Dive Brief:

• A tenured professor at the University of Pittsburgh had no property interest in the continued receipt of his base salary, the U.S. Circuit Court of Appeals has ruled (McKinney v. University of Pittsburgh, No. 17-3084 (3rd Cir. Feb. 14, 2019)).
• Jerome McKinney challenged the university's decision to reduce his salary for performance reasons. In a lawsuit, he alleged that it amounted to a violation of the Constitution's due process clause; university policy discussed salary increases but made no reference to salary decreases.
• The 3rd Circuit said it didn't need to evaluate McKinney's due process argument because it concluded he had no constitutionally protected property interest in his base salary. The university had reduced the salary of as many as 20 faculty members in the past, "indicating that McKinney's salary reduction was not wholly unusual," and McKinney was warned that a salary reduction might be considered if his performance did not improve. Because the U.S. Supreme Court has set a high bar for establishing the existence of a public employee's property interest, and university policies did not create a "legitimate expectation" in the continuance of McKinney's base salary, the 3rd Circuit reversed a district court's ruling of summary judgment in the professor's favor.

Dive Insight:

McKinney deals with public-sector employment, but it's a good reminder for all employers about the importance of clarity and transparency in policies. Experts continue to caution employers against creating handbook policies that could be construed as a contract.

In 2017, for example, an employer policy that appeared to create a distinction between Family and Medical Leave Act (FMLA) leave and "maternity leave" led to a lawsuit. The plaintiff didn’t realize that the employer considered the leaves to run concurrently and was fired when she didn’t return to work after 12 weeks. A judge declined to dismiss her claims, saying a reasonable jury could conclude that the employer interfered with her FMLA rights, including her right to reinstatement.

Similarly, some have cautioned employers against explicitly adding LGBTQ protections to their EEO policies. While experts generally recommend that employers refrain from discriminating against employees based on their sexual orientation or transgender status, a handbook promise could quickly create liability where there otherwise wouldn't have been any, Mike Aitken, then-VP of government affairs for the Society for Human Resource Management, previously told HR Dive. Things written in your handbook could be construed as a contract, he said.

While the policy on pay decreases was seemingly unwritten in the McKinney case, the university communicated well with McKinney, to its benefit. He was warned about his performance issues in three separate annual reviews, and was explicitly told that a salary decrease would be considered if the problems persisted. Additionally, upon the implementation of the salary decrease, McKinney was given a detailed written explanation of the reasons for the decision.