Nassau County's "lag payroll" does not violate the Due Process Clause

To deal with budgetary problems, Nassau County decided to institute a lag payroll for its corrections officers "with the effect of deferring a percentage of each [union] member’s pay until he or she stopped working for the County." The union challenged this procedure under the Due Process Clause on the theory that the County was denying (or delaying) a property interest (salary) without prior notice or hearing. The district court granted plaintiffs summary judgment. The Court of Appeals reversed, and the County wins.

The case is Adams v. Suozzi, decided on February 22. The Second Circuit (Straub, Hall and Haight) assumed that the deferred salaries were a property interest and jumped straight to whether the County satisfied due process. The formula for resolving due process claims is two-fold: (1) is the deprivation a property or liberty interest and (2) did the government provide sufficient pre-deprivation process in the context of denying that liberty or property interest. The interesting thing about due process claims is that the government can provide sufficient pre-deprivation notice and still institute an unfair decision. The idea is that by allowing sufficient due process before taking away the liberty or property interest, the "victim" can persuade the government to change its mind before the decision takes effect.

The County wins the case becasue it did provide sufficient process, according to the Court of Appeals. That's because the County gave the union notice of the lag payroll procedure, telling the union about it more than week before the program went into place, and three weeks before the lag would have been reflected in the paychecks. "That gave [the union] sufficient time to file a grievance under the provisions of the [Collective Bargaining Agreement] challenging the lag procedure as a violation of the CBA’s terms setting wage rates and pay schedules."

As the Court of Appeals reminds us, "We have held on several occasions that there is no due process violation where, as here, pre-deprivation notice is provided and the deprivation at issue can be fully remedied through the grievance procedures provided for in a collective bargaining agreement. . . . The Due Process Clause is implicated only when plaintiffs can establish that the grievance procedures in a collective bargaining agreement are an inadequate remedy." Since a grievance under the union contract was adequate here, there is no due process violation.