Category: labor unions

  • Dartmouth Men’s Basketball Team Votes to Unionize – CUPA-HR

    Dartmouth Men’s Basketball Team Votes to Unionize – CUPA-HR

    by CUPA-HR | March 6, 2024

    On March 5, 2024, the Dartmouth College men’s basketball team voted 13-2 in favor of joining the Service Employees International Union. The election marks the first time in nearly a decade that student-athletes have been authorized to vote for union representation and may be the first case in which their election results in certified representation.

    Background

    On February 5, the National Labor Relations Board Regional Director Laura Sacks determined that players on the Dartmouth men’s basketball team are employees under the National Labor Relation Act and are thus eligible to unionize. The decision argues that the student-athletes are employees because Dartmouth has the “right to control the work performed by” the players on the team and players receive several benefits, including, but not limited to, lodging, meals, gear and training. Sacks’s decision ordered a secret-ballot election for representation, allowing all 15 players on the roster to determine whether or not to unionize.

    On February 29, Dartmouth filed a request to the NLRB to reconsider the decision made by the regional director and to place a stay on the election or impound the ballots during the reconsideration period. The NLRB rejected these requests to reconsider the decision and stay the election, allowing the election to move forward as scheduled.

    On March 5, before the 13-2 vote, Dartmouth appealed the regional director’s decision to recognize the student-athletes as employees. The appeal asked the NLRB to review and reverse the regional director’s decision and dismiss the petition, making the following arguments in favor of doing so:

    • The NLRB regional director inaccurately defined a student-athlete as an employee.
    • The NLRB regional director contradicted precedent set by a 2015 NLRB decision involving the Northwestern University men’s football team by asserting jurisdiction in this case.*
    • There will be several adverse and unintended consequences for institutions and players if student-athletes are found to be employees, including potential immigration and Title IX issues.

    Looking Ahead

    The SEIU has five days to respond to this appeal, after which the NLRB will consider both motions. The review by the NLRB, along with any further legal challenges that could go all the way to the U.S. Supreme Court, might significantly delay the union’s official recognition and the start of collective bargaining negotiations. These processes could take months or even longer to complete.

    Several lawsuits challenging NCAA policies are also ongoing, and other recent NLRB decisions and complaints further challenge the NCAA’s structure and question the classification of student-athletes as employees. Last month, a district court judge in Tennessee issued a preliminary injunction that bars the NCAA from enforcing its policy prohibiting incoming student-athletes from capitalizing on name, image, and likeness deals prior to enrolling at a college or university. Additionally, the NLRB has also issued a complaint against the University of Southern California, the PAC-12 Conference and the NCAA, alleging the three have misclassified USC’s football and men’s and women’s basketball players as student-athletes rather than employees and that they are joint employers of the athletes. The NLRB complaint is currently being challenged in court.

    The establishment of a student-athlete union is a divergence from the NCAA’s amateurism standards; for example, unionized players gain opportunities to negotiate compensation and working conditions related to practice hours and travel. With unionized players empowered to negotiate, the landscape of collegiate athletics may undergo a significant shift.

    CUPA-HR will keep members apprised of upcoming developments as it relates to this case.

    *In 2015, the NLRB declined to assert jurisdiction in a case involving the Northwestern University men’s football team. Prior to issuing the decision, the men’s football team had voted for representation, but the NLRB ultimately dismissed the petition filed by the union that planned to represent the unit. The NLRB held that, though Northwestern is a private institution, it is a part of the Big Ten Conference, which was comprised of all public schools except for Northwestern at the time.



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  • NLRB Higher Education Union Election Data for 2023 – CUPA-HR

    NLRB Higher Education Union Election Data for 2023 – CUPA-HR

    by CUPA-HR | March 5, 2024

    During calendar year 2023, union organizing continued to rise at institutions of higher education. Data from the National Labor Relations Board on union organizing show that 31.2% of all private-sector workers who successfully unionized in 2023 were employed by institutions of higher education. Public institutions also saw considerable union activity, though this is not reflected in NLRB data.*

    To provide an update regarding collective bargaining at private colleges and universities across the country, CUPA-HR’s government relations team has compiled the following NLRB data** from 2023 and early 2024 to summarize organizing activity.

    Organizing Efforts at Private Institutions in 2023

    • There were 132,303 workers in bargaining units that held elections in 2023. Of this total, 32,477 workers were from institutions of higher education.
    • There were 92,574 workers in total who joined certified bargaining units in the U.S. in 2023. Of this total, 28,859 workers were from institutions of higher education.

    Private Institution Union Drive Data in 2023

    • There were 55 union elections held at private institutions of higher education last year.
    • Of the 55 held, 48 union elections resulted in worker unionization. Again, this totaled 28,859 workers from private institutions of higher education.***
      • 20 elections included non-faculty, non-student workers with various positions.
      • 14 elections included graduate students with various positions (including two RA elections).
      • 13 elections included undergraduate students with various positions (including five RA elections).
      • Two elections included faculty.
      • Two elections included non-tenured faculty specifically.
      • Two elections included adjunct faculty.
      • Two elections included postdoctoral workers.
    • Three elections did not result in unionization. Four elections have been held at institutions, but they have not yet been closed. It is unclear why they are pending.

    Private Institution Election Data since January 1, 2024

    • So far this year, there have been eight union elections at institutions of higher education. Seven of the elections resulted in worker unionization, and one is still open for unknown reasons.
      • In the seven decided elections, 2,477 workers are included in the bargaining units.
      • In the one open case, 290 workers could be unionized.
    • Since January 1, 2024, there are seven pending petitions for unionization at institutions of higher education. In the seven pending petitions, 3,674 workers could be unionized depending on the result of the elections.

    CUPA-HR will continue to monitor this NLRB data and keep members apprised of future higher education union organizing trends.

    *The NLRB is a federal agency and only has jurisdiction over private employers, which includes private higher education institutions. Public institutions handle collective bargaining activity with their state and local labor relations agencies. CUPA-HR regularly tracks activity from the NLRB and is providing an overview of union activity at private institutions, but members at public institutions are encouraged to share union activity with the CUPA-HR government relations team as it occurs.

    **To compile the data, CUPA-HR searched for “Election Results” and “R Case Reports” that included the search terms “university,” “college,” and “school” during the calendar year 2023 and from January 1, 2024 to March 4, 2024.

    ***The grouped data below do not add up to 48 total elections because some units included multiple groups (i.e. undergraduate and graduate students, tenured and non-tenured faculty, etc.).

     



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

    HR and the Courts — January 2024 – CUPA-HR

    by CUPA-HR | January 10, 2024

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

    Medical School Surgeon Awarded $15 Million in Damages Resulting From Biased Harassment Investigation

    A federal trial court jury awarded a medical school surgeon $15 million in damages. The jury concluded that the Thomas Jefferson University Hospital medical school’s sex harassment investigation of the plaintiff, who was accused of harassment and sexually assaulting a female medical school resident, was biased against males (Abraham v. Thomas Jefferson University Hospital, et al (Case No. 2:20-cv-02967, E.D. Pa. 12/11/23)). The plaintiff claimed that prior to the incident, he had an “unblemished” reputation. He claimed that due to the medical school’s mishandling of the disciplinary proceeding, he had been labelled a “rapist,” had been ostracized by professional colleagues, and had suffered damages to his livelihood.

    The incident, subject to the lawsuit, involved a pool party at the plaintiff’s home in 2018. The plaintiff alleged that the medical resident became sexually aggressive toward him without his consent, and he was too intoxicated to resist. The plaintiff claims to have reported the incident to the hospital and found that the resident had filed a complaint against him, which resulted in the allegedly anti-male biased investigation and proceedings. Prior to the verdict, the medical school filed a motion for mistrial, alleging that the “belligerent” treatment of the court by the plaintiff’s counsel unduly influenced the jury. As of writing, there has been no action on the defendant’s motion.

    LSU Associate Athletic Director Claims Race and Sex Discrimination, Retaliation, and Hostile Work Environment in Lawsuit

    A federal district court judge granted partial summary judgement dismissing some charges brought against Louisiana State University by a terminated, former associate athletic director, but allowed some allegations of race and sex retaliatory discrimination and hostile work environment to move forward to a jury trial against the university’s board of supervisors (Lewis v. Board of Supervisors, Louisiana State University (2023 BL 437930, M.D. La., No. 3-21-cv-00198, Partial summary judgement, 12/1/23)).

    The university argued that the former associate athletic director was fired in a shake-up made by a new university football coach, which had nothing to do with the plaintiff’s race or sex. However, the new coach denied at deposition that he made the decision to fire the associate athletic director, creating a factual dispute that the court ruled should go to a jury. The federal judge concluded that the plaintiff’s allegations of a sexually hostile work environment should proceed to a jury trial as well as the allegations that she was denied a pay raise and ultimately fired because she is a Black woman.

    NCAA Proposes Plan to Allow Institutions to Pay Student-Athletes

    The NCAA proposed a plan in December 2023 to allow some institutions to invest at least $30,000 into an educational trust for at least half of their student-athletes to address the ongoing controversy over payments to student-athletes. Commentators point out that there will be many challenges to the new plan, including possibly running afoul of Title IX. Moreover, the plan will not make the pending Fair Labor Standards Act and National Labor Relations Act student-athlete claims go away.

    Commentators also point out that the proposal does not address the pending class action damage claim filed against the NCAA in the name, image and likeness (NIL) litigation, which is scheduled for trial in January 2025. Plaintiffs in that class action are claiming damages of $4.5 billion as a result of the NCAA’s past ban on NIL payments, which was overturned by the Supreme Court in NCAA v. Alston in August 2021 on anti-trust grounds.

    Federal Judge Rejects Religious Discrimination Claim Against Princeton

    A federal district court judge recently granted a motion to dismiss filed by Princeton University in a case brought by a former budget analyst who claims she was fired because of her religious beliefs when she refused to comply with COVID-19 protocols, including wearing a mask (McKinley . Princeton University (Case No. 3:22-cv-05069, D. N.J. 15/5/23)).

    The case was initially dismissed because the complaint did not mention any specific religion or set of beliefs. The court gave the plaintiff the opportunity to refile and correct that omission. The plaintiff’s amended complaint contained allegations that “my body is my temple” and “decries… any and all abuse against life.” In dismissing the case, the judge concluded that the plaintiff’s beliefs appear to be a collection of general moral commandments. The court found that the plaintiff’s personal moral code and beliefs do not constitute a comprehensive system of beliefs that could be called a religion.

    Appeals Court Reverses Dismissal of Former UMass Soccer Coach’s Age Discrimination Case

    A Massachusetts state appeals court reversed the dismissal of a former women’s soccer coach’s age discrimination complaint (Matz v. University of Massachusetts–Amherst (Mass App Ct No. 22-P-1162, 12/7/23)). The coach, who was 51 years old, filed the claim alleging that his termination was because the university wanted to hire a younger coach and that the stated reasons for his termination were a pretext.

    In dismissing the case, the university claimed the coach was terminated because of “an undisputed poor record” and “student criticism of his coaching abilities.” The appellate court recognized that the coach’s performance review concluded that he needed improvement and that there were student criticisms of his coaching abilities. Nonetheless, the appellate court held that the record contains “numerous positive reviews, inconsistent with the [2015 season] criticisms,” from which a jury could find he was terminated because of his age. The appellate court concluded that the plaintiff raised a claim by a member of a protected class, who was performing his job sufficiently, and his allegations could raise reasonable speculation about discrimination.

    California Jury Awards Nurse $41.5 million in Damages in Retaliatory Discharge, Whistleblower Case

    A neonatal intensive care nurse who was fired after 30 years of service to her employer was awarded a California jury verdict of $41.5 million in compensatory and punitive damages as a result of her discharge, which she claimed was in retaliation for raising safety issues. The California state court jury awarded the plaintiff $1.3 million in lost wages, $1.2 million in future lost wages, $1.5 million in past mental suffering, $7.5 million in future mental suffering, $15 million in punitive damages against the hospital, and $15 million in punitive damages against the Kaiser Foundation.

    According to the hospital, the plaintiff was fired after she was found reclining in the neonatal unit, talking on her personal phone with her feet resting on an isolette that had a neonatal infant inside. The plaintiff claimed that the stated reason for discharge was a pretext and that the real reason for her discharge was that she reported a supervisor who refused to report that the father of a patient was present in the hospital with a knife, creating an unsafe situation in the hospital (Gatchalian v. Kaiser Foundation Hospitals et. al. (Case No.  21STCV15300 Ca. Sup Ct. L.A. Cty. Jury Verdict 12/16/23)).



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

    HR and the Courts — December 2023 – CUPA-HR

    by CUPA-HR | December 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.

    University of California May Test Federal Ban on Hiring Undocumented Workers

    The University of California may be the first public institution to challenge whether the 1986 Immigration Reform and Control Act (IRCA) applies to state entities, including public colleges and universities. The IRCA prohibits U. S. employers from hiring undocumented workers.

    On November 20, 2023, the University of California postponed plans to go forward with a self-imposed deadline of November 30, 2023, to initiate a plan to hire undocumented workers. The university has decided to study the issue further before deciding on a specific course of action. The Supreme Court has dealt with the constitutionality of federal regulation of state employers on multiple occasions in the past, having come down on both sides of the issue. We will follow developments in this area as they unfold.

    Texas Community College Wins Suit Brought by Professor Who Commented on Race and COVID-19 Policies

    Collin College in Texas prevailed in partial summary judgement against a former professor who sued alleging First Amendment free speech retaliation in the non-renewal of his teaching contract. He claimed his contract was terminated because of his outspoken views as a private citizen on public issues including race relations in Dallas, Confederate monuments and his criticism of the college’s COVID-19 policies.

    The court granted part of the college’s motion to dismiss because the college’s policies were not facially unconstitutional. However, the federal court denied each side’s motions for summary judgement on the professor’s claims that the college’s policies were overboard in their restriction of his speech, holding that the issue should be reserved for decision until factual questions are resolved (Phillips v. Collin Community College District (E.D. Tex. No. 22-cv-00184, 11/4/23)).

    Law Professor Sues Northwestern University, Claiming Age Discrimination

    A 78-year-old law professor has sued his university employer claiming age-based salary discrimination. The professor, who is tenured and taught at the law school for 42 years, claims he has been consistently paid substantially less than “significantly younger, less experienced and less tenured” comparators (Postlewaite v. Northwestern University (N.D. Ill. No 1:23-cv-15729, Comp filed 11/7/23)).

    The professor claims to be “a preeminent scholar” in the field of tax law and started his law school’s lucrative Master of Laws in Taxation program, which he claims has been the school’s “highest ranked specialty department” for 17 of the last 19 years. The professor alleges that he has been awarded lower base-salary increases than his younger counterparts. He further alleges that for the academic year 2022-23, his salary was $7,000 less than the 50th percentile and $55,000 less than the 75th percentile, even though those percentiles equated to 20 and 32 years, respectively, of total teaching while he has completed 49 years of total legal academic teaching.

    The lawsuit was filed in federal court and alleges violation of the federal Age Discrimination in Employment Act and the Illinois Human Rights Act.

    Supreme Court Declines to Review Decision on UPS Driver’s Disability Accommodation

    The Supreme Court declined to review a 4th U.S. Circuit Court of Appeals case in which the 4th Circuit upheld the dismissal of a driver’s disability accommodation request. The driver requested that he be allowed to drive a smaller truck with softer suspension to accommodate his hip and back bursitis disability, which caused him severe pain (Hannah v. United Parcel Service (Case No. 23-264 US Sup Ct, cert den. 11/6/23)).

    The 4th Circuit decision, which the Supreme Court let stand, concluded that the employee’s request for an accommodation was not reasonable because the request altered the “essential elements” of the employee’s job. The court concluded that if the driver was given the accommodation to drive a smaller truck, he would not be able to complete the daily work load requirement of his existing driver position.

    Tesla Allowed to Ban Union Shirts

    The 5th U.S. Circuit Court of Appeals overturned an NLRB decision holding that Tesla violated the NLRA when it required its production employees to wear black Tesla-monogrammed uniform work shirts and did not allow production workers to wear black union-insignia work shirts. The decision of the three-judge panel was unanimous in overturning the NLRB ruling against Tesla (Tesla v. NLRB (5th Cir. No. 22-60493 11/14/23)).

    While Tesla had banned the wearing of union-insignia work shirts, it allowed production employees to wear Tesla-insignia work shirts with a union insignia pinned on the shirt. Tesla had argued unsuccessfully to the NLRB that its rule was necessary to prevent damage to cars and to help supervisors distinguish between production employees and other employees at the company’s California facility. The Court of Appeals decision allows Tesla to continue to enforce its prior policy requiring Tesla-insignia work shirts, with the employee’s option of pinning on a union insignia.

    Appeals Court Affirms Dismissal of Gymnastic Coach’s Wrongful Termination and Defamation Lawsuits

    A Pennsylvania state appellate court affirmed a trial court dismissal of a former Pennsylvania State University gymnastic coach’s lawsuit. The former coach alleged defamation and violation of his employment contract when the university terminated his contract after investigating allegations that he created a hostile environment for gymnasts. The three-judge appellate panel adopted the decision of the trial court judge, concluding that the university had good cause for firing the coach and that the athletic director’s statement about prior accusations against him had not been defamatory (Thompson v. Pennsylvania State University (Case no. 1460 MDA 2022, 11/28/23)).

    The appeals court ruled that the gymnastic coach’s high profile in collegiate sports made him a limited public figure and that the university’s reaction to allegations of mistreatment of athletes were matters of public concern. That meant that the plaintiff must show “actual malice” in order to prove defamation in these circumstances. The appellate court concluded that the university’s actions did not rise to the level of “actual malice.”



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  • HR and the Courts – CUPA-HR

    HR and the Courts – CUPA-HR

    by CUPA-HR | February 9, 2022

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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



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  • HR and the Courts – CUPA-HR

    HR and the Courts – CUPA-HR

    by CUPA-HR | September 21, 2021

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

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

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

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

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

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

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

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

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

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

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

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

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

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



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