Category: NLRB

  • 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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  • Federal Judge Blocks NCAA Name, Image and Likeness Policy for Recruits Nationwide – CUPA-HR

    Federal Judge Blocks NCAA Name, Image and Likeness Policy for Recruits Nationwide – CUPA-HR

    by CUPA-HR | February 27, 2024

    On February 23, a federal judge with the District Court for the Eastern District of Tennessee issued a preliminary injunction barring the NCAA from enforcing its rules prohibiting name, image and likeness compensation for recruits. The injunction applies nationwide.

    The policy in question prohibited student-athletes from negotiating and signing NIL contracts prior to enrolling at a college or university. This meant NIL compensation could not be used to “induce” a recruit to a specific school. This policy stood in contrast to the NCAA’s policy for student-athletes already enrolled at a college or university, who, as of 2021, have been allowed to seek NIL compensation.

    In his decision, U.S. District Judge Clifton Corker explained, “The NCAA’s prohibition likely violates federal antitrust law and harms student-athletes.” He clarified, “Without the give and take of a free market, student-athletes simply have no knowledge of their true NIL value. It is this suppression of negotiating leverage and the consequential lack of knowledge that harms student-athletes.” He further argued that the NCAA “fails to show how the timing of when a student-athlete enters such an agreement would destroy the goal of preserving amateurism,” thereby not establishing rationale for treating recruits differently than enrolled student-athletes.

    The lawsuit was filed by the attorneys general of Tennessee and Virginia after the NCAA investigated the University of Tennessee for potential violations of the policy. The NCAA will likely appeal the case to the 6th U.S. Circuit Court of Appeals overseeing Tennessee, Kentucky, Ohio and Michigan, but in the meantime, reports indicate the organization is already considering potential policy changes.

    This case is only one of the lawsuits targeting the NCAA and its policies towards student-athletes. Several lawsuits are currently pending before various federal courts, alleging the NCAA in its current form violates federal antitrust law. Additionally, the National Labor Relations Board recently ruled that the Dartmouth men’s basketball team are employees of the university, allowing them to organize and schedule a union representation election for early March. 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 the three organizations are joint employers of the athletes.

    CUPA-HR will continue to monitor for and keep members apprised of any updates on these cases.



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

    HR and the Courts — February 2024 – CUPA-HR

    by CUPA-HR | February 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.

    Basketball Players Are Employees of Dartmouth, NLRB Concludes—Union Vote Scheduled for March 5

    Student-athletes on the Dartmouth College men’s basketball team will vote March 5 on whether to join a union in an election supervised by the National Labor Relations Board. The applicable NLRB regional director issued a decision on February 5, holding that the basketball players are employees of Dartmouth, as the institution provides compensation to the athletes and exerts control over them (NLRB Reg’l Dir., No. 01-RC-325633, 2/5/24, 2/9/24).

    The basketball players filed a petition to be represented by the Service Employees International Union, Local 560, in September. Dartmouth has indicated that it will appeal the regional director’s decision to the full NLRB after the March 5 election.

    The regional director decided that the basketball players meet the definition of employees under the National Labor Relations Act because “Dartmouth has the right to control the work performed by the Dartmouth men’s basketball team.” The regional director further held that the athletes receive compensation in the form of equipment totaling nearly $3,000 an athlete per season, tickets to events, and travel and lodging from the institution.

    This is the first time that the NLRB has ruled that student-athletes are employees under the NLRA. In 2014, the NLRB declined to take jurisdiction over Northwestern University football players in denying an election in that case. The regional director in the Dartmouth case concluded that nothing in the Northwestern case precluded a later decision that student-athletes are employees under the NLRA.

    This issue is also being litigated by the NLRB on the West Coast in unfair labor practice proceedings alleging that student-athlete basketball and football players have been improperly classified as students and not employees of the University of Southern California, the NCAA and the PAC-12 Conference.

    SpaceX Challenges Constitutionality of NLRA

    SpaceX filed a formal complaint in federal district court in response to a complaint the NLRB issued. The NLRB’s complaint concerned SpaceX firing eight employees over a letter they filed within the company’s internal distribution network. The letter called into question SpaceX CEO Elon Musk’s public comments and called for the organization to distance itself from Musk. The employees were fired, and the NLRB issued a complaint alleging that they were fired in violation of the NLRA as a result of engaging in concerted activities protected by the NLRA.

    SpaceX alleges that the NLRA is unconstitutional because it violates the separation of powers and deprives the employer the right to a jury trial (Space Exploration Technologies v. NLRB et al (Case No. 1:24:00001 S.D. Tx. 1/4/24)). The lawsuit specifically alleges that the NLRB’s structure of requiring complaints to be heard and initially adjudicated by administrative law judges, with appeal rights to the NLRB and eventually to the U.S. Court of Appeals, deprives employers their right to a jury trial. SpaceX alleges that the NLRB’s administrative structure violates its Sixth Amendment right to a jury trial on criminal matters.

    NLRB Seeks to Bring More Higher Ed Religious Institutions Under Its Jurisdiction

    In a recent hearing over a case primarily involving whether the NLRB should have jurisdiction over student-athletes, the NLRB attorneys also asked the administrative law judge (ALJ) to reverse the Trump-era, 2020 decision in the Bethany College case, which broadly exempted religiously affiliated, non-profit, higher ed institutions that hold themselves out publicly as religious institutions.

    The NLRB attorneys argued that the Bethany case was wrongfully decided and that the ALJ should return to the NLRB’s prior rule laid down in the Pacific Lutheran case. Under the Pacific Lutheran decision, religious higher ed institutions are exempt from NLRB jurisdiction only if the faculty members perform religious functions in addition to lay teaching responsibilities.

    Appeals Court Revives Professor’s Claim That Termination Violated His Contract Without Due Process

    The 5th U.S. Circuit Court of Appeals (covering Louisiana, Mississippi and Texas) reversed a lower court’s dismissal of a tenured biology professor’s contract violation claim stemming from his termination. The appeals court ruled that the trial court erred in concluding that the Jackson State University professor’s claim was barred by the statute of limitations. The professor was terminated for alleged unauthorized research, which stemmed from his use of unauthorized undergraduate students to assist in his research involving the use of human urine.

    The professor was suspended in 2015. The department chair concluded in mid-2015 that he would recommend the professor’s termination based on the reports he heard. In 2018, the faculty personnel committee sided with the professor, but the university president rejected the committee’s reinstatement recommendation in 2018. In March 2019, the board of the Mississippi Institutions of Higher Learning (IHL) terminated the professor per the university president’s decision. The professor sued in 2022, and the trial court dismissed on three-year statute-of-limitations grounds. The appeals court reversed, holding that the IHL decision, which was the final termination decision, was when the statute of limitations would start running and therefore the lawsuit was filed within the three-year statute of limitations and can go forward.

    EEOC on Alert for Workplace Discrimination Resulting From Israel-Hamas War

    At her first press event as the Equal Employment Opportunity Commission’s new general counsel, Karla Gilbride indicated that the EEOC has received reports from workers and advocacy organizations representing the Jewish, Muslim and Arab communities of an increase in workplace discrimination against protected groups resulting from the Israel-Hamas war. The EEOC has signaled interest in pursuing domestic workplace discrimination that may result from “local, national or global events.” The general counsel indicated that it is a priority in the agency’s strategic enforcement plan to be responsive in this area.

    Gilbride concluded, “We’re reviewing that data to get a better handle on whether we at EEOC are recognizing an uptick in discrimination on the basis of religion or national origin affecting Jewish, Muslim and Arab communities or people who might be perceived as belonging to those communities even if they did not actually belong to those communities.” The general counsel indicated that global events in the past, such as 9/11, have led to an increase in domestic workplace discrimination.

    Employee at University of Michigan at Dearborn Has First Amendment, Free Speech Right to Speak to Press

    The 6th Circuit U.S. Court of Appeals (covering Kentucky, Michigan, Ohio and Tennessee) rejected the University of Michigan at Dearborn’s defense of sovereign immunity and allowed a university employee’s claim of First Amendment speech retaliation to proceed (Ashford v. Univ of Michigan (6th Cir., No. 22-02057, 1/9/24)). The appeals court held that the employee’s speaking to the press about the university’s “mishandling” of a student’s sex harassment complaint against a professor was a matter of public concern. Further, this matter was not part of the employee’s job responsibilities or duties. The court held that the employee was speaking as a private citizen on a matter of public concern and is therefore allowing the employee’s request that his 10-day suspension be expunged to move forward.

    The employee is also requesting an injunction against the university barring future retaliation for speech he might engage in. According to the lawsuit, the plaintiff alleged that the local campus police mishandled a student’s sex harassment complaint. The plaintiff alleged that he raised his concerns internally with his supervisor and with campus security before speaking with the press. The employee also alleges that the newspaper came to him for comment and initiated the process, which led to his statement. The court reiterated that the plaintiff was not speaking to further his official duties but was speaking as a private citizen.

    Yale Professor Sues, Claiming Sex Discrimination Against Males

    A federal trial court recently ruled that a Yale University medical school professor’s claim of gender discrimination can proceed to trial. The claims of discrimination result from the university’s additional decision to remove the professor’s endowed chair designation, sometime subsequent to the university’s initial punishment for his sex harassment transgressions (Simons v. Yale University (2024 BL 15344, D. Conn., No. 3:19-cv-01547, 1/17/24)).

    The professor alleged that only men are subject to multiple punishments for the same infraction. The court ruled that losing an honorific title could be an adverse job action even if pay was not reduced in that action. The court concluded that the plaintiff had previously been punished in multiple ways concerning the incident, including losing his positions as chief of the section of cardiovascular medicine and director of the university’s cardiovascular research center.



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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 — 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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  • Biden Administration Releases Spring 2023 Regulatory Agenda – CUPA-HR

    Biden Administration Releases Spring 2023 Regulatory Agenda – CUPA-HR

    by CUPA-HR | June 26, 2023

    On June 14, the Biden administration released its Spring 2023 Unified Agenda of Regulatory and Deregulatory Actions (Regulatory Agenda), providing the public with an update on the regulatory and deregulatory activities under development across approximately 67 federal departments, agencies and commissions. This release serves as the first Regulatory Agenda for the 2023 year, setting target dates for regulatory actions in the coming year.

    CUPA-HR’s government relations team has completed a thorough review of the Spring 2023 Regulatory Agenda and put together the following list of noteworthy proposed actions for members.

    Department of Labor

    Wage and Hour Division — Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales and Computer Employees

    According to the Regulatory Agenda, the Department of Labor (DOL)’s Wage and Hour Division (WHD) has again delayed the Notice of Proposed Rulemaking (NPRM) to address changes to the Fair Labor Standards Act (FLSA)’s overtime pay requirements to August 2023. The WHD first announced their intention to move forward with the NPRM in the Fall 2021 Regulatory Agenda, stating its goal “to update the salary level requirement of the section 13(a)(1) exemption [under the FLSA].”

    As a reminder, changes to overtime pay requirements have been implemented through regulations under both the Obama and Trump administrations. In May 2016, the Obama administration’s DOL issued a final rule increasing the salary threshold from $23,660 to $47,476 per year and imposed automatic updates to the threshold every three years. However, court challenges prevented the rule from taking effect, and it was permanently enjoined in September 2017. After the Trump administration started the rulemaking process anew, the DOL issued a new final rule in September 2019 raising the minimum salary level required for exemption from $23,660 annually to $35,568 annually. This final rule went into effect January 1, 2020, and remains in effect today.

    Since the regulation’s reintroduction in the Fall 2021 Regulatory Agenda, CUPA-HR has participated in several DOL listening sessions and has sent letters to the DOL expressing concerns with the timing of the rulemaking. In a recent letter, CUPA-HR joined other associations in calling for the Department to postpone or abandon the anticipated overtime rulemaking, citing concerns with supply chain disruptions, workforce shortages, inflation, and shifting workplace dynamics.

    Wage and Hour Division — Employee or Independent Contractor Classification Under the Fair Labor Standards Act

    In August 2023, the WHD anticipates issuing a final rule to amend the current method for determining independent contractor status for workers.

    On October 13, 2022, the DOL published an NPRM to rescind the current method for determining independent contractor status under the FLSA. The current test, finalized by the Trump administration in 2021, has two core factors of control and investment with three additional factors (integration, skill and permanency) that are relevant only if those core factors are in disagreement. The Biden rule proposes a return to a “totality-of-the-circumstances analysis” of multiple factors in an economic reality test, including the following six factors, which are equally weighted with no core provisions:

    • the extent to which the work is integral to the employer’s business;
    • the worker’s opportunity for profit or loss depending on managerial skill;
    • the investments made by the worker and the employer;
    • the worker’s use of skill and initiative;
    • the permanency of the work relationship; and
    • the degree of control exercised or retained by the employer control.

    Employment and Training Administration — Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States 

    The DOL’s Employment and Training Administration (ETA) has moved the “Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States” proposed rule to the list of long-term actions to be taken by the agency, anticipating a release of the NPRM in June 2024. According to the listing in the regulatory agenda, the NPRM will seek to establish “a new wage methodology for setting prevailing wage levels for H-1B/H-1B1/E-3 and PERM programs consistent with the requirements of the Immigration and Nationality Act.”

    The upcoming NPRM will likely amend the Trump administration’s final rule that was scheduled to take effect on November 14, 2022, but was subsequently vacated by a federal court in June 2021. The new proposal will take into consideration the feedback it received in response to a Request for Information (RFI) on data and methods for determining prevailing wage levels “to ensure fair wages and strengthen protections for foreign and U.S. workers.”

    CUPA-HR filed comments in opposition to the Trump administration’s regulations on the issue and in response to the Biden administration’s RFI.

    Department of Education

    Office for Civil Rights — Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance 

    In October 2023, the Department of Education’s Office for Civil Rights (OCR) plans to release its highly anticipated Title IX final rule. The rulemaking would finalize the June 2022 NPRM to roll back and replace the Trump administration’s 2020 regulations while simultaneously expanding protections against sex-based discrimination to cover sexual orientation, gender identity, and pregnancy or related conditions.

    CUPA-HR filed comments in September 2022 in response to the NPRM. In our comments, we brought attention to the possible impact the proposed regulations could have on how higher education institutions address employment discrimination.

    On May 26, the Department of Education published a blog post stating that the release of the anticipated Title IX final rule will be delayed until at least October 2023. The final rule was previously targeted in the Fall 2022 Regulatory Agenda for May 2023. The department stated that they need additional time to review the 240,000 comments they received in response to the Title IX proposed rule.

    Nondiscrimination on the Basis of Sex in Athletics Education Programs or Activities Receiving Federal Financial Assistance

    The Department of Education also plans to release the Title IX final rule for student eligibility in athletic programs in October 2023. The rule would finalize the NPRM that was released by the Department in April 2023.

    Under the NPRM, schools that receive federal funding would not be permitted to adopt or apply a “one-size-fits-all” ban on transgender students participating on teams consistent with their gender identity. Instead, the proposal allows schools the flexibility to develop team eligibility criteria that serves important educational objectives, such as fairness in competition and preventing sports-related injuries. The Department further explains that the eligibility criteria must take into account the sport, level of competition, and grade or education level of students participating, and the criteria would have to minimize harm to students whose opportunity to participate on a team consistent with their gender identity would be limited or denied.

    The NPRM received over 150,000 comments addressing support for and concerns with the NPRM. Again, the Department must review all comments before issuing a final rule to implement these regulations, which may lead to a further delay.

    National Labor Relations Board

    Joint Employer

    In August 2023, the National Labor Relations Board (NLRB) plans to release its anticipated final rule to amend “the standard for determining whether two employers, as defined under the National Labor Relations Act (NLRA), are a joint employer under the NLRA.”

    On September 7, 2022, the NLRB issued an NPRM on the joint employer standard. The NPRM 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. According to the NLRB’s press release, the board “proposes to consider both direct evidence of control and evidence of reserved and/or indirect control over these essential terms and conditions of employment when analyzing joint-employer status.”

    Department of Homeland Security

    U.S. Immigration and Customs Enforcement — Optional Alternative to the Physical Examination Associated With Employment Eligibility Verification (Form I-9) 

    According to the Regulatory Agenda, the Department of Homeland Security (DHS) plans to issue a final rule in August 2023 that would finalize the agency’s proposed rule aiming to “revise employment eligibility verification regulations to allow the secretary to authorize alternative document examination procedures in certain circumstances or with respect to certain employers.”

    On August 18, 2022, the DHS published its NPRM on optional alternative examination practices for employers when reviewing an individual’s identity and employment authorization documents required by the Form I-9, Employment Eligibility Verification. If finalized, the proposed rulemaking would create a framework under which the secretary of Homeland Security could allow alternative options for verifying those documents, such as reviewing the documents via video, fax, or email rather than directly allowing employers and agents to use such alternative examination options. According to the NPRM, the secretary would be authorized to implement the alternative examination options in a pilot program if they determine such procedures would offer an equivalent level of security, as a temporary measure to address a public health emergency declared by the secretary of Health and Human Services, or a national emergency declared by the president.

    CUPA-HR filed comments in response to the DHS NPRM in October 2022. The comments were supportive of the Department moving forward with the NPRM, but cautioned against requiring secondary, in-person review of I-9 documents after virtual inspection and once an employee is in-person on a regular and consistent basis; issuing training for document detection and/or anti-discrimination training that may be offered at a high cost without proper vetting, and requiring institutions to be enrolled in E-Verify to participate in the alternative options.

    On a related noted, on May 4, 2023, the U.S. Immigration and Customs Enforcement (ICE) announced it will provide employers with 30 days to reach compliance with in-person Form I-9 requirements after the COVID-19 flexibilities sunset on July 31, 2023. ICE previously introduced temporary flexibilities in response to the COVID-19 pandemic in March 2020, allowing employers to review employees’ identity and employment authorization documents remotely, rather than in person. This virtual inspection was to be followed by a physical examination within three business days after normal operations resumed. With the new final rule set for earliest release in August 2023, employers will likely have to resume traditional Form I-9 examination practices until the new final rule goes into effect.

    U.S. Citizenship and Immigration Services — Modernizing H-1B Requirements and Oversight and Providing Flexibility in the F-1 Program

    In December 2023, the DHS’s United States Citizenship and Immigration Services (USCIS) plans to release an NPRM to “amend its regulations governing H-1B specialty occupation workers and F-1 students who are the beneficiaries of timely filed H-1B cap-subject petitions.” The NPRM will specifically propose to “revise the regulations relating to ‘employer-employee relationship’ and provide flexibility for start-up entrepreneurs; implement new requirements and guidelines for site visits including in connection with petitions filed by H-1B dependent employers whose basic business information cannot be validated through commercially available data; provide flexibility on the employment start date listed on the petition (in limited circumstances); address ‘cap-gap’ issues; bolster the H-1B registration process to reduce the possibility of misuse and fraud in the H-1B registration system, and clarify the requirement that an amended or new petition be filed where there are material changes, including by streamlining notification requirements relating to certain worksite changes, among other provisions.”

    CUPA-HR continues to monitor these regulations and will keep members apprised of any significant updates.



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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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