Forensics Journal - Stevenson University 2011 | Page 11

FORENSICS JOURNAL

Due Process and Employee Rights
John Grimes

In the early part of the 13th century, English barons sought to limit
the authority of King John, petitioning him to grant certain liberties
to be enjoyed by his subjects. The early agreements, and annulments
of those agreements, eventually led to the historic Magna Carta,
which bestowed rights on Englishmen. Among those rights was the
concept of due process, a principle that protects individual life and
liberty from a powerful and potentially abusive government. Simply
put, due process equals fairness.

Employee labor organizations have undertaken educational initiatives to ensure members are aware of their rights pursuant to Garrity,
Kalkines, and Weingarten. Employers are compelled and legally obligated to comply with provisions resulting from the rulings. In examining employee and employer initiatives, one can assess whether the
rulings have created a disadvantage to employers or whether they have
established a fair standard and acceptable framework for addressing
employee dishonesty and misconduct.
Garrity involved a group of New Jersey police officers who were being
investigated by the State Attorney General for ticket fixing. Edward
Garrity, the Police Chief, and other officers were interviewed by a
Deputy Attorney General who warned them that anything they said
might be used against them in a criminal proceeding. He also warned
the officers that they could refuse to answer questions if their statements would be incriminating; however, the refusal to answer questions would automatically lead to termination pursuant to state law.
Garrity signed a “waiver of immunity.” In doing so, he agreed that
any statements he made could in fact be used against him in a criminal prosecution. Subsequently, Garrity did make incriminating statements, which led to his conviction in state court. A Supreme Court
majority reversed the conviction. Justice Douglas in delivering the
majority opinion wrote, “The choice imposed on petitioners was one
between self-incrimination or job forfeiture. We think the statements
were infected by the coercion inherent in this scheme of questioning
and cannot be sustained as voluntary” (Garrity, 385 U.S. at 396). In
this decision, the Court held that public employees are not required
to forfeit their privilege not to incriminate themselves granted under
the Fifth and Fourteenth Amendments of the Bill of Rights (385 U.S.
at 496).

DUE PROCESS
Six-hundred years later, and an ocean away, the Founding Fathers of
the United States of America included the model of due process in
the Bill of Rights to the United States Constitution, making it a found