those inconsistencies were accidental, it may prompt a closer look to determine the lawfulness of the employer's decision to terminate the employee.

It seemed like we had a productive discussion going here until you showed up, tbh. Claims were being made, interrogated, and defended. You know, debate.

Now here you are trying to shout it all down because you don't like the people engaging. Kinda seems like you're the troll here! Why don't you run along and let the adults talk?

I think it's been kept more or less civil. And I mean, he did of sort of ask for it.

Also, if you fire off some shots at a forum full of lefties, the lefties are probably going to shoot back. That he set up camp in no man's land instead of the other side is sort of irrelevant when the directionality is the same.

Chez feels an inexorable compulsion to white knight his new "both sides" friend. It's kinda cute actually.

It may well be civil. But it's only going one way with that group and new posters should be aware of what goes on.

The dynamics of politics is a very interesting topic and I hope he decides to continue. That will require him handling that group.

I think people are hearing my post as a complaint, and that's on me for wording. I thought a few points got made but tbh this felt like pretty low grade usage of time.

That's actually a pretty solid point about the directionality, though, I do like that...

@ infection So back to something hopefully more interesting. An example I find interesting in politics and where the idea of fairness vs greatness can apply is equality.

Firstly absolute vs relative poverty. Generally a more right way of thinking is that it's absolute poverty that matters - if capitalism raises the floor then it's fine, maybe even great, if the gap between the richest and poorest grows. To those of us on the left then that breaks down pretty quickly and we see the unfairness of relative poverty as a huge issue. On both sides (yeah both sides) some will claim with undue confidence that their view is dominant i.e that raising the top or that maximising fairness is necessary to reduce absolute poverty.

Secondly, opportunity vs outcome. The right tend to prefer equal opportunity with maybe some minimal support for those who don't make it. The left goes more towards equal outcomes as well as opportunity - not 100% but a high percentage and on the important things. This is inextricably linked to the absolute vs relative poverty issue. (I'm pretty extreme on this as I want to see equality of outcomes on everything important)

I've addressed this before, and I challenge your assertion that the right prefers "equal opportunity". How do you define that term?

Previous post on the subject:

What do you think I'm asserting?

Very interesting. I'm a few drinks in, so sorry if anything is sloppy here. Definitely worth considering the comparison effect in groups. It seems to me that a piece of info needed to really get into it is "To what extent does unfavorable economic comparison between group members affect emotional wellbeing of the less well-off members of a group?" The answer is definitely not zero, obv. Unfavorable comparison would tend to affect self-narrative/esteem, which has big implications for well-being (Nathaniel Branden's Six Pillars of Self-Esteem is a masterpiece). Of course on an individual level there are factors that can mitigate this, but if you looked at stats over a group of people I feel confident this would correlate with a slew of negative outcomes. In other words, even among a group that has relative wealth to the rest of the world, of the less-well-off members, the social comparison becomes problematic.

I would agree that there is also an objective absolutist element to raising the floor, at least to an extent. Maybe this effect diminishes though once basic needs and freedoms are more or less assured for most, hypothetically? I'm thinking about research that I am barely familiar with correlating income with happiness that has an asymptote around 70k (or did, I guess the $ has different value now).

I think about a similar question with regards to advancing technology, and the simple fact that I, as a middle class citizen now, have access to a bunch of s*** kings couldn't dream of, yet I still feel anxious and stressed about social comparison pieces when they come up.

So I guess my thought is that any good comprehensive answer would need to at least consider that social comparison effect.

I'll get to the second piece in a bit...

That the right tend to prefer "equal opportunity", and I think by most reasonable definitions of "equal opportunity" they do not. Hence, I'm asking how you define it.

I don't get it, what's confusing?

What do you mean by the right? trump supporters? GOP supporters, the conservatives minded?

Do you mean in terms of specific policies or in terms of general inclinations?

As some window into my thinking. I find a lot of the more conservative minded left of center are more inclined towards equal opportunities as the goal than someone like me who want's more equality of outcomes.

How did you mean the right? You started this conversation, I'm asking you about your statement.

If you're gonna just put up a wall and refuse to explain what you meant then I guess this won't be a very productive conversation. Shame!

I added - you may have missed it

So do you want to answer my questions now? If it's going to be productive then you need to be a bit clearer.

You completely botched this by clipping off the post I was replying to. He was talking about being innocent until proven guilty which simply don’t apply to employment situations. If I get arrested for murder or for being a drug kingpin tomorrow I’ll get fired tomorrow. My employer doesn’t have to wait for the verdict or for the prosecution to prove that I’m guilty.

I did miss that, but I'm not sure it clears things up if you're talking about conservative-minded left of center folks.

Basically, true equality of opportunity means overcoming the advantages held by people who grow up in wealthier homes. I've never seen conservatives express, through their preferred policies, any desire whatsoever to actually deal with that. This extends to Trump-supporting conservatives, never-Trumper fiscal conservatives, anyone on the right in the United States really. When it comes to fiscal policy, those people are are all actually pretty united on things like "ban/reduce estate taxes" and other policies that would significantly entrench the power of the wealthy to pass that wealth (and the unequal opportunity it provides) down through generations.

Having actual "equality of opportunity" would be a massive step-up from the status quo. Conservatives love the status quo, maintaining it is kinda what conservatism is about.

And you're distorting the spirit of what I said--basically, that trial by popular opinion is super unhealthy and (as this thread perhaps illustrates,) is supported by some Leftists in the context of #MeToo. Maybe you can nitpick my wording, but I thought it was pretty clear that was the idea. An arrest for murder or drug charges by police is not apples to apples with a facebook post claiming someone abused you, clearly. And fwiw, I also think due process should apply then as well, from an ideological standpoint.

I mean, really, we should all be able to agree on that, no?

In that case feel free to respond on your time. Nobody expects you to respond to respond in minutes or hours.

Sure. My example is extreme and not directly comparable. But my point is our jobs are always essentially hanging on by “popular opinion” and Me Too hasn’t really changed anything. Like people get fired all the time for not getting along with their coworkers or just being jerks and abuse allegations seem like a more serious form of that.

I don't really see a thread of logic here that would lead one to rule it out as a problem. "It" being the heightened levels of trial by popular opinion. If you are arguing that more of a bad thing isn't a worse thing, then...whut. And uh, you think that MeToo hasn't changed anything?

I'm all for having debate in good faith, but I can't tell if you're trolling or not. That's ridiculous.

And maybe I should ask...have you held a management or leadership role before in a company? My experience has been that organizations are terrified of firing people because of the threat of lawsuit and/or that person just talking a bunsh of s*** that infects the culture. I guess I have to say this, because people here seem to latch on to the crumbs: I'm not saying that employees have the power in that situation, I'm saying that my experience in multiple states in the southeast on leadership teams is that management usually is very hesitant to fire people without a clear, definitive, and obviously defensible reason. I'm curious if you are speaking from experience or just something you've heard here--because it doesn't match mine.

No offense, but you don’t seem like much of a logic dude, which is fine, but I think again needs to be realized. Workplace sexual harassment stuff has been part of HR since before we were born. What do you think MeToo has changed?

My only 2 jobs have been grad student and my current job we’re I'm technically “management” but we are not a company with a ton of layers. We’ only hire really specialized people, and since I’ve been here nobody has got “fired”. They are told this isn’t working out, and to start looking for another job and in 6 months they resign. And that happens a lot.

But I dont really get your larger point. Companies never fire people...except for MeToo? But I’ll gladly stipulate I don’t have a ton of first hand experience at BigCorp USA type typical American companies.