Category: graduate student unions

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

    HR and the Courts — September 2023 – CUPA-HR

    by CUPA-HR | September 13, 2023

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

    Union Reps Can Join OSHA Inspectors Under Newly Revised Regulations

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

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



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

    HR and the Courts — April 2023 – CUPA-HR

    by CUPA-HR | April 12, 2023

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

    NLRB Rules Graduate Student Fellows With No Teaching or Research Assistant Responsibilities Are Not University Employees and Cannot Unionize 

    A National Labor Relations Board (NLRB) regional director in Boston recently issued a decision that approximately 1,500 graduate student fellows at Massachusetts Institute of Technology who receive a grant but do not have any teaching or research assistant responsibilities are not employees, cannot unionize, or join the university’s existing union of approximately 3,700 graduate teaching and research assistants (Massachusetts Institute of Technology (N.L.R.B. Regional Dir. No. 01-RC-304042, 3/13/23)).

    The existing union of graduate teaching and research assistants is organized by the United Electrical, Radio and Machine Workers of America. According to the decision, those graduate teaching and research assistants who receive an annual compensation package of approximately $120,000, including a tuition subsidy, stipend and medical insurance are university employees. Also according to the decision, the fellows who have no teaching or research responsibilities and typically work on their own thesis projects with some funding from the university are not university employees. The decision holding that the fellows are not employees is tied to a provision in the Columbia University decision, which held that students who have “unfettered ability” to pursue their own goals would not be considered employees because their compensation would be similar to a scholarship.

    Union Complaint Dismissed After Employer’s Attempt to Increase a Unionized Employee’s Work Production Ruled Permissible On-the-Job Coaching

    An NLRB administrative law judge recently dismissed a union claim that an employer committed an unfair labor practice by unilaterally changing working conditions when it suggested that a unionized staff reporter increase his output of written articles. The judge concluded that when the newspaper editors suggested that the reporter strive to write 15 articles every 30 days, that this action was a permissible attempt to coach, develop and improve the quality and production of the reporter’s work (The NewsGuild-CWA v. The Morning Call LLC (NLRB ALJ No. 04-CA-292410, 3/9/23)).

    The newspaper editors began meeting with the reporter every two weeks when they noticed he was lagging behind the paper’s standard article production goal of five articles per week. The judge noted that the editors did not threaten the reporter with penalties if he did not meet the goals. More importantly, the judge concluded that the goals were not a change in working conditions because they were less that the goals given to the rest of newsroom staff. The case clearly enforces an employer’s prerogative to meet with a unionized employee and suggest ways to improve job performance consistent with applicable workplace standards.

    EEOC Reports a 20 Percent Increase In Discrimination Charges and a Substantial Increase in Monetary Benefits Garnered for Victims of Discrimination in Fiscal Year 2022 

    The Equal Employment Opportunity Commission (EEOC) reported a 20 percent increase in the number of discrimination charges it received during fiscal year (FY) 2022 “as the nation emerged from the pandemic.” The charges filed against employers increased from 61,331 charges received in FY 2021 to 73,485 new charges received in FY 2022. The EEOC’s announcement came as the Biden administration proposed an increase in EEOC funding for the new fiscal year.

    The EEOC also announced that it increased the amount of monetary benefits it obtained for victims of discrimination in FY 2022. The agency reported that it obtained $513 million in benefits for victims of discrimination in FY 2022, up from $484 million in benefits obtained for discrimination victims in FY 2021.

    OSHA Reports a 20 Percent Increase in Inspectors Under the Biden Administration

    The number of federal workplace safety inspectors has increased by 20 percent during the Biden administration. The federal safety agency hired 227 inspectors during 2022, bringing its total inspectors to 900. Across all Occupational Safety and Health Administration (OSHA) staff positions, the agency has grown from 1,800 staff members to 2,100 members (17 percent). This enhances OSHA’s ability to perform more workplace safety inspections and investigate more pending employee workplace safety complaints. Another result of this significant increase in inspectors is that one in five inspectors now has less than one year of on-the-job experience.

    OSHA has faced criticism that it has not adequately responded to worker complaints, and the Department of Labor’s inspector general recently issued a negative report. The inspector general concluded that the agency in recent years (both 2019 and 2020) “… did not consistently ensure that complaints and referrals were adequately addressed, nor did it regularly enforce hazard abatement timelines.”

    Court of Appeals Skeptical of Employees’ “Fundamental Right” to Refuse State-Imposed Hospital Employer’s COVID-19 Vaccine Mandate 

    In a case involving a group of nurses who refused their hospital employer’s COVID-19 booster requirement for a number of personal, non-religious and non-disability-related reasons, the U.S. Court of Appeals for the 3rd Circuit (covering Pennsylvania, New Jersey and Delaware) appeared skeptical at oral argument (Sczesny et al v. The State of New Jersey, Governor Philip Murphy (3rd Cir. Case no. 22-2230, Arg 3/21/23)). The hospital enforced a state-mandated requirement in New Jersey. The attorney for the nurses argued that they had a “fundamental right” to refuse the vaccine boosters. The Court of Appeals panel noted that a number of courts that have ruled on this issue found no “fundamental right.”

    NLRB Issues Warning That Severance Agreements With “Overly Broad” Confidentiality/Gag Provisions Relating to Non-Disparagement Are Illegal Under Recent NLRB Case Law 

    NLRB general counsel issued guidance on March 23, 2023, that previously negotiated severance agreements with overly broad confidentiality/gag orders relating to non-disparagement of employers are illegal under the March decision of McClaren Macomb. The NLRB considers employer enforcement of such provisions to be a violation of the NLRA.

    The NLRB general counsel suggested that in designing new confidentiality agreements, employers should target “dissemination of trade secrets” based on “legitimate business justifications.” Additionally, agreements should be narrowly drafted to prohibit “maliciously untrue statements.”



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  • HR and the Courts – CUPA-HR

    HR and the Courts – CUPA-HR

    by CUPA-HR | December 15, 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 Contractor Vaccine Mandate Blocked Nationwide By Georgia Federal Court, Georgia Universities Testified in Favor of the Injunction

    A federal district court judge in Georgia issued a nationwide injunction blocking the Biden administration’s vaccine mandate applicable to all federal contractors (Georgia v. Biden (S.D. Ga., No. 21-cv-00163, 12/7/21)). The mandate was scheduled to go into effective January 4, 2022 and had been the subject of several lawsuits in multiple states attempting to block the mandate.

    Georgia was joined by seven states in the litigation. Representatives from Georgia universities testified at the injunction hearing that the mandate would be expensive, onerous and cost them valuable employees who have not yet presented proof of vaccination. The judge ruled that blocking the mandate was not because the vaccine would not be effective in reducing the spread of COVID-19, but rather that President Biden did not have the power to issue such an Executive Order. The judge rued that the mandate went beyond the President’s power to issue orders “addressing administrative and management issues in order to promote efficiency and economy in procurement and contracting.”

    College Employee’s Discussion With Coworkers About Institutional Racism Is Basis For Discriminatory Discharge and Retaliation Claims

    A federal district court judge recently ruled that a discriminatory discharge and retaliation case, based on the plaintiff’s allegations that he was terminated because he facilitated a discussion of institutional racism among coworkers, states a claim of unlawful discrimination based on race. Prior to discharge, the plaintiff was in charge of the college’s program assisting high school students in danger of dropping out (Debro v. Contra Costa Community College (2021 BL 456753, N.D. Cal. No. 3:20-cv-08876, 11/30/21)).

    The plaintiff was given permission in advance to facilitate a discussion of institutional racism among coworkers. Following the discussion, two white subordinates filed race discrimination claims alleging that the plaintiff made them uncomfortable expressing their own views on institutional racism. The plaintiff was subsequently fired by the college after it was concluded that he violated the college’s rules against harassment based on race as he made others uncomfortable expressing their views on institutional racism.

    The federal district court judge concluded that the plaintiff’s complaint adequately stated claims of race discrimination in violation of both federal and state law and will move forward to discovery and trial.

    Labor Advocacy Group Files Complaint With NLRB Alleging That the NCAA Has Misclassified College and University Sports Players as Student-Athletes as Opposed to Employees

    A new advocacy group, the College Basketball Players Association, has filed a complaint with the Indianapolis office of the National Labor Relations Board (NLRB) alleging that the NCAA is violating federal labor law by misclassifying college sports players as student-athletes as opposed to employees. In 2015, the NLRB rejected an attempt by Northwestern University football players to form a union concluding that it would not advance the purposes of U.S. labor law. However, more recently the new NLRB general counsel publicly stated that in her view at least some college athletes are employees. This case could be the vehicle the general counsel may use to bring this issue before the NLRB for review. CUPA-HR will watch this case as it progresses and report on future developments.

    Union Collective Bargaining Between Graduate and Undergraduate Student Teachers and Researchers Continues at Some Private Institutions

    Harvard University and the United Auto Workers (UAW) union announced an agreement on a new four-year collective bargaining agreement in mid-November just hours before a planned strike by a student employee bargaining unit at the university. The Harvard Graduate Students Union is represented by the UAW and consists of a bargaining unit of 4,500 graduate and undergraduate students who work as teachers and researchers. Details of the new four-year contract were not immediately disclosed or available.

    56-Year-Old Baseball Coaching Applicant Loses Age Discrimination Lawsuit Against University Where 31-Year-Old Applicant Was Chosen

    The Seventh Circuit U.S. Court of Appeals (covering Illinois, Wisconsin and Indiana) affirmed a summary judgement decision by the trial court in favor of Indiana University South Bend, rejecting the age discrimination lawsuit filed by a 56-year-old applicant because the university hired a 31-year-old applicant. The court concluded that there was no evidence that the plaintiff was discriminated against because of his age (Reinebold v. Bruce (2021 BL 442817, 7th Cir., No. 21-1092, 11/18/21)).

    There were 94 applicants for the position of head baseball coach. The university chose 10 applicants for telephone interviews, including the plaintiff. The plaintiff was not among the four chosen from the telephone interviews for a final in-person interview. While the plaintiff had a better career win/loss percentage that the 31-year-old applicant chosen as the new head coach, all four of the telephone interviewers concluded that plaintiff’s presentation was not good, including one interviewer who concluded that the plaintiff’s interview was “One of the worst interviews he had ever experienced.”

    The court concluded that one of the interviewer’s remarks to his barber that “We chose the younger applicant” was a stray remark and did not provide evidence of age discrimination.

    EEOC Loses Attempt to Invalidate Employer’s Negotiation Defense to an Equal Pay Act Claim Brought By a School District Superintendent Who Was Paid Less Than Her Male Predecessor 

    The EEOC recently filed a case on behalf of a school district superintendent under the Equal Pay Act alleging that the school district violated the law by paying the new female superintendent less than it paid her male predecessor.

    The school district defended, alleging that the female superintendent failed to negotiate a higher salary. The EEOC argued that failure to negotiate a higher salary is not a valid defense to an Equal Pay Act claim. The school district countered that the Supreme Court has never ruled that failure to negotiate a higher salary is not a factor other than sex, and other courts have held that that is a valid factor other than sex in these circumstances. The federal district court judge hearing the case sided with the school district holding that, for now, and subject to further consideration, the EEOC failed to show that the defense could not be raised (EEOC v. Hunter–Tannersville Central School District (2021 Bl 460087, N.D.N.Y. No. 1:21-cv-00352, 12/2/21)). The judge concluded whether or not the defense is valid is a decision for the U.S. Court of Appeals.



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