Category: student-athletes

  • 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 – 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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  • HR and the Courts – CUPA-HR

    HR and the Courts – CUPA-HR

    by CUPA-HR | January 12, 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.

    NCAA Loses Appeal For Expedited Ruling Denying Student-Athletes’ Minimum Wage FLSA Claims — Claims Move to Federal Court Trial 

    The National Collegiate Athletic Association (NCAA) was denied a request or fast track consideration of its appeal of an adverse trial court order to proceed to trial over student-athlete claims that they are covered by the Fair Labor Standards Act minimum wage and overtime rules as they are employees. The trial court judge ruled that the question of whether the student-athletes are employees is a mixed question of law and fact, which should go to trial. The judge concluded that the NCAA can appeal an adverse trial decision after trial.

    The NCAA countered that similar suits in the U.S. Appeals Seventh and Ninth Circuits have been dismissed. The NCAA argued that appeals courts in the Seventh Circuit (covering Illinois, Indiana and Wisconsin) and in the Ninth Circuit (covering California, Oregon, Washington, Nevada, Arizona, Idaho and Montana) both held that the NCAA is not the employer of student-athletes. In rejecting the NCAA’s interlocutory appeal, the Third Circuit (covering Pennsylvania, New Jersey and Delaware) ruled that the NCAA failed to meet its burden in showing exceptional circumstances justifying departing from the normal policy of delaying appellate consideration until a final judgement is issued.

    EEOC Issues “Guidance” That COVID-19, Under Certain Circumstances, May Be a Disability Covered and Protected By the ADA From Discrimination

    The Equal Employment Opportunity Commission (EEOC) issued “guidance” in mid-December stating that, in certain circumstances, COVID-19 may be a disability covered by the Americans With Disabilities Act (ADA), making it illegal for employers to discriminate against employees with COVID-19. The EEOC chair pointed out that employees with disabilities resulting from COVID-19 may be eligible for a reasonable accommodation. Depending on each employee’s individual circumstances, an employee recovering from COVID-19 may meet the ADA’s definition of a disability as a mental or physical impairment that substantially limits a major life activity, or an employer’s perception that the individual has a disability.

    Someone who has COVID-19 and experiences multi-day headaches, dizziness and brain fog attributable to COVID-19 is an example of an impairment covered by the ADA. However, the EEOC pointed out that not every person with COVID-19 will qualify as disabled. For example, if someone has COVID-19 and is asymptomatic or has mild symptoms similar to the flu that lasts only a few weeks, with no other consequences, that person would not qualify as disabled. The EEOC suggests an individual assessment of each employee with COVID-19 might be necessary to determine whether it is a disability.

    State and Local Ordinances Regulate the Use of Artificial Intelligence/Automated Job Applicant Screening Tools In Screening Job Applicants

    New York City (NYC) just established one of the broadest new laws concerning the use of artificial intelligence tools to screen job applicants by NYC employers. The effective date is unclear and local counsel should be consulted on the new regulations in NYC. Under the NYC law, such artificial intelligence tools will be banned in NYC unless they are subject to a “bias audit” conducted a year before the use of the tool. Illinois passed a law similar to the NYC law. Maryland passed a law banning the use of facial recognition in the employment application process without the applicant’s consent. The attorney general in the District of Columbia is also proposing a related proposal addressing “algorithmic discrimination.” The EEOC recently indicated that it would study the use of artificial intelligence job screening tools to see if they contribute to bias in employment decisions.

    Denial of Healthcare Coverage For Transgender Surgery Is Subject to Discovery Squabbles As Arizona Appeals Trial Court Order to Turn Over Attorney Opinions Concluded Its Actions Were Legal

    The state of Arizona recently appealed a federal trial court’s decision that it turn over “attorney opinions” and that its actions excluding transgender surgery from health plan coverage were legal, to the Ninth Circuit Court of Appeals. The Ninth Circuit covers California, Oregon, Washington, Arizona, Nevada, Idaho and Montana. The health plan’s exclusions are subject to a lawsuit alleging that the denial of benefits violates the applicable sex discrimination statutes.

    The state claimed that its actions excluding such benefits form coverage were legal and relied on “attorney opinions” to that effect. The plaintiff in the case asked that the opinions be turned over as part of the litigation, and the state of Arizona refused, claiming the documents were subject to attorney/client privilege The federal trial court judge agreed with the plaintiff, holding that Arizona waived privilege by implication, concluding that privilege cannot be used as both a sword and a shield.

    U.S. Department of Labor and NLRB Sign a Memorandum of Understanding, Agreeing to Cooperate In Enforcement Proceedings

    The Biden administration’s Department of Labor and National Labor Relations Board (NLRB) have come to an agreement on a memorandum of understanding (MOU) to collaborate on enforcement investigations and share information on potential violations of the law. The enforcement agreement will target independent contractor misclassification matters and retaliation claims brought by workers. On the DOL side, this agreement involves the DOL’s Wage and Hour Division, which enforces the minimum wage and overtime provisions of the Fair Labor Standards Act.

    The MOU partners two agencies with similar goals. It appears to follow through on last year’s tri-agency discussion between the DOL, NLRB and the EEOC when the agencies sought to discuss cooperation on retaliation claims brought by employees.



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  • HR and the Courts – CUPA-HR

    HR and the Courts – CUPA-HR

    by CUPA-HR | December 15, 2021

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

    Federal Contractor Vaccine Mandate Blocked Nationwide By Georgia Federal Court, Georgia Universities Testified in Favor of the Injunction

    A federal district court judge in Georgia issued a nationwide injunction blocking the Biden administration’s vaccine mandate applicable to all federal contractors (Georgia v. Biden (S.D. Ga., No. 21-cv-00163, 12/7/21)). The mandate was scheduled to go into effective January 4, 2022 and had been the subject of several lawsuits in multiple states attempting to block the mandate.

    Georgia was joined by seven states in the litigation. Representatives from Georgia universities testified at the injunction hearing that the mandate would be expensive, onerous and cost them valuable employees who have not yet presented proof of vaccination. The judge ruled that blocking the mandate was not because the vaccine would not be effective in reducing the spread of COVID-19, but rather that President Biden did not have the power to issue such an Executive Order. The judge rued that the mandate went beyond the President’s power to issue orders “addressing administrative and management issues in order to promote efficiency and economy in procurement and contracting.”

    College Employee’s Discussion With Coworkers About Institutional Racism Is Basis For Discriminatory Discharge and Retaliation Claims

    A federal district court judge recently ruled that a discriminatory discharge and retaliation case, based on the plaintiff’s allegations that he was terminated because he facilitated a discussion of institutional racism among coworkers, states a claim of unlawful discrimination based on race. Prior to discharge, the plaintiff was in charge of the college’s program assisting high school students in danger of dropping out (Debro v. Contra Costa Community College (2021 BL 456753, N.D. Cal. No. 3:20-cv-08876, 11/30/21)).

    The plaintiff was given permission in advance to facilitate a discussion of institutional racism among coworkers. Following the discussion, two white subordinates filed race discrimination claims alleging that the plaintiff made them uncomfortable expressing their own views on institutional racism. The plaintiff was subsequently fired by the college after it was concluded that he violated the college’s rules against harassment based on race as he made others uncomfortable expressing their views on institutional racism.

    The federal district court judge concluded that the plaintiff’s complaint adequately stated claims of race discrimination in violation of both federal and state law and will move forward to discovery and trial.

    Labor Advocacy Group Files Complaint With NLRB Alleging That the NCAA Has Misclassified College and University Sports Players as Student-Athletes as Opposed to Employees

    A new advocacy group, the College Basketball Players Association, has filed a complaint with the Indianapolis office of the National Labor Relations Board (NLRB) alleging that the NCAA is violating federal labor law by misclassifying college sports players as student-athletes as opposed to employees. In 2015, the NLRB rejected an attempt by Northwestern University football players to form a union concluding that it would not advance the purposes of U.S. labor law. However, more recently the new NLRB general counsel publicly stated that in her view at least some college athletes are employees. This case could be the vehicle the general counsel may use to bring this issue before the NLRB for review. CUPA-HR will watch this case as it progresses and report on future developments.

    Union Collective Bargaining Between Graduate and Undergraduate Student Teachers and Researchers Continues at Some Private Institutions

    Harvard University and the United Auto Workers (UAW) union announced an agreement on a new four-year collective bargaining agreement in mid-November just hours before a planned strike by a student employee bargaining unit at the university. The Harvard Graduate Students Union is represented by the UAW and consists of a bargaining unit of 4,500 graduate and undergraduate students who work as teachers and researchers. Details of the new four-year contract were not immediately disclosed or available.

    56-Year-Old Baseball Coaching Applicant Loses Age Discrimination Lawsuit Against University Where 31-Year-Old Applicant Was Chosen

    The Seventh Circuit U.S. Court of Appeals (covering Illinois, Wisconsin and Indiana) affirmed a summary judgement decision by the trial court in favor of Indiana University South Bend, rejecting the age discrimination lawsuit filed by a 56-year-old applicant because the university hired a 31-year-old applicant. The court concluded that there was no evidence that the plaintiff was discriminated against because of his age (Reinebold v. Bruce (2021 BL 442817, 7th Cir., No. 21-1092, 11/18/21)).

    There were 94 applicants for the position of head baseball coach. The university chose 10 applicants for telephone interviews, including the plaintiff. The plaintiff was not among the four chosen from the telephone interviews for a final in-person interview. While the plaintiff had a better career win/loss percentage that the 31-year-old applicant chosen as the new head coach, all four of the telephone interviewers concluded that plaintiff’s presentation was not good, including one interviewer who concluded that the plaintiff’s interview was “One of the worst interviews he had ever experienced.”

    The court concluded that one of the interviewer’s remarks to his barber that “We chose the younger applicant” was a stray remark and did not provide evidence of age discrimination.

    EEOC Loses Attempt to Invalidate Employer’s Negotiation Defense to an Equal Pay Act Claim Brought By a School District Superintendent Who Was Paid Less Than Her Male Predecessor 

    The EEOC recently filed a case on behalf of a school district superintendent under the Equal Pay Act alleging that the school district violated the law by paying the new female superintendent less than it paid her male predecessor.

    The school district defended, alleging that the female superintendent failed to negotiate a higher salary. The EEOC argued that failure to negotiate a higher salary is not a valid defense to an Equal Pay Act claim. The school district countered that the Supreme Court has never ruled that failure to negotiate a higher salary is not a factor other than sex, and other courts have held that that is a valid factor other than sex in these circumstances. The federal district court judge hearing the case sided with the school district holding that, for now, and subject to further consideration, the EEOC failed to show that the defense could not be raised (EEOC v. Hunter–Tannersville Central School District (2021 Bl 460087, N.D.N.Y. No. 1:21-cv-00352, 12/2/21)). The judge concluded whether or not the defense is valid is a decision for the U.S. Court of Appeals.



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  • HR and the Courts – CUPA-HR

    HR and the Courts – CUPA-HR

    by CUPA-HR | October 20, 2021

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

    Several States Consider Legislation Aimed at Softening Federal Workplace Vaccine Mandates

    The Arkansas legislature recently passed legislation which would soften the federal employer workplace vaccine mandate. The legislation would allow workers in Arkansas to opt out of the mandate if they show a negative COVID-19 test weekly or present a positive antibody test twice a year. The legislation would bar employers from terminating employees who followed the testing protocol. Ohio and Texas are considering similar legislation. Montana enacted a statute that prohibits employer mandates of shots that are under emergency use authorization and have not cleared final approval.

    State laws which directly conflict with federal statutes are arguably preempted and unenforceable under the U.S. Constitution’s Supremacy Clause. Depending on how the state statute is worded there are gray areas which will be subject to litigation. For example, a state could argue that an employer may well be able to adhere to the state statute and the final Occupational Safety and Health Administration rule depending on how that final rule is written.

    NLRB General Counsel States That Political and Social Justice Advocacy in Black Lives Matter Demonstrations and Demonstrations Opposing Crackdowns on Undocumented Workers are Protected Concerted Activity Under the National Labor Relations Act 

    National Labor Relations Board (NLRB) general counsel stated in a webinar hosted by Cornell University on Wednesday, October 7, that Black Lives Matter protests and demonstrations against crackdowns on undocumented workers are protected under the National Labor Relations Act (NLRA) as protected concerted activity. The general counsel referred to the case the NLRB brought against Home Depot in Minneapolis because it disciplined workers who refused to cease displaying political messages on their aprons at work,  including an employee who was terminated for displaying a “BLM” slogan. The NLRB in that case also accused Home Depot of unlawfully threatening employees with unspecified consequences if they engaged in group activities regarding racial harassment.

    Home Depot has denied any violation of the NLRA and in a statement said it does not tolerate workplace harassment, takes these matters seriously, and is committed to diversity and respect. Home Depot takes the position it has every right to refuse to allow its employees to engage in conduct which will spark conflict and possibly confuse customers. It added it has a right to refrain from allowing its employees to engage in speech in this way while serving customers.

    NLRB General Counsel Asserts That College Athletes are Employees Under the NLRA and Should be Accorded the Right to Unionize and Collectively Bargain

    The top lawyer and general counsel for the National Labor Relations Board (NLRB), Jennifer Abruzzo, asserted in a public memo issued on September 27 that college athletes are employees and should be afforded the right to engage in protected concerted activities, including the right to unionize and collectively bargain. Abruzzo has the authority to bring a test case before the five-member NLRB who have exclusive jurisdiction to decide whether or not college athletes are employees and whether they have a right to unionize and participate in concerted activities protected under the National Labor Relations Act (NLRA). The NLRB does not have jurisdiction of public colleges and universities, only private colleges and universities. However, Abruzzo may attempt to assert jurisdiction over public college athletes under the theory that the National Collegiate Athletic Association (NCAA), which is private, is a joint employer of public college athletes and can negotiate certain minimum guarantees under a collective bargaining agreement. This is an untested legal theory.

    The issue has been under increasing debate, most recently as a result of a Supreme Court decision criticizing the stance of the NCAA in limiting student compensation of athletes on antitrust grounds in NCAA v. Alston. The Supreme Court did not address the issue of whether student athletes are employees under the NLRA. Adding to the controversy is that it is not unusual for a college football coach to earn in excess of $1 million per year.

    CUPA-HR will continue to monitor developments in this area.

    Several Colleges File an Appeal of a Federal Court Decision to Allow Student-Athletes to Proceed to Trial Over Whether They are Employees Under the Fair Labor Standards Act and Therefore are Due Minimum Wage and Overtime Payments

    A federal district court trial judge recently ruled that student-athletes are employees under the federal Fair Labor Standards Act and are therefore entitled to minimum wages and overtime payments. The judge used the same multi-factor approach used in cases where unpaid interns have been successfully sued and were entitled to pursue a claim of minimum wages and overtime payments (Johnson v. NCAA (E.D. Pa. No. 19-cv-19350, 9/29/21)).

    A group of institutions including Cornell, Fordham, Villanova, Layfette College and Sacred Heart University has asked the eastern district of Pennsylvania judge to allow an immediate appeal to the U.S. court of appeals for the third circuit. They want to ask the third circuit to decide: (1) Are student-athletes ever employees of the schools for which they compete?; and (2) If so, under what circumstances are student-athletes considered employees of their schools?

    CUPA-HR will continue to monitor developments in this case.



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  • NLRB General Counsel Releases Memo on Employee Status for Student Athletes – CUPA-HR

    NLRB General Counsel Releases Memo on Employee Status for Student Athletes – CUPA-HR

    by CUPA-HR | September 29, 2021

    On September 29, National Labor Relations Board (NLRB) General Counsel Jennifer Abruzzo released a memorandum stating her position that student athletes (or “Players at Academic Institutions,” as she refers to them in the memo) are employees under the National Labor Relations Act (NLRA) and are afforded all statutory protections as prescribed under the law. Abruzzo declares, “The broad language of Section 2(3) of the [NLRA], the policies underlying the NLRA, Board law, and the common law fully support the conclusion that certain Players at Academic Institutions are statutory employees, who have the right to act collectively to improve their terms and conditions of employment.”

    Abruzzo also states that misclassifying such individuals as non-employees and leading them to believe they are not afforded protections under the NLRA has a “chilling effect” on Section 7 activity. She said she would consider this misclassification an independent violation of Section 8(a)(1) of the NLRA. Abruzzo further stated that the intent of the memo is 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 memo revives issues surrounding employment status of student athletes that the NLRB has previously ruled on. In March 2014, the NLRB’s Regional Director in Chicago ruled that Northwestern players receiving football scholarships are employees and have a right to organize under the NLRA. In August 2015, the NLRB released a unanimous decision dismissing the representation petition filed by a group of Northwestern football players seeking to unionize. In doing so, however, the board’s decision did not definitively resolve the issue of whether college athletes are employees and have a protected right to unionize under the NLRA. After considering arguments of both parties in the case and various amici, including CUPA-HR, the board declined to assert jurisdiction on the issue, stating that “asserting jurisdiction would not promote labor stability [because the] Board does not have jurisdiction over state-run colleges and universities, which constitute” the vast majority of the teams. The board noted, however, its “decision is narrowly focused to apply only to the players in this case and does not preclude reconsideration of this issue in the future.” Another issue in the Northwestern decision was the board’s lack of jurisdiction over “walk-on” players who do not receive scholarships. It remains to be seen how Abruzzo will overcome in future cases the two jurisdictional obstacles identified in Northwestern.

    CUPA-HR will keep members apprised of NLRB actions and cases that may prompt the agency to rule on the issue regarding student athlete employment status.



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