Category: General

  • Biden Administration’s Vaccine Mandates Face Legal Challenges in Court – CUPA-HR

    Biden Administration’s Vaccine Mandates Face Legal Challenges in Court – CUPA-HR

    by CUPA-HR | December 9, 2021

    Over the past several months, the Biden administration announced and implemented several vaccine and testing mandates for federal workers, federal contractors and private employers. States and business stakeholders quickly responded with lawsuits against the administration’s mandates, which continue to be challenged in courts around the country. To keep CUPA-HR members apprised of the legal challenges, we have detailed below the most recent litigation updates for the federal contractor vaccine mandate, the Occupational Safety and Health Administration (OSHA)’s Emergency Temporary Standard (ETS), and the Centers for Medicare and Medicaid Services’ (CMS) vaccine mandate for healthcare workers — all three of which are on hold pending the various lawsuits’ outcomes.

    Federal Contractor Vaccine Mandate

    On September 9, President Biden issued Executive Order 14042 (EO), “Ensuring Adequate COVID Safety Protocols for Federal Contractors,” as part of his “Path Out of the Pandemic” plan. The EO tasks the Safer Federal Workforce Task Force with implementing guidance that requires all federal contractors to mandate COVID-19 vaccinations for their employees. The current effective date is January 4, 2022, meaning all covered contractor employees must be fully vaccinated by January 18, 2022. A federal court recently enjoined the government from implementing the EO, however, so it remains unclear when, if ever, the mandate will go into effect.

    Numerous lawsuits have been filed against the mandate arguing that the Biden administration does not have authority to require vaccinations, and two federal courts have already issued decisions. On November 30, the U.S. District Court for the Eastern District of Kentucky issued a preliminary injunction against the mandate, stopping enforcement in Kentucky, Ohio and Tennessee only. On December 7, a federal judge at the U.S. District Court for the Southern District of Georgia granted a motion for a nationwide preliminary injunction against the vaccination mandate for federal contractors, halting enforcement for federal contractors in all states. The Biden administration is expected to challenge this decision.

    OSHA Emergency Temporary Standard

    On November 5, OSHA issued its COVID-19 Vaccination and Testing ETS requiring employers with 100 or more employees to implement vaccination or testing policies for their workers. As it currently stands, the ETS requires covered employers and employees to be fully vaccinated by January 4, 2022. A federal court has enjoined OSHA from implementing the ETS, however, and it remains unclear whether the ETS will be in effect on January 4 or anytime thereafter.

    Over three dozen lawsuits were filed against the rule, with at least one in all 12 circuit courts in the country. On November 6, the U.S. Court of Appeals for the 5th Circuit granted an emergency motion to stay the ETS, and on November 12, it extended the stay while it further reviewed the motion for a permanent injunction, ordering OSHA to stop implementation and enforcement of the ETS until further court order. Due to the high volume of cases at various circuit courts, a lottery was held on November 18 to determine which circuit court would hear the case to make a sweeping decision, which the 6th Circuit won, meaning the stay remains in place until the 6th Circuit makes a decision on the motion. It is likely the stay will remain in place until at least December 10; that said, the 6th Circuit can decide to lift the stay before that if it chooses to do so.

    CMS Vaccine Mandate for Healthcare Workers

    On November 5, the Centers for Medicare and Medicaid Services (CMS) issued a rule requiring healthcare workers in facilities that receive Medicare or Medicaid funds be vaccinated against COVID-19 by January 4, 2022. This rule also has been stayed by federal courts.

    Four lawsuits were filed against CMS challenging the agency’s authority to issue the rule. On November 29, the District Court for the Eastern District of Missouri blocked implementation and enforcement in the 10 states that challenged the rule: Missouri, Nebraska, Arkansas, Kansas, Iowa, Wyoming, Alaska, South Dakota, North Dakota and New Hampshire. On November 30, the District Court for the Western District of Louisiana issued a preliminary injunction blocking enforcement of the mandate nationwide, except in the 10 states impacted by the Missouri ruling. Decisions in the two other lawsuits are still pending.

    CUPA-HR continues to monitor the ongoing litigation for all of the vaccine and testing mandates and will keep members apprised of any decisions that will impact institutions’ compliance efforts.



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  • HR and the Courts – CUPA-HR

    HR and the Courts – CUPA-HR

    by CUPA-HR | November 17, 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.

    Federal Appeals Court Panel Expresses Skepticism Regarding New York City Teachers’ Challenge to the Constitutionality of the New York City Vaccine Mandate for All Public School Teachers

    In a case which could have ramifications for public and private college and university vaccine mandates, a group of New York City teachers recently argued that the New York City mandate that all public school teachers have at least one vaccine shot violates their basic rights under the U.S. Constitution. The case was heard by the U.S. Court of Appeals for the Second Circuit, which covers New York, Connecticut and Vermont. The New York City mandate requires all teachers to have at least one vaccine shot in order to continue teaching or be suspended without pay. The mandate allows them to continue to receive benefits during the suspension, but bars them from teaching elsewhere (Maniscalco v. New York City Department of Education (2nd Cir: Argued Oct 14, 2021)). The case is one of dozens across the country contesting the validity of public and private employer vaccine mandates.

    The teachers’ counsel argued that teaching is a profession and the vaccine mandate takes away the fundamental right of teachers to teach. One of the federal appeals court judges commented during the argument that she was having difficulty understanding why the mandate was “irrational” as argued by the teachers’ counsel.

    Bipolar Teacher Loses Her Disability Discrimination Appeal Following Her Discharge for Violating the School District’s Rules on Sharing Religious Beliefs

    In a case having general applicability to the Americans With Disabilities Act termination claims and requests for accommodation brought in the higher education context, the U.S. Court of Appeals for the Sixth Circuit, covering Michigan, Ohio, Kentucky and Tennessee affirmed a school district’s decision to terminate a teacher for inappropriate communication with students during her paid suspension. The appeals court concluded that a reasonable jury could not conclude that the teacher’s misconduct caused her discharge, notwithstanding her diagnosis of suffering from bipolar disorder (Lockhart v. Marietta City Schools (6th Cir., No. 20-4308, 10/15/21)).

    The plaintiff was put on paid leave after telling her students that she had a deeply religious experience while shoveling snow in which she lost consciousness, was carried away and now God was speaking through her. She was instructed not to communicate with students while on paid leave. She violated the instruction and sent a student a 12-page letter telling them not to trust school administrators and to “Trust me, I am the one you need to trust. I dearly love you, have they told you they love you?”

    The teacher argued that the school district should have accommodated her disability rather than terminate her. The court concluded that the school district was not required to excuse her misconduct during leave and that she repeatedly violated the terms of her administrative leave before even remotely asking for an accommodation request.

    Some States May Alter, Change and/or Challenge OSHA’s New Vaccine Rules

    Some states, through their respective attorney generals, have signaled that they may contest of try to alter the Occupational Safety and Health Administration (OSHA)’s vaccine mandate. OSHA allows by agreement some 26 states plus Puerto Rico and the U.S. Virgin Islands to adopt their own workplace safety rules. Those states include seven states with Republican attorney generals who have taken the position that a vaccine mandate is “disastrous and counterproductive.” The attorney generals of Alaska, Arizona, Indiana, Kentucky, South Carolina, Utah and Wyoming have written letters to OSHA stating that such a vaccine mandate does not meet the “grave danger” threshold needed to justify such an Emergency Temporary Standard. An additional two states, Texas and Arkansas, have taken steps to avoid a potential OSHA vaccination rule. Numerous challenges have been filed in federal court.

    The cases challenging the new OSHA rules will be consolidated for one federal appeals court to rule on. Ultimately, the Supreme Court may step in.

    Student Workers at Private University Seek Union Formation and Bargaining Rights Under the National Labor Relations Act

    Recently, a student worker organizing committee at Kenyon College filed a petition with the National Labor Relations Board (NLRB) to represent 600 student employees at the Ohio college. The committee is asking the NLRB to conduct a union representation election for the proposed student worker bargaining unit. The current NLRB has apparently abandoned its position to limit union organizing among student workers at private colleges and universities over which the NLRB has jurisdiction.

    In March 2021, the then Republican-controlled NLRB abandoned a proposal to block student workers at private colleges and universities form organizing. The NLRB’s current Biden administration appointed general counsel has since publicly backed expanding labor rights for student workers.

    Sex Harassment Case for Employee Perceived as Gay Is Headed to Trial Based on Alleged Physical Attacks and Discrimination for Failure to Conform to Sexual Stereotypes

    A heterosexual employee who was mistakenly perceived as gay and harassed by a supervisor because of the misperception received the right to proceed to a trial over his sex harassment claim. The trial court cited the Supreme Court decision in Bostock v. Clayton County and following decisions which have interpreted Title VII to protect against discrimination based on sexual orientation, gender identity, and/or failure to conform to sexual stereotypes (Roberts v. Glenn Industrial Group ( 2021 BL 404870. W.D.N.C. No.3:17- cv-00747, 10/21/21)).

    The plaintiff complained and the court agreed that the alleged harassment — if proven — was severe and pervasive and included physical assault by his supervisor in which his safety glasses were knocked off and he was put in a choke hold by his supervisor.



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  • House Passes Bills to Protect Older Job Applicants and Strengthen Domestic Violence Prevention and Survivor Support Services – CUPA-HR

    House Passes Bills to Protect Older Job Applicants and Strengthen Domestic Violence Prevention and Survivor Support Services – CUPA-HR

    by CUPA-HR | November 9, 2021

    On October 26 and November 4, 2021, the House of Representatives passed H.R. 2119, the Family Violence Prevention and Services Improvement Act of 2021, and H.R. 3992, the Protect Older Job Applicants (POJA) Act of 2021, respectively. Both bills passed by a close bipartisan vote — the former by a vote of 228-200 and the latter 224-200 — and are supported by President Biden.

    POJA Act

    As originally written, the POJA Act amends the Age Discrimination in Employment Act of 1967 (ADEA) to extend the prohibition of limiting, segregating or classifying by employers of employees to job applicants. The bill comes after recent rulings in the Seventh and Eleventh Circuit Courts of Appeals that allow employers to use facially neutral hiring practices, which some have accused of being discriminatory against older workers. As such, the POJA Act amends the ADEA to make clear that the disparate impact provision in the original statute protects older “applicants for employment” in addition to those already employed.

    Before the final vote on the bill, the House also adopted an amendment to the POJA Act that would require the Equal Employment Opportunity Commission to conduct a study on the number of job applicants impacted by age discrimination in the job application process and issue recommendations on addressing age discrimination in the job application process.

    Family Violence Prevention and Services Improvement Act

    The Family Violence Prevention and Services Improvement Act amends the Family Violence Prevention and Services Act to reauthorize and increase funding for programs focused on preventing family and domestic violence and protecting survivors. One provision addressing higher education authorizes the Secretary of Health and Human Services to now include institutions of higher education among the entities eligible for departmental grants to “conduct domestic violence, dating violence and family violence research or evaluation.”

    Both the Family Violence Prevention and Services Improvement Act and the POJA Act now face the Senate where passage is uncertain as both require significant support from Republicans to bypass the sixty-vote filibuster threshold.

    CUPA-HR will keep members apprised of any actions or votes taken by the Senate on these bills.



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  • OSHA Emergency Temporary Standard and CMS Interim Final Rule on Vaccination Requirements Released – CUPA-HR

    OSHA Emergency Temporary Standard and CMS Interim Final Rule on Vaccination Requirements Released – CUPA-HR

    by CUPA-HR | November 4, 2021

    On November 4, the Department of Labor’s Occupational Safety and Health Administration (OSHA) and the Department of Health and Human Services’ Centers for Medicare & Medicaid Services (CMS) issued their highly anticipated Emergency Temporary Standard (ETS) and interim final rule (IFR) setting vaccination requirements for employers with 100 or more employees and healthcare workers, respectively. Under the new policies, covered employers with 100 or more employees, healthcare workers at facilities participating in Medicare or Medicaid, AND federal contractors requiring vaccinations under Executive Order 14042 (EO) will be required to be fully vaccinated — either two doses of Pfizer or Moderna, or one dose of Johnson & Johnson — by January 4, 2022.

    A Fact Sheet announcing the new vaccinations rules provides the following information on the OSHA ETS, CMS IFR and federal contractor vaccination requirements:

    OSHA Emergency Temporary Standard

    In lieu of full vaccination, the OSHA ETS for employers with 100 or more employees (covered employers) also offers the option for unvaccinated employees to produce a verified negative COVID-19 test to employers on at least a weekly basis. OSHA does clarify, however, that the ETS does NOT require employers to provide or pay for tests, but notes that employers may be required to pay for testing due to other laws or collective bargaining agreements.

    The ETS also establishes policies that require covered employers to provide paid time off (PTO) for their employees to get vaccinated and, if needed, sick leave to recover from side effects that keep them from working. Additionally, all covered employers will be required to ensure that unvaccinated employees wear a face mask in the workplace. While the testing and vaccination requirements will begin after January 4, the ETS states that covered employers must be in compliance with the PTO for vaccination and masking for unvaccinated workers requirements by December 5, 2021.

    Importantly, OSHA clarifies in the ETS that the rule will not apply to workplaces already covered by the CMS IFR, as well as the federal contractor vaccination requirement set forth by President Biden’s EO and the Safer Federal Workforce Task Force’s vaccination guidance.

    Healthcare Interim Final Rule

    According to CMS, the IFR requiring full vaccination of healthcare employees applies to employees regardless of whether their positions are clinical or non-clinical and includes employees, students, trainees and volunteers who work at a covered facility that receives federal funding from Medicare or Medicaid. It also includes individuals who provide treatment or other services for the facility under contract or other arrangements. Among the facility types covered by the IFR are hospitals, ambulatory surgery centers, dialysis facilities, home health agencies and long-term care facilities.

    Federal Contractor Vaccination Executive Order

    In an effort to streamline implementation of the vaccination requirements, the Biden administration is also announcing that the deadline for previously issued federal contractor vaccination requirements will be extended to January 4, 2022, setting one deadline across the three different vaccination policies. The vaccine requirement for federal contractor compliance was previously set for December 8, 2021.

    Additionally, as mentioned above, federal contractor employers who may otherwise fall under the OSHA ETS covered employer definition will not be required to follow the rules established under the ETS and must continue compliance with the vaccination guidance and requirements set forth by the EO and Safer Federal Workforce Task Force for federal contractors.

    State and Local Preemption

    Early reports of the rules also state that both the OSHA ETS and CMS IFR make it clear that their requirements “preempt any inconsistent state or local laws, including laws that ban or limit an employer’s authority to require vaccination, masks or testing.” More information is likely to follow.

    Additional information is likely to arise as we learn more from the actual text of the ETS and IFR. CUPA-HR will keep members apprised of all new information.



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  • DHS Issues Request for Public Comment on Form I-9 Employment Verification – CUPA-HR

    DHS Issues Request for Public Comment on Form I-9 Employment Verification – CUPA-HR

    by CUPA-HR | October 27, 2021

    On October 26, 2021, the Department of Homeland Security (DHS) issued a Request for Public Input (RPI) “seeking comments from employers, employer organizations, employee groups, and other members of the public on document examination practices for Form I-9, Employment Eligibility Verification.” 

    The RPI is the agency’s next step in determining whether the remote document examination flexibilities that have been in place since the beginning of the COVID-19 pandemic should be continued on a permanent basis. Comments are due on or before December 27, 2021.

    Background

    On March 20, 2020, DHS announced employer flexibility guidance to defer the physical presence requirements associated with Form I-9 for 60 days. The guidance allows for remote inspection of Form I-9 documents in situations where employees work exclusively in a remote setting due to COVID-19-related precautions. For employees who physically report to work at a company location on any regular, consistent or predictable basis, employers are required to use standard I-9 procedures.

    The guidance has been extended continuously throughout the pandemic. Issued on August 31, the latest extension to the flexibility guidance was granted through December 31, 2021, following advocacy efforts from CUPA-HR and other stakeholders who expressed a dire need for DHS to maintain the flexibility in light of surging cases of the delta variant.

    Request for Public Input

    The RPI includes a list of questions grouped into two categories: “Experiences with Pandemic-Related Document Examination Flexibilities” and “Considerations for Future Remote Document Examination Procedures.” As DHS considers winding down the flexibility guidance, the RPI will provide the department with important feedback from employers who have conducted remote inspection and “inform and improve DHS policies and processes” regarding “alternative options to physical document examination that offer an equivalent or higher level of security for identity and employment eligibility verification purposes” moving forward.

    The flexibility guidance has been instrumental to institutions of higher education during the pandemic. As such, CUPA-HR intends to engage our members and submit robust comments in response to the RPI. ​Look for more details and your chance to contribute your feedback in the coming weeks.



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  • House Passes Bill to Increase Workplace Protections for Nursing Mothers – CUPA-HR

    House Passes Bill to Increase Workplace Protections for Nursing Mothers – CUPA-HR

    by CUPA-HR | October 26, 2021

    On October 22, 2021, the House of Representatives passed H.R.3110, the Providing Urgent Maternal Protections (PUMP) for Nursing Mothers Act. The bill passed by a bipartisan vote of 276-149 and was supported by business groups such as the U.S. Chamber of Commerce and advocacy organizations, including the American Civil Liberties Union.

    As originally written, the PUMP for Nursing Mothers Act amends the Fair Labor Standards Act (FLSA) to expand access to breastfeeding accommodations in the workplace for lactating employees. The bill builds upon existing protections in the 2010 Breaktime for Nursing Mothers Act by broadening breastfeeding accommodations and workplace protections to include salaried employees exempt from overtime pay requirements under the FLSA as well as other categories of employees currently exempt from such protections, such as teachers, nurses and farmworkers. It also clarifies that break time provided under this bill is considered compensable hours worked so long as the worker is not completely relieved of duty during such breaks, and it ensures remedies for nursing mothers for employer violations of the bill.

    Before the final vote on the bill, the House also adopted two additional amendments to the PUMP for Nursing Mothers Act that would:

    • Direct the Government Accountability Office (GAO) to conduct a study on compliance among covered employers, including employee awareness of their rights and proposals to improve compliance; and
    • Direct the Comptroller General of GAO to conduct a study on what is known about the racial disparities that exist with respect to access to pumping breastmilk in the workplace and submit to Congress a report on the results of such study containing such recommendations as the Comptroller General determines appropriate to address those disparities.

    The House-passed bill now moves to the Senate where it is unknown whether or not the bill will garner enough support from Republicans to bypass the sixty-vote filibuster threshold needed to pass.

    CUPA-HR will keep members apprised of any actions or votes taken by the Senate on this bill.



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  • White House Reviews OSHA’s COVID-19 Vaccination and Testing Emergency Temporary Standard – CUPA-HR

    White House Reviews OSHA’s COVID-19 Vaccination and Testing Emergency Temporary Standard – CUPA-HR

    by CUPA-HR | October 25, 2021

    On October 12, the U.S. Department of Labor Occupational Safety and Health Administration (OSHA) sent their COVID-19 Vaccination and Testing Emergency Temporary Standard Rulemaking (ETS) to the Office of Information and Regulatory Affairs (OIRA). OIRA is the White House office responsible for reviewing regulations and proposed regulations before they are publicly released.

    The ETS — which has not yet been made public — is expected to require private employers with 100 or more employees to “ensure their workforces are fully vaccinated or show a negative COVID-19 test twice a week” and provide paid time off for obtaining or recovering from the vaccination (additional details regarding what is known about the ETS can be found in this CUPA-HR blog).

    What is an ​Emergency Temporary Standard?

    While most federal agencies are required to provide public notice and seek comment prior to enacting new regulations, OSHA may bypass normal rulemaking and issue an ETS if doing so is necessary to protect workers from a “grave danger.” This allows OSHA to issue the ETS without any feedback from impacted stakeholders and require employers to immediately comply with the ETS upon its publication in the Federal Register.

    ​Office of Information and Regulatory Affairs Review

    OIRA is part of the executive office of the president and is required to review significant regulatory actions — those likely to have an annual effect on the economy of $100 million or more — before they are published in the Federal Register or otherwise issued to the public. As the ETS is determined to be “Economically Significant,” an OIRA review is triggered to ensure that it reflects the goals set forth in President Biden’s COVID-19 Plan and to ensure OSHA has carefully considered the benefits and costs of the ETS before it is issued.

    While draft documents under review are not available for public release, it is OIRA’s policy to meet with interested stakeholders to discuss issues on a rule under review. As of October 22, OIRA has convened 68 meetings with outside stakeholders on the ETS and has scheduled meetings through October 25. While CUPA-HR is aware many more additional pending meeting requests (including our own), OIRA has yet to schedule these, and may not. While OIRA review is limited to 90 days, there is no minimum period of review, and given the urgency associated with the ETS it could be issued as soon as this week.

    CUPA-HR will continue to monitor OIRA’s review process and be sure to inform our membership as soon as OIRA review concludes and OSHA issues the ETS.



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  • HR and the Courts – CUPA-HR

    HR and the Courts – CUPA-HR

    by CUPA-HR | October 20, 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.

    Several States Consider Legislation Aimed at Softening Federal Workplace Vaccine Mandates

    The Arkansas legislature recently passed legislation which would soften the federal employer workplace vaccine mandate. The legislation would allow workers in Arkansas to opt out of the mandate if they show a negative COVID-19 test weekly or present a positive antibody test twice a year. The legislation would bar employers from terminating employees who followed the testing protocol. Ohio and Texas are considering similar legislation. Montana enacted a statute that prohibits employer mandates of shots that are under emergency use authorization and have not cleared final approval.

    State laws which directly conflict with federal statutes are arguably preempted and unenforceable under the U.S. Constitution’s Supremacy Clause. Depending on how the state statute is worded there are gray areas which will be subject to litigation. For example, a state could argue that an employer may well be able to adhere to the state statute and the final Occupational Safety and Health Administration rule depending on how that final rule is written.

    NLRB General Counsel States That Political and Social Justice Advocacy in Black Lives Matter Demonstrations and Demonstrations Opposing Crackdowns on Undocumented Workers are Protected Concerted Activity Under the National Labor Relations Act 

    National Labor Relations Board (NLRB) general counsel stated in a webinar hosted by Cornell University on Wednesday, October 7, that Black Lives Matter protests and demonstrations against crackdowns on undocumented workers are protected under the National Labor Relations Act (NLRA) as protected concerted activity. The general counsel referred to the case the NLRB brought against Home Depot in Minneapolis because it disciplined workers who refused to cease displaying political messages on their aprons at work,  including an employee who was terminated for displaying a “BLM” slogan. The NLRB in that case also accused Home Depot of unlawfully threatening employees with unspecified consequences if they engaged in group activities regarding racial harassment.

    Home Depot has denied any violation of the NLRA and in a statement said it does not tolerate workplace harassment, takes these matters seriously, and is committed to diversity and respect. Home Depot takes the position it has every right to refuse to allow its employees to engage in conduct which will spark conflict and possibly confuse customers. It added it has a right to refrain from allowing its employees to engage in speech in this way while serving customers.

    NLRB General Counsel Asserts That College Athletes are Employees Under the NLRA and Should be Accorded the Right to Unionize and Collectively Bargain

    The top lawyer and general counsel for the National Labor Relations Board (NLRB), Jennifer Abruzzo, asserted in a public memo issued on September 27 that college athletes are employees and should be afforded the right to engage in protected concerted activities, including the right to unionize and collectively bargain. Abruzzo has the authority to bring a test case before the five-member NLRB who have exclusive jurisdiction to decide whether or not college athletes are employees and whether they have a right to unionize and participate in concerted activities protected under the National Labor Relations Act (NLRA). The NLRB does not have jurisdiction of public colleges and universities, only private colleges and universities. However, Abruzzo may attempt to assert jurisdiction over public college athletes under the theory that the National Collegiate Athletic Association (NCAA), which is private, is a joint employer of public college athletes and can negotiate certain minimum guarantees under a collective bargaining agreement. This is an untested legal theory.

    The issue has been under increasing debate, most recently as a result of a Supreme Court decision criticizing the stance of the NCAA in limiting student compensation of athletes on antitrust grounds in NCAA v. Alston. The Supreme Court did not address the issue of whether student athletes are employees under the NLRA. Adding to the controversy is that it is not unusual for a college football coach to earn in excess of $1 million per year.

    CUPA-HR will continue to monitor developments in this area.

    Several Colleges File an Appeal of a Federal Court Decision to Allow Student-Athletes to Proceed to Trial Over Whether They are Employees Under the Fair Labor Standards Act and Therefore are Due Minimum Wage and Overtime Payments

    A federal district court trial judge recently ruled that student-athletes are employees under the federal Fair Labor Standards Act and are therefore entitled to minimum wages and overtime payments. The judge used the same multi-factor approach used in cases where unpaid interns have been successfully sued and were entitled to pursue a claim of minimum wages and overtime payments (Johnson v. NCAA (E.D. Pa. No. 19-cv-19350, 9/29/21)).

    A group of institutions including Cornell, Fordham, Villanova, Layfette College and Sacred Heart University has asked the eastern district of Pennsylvania judge to allow an immediate appeal to the U.S. court of appeals for the third circuit. They want to ask the third circuit to decide: (1) Are student-athletes ever employees of the schools for which they compete?; and (2) If so, under what circumstances are student-athletes considered employees of their schools?

    CUPA-HR will continue to monitor developments in this case.



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  • NLRB General Counsel Releases Memo on Employee Status for Student Athletes – CUPA-HR

    NLRB General Counsel Releases Memo on Employee Status for Student Athletes – CUPA-HR

    by CUPA-HR | September 29, 2021

    On September 29, National Labor Relations Board (NLRB) General Counsel Jennifer Abruzzo released a memorandum stating her position that student athletes (or “Players at Academic Institutions,” as she refers to them in the memo) are employees under the National Labor Relations Act (NLRA) and are afforded all statutory protections as prescribed under the law. Abruzzo declares, “The broad language of Section 2(3) of the [NLRA], the policies underlying the NLRA, Board law, and the common law fully support the conclusion that certain Players at Academic Institutions are statutory employees, who have the right to act collectively to improve their terms and conditions of employment.”

    Abruzzo also states that misclassifying such individuals as non-employees and leading them to believe they are not afforded protections under the NLRA has a “chilling effect” on Section 7 activity. She said she would consider this misclassification an independent violation of Section 8(a)(1) of the NLRA. Abruzzo further stated that the intent of the memo is to “educate the public, especially Players at Academic Institutions, colleges and universities, athletic conferences, and the NCAA” about her position in future appropriate cases.

    The memo revives issues surrounding employment status of student athletes that the NLRB has previously ruled on. In March 2014, the NLRB’s Regional Director in Chicago ruled that Northwestern players receiving football scholarships are employees and have a right to organize under the NLRA. In August 2015, the NLRB released a unanimous decision dismissing the representation petition filed by a group of Northwestern football players seeking to unionize. In doing so, however, the board’s decision did not definitively resolve the issue of whether college athletes are employees and have a protected right to unionize under the NLRA. After considering arguments of both parties in the case and various amici, including CUPA-HR, the board declined to assert jurisdiction on the issue, stating that “asserting jurisdiction would not promote labor stability [because the] Board does not have jurisdiction over state-run colleges and universities, which constitute” the vast majority of the teams. The board noted, however, its “decision is narrowly focused to apply only to the players in this case and does not preclude reconsideration of this issue in the future.” Another issue in the Northwestern decision was the board’s lack of jurisdiction over “walk-on” players who do not receive scholarships. It remains to be seen how Abruzzo will overcome in future cases the two jurisdictional obstacles identified in Northwestern.

    CUPA-HR will keep members apprised of NLRB actions and cases that may prompt the agency to rule on the issue regarding student athlete employment status.



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  • IRS Issues Employer Guidance on COVID-19 Paid Leave Tax Credits – CUPA-HR

    IRS Issues Employer Guidance on COVID-19 Paid Leave Tax Credits – CUPA-HR

    by CUPA-HR | September 22, 2021

    On September 7, the U.S. Treasury Department and Internal Revenue Service (IRS) issued Notice 2021-53, which includes guidance to employers on reporting the amount of qualified sick and family leave wages paid to employees for leave taken in 2021 as provided by the Families First Coronavirus Response Act (FFCRA) and as amended by the Consolidated Appropriations Act of 2021 and the American Rescue Plan Act of 2021.

    The FFCRA required private sector employers with 500 or fewer employees to provide emergency paid family and medical leave and emergency paid sick leave to employees who could not work or telework due to certain COVID-19 complications. The FFCRA also established fully refundable tax credits that employers may receive after providing the emergency paid family and sick leave. The tax credits under the FFCRA were set to expire on December 31, 2020, but they were extended to cover wages voluntarily paid through March 31, 2021 under the Consolidated Appropriations Act of 2021 and again through September 30, 2021 under the American Rescue Plan Act of 2021. Employers were no longer required to provide the paid sick and family and medical leave wages to employees after the enactment of the Consolidated Appropriations Act, but employers that voluntarily provided paid leave that would have satisfied the paid family leave and paid sick leave requirements under the FFCRA were eligible for the same fully refundable tax credits.

    The new IRS notice states that employers will be required to report the amount of qualified sick and family leave wages paid to employees between January 1 and September 30, 2021 either on the Form W-2, Box 14, or in a separate statement provided with the Form W-2. The notice also includes model language to help employers communicate information about the qualified sick leave and family and medical leave wages to employees, as well as the impact these wages may have on tax credits the employee may be entitled to with respect to self-employment income.

    CUPA-HR will keep members apprised of any additional tax-related guidance from the IRS as it relates to COVID-19 policies and guidance.



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