Category: First Amendment

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

    HR and the Courts – August 2022 – CUPA-HR

    by CUPA-HR | August 9, 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.

    EEOC Reaches Settlement Banning Employer Collection of Family COVID-19 Testing Results — GINA Implications 

    In a case involving a dermatology medical practice in Florida, the EEOC reached a settlement of the charge it brought against the employer medical. The case alleged that the employer violated the Genetic Information Nondiscrimination Act of 2008 (GINA) when it collected family COVID-19 testing results of its employees. Title II of GINA bans employers from collecting an employee’s genetic testing results and a worker’s family medical history.

    However, the EEOC also issued guidance stating that an employer can still ask its employees if they had contact with anyone who has been diagnosed with COVID-19 or who has had symptoms of COVID-19. Nonetheless GINA prohibits employers from inquiring directly and specifically as to the COVID-19 status of an employee’s family members.

    The EEOC also recently issued guidance on July 12, 2022, that, going forward, before requiring employees to submit to COVID-19 testing, employers should consider whether current pandemic circumstances and individual workplace circumstances justify viral screening of employees. Essentially the EEOC’s position is that before going forward with workplace COVID-19 screening, the employer must demonstrate a “business necessity” based on general pandemic circumstances and individual workplace circumstances.

    Federal Court Holds That Discharge Proximity to an Employee’s Filing for Extended FMLA Leave Warrants a Jury Trial Over Retaliatory Discharge Claims 

    A federal district judge recently ruled that a plaintiff’s claim that her discharge shortly after seeking an extension in FMLA leave to deal with mental health problems was retaliatory  warrants a jury trial over FMLA retaliatory discharge allegations and dismissed the employer’s motion for summary judgement. The plaintiff was a human resources manager who allegedly suffered from depression and anxiety. The employer argued that it was entitled to summary judgement because the plaintiff was discharged before the employer made a decision on the FMLA extension request. The judge concluded that gaps and inconsistencies in the employer’s explanation of the reasons for discharge warrant a finding of fact by a jury as to the timing and reason for discharge (Moryn v. G4S Secure Solutions USA, Inc. (2022 BL 222775 Dist Minn. No. 0:21-cv-00123, 6/28/22)).

    The plaintiff had requested and received a three-month leave of absence based on the recommendation of her physician for mental health reasons. When the three-month leave concluded, the employee requested an additional month followed by a part-time work schedule that progressively added more days to the job.

    Separately the judge dismissed the allegations under Minnesota state discrimination law related to disability discrimination and the allegations that the employer failed to accommodate the plaintiff.

    Court of Appeals Rules That a State Agency’s Banning of “Black Lives Matter” Adornments to Employee Uniforms Violates the First Amendment

    The U. S. Court of Appeals for the 3rd Circuit (covering Pennsylvania, New Jersey and Delaware) affirmed the decision of a federal trial court, which ruled that a Pennsylvania local transit authority violated the First Amendment guarantee of free speech by prohibiting Black Lives Matter adornments on employees’ uniforms as part of its policy prohibiting political and social adornments on employee uniforms.

    The court of appeals also ruled that the Allegheny County Port Authority’s policy revision, which allowed employees to wear only certain masks to make it easier for the authority to enforce its ban on Black Lives Matter messaging, violated the First Amendment. The case challenging the transit authority’s policies was brought by the employees’ union in Amalgamated Transit Union Local 85 v. Port Authority of Allegheny County (3rd Cir. No. 21-1256, 6/29/22 ).

    U.S. Supreme Court Rules in Favor of Football Coach’s After-Game Prayer, Concluding His Discharge Violates the First Amendment Free Speech and Religion Provisions 

    In a long-awaited and controversial decision, the U.S. Supreme Court ruled against a school district firing of a football coach who refused to abandon his long-practiced ritual of kneeling in prayer at the 50-yard line at the conclusion of each football game. In doing so, the Supreme Court overruled the decision of the 9th U.S. Circuit Court of Appeals ruling in favor of the school district. The football coach argued that he had agreed to the school district’s demands that he stop leading prayers with his players, but wanted to continue taking a knee in prayer alone after each game.

    Justice Neil Gorsuch concluded that the case was about “three quiet prayers,” and because no student joined in those prayers, the coach was acting as a private citizen, not a school employee or coach. The justice concluded that the coach was not acting within the scope of his activities as a coach and therefore his actions were protected by the First Amendment. The Supreme Court decision was a divided one, 6 to 3 (Kennedy v. Bremerton School District ( US 21-418, 6/27/22 )).

    NLRB Reports That Private-Sector Union-Organizing Petitions Have Risen 58% and Unfair Labor-Practice Charges Filed by Employees Have Risen 16% in Fiscal Year 2022

    The National Labor Relations Board (NLRB) reported a sharp increase in private-sector union-organizing petitions filed during the first three quarters of fiscal 2022 (October 1-June 30), concluding that union-organizing petitions rose by 58%. The increase in union-organizing petitions has been across the board in the private sector and not limited to high-profile organizing nationwide at Starbucks and Amazon. U.S. workers filed 1,892 organizing petitions in the first three quarters of fiscal 2022 as compared to 1,197 petitions in the first three quarters of fiscal 2021.

    The data also show that U.S. workers filed 16% more unfair labor-practice charges against employers during the first three quarters of fiscal 2022. Unfair labor-practice charges at the end of June had increased from 11,451 in fiscal 2021 to 13,105 in fiscal 2022.



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  • HR and the Courts – CUPA-HR

    HR and the Courts – CUPA-HR

    by CUPA-HR | February 9, 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.

    U.S. Supreme Court to Review Harvard and UNC Affirmative Action Admission Policies In Consolidated Case 

    The U.S. Supreme Court agreed to hear and review two cases challenging the affirmative action admissions policies at Harvard University and the University of North Carolina. The Supreme Court will hear an hour of argument over both court of appeals decisions, which have concluded that the respective affirmative action plans were legal. In the past, the Supreme Court has consistently ruled that college and university admission related affirmative action plans were legal since 1978 in the Bakke decision.

    The composition of the Supreme Court has changed significantly since the last time it ruled that affirmative action in college admissions was legal in 2018 in the University of Texas at Austin case. The argument will be heard in the October 2022 term with a decision likely to be made in 2023. CUPA-HR will follow and report on future developments.

    Court of Appeals Allows a Former Teaching Assistant’s Complaint Alleging Male Bias In Title IX Investigation to Proceed 

    The Ninth Circuit Court of Appeals (covering California, Oregon, Washington, Nevada, Idaho, Montana and Arizona) ruled that a former Chinese national teaching assistant — who lost his job and student visa to stay in the U.S. after a Title IX investigation found that he was in violation of the school’s dating guidelines — can proceed with his own Title IX suit against the university, alleging that the investigation was biased against him as a male (Doe v. University of California (9th Cir. No. 20-55831. 1/11/22)). The plaintiff, who had prevailed in a state court proceeding challenging the disciplinary decision, nonetheless lost his housing, job, student visa and the ability to complete his doctorate.

    The plaintiff had broken off his engagement to a student who he was dating after learning she had been unfaithful to him. She came unannounced to his office, confronted him and blocked his exit when he said he had to leave to teach a class. The plaintiff eventually got around the student to leave, but the student called the campus police claiming that he pushed her and grabbed her arm, and she filed a Title IX complaint. During the investigation, an investigator told the plaintiff, “No female had ever fabricated allegations against a former boyfriend in a Title IX setting.” The plaintiff also alleged that during the two-year time period, the overwhelming majority of Title IX claims were against males and that no female was ever given a two-year suspension in circumstances like his. The court of appeals concluded that given these facts, the plaintiff’s claims should proceed to trial.

    NLRB General Counsel Reiterates Call for NLRB to Issue Make-Whole Remedies, Including Emotional Distress Damages for Employer Unfair Labor Practice Violations

    Jennifer Abruzzo, the Biden administration appointee as general counsel to the National Labor Relations Board (NLRB), has reiterated her request that the NLRB expand its remedy policies for employer violations of the National Labor Relations Act’s unfair labor practice provisions, including discrimination against union members, to include “make-whole” remedies, which would include emotional distress damages. The general counsel announced her initial request in September 2021. Abruzzo followed up the September 2021 request in a legal brief filed with the NLRB on January 10, 2022 arguing that the NLRB remedies are “feeble” and allow employer’s to violate the Act because it is cheaper do so without facing the consequence of make-whole remedies.

    Current NLRB remedies are limited to employment reinstatement, back pay awards and posting of notices that the employer violated the Act. Business groups filed a brief on January 10, 2022, which also opposes the general counsel’s request, arguing that the NLRB lacks authority under the Act to impose make-whole remedies. CUPA-HR will follow this litigation and report the result in a future blog post.

    U.S. Supreme Court Will Hear Football Coach’s First Amendment Claim of Protected Mid-Field Prayer Denied By the Ninth Circuit Court of Appeals 

    The U.S. Supreme Court has granted certiorari (cert) and will hear an appeal of a Washington state football coach whose claim to a First Amendment right to kneel and pray at the 50-yard line after each game was denied by the Ninth Circuit (covering California, Oregon, Washington, Arizona, Nevada, Montana and Idaho) (Kennedy v. Bremerton School District (U.S. No. 21-418, cert granted 1/14/22)). The Bremerton School District suspended the coach after he refused to cease his weekly ritual of kneeling and praying at the 50-yard line after each game. The Ninth Circuit denied the First Amendment claim, holding that the coach’s public statements about his prayer activities belied his argument that is was a private religious act and evidenced his attempts to proselytize his religious beliefs. As such, allowing it to continue would violate the school district’s/government’s duty not to support any particular religion.

    The coach argued that the decision, if left standing, would virtually transform speech of a public employee into government speech, lacking any First Amendment protection. The school district argued against cert, claiming that it had given the coach an accommodation to pray before or after the game in the press box or anywhere else where he would not be surrounded by his team. The coach insisted on being able to pray at mid-field before the team and spectators had cleared the field. CUPA-HR will follow this case and report on the ultimate decision.

    COVID-19 Spousal Death May Be a Way Around Workers’ Compensation Defense to Employer Liability for Some COVID-19 Cases Contracted at Work 

    A California appellate court recently refused to dismiss a case filed by an employee who claimed her husband contracted and died of COVID-19, which she contracted from working on the employer’s assembly line (See’s Candies, Inc. v. Superior Court of L.A. County (2021 BL 485084, Cal. Ct. App. 2nd Dist. No. B312241,12/21/21)). The appeals court rejected the company’s argument that the husband’s death was a “derivative” injury of the employee’s injury/illness contracted at work and therefore barred by the workers’ compensation prohibition of individual lawsuits. This is a new area of the law and the cases popping up elsewhere may come to a different result. CUPA-HR will follow the issue as case law develops.

    U.S. Union Membership Among American Workers Declines to Record Low in 2021

    The percentage of American workers who are union members declined to 10.3 percent in 2021 to match its record low percentage of 2019. While union membership increased in 2020, the percentage dropped 0.5 percent in 2021 to the 2019 percentage according to the U.S. Department of Labor’s Bureau of Labor Statistics. In 2021, the number of union members declined to 14 million while the number of overall workers increased. The percentage of American workers who are union members has declined significantly since 1984 when approximately 20 percent of the U. S. workforce was unionized.



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