Category: NLRB

  • 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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  • HR and the Courts – January 2023 – CUPA-HR

    HR and the Courts – January 2023 – CUPA-HR

    by CUPA-HR | January 18, 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.

    Divided Court of Appeals Rules That Separating Bathrooms By Biological Sex Does Not Violate the Constitution or Title IX — Transgender Student’s Discrimination Claim Denied

    The full 11th U.S. Circuit Court of Appeals (covering Florida, Alabama and Georgia) recently held in a sharply divided 7 to 4 decision that separating school bathrooms by biological sex is constitutional and does not violate Title IX. The majority decision is subject to multiple dissents (Adams v. School Board of St. Johns County, Florida (11th Cir. No. 18-13592, 12/30/22)). The case involved a St. Johns County, Florida, school board, which restricted bathroom use by biological sex, not allowing students who identified with a sex different from their biological sex to use the bathroom of their choice.   

    The majority decision rejected the transgender plaintiff’s reliance on the Supreme Court decision in Bostock v. Clayton County, which held that under federal job discrimination law, sex discrimination includes bias based on gender identity or sexual orientation. The majority decision pointed out that a school setting “is not the workplace,” and Bostock expressly decided not to tackle the issue of sex-segregated locker rooms or bathrooms. The majority concluded that the U.S. has a long history of separating sexes when it comes to the use of public bathrooms, and such sex-based classifications have never necessarily violated the Equal Protection Clause. It is likely that other circuits may decide this issue differently, setting up an ultimate decision on this issue by the Supreme Court.  

    NLRB Expands Damage Remedies Against Employers Who Commit Unfair Labor Practices

    The National Labor Relations Board (NLRB), in a decision applicable to all private colleges and universities in America, recently ruled that it will award damages in addition to back pay and reinstatement to employees who are subject to unfair labor practices (Thryv Inc. (N.L.R.B. Case No. 20-CA-250250, 12/13/22)). The case was brought by the NLRB against Thryv Inc., a software and marketing company, which the NLRB alleged violated the National Labor Relations Act (NLRA) by laying off employees without first bargaining with the union.  

    The NLRB ruled 3 to 2 (with two Republican member dissenters) that its “make-whole” remedies for employees affected by unfair labor practices will include damages that are the “direct and foreseeable pecuniary harm” resulting from an employer’s unfair labor practice, in addition to back pay and reinstatement. For example, this would include out of pocket costs for medical payments that would have been covered by an employer’s health insurance had the employee continued to be employed but for the unlawful termination. 

    Firefighter Loses First Amendment Religious Objection to Being Photographed for ID and Accountability Card

    A Christian firefighter from Bourne, Massachusetts, lost his First Amendment religious claim against his fire department after he was disciplined (suspended for 24 hours and ineligible for pay increases for at least six months) for refusing to be photographed for his ID card and accountability tag that would be attached to his firefighting gear and used at fire scenes (Swartz v. Sylvester (2022 BL 416412, 1st Cir., No. 2101568, 11/21/22)). The firefighter claimed that his religious beliefs precluded him from engaging in acts of self-promotion and that the photos might be used for promotional purposes. 

    The fire chief’s directive came after he became aware that some firefighters had worn ties and others wore t-shirts for their ID and authentication tag photos. The fire chief issued a directive that all firefighters would sit for their photos wearing their dress uniform for consistency. The photos would also be used in a display at the firehouse, be submitted to the media when a firefighter died in the line of duty and might be submitted to the media following a firefighter’s promotion.  

    In rejecting the plaintiff’s claim, the court concluded that the directive was applied uniformly, without exception, was facially neutral and was rationally related to the legitimate government purpose of publicizing the fire department and promoting the integrity of governmental institutions. 

    NLRB General Counsel Concludes That the NCAA Violated the NLRA By Failing to Treat Student-Athlete Basketball and Football Players as Employees

    The NLRB general counsel has concluded that the NCAA is violating the NLRA by failing to treat student-athlete basketball and football players as employees. The decision could eventually lead to the ability of these student-athletes to form labor unions. Absent settlement of the case, the NLRB Los Angeles Regional Office will issue a complaint against the NCAA and likely the Pac-12 Conference and the University of Southern California for failure to treat these student-athletes as employees. The case was brought to the NLRB by the National College Players Association, an advocacy group seeking to organize student-athletes. The final decision as to whether student-athletes are employees rests with the full NLRB, which will eventually address this matter. 

    New York Temporarily Abandons Statute of Limitations on State Law Sex Harassment Claims

    New York state has temporally done away with the statute of limitations on sex abuse claims, giving adult victims of sex abuse one year to file a claim against employers and offenders seeking financial compensation. The Adult Survivors Act, which became effective November 24, 2022, gives victims of alleged sex abuse a one year period to file a claim in New York no matter when the alleged abuse occurred. The new statute is intended to fill the gap left by 2019 legislation, which expanded New York’s statute of limitations on sex abuse cases from one year to 20 years, but did not do so retroactively.  

    Jury Awards Former Softball Coach $800,000 in Damages for Emotional Pain and Mental Anguish in Sex Discrimination Case

    A federal court jury has awarded a former university baseball coach $800,000 in damages for alleged emotional pain and mental anguish in a sex discrimination case in which the former coach alleged she was paid less than male comparators and was suspended from her position because of her sex. She had been suspended from her position following parental complaints about her coaching style. She alleged that a male coach who was the subject of similar parental complaints was treated less severely. The court dismissed her complaint with regard to salary discrimination, but allowed her discriminatory suspension allegations to proceed to a jury trial. The $800,000 jury award is subject to the university’s Motion for Judgment, not on the verdict likely to be filed after a final award is formalized by the federal district court judge (Hall v. Alabama State University (M.D. Ala. No. 16-cv-00593, 12/19/22)).  

    The jury trial proceeded for two days, and the jury concluded that the plaintiff’s gender was a motivating factor in the decision to suspend her.   

    Boston College Trustees Sued in Class-Action Lawsuit Claiming ERISA Violations in Allegedly Allowing “Above Market” Administrative Fees to Be Paid to Investment Adviser Without Competitive Bidding

    A federal district court judge recently denied the motion for summary judgement filed by defendants and allowed a class-action lawsuit to proceed against the trustees at Boston College who were sued for allegedly allowing “above market” record-keeping fees and “excessive” investment-management fees, which plaintiff’s claimed were not properly monitored or assessed through a competitive bidding process. In ruling the motion a “close call,” the judge allowed the lawsuit to proceed to discovery into the institution’s and trustees’ conduct (Sellers v. Trustees of Boston College (2022 BL 461759, D. Mass. No. 1:22-cv-10912, 12/27/22)).

    The plaintiffs also challenged the alleged inadequate performance of certain plan investments. The retirement plans in question cover approximately 3,000 employees and contain over $1.1 billion in assets. In allowing the case to proceed, the judge concluded that the plaintiffs are alleging more than poor performance during a limited time. The plaintiffs are alleging that the institution and trustees were not aware of the historical imprudence of certain investments or recent published court decisions regarding questionable fees and investments in this area.  



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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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  • Labor and Employment Policy Updates — October 2022 – CUPA-HR

    Labor and Employment Policy Updates — October 2022 – CUPA-HR

    by CUPA-HR | October 22, 2022

    As the 2022 midterm election nears, Congress has turned its focus to campaigning and essentially halted legislative action until after the election. Despite the lack of activity from Congress, federal agencies have continued to push forward with anticipated regulatory actions in the labor and employment policy area. This blog post details some of the regulatory activity CUPA-HR is currently monitoring, as well as a stalled nomination for a top position at the Department of Labor (DOL).

    NLRB Joint Employer Rule

    On September 7, the National Labor Relations Board (NLRB) issued a notice of proposed rulemaking (NPRM) on the joint employer standard. Generally speaking, the NPRM proposes to expand joint employer status to entities with indirect or reserved control over essential terms and conditions of employment.

    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, 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.”

    Comments in response to the proposal were originally due November 7, but after stakeholders requested an extension to the filing deadline the Board extended the comment period to December 7.

    Independent Contractor Rule

    On October 13, the DOL published an NPRM to rescind the current method for determining independent contractor status under the Fair Labor Standards Act. 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.

    Comments in response to the NPRM are due November 28.

    Jessica Looman Nomination

    On September 13, the Senate Health, Education, Labor and Pensions (HELP) Committee held a hearing on the nomination of Jessica Looman to serve as Administrator of the DOL’s Wage and Hour Division (WHD). Looman was officially nominated for the position in July 2022, months after Biden’s previous nominee David Weil failed to receive 50 votes to clear the Senate floor and become the WHD Administrator.

    Looman has not yet had a committee vote to move her nomination to a full Senate floor vote. It is unclear when a Senate HELP vote will take place, but is likely to come after the election in November. Regardless of the timing on a vote, Looman continues to carry out the WHD’s rulemaking agenda in her current role as the Principal Deputy Administrator.

    CUPA-HR will keep members apprised of any updates relating to the rulemakings and nomination discussed above.



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

    HR and the Courts – September 2022 – CUPA-HR

    by CUPA-HR | September 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.

    University Football Coach’s First Amendment Retaliatory Discharge Claim For Posting “All Lives Matter” Sign On His Office Door Proceeds

    A federal district court judge recently denied a University of Illinois motion to dismiss its former offensive coordinator’s claim that his retaliatory termination was in violation of his First Amendment rights by posting a handwritten note on his office door stating “All lives matter to our lord and savior Jesus Christ.” The federal judge ruled that the former coach was not acting within his official duties when he posted the note. The judge concluded that the plaintiff was not paid by the university to decorate his office door, but rather was paid to coach football. Therefore, the note expressed his personal views (Beathard v. Lyons (C.D. Ill,. No, 21-cv-01352, 8/11/22)).

    The court ruled that it is premature to decide whether the university can justify the termination because “there is not enough information to properly weigh” the interests of the university against that of the public employee in this matter. The plaintiff alleges that someone posted a general statement without his permission that supported Black athletes at the university in the wake of George Floyd’s death. He claims to have taken down the note and posted his own handwritten note. According to the complaint, his note upset some players who boycotted practice. CUPA-HR will follow developments in this case.

    Federal Appellate Court Holds That Gender Dysphoria Is a Disability Covered Under the ADA

    The Fourth Circuit Court of Appeals (covering Maryland, Virginia, West Virginia, North Carolina and South Carolina) recently became the first federal appellate court to rule that gender dysphoria is a disability covered under the Americans with Disabilities Act (ADA). The 33-page majority decision was accompanied by a 21-page dissent. The appellate panel ruled 2-to-1 that gender dysphoria is covered under the ADA (Williams v. Kincaid (4th Cir. 21-2030. 8/16/22)).

    The ADA contains a statutory provision excluding gender identity disorders from coverage under the ADA. The appellate court noted that the American Psychiatric Association (APA) removed gender identity disorders from its diagnostic manual nearly a decade ago. Gender identity disorders had referred to a condition of identifying as a different gender. The APA replaced the gender identity disorder diagnosis with the more modern diagnosis of gender dysphoria. Gender dysphoria is currently contained in the APA’s diagnostic manual and is a “clinically significant distress or impairment related to a strong desire to be another gender.” The APA says that the condition can interfere with an individual’s social life, their ability to do their job and other daily functions.

    The appellate court concluded that the “plain meaning” of the ADA’s exclusion of gender identity disorders as “it was understood at the time of enactment” does not then or now exclude gender dysphoria from ADA coverage. The court concluded that “the obsolete definition focused on cross gender identification; the modern one on clinically significant distress.” The dissent disagreed stating that “Judicially modifying the meaning of a statute because of society’s changing attitudes not only invades the province reserved for legislature, it turns the statute into a moving target.”

    Transgender Class Against the State of West Virginia Alleging State’s Denial of Gender-Affirming Care Violates Obama Care Statute Prevails in Trial Court

    A class of more than 600 transgender Medicaid participants prevailed in federal court against the state of West Virginia where a federal judge held that the state’s denial of gender-affirming care violated the federal anti-discrimination provisions of the Obama Care statute and the U.S. Constitution (Fain et al v. Crouch et al (3:20- cv-00740 S.D. W.Va.. 8/2/22)). The case may have applicability to other state medical and health plans.

    The court recognized that often the same procedure is used to treat a variety of cases and it is unlawfully discriminatory to deny transgender patients similar treatment given to non-transgender patients.

    Court of Appeals Approves NLRB Order for Private Employer to Pay Union Legal Fees Incurred in Collective Bargaining Process

    In a case applicable to private colleges and universities which are subject to National Labor Relations Board (NLRB) jurisdiction, the U.S. Court of Appeals for the Ninth Circuit (covering California, Oregon, Washington, Montana, Idaho, Nevada and Arizona) affirmed an NLRB decision ordering an employer to pay its union’s legal fees incurred in the collective bargaining process (NLRB v. Ampersand Publishing (9th Cir. No. 21-71060, 8/11/22)).

    The Ninth Circuit concluded that although the NLRB lacks jurisdiction to award attorney fees as a remedy in the litigation context, it is fully within their authority to award such a remedy in the collective bargaining context. In this case, the union filed unfair labor practice charges alleging the employer’s refusal to bargain. The union claimed it had to incur extra attorney fees as part of the bargaining process because of the employers violation. The court rejected the employer’s argument that the legal fees were akin to litigation costs because of the unfair labor practice charges filed with the NLRB. The NLRB disagreed and attributed the attorney fees of $42,000 to the collective bargaining process. The case involved the Santa Barbara News Press as the employer and a local teamster affiliate that has incurred the legal fees.

    IRS Initiates Pilot Program Allowing Workplace Employee Benefit Plans to Correct Errors Before Formal Audits Commence

    Under a new pilot program, the Internal Revenue Service (IRS) will allow workplace benefit plans to correct errors before investigators formally commence an audit. As part of a new pilot project, about 100 U.S. workplace benefit plans, including retirement plans, have received letters from the IRS since June allowing selected plans a 90-day window to correct mistakes in plan design, administration or documentation before regulators launch formal audits or close out case files.

    Self-identified corrections of this sort are not new to the IRS, however, before this pilot they were only available to employers who had not been targeted by an audit.

    Federal Judge Blocks Florida Workplace Bias Training Restrictions 

    A federal district court judge approved a preliminary injunction barring the enforcement of a Florida statute which restricts workplace bias training from teaching about unconscious bias. The Florida statute known as the Individual Freedom Act (IFA) bars employers from endorsing various race, sex and ethnicity-based concepts during workplace training.

    The plaintiffs are a coalition of employers and diversity and inclusion specialists who conduct workplace training. The judge ruled that the Florida statute likely violates the First and Fourteenth Amendments and that the plaintiffs will incur irreparable harm if the IFA is allowed to be enforced (Honeyfund.com Inc. et al v. Ron DeSantis et al (Case no. 4:22-cv-00227. N.D. Fla., 8/18/22)).



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

    HR and the Courts – August 2022 – CUPA-HR

    by CUPA-HR | August 9, 2022

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

    EEOC Reaches Settlement Banning Employer Collection of Family COVID-19 Testing Results — GINA Implications 

    In a case involving a dermatology medical practice in Florida, the EEOC reached a settlement of the charge it brought against the employer medical. The case alleged that the employer violated the Genetic Information Nondiscrimination Act of 2008 (GINA) when it collected family COVID-19 testing results of its employees. Title II of GINA bans employers from collecting an employee’s genetic testing results and a worker’s family medical history.

    However, the EEOC also issued guidance stating that an employer can still ask its employees if they had contact with anyone who has been diagnosed with COVID-19 or who has had symptoms of COVID-19. Nonetheless GINA prohibits employers from inquiring directly and specifically as to the COVID-19 status of an employee’s family members.

    The EEOC also recently issued guidance on July 12, 2022, that, going forward, before requiring employees to submit to COVID-19 testing, employers should consider whether current pandemic circumstances and individual workplace circumstances justify viral screening of employees. Essentially the EEOC’s position is that before going forward with workplace COVID-19 screening, the employer must demonstrate a “business necessity” based on general pandemic circumstances and individual workplace circumstances.

    Federal Court Holds That Discharge Proximity to an Employee’s Filing for Extended FMLA Leave Warrants a Jury Trial Over Retaliatory Discharge Claims 

    A federal district judge recently ruled that a plaintiff’s claim that her discharge shortly after seeking an extension in FMLA leave to deal with mental health problems was retaliatory  warrants a jury trial over FMLA retaliatory discharge allegations and dismissed the employer’s motion for summary judgement. The plaintiff was a human resources manager who allegedly suffered from depression and anxiety. The employer argued that it was entitled to summary judgement because the plaintiff was discharged before the employer made a decision on the FMLA extension request. The judge concluded that gaps and inconsistencies in the employer’s explanation of the reasons for discharge warrant a finding of fact by a jury as to the timing and reason for discharge (Moryn v. G4S Secure Solutions USA, Inc. (2022 BL 222775 Dist Minn. No. 0:21-cv-00123, 6/28/22)).

    The plaintiff had requested and received a three-month leave of absence based on the recommendation of her physician for mental health reasons. When the three-month leave concluded, the employee requested an additional month followed by a part-time work schedule that progressively added more days to the job.

    Separately the judge dismissed the allegations under Minnesota state discrimination law related to disability discrimination and the allegations that the employer failed to accommodate the plaintiff.

    Court of Appeals Rules That a State Agency’s Banning of “Black Lives Matter” Adornments to Employee Uniforms Violates the First Amendment

    The U. S. Court of Appeals for the 3rd Circuit (covering Pennsylvania, New Jersey and Delaware) affirmed the decision of a federal trial court, which ruled that a Pennsylvania local transit authority violated the First Amendment guarantee of free speech by prohibiting Black Lives Matter adornments on employees’ uniforms as part of its policy prohibiting political and social adornments on employee uniforms.

    The court of appeals also ruled that the Allegheny County Port Authority’s policy revision, which allowed employees to wear only certain masks to make it easier for the authority to enforce its ban on Black Lives Matter messaging, violated the First Amendment. The case challenging the transit authority’s policies was brought by the employees’ union in Amalgamated Transit Union Local 85 v. Port Authority of Allegheny County (3rd Cir. No. 21-1256, 6/29/22 ).

    U.S. Supreme Court Rules in Favor of Football Coach’s After-Game Prayer, Concluding His Discharge Violates the First Amendment Free Speech and Religion Provisions 

    In a long-awaited and controversial decision, the U.S. Supreme Court ruled against a school district firing of a football coach who refused to abandon his long-practiced ritual of kneeling in prayer at the 50-yard line at the conclusion of each football game. In doing so, the Supreme Court overruled the decision of the 9th U.S. Circuit Court of Appeals ruling in favor of the school district. The football coach argued that he had agreed to the school district’s demands that he stop leading prayers with his players, but wanted to continue taking a knee in prayer alone after each game.

    Justice Neil Gorsuch concluded that the case was about “three quiet prayers,” and because no student joined in those prayers, the coach was acting as a private citizen, not a school employee or coach. The justice concluded that the coach was not acting within the scope of his activities as a coach and therefore his actions were protected by the First Amendment. The Supreme Court decision was a divided one, 6 to 3 (Kennedy v. Bremerton School District ( US 21-418, 6/27/22 )).

    NLRB Reports That Private-Sector Union-Organizing Petitions Have Risen 58% and Unfair Labor-Practice Charges Filed by Employees Have Risen 16% in Fiscal Year 2022

    The National Labor Relations Board (NLRB) reported a sharp increase in private-sector union-organizing petitions filed during the first three quarters of fiscal 2022 (October 1-June 30), concluding that union-organizing petitions rose by 58%. The increase in union-organizing petitions has been across the board in the private sector and not limited to high-profile organizing nationwide at Starbucks and Amazon. U.S. workers filed 1,892 organizing petitions in the first three quarters of fiscal 2022 as compared to 1,197 petitions in the first three quarters of fiscal 2021.

    The data also show that U.S. workers filed 16% more unfair labor-practice charges against employers during the first three quarters of fiscal 2022. Unfair labor-practice charges at the end of June had increased from 11,451 in fiscal 2021 to 13,105 in fiscal 2022.



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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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  • HR and the Courts – CUPA-HR

    HR and the Courts – CUPA-HR

    by CUPA-HR | March 9, 2022

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

    National College Players Association Files Unfair Labor Practice Charges Against the NCAA and Multiple Public and Private Colleges, Asserting College Basketball and Football Players Are Employees Under the NLRA

    The National College Players Association (NCPA), a non-profit advocacy group, has filed unfair labor practice charges with the National Labor Relations Board (NLRB) asserting that private and public universities, USC and UCLA, as well as the National Collegiate Athletic Association (NCAA) and the Pac-12 conference as joint employers have violated the National Labor Relations Act (NLRA) in refusing to treat college basketball and football players as employees. The NCPA hopes to convince the NLRB to rule that all division college basketball and football players at public and private colleges and universities are employees with collective bargaining rights.

    The current NLRB general counsel has stated publicly that she believes that student-athletes at private colleges and universities are employees subject to coverage under the NLRB. Nonetheless, the NLRB with jurisdiction over private colleges and universities has not yet ruled on the issue. The NCPA asserts that public colleges and universities will be covered because they are joint employers with the NCAA and the Pac-12 conference, both of which are private organizations subject to NLRB jurisdiction. This joint employer argument has not been ruled on by the NLRB in the past.

    U.S. Court of Appeals to Consider Whether Student-Athletes Are Employees Under the FLSA and Must Be Paid Minimum Wage and Overtime 

    Apart from the action described above concerning whether student-athletes are employees under the NLRA and therefore subject to unionization and mandatory collective bargaining, the U.S. Court of Appeals for the Third Circuit (covering Pennsylvania, New Jersey, Delaware and Maryland) will hear an appeal by colleges that the lawsuit by student-athletes seeking coverage under the Fair Labor Standards Act (FLSA) and minimum wage and overtime payments should not go to trial, but rather should be dismissed under current precedent. The lawsuit was filed in Pennsylvania against the NCAA and several Division-I colleges.

    The federal trial court judge denied the NCAA’s and college’s motion for summary judgment and ordered that the case proceed to trial. The NCAA and colleges argued that the trial court judge’s decision contradicted the decision of the Seventh Circuit Court of Appeals (covering Wisconsin, Illinois and Indiana) and a California state court case ruling that the student-athletes are not employees under the FLSA (Johnson et, al v. NCAA et al (3rd Cir., Case no. 22-8003, 2/4/22)).

    Gymnastics Coach Claims Gender Bias and Sex Stereotype That Female Coaches Are Not Expected to Be As Aggressive as Their Male Counterparts as Reasons For Her Termination  

    A former Towson University gymnastics coach was terminated after the university received complaints from gymnastics team members claiming that her coaching techniques were discriminatory against Black team members, that she bullied team members into competing while injured and that she did not adequately feed the team. The coach claimed that the termination resulted from the sex stereotype that female coaches are not expected to be as aggressive as their male counterparts.

    The university countered that her discharge resulted from valid complaints by team members. The university also argued that it is the coach who is guilty of sex stereotyping with regard to her defense that female athletes are more likely to complain about her coaching practices than male athletes. The university also responded to the coach’s claim of pregnancy discrimination, arguing that the coach never explicitly advised the university that she was pregnant. The coach claimed that she was visibly pregnant at her last meeting with the university. The case is pending in federal district court in Maryland (May v. Towson University (Case no. 1:21-cv-02229, D. Md.)).

    Federal Court Rules School District Likely Violated Constitutional Rights of Three Paraprofessionals Who Were Prohibited From Wearing Black Lives Matter and Other Anti-Racism Messaging 

    A federal district court trial judge ruled in favor of three paraprofessional employees who were prohibited by their school district from wearing masks and other clothing with Black Lives Matter and other anti-racism messaging. The judge ruled that the school board’s actions “likely” violated First Amendment free speech rights (Fuller et al v. Warren County Educational Service Center et al (2022 BL 48702, S.D. Ohio 2/14/22)).

    The judge ruled that the school district must immediately lift its ban on any such controversial social or political messaging while the case is litigated further. The judge ruled that the employees’ messaging addresses a matter of public concern and they “spoke” as private citizens by making statements on Black Lives Matter and other related issues that are not within their job duties. The judge concluded that the school district did not demonstrate that the wearing of the material would disrupt school operations. While avoiding an emotional or violent outburst by a sensitive student body would justify the ban, the school district did not prove the likelihood of such a development. The judge also concluded that there was no evidence supporting the school district’s concerns, making them purely conjectural and outweighed by the free speech rights of the employees.

    Professor Files ADA and Rehab Act Discrimination Case Alleging His Heightened COVID-19 Risk Is a Disability and He Was Unfairly Denied a Reasonable Accommodation to Continue Teaching Remotely

    A former science professor at Georgia Military College sued the college’s board of directors in federal court after he was put on an unpaid suspension and ultimately terminated following the alleged denial of his accommodation request that would allow him to teach his classes remotely based on his doctor’s advice that he was of high risk for COVID-19 because of numerous conditions, including Crohn’s disease, kidney failure and anemia. The professor asked that he be allowed to continue teaching remotely as he had allegedly done for six months before the college asked most professors to resume teaching in person. The professor alleges that other professors were allowed to continue teaching remotely in small class situations, but he was denied his request because his class was very large due to the popularity of his teaching (Fields v. Board of Trustees of Georgia Military College and Georgia Military Prep School (M. Dist. Ga. 5-22-cv-00074)).

    The professor claimed that he was a former recipient of a teaching excellence award at the school and was treated “dismissively” in his denial of his accommodation request. He also claims he was allowed to teach remotely due to his disabilities in 2016, prior to the pandemic, and that is when he received the teaching excellence award. The college claimed it responded to his accommodation request by offering him two alternatives: return to teaching in person or take an unpaid leave of absence. The professor is seeking back pay, loss of employment benefits and three to five years of front pay. The professor claims job reinstatement is not feasible in these circumstances.



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  • National College Players Association Files Charges Seeking Employee Status for Student-Athletes – CUPA-HR

    National College Players Association Files Charges Seeking Employee Status for Student-Athletes – CUPA-HR

    by CUPA-HR | February 17, 2022

    On February 8, the National College Players Association (NCPA), an advocacy association for college athletes, filed unfair labor practice charges with the National Labor Relations Board (NLRB) against the University of Southern California, the University of California, Los Angeles (UCLA), the Pac-12 Conference and the National Collegiate Athletic Association (NCAA).

    The charges allege that the employers have violated the National Labor Relations Act (NLRA) by “repeatedly misclassifying employees as ‘student-athlete’ nonemployees” and “by maintaining unlawful rules and policies in its handbook, including restricting communications with third parties.” The charges mark the launch of the NCPA’s #JforJustice campaign and aim “to affirm college athlete employee status for every [Football Bowl Subdivision (FBS)] football player and Division I basketball player at every public and private university in the nation,” per an NCPA statement.

    This is the latest development regarding issues surrounding employment status of student-athletes since NLRB General Counsel Abruzzo issued a memorandum last September stating her position that student-athletes are employees under the NLRA and are therefore afforded all statutory protections as prescribed under the law. In that memo, Abruzzo stated that it was her intent to “educate the public, especially Players at Academic Institutions, colleges and universities, athletic conferences and the NCAA” about her position in future appropriate cases.

    The NCPA charges potentially provide Abruzzo with a case she can present to the NLRB to consider granting collective bargaining rights to college athletes. In 2015, the last time the NLRB considered the issue, it declined to assert jurisdiction over Northwestern football players, as doing so “would not promote labor stability [because the] board does not have jurisdiction over state-run colleges and universities” that make up the majority of the FBS. The NCPA charge seeks to overcome this jurisdictional obstacle by including the privately-held Pac-12 and NCAA as joint employers of UCLA’s athletes — a theory of liability Abruzzo said she would consider applying in appropriate circumstances.

    Now that the charges have been filed, an NLRB regional director will review the case and determine whether formal action should be taken and presented to an administrative law judge, which would preside over a trial and issue a decision that could ultimately be taken up by the five-member board.

    CUPA-HR will be paying close attention to this case and provide members updates as it progresses.



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