Category: name image and likeness

  • HR and the Courts — October 2024

    HR and the Courts — October 2024

    by CUPA-HR | October 15, 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.

    NCAA & Power Conferences Receive Preliminary Approval of Name, Image and Likeness and Anti-Trust Settlement — Ivies Win Dismissal of Anti-Trust Lawsuit

    A federal district court judge has given preliminary approval to the NCAA and Power Conferences’ revised $2.8 billion settlement proposal to be paid to college athletes over 10 years. The judge set a fairness hearing for April 2025, with all objections to be filed by January 31, 2025. The federal judge in the Northern District of California concluded that the revised settlement was “fair, reasonable and adequate” (In Re College Athlete NIL Litigation (N.D. Ca. No. 4:20-cv-03919, 10/7/24)).

    Commentators immediately voiced concerns that the settlement addresses a small group of male athletes in specific sports to the disadvantage of female athletes. In addition, a number of Division I athletes may express objection on the grounds that the settlement continues to give the NCAA too much control over the free market compensation for student-athletes.

    Separately, the eight Ivy League institutions won a dismissal of a federal lawsuit that claimed their ban on athletic scholarships violated anti-trust laws. The federal district court judge assigned to the case granted the Ivy League’s motion for summary judgement, holding that the plaintiffs failed to allege any properly defined market and therefore failed to allege market wide anti-competitive effects (Choh v. Brown University, et. al. (D. Conn. No. 3:23-cv-00305, 10/10/24)).

    University of Louisville School of Medicine Loses First Amendment Retaliation Claim Brought by Terminated Professor

    A former professor at the University of Louisville School of Medicine will receive a trial over his First Amendment retaliation claims regarding statements he made about gender dysphoria to a conservative think tank. Following comments he made during an event sponsored by the Heritage Foundation, the former medical school professor was demoted and his annual contract was not renewed. The professor expressed the view that gender dysphoria in children “is a sociocultural, psychological phenomenon that cannot be fully addressed with drugs and surgery.”

    The 6th U.S. Circuit Court of Appeals ruled unanimously that the university officials who terminated Allan M. Josephson should have known that he was engaged in protected speech, and that terminating him would violate his First Amendment rights. Moreover, the court ruled that the professor’s outside speech was not part of his professorial duties, and therefore subject to his First Amendment claims. The court concluded that a trial is necessary, as there are facts in dispute regarding the rationale for the actions taken against the professor (Josephson v. Ganzel (6th Cir., No. 23-05293, 9/10/24)).

    Tenured Professor Loses Defamation Case Against Harvard

    A federal district court judge partially dismissed a noted behavioral scientist’s $25 million defamation and breach-of-contract lawsuit against Harvard University. Professor Francesca Gino was placed on administrative leave following claims of data fraud in her research. Gino claimed that the university’s notice on her faculty page that she had been placed on administrative leave after conducting an investigation of her research was libelous because the university acted with ill will.

    The court concluded that the professor was a “public figure” and therefore faces a higher standard for proving defamation. A public figure in these circumstances can only prove defamation if the alleged defamer had knowledge that their statement was untrue or acted with reckless disregard for the truth. Moreover, the court concluded that the issue of “research integrity and potential misconduct” is one of public concern, adding to the reason for the dismissal of the defamation claim (Gino v. Presidents and Fellows of Harvard College (D. Mass. No. 1:23-cv-11775, 9/11/24)).

    Regarding the professor’s breach-of-contract claims, the professor alleged that the university’s decision to place her on administrative leave and its related disciplinary sanctions were the same as tenure removal. The judge concluded that it is premature to rule on the breach-of-contract claims.

    Public School Employees Lose Free Speech Case Challenging Anti-Racism Training

    In a case with possible application to public higher ed training, the 8th U.S. Circuit Court of Appeals affirmed the dismissal of a case brought by two Missouri public school employees who claimed that anti-bias employee training violated their First Amendment rights. The lawsuit failed because the court concluded that they were never asked to leave nor were they disciplined for expressing contrary views and that they received professional development credit for attending the anti-racism training (Henderson v. Springfield R-12 School District (8th Cir No. 2301374, 9/12/24)).

    The decision provides some clarity on such training, as the court noted that the employees were not compelled to express certain views or refrain from expressing certain views during the training. The appellate court did reverse the trial judge’s ruling requiring the plaintiffs to pay $300,000 in attorney fees for filing a frivolous claim.

    Former Student’s Title IX Claim Dismissed as Alleged University Internship Did Not Exist

    A federal district court judge dismissed allegations of a sexually abusive internship at the University of Michigan because the plaintiff could not prove the internship actually existed. The court noted that none of the usual formalities, such as an application or a university authorization of an internship, were established.

    In light of this, the court dismissed the Title IX claims and allegations of failure to investigate sex harassment and abuse allegations as the plaintiff did not allege discrimination while “participating in or at least attempting to participate in” a university program or activity, as the internship did not exist. The University of Michigan prevailed in the case (Doe v. Baum ((2024 BL 340244 E.D. Mich. No. 4-21-cv-12492, 9/26/24)).

    University of Texas Professor Loses First Amendment Complaint

    A federal district judge dismissed a University of Texas professor’s First Amendment claim that his speech was “chilled” by unspecific threats following comments critical of “critical race theory and DEI-based ideology.” The judge dismissed the case, holding that the unspecific threats did not rise to the level of an adverse employment action (Lowery v. Mills ((W.D. Tex. No. 1:23-cv-00129, 10/2/24)).

    The judge ruled in favor of the University of Texas McCombs School of Business. The judge noted in a footnote, however, that the dismissal was not meant to approve of the university’s actions and that “in the context of a world-class university like UT, differences of opinion should be tolerated by those in authority, no matter that they are uncomfortable, so long as they do not incite violence or disrupt the school’s ability to function as a teaching institution.”

    Supreme Court to Review Split in Circuits Regarding Higher Ed ERISA Lawsuit

    The Supreme Court has agreed to hear arguments over the split in circuit courts of appeals as to when a university may be sued by employees under the Employee Retirement Income Security Act (ERISA). Employees of Cornell University alleged that improper service provider fees were charged to their pension fund. They are appealing an adverse 2nd Circuit decision stating employees must plead that the alleged “prohibited transaction” by the service provider involved either “unnecessary services” or the fees were “unreasonable” (Cunningham v. Cornell University (US No. 23-1007 cert granted 10/4/24)).

    The 2nd U.S. Circuit Court of Appeals, the 3rd Circuit, the 7th Circuit, and the 10th Circuit all require the additional pleading that alleges some kind of fraud or impropriety in order to allow the case to move forward. This contrasts with the 8th Circuit and the 9th Circuit, which apply the “ERISA-as-written” rule. That rule allows a plaintiff to simply allege that a transaction between an employer and a pension or welfare plan service provider occurred and proceed with discovery over whether fraud or some other impropriety exists. We will follow developments in this case as it proceeds.



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

    HR and the Courts — June 2024 – CUPA-HR

    by CUPA-HR | June 12, 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.

    Judge Halts Academic Workers’ Strike at Several University of California Campuses

    The University of California has taken legal action against United Auto Workers Local 4811, which represents some 48,000 academic workers and graduate students across UC’s multiple campuses. The lawsuit requested an injunction to end the rolling strike at six campuses, which the university contended is in violation of the applicable no-strike contractual provisions. The judge granted the university’s request for a temporary restraining order on June 7, 2024. The order will halt the strike until the judge conducts a hearing over whether to grant a permanent injunction enforcing the no-strike provisions of the applicable labor contract (Regents of the University of California v. UAW Local 4811 (Cal Sup Court, No. 30-2024-01403666-CU-MC-CXC, 6/7/24)).

    This case followed the university’s complaint to the California Public Employment Relations Board alleging that the union had violated the applicable no-strike provisions. The board filed a complaint against the union, arguing it failed to give the university “adequate advance notice” and “failed and refused to meet and confer in good faith,” but declined the university’s request to seek a court order halting the strike.

    Following its exhaustion of all remedies at the state board, the university filed its own state court complaint, seeking to end the strike. The complaint accused picketers of blocking entrances to university property, including hospitals, and illegally occupying buildings. The university argued that the breach of contract endangers lifesaving research at hundreds of laboratories across many campuses. The UAW claimed that the no-strike clause is inapplicable because the university violated state law by calling in police to break up pro-Palestinian encampments on several campuses and allegedly changed workplace rules in response to the protests. The proceedings will continue with a full hearing over whether to convert the restraining order into a permanent injunction further barring the strike activity.

    University of Florida Recruit Sues Over Claimed $13.85 Million NIL Deal — NCAA Proposes Settlement of NIL Class Action

    A former football recruit has sued the University of Florida’s football coach and boosters, alleging they recruited him with the promise of $13.85 million in name, image and likeness payments and then reneged. The complaint, filed in federal district court in Florida, alleges fraud, tortious interference and other claims. The plaintiff alleges that, after the NIL offer, he rejected other lucrative offers only to have the Florida offer “decrease drastically” (Rashada v. Hathcock (N.D. Fla., 3:24-cv-00219, complaint 5/21/24)).

    The plaintiff alleges that, as a 19-year-old college-bound athlete, he was persuaded by a network of university officials and donors to flip on his commitment to the University of Miami, but they never came through on the NIL promises. After the deal never materialized, the plaintiff went to the University of Arizona instead and ultimately transferred to the University of Georgia.

    Separately, the NCAA and the Power Five conferences have proposed a nearly $2.8 billion settlement of the class action claim against them relating to their former ban on NIL payments to student-athletes. If the settlement is approved, the NCAA also agrees that it would no longer attempt to regulate NIL payments, which would be solely up to each college and university to determine and administer (In Re College Athlete NIL Litigation (N.D. Cal., No., 4:20-cv-03919)).

    Court of Appeals to Review Whether Discharge for Refusal to Take Anti-Discrimination Training Is Itself Discriminatory

    The 7th U.S. Circuit Court of Appeals (covering Illinois, Indiana and Wisconsin) will decide whether to affirm a federal trial court’s dismissal of a discrimination claim brought by a White employee. The employee claimed he was discharged in violation of federal and state anti-discrimination laws for his refusal to take the employer’s mandatory anti-discrimination training, which he claimed was discriminatory. The plaintiff claimed the training was inherently biased against White employees, after admitting he had no knowledge of the contents of the training (Vavra v. Honeywell International Inc. (Case No. 23-02823, oral arg sched 5/21/24)).

    The trial court concluded that the plaintiff’s internal emails to the company’s president, which accused the company of “race baiting,” were protected communications. The court further concluded that the plaintiff was not terminated for the communications, but rather because of his refusal to take mandatory anti-discrimination training that was not itself discriminatory. The employer’s diversity, equity and inclusion and law departments had properly vetted the training and concluded it was intended to foster an inclusive work environment.

    U.S. Supreme Court Rejects White Professor’s Claims of Race and Sex Discrimination Filed Against HBCU

    The Supreme Court turned down a request for certiorari and declined to hear a White law school professor’s claim that the 5th U.S. Circuit Court of Appeals had erroneously dismissed her claim of race and sex discrimination and retaliation under Title VII and the Equal Pay Act. The law professor had claimed that the appeals court erroneously dismissed her claims that she and other female professors were treated poorly in violation of Title VII and the Equal Pay Act and that she was forced to resign from Texas Southern University, a historically Black institution. The court denied the professor’s two petitions for it to hear her case without issuing an opinion (Sacks v. Texas Southern University (Case Nos. 23-891 & 23-1031, Cert denied 5/13/24)).

    The plaintiff asked the Supreme Court to adopt a “totality of circumstances” standard in determining whether her claims of years of “alleged” harassment and continuing violations justified her conclusion that she felt compelled to resign. The plaintiff also complained that the lower court had denied her the right to receive female wage data while requiring her to identify male comparators to make her Equal Pay Act claims. The Supreme Court denied the professor’s request to be heard in the absence of a response from the university, which had waived its right to respond to the professor’s petitions.

    In Employment Law Matter, U.S. Supreme Court Rules Federal Courts Can No Longer Dismiss Federal Lawsuits Subject to Mandatory Arbitration

    The U.S. Supreme Court resolved a split among federal appellate courts on whether, under the Federal Arbitration Act, federal trial courts can dismiss rather than stay a lawsuit that is covered by the terms of a mandatory arbitration agreement pending the outcome of arbitration. The 1st, 5th, 8th and 9th U.S. Circuit Courts of Appeals have previously allowed dismissal while the 2nd, 3rd, 6th, 7th, 10th and 11th have ruled that the case must be stayed pending the outcome of the arbitration.

    The case involved a group of drivers who claimed they were misclassified as independent contractors rather than employees entitled to minimum wage, overtime and paid sick leave under federal and state laws. Both sides agreed that the dispute was subject to a mandatory arbitration agreement. The 9th Circuit ruled the case should be dismissed. The Supreme Court reversed, concluding that the specific provisions of the Federal Arbitration Act require the courts to stay the action while it is referred to arbitration, pending the outcome of the arbitration (Smith v. Spizzirri (US No, 22-1218, 5/16/24)).

    Texas Sues EEOC Over Guidance Protecting LGBTQIA+ Employees From Sex Harassment Relating to Their Choice of Pronouns and Bathrooms Consistent With Gender Identity

    The Texas attorney general has filed suit in federal court seeking to block enforcement of the Equal Employment Opportunity Commission’s recent guidance aimed at shielding LGBTQIA+ employees who seek to use pronouns and bathrooms consistent with their gender identity. The Texas suit alleges that the most recent EEOC guidance goes beyond the statutory limits of Title VII just as the prior EEOC workplace guidance, which was vacated in Texas federal court, did (The State of Texas v. EEOC (N/D. Tex., 2:21-CV-194-Z, Complaint, filed 5/21/24)).

    Separately, a coalition of 18 Republican attorneys general have also filed suit, seeking to block this EEOC guidance and alleging the same legal overreach by the EEOC.



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

    HR and the Courts — May 2024 – CUPA-HR

    by CUPA-HR | May 14, 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.

    Unions Representing Student Employees File Unfair Labor Practice Charges Related to Student Protests

    Nearly 30 unions representing more than 100,000 student workers at 58 campuses throughout the country have issued a joint letter supporting protesting students and condemning violent responses to peaceful protests. Unfair labor practice charges have also been filed with the National Labor Relations Board against a small number of private institutions in protest of schools’ enforcement of their rules.

    The NLRB has found in the past that civil rights protests — for example, those connected to the Black Lives Matter movement — are protected concerted activity when they are tied to protesting employer or employment discrimination matters. However, commentators have drawn a distinction related to the Israel-Hamas war protests. While each unfair labor practice case will rise and fall on the specific facts related to the situation, a university enforcing safety rules and cracking down on protests will likely not violate the National Labor Relations Act. Additionally, if a union member participates in a protest unrelated to their employment and violates university rules, the sanctions involved will likely not violate the NLRA.

    Court of Appeals Affirms Dismissal of ERISA Lawsuit Against Georgetown University

    The U.S. Court of Appeals for the District of Columbia Circuit unanimously affirmed the dismissal of an employee-filed Employee Retirement Income Security Act lawsuit. The lawsuit claimed that Georgetown University had packed its retirement plans with expensive and badly performing investment options.

    The lawsuit further alleged that Georgetown had offered its faculty and staff retirement plans with too many investment options and retained multiple recordkeepers, which drove up the administrative costs of the plans. A federal district court judge dismissed the amended complaint in April 2023, ruling that the amended complaint did not address the concerns that led to the dismissal of the original complaint.

    The Court of Appeals unanimously concluded that the original complaint failed to plead any adequate claims and the proposed amended complaint was futile as it did not cure the problem (Wilcox et al. v. Georgetown University et al. (Case no. 23-7059, DC Cir. 4/23/24)).

    Student-Athlete NLRB Unionization Decisions May Modify Taxability of Athletic Scholarships

    Although the NLRB’s decision in the Dartmouth College men’s basketball team case is under review, if the board affirms the decision that players are employees and can unionize, it could ultimately cause the IRS to rethink its current position that student-athletes receiving scholarships are not employees for purposes of the tax code. This could possibly include a change in the current position that these scholarships are not taxable as income.

    If the NLRB affirms the regional director’s decision, which many commentators conclude is likely given its composition under the Biden administration, the decision is not binding for the IRS. The IRS has independent authority to conclude whether these student-athletes are employees and are receiving taxable compensation in the form of scholarships under the Internal Revenue Code. Separately, the courts are wrestling with the question of whether student-athletes are employees under the Fair Labor Standards Act and are entitled to minimum wage and overtime. We will keep following these issues as they unfold.

    IRS Giving More Scrutiny to Tax-Exempt Status of Name, Image and Likeness Payments to Student-Athletes From Booster Donations

    Bloomberg reports that the IRS has begun revoking and not granting 501(c)(3) status to some groups formed to collect money from boosters to fund name, image and likeness payments to student-athletes. In testimony before the Senate finance committee, the IRS commissioner stated that they are scrutinizing those NIL groups that are not operating for tax-exempt purposes. These collectives have raised millions of dollars from boosters who generally expect those gifts to be tax deductible. For specific tax guidance, a tax professional should be consulted on questions arising in this area.

    U.S. Supreme Court Rules Job Transfers Can Violate Title VII and Other Anti-Discrimination Statutes

    The Supreme Court ruled unanimously on the issue of whether a plaintiff must prove significant harm to state a claim of discrimination under the applicable anti-discrimination statutes because of a job transfer. The court reversed the holdings of some circuit courts of appeal that “significant harm” must be stated to state a claim of job discrimination resulting from a job transfer.

    Nonetheless, the Supreme Court stopped short of eliminating the harm requirement entirely. The court held that a plaintiff must show that the transfer resulted in some level of injury or harm, concluding that the statute does not require by its terms the high bar of “significant” harm (Muldrow v. St. Louis (U.S. Case No. 22-193, 4/17/24)). The concurring justices, who did not dissent, argued that the change from significant harm to some other lower level of harm was confusing and would lead to further inconsistent litigation.

    NLRB Reports 10% Rise in Case Load in First Half of Fiscal Year 2024

    The NLRB reports that case filings of unfair labor practice charges or union representation votes rose 10% during the first half of fiscal year 2024 compared to the same period in the previous fiscal year. Union election petitions rose by 35% during this period, and unfair labor practice charges rose by 7%. The NLRB has jurisdiction over private institutions of higher education and has no jurisdiction over state-based public institutions. State public institutions are generally subject to state labor boards and state statutes with separate, but often parallel, rules. This uptick in private employer unfair labor practice charges and election petitions will likely be accompanied by an increase in activity by public-sector unions at public institutions of higher education.



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