Are there laws that preclude voluntary or involuntary salary reductions via a furlough program for tenured faculty?

Paul F. Bell

December 3, 2011


Answer: Yes. There is case law that prevents administrators from imposing involuntary salary reductions.  There is also case law that suggests that furloughs that reduce salary almost to zero are tenure violations. See below.

 

No case law that I know of that prevents administrators from imposing furloughs to faculty member that knowingly and voluntarily agrees to the furlough.  Given that furloughs are usually campus wide, administrators would likely get this approval via signed statements. 

 

As to case law regarding administrators that try to impose the furloughs involuntarily, a court found that Michigan State University may have breached its employment contract when it furloughed a tenure-track assistant professor for about 10% of his salary per month (he would stay home for 2.5 days a month) without first getting his permission to the furlough. Michigan Karr v. Board of Trustees of Michigan State University, 119 Mich.App. 1 (1982).  The summary judgment decision rested on standard contract law and that reasoning would likely be followed by Louisiana courts, too.   I think this is why Southern University this year and LSU Agcenter in the early 1990s asked its faculty and staff to sign off on furloughs. It appears that this would apply here as long as the faculty member gets a letter of appointment, letter of promotion in rank, or other letter specifying an annual salary. Southern University has Personnel Action Forms (PAF) that faculty and staff get that includes salary amount.  I have an appointment letter for non-tenured, can you send me others?

 

There is reason to be concerned, however. See Green v. Univ. New Orleans, 740 So.2d 195 where a director of financial aid did not have contract despite annual salary mentioned in her offer-of-employment letter. I think this can be distinguished from the MSU case in that one was a fixed-term position and the other an indefinite term. Those positions that are of a known length of time (fixed-term) require the employer to honor promises for employment for a set period at a set salary.  The indefinite-term positions like that for the financial aid officer, however, are considered employment “at-will”. The Michigan court found that the MSU teaching position was for a school year and a set salary.  The Louisiana court considered the administrator as not in a fixed-term position and, unlike teaching positions, it happened to have started in January. It was not a teaching position that would only have been for the school year.  The language of the employment letter was not that clear as to fixed-term or not, and did not, therefore, have the features of a fixed-term position.  The concern for other faculty is that some teaching/research faculty work year round and it would not be difficult for administrators to fashion contracts for non-tenured into indefinite term employment-at-will contracts.  It does not appear this is happening, though. Instead, the contracts that are designed for school-year positions are also used for year-round faculty. 

 

The above two cases were with non-tenured positions. What about tenured positions? Are they treated any differently? It appears that tenured faculty are treated similarly to the non-tenured in this respect.  They both have annual appointment letters for a period of time. They both have a custom of working for the school year suggesting these are, indeed, fixed-term contracts.  Also, it would be odd to contend that the tenured professor has less rights to full pay then the non-tenured. As I discuss below, I conclude these are matters of law regarding contract and not tenure. 

 

Although contract law appears to apply to university faculty, there apparently are statutes that allow the Director of Civil Service to furlough employees unilaterally.  Similarly, the Board at Southern can unilaterally furlough non-civil service employees. I suspect the latters’ appointment letters are not fixed-term contracts and may, in fact, state that they are “employment-at-will” contracts.  But as to the non-tenured and tenured teaching staff? It appears that in non-exigency situations, furloughs can be invoked only by agreement with the faculty member. 

 

Regarding faculty that have salaries provided via outside funding, the university likely cannot furlough that faculty member from the salary of that source.

 

What about statutory or case law finding furloughing a tenure violation?

I found no cases or statutes that found that furloughing a small amount of one’s salary (maybe 10%) is a violation of a public university professor’s constitutionally protected property rights under tenure.  This depends, however, on how tenure is defined in university policy documents or contracts with faculty members. As far as I know, universities tend to restrict tenure rights to dismissal issues.  The University of Michigan faculty, however, has proposed broader protections. See http://www.umich.edu/~aaupum/tenure05.htm . Elementary and secondary tenured teachers here are statutorily protected against dismissal and demotions. Some states include suspensions, too.   But even under those conditions, a furlough may be none of those since it is not done in any punitive fashion like that in a demotion.  They would be protected, therefore, under contract and not tenure law.

 

As to tenure rights of a private university faculty member, that would depend on their contractual definition of tenure rights. Contracts and policy often only describes tenure as protections against unfair dismissals and would not offer protection against furloughs. It may not even protect against demotions.  Tulane and Loyola faculty have been burned by being private university faculty but have since strengthened their contracts.  They have legally enforceable rights besides tenure including strong exigency requirements. 

 

Could a university reduce a tenured faculty members salary a lot?  

If a university decreased its faculty member’s pay in half or near zero via furlough or demotion, it would be a de facto or constructive dismissal and would be a tenure violation.  Also, even in lesser ‘demotions, tenure arguably protects against demotion. Tenure policies define promotion procedures and that suggest it defines and may control demotion procedures. There are Louisiana statutory protections for tenured school teachers against arbitrary demotions but I know of no explicit protection in Louisiana public university policies. There are no statutory protections for university faculty on tenure as far as I know.

 

After Hurrican Katrina SUNO furloughed some tenured faculty and did not pay their salaries (Odynocki v. Southern University at New Orleans, (LaED 11/3/06 2006 WL 3230348 Case 06-1733). Technically those affected were still employed but done only to let them keep their health insurance.  This drastic furlough which is more a dismissal than a furlough, was considered for arguments sake by a court a tenure violation. The court, though, still ruled for the administrators finding no tenure violation because the faculty member was given due process (he met with an administrator with his attorney and was heard, i.e., notice and ‘meaningful’ hearing provided). 

 

Although the court did not directly decide on the issue, it appears that furloughs amounting to most of one’s pay or significant demotions would be considered tenure violations.  

 

One faculty member today in Louisiana, argues that tenure protects against changes in the terms and conditions of one’s employment. At Southeastern Louisiana, it appears that the annual reappointment letter of some faculty includes the faculty handbook as part of that contract.  This would be even more persuasive than an annual appointment letter that does not state unequivocally that the faculty member is guaranteed that salary.  The personnel action form from Southern, for example, does not require any signature of the faculty member. If this faculty member is correct, tenure (or, at least, contract) rights may include access to the grievance process, demotion process, and apply to more than just dismissal issues. 

 

Conclusion as to tenure rights:

I think that public university tenure rights are limited to protections against dismissal and constructive dismissal in Louisiana unless tenure policy states otherwise. Case law indicates that furloughs of a small amount are allowed only if the faculty member agrees to it. Courts rule based on contract law finding that the position is a fixed-term position.  Universities appear to treat faculty---school-year or year-round faculty---as fixed-term employees and this does not seem to be a problem.  Even tenured faculty appear to be considered fixed-term employees and protected by the contract laws although no case law on point. This seems odd to think of a tenured faculty member as protected by law for fixed-term employees but their annual appointment letters can be used to their advantage just as the non-tenured faculty member’s appointment letter can so be used.

 

Note, however, that sometimes the law can be applied more expansively. A Southern University professor filed an injunction against SU for it transferring him to another department and generally treating him shabbily. His pay was unaffected.  Although he would seem to be unprotected by contract or tenure laws, the court hammered out an order requiring him to return to his department.  If the facts are especially egregious for the faculty member, the trial court may apply the law more liberally than that described above. I suspect the appellate and supreme courts would not have been so helpful, however.