Category: Higher Ed News

HR and the Courts — June 2023 – CUPA-HR

by CUPA-HR | June 7, 2023

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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June 7, 2023
Department of Education Delays Target Release of Title IX Rulemaking to October – CUPA-HR

by CUPA-HR | May 30, 2023

On May 26, the Department of Education published a blog post stating that the release of the anticipated Title IX final rule will be delayed until at least October 2023. The final rule was previously targeted in the Fall 2022 Regulatory Agenda for May 2023.

In the blog post, the department states that they need additional time to review the 240,000 comments they received in response to the Title IX proposed rule that was issued in July 2022. The department said that the 240,000 comments are nearly twice the number of comments the department received during the Trump administration’s Title IX rulemaking process, which included the release of a proposed rule in November 2018 and the subsequent final rule in May 2020. The department added that the new target date of October 2023 will be reflected in the upcoming Spring 2023 Regulatory Agenda, which will likely be released in the next month.

As a reminder, the Biden administration’s Title IX rulemaking rolls back the Trump administration’s 2020 regulations, specifically with respect to its grievance procedures, while simultaneously expanding protections against sex-based discrimination to cover sexual orientation, gender identity, and pregnancy or related conditions. CUPA-HR filed comments in September 2022 in response to the NPRM, in which we brought attention to the possible impact the proposed regulations could have on how higher education institutions address employment discrimination.

In addition to the Title IX rulemaking, the blog post also states that the final rule on transgender student eligibility in athletic programs under Title IX will also be delayed until at least October 2023. Released on April 6, the proposed rule establishes that schools that receive federal funding would not be permitted to adopt or apply a one-size-fits-all ban on transgender students participating on teams consistent with their gender identity and would instead allow schools the flexibility to develop team eligibility criteria that serves important educational objectives, such as fairness in competition and preventing sports-related injuries.

CUPA-HR will continue to monitor for updates on the Title IX final rule.

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May 30, 2023
Julie Su’s Confirmation for DOL Secretary Uncertain as Senator Manchin Seeks Alternative Nominees

In the latest development on Julie Su’s contentious nomination for secretary of the Department of Labor (DOL), Sen. Joe Manchin (D-WV) appears unlikely to vote in favor of Su when her nomination reaches a floor vote in the Senate. Recent news reported that Manchin may be seeking alternative candidates for the position, though no names have been publicly revealed at this time. Given the current 51-49 Democratic majority in the Senate, however, Manchin’s potential opposition means Democrats cannot afford to lose any additional support for the nomination.

The odds may be further stacked against Su as Sens. Krysten Sinema (I-AZ) and Jon Tester (D-MT) have yet to reveal whether they will support Su’s nomination. Although Manchin, Sinema and Tester all caucus with Democrats, they face reelection in 2024 in Republican-leaning states, leaving them in a precarious position as Republicans are seemingly united in opposing Su.

Nomination Hearing and Committee Vote

On April 19, the Senate Health, Education, Labor, and Pensions (HELP) Committee held a hearing on Su’s nomination to serve as secretary of labor. During the hearing, Republicans and Democrats discussed Su’s performance as the secretary of California’s Labor and Workforce Development Agency (LWDA), including her involvement in the agency’s handling of COVID-19-related unemployment insurance payments. Republicans on the committee pointed to the widespread COVID-19 unemployment insurance (UI) fraud paid out by the state. On the other side of the aisle, Democrats defended Su’s record. With regard to the UI fraud, Democrats held that California’s statistics were low in comparison to other states.

The hearing also focused on several key labor and employment issues that Su will work on as secretary of labor. On the topic of independent contractor classification, Republicans again focused on Su’s work at the LWDA, calling attention to her role in California’s Assembly Bill 5 law. The law establishes an ABC test, which is a three-pronged test used to classify workers as either employees or independent contractors. Republicans expressed concerns over whether Su would try to implement an ABC test through DOL regulations. In response, Democrats clarified that the ABC test is not included in the DOL’s new proposed rulemaking and that the DOL has previously stated that it lacks the legal authority to implement this test for classifying independent contractors.

Another issue area raised by Republicans was that of joint employment. Although her support for the joint employment standard was questioned, Ranking Member Bill Cassidy (R-LA) testified that Su has committed to not pursue changes to the joint employer standard if she is confirmed. Su said she understands the importance of the franchising model, stating that there is no plan currently on DOL’s fall or upcoming spring regulatory agenda to change the standard. Notably, she did not say whether there would be a rulemaking on the joint employer issue after the upcoming spring regulatory agenda.

A week after the hearing, the Senate HELP Committee voted to move Julie Su’s nomination to serve as secretary of labor out of committee and to a full Senate floor vote. The committee vote was divided along party lines, with 11 Democrats voting in favor and 10 Republicans voting against her nomination, foreshadowing the trouble she may face to be confirmed by the full Senate.

Next Steps

Given Manchin’s likely opposition and the narrowly divided Senate, Su’s confirmation as secretary of labor by the full Senate is still uncertain. If Sinema or Tester also commits to opposing Su, Su will likely not have the votes to be confirmed. As a result, Senate Majority Leader Chuck Schumer (D-NY) has yet to announce when the vote on Su’s nomination will hit the Senate floor.

In the meantime, Su will continue to serve as the acting secretary of labor in the absence of a person confirmed into that position. As a reminder, there are no limitations on the functions of an acting secretary, leaving Su with full authority over the DOL while her nomination is pending. That being said, anticipated rulemakings from DOL, such as the FLSA overtime rule and the independent contractor classification rule, may be held back from publication as a result of Su’s drawn-out nomination process.

CUPA-HR will keep members apprised of any major personnel or regulatory updates from DOL.

The post Julie Su’s Confirmation for DOL Secretary Uncertain as Senator Manchin Seeks Alternative Nominees appeared first on CUPA-HR.

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May 25, 2023
Congress and Federal Agencies Consider Paid-Leave Proposals and Protections for Pregnant and Nursing Workers – CUPA-HR

by CUPA-HR | May 24, 2023

Over the past year, lawmakers have taken an increased interest in establishing and expanding upon benefits and protections for paid leave and pregnant workers. As a result, Congress passed two bills granting workplace protections to pregnant and nursing mothers at the end of 2022, while considering new federal proposals for paid family and medical leave. This post details some of the recent actions taken by lawmakers toward a federal paid-leave policy, as well as updates from federal agencies on the enforcement of the Pregnant Workers Fairness Act (PWFA) and the Providing Urgent Maternal Protections (PUMP) for Nursing Mothers Act.

Bipartisan Working Group on Paid Leave

In April, a group of bipartisan lawmakers in the House of Representatives established the Bipartisan Paid Family Leave Working Group, the goal of which “is to create a bipartisan paid family leave policy that supports American families and businesses.” The group consists of three Republicans — Reps. Stephanie Bice (R-OK), Julia Letlow (R-LA) and Mariannette Miller-Meeks (R-IA) — and three Democrats — Reps. Chrissy Houlahan (D-PA), Colin Allred (D-TX) and Haley Stevens (D-MI).

In a letter establishing the working group, the lawmakers expressed their intention to explore both state and federal policies that already exist with the goal of creating an established paid-leave policy. The letter discusses both the successes and areas to improve of the Family and Medical Leave Act, and it states that there is a bipartisan consensus that paid leave is an issue that needs to become law.

FAMILY Act

On May 17, Sen. Kirsten Gillibrand (D-NY) and Rep. Rosa DeLauro (D-CT) reintroduced the FAMILY Act, which would grant up to 12 weeks of paid leave for employees at companies of all sizes through funds collected by payroll taxes paid by both employees and employers. The FAMILY Act was first introduced in 2013, but the most recent bill expands upon previous text by creating a progressive scale for wage replacement during the time off. Under the bill, the lowest paid workers would be eligible to receive up to 85 percent of their wages during their time off, while the average full-time worker would receive approximately two-thirds of their wages. Additionally, the bill extends coverage to include time off taken to address personal incidents with domestic violence, stalking and/or sexual assault.

While most Democrats have championed the FAMILY Act as their preferred proposal for paid leave, the bill is unlikely to gain Republican support and will therefore not pass the House during this Congress. Republicans have previously opposed the bill, arguing against the proposed tax increases as well as potential burdens employers may face as a result of a paid-leave mandate. Instead, Republicans who have shown interest in advancing paid-leave policies have considered programs allowing individuals to borrow from their Social Security funds, incentivizing the creation of a private insurance system for leave pay, and providing tax credits to pay for time off.

PUMP for Nursing Mothers Act

On May 18, the Department of Labor Wage and Hour Division (WHD) issued a Field Assistance Bulletin (FAB) with enforcement information and public guidance for the PUMP for Nursing Mothers Act. The law went into effect on April 28, after being included in the Consolidated Appropriations Act of 2023 year-end legislation to fund the federal government.

As a reminder, 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 and builds on existing protections in the 2010 Break Time for Nursing Mothers Provision by broadening breastfeeding accommodations and workplace protections. Specifically, the bill ensures reasonable time and space for working individuals to pump in their workplaces as well as remedies for employer violations of the act.

The FAB provides details on the requirements for reasonable space and break time, compensation, and employer posting of FLSA requirements as provided under the PUMP for Nursing Mothers Act. Employers and field staff alike may use the FAB document as a resource to understand compliance with the act as enforced by WHD.

Pregnant Workers Fairness Act

Alongside the PUMP for Nursing Mothers Act, the PWFA was also signed into law under the Consolidated Appropriations Act of 2023. The effective date of the PWFA is June 27, and the Equal Employment Opportunity Commission (EEOC) was expected to issue proposed regulations on how best to govern and enforce the PWFA by then.

As of May, however, the EEOC has yet to release any proposed regulations, and it seems likely that the agency will not be able to issue a proposed rule by the June 27 date. The commission currently has two Democratic and two Republican commissioners, and given the need for a majority of commissioners to vote to advance a rulemaking, the agency is unable to move proposed rules forward because commissioners are split along party lines. Through the legislation, Congress has allowed the EEOC through the end of 2023 to finalize a rulemaking on the PWFA, which may or may not be achieved, depending on whether the Senate is able to confirm Kalpana Kotagal as the third Democratic appointee on the commission. In lieu of the proposed rulemaking, the EEOC has issued guidance on the law through an FAQ webpage addressing the protections granted under the law, which stakeholders may use as they wait for the official regulations.

CUPA-HR continues to monitor any developments related to these proposals and laws and will keep members apprised of any policy updates related to paid leave and protections for pregnant and nursing workers.

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May 24, 2023
Award-Winning Work in Higher Ed HR – 2023 Regional Awards – CUPA-HR
by CUPA-HR | May 23, 2023

From developing supervisor competencies to transforming HR operations, human resources teams and HR practitioners across the country are doing great work every day.

CUPA-HR’s regional Higher Education HR Awards program recognizes some of the best and brightest in higher ed HR and honors HR professionals who have given their time and talents to the association.

Here are this year’s regional award recipients:

HR Excellence Award

This award honors transformative HR work in higher education and recognizes a team that has provided HR leadership resulting in significant and ongoing organizational change within its institution.

Office of Human Resources, Towson University (Eastern Region)

Towson University has had a partnership with Humanim, a nonprofit community workforce-development program, for many years. However, the pandemic created challenges that threatened to derail the partnership and the program. TU’s office of human resources, along with other anchor institutions, worked with Humanim to move parts of the program online, including virtual mock interviews, information sessions and panel discussions. Despite turnover created by the pandemic, the TU HR team was determined to maintain its relationship with Humanim and continue to provide employment opportunities to Baltimore residents. As TU’s top provider of quality temporary candidates for the university’s administrative functions, Humanim was also essential to the university during pandemic. For their outstanding work, CUPA-HR has contributed $1,000 to Towson University.

Human Resources, Grand Valley State University (Midwest Region)

In February 2022, Grand Valley State University’s HR team began implementing a total transformation of their operations, shifting from a 60-year-old compliance-driven approach to HR to an HR business partner approach. This change resulted in the creation of a “one-stop shop,” where HR services could be delivered more efficiently and consistently across all campus departments. The team also moved to improve efficiency by merging payroll, HR administration and technology, and benefits into a total rewards unit. And in the fall of 2022, HR established a formal talent management unit to organize and advance talent efforts. With these changes, HR is well positioned to unify and transform the university’s organizational culture. For their outstanding work, CUPA-HR has contributed $1,000 to Grand Valley State University.

Culture Team, Utah Valley University (Western Region)

Recognizing a need for a better leadership experience for supervisors on their campus, Utah Valley University’s culture team set out to create a set of standardized leadership competencies that would help ensure that they were hiring the right people, communicating clear expectations during onboarding, providing leadership resources through training, and allowing supervisors to receive feedback. The Leadership Competency Experience, based on six leadership competencies and the university’s core values, established a standardized method of hiring, onboarding, training and feedback processing intended to cultivate effective leadership at all levels. Two years in, the program has made a significant impact on the quality of supervisors being hired and the training and support they receive, and the number of employee relations cases and volume of turnover due to bad supervision have decreased sharply. In fact, it has been so successful that in July 2022 the team released the Staff Competency Experience. For this impressive achievement, CUPA-HR has contributed $1,000 to Utah Valley University.

Higher Ed HR Rock Star Award

This award recognizes an individual who is serving in the first five years of a higher education HR career who has already made a significant impact.

Miranda Arjona, Rollins College (Southern Region)

From day one, Miranda Arjona, assistant director of human resources at Rollins College, has impressed colleagues with her positive outlook, creativity, willingness to learn and helpful attitude. Whether she’s building relationships within the HR team or leading a service excellence subcommittee, Miranda is focused on strengthening connections and making a difference. When she was asked to temporarily assist in student affairs to help manage contact tracing and consulting during the pandemic, she did so with her typical positivity and commitment to the task. Just as seamlessly, she transitioned back to her talent management role with the same mindset and tenacity. Her commitment to being a relationship-builder has not only served Rollins but also the higher ed HR community. She has been a speaker at two local HR events, and she is currently serving as president-elect of the CUPA-HR Florida Chapter.

Lyndon Huling, University of California-Davis (Western Region)

Lyndon Huling, manager of leadership recruitment, temporary staffing and diversity services at UC Davis, routinely taps his broad intergenerational and cross-cultural campus connections in his work, making him an exceptionally effective leader. His commitment to reimagining HR and recruitment best practices through a DEI lens shows in the strategies he’s developed and the innovative programs he’s been instrumental in establishing. Among other projects, he has co-sponsored and delivered transformative Race Matters workshops that create a safe space to learn and discuss race at work, which he has shared through presentations at regional and national CUPA-HR conferences. Through his work to create and share resources, Lyndon has demonstrated himself to be a passionate, progressive leader in higher ed HR.

Chapter Excellence Awards

These regional awards recognize chapters that are making a significant impact through their commitment to CUPA-HR and to the higher ed HR community. They work to achieve this through financial responsibility, commitment to CUPA-HR chapter guiding principles, cultivation of strong leadership, and development of creative networking and professional development opportunities.

This year’s Chapter Excellence regional recipients are:
- The CUPA-HR Michigan Chapter (Midwest Region)
- The CUPA-HR Kentucky Chapter (Southern Region)
- The CUPA-HR Northern and Central California Chapter (Western Region)
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May 23, 2023
ICE Gives Employers Until August 30 for In-Person Form I-9 Verification After COVID Flexibilities Expire – CUPA-HR

by CUPA-HR | May 10, 2023

On May 4, 2023, U.S. Immigration and Customs Enforcement (ICE) announced it will provide employers with 30 days to reach compliance with Form I-9 requirements after the COVID-19 flexibilities sunset on July 31, 2023. Employers will now have until August 30, 2023, to complete all required physical inspections of identity and employment-eligibility documents. This extension aims to ease the transition for employers who have been using the temporary flexibilities throughout the pandemic.

Background

In March 2020, ICE introduced the temporary flexibilities in response to the COVID-19 pandemic, allowing employers to review employees’ identity and employment authorization documents remotely, rather than in person. This virtual inspection was to be followed by a physical examination within three business days after normal operations resumed. The flexibilities were extended several times, with the most recent extension set to expire on July 31, 2023.

During the pandemic, employers with employees taking physical-proximity precautions were allowed to temporarily defer physical examination of employees’ identity and employment authorization documents. Remote examination methods, such as video link, fax or email, were permitted, with “COVID-19” entered as the reason for the physical-examination delay in the Section 2 Additional Information field on the Form I-9. Once the employees’ documents were physically examined, employers would add “documents physically examined” with the date of examination to Section 2 or Section 3 of the Form I-9, as appropriate.

The recent announcement clarifies that employers have until August 30, 2023, to perform all required physical examinations of identity and employment-eligibility documents for individuals hired on or after March 20, 2020, who have received only a virtual or remote examination under the flexibilities.

What’s Next

On August 18, 2022, ICE issued a proposed rule to allow alternative procedures for examining identity and employment-eligibility documents. CUPA-HR submitted comments to ICE encouraging it to move forward expediently and ensure that a remote review process remains available for all employers. The public comment period closed on October 17, 2022, and DHS is currently reviewing the comments. While the Fall 2022 Regulatory Agenda had forecast a final rule to be issued in May 2023, ICE’s announcement indicates a final rule will be issued later this year.

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May 10, 2023
HR and the Courts — May 2023 – CUPA-HR

by CUPA-HR | May 10, 2023

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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May 10, 2023
WHD Begins Enforcement of Remedies Provided Under PUMP for Nursing Mothers Act – CUPA-HR

by CUPA-HR | May 1, 2023

On April 28, the Department of Labor’s Wage and Hour Division (WHD) will begin enforcing remedies for employer violations of an employee’s right to reasonable break time and space to pump breast milk under the Fair Labor Standards Act (FLSA). These remedies were codified into law under the Providing Urgent Maternal Protections (PUMP) for Nursing Mothers Act, which was included in the Consolidated Appropriations Act of 2023 — year-end legislation to fund the federal government.

As a reminder, the PUMP for Nursing Mothers Act amends the FLSA to expand access to breastfeeding accommodations in the workplace for lactating employees and builds on existing protections in the 2010 Break Time for Nursing Mothers Provision by broadening breastfeeding accommodations and workplace protections. In the new law, protections are expanded 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.

According to a WHD fact sheet on FLSA protections to pump breast milk at work, there will be several legal or equitable remedies employers will be liable for if they are found to have violated an employee’s right to reasonable time and space to pump in the workplace. The document states that remedies may include “employment, reinstatement, promotion, and the payment of wages lost and an additional equal amount as liquidated damages, compensatory damages and make-whole relief, such as economic losses that resulted from violations, and punitive damages where appropriate.” The fact sheet also clarifies that the remedies listed above will be available regardless of whether an employee experienced retaliation.

In addition to the fact sheet, the WHD has issued several resources on the PUMP for Nursing Mothers Act’s provisions since its enactment. On February 9, the WHD issued Field Assistance Bulletin No. 2023-1, “Telework Under the Fair Labor Standards Act and Family and Medical Leave Act.” This bulletin provides guidance for WHD field staff on how to apply protections under the FLSA that provide reasonable break time for nursing employees to express milk while teleworking, among other clarifications. The bulletin explicitly refers to the passage of the PUMP for Nursing Mothers Act and its expanded coverage to more employees. Additionally, on March 16, the WHD held a webinar to provide resources and tools to assist employees who wish to continue breastfeeding after returning to work and to help employers understand their responsibilities under the Act.

For more information on the PUMP for Nursing Mothers Act and FLSA protections to pump at work, the WHD has provided a resource website with general guidance, additional resources and the webinar on the PUMP for Nursing Mothers Act. CUPA-HR will keep members apprised of any updates to this law and others regarding FLSA protections for pregnant and nursing workers.

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May 1, 2023
Managing a Multi-State Workforce: Key Findings From the CUPA-HR Survey and a Public University’s Hybrid Approach – CUPA-HR
by CUPA-HR | April 19, 2023

As higher ed institutions face pressure to fill open positions and offer more flexible work opportunities, many are responding by recruiting and hiring employees who live and work in a state different from where their institution’s primary campus is located. CUPA-HR’s Multi-State Workforce Survey was developed to better understand institutions’ policies, practices and challenges related to out-of-state workers.

Notable findings:

89% of responding institutions employ out-of-state workers.

The most common types of out-of-state workers are adjunct/part-time faculty and salaried/exempt staff.

On median, institutions employ out-of-state workers from 8 states.

Most institutions have restricted policies for both recruiting and hiring out-of-state workers.

Of the one third of institutions who avoid hiring from certain states, the most common states institutions avoid hiring from were California, New York, Washington and Colorado.

Many institutions provide salary ranges on job postings, but most do not adjust salaries based on location.

Despite the challenges of a multi-state workforce, excluding out-of-state workers can decrease the quality of the candidate pool and may cause institutions to miss out on top talent. Institutions pursuing, or considering pursuing, out-of-state workers may want to look at Clemson University’s hybrid approach to managing a multi-state workforce.

Charged by senior leadership to explore options for out-of-state employment, Clemson University’s HR team, led by Chief Human Resources Officer Ale Kennedy, convened a cross-campus workgroup that reached out to several schools about their out-of-state work approaches. After reviewing the data, the workgroup recommended that in-house HR manage the green or “easy” states and outsource the more challenging states in order to minimize risk. To learn more about Clemson’s approach — and the full findings from the Multi-State Workforce Survey — be sure to watch CUPA-HR’s recent webinar “The State of the Multi-State Workforce: Employment Practices and Challenges.”

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April 19, 2023
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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April 12, 2023