Category: NLRA

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

    HR and the Courts — November 2023 – CUPA-HR

    by CUPA-HR | November 8, 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.

    California Becomes First State to Mandate Workplace Violence Prevention Plans

    Under a new law, the first broad state law of its kind, most employers in California must now adopt workplace violence prevention plans by next summer. Before now, hospitals in California were the only group of employers required by state law to adopt workplace violence prevention plans. What specifically must be included in the plan is vague under the terms of the statute. The California Division of Occupational Safety and Health (Cal/OSHA) will be responsible for implementation of this statute and stated that it would adopt an appropriate workplace violence set of standards for employers.

    The law will require employers to establish written plans, employee training and tracking of violent acts. Plans must be specific for each workplace and tailored to meet the individual circumstances of each setting. Commentators are looking for further guidance from Cal/OSHA on the specific details that must be covered by employer plans.

    Mandatory Time Off for Reproductive Loss

    California and Illinois are leading the way in the adoption of state laws mandating that employers guarantee time off following a miscarriage or other reproductive loss to ensure leave for grieving. The laws guarantee employees up to five days of paid or unpaid leave following a reproductive loss including miscarriage and still birth, as well as failed adoption, invitro or surrogacy. Utah has adopted a similar policy for state employees, and several cities have adopted similar statutes. Some national employers already voluntarily include reproductive losses in time-off provisions for employees.

    NLRB Lowers the Bar to Prove Joint Employer Status — May Impact Student-Athlete Cases

    The National Labor Relations Board rescinded a Trump-era regulation requiring that an alleged joint employer must have “direct and immediate” control exercised over employees to prove joint employer status. Under the new standard, if an alleged joint employer indirectly controls job terms or conditions of employment, it is a joint employer subject to NLRB jurisdiction. This will have immediate application to the ongoing dispute as to whether the NCAA and athletic conferences are joint employers of student-athletes, as they exercise control over rules that student-athletes must adhere to.

    This also may affect the NLRB’s attempt to exert jurisdiction over student-athletes at public colleges and universities. While the NLRB has no jurisdiction over public entities, its general counsel is asserting jurisdiction over those student-athletes at public institutions based on the legal theory that the NCAA and/or the athletic conferences are joint employers.

    Student-Athlete Unionization Issue May Affect Smaller Institutions and Athletic Programs

    Two additional, separate NLRB cases are winding their way to a decision on whether student-athletes meet the definition of employee under the National Labor Relations Act and are therefore eligible to unionize. A West Coast case involves the NLRB issuing a complaint claiming that the University of Southern California, the NCAA, and the PAC-12 Conference are joint employers of student basketball and football players and have unlawfully refused to bargain with any union.

    An East Coast case involves a union petition filed by the Service Employees International Union to represent Dartmouth College basketball players. Dartmouth has argued that its basketball players are not employees under the NLRA, as they do not receive sports scholarships and the basketball program does not generate money for the institution.

    Commentators at Bloomberg have concluded that decisions allowing unionization of college athletes may have the most serious repercussions for smaller institutions and even small athletic programs that do not generate revenue at large institutions.

    Class Actions Proliferate Related to Washington State’s Pay Transparency Law  

    A series of 40 or so class actions filed against major employers in Washington state — including Adidas, Home Depot and Marriott — will test the reach of the new Washington state job ad and pay transparency law. The Washington state law, like similar statutes in California, Colorado and New York, requires employers to provide pay ranges and benefits information in job ads, with the aim of improving pay equity for women and employees of color.

    The Washington and California laws also provide plaintiff applicants with a private right to sue, with Washington’s statute incentivizing plaintiffs to sue. It grants plaintiffs an award of actual damages proven or $5000, whichever is greater, plus attorney fees upon proving a pay transparency violation.

    Former Women’s Basketball Coach Loses Sex Discrimination Lawsuit

    The former head women’s basketball coach at the University of Montana has lost the sex discrimination lawsuit she filed following her termination after a poor win-loss record and serious culture complaints made by players and parents, including players threatening to leave the university if she remained as coach. The court also granted a positive inference to the university’s stated rationale for termination under the “same actor” doctrine, where in this case the same athletic director that hired the plaintiff was the person who made the decision to fire the plaintiff (Schweyen v. Univ of Montana–Missoula (2023 BL 390525, D. Mont. 9.21-cv-00138, 10/31/23)).

    The prior coach had a compiled 38-year performance of winning 75% of her games, while the plaintiff had only one winning season in the four years she served as head coach. The court rejected the plaintiff’s attempt to compare herself to a men’s basketball coach who had lost team players to transfer, citing multiple federal cases that have rejected arguments that disparate treatment between men’s and women’s sports teams creates an inference of discriminatory animus under Title VII.



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  • NLRB Issues Joint Employer Final Rule – CUPA-HR

    NLRB Issues Joint Employer Final Rule – CUPA-HR

    by CUPA-HR | October 27, 2023

    On October 26, 2023, the National Labor Relations Board (NLRB) released its final rule amending the standard for determining joint employer status under the National Labor Relations Act (NLRA). The rule replaces the board’s 2020 final rule on the same issue and greatly expands joint employer status under the NLRA.

    The final rule establishes joint employer status of two or more employers if they “share or co-determine those matters governing employees’ essential terms and conditions of employment,” such as wages, benefits and other compensation; work and scheduling; hiring and discharge; discipline; workplace health and safety; supervision; and assignment and work rules. Today’s final rule finds that either indirect control or reserved control may stand alone as sufficient for finding that a joint employer relationship exists. The final rule specifically states that an entity may be considered a joint employer if it possesses the authority to control one or more essential terms and conditions of employment, regardless of whether that authority is exercised, or if it exercises the power to indirectly control one or more terms and conditions of employment, regardless of whether that power is exercised directly. This is a departure from the 2020 rule, which found that an entity must exercise substantial direct and immediate control over essential terms and conditions of employment to be considered a joint employer.

    Joint employment has recently been a focal point for higher ed institutions as disputes around the worker classification of student-athletes continue. Last year, an NLRB regional office announced it would be pursuing a complaint by a student-athlete advocacy group that filed an unfair labor practice charge against that the University of Southern California, the Pac-12 Conference, and the NCAA, alleging that the three entities are joint employers who violated the NLRA by “repeatedly misclassifying employees as ‘student-athlete’ non-employees.” The case is set to be heard by an administrative law judge in November, but a final decision could take years to come to fruition.

    This final rule could have significant implications for private institutions, as they fall under the NLRB’s jurisdiction. Public institutions are not impacted by this rulemaking, as the NLRB does not have jurisdiction over public entities.

    CUPA-HR is assessing the final rule and will provide members with more information as it becomes available.



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

    HR and the Courts — October 2023 – CUPA-HR

    by CUPA-HR | October 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.

    Governor Newsom Vetoes Bill That Would Ban Caste Discrimination

    California Governor Gavin Newsom vetoed what would have been the first specific state ban on employment discrimination on the basis of caste. Seattle recently became the first U.S. municipality to ban caste discrimination. The California bill would have added caste to the definition of ancestry, which is already included in state law. The governor stated in his veto declaration that existing law already covers this type of discrimination. Commentators weighed in on both sides of this conclusion, some stating there is no specific case law on this question.

    Caste is defined as a system of rigid social stratification based on a person’s birth and ancestry and primarily affects people of South Asian descent. Allegations of caste discrimination have recently arisen and gained notoriety in California’s tech industry. This proposal has been subject to much controversy in California, including a hunger strike by those supporting the proposal.

    University Trustees May Be Sued for Professor’s Alleged First Amendment Claims

    The 5th U.S. Circuit Court of Appeals (covering Louisiana, Mississippi and Texas) recently rejected a university board of trustees’ motion to dismiss First Amendment lawsuit allegations against them, holding that sovereign immunity did not apply to the board members (Jackson v. Wright (5th Cir., No. 22-40059, 9/15/23)).

    The case involves eight members of the University of North Texas board of regents who were sued by a music professor. The professor lost his position as editor in chief of a university music journal because of alleged “racial statements” contained in an article he published in advance of a 2020 symposium sponsored by the journal.

    In denying the sovereign immunity defense, the court concluded that the trustees had direct authority over university officials who denied the professor his First Amendment rights. The court noted that the trustees had refused to act on a letter the professor had submitted to the trustees raising the issue.

    SEIU Local 560 Files NLRB Petition to Represent the Dartmouth College Men’s Basketball Team

    To address the student-athlete employee status issue encouraged by the existing National Labor Relations Board’s general counsel, Service Employees International Union Local 560 has brought a petition to the NLRB to represent the Dartmouth College men’s basketball team in collective bargaining negotiation with the institution. This is nearly a decade after the NLRB denied jurisdiction over student athletes in the Northwestern case. If the SEIU is successful, it would be the first case involving potential unionization of college athletes.

    The filing follows on the heels of the favorable Supreme Court decision striking down the NCAA’s ban on compensation of student-athletes for name, image and likeness in the 2021 case NCAA v. Alston. While the Supreme Court did not address the labor organizing question under the National Labor Relations Act for student athletes, it certainly took the first step in recognizing the group as employees.

    This case brings an added mechanism for the NLRB to decide whether student-athletes are protected under the NLRA and able to organize into labor unions. The NLRB’s general counsel already raised the issue in May of this year in the case brought against the University of Southern California, the Pac-12 Conference, and the NCAA, in which they are alleged to have violated the NLRA in failing to recognize student-athletes as employees.

    On the first day of the NLRB hearing, Dartmouth took the position that the athletes involved are students who do not meet any of the common law attributes of employees and, therefore, are not union-eligible employees under the NLRA.

    Undergraduate Student-Employee Union Organizing Is Expanding, Leading the Way to More Organization Drives

    Bloomberg reports that there are now over a dozen colleges in the U.S. with undergraduate student-employee unions. This is up from just two before 2022. Pay, sick leave and insecurity due to the COVID-19 pandemic have been reported as reasons prompting this significant increase in undergraduate employee organizing, which appears to be motivating expanded organizing at the graduate assistant and professor levels.

    A union-organizing campaign appears to be proceeding across campus lines at the California State University System, where a union is organizing as many as 20,000 undergraduate workers at 23 campuses, Bloomberg reports. Separately, 4,000 University of Oregon student employees are set to vote next month on union representation.

    Fired Football Coach Sues University, Seeks $130 Million in Damages

    A former Northwestern University football coach has sued the university and its president for wrongful discharge and defamation and is seeking a minimum of $130 million in damages. The lawsuit alleges that the coach was fired for “no reason whatsoever.”

    The coach was placed on a two-week unpaid suspension after a six-month investigation revealed incidents of hazing within the football program. The report was allegedly inconclusive as to whether the coaches were aware of the hazing. Details of the actual termination will be the subject of the trial. We will follow developments as they unfold.



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

    HR and the Courts — April 2023 – CUPA-HR

    by CUPA-HR | April 12, 2023

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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



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  • NLRB General Counsel Issues Memo on Recent Severance Agreement Ruling – CUPA-HR

    NLRB General Counsel Issues Memo on Recent Severance Agreement Ruling – CUPA-HR

    by CUPA-HR | March 27, 2023

    On March 22, National Labor Relations Board (NLRB) General Counsel Jennifer Abruzzo issued a memo to all field offices with guidance on the Board’s recent decision in McLaren Macomb, in which the Board decided that employers cannot offer employees severance agreements that require employees to waive rights under the National Labor Relations Act (NLRA), such as confidentiality and non-disparagement requirements. According to the NLRB’s press release, the memo is to be used as guidance to assist field offices responding to inquiries from workers, employers, labor unions and the public about implications stemming from McLaren Macomb.

    The memo offers guidance on the decision’s scope and effect of the McLaren Macomb decision. In the memo, Abruzzo stated that the decision has retroactive application, and she directed employers who may have previously offered severance agreements with “overly broad” non-disparagement or confidentiality provisions to contact employees to advise them that such provisions are now void and will not be enforced. Abruzzo also clarified that confidentiality clauses that are “narrowly tailored” to restricting dissemination of proprietary information or trade secrets may still be lawful “based on legitimate business justifications,” and that non-disparagement clauses that are limited to “employee statements about the employer that meet the definition of defamation as being maliciously untrue (…) may be found lawful.”

    With respect to supervisors, Abruzzo specified that supervisors are not generally protected by the NLRA, but she added that they are protected from retaliation if they refuse to offer a severance agreement with broad non-disparagement or confidentiality provisions to their employees.

    As a reminder, CUPA-HR will be hosting a webinar on the McLaren Macomb decision Thursday, March 30 at 1:00 p.m. ET. The webinar will cover the McLaren Macomb decision and this subsequent memo, and presenters will discuss how the decision may fundamentally change how and when colleges and universities may use confidentiality and non-disparagement provisions. Registration is required for participation, but free to all CUPA-HR members.



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  • NLRB Issues Decision Blocking Certain Provisions in Severance Agreements, CUPA-HR to Hold Webinar – CUPA-HR

    NLRB Issues Decision Blocking Certain Provisions in Severance Agreements, CUPA-HR to Hold Webinar – CUPA-HR

    by CUPA-HR | March 20, 2023

    On February 21, the National Labor Relations Board (NLRB) issued its decision in McLaren Macomb deciding that employers cannot offer employees severance agreements that require employees to waive rights under the National Labor Relations Act (NLRA), such as confidentiality and non-disparagement requirements.

    The Board explained in its press release on the decision that if an employer offers a severance agreement with a provision that requires the employees to broadly give up their rights under the Act, the employer violates the NLRA. The simple offering of the agreement “is itself an attempt to deter employees from exercising their statutory rights, at a time when employees may feel they must give up their rights in order to get the benefits provided in the agreement.” NLRB Chair Lauren McFerran said “It’s long been understood by the Board and the courts that employers cannot ask individual employees to choose between receiving benefits and exercising their rights under the National Labor Relations Act.”

    McFerran issued the decision alongside NLRB Democratic Members Gwynne Wilcox and David Prouty, while Republican Board Member Marvin Kaplan dissented. The decision reverses two Trump-era NLRB decisions, Baylor University Medical Center and IGT d/b/a International Game Technology. Both of these decisions determined severance agreements with confidentiality and non-disparagement provisions not unlawful in and of themselves.

    Importantly, this decision does not apply to public sector employees as the NLRB only has statutory jurisdiction over private sector employees. Additionally, the ruling does not apply to employees in supervisory or managerial positions.

    CUPA-HR will hold a webinar on this rulemaking and its potential impact on higher ed institutions on March 30, 2023 at 1:00 p.m. ET. Registration is required for participation, but free to all CUPA-HR members. To register, please visit the event’s web page.



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  • House Education and Workforce Committee and Senate HELP Committee Set for 118th Congress – CUPA-HR

    House Education and Workforce Committee and Senate HELP Committee Set for 118th Congress – CUPA-HR

    by CUPA-HR | February 7, 2023

    After a month in session, the U.S. House of Representatives and Senate are finalizing their committee and subcommittee membership rosters. Of particular significance are the House Education and the Workforce Committee and Senate Health, Education, Labor and Pensions (HELP) Committee, which have jurisdiction over higher education and many labor and employment issues, including overtime, paid leave, occupational safety and health and employment-based discrimination.

    House Education and the Workforce Committee and Subcommittees

    The House Education and the Workforce Committee will be comprised of 25 Republicans and 20 Democrats with Rep. Virginia Foxx (R-NC) serving as chairwoman and Rep. Bobby Scott (D-VA) serving as ranking member of the full committee. Both Foxx and Scott served as their party’s committee leader in the previous Congress when Democrats held the majority, but Foxx was notably able to secure a waiver granting her exemption from House Republican-imposed committee leadership term limits that would have prohibited her from serving a fourth consecutive term as Republican leader on the committee.

    Foxx has publicly stated her priorities for the committee, citing oversight of the Biden administration, Department of Labor and Department of Education as a top concern for the committee. Having previously taught at two institutions of higher education and served as president at Mayland Community College, Foxx also has a particular interest in higher education. With divided control of Congress and Democrat control of the Senate, however, it is unlikely that Foxx will be able to pass any meaningful legislation that would garner support from the Senate and the president.

    In addition to the full committee roster, the Education and the Workforce Committee has also finalized their subcommittee rosters.

    Subcommittee on Workforce Protections

    The Subcommittee on Workforce Protections has jurisdiction over issues relating to wages, hours of workers and overtime, including the Fair Labor Standards Act (FLSA); workers’ compensation, including the Family and Medical Leave Act (FMLA); issues relating to immigration and employment; and occupational safety and health, including the Occupational Safety and Health Administration (OSHA).

    Freshman Rep. Kevin Kiley (R-CA) will serve as chairman of the subcommittee and Rep. Alma Adams (D-NC) will serve as ranking member after serving as chair of the subcommittee last Congress. The subcommittee will made be up of six Republicans, including Glenn Grothman (R-WI), James Comer (R-KY), Mary Miller (R-IL) and Eric Burlison (R-MO), all who did not serve on the subcommittee in the previous Congress; and four Democrats, all who served on the subcommittee in the last Congress.

    Subcommittee on Higher Education and Workforce Development

    The Subcommittee on Higher Education and Workforce Development has jurisdiction over the following areas: postsecondary student assistance and employment services, and the Higher Education Act; postsecondary career and technical education, apprenticeship programs, and workforce development; and science and technology programs.

    Rep. Owen Burgess (R-UT) will serve as chairman of the Subcommittee on Higher Education and Workforce Development, while Rep. Frederica S. Wilson (D-FL) will serve as ranking member of the subcommittee after serving as chair of the subcommittee in the 117th Congress. The makeup of the subcommittee will include 13 Republicans, including Reps. Glenn Thompson (R-PA), Lloyd Smucker (R-PA), Nathaniel Moran (R-TX), John James (R-MI), Lori Chavez-DeRemer (R-OR), Erin Houchin (R-IN) and Brandon Williams (R-NY) as new members; and 11 Democrats, including Reps. Lucy McBath (D-GA), Gregorio Kilili Camacho Sablan (D-Northern Marina Islands) and Alma Adams (D-NC) as new members.

    Subcommittee on Health, Employment, Labor and Pensions

    The Subcommittee on Health, Employment, Labor and Pensions’ jurisdiction involves “matters dealing with relations between employers and employees,” including to the National Labor Relations Act (NLRA) and employment-related health and retirement security, such as pension, health and other employee benefits and the Employee Retirement Income Security Act (ERISA).

    The subcommittee will see Rep. Bob Good (R-VA) serve as chairman and Rep. Mark DeSaulnier (D-CA) serve as ranking member after previously serving as chair in the 117th Congress. The subcommittee will be composed of 12 Republicans, including Reps. James Comer (R-KY), Lloyd Smucker (R-PA), Michelle Steele (R-C), Aaron Bean (R-FL), Eric Burlison (R-MO), Lori Chavez-DeRemer (R-OR) and Erin Houchin (R-IN) serving as new members; and 10 Democrats, including Reps. Pramila Jayapal (D-WA), Jahana Hayes (D-CT), Ilhan Omar (D-MN) and Kathy Manning (D-NC) serving as new members.

    Senate Health, Education, Labor and Pensions Committee

    The Senate HELP Committee is the Senate counterpart to the House Education and the Workforce Committee. Chair Bernie Sanders (I-VT) will be replacing former Chair Patty Murray (D-WA), who is now the chair of the Senate Appropriations Committee, and Ranking Member Bill Cassidy (R-LA) will be replacing former Ranking Member Richard Burr (R-NC), who retired at the end of the 117th Congress. Democrats will have 11 members and Republicans will have 10 members on the committee. Subcommittees have not yet been finalized, though we expect to see membership lists soon.

    Sanders staffers have stated that, as chair, he will “focus on universal healthcare, lowering the cost of prescription drugs, increasing access to higher education and protecting workers’ rights on the job.” As previously mentioned, however, the divided Congress and Republican control of the House will likely prevent meaningful legislation from moving to President Biden’s desk for his signature.

    CUPA-HR will be monitoring committee activity and will keep members apprised of any major hearings or updates that come out of the committees.



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  • NLRB Region Files Complaint Against the NCAA, Pac-12 and the University of Southern California – CUPA-HR

    NLRB Region Files Complaint Against the NCAA, Pac-12 and the University of Southern California – CUPA-HR

    by CUPA-HR | December 21, 2022

    On December 15, the National Labor Relations Board (NLRB)’s Region 31 announced it will pursue a complaint against the National Collegiate Athletic Association (NCAA), the Pac-12 Conference and the University of Southern California (USC) for violating the National Labor Relations Act (NLRA) by misclassifying student-athletes as non-employees, unless the matter is settled. On February 8, the National College Players Association filed an unfair labor practice (ULP) charge with the region alleging that USC; the University of California, Los Angeles; the Pac-12 Conference; and the NCAA are “joint employers” who violated the NLRA by “repeatedly misclassifying employees as ‘student-athlete’ non-employees.”

    Region 31 is part of the NLRB’s Office of General Counsel, which is responsible for receiving charges from employees, unions or employers that allege violations of the NLRA. The region decides whether to issue a complaint on charges it receives. If the region does not issue a complaint, the matter is generally closed. If the region decides to file a complaint, however, the case is litigated before an administrative law judge.

    Region 31’s complaint is the latest development regarding the employment status of student-athletes. The National College Players Association’s February 8 charge followed NLRB General Counsel Jennifer Abruzzo’s memorandum issued last September in which she argues that student-athletes are employees under the NLRA and are therefore afforded all statutory protections as prescribed under the law.

    The region’s decision in response to the February ULP charge means the NCAA, Pac-12 Conference and USC can either settle or litigate the case. A final ruling could take years to come to fruition, however, as both parties in the case could appeal the decisions made by the administrative law judge to the five-member NLRB. The NLRB’s decision can be appealed to federal appellate courts  and from there all the way up to the Supreme Court.

    The news of the region’s complaint follows the announcement earlier in the day that Massachusetts Governor Charlie Baker would be the NCAA’s next president in March after his last term in office expires in January. Baker, a Republican, is known for his work to build bipartisan consensus on policy in Massachusetts, which the NCAA may recognize as a strength as they continue to engage Congress on other issues related to student-athlete compensation. It is unclear what, if any, impact this will have on the ULP charges.

    CUPA-HR will continue to keep members apprised of this case and others involving student-athlete employment classification that may emerge in the future.



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  • HR and the Courts – November 2022 – CUPA-HR

    HR and the Courts – November 2022 – CUPA-HR

    by CUPA-HR | November 8, 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.

    EEOC Disavows Publicly-Expressed Views of Former General Counsel Regarding Abortion Travel Issues 

    The Equal Employment Opportunity Commission (EEOC) took the rare step of publicly disavowing the views expressed by its former general counsel who was appointed during the Trump administration and replaced during the Biden administration. The EEOC stated on October 31, 2022 that its former general counsel expressed her personal views, not that of the agency, when she warned that employers providing travel assistance to employees seeking an abortion but not for other procedures might be sued by the EEOC. Nonetheless, this is a developing area of the law and counsel should be consulted on these issues.

    Supreme Court Hears Oral Argument Over Continuation of Affirmative Action In College Admissions

    The Supreme Court heard oral argument over the continuation of Affirmative Action in college admissions on October 31, 2022 in Students for Fair Admissions (SFFA) v. Harvard and Students for Fair Admissions (SSFA) v. University of North Carolina (UNC). The first major Supreme Court decision involving Affirmative Action in college admissions occurred in 1978 in University of California v. Bakke. In Bakke, a divided Supreme Court approved the University of California’s Affirmative Action plan with four justices ruling in favor of the plan and four justices ruling that the Affirmative Action plan violated the constitution. The remaining solo opinion of Justice Lewis Powell coupled with the four votes in favor of Affirmative Action became the precedent. Justice Powell concluded that a race-conscious admissions program could theoretically satisfy constitutional strict scrutiny by being narrowly tailored to promote a diverse student body.

    In 2003, a majority of the Supreme Court endorsed Justice Powell’s solo opinion in Grutter v. Bollinger when Justice Sandra Day O’Connor added in the majority opinion that the Court expects that such policies will no longer be necessary in 25 years.

    The Supreme Court set aside two hours to hear oral argument in two lawsuits brought by the SFFA, an anti-Affirmative Action group, against Harvard University and the University of North Carolina. The SFFA wants the Supreme Court to overturn Justice Powell’s solo opinion in the Bakke case and end consideration of race in college admissions. The group argues among other things that current Affirmative Actions policies routinely discriminate against Asian Americans who do not receive racial preferences. Both colleges deny that Affirmative Action policies discriminate against Asian Americans.

    To complicate matters further, both cases were coupled for oral argument, but were uncoupled and heard separately because Justice Ketanji Brown Jackson recused herself for the Harvard case because of past work on Harvard’s Board of Overseers.

    Supreme Court Considers Long-Standing Preemption of State Laws Barring Employer State-Based Claims of Destruction of Property During Labor Disputes

    The Supreme Court will also reconsider this term its 60-year-old decision in San Diego Building Trades v. Garmon (commonly referred to as the Garmon Preemption Doctrine), in a case in which an employer is seeking to sue a teamsters local union alleging common law state claims of intentional destruction of property during a labor dispute and commencement of a strike (Glacier Northwest Inc. v. International Brotherhood of Teamsters, Local 174 (US No. 21-1449)). The Supreme Court ruled in the Garmon case that the federal National Labor Relations Act (NLRA) preempts and therefore prohibits all state court lawsuits against unions, concluding that an employer’s sole remedy is subject to the provisions of the NLRA, and that sole remedy for relief is up to the National Labor Relations Board (NLRB).

    In the case at hand, the Washington State Supreme Court dismissed an employer’s common law lawsuit against Teamster Local Union No. 174 for intentional destruction of property holding that under Garmon preemption the employer’s sole remedy is before the NLRB, which does not grant property damages to employers so harmed. The employer in the case alleged that its teamster union drivers returned the employers ready mix concrete trucks fully loaded with concrete to the yard prior to leaving on strike with the concrete in the trucks ready to harden and therefore destroyed the trucks. The teamsters claimed that they left the trucks running so that they could be unloaded safely.

    Some commentators conclude that if the Supreme Court alters Garmon broadly and allows such lawsuits to proceed, it could trigger a new and effective employer weapon in holding union’s liable for economic consequences of strikes and other actions taken during labor disputes. Those commentators also point out that if the Supreme Court broadly limits preemption, it could lead to conservative-leaning states to enact legislation restricting union conduct during strikes.

    California Joins Growing List of States Expanding Paid Leave Benefits

    California’s recent enactment of paid leave protections requiring employers to provide employees with paid leave to care for individuals who are not legal relatives joins the growing list of states regulating this area of employee benefits. So far, 11 states and the District of Columbia have enacted paid leave programs. Five of those states (Colorado, Connecticut, New Jersey, Oregon and Washington) allow employees to use those benefits to take care of non-relatives designated as “akin to family.”

    Nationwide, this is leading to a unique patchwork of requirements depending on where the employee is employed. Research should be conducted in your local jurisdiction to guide your institution on the breadth and application of possible city and/or state requirements. In addition, remote work in another state may also alter which state’s laws applies.

    U.S. Court of Appeals to Address Whether Sovereign Immunity Exempts State University From Federal Whistleblower Wrongful Discharge Claims

    The U.S. Court of Appeals for the 4th Circuit (covering Maryland, Virginia, West Virginia, North Carolina and South Carolina) will address whether Maryland state sovereign immunity applies to Morgan State University and Maryland State University in a case involving federal whistleblower wrongful discharge claims by the university’s former director of broadcast operations (Williams v. Morgan State University (4th Cir., Case no 21-01918, 10/13/22)).

    The plaintiff complained that the university mishandled a debate between Baltimore mayoral candidates and that she was ultimately discharged because she claimed that the mishandling may have violated the Federal Hatch Act and Federal Communications Commission regulations. The federal trial court dismissed the plaintiff’s federal claims, holding that while Maryland had waived sovereign immunity with respect to state tort claims, it did not do so regarding federal claims. The Court of Appeals has taken the unusual position of asking the Maryland State Court of Appeals whether the state has waived sovereign immunity with regard to federal tort claims.

    The plaintiff also added a federal whistleblower claim that the university’s dean and other professors were intentionally inflating expense numbers to federal and state agencies to “pad the university’s funding.”

    NLRB Returns to In-Person Manual Union Elections to Replace Mail-In Ballots Mandated During COVID-19 Pandemic

    In-person voting at employer premises in NLRB-supervised union elections is returning as the primary method of voting as the NLRB modifies the rules that it enacted during the onset of the COVID-19 pandemic, which lead to a great increase in mail-in voting. Nearly 75 percent of the 3,185 NLRB-supervised elections, which were conducted since the start of 2020 during the pandemic, were conducted by mail according to Bloomberg BNA. Unions prevailed in 76 percent of the mail-in elections as opposed to prevailing in 68 percent of the in-person elections. Employers generally prefer in-person manual elections because of the NLRB rules, which ensure secrecy, avoid electioneering around voting areas and arguably prevent voter fraud coercion.

    Employer groups argue that there is greater turn out during in-person manual voting. Unions claim that employers have an unfair advantage at in-person, manual voting because the election takes place on the employer’s “home turf.”



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  • HR and the Courts – June 2022 – CUPA-HR

    HR and the Courts – June 2022 – CUPA-HR

    by CUPA-HR | June 7, 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.

    Supreme Court to Determine Scope of Highly Paid Executive Employee Exemption Under the Fair Labor Standards Act (FLSA)

    The U.S. Supreme Court will review a 5th U.S. Circuit Court of Appeals decision in favor of an employee who was granted overtime status for his non-executive position that paid him $200,000 a year. This oil industry case will have application to all U.S. employers. The executive employee salary exemption threshold is currently $100,000 a year. At issue is whether compensation alone, absent executive/managerial status will exempt employees from the FLSA’s overtime requirements. The employee was a non-executive toolpusher on a drill rig and was paid $200,000 a year, twice the $100,000 executive salary exemption minimum.

    There is a split in the circuit courts on this issue leaving the Supreme Court to decide the issue. The 6th and 8th Circuits have ruled that non-executive employees should not be exempt from the FLSA no matter how much money they make. The 1st and 2nd Circuits allow an exemption for these workers under the salary exemption test.

    Women’s Basketball Coach Can Proceed With Title VII Sex Discrimination Lawsuit — Not Required to Arbitrate Discrimination Claims Under Her Employment Contract

    A U.S. District Court judge rejected the University of Montana’s summary judgement motion to dismiss a sex discrimination lawsuit and enforce mandatory arbitration under its former women’s basketball coach’s employment contract. The sex discrimination claims related to her performance evaluations, criticisms, and decision not to renew her employment agreement. The employment agreement had a general arbitration clause which covered contract disputes. However the court pointed out that the arbitration clause did not mention sex discrimination or bias claims. Therefore, the court concluded that the arbitration clause lacked the “requisite precision” required by the 9th Circuit for an individual to waive their rights to pursue Title VII claims in court (Schweyen V. University of Montana-Missoula (2022 BL 156392, D. Mont No. 9:21-cv-00138, 5/5/22)).

    The court concluded that the arbitration agreement, at most, was an agreement to arbitrate contract disputes as a basketball coach. The court pointed out that the clause did not mention giving up her right to file suit in court over non-contract issues such as sex bias.

    Federal Court Enjoins EEOC and HHS From Requiring Christian Employers and Healthcare Providers to Cover Gender Transition Surgery 

    A U.S. District Court trial judge in North Dakota has barred the Equal Employment Opportunity Commission (EEOC) and the Department of Health and Human Services (HHS) from requiring Christian employers and healthcare providers, under either Title VII of the Civil Rights Act of 1964 or the Affordable Care Act, to cover the cost of or provide gender transition surgery. The judge granted the injunction requested by the plaintiff, the Christian Employers Alliance, to prevent the EEOC and the HHS from requiring the group’s members to provide gender transition surgery until the case is tried on the merits and it is decided whether such a requirement violates the Christian employers’ First Amendment rights or rights under the Religious Freedom Restoration Act of 1993 (Christian Employers Alliance V. The EEOC, et al  (Case no. 1-21-cv-00195 D.N.D. 5/17/22)).

    The judge concluded that the plaintiff businesses must either violate sincerely held religious beliefs or face monetary losses, fines or civil liability. The judge concluded that the plaintiff’s likelihood of prevailing at trial on the merits, “weighed significantly in favor of granting the injunction.” The judge also enjoined the EEOC and HHS from enforcing the requirement to plaintiff employers’ insurers and third party administrators.

    Court of Appeals Reverses NLRB’s Decision Holding That the Employer’s “Back to the Salt Mine” Tweet Was an Unlawful Threat

    The 3rd U.S. Circuit Court of Appeals recently reversed a National Labor Relations Board (NLRB) decision holding that the The Federalist magazine violated the National Labor Relations Act when, during the union’s organization campaign, the magazine’s publisher tweeted that if the magazine’s employees unionized he would send them “back to the salt mine.” The appeals court ruled that no reasonable employee could actually interpret the publicly available tweet as a veiled threat. The court concluded that Twitter posts are often exaggerated and sarcastic, as Twitter encourages such approaches.

    The court also concluded that the publisher sent the tweet to 80,000 followers, which made it publicly available rather than directing it to the six magazine employees who were subject to the union organization drive.

     



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