Category: ERISA

  • HR and the Courts — October 2024

    HR and the Courts — October 2024

    by CUPA-HR | October 15, 2024

    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.

    NCAA & Power Conferences Receive Preliminary Approval of Name, Image and Likeness and Anti-Trust Settlement — Ivies Win Dismissal of Anti-Trust Lawsuit

    A federal district court judge has given preliminary approval to the NCAA and Power Conferences’ revised $2.8 billion settlement proposal to be paid to college athletes over 10 years. The judge set a fairness hearing for April 2025, with all objections to be filed by January 31, 2025. The federal judge in the Northern District of California concluded that the revised settlement was “fair, reasonable and adequate” (In Re College Athlete NIL Litigation (N.D. Ca. No. 4:20-cv-03919, 10/7/24)).

    Commentators immediately voiced concerns that the settlement addresses a small group of male athletes in specific sports to the disadvantage of female athletes. In addition, a number of Division I athletes may express objection on the grounds that the settlement continues to give the NCAA too much control over the free market compensation for student-athletes.

    Separately, the eight Ivy League institutions won a dismissal of a federal lawsuit that claimed their ban on athletic scholarships violated anti-trust laws. The federal district court judge assigned to the case granted the Ivy League’s motion for summary judgement, holding that the plaintiffs failed to allege any properly defined market and therefore failed to allege market wide anti-competitive effects (Choh v. Brown University, et. al. (D. Conn. No. 3:23-cv-00305, 10/10/24)).

    University of Louisville School of Medicine Loses First Amendment Retaliation Claim Brought by Terminated Professor

    A former professor at the University of Louisville School of Medicine will receive a trial over his First Amendment retaliation claims regarding statements he made about gender dysphoria to a conservative think tank. Following comments he made during an event sponsored by the Heritage Foundation, the former medical school professor was demoted and his annual contract was not renewed. The professor expressed the view that gender dysphoria in children “is a sociocultural, psychological phenomenon that cannot be fully addressed with drugs and surgery.”

    The 6th U.S. Circuit Court of Appeals ruled unanimously that the university officials who terminated Allan M. Josephson should have known that he was engaged in protected speech, and that terminating him would violate his First Amendment rights. Moreover, the court ruled that the professor’s outside speech was not part of his professorial duties, and therefore subject to his First Amendment claims. The court concluded that a trial is necessary, as there are facts in dispute regarding the rationale for the actions taken against the professor (Josephson v. Ganzel (6th Cir., No. 23-05293, 9/10/24)).

    Tenured Professor Loses Defamation Case Against Harvard

    A federal district court judge partially dismissed a noted behavioral scientist’s $25 million defamation and breach-of-contract lawsuit against Harvard University. Professor Francesca Gino was placed on administrative leave following claims of data fraud in her research. Gino claimed that the university’s notice on her faculty page that she had been placed on administrative leave after conducting an investigation of her research was libelous because the university acted with ill will.

    The court concluded that the professor was a “public figure” and therefore faces a higher standard for proving defamation. A public figure in these circumstances can only prove defamation if the alleged defamer had knowledge that their statement was untrue or acted with reckless disregard for the truth. Moreover, the court concluded that the issue of “research integrity and potential misconduct” is one of public concern, adding to the reason for the dismissal of the defamation claim (Gino v. Presidents and Fellows of Harvard College (D. Mass. No. 1:23-cv-11775, 9/11/24)).

    Regarding the professor’s breach-of-contract claims, the professor alleged that the university’s decision to place her on administrative leave and its related disciplinary sanctions were the same as tenure removal. The judge concluded that it is premature to rule on the breach-of-contract claims.

    Public School Employees Lose Free Speech Case Challenging Anti-Racism Training

    In a case with possible application to public higher ed training, the 8th U.S. Circuit Court of Appeals affirmed the dismissal of a case brought by two Missouri public school employees who claimed that anti-bias employee training violated their First Amendment rights. The lawsuit failed because the court concluded that they were never asked to leave nor were they disciplined for expressing contrary views and that they received professional development credit for attending the anti-racism training (Henderson v. Springfield R-12 School District (8th Cir No. 2301374, 9/12/24)).

    The decision provides some clarity on such training, as the court noted that the employees were not compelled to express certain views or refrain from expressing certain views during the training. The appellate court did reverse the trial judge’s ruling requiring the plaintiffs to pay $300,000 in attorney fees for filing a frivolous claim.

    Former Student’s Title IX Claim Dismissed as Alleged University Internship Did Not Exist

    A federal district court judge dismissed allegations of a sexually abusive internship at the University of Michigan because the plaintiff could not prove the internship actually existed. The court noted that none of the usual formalities, such as an application or a university authorization of an internship, were established.

    In light of this, the court dismissed the Title IX claims and allegations of failure to investigate sex harassment and abuse allegations as the plaintiff did not allege discrimination while “participating in or at least attempting to participate in” a university program or activity, as the internship did not exist. The University of Michigan prevailed in the case (Doe v. Baum ((2024 BL 340244 E.D. Mich. No. 4-21-cv-12492, 9/26/24)).

    University of Texas Professor Loses First Amendment Complaint

    A federal district judge dismissed a University of Texas professor’s First Amendment claim that his speech was “chilled” by unspecific threats following comments critical of “critical race theory and DEI-based ideology.” The judge dismissed the case, holding that the unspecific threats did not rise to the level of an adverse employment action (Lowery v. Mills ((W.D. Tex. No. 1:23-cv-00129, 10/2/24)).

    The judge ruled in favor of the University of Texas McCombs School of Business. The judge noted in a footnote, however, that the dismissal was not meant to approve of the university’s actions and that “in the context of a world-class university like UT, differences of opinion should be tolerated by those in authority, no matter that they are uncomfortable, so long as they do not incite violence or disrupt the school’s ability to function as a teaching institution.”

    Supreme Court to Review Split in Circuits Regarding Higher Ed ERISA Lawsuit

    The Supreme Court has agreed to hear arguments over the split in circuit courts of appeals as to when a university may be sued by employees under the Employee Retirement Income Security Act (ERISA). Employees of Cornell University alleged that improper service provider fees were charged to their pension fund. They are appealing an adverse 2nd Circuit decision stating employees must plead that the alleged “prohibited transaction” by the service provider involved either “unnecessary services” or the fees were “unreasonable” (Cunningham v. Cornell University (US No. 23-1007 cert granted 10/4/24)).

    The 2nd U.S. Circuit Court of Appeals, the 3rd Circuit, the 7th Circuit, and the 10th Circuit all require the additional pleading that alleges some kind of fraud or impropriety in order to allow the case to move forward. This contrasts with the 8th Circuit and the 9th Circuit, which apply the “ERISA-as-written” rule. That rule allows a plaintiff to simply allege that a transaction between an employer and a pension or welfare plan service provider occurred and proceed with discovery over whether fraud or some other impropriety exists. We will follow developments in this case as it proceeds.



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  • HR and the Courts — May 2024 – CUPA-HR

    HR and the Courts — May 2024 – CUPA-HR

    by CUPA-HR | May 14, 2024

    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.

    Unions Representing Student Employees File Unfair Labor Practice Charges Related to Student Protests

    Nearly 30 unions representing more than 100,000 student workers at 58 campuses throughout the country have issued a joint letter supporting protesting students and condemning violent responses to peaceful protests. Unfair labor practice charges have also been filed with the National Labor Relations Board against a small number of private institutions in protest of schools’ enforcement of their rules.

    The NLRB has found in the past that civil rights protests — for example, those connected to the Black Lives Matter movement — are protected concerted activity when they are tied to protesting employer or employment discrimination matters. However, commentators have drawn a distinction related to the Israel-Hamas war protests. While each unfair labor practice case will rise and fall on the specific facts related to the situation, a university enforcing safety rules and cracking down on protests will likely not violate the National Labor Relations Act. Additionally, if a union member participates in a protest unrelated to their employment and violates university rules, the sanctions involved will likely not violate the NLRA.

    Court of Appeals Affirms Dismissal of ERISA Lawsuit Against Georgetown University

    The U.S. Court of Appeals for the District of Columbia Circuit unanimously affirmed the dismissal of an employee-filed Employee Retirement Income Security Act lawsuit. The lawsuit claimed that Georgetown University had packed its retirement plans with expensive and badly performing investment options.

    The lawsuit further alleged that Georgetown had offered its faculty and staff retirement plans with too many investment options and retained multiple recordkeepers, which drove up the administrative costs of the plans. A federal district court judge dismissed the amended complaint in April 2023, ruling that the amended complaint did not address the concerns that led to the dismissal of the original complaint.

    The Court of Appeals unanimously concluded that the original complaint failed to plead any adequate claims and the proposed amended complaint was futile as it did not cure the problem (Wilcox et al. v. Georgetown University et al. (Case no. 23-7059, DC Cir. 4/23/24)).

    Student-Athlete NLRB Unionization Decisions May Modify Taxability of Athletic Scholarships

    Although the NLRB’s decision in the Dartmouth College men’s basketball team case is under review, if the board affirms the decision that players are employees and can unionize, it could ultimately cause the IRS to rethink its current position that student-athletes receiving scholarships are not employees for purposes of the tax code. This could possibly include a change in the current position that these scholarships are not taxable as income.

    If the NLRB affirms the regional director’s decision, which many commentators conclude is likely given its composition under the Biden administration, the decision is not binding for the IRS. The IRS has independent authority to conclude whether these student-athletes are employees and are receiving taxable compensation in the form of scholarships under the Internal Revenue Code. Separately, the courts are wrestling with the question of whether student-athletes are employees under the Fair Labor Standards Act and are entitled to minimum wage and overtime. We will keep following these issues as they unfold.

    IRS Giving More Scrutiny to Tax-Exempt Status of Name, Image and Likeness Payments to Student-Athletes From Booster Donations

    Bloomberg reports that the IRS has begun revoking and not granting 501(c)(3) status to some groups formed to collect money from boosters to fund name, image and likeness payments to student-athletes. In testimony before the Senate finance committee, the IRS commissioner stated that they are scrutinizing those NIL groups that are not operating for tax-exempt purposes. These collectives have raised millions of dollars from boosters who generally expect those gifts to be tax deductible. For specific tax guidance, a tax professional should be consulted on questions arising in this area.

    U.S. Supreme Court Rules Job Transfers Can Violate Title VII and Other Anti-Discrimination Statutes

    The Supreme Court ruled unanimously on the issue of whether a plaintiff must prove significant harm to state a claim of discrimination under the applicable anti-discrimination statutes because of a job transfer. The court reversed the holdings of some circuit courts of appeal that “significant harm” must be stated to state a claim of job discrimination resulting from a job transfer.

    Nonetheless, the Supreme Court stopped short of eliminating the harm requirement entirely. The court held that a plaintiff must show that the transfer resulted in some level of injury or harm, concluding that the statute does not require by its terms the high bar of “significant” harm (Muldrow v. St. Louis (U.S. Case No. 22-193, 4/17/24)). The concurring justices, who did not dissent, argued that the change from significant harm to some other lower level of harm was confusing and would lead to further inconsistent litigation.

    NLRB Reports 10% Rise in Case Load in First Half of Fiscal Year 2024

    The NLRB reports that case filings of unfair labor practice charges or union representation votes rose 10% during the first half of fiscal year 2024 compared to the same period in the previous fiscal year. Union election petitions rose by 35% during this period, and unfair labor practice charges rose by 7%. The NLRB has jurisdiction over private institutions of higher education and has no jurisdiction over state-based public institutions. State public institutions are generally subject to state labor boards and state statutes with separate, but often parallel, rules. This uptick in private employer unfair labor practice charges and election petitions will likely be accompanied by an increase in activity by public-sector unions at public institutions of higher education.



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  • House Education and Workforce Committee and Senate HELP Committee Set for 118th Congress – CUPA-HR

    House Education and Workforce Committee and Senate HELP Committee Set for 118th Congress – CUPA-HR

    by CUPA-HR | February 7, 2023

    After a month in session, the U.S. House of Representatives and Senate are finalizing their committee and subcommittee membership rosters. Of particular significance are the House Education and the Workforce Committee and Senate Health, Education, Labor and Pensions (HELP) Committee, which have jurisdiction over higher education and many labor and employment issues, including overtime, paid leave, occupational safety and health and employment-based discrimination.

    House Education and the Workforce Committee and Subcommittees

    The House Education and the Workforce Committee will be comprised of 25 Republicans and 20 Democrats with Rep. Virginia Foxx (R-NC) serving as chairwoman and Rep. Bobby Scott (D-VA) serving as ranking member of the full committee. Both Foxx and Scott served as their party’s committee leader in the previous Congress when Democrats held the majority, but Foxx was notably able to secure a waiver granting her exemption from House Republican-imposed committee leadership term limits that would have prohibited her from serving a fourth consecutive term as Republican leader on the committee.

    Foxx has publicly stated her priorities for the committee, citing oversight of the Biden administration, Department of Labor and Department of Education as a top concern for the committee. Having previously taught at two institutions of higher education and served as president at Mayland Community College, Foxx also has a particular interest in higher education. With divided control of Congress and Democrat control of the Senate, however, it is unlikely that Foxx will be able to pass any meaningful legislation that would garner support from the Senate and the president.

    In addition to the full committee roster, the Education and the Workforce Committee has also finalized their subcommittee rosters.

    Subcommittee on Workforce Protections

    The Subcommittee on Workforce Protections has jurisdiction over issues relating to wages, hours of workers and overtime, including the Fair Labor Standards Act (FLSA); workers’ compensation, including the Family and Medical Leave Act (FMLA); issues relating to immigration and employment; and occupational safety and health, including the Occupational Safety and Health Administration (OSHA).

    Freshman Rep. Kevin Kiley (R-CA) will serve as chairman of the subcommittee and Rep. Alma Adams (D-NC) will serve as ranking member after serving as chair of the subcommittee last Congress. The subcommittee will made be up of six Republicans, including Glenn Grothman (R-WI), James Comer (R-KY), Mary Miller (R-IL) and Eric Burlison (R-MO), all who did not serve on the subcommittee in the previous Congress; and four Democrats, all who served on the subcommittee in the last Congress.

    Subcommittee on Higher Education and Workforce Development

    The Subcommittee on Higher Education and Workforce Development has jurisdiction over the following areas: postsecondary student assistance and employment services, and the Higher Education Act; postsecondary career and technical education, apprenticeship programs, and workforce development; and science and technology programs.

    Rep. Owen Burgess (R-UT) will serve as chairman of the Subcommittee on Higher Education and Workforce Development, while Rep. Frederica S. Wilson (D-FL) will serve as ranking member of the subcommittee after serving as chair of the subcommittee in the 117th Congress. The makeup of the subcommittee will include 13 Republicans, including Reps. Glenn Thompson (R-PA), Lloyd Smucker (R-PA), Nathaniel Moran (R-TX), John James (R-MI), Lori Chavez-DeRemer (R-OR), Erin Houchin (R-IN) and Brandon Williams (R-NY) as new members; and 11 Democrats, including Reps. Lucy McBath (D-GA), Gregorio Kilili Camacho Sablan (D-Northern Marina Islands) and Alma Adams (D-NC) as new members.

    Subcommittee on Health, Employment, Labor and Pensions

    The Subcommittee on Health, Employment, Labor and Pensions’ jurisdiction involves “matters dealing with relations between employers and employees,” including to the National Labor Relations Act (NLRA) and employment-related health and retirement security, such as pension, health and other employee benefits and the Employee Retirement Income Security Act (ERISA).

    The subcommittee will see Rep. Bob Good (R-VA) serve as chairman and Rep. Mark DeSaulnier (D-CA) serve as ranking member after previously serving as chair in the 117th Congress. The subcommittee will be composed of 12 Republicans, including Reps. James Comer (R-KY), Lloyd Smucker (R-PA), Michelle Steele (R-C), Aaron Bean (R-FL), Eric Burlison (R-MO), Lori Chavez-DeRemer (R-OR) and Erin Houchin (R-IN) serving as new members; and 10 Democrats, including Reps. Pramila Jayapal (D-WA), Jahana Hayes (D-CT), Ilhan Omar (D-MN) and Kathy Manning (D-NC) serving as new members.

    Senate Health, Education, Labor and Pensions Committee

    The Senate HELP Committee is the Senate counterpart to the House Education and the Workforce Committee. Chair Bernie Sanders (I-VT) will be replacing former Chair Patty Murray (D-WA), who is now the chair of the Senate Appropriations Committee, and Ranking Member Bill Cassidy (R-LA) will be replacing former Ranking Member Richard Burr (R-NC), who retired at the end of the 117th Congress. Democrats will have 11 members and Republicans will have 10 members on the committee. Subcommittees have not yet been finalized, though we expect to see membership lists soon.

    Sanders staffers have stated that, as chair, he will “focus on universal healthcare, lowering the cost of prescription drugs, increasing access to higher education and protecting workers’ rights on the job.” As previously mentioned, however, the divided Congress and Republican control of the House will likely prevent meaningful legislation from moving to President Biden’s desk for his signature.

    CUPA-HR will be monitoring committee activity and will keep members apprised of any major hearings or updates that come out of the committees.



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  • HR and the Courts – January 2023 – CUPA-HR

    HR and the Courts – January 2023 – CUPA-HR

    by CUPA-HR | January 18, 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.

    Divided Court of Appeals Rules That Separating Bathrooms By Biological Sex Does Not Violate the Constitution or Title IX — Transgender Student’s Discrimination Claim Denied

    The full 11th U.S. Circuit Court of Appeals (covering Florida, Alabama and Georgia) recently held in a sharply divided 7 to 4 decision that separating school bathrooms by biological sex is constitutional and does not violate Title IX. The majority decision is subject to multiple dissents (Adams v. School Board of St. Johns County, Florida (11th Cir. No. 18-13592, 12/30/22)). The case involved a St. Johns County, Florida, school board, which restricted bathroom use by biological sex, not allowing students who identified with a sex different from their biological sex to use the bathroom of their choice.   

    The majority decision rejected the transgender plaintiff’s reliance on the Supreme Court decision in Bostock v. Clayton County, which held that under federal job discrimination law, sex discrimination includes bias based on gender identity or sexual orientation. The majority decision pointed out that a school setting “is not the workplace,” and Bostock expressly decided not to tackle the issue of sex-segregated locker rooms or bathrooms. The majority concluded that the U.S. has a long history of separating sexes when it comes to the use of public bathrooms, and such sex-based classifications have never necessarily violated the Equal Protection Clause. It is likely that other circuits may decide this issue differently, setting up an ultimate decision on this issue by the Supreme Court.  

    NLRB Expands Damage Remedies Against Employers Who Commit Unfair Labor Practices

    The National Labor Relations Board (NLRB), in a decision applicable to all private colleges and universities in America, recently ruled that it will award damages in addition to back pay and reinstatement to employees who are subject to unfair labor practices (Thryv Inc. (N.L.R.B. Case No. 20-CA-250250, 12/13/22)). The case was brought by the NLRB against Thryv Inc., a software and marketing company, which the NLRB alleged violated the National Labor Relations Act (NLRA) by laying off employees without first bargaining with the union.  

    The NLRB ruled 3 to 2 (with two Republican member dissenters) that its “make-whole” remedies for employees affected by unfair labor practices will include damages that are the “direct and foreseeable pecuniary harm” resulting from an employer’s unfair labor practice, in addition to back pay and reinstatement. For example, this would include out of pocket costs for medical payments that would have been covered by an employer’s health insurance had the employee continued to be employed but for the unlawful termination. 

    Firefighter Loses First Amendment Religious Objection to Being Photographed for ID and Accountability Card

    A Christian firefighter from Bourne, Massachusetts, lost his First Amendment religious claim against his fire department after he was disciplined (suspended for 24 hours and ineligible for pay increases for at least six months) for refusing to be photographed for his ID card and accountability tag that would be attached to his firefighting gear and used at fire scenes (Swartz v. Sylvester (2022 BL 416412, 1st Cir., No. 2101568, 11/21/22)). The firefighter claimed that his religious beliefs precluded him from engaging in acts of self-promotion and that the photos might be used for promotional purposes. 

    The fire chief’s directive came after he became aware that some firefighters had worn ties and others wore t-shirts for their ID and authentication tag photos. The fire chief issued a directive that all firefighters would sit for their photos wearing their dress uniform for consistency. The photos would also be used in a display at the firehouse, be submitted to the media when a firefighter died in the line of duty and might be submitted to the media following a firefighter’s promotion.  

    In rejecting the plaintiff’s claim, the court concluded that the directive was applied uniformly, without exception, was facially neutral and was rationally related to the legitimate government purpose of publicizing the fire department and promoting the integrity of governmental institutions. 

    NLRB General Counsel Concludes That the NCAA Violated the NLRA By Failing to Treat Student-Athlete Basketball and Football Players as Employees

    The NLRB general counsel has concluded that the NCAA is violating the NLRA by failing to treat student-athlete basketball and football players as employees. The decision could eventually lead to the ability of these student-athletes to form labor unions. Absent settlement of the case, the NLRB Los Angeles Regional Office will issue a complaint against the NCAA and likely the Pac-12 Conference and the University of Southern California for failure to treat these student-athletes as employees. The case was brought to the NLRB by the National College Players Association, an advocacy group seeking to organize student-athletes. The final decision as to whether student-athletes are employees rests with the full NLRB, which will eventually address this matter. 

    New York Temporarily Abandons Statute of Limitations on State Law Sex Harassment Claims

    New York state has temporally done away with the statute of limitations on sex abuse claims, giving adult victims of sex abuse one year to file a claim against employers and offenders seeking financial compensation. The Adult Survivors Act, which became effective November 24, 2022, gives victims of alleged sex abuse a one year period to file a claim in New York no matter when the alleged abuse occurred. The new statute is intended to fill the gap left by 2019 legislation, which expanded New York’s statute of limitations on sex abuse cases from one year to 20 years, but did not do so retroactively.  

    Jury Awards Former Softball Coach $800,000 in Damages for Emotional Pain and Mental Anguish in Sex Discrimination Case

    A federal court jury has awarded a former university baseball coach $800,000 in damages for alleged emotional pain and mental anguish in a sex discrimination case in which the former coach alleged she was paid less than male comparators and was suspended from her position because of her sex. She had been suspended from her position following parental complaints about her coaching style. She alleged that a male coach who was the subject of similar parental complaints was treated less severely. The court dismissed her complaint with regard to salary discrimination, but allowed her discriminatory suspension allegations to proceed to a jury trial. The $800,000 jury award is subject to the university’s Motion for Judgment, not on the verdict likely to be filed after a final award is formalized by the federal district court judge (Hall v. Alabama State University (M.D. Ala. No. 16-cv-00593, 12/19/22)).  

    The jury trial proceeded for two days, and the jury concluded that the plaintiff’s gender was a motivating factor in the decision to suspend her.   

    Boston College Trustees Sued in Class-Action Lawsuit Claiming ERISA Violations in Allegedly Allowing “Above Market” Administrative Fees to Be Paid to Investment Adviser Without Competitive Bidding

    A federal district court judge recently denied the motion for summary judgement filed by defendants and allowed a class-action lawsuit to proceed against the trustees at Boston College who were sued for allegedly allowing “above market” record-keeping fees and “excessive” investment-management fees, which plaintiff’s claimed were not properly monitored or assessed through a competitive bidding process. In ruling the motion a “close call,” the judge allowed the lawsuit to proceed to discovery into the institution’s and trustees’ conduct (Sellers v. Trustees of Boston College (2022 BL 461759, D. Mass. No. 1:22-cv-10912, 12/27/22)).

    The plaintiffs also challenged the alleged inadequate performance of certain plan investments. The retirement plans in question cover approximately 3,000 employees and contain over $1.1 billion in assets. In allowing the case to proceed, the judge concluded that the plaintiffs are alleging more than poor performance during a limited time. The plaintiffs are alleging that the institution and trustees were not aware of the historical imprudence of certain investments or recent published court decisions regarding questionable fees and investments in this area.  



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  • HR and the Courts – December 2022 – CUPA-HR

    HR and the Courts – December 2022 – CUPA-HR

    by CUPA-HR | December 13, 2022

    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 Wins Dismissal of “Deliberate Indifference” to Sex Harassment Claims on Statute of Limitations Grounds 

    A federal district court dismissed 12 counts of alleged indifference to sex harassment brought by six Jane Does, five of whom are current or former students and one of whom is a current professor. The case involves allegations against a male graduate student in French language studies who was arrested for rape of a student at another college in 2018. It is alleged that the university did not act on sex harassment allegations of inappropriate touching and “raunchy” texts following the incident at the other college.

    The graduate student allegedly raped Doe #1 in September 2020, and the university suspended him in November 2020 following an investigation for sexual harassment, endangerment and disorderly conduct. The graduate student fled the country for France in December 2020 and has not returned. The graduate student was indicted for rape stemming from the 2018 alleged assault in December 2021.

    The federal district court judge dismissed all the allegations on statute of limitations grounds (Doe #1 et al v. Board of Supervisors of Louisiana State University and Agriculture and Mechanical College et al ( M.D. La. No. 21-cv-00564, 11/3/22)). Louisiana has the shortest statute of limitations in the country at one year and the judge concluded that the majority of the claims were time barred, granting plaintiffs the ability to amend two of the 12 claims and refile them.

    Athletic Director Applicant Loses Reverse Discrimination Claim on the Basis of Interview Performance

    A white athletic director applicant who claimed superior qualifications for a senior athletic director position failed to show that the stated reason for his rejection (poor interview performance) in favor of a minority applicant was pretextual. The plaintiff was a long-time athletic director in the South Bend Indiana School district at the time he applied for a broader and more senior athletic director position. The judge ruled that while the plaintiff may have been more qualified “on paper alone” by a comparison of resumes with the minority applicant who was chosen for the job, the employer showed that a comparison of resumes was not the sole criteria for job selection (Groves v. South Bend Community School Corporation (2022 BL 347215, 7th Cir. No. 21-03336, 10/1922)).

    The judge went on to recognize that the minority applicant performed much better during his interview and convinced the interviewer that he would be much better able to mend the strained relationship the school district had with the State Athletic Association. The judge further observed that during the interview, the plaintiff stressed his experience in firing coaches and this was not helpful in the mind of the interviewer with regard to the State Athletic Association. The judge concluded that the facts supported the conclusion that interview performance was not a pretext to commit race discrimination. The judge’s conclusion was affirmed by the 7th U.S. Circuit Court of Appeals (covering Wisconsin, Illinois and Indiana).

    State of Florida Appeals Federal Judge’s Decision Blocking the Florida Law Restricting Employer Anti-Bias Training

    The state of Florida has appealed to the U.S. Court of Appeals for the 11th Circuit, asking the appellate court to reverse a federal judge’s decision that barred enforcement of the controversial law’s provisions, which prohibited employers in the state of Florida from promoting various sex- and race-based anti-bias concepts as part of employee training.

    The federal district trial judge issued a preliminary injunction barring enforcement of much of the law based on a conclusion that it violated employers’ First Amendment free speech rights under the U.S. Constitution. The state of Florida argued in its appeal that the statute does not restrict employer free speech, rather it blocks employer conduct “conscripting employees against their will into the audience as a condition of their employment,” (Honeyfund.com Inc et al v. DeSantis et al (Case No. 13135, 11th Cir.)).

    The federal trial judge had concluded that Florida state lawmakers wrote a law that attempts to squelch viewpoints on race and sex bias that they do not like. CUPA-HR will follow this litigation as it develops.

    Department of Labor Proposes Self-Correction Program for Retirement Plans With Late Participant Contributions and Loan Repayments

    The Department of Labor is proposing a new self-correction component under its Voluntary Fiduciary Correction Program (VFCP) to allow plan administrators to self-correct certain plan violations without the need to file a formal application and no action request. Under the proposed rule, the plan would report the correction through an online portal. The VFCP allows plans to self-correct certain Employee Retirement Income Security Act violations and avoid civil penalties by identifying and correcting certain plan design and implementation errors. Under the proposal, plans with late participant contributions or loan repayments could use this alternative to self-correct these violations.

    Under the proposed rule, the self-correction must be made within 180 days of the withholding or receipt of funds and the lost earnings must not exceed $1,000. Publication of the proposed rule is expected to be made in late November/early December, and comments must be submitted within 60 days of publication of the proposed rule.

    Terminated Softball Coach Sues for First Amendment Speech and Religious Discrimination Allegedly Related to Her Offer to Adopt a Student’s Baby

    A former assistant softball coach has filed a lawsuit in federal court alleging that her former university discriminated against her in the exercise of her free speech rights and religious beliefs when she was discharged after she offered to adopt a student’s baby and refused to reveal the identity of the student (Wiggins v. Idaho State University et al (D. Idaho No. 22-cv-00474, complaint filed 11/17/22)).

    The complaint alleges that the university violated the former coach’s First Amendment speech and exercise of religion rights by “coercing” the coach to convince the birth mother to disclose the pregnancy and birth to her parents and to withdraw her offer to adopt the baby. The complaint alleges that the university discharged the coach after she refused to disclose the name of the birth mother to the athletic director and dean of students so they could contact the birth mother‘s parents. The plaintiff alleges that her offer to adopt the baby was an “exercise of” her Christian faith. The plaintiff also alleges that the loss of employment forced her to sell her home and move her family to Texas.



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  • Supreme Court Issues Decision Regarding Retirement Plan Fiduciary Duties in Hughes v. Northwestern – CUPA-HR

    Supreme Court Issues Decision Regarding Retirement Plan Fiduciary Duties in Hughes v. Northwestern – CUPA-HR

    by CUPA-HR | March 18, 2022

    On January 24, the Supreme Court issued its unanimous decision in Hughes v. Northwestern University, a case dealing with 403(b) retirement plan fiduciary duties under the Employee Retirement Income Security Act (ERISA). The court criticized the standard applied by the lower courts and sent the case back to the 7th Circuit to reevaluate the plaintiffs’ allegations.

    In the case, the three plaintiffs, all current or former employees of the university, alleged the plan fiduciaries violated the duty of prudence standard under ERISA by “(1) failing to monitor and control recordkeeping fees, resulting in unreasonably high costs to plan participants; (2) offering mutual funds and annuities in the form of ‘retail’ share classes that carried higher fees than those charged for otherwise identical share classes (institutional share class) of the same investments; and (3) offering investment options that were likely to confuse investors.”

    In their decision, which was written by Justice Sotomayor, the court explained that, when determining if a plan fiduciary violated the duty of prudence standard under ERISA, courts must engage in “a context-specific inquiry of the fiduciaries’ continuing duty to monitor investments and to remove imprudent ones” as articulated in Supreme Court precedent, Tibble. The court said the 7th Circuit was wrong in concluding that by providing a choice of investment options, plan fiduciaries insulated themselves from liability claims. It is important to note that the court chose not to weigh in on the plausibility of the plaintiffs’ claims, only on the standard applied by the lower courts.

    CUPA-HR, along with 17 other higher education associations, participated in an amicus brief filed in the case. In the brief, we supported the 7th Circuit’s decision in favor of Northwestern University. We explained, “The question in this case is whether petitioners have pleaded sufficient facts to state a plausible claim for breach of fiduciary duty in administering a retirement plan” under ERISA, but the complaints in this case “overlook important features of the university retirement system and ignore the discretion ERISA affords to plan fiduciaries.” We also clarified that universities and plan fiduciaries “must have the flexibility o administer the plans based upon the particular needs and preferences of the plan participants, without constant second-guessing.”

    The 7th Circuit now has the opportunity to revisit the case. It may choose to dismiss much of the case or review the record again.

    Following the decision, our amicus briefing counsel was quoted saying, “Despite some of the early headlines that have already been written suggesting this case is a really big deal, in fact, I view this as a limited ruling… [T]he Supreme Court did not reach any specific or detailed conclusions that any of the investments offered by the defendants in this case are actually inappropriate, nor did the justices come down and say a fiduciary can never offer retail shares of funds within their institutional retirement plans. Instead, what they said, in a nutshell, is that the 7th Circuit simply did not give enough consideration of the duty-to-monitor precedents set by Tibble.”

    Importantly, the final sentence of the Supreme Court’s decision provided a silver lining; “At times, the circumstances facing an ERISA fiduciary will implicate difficult tradeoffs, and courts must give due regard to the range of reasonable judgments a fiduciary may make based on her experience and expertise.” The court here is clarifying that fiduciaries must be given due deference when making tough decisions.

    That being said, the decision could pave the way for more cases on fiduciary duties to be filed, as plaintiffs’ attorneys may take advantage of the potential opening in order to force settlements.



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  • HR and the Courts – CUPA-HR

    HR and the Courts – CUPA-HR

    by CUPA-HR | September 21, 2021

    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.

    EEOC Brings Its First COVID-19 Teleworking Denial Lawsuit Under the Americans With Disabilities Act  

    The Equal Employment Opportunity Commission (EEOC) recently brought its first denial of a disability accommodation lawsuit connected to the pandemic. The employer in question denied an employee’s request to continue teleworking. The employee claimed that her heart problems heightened her COVID-19 risk. The case was filed in federal district court in Georgia (EEOC v. ISS Facility Services Inc. (N.D. Ga., No. 1:21-CV-3708-SCJ-RDC, comp filed, 9/7/21)).

    The employee’s accommodation request was that she be allowed to work from home two days per week. The plant where she worked reopened following a multi-month period where all employees telecommuted, including the plaintiff. The employee also asked to be allowed to take frequent breaks when working on-site three days per week because her pulmonary condition caused her to have difficulty breathing. The EEOC alleged that while the employee’s accommodation request was rejected, other employees were allowed to work from home. Additionally, the EEOC alleged that the employee was terminated after her accommodation request was denied.

    The EEOC released the following statement about the case: “In light of the additional risks to health and safety created by COVID-19, it is particularly concerning that an employer would take this action several months into a global pandemic.” The EEOC is seeking back pay, compensation for past and future pecuniary and non-pecuniary losses, punitive damages and a permanent injunction.

    Union Decertification Elections and the Percentage of Actual Union Losses Rise in the First Half of 2021 Compared to 2020

    Union decertification elections in the first half of 2021 increased by 30 percent over the number of decertification elections supervised by the National Labor Relations Board (NLRB) during the same period in 2020. In contrast, NLRB-supervised certification elections increased by only 4 percent during the same period in 2021 as compared to 2020 according to NLRB reports published by the Bloomberg Daily Labor Report.

    Unions lost two-thirds of the decertification elections supervised by the NLRB in the first half of 2021. This is an increase of 64 percent over the number of losses unions incurred in the first half 2020.

    Community College Disability Plans Exempt From ERISA as a Governmental Plan — Federal Court Remands Plaintiff’s Case to State Court to Proceed Under Applicable State Law

    A former community college employee can seek relief from denial of disability benefits under state law as the federal court hearing the case ruled that community college plans are exempt from the Employee Retirement Income Security Act of 1974 (ERISA) as a governmental plan. The federal court ruled that relief may be available to the employee under state law, as there is no federal jurisdiction.

    The case involved a former employee of St. Louis Community College who had been receiving disability benefits under the plan for about five years. Disability benefits continuation was denied by the plan administrator. The plan was administered by American General Life insurance. The case was originally filed in state court but was removed to federal court alleging jurisdiction under ERISA. The federal district court judge dismissed the case, concluding that the plan was established by a governmental entity and as such there was no ERISA jurisdiction. The judge remanded the case to proceed in state court to determine whether the plaintiff is subject to relief under state law (Glover v. American General Life Insurance Company (2021 BL 297552, N.D. Ill., no. 3:21-cv-50205, 8/6/21)).

    Former Director of University Family Law Clinic Who Was Denied a Permanent Position to Head the Clinic and a Professorship Alleges Ageism

    A Pennsylvania attorney who was over 60 when he was recruited to run the University of Pittsburgh’s School of Law Family Law Clinic has filed an age discrimination lawsuit under the Age Discrimination in Employment Act of 1967 after he was passed over when the position became a full-time faculty position and the university allegedly chose an attorney who was under 40 with little experience in parental custody issues routinely handled by the clinic (Congelio v. University of Pittsburgh (W.D. Pa. No. 2:21-cv-902, complaint filed 7/13/21)).

    According to the age discrimination complaint, the plaintiff alleged that the person who was hired for the position and as a faculty member was not licensed to practice law in Pennsylvania where the university and the law clinic are located. The plaintiff was a visiting professor at the law school when he was not selected for the position to continue running the clinic with the accompanying full-time faculty appointment.



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