Category: court cases

  • HR and the Courts — December 2023 – CUPA-HR

    HR and the Courts — December 2023 – CUPA-HR

    by CUPA-HR | December 12, 2023

    Each month, CUPA-HR General Counsel Ira Shepard provides an overview of several labor and employment law cases and regulatory actions with implications for the higher ed workplace. Here’s the latest from Ira.

    University of California May Test Federal Ban on Hiring Undocumented Workers

    The University of California may be the first public institution to challenge whether the 1986 Immigration Reform and Control Act (IRCA) applies to state entities, including public colleges and universities. The IRCA prohibits U. S. employers from hiring undocumented workers.

    On November 20, 2023, the University of California postponed plans to go forward with a self-imposed deadline of November 30, 2023, to initiate a plan to hire undocumented workers. The university has decided to study the issue further before deciding on a specific course of action. The Supreme Court has dealt with the constitutionality of federal regulation of state employers on multiple occasions in the past, having come down on both sides of the issue. We will follow developments in this area as they unfold.

    Texas Community College Wins Suit Brought by Professor Who Commented on Race and COVID-19 Policies

    Collin College in Texas prevailed in partial summary judgement against a former professor who sued alleging First Amendment free speech retaliation in the non-renewal of his teaching contract. He claimed his contract was terminated because of his outspoken views as a private citizen on public issues including race relations in Dallas, Confederate monuments and his criticism of the college’s COVID-19 policies.

    The court granted part of the college’s motion to dismiss because the college’s policies were not facially unconstitutional. However, the federal court denied each side’s motions for summary judgement on the professor’s claims that the college’s policies were overboard in their restriction of his speech, holding that the issue should be reserved for decision until factual questions are resolved (Phillips v. Collin Community College District (E.D. Tex. No. 22-cv-00184, 11/4/23)).

    Law Professor Sues Northwestern University, Claiming Age Discrimination

    A 78-year-old law professor has sued his university employer claiming age-based salary discrimination. The professor, who is tenured and taught at the law school for 42 years, claims he has been consistently paid substantially less than “significantly younger, less experienced and less tenured” comparators (Postlewaite v. Northwestern University (N.D. Ill. No 1:23-cv-15729, Comp filed 11/7/23)).

    The professor claims to be “a preeminent scholar” in the field of tax law and started his law school’s lucrative Master of Laws in Taxation program, which he claims has been the school’s “highest ranked specialty department” for 17 of the last 19 years. The professor alleges that he has been awarded lower base-salary increases than his younger counterparts. He further alleges that for the academic year 2022-23, his salary was $7,000 less than the 50th percentile and $55,000 less than the 75th percentile, even though those percentiles equated to 20 and 32 years, respectively, of total teaching while he has completed 49 years of total legal academic teaching.

    The lawsuit was filed in federal court and alleges violation of the federal Age Discrimination in Employment Act and the Illinois Human Rights Act.

    Supreme Court Declines to Review Decision on UPS Driver’s Disability Accommodation

    The Supreme Court declined to review a 4th U.S. Circuit Court of Appeals case in which the 4th Circuit upheld the dismissal of a driver’s disability accommodation request. The driver requested that he be allowed to drive a smaller truck with softer suspension to accommodate his hip and back bursitis disability, which caused him severe pain (Hannah v. United Parcel Service (Case No. 23-264 US Sup Ct, cert den. 11/6/23)).

    The 4th Circuit decision, which the Supreme Court let stand, concluded that the employee’s request for an accommodation was not reasonable because the request altered the “essential elements” of the employee’s job. The court concluded that if the driver was given the accommodation to drive a smaller truck, he would not be able to complete the daily work load requirement of his existing driver position.

    Tesla Allowed to Ban Union Shirts

    The 5th U.S. Circuit Court of Appeals overturned an NLRB decision holding that Tesla violated the NLRA when it required its production employees to wear black Tesla-monogrammed uniform work shirts and did not allow production workers to wear black union-insignia work shirts. The decision of the three-judge panel was unanimous in overturning the NLRB ruling against Tesla (Tesla v. NLRB (5th Cir. No. 22-60493 11/14/23)).

    While Tesla had banned the wearing of union-insignia work shirts, it allowed production employees to wear Tesla-insignia work shirts with a union insignia pinned on the shirt. Tesla had argued unsuccessfully to the NLRB that its rule was necessary to prevent damage to cars and to help supervisors distinguish between production employees and other employees at the company’s California facility. The Court of Appeals decision allows Tesla to continue to enforce its prior policy requiring Tesla-insignia work shirts, with the employee’s option of pinning on a union insignia.

    Appeals Court Affirms Dismissal of Gymnastic Coach’s Wrongful Termination and Defamation Lawsuits

    A Pennsylvania state appellate court affirmed a trial court dismissal of a former Pennsylvania State University gymnastic coach’s lawsuit. The former coach alleged defamation and violation of his employment contract when the university terminated his contract after investigating allegations that he created a hostile environment for gymnasts. The three-judge appellate panel adopted the decision of the trial court judge, concluding that the university had good cause for firing the coach and that the athletic director’s statement about prior accusations against him had not been defamatory (Thompson v. Pennsylvania State University (Case no. 1460 MDA 2022, 11/28/23)).

    The appeals court ruled that the gymnastic coach’s high profile in collegiate sports made him a limited public figure and that the university’s reaction to allegations of mistreatment of athletes were matters of public concern. That meant that the plaintiff must show “actual malice” in order to prove defamation in these circumstances. The appellate court concluded that the university’s actions did not rise to the level of “actual malice.”



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  • HR and the Courts — November 2023 – CUPA-HR

    HR and the Courts — November 2023 – CUPA-HR

    by CUPA-HR | November 8, 2023

    Each month, CUPA-HR General Counsel Ira Shepard provides an overview of several labor and employment law cases and regulatory actions with implications for the higher ed workplace. Here’s the latest from Ira.

    California Becomes First State to Mandate Workplace Violence Prevention Plans

    Under a new law, the first broad state law of its kind, most employers in California must now adopt workplace violence prevention plans by next summer. Before now, hospitals in California were the only group of employers required by state law to adopt workplace violence prevention plans. What specifically must be included in the plan is vague under the terms of the statute. The California Division of Occupational Safety and Health (Cal/OSHA) will be responsible for implementation of this statute and stated that it would adopt an appropriate workplace violence set of standards for employers.

    The law will require employers to establish written plans, employee training and tracking of violent acts. Plans must be specific for each workplace and tailored to meet the individual circumstances of each setting. Commentators are looking for further guidance from Cal/OSHA on the specific details that must be covered by employer plans.

    Mandatory Time Off for Reproductive Loss

    California and Illinois are leading the way in the adoption of state laws mandating that employers guarantee time off following a miscarriage or other reproductive loss to ensure leave for grieving. The laws guarantee employees up to five days of paid or unpaid leave following a reproductive loss including miscarriage and still birth, as well as failed adoption, invitro or surrogacy. Utah has adopted a similar policy for state employees, and several cities have adopted similar statutes. Some national employers already voluntarily include reproductive losses in time-off provisions for employees.

    NLRB Lowers the Bar to Prove Joint Employer Status — May Impact Student-Athlete Cases

    The National Labor Relations Board rescinded a Trump-era regulation requiring that an alleged joint employer must have “direct and immediate” control exercised over employees to prove joint employer status. Under the new standard, if an alleged joint employer indirectly controls job terms or conditions of employment, it is a joint employer subject to NLRB jurisdiction. This will have immediate application to the ongoing dispute as to whether the NCAA and athletic conferences are joint employers of student-athletes, as they exercise control over rules that student-athletes must adhere to.

    This also may affect the NLRB’s attempt to exert jurisdiction over student-athletes at public colleges and universities. While the NLRB has no jurisdiction over public entities, its general counsel is asserting jurisdiction over those student-athletes at public institutions based on the legal theory that the NCAA and/or the athletic conferences are joint employers.

    Student-Athlete Unionization Issue May Affect Smaller Institutions and Athletic Programs

    Two additional, separate NLRB cases are winding their way to a decision on whether student-athletes meet the definition of employee under the National Labor Relations Act and are therefore eligible to unionize. A West Coast case involves the NLRB issuing a complaint claiming that the University of Southern California, the NCAA, and the PAC-12 Conference are joint employers of student basketball and football players and have unlawfully refused to bargain with any union.

    An East Coast case involves a union petition filed by the Service Employees International Union to represent Dartmouth College basketball players. Dartmouth has argued that its basketball players are not employees under the NLRA, as they do not receive sports scholarships and the basketball program does not generate money for the institution.

    Commentators at Bloomberg have concluded that decisions allowing unionization of college athletes may have the most serious repercussions for smaller institutions and even small athletic programs that do not generate revenue at large institutions.

    Class Actions Proliferate Related to Washington State’s Pay Transparency Law  

    A series of 40 or so class actions filed against major employers in Washington state — including Adidas, Home Depot and Marriott — will test the reach of the new Washington state job ad and pay transparency law. The Washington state law, like similar statutes in California, Colorado and New York, requires employers to provide pay ranges and benefits information in job ads, with the aim of improving pay equity for women and employees of color.

    The Washington and California laws also provide plaintiff applicants with a private right to sue, with Washington’s statute incentivizing plaintiffs to sue. It grants plaintiffs an award of actual damages proven or $5000, whichever is greater, plus attorney fees upon proving a pay transparency violation.

    Former Women’s Basketball Coach Loses Sex Discrimination Lawsuit

    The former head women’s basketball coach at the University of Montana has lost the sex discrimination lawsuit she filed following her termination after a poor win-loss record and serious culture complaints made by players and parents, including players threatening to leave the university if she remained as coach. The court also granted a positive inference to the university’s stated rationale for termination under the “same actor” doctrine, where in this case the same athletic director that hired the plaintiff was the person who made the decision to fire the plaintiff (Schweyen v. Univ of Montana–Missoula (2023 BL 390525, D. Mont. 9.21-cv-00138, 10/31/23)).

    The prior coach had a compiled 38-year performance of winning 75% of her games, while the plaintiff had only one winning season in the four years she served as head coach. The court rejected the plaintiff’s attempt to compare herself to a men’s basketball coach who had lost team players to transfer, citing multiple federal cases that have rejected arguments that disparate treatment between men’s and women’s sports teams creates an inference of discriminatory animus under Title VII.



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  • HR and the Courts — October 2023 – CUPA-HR

    HR and the Courts — October 2023 – CUPA-HR

    by CUPA-HR | October 10, 2023

    Each month, CUPA-HR General Counsel Ira Shepard provides an overview of several labor and employment law cases and regulatory actions with implications for the higher ed workplace. Here’s the latest from Ira.

    Governor Newsom Vetoes Bill That Would Ban Caste Discrimination

    California Governor Gavin Newsom vetoed what would have been the first specific state ban on employment discrimination on the basis of caste. Seattle recently became the first U.S. municipality to ban caste discrimination. The California bill would have added caste to the definition of ancestry, which is already included in state law. The governor stated in his veto declaration that existing law already covers this type of discrimination. Commentators weighed in on both sides of this conclusion, some stating there is no specific case law on this question.

    Caste is defined as a system of rigid social stratification based on a person’s birth and ancestry and primarily affects people of South Asian descent. Allegations of caste discrimination have recently arisen and gained notoriety in California’s tech industry. This proposal has been subject to much controversy in California, including a hunger strike by those supporting the proposal.

    University Trustees May Be Sued for Professor’s Alleged First Amendment Claims

    The 5th U.S. Circuit Court of Appeals (covering Louisiana, Mississippi and Texas) recently rejected a university board of trustees’ motion to dismiss First Amendment lawsuit allegations against them, holding that sovereign immunity did not apply to the board members (Jackson v. Wright (5th Cir., No. 22-40059, 9/15/23)).

    The case involves eight members of the University of North Texas board of regents who were sued by a music professor. The professor lost his position as editor in chief of a university music journal because of alleged “racial statements” contained in an article he published in advance of a 2020 symposium sponsored by the journal.

    In denying the sovereign immunity defense, the court concluded that the trustees had direct authority over university officials who denied the professor his First Amendment rights. The court noted that the trustees had refused to act on a letter the professor had submitted to the trustees raising the issue.

    SEIU Local 560 Files NLRB Petition to Represent the Dartmouth College Men’s Basketball Team

    To address the student-athlete employee status issue encouraged by the existing National Labor Relations Board’s general counsel, Service Employees International Union Local 560 has brought a petition to the NLRB to represent the Dartmouth College men’s basketball team in collective bargaining negotiation with the institution. This is nearly a decade after the NLRB denied jurisdiction over student athletes in the Northwestern case. If the SEIU is successful, it would be the first case involving potential unionization of college athletes.

    The filing follows on the heels of the favorable Supreme Court decision striking down the NCAA’s ban on compensation of student-athletes for name, image and likeness in the 2021 case NCAA v. Alston. While the Supreme Court did not address the labor organizing question under the National Labor Relations Act for student athletes, it certainly took the first step in recognizing the group as employees.

    This case brings an added mechanism for the NLRB to decide whether student-athletes are protected under the NLRA and able to organize into labor unions. The NLRB’s general counsel already raised the issue in May of this year in the case brought against the University of Southern California, the Pac-12 Conference, and the NCAA, in which they are alleged to have violated the NLRA in failing to recognize student-athletes as employees.

    On the first day of the NLRB hearing, Dartmouth took the position that the athletes involved are students who do not meet any of the common law attributes of employees and, therefore, are not union-eligible employees under the NLRA.

    Undergraduate Student-Employee Union Organizing Is Expanding, Leading the Way to More Organization Drives

    Bloomberg reports that there are now over a dozen colleges in the U.S. with undergraduate student-employee unions. This is up from just two before 2022. Pay, sick leave and insecurity due to the COVID-19 pandemic have been reported as reasons prompting this significant increase in undergraduate employee organizing, which appears to be motivating expanded organizing at the graduate assistant and professor levels.

    A union-organizing campaign appears to be proceeding across campus lines at the California State University System, where a union is organizing as many as 20,000 undergraduate workers at 23 campuses, Bloomberg reports. Separately, 4,000 University of Oregon student employees are set to vote next month on union representation.

    Fired Football Coach Sues University, Seeks $130 Million in Damages

    A former Northwestern University football coach has sued the university and its president for wrongful discharge and defamation and is seeking a minimum of $130 million in damages. The lawsuit alleges that the coach was fired for “no reason whatsoever.”

    The coach was placed on a two-week unpaid suspension after a six-month investigation revealed incidents of hazing within the football program. The report was allegedly inconclusive as to whether the coaches were aware of the hazing. Details of the actual termination will be the subject of the trial. We will follow developments as they unfold.



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  • HR and the Courts — September 2023 – CUPA-HR

    HR and the Courts — September 2023 – CUPA-HR

    by CUPA-HR | September 13, 2023

    Each month, CUPA-HR General Counsel Ira Shepard provides an overview of several labor and employment law cases and regulatory actions with implications for the higher ed workplace. Here’s the latest from Ira.

    Unionization Increases to Record Levels, Largely Driven by Graduate Students and Medical Interns

    Unionization in the first six months of 2023 reached near record levels, surpassing last year’s numbers, which were driven by Starbucks employees’ organization drives. In the first six months of 2023, over 58,000 new workers were unionized, almost 15,000 more than last year’s significant levels. The size of new bargaining units has grown, with new units of 500 or more employees growing by 59% over last year. In the first six months of 2023, unions won 95% of elections in large units of over 500 employees compared to 84% in the first six months of 2022.

    According to a Bloomberg Law report, this increase coincides with a growth in graduate assistant and medical intern organizing. There have been union organization elections in 17 units involving graduate students and medical interns in the first six months of 2023. This is the highest level of activity in the sector since the 1990s.

    Court of Appeals Rejects Religious Discrimination Claim by Fire Chief Who Was Terminated After Attending a Religious Event on “City Time”

    The 9th U.S. Circuit Court of Appeals (covering Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington) rejected a former fire chief’s allegation of religious discrimination after he attended a church-sponsored Christian leadership event in place of attending a non-religious leadership training program he was asked to attend (Hittle v. City of Stockton, California (2023 BL 268076, 9th Cir. 22-15485, 8/4/23)). The court concluded that the fire chief’s supervisors were legitimately concerned about the constitutional implications of a city official attending a church-sponsored event.

    The fire chief claimed, as evidence of religious discrimination, that city supervisors questioned whether his attendance at the event was part of a “Christian Coalition.” He further alleged that the supervisors questioned whether he was part of a “Christian clique.” The court rejected the fire chief’s arguments that this questioning amounted to religious bias against Christians. The court concluded that the questioning was related to the report they received on his attendance at the church-sponsored event. The court noted that the supervisors did not use derogatory terms to express their own views. The case may be appealed to the Supreme Court, and we will follow developments as they unfold.

    University Wins Dismissal of Federal Sex Harassment Lawsuit for Failure of Professor to File a Timely Underlying Charge of Sex Harassment With the EEOC

    Pennsylvania State University won a dismissal of a male ex-professor’s federal sex harassment lawsuit alleging a female professor’s intolerable sex harassment forced him to resign. The Federal Court concluded that the male professor never filed a timely charge with the EEOC (Nassry v. Pennsylvania State University (M.D. Pa. 23-cv-00148, 8/8/23)). The plaintiff professor argued he was entitled to equitable tolling of the statute of limitations because he attempted to resolve the matter internally as opposed to “overburdening the EEOC.”

    The court commented that while the plaintiff’s conduct was “commendable,” the court was unable to locate any case where a plaintiff was bold enough to offer such a reason to support equitable tolling. The court dismissed the federal case, holding that there was no way to conclude the plaintiff professor was precluded from filing in a timely manner with the EEOC due to inequitable circumstances. The court dismissed the related state claims without prejudice as there was no requirement that the state claims be filed with the EEOC.

    Professor’s First Amendment Retaliatory-Discharge Case Over Refusal to Comply With COVID-19 Health Regulations Allowed to Move to Discovery

    A former University of Maine marketing professor who was discharged and lost tenure after refusing to comply with COVID-19 health regulations on the ground that they lacked sufficient scientific evidentiary support is allowed to move forward with discovery. The university’s motion to dismiss was denied (Griffin V. University of Maine System (D. Me. No. 2:22-cv-00212, 8/16/23)).

    The court held “for now” the professor is allowed to conduct discovery to flush out evidence of whether or not the actions which led to the termination were actually protected free speech. The court concluded that the actual free speech question will be decided after more facts are unearthed.

    U.S. Court of Appeals Reverses Employer-Friendly “Ultimate Employment Decision” Restriction on Actionable Title VII Complaints

    The 5th U.S. Circuit Court of Appeals (covering Louisiana, Mississippi and Texas) reversed the long standing, 27-year-old precedent restricting Title VII complaints to those only affecting an “ultimate employment decision.” The employer-friendly precedent allowed the courts to dismiss Title VII complaints not rising to the level of promotion, hiring, firing and the like. The 5th Circuit now joins the 6th Circuit (covering Kentucky, Michigan, Ohio and Tennessee) and the D.C. Circuit (covering Washington, D.C.) in holding that a broader range of employment decisions involving discrimination are subject to Title VII jurisdiction.

    The 5th Circuit case involved a Texas detention center which had a policy of allowing only male employees to have the weekend off. The 5th Circuit reversed its prior ruling dismissing the case and allowed the case to proceed. This reversed the old “ultimate employment decision” precedent from being the standard as to whether a discrimination case is subject to Title VII jurisdiction.

    Union Reps Can Join OSHA Inspectors Under Newly Revised Regulations

    The U.S. Department of Labor has proposed revised regulations that would allow union representatives to accompany OSHA inspectors on inspections. The regulations, which were first proposed during the Obama administration, were stalled by an adverse court order and then dropped during the Trump administration.

    The proposed rule would drop OSHA’s current reference to safety engineers and industrial hygienists as approved employee reps who could accompany the inspector. The new rule would allow the OSHA inspector to approve any person “reasonably necessary” to the conduct of a site visit. Among the professions that could be approved are attorneys, translators and worker advocacy group reps. The public comment period on these proposed regulations will run through October 30, 2023.



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  • HR and the Courts — August 2023 – CUPA-HR

    HR and the Courts — August 2023 – CUPA-HR

    by CUPA-HR | August 9, 2023

    Each month, CUPA-HR General Counsel Ira Shepard provides an overview of several labor and employment law cases and regulatory actions with implications for the higher ed workplace. Here’s the latest from Ira.

    Tenured Professor Loses First Amendment Retaliation Claim Related to “Offensive” Blog Posted Months Before the Adverse Action 

    The U.S. Court of Appeals for the 4th Circuit (covering Maryland, Virginia, West Virginia, North Carolina, and South Carolina) dismissed a North Carolina State University professor’s First Amendment retaliatory discrimination claim following the removal of the professor from a key university program. The professor claimed that his removal stemmed from his critical  “woke joke” blog post. His blog stated that the Association for the Study of Higher Education’s conference had “… moved from focusing on general post-secondary research to social justice.” He claimed that the comment was protected speech and could best be characterized as a “woke joke.”

    The Court of Appeals dismissed his claim holding that the blog post was published 10 months before his removal from the program area and eight months after the department head had emailed him stating that the blog had “generated controversy on social media.” The appeals court ruled 2 to 1 that “temporal proximity” between the alleged speech and the adverse action was lacking and therefore the case must be dismissed (Porter v. Board of Trustees of North Carolina State University (4th Cir. No. 22-01712, 7/6/23)).

    Court Decisions on Telework Disability Accommodation Changing in the Aftermath of the COVID-19 Pandemic

    Federal judges are less likely to decide in favor of employers rejecting telework accommodation in disability cases in the aftermath of the COVID-19 epidemic. The employer win rate in cases denying a disability telework accommodation has dropped to 60% in the aftermath of COVID-19 compared to a 70% win rate during the two-year period prior to the pandemic, according to statistics cited by Bloomberg Industry Group (DLR 7/6/23).

    Federal judges are now more likely to consider telework as a reasonable accommodation in certain disability cases as a result of the widespread use of telework during the COVID-19 pandemic.

    Mandatory Paid Family and Medical Leave Becoming More Common Among State and Local Jurisdictions

    Twelve states, plus the District of Columbia, have enacted mandatory paid medical and family leave for workers within their jurisdictions. While the form of the mandate varies from jurisdiction to jurisdiction, workers are increasingly being granted by these statutes guaranteed paid time off to care for their own serious medical condition, a newborn or newly adopted child, or a family member’s major medical condition. In addition, according to Bloomberg DLR, Michigan and New Mexico appear likely to adopt mandatory paid-leave programs in the near future. It is important to check your state and local jurisdictions for developments in this area.

    Professor of Iranian Decent Entitled to Title VII Jury Trial Over Allegations That His Contract Non-Renewal Was Based on National Origin Prejudice by His Turkish Supervisor 

    A federal district court judge denied a summary judgement motion and held that a tenure-track art professor of Iranian descent was entitled to a jury trial under Title VII regarding his allegations that his supervisor denied renewal of his contract because of the supervisor’s anti-Iranian, Turkish background. The judge concluded that the plaintiff stated a claim of national origin discrimination under Title VII and was therefore entitled to a jury trial over those allegations and allegations that the university denied the plaintiff access to legal counsel and misstated his legal position (Shams v. Delta State University (N.D. Miss. No. 22-cv-00035, 7/11/23)).

    The plaintiff alleged that there is tension between Iranians like himself and Turks like his supervisor because the two countries “… share a contentious border and not much else.” The plaintiff also alleges that he was replaced by an art professor of Turkish background who was contacted for the position before the non-renewal of his contract.

    Former Professor’s First Amendment Retaliation Claims Related to His Termination After Publishing an Article on “Racial IQ Gap” Dismissed Against University, But Survives Against University Officials

    A former Cleveland State University professor can pursue some of his First Amendment retaliation claims, after he was terminated following publication of an article that advanced a theory that genetics cause a “Racial IQ Gap” between White and Black Americans. The federal district court hearing the case dismissed the complaint against the university on sovereign immunity grounds. However, the court let some of the complaint proceed against some university officials, at least through discovery. After completion of discovery, the court will rule on whether individual university officials are covered by the university’s sovereign immunity (Pesta v. Cleveland State University ( 2023 BL 242086, N.D. Ohio, No. 1-23-cv-00546, 7/14/23)).

    The controversial article was subject to outside criticism that the professor unethically misused NIH Data on studies of racial differences to reach his conclusions. The university stated that the professor was terminated for ethical lapses and for violating its academic and integrity standards. The professor claims that he was fired because of university viewpoint discrimination against the conclusions in his article in violation of the First Amendment. We will follow developments as this case unfolds.

    New Jersey Equal Pay for Temps Law Is First to Mandate Joint Liability of Employers Along With Temp Agencies

    New Jersey employers will face expanded liability along with temp agencies under a law which mandates that temp employees receive pay and benefits equal to comparable full-time employees employed by the employer. The law is the first to impose joint-employer liability along with temp agencies employed by the employer and goes into effect on August 5, 2023, according to Bloomberg DLR, 8/4/23. While other states — including California, Illinois and Massachusetts — have temporary-worker bill-of-rights laws, New Jersey is the first to impose joint-employer liability on the actual employer employing the temp agency.

    The New Jersey law imposes the requirement that temp employees in the state receive wages and benefits comparable to those of similarly situated full-time employees.



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  • HR and the Courts — July 2023 – CUPA-HR

    HR and the Courts — July 2023 – CUPA-HR

    by CUPA-HR | July 5, 2023

    Each month, CUPA-HR General Counsel Ira Shepard provides an overview of several labor and employment law cases and regulatory actions with implications for the higher ed workplace. Here’s the latest from Ira.

    Supreme Court Holds That Use of Race as a Factor in College Admissions Is Unconstitutional — Impact on Workplace Affirmative Action Plans Not Immediate 

    Rejecting the arguments of Harvard University, the University of North Carolina, and the Biden administration that these programs were necessary to ensure campus diversity the Supreme Court ruled 6 to 3 on June 29, 2023, that the universities’ use of race in their specific admission programs violates the equal protection clause of the Fourteenth Amendment. The decision is 237 pages long with majority, concurring, and dissenting opinions. The majority decision is 47 pages.

    Chief Justice Roberts, who wrote the majority opinion,  concluded that these affirmative action programs, “… lacked sufficiently focused and measurable objectives warranting the use of race, … involve racial stereotyping, and lack meaningful end points.” He also concluded, “We have never permitted admission programs to work that way and we do not do so today.”

    The immediate impact on employment-based affirmative action plans and DEI initiatives is unclear and  will unfold as new cases arise, testing the breadth of this decision. We will continue to monitor developments in the employment area as they occur.

    Supreme Court Eases an Employee’s Ability to Prove Religious Discrimination When an Employer Denies a Request for an Employment-Based Religious Accommodation

    In a case involving the U.S. Postal Service’s denial of a Christian employee’s request to be exempt from Sunday work, the Supreme Court modified the test applicable to an employer’s denial of a religious accommodation.

    In 1977, the Supreme Court ruled that under Title VII an employer could deny an employee’s request for a religious accommodation if the employer could demonstrate that the accommodation would create a  “undue burden” (TWA v. Hardison). In its decision last month, the Supreme Court interpreted the long-standing Hardison rule to mean that in order for an employer to deny an employee’s request for a religious accommodation, the employer must show that the burden of granting the accommodation “would result in substantial increased costs in relation to the conduct of its particular business” (Groff v. DeJoy (U.S. No. 22-174, 6/29/23)).

    The plaintiff here asked the Supreme Court to modify the standard for denial of a religious accommodation to be consistent with the standard for denial of an ADA accommodation. The Supreme Court did not grant that request but has clearly raised the employer’s burden in being able to reject a religious-based accommodation from the prior standard, which has applied since 1977.

    Federal Court of Appeals Rules Offensive Music in the Workplace Is Actionable Sex Harassment — Rejects Dismissal Because It Is Offensive to Both Sexes 

    The 9th Circuit Court of Appeals (covering California, Oregon, Washington, Idaho, Montana, Nevada and Arizona) reversed a federal trial court dismissal of a sex-harassment hostile-environment complaint brought by warehouse workers who complained about offensive, sexually graphic and misogynistic music played by coworkers and supervisors. The trial court dismissed the case on “equal opportunity harassment” grounds because the music was offensive to both sexes. The Court of Appeals disagreed, holding that sex-based discrimination violates Title VII even if it is directed at more than one sex and can create a hostile work environment which is actionable (Sharp v. S&S Activewear LLC (9th Cir. Blom. DLR, 6/9/23)).

    The Court of Appeals effectively put an end to the defense that has become known as the “equal opportunity harasser” defense.

    University Prevails Against Tenured Professor for Hostile-Environment Sex Harassment — Appeals Court Rejects Defenses That Education Department and University Enforcement of Title IX Is Anti-Male

    The 4th Circuit Court of Appeals (covering Virginia, Maryland, West Virginia, North Carolina and South Carolina) affirmed the lower court decision dismissing the action of a tenured psychology professor at George Mason University contesting the sanctions the institution applied following a decision that he created a sex-harassment hostile environment for graduate students. Four students complained that he shared explicit sex talk regarding his sexual exploits and asked questions about their sex lives and that they were forced to participate in the conversations in order to receive favorable treatment regarding research and education opportunities. The university continued to employ the professor as a tenured psychology professor, but banned him from teaching graduate level courses and mentoring graduate students for approximately two years, and disaffiliated him with the university’s clinical psychology program for five to six years.

    The appeals court rejected his due-process allegations, concluding that the sanctions did not amount to a “significant demotion” because he is still employed as a tenured professor and the sanctions are not permanent (Kashdan v. George Mason University (4th Cir. No. 20-01509, 6/13/23)). The court rejected his male-bias accusations levelled against the university, its Title IX coordinator, its compliance coordinator, and the Education Department, concluding that all the general statements he raised did not amount to anti-male bias.

    Professor Sues University Over “Anti-Racism Training,” Claiming It Created a “Racially Hostile Environment”

    An English professor at Penn State University has sued the university, claiming its anti-racism training created a hostile work environment for him, which forced him to resign his position. He is seeking a declaratory judgement from the federal court that the university is in violation of “federal civil rights and free speech laws,” the removal of disciplinary records from his file, and other damages. He is claiming that the university’s anti-racism training  and other race policies created a hostile work environment for him as a White English professor. He also claims he was asked to equalize student outcomes by race in his grading of students (De Piero v. Pa. State University (E.D. Pa. 23-cv-02281, Comp filed 6/14/23)). We will follow developments in this litigation as it unfolds.

    Court Rules for Employer That Anonymous Hate Mail Does Not Create Actionable Hostile Work Environment 

    A federal district court judge recently dismissed a claim of hostile work environment related to the receipt of anonymous hate mail written on office letterhead and other anonymous hate communications received by an employee. The employee involved shared the anonymous letters and communication put on the windshield of her car with her employer. The employer immediately treated the incidents as a hate crime, contacted the police, and embarked on an internal investigation which was not successful in finding the perpetrator. The employer allowed the employee to work from home on request and provided other requested accommodations based on the employee’s claim of post-traumatic stress and other related ailments.

    The court dismissed the hostile environment case, holding that the anonymous letters could not be attributed to the employer and that the employer’s response was reasonably calculated to end the harassment (Washington v. Offender Aid and Restoration (2023 BL 205479, W.D. Va. No. 3:22- cv- 00041, 6/15/23)). The court also dismissed the plaintiff’s disability claims, concluding that the employer also accommodated all of plaintiff’s requests for accommodation.

    Reinstated Athletic Coach Awarded Nominal $1 in Damages for Being Denied “Name Clearing” Hearing After Raising Due-Process Violations 

    A federal jury handed down a verdict in the case of an athletic coach who was reinstated by the college with back pay after he filed a due-process claim, but was denied a “name clearing” hearing to repair the alleged damage to his reputation. The plaintiff was a substitute athletic manger at Bronx Community College, which is part of the City University of New York (CUNY).

    The jury awarded the plaintiff $1 as nominal damages but denied his claim for economic relief, as the plaintiff had been placed on administrative leave with pay during the investigation. He was then fired. However he received back pay as part of his reinstatement after filing the due-process claim (Knights V. C.U.N.Y. ( E.D.N.Y. 19-CV-480 (FB) jury verdict 6/23/23)).



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  • HR and the Courts — June 2023 – CUPA-HR

    HR and the Courts — June 2023 – CUPA-HR

    by CUPA-HR | June 7, 2023

    Each month, CUPA-HR General Counsel Ira Shepard provides an overview of several labor and employment law cases and regulatory actions with implications for the higher ed workplace. Here’s the latest from Ira.

    NLRB Issues a Formal Complaint Alleging College Football and Basketball Players Are Employees and Can Petition to Unionize 

    The NLRB regional director in Los Angeles issued a long-awaited formal complaint alleging that the NCAA, Pac-12, and The University of Southern California all violated the National Labor Relations Act (NLRA) when they refused to treat college basketball and football players as employees under the NLRA. The regional director agreed with the legal conclusion the NLRB general counsel made last December and issued a formal complaint against the three parties. The NLRB regional director is alleging that all three entities are joint employers of these athletes and violated the NLRA by misclassifying them as “non-employee student athletes” (Univ. of Southern California (NLRB Reg Dir Case No. 31-CA-290326, complaint issued 5/18/23)).

    If the NLRB ultimately prevails on all counts, the outcome could lead to unionization of college basketball and football players at both public and private college and universities in the U.S. While the NLRB has no jurisdiction over public institutions, it does have jurisdiction over the private NCAA and various private athletic conferences it alleges are joint employers of these athletes. Needless to say, this will be a heavily contested and lengthy litigation event.

    U.S. Supreme Court Holds That Unions Can Be Held Liable in State Court for Intentional Destruction of Employer Property During a Strike

    In an 8-1 decision, the U.S. Supreme Court held that the Teamsters Union could be held liable for intentional destruction of  employer property during a strike and that the victimized employer could sue the union in state court alleging such intentional infliction of damages (Glacier Northwest Inc. v. Teamsters Local 174 (U.S. No. 21-1449, 6/1/23)). The case had been dismissed under the long-held Supreme Court decision in the Garmon case, holding that the National Labor Relations Act (NLRA) preempted state court litigation against labor unions.

    The Supreme Court created a narrow exception to Garmon’s federal preemption, holding that, “far from taking reasonable precautions to mitigate foreseeable danger to employer property … the union executed the strike designed to compromise the safety of the employer’s trucks and product.” The court concluded that such union conduct is not even arguably protected by the NLRA.

    Here the union called a strike of concrete truck drivers and intentionally instructed the drivers to return their trucks, loaded with concrete, to the employer rather than complete the delivery. This resulted in the concrete hardening in the trucks, leading to the destruction of trucks and concrete product.”

    EEOC Publishes Updated Guidance on the End of the COVID-19 Public Health Emergency 

    On May 15, the EEOC updated its technical assistance entitled “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.” The updated guidance covers a variety of issues related to the end of the public health emergency. While the publication notes that some pandemic-related reasonable accommodations may cease, accommodations for employees with long COVID may continue to be necessary. The guidance contains tips to help employers avoid COVID-related harassment of applicants or employees who need to take precautions because of a disability.

    University Prevails on First Amendment Grounds in Defamation Action Brought by Former Professor

    A Louisiana state appeals court dismissed a defamation action brought by a former professor against the university as a result of the student newspaper publishing allegedly defamatory statements concerning the professor. The student newspaper articles concerned racism allegations. The court of appeals dismissed the case, holding that the newspaper articles constituted speech on matters of public interest protected by the First Amendment. The court also noted that the articles concerned “a high profile individual” (Duhe v. Loyola University of New Orleans (La. Ct. App. 5th Cir. No. 22-C-292, 5/30/23)).

    State-Based Initiatives Restricting or Banning DEI Policies Have Passed or Are in the Legislative Pipeline in More Than 12 States — State-Based Legal Challenges Likely to Ensue

    Florida and North Dakota have become the first states to restrict DEI programs and/or training at public higher ed institutions. Arizona, Tennessee and more than 12 other states are considering such measures. It is likely that these initiatives will be subject to continuing litigation in multiple states. Faculty unions at some public, state-based systems may argue that these restrictions violate existing collective-bargaining provisions. The state of the law in this area is rapidly changing and subject to different turns depending on how different state courts deal with these issues prospectively. We will continue to follow state law developments and will keep CUPA-HR members apprised in this monthly column.

    University Defeats Transgender Detective’s Sex Bias, Promotion Lawsuit — Failure to Identify a Similarly Situated Non-Protected-Class Employee 

    A judge in the U.S. District Court for the Southern District of Florida recently dismissed a Title VII claim filed by a transgender detective alleging sex discrimination under Title VII for failure of the university  to promote. The federal judge dismissed the case, concluding that the plaintiff failed to identify a similarly situated non-protected-class employee who was treated more favorably (Ponce v. Florida Atlantic University Board of Trustees (2023 BL 162924, S.D. Fla. No. 9:22-cv-81546, 5/12/23)).

    The judge dismissed the lawsuit without prejudice to the plaintiff refiling the lawsuit to appropriately allege a similarly situated non-protected-class employee who was treated more favorably.

    State Laws Requiring Pay Ranges to be Part of Job Postings and Ads Are Growing 

    New York, California, Washington and Colorado have already enacted laws requiring pay ranges to be listed in job postings and ads. Specifics should be discussed with local counsel in those jurisdictions.

    Illinois, Michigan, Oregon, New Jersey, Connecticut, Rhode Island, Massachusetts and Hawaii  have bills either pending in the state legislature or before the governor awaiting signature. Specifics vary by state, but the trend is to force employers to be more transparent in job postings and ads.

    Public University Registered to Do Business Out of State Is Subject to Out-of-State Sex-Harassment Litigation — Sovereign Immunity Defense Rejected

    The U.S. Supreme Court has denied the petition by a public university located in Alabama to appeal the divided decision of the North Carolina Supreme Court which allowed the university to be subject to a sex-harassment suit filed in North Carolina (Troy University V. Farmer (U.S. No.  22-787, cert denied, 5/30/23)).

    The Supreme Court denied the university’s appeal of the adverse decision of the North Carolina Supreme Court, which held that the university’s registration to do business in North Carolina and its operation of an office for commercial activities in Fayetteville, North Carolina, was enough to subject it to the jurisdiction of the North Carolina courts. Specifically, the North Carolina court held that the agreement that the university signed, which allowed it to do business in the state, contained an agreement to sue and be sued in the state. The North Carolina court held that this waived the university’s sovereign immunity.



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  • HR and the Courts — May 2023 – CUPA-HR

    HR and the Courts — May 2023 – CUPA-HR

    by CUPA-HR | May 10, 2023

    Each month, CUPA-HR General Counsel Ira Shepard provides an overview of several labor and employment law cases and regulatory actions with implications for the higher ed workplace. Here’s the latest from Ira.

    Court of Appeals Denies a Teacher’s Religious Accommodation Request to Be Excused From Student Pronoun Rule 

    A divided 7th U.S. Circuit Court of Appeals (covering Illinois, Wisconsin and Indiana) denied a Christian teacher’s request for a religious accommodation to be excused from the school district’s student pronoun rule, which required teachers to address students by the name and pronoun of their choice. Kluge v. Brownsburg Community School Corp. (7th Cir. No. 21-2475, 4/7/23). The Justice Department filed an amicus brief in support of the school district’s denial of the accommodation. The teacher requested an accommodation from the student pronoun rule, claiming that it violated his religious beliefs. The teacher requested that he be allowed as a religious accommodation to address all students in his classroom by last names only.

    The two-judge majority concluded, over the dissent of one judge, that the accommodation request constituted an undue hardship for the school district. The court ruled that granting the accommodation would disrupt the learning environment and disturb both students and faculty.

    The teacher has asked the full 7th Circuit to rehear and rule on the 2-to-1, three-judge decision. The 7th Circuit decided on April 27, 2023, to await full circuit court review until after the Supreme Court rules on a similar case regarding the scope of the employer-hardship provisions on deciding a request for a religion-based accommodation. The case pending before the Supreme Court is Groff v. DeJoy, argued before the Supreme Court on April 19, 2023.

    Survey Concludes That Workers in Office Spend 25% More Time on Mentoring and Other Job-Development Activities, Compared to When They Work Remotely

    In-office workers spend 25% more time on mentoring and career-development activities than when the same workers work remotely from home. In its 4/10/23 Daily Labor Report, Bloomberg published a poll completed by WFH Research, which compiled results from a survey of 2400 adult workers who were able to work from home and the office. The survey compared the workers’ in-office mentoring, formal training, and career development time to the time they spent on those activities when they worked remotely from home.

    In the same Daily Labor Report, Bloomberg referenced a Commentator study that found that workers who have more face-to-face interaction with managers are promoted at a higher rate. The Commentator concluded that, “Employees’ social interactions with their mangers can be beneficial to their careers.”

    Complaints Filed Under Federal Civil Rights Act of 1866 Are Subject to the Four-Year Federal Statute of Limitations, Not State-Based Statute of Limitations 

    The 4th U.S. Circuit Court of Appeals (covering Maryland, Virginia, West Virginia, North Carolina and South Carolina) recently ruled that Section 1981 complaints of discrimination filed under the Civil Rights Act of 1866 as amended are subject to the applicable federal four-year statute of limitations. The appeals court rejected the defendant’s assertion that the complaint was subject to the shorter three-year North Carolina statute of limitations on wrongful termination claims, even though the complaint was brought in North Carolina. The court concluded that the complaint was brought solely under the federal statute so the federal statute of limitations applied. The case was Chambers v. North Carolina Department of Justice et, al (4th Cir. No. 22-01629, 4/17/23).

    This case will likely have implications for Section 1981 complaints of discrimination filed against state-based public institutions of higher Education.

    NLRB Imposes Expanded Remedies Against Employers Found to Have Egregiously or Repeatedly Violated Their Duty to Bargain in Union Negotiations

    In a case involving a meat processor found to have repeatedly violated its duty to bargain in good faith with its union, the NLRB has issued a ruling that it would impose at least the following enhanced remedies against the offending employer and future similar employers. The enhanced remedies include reimbursement of the union’s bargaining expenses and lost pay to employees who sat in on bargaining sessions in which the employer bargained in bad faith. The case is Noah’s Ark Processors (N.L.R.B. Case # 14-CA-255658, 4/20/23).

    In addition, the order requires a reading of unfair labor practice notice and explanation of employee rights by the company’s CEO or by an NLRB staffer in the presence of the company’s CEO, a mailing of the notice to employees homes, the signing of the notice by a company official, publishing of the notice at local news outlets that have broad circulation and local appeal, and authorization of NLRB staffers to visit the employer facility to assess compliance and posting requirements. These remedies will have application to private colleges and universities, which are subject to NLRB jurisdiction.

    Federal Court Dismisses Claim of Religious Discrimination Following Termination of University Employee for Violation of COVID Safety Policies

    A federal district court for New Jersey dismissed an employee’s claim of religious discrimination, filed under Title VII of the Civil Rights Act, following the university’s termination of the employee for refusing to follow the university’s mandatory COVID safety policies. The federal district court judge dismissed the claim that the employee was unlawfully terminated for failing to follow the university’s mandatory COVID safety policies, because the employee failed to identify a sincere religious belief that prevented the employee from complying with the safety policies. The case was McKinley v. Princeton University (3:22-cv-05069, Fed D Ct N.J. 4/28/23). The safety policies included wearing a mask, asymptomatic contact testing, and collecting saliva samples from asymptomatic employees.

    The court in its eight-page decision dismissing the case granted the plaintiff leave to refile to correct the failure to identify a sincerely held religious belief.

    Split Jury Verdict Results in $1.4 Million in Damages Awarded to a Professor Claiming Retaliation in the Denial to Re-Review Her Tenure Denial 

    While a federal court jury rejected five of plaintiff’s claims of sex discrimination and parental status in the university’s denial of her tenure, it did award the professor a verdict on her claim that the denial of re-review of her tenure denial was in retaliation of her past charges of discrimination. The federal court judge affirmed the jury verdict, which resulted in awarding the plaintiff $1.4 million in damages. The case was Veikos v. Trustees of the University of Pennsylvania (E.D. Pa. 2:20-cv-04408, judgement entered 5/2/23).

    The federal judge rejected the university’s claim that the professor failed to properly mitigate her back-pay and front pay damages.



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