November 17, 2018

Pre-hearing suspension without pay


Pre-hearing suspension without pay
Gilbert v Homar, 520 US 924

Is a public employee entitled to a hearing before he or she may be suspended without pay? In Gilbert v Homer the U.S. Circuit Court of Appeals, Third Circuit, ruled that a public employee is always entitled to a hearing before being suspended without pay. According to ruling, while a public employer may be justified in suspending an employee immediately, and before it is possible to conduct a hearing, "the added suspension of pay" requires that a hearing be conducted before removing the individual from the payroll.

Ultimately the United States Supreme Court held that a pre-deprivation hearing is not required where, as here, an employee is suspended without pay after having been convicted of a felony, because that conviction (1) “demonstrate[s] that the [deprivation] is not arbitrary” and (2) “serve[s] to assure that the . . . employer’s decision . . . is not ‘baseless or unwarranted.”

§75 of New York's Civil Service Law authorizes the suspension of an employee without pay for up to 30 days once he or she has been served with disciplinary charges. This raises the question of the possible impact of the Gilbert ruling in §75 suspension without pay situations. It may be possible to distinguish the Gilbert case from a §75 situation because of the limited duration of the suspension under §75 - 30 days - and the fact that the employee would be awarded back pay for any such suspension if acquitted of the charges.

What about a provision in a Taylor Law agreement providing for the immediate suspension of an employee without pay upon the occurrence of certain events? Probably the courts would take a more narrow view in applying Gilbert in such cases on the theory that the parties had agreed to the suspension without pay in the course of collective bargaining.

The decision is posted on the Internet at:





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