Vermont Constitutional law. Employee cannot rely on Article 4 to create a property interest in claimed employment rights because employee has no state law right to overtime wages.

 Flint v. Department of Labor,  2017 VT 89 [filed 10/06/2017]

A former employee of the Vermont Department of Labor appeals from a judgment on the pleadings denying his suit against the Department seeking unpaid overtime pay. Employee argues that he is entitled to overtime pay for hours worked in excess of forty hours per and that that state employees have a private right of action to enforce those claimed rights through Article 4 of the Vermont Constitution. Vt. Const. ch. I, art. 4. We affirm.

Chapter I, Article 4 of the Vermont Constitution provides: 

Every person within this state ought to find a certain remedy, by having recourse to the laws, for all injuries or wrongs which one may receive in person, property or character; every person ought to obtain right and justice, freely, and without being obliged to purchase it; completely and without any denial; promptly and without delay; comformably to the laws.

Vt. Const. Ch. I, Art 4

 We have held that Article 4 is “the equivalent to the federal Due Process Clause.” Quesnel v. Town of Middlebury, 167 Vt. 252, 258, 706 A.2d 436, 439 (1997). However, we have also held that Article 4 “does not create substantive rights,” but rather “ensure[s] access to the judicial process.” Shields v. Gerhart, 163 Vt. 219, 223, 658 A.2d 924, 928 (1995).

Article 4 provides a remedy only if employee can show that he has a pre-existing property interest in those employment rights. See Quesnel, 167 Vt. at 258, 706 A.2d at 439 (“There being no statutory or common-law cause of action for plaintiffs’ injuries resulting from their son’s death, plaintiffs have not been denied due process of law or their rights under Article 4.”); see also Hallsmith v. City of Montpelier, 2015 VT 83, ¶ 10, 199 Vt. 488, 125 A.3d 882 (“To show a  violation of procedural due process, an individual must (1) identify a protected property right, (2) show that the state or a state actor has deprived the individual of that right[,] and (3) show that the deprivation was effected without due process.”).

Employee asserts that those pre-existing property rights have a statutory basis—that they come from § 384(b)(7). But § 384(b)(7) explicitly excludes state employees from its protections because state employees’ minimum wage and overtime rights are already covered by FLSA.

Employee therefore has no state law right to overtime wages..

SCOVT NOTE. Compare Nelson v. Town of St. Johnsbury, 2015 Vt. 5, where the Court held a town manager who alleged wrongful termination was entitled to procedural due process under Article 4 and that Article 4 is self executing.

That Article 4 protects only recourse to the judicial process and does not create substantive rights see also Gallipo v. City of Rutland, 2005 VT 83; USGenNew England, Inc. v. Town of Rockingham, 2003 VT 102, 176 Vt. 104, 838 A.2d 927; Levinsky v. Diamond, 151 Vt. 178, 197, 559 A.2d 1073, 1086 (1989).

That access to courts is not absolute see State v. de Macedo Soares, 2011 VT 56 (requiring litigant to incur costs for filing fees and a transcript does not violate Article 4 ); Handverger v. City of Winooski, 2011 VT 130. ¶ 13 (Article 4 does not provide relief from explicit provisions of a city charter precluding appeal from termination of employment); Carter v. Fred's Plumbing & Heating Inc., 174 Vt. 572, 816 A.2d 490 (2002)( five-year statute of limitations in the Occupational Disease Act does not violate Article 4.).