Category: Unions

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

    HR and the Courts — August 2024 – CUPA-HR

    by CUPA-HR | August 14, 2024

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

    Student-Athletes and NCAA Propose a $2.8 Billion Settlement in Antitrust and Name, Image and Likeness Case

    Attorneys representing student-athletes have filed for court approval of a $2.8 billion settlement reached with the NCAA and the Power Five conferences. Bloomberg reports that the student-athletes were pursuing a $4.5 billion claim.

    Under the proposed settlement, a men’s football or basketball player would receive roughly $135,000 and a female basketball player would receive roughly $35,000. Athletes in other Division I sports, including football and basketball players in non-Power Five conferences, would also recover under the proposed settlement, although the terms of that recovery are not yet clear.

    Also under the proposed settlement, Division I schools will be able to provide student-athletes with direct payment up to a cap of 22% of the Power Five schools’ average athletic revenue per year. The payment pool will be more than $20 million per school in the 2025-26 academic year and will grow from there. The Power Five includes the Big Ten, Big 12, Atlantic Coast Conference, Southeastern Conference and Pac-12. (The Pac-12 lost its autonomy status for 2024-25 after 10 of 12 of its members departed for other conferences.) The proposed settlement was filed in the U.S. District Court for the Northern District of California (In Re College Athlete NIL Litigation (N.D. Cal., 4:20-cv-03919, 7/26/24)).

    It is reported that the multibillion-dollar settlement would be paid out over 10 years. A preliminary approval hearing will take place in September to be followed by a comment period from class members. If approval is reached it will spare the NCAA and the Power Five from a trial scheduled to take place in January, 2025.

    Employee Status of Student-Athletes Under the FLSA Still Undecided as Court Rejects NCAA’s Appeal

    The 3rd U.S. Circuit Court of Appeals (covering Delaware, New Jersey, Pennsylvania and the Virgin Islands) rejected the appeal of the NCAA contesting the trial court decision that college athletes are entitled to a trial to decide whether they are employees under the FLSA.

    The appeals court remanded the case back to the trial judge for more analysis on the applicable standard to be used in determining whether a student-athlete is an employee. The decision allows the college athletes to continue to pursue their claims, which allege that the NCAA and colleges are joint employers (Johnson V. NCAA (3rd Cir. No. 22-01223, 7/11/24)).

    The decision contrasts with the former holdings of the 7th U.S. Circuit Court of Appeals and the 9th Circuit, which rejected claims that student-athletes were employees. In remanding the case back for further analysis, the 3rd Circuit left room for the court to hold that some college athletes maintain their amateur, non-employee status while others are employees subject to the minimum wage requirements of the FLSA.

    The decision also rejected the term “student-athlete,” commenting that the term is an “NCAA marketing invention” designed to “conjure up the nobility of amateurism,” assert “the precedence of scholarship over athletics,” and “obfuscate the nature of the legal relationship at the heart of a growing commercial enterprise.” The decision stated that college athletes “cannot be barred as a matter of law from asserting FLSA claims simply by virtue of the revered tradition of amateurism.” Finally, the court remanded the case to the trial judge to use common-law factors, such as level of control and presence of payments, to determine the employee status of college athletes.

    Unionization Petitions Filed With NLRB Increase by 30% in 2024 — Decertification Petitions Increase by 12%

    Petitions filed with the National Labor Relations Board (NLRB) to both certify and decertify union representation are up dramatically so far this year.

    The increase in certification petitions is partially attributed to the NLRB’s decision in the Cemex decision. That decision requires employers, in response to a certification petition, to either voluntarily recognize the union or file an RM, which is used by employers to dispute that the union has majority status. The increase in activity also comes after the NLRB altered its administrative procedures to shorten the time between petition filing and the election.

    The NLRB also reports that its regional offices have conducted more representation elections so far in 2024 than in the entire 2023 fiscal year. Finally, the NLRB reports that unions have won 79% of union-filed petitions and 70% of employer-filed petitions.

    EEOC Signals Second Attempt to Require Employers to Report Pay Data by Race, Sex and Job Category

    The Equal Employment Opportunity Commission has indicated in its July regulatory playbook that it intends to make another attempt to require that employers annually report pay data by race, sex and job category. Its first attempt to do so was canceled by court intervention in 2016 during the Obama administration.

    The EEOC indicated it will use the Administrative Procedure Act (APA) as opposed to the Paperwork Reduction Act (PRA) to issue the new regulations. Under the APA, advance notice, including a comment period, is required. Also under the APA, an individual or organization has the private right of action to block the regulation.

    The recent Supreme Court decision in the Chevron case may make such APA challenges easier to manage for employers and employer organizations seeking to challenge the new attempt to collect pay data. In the Chevron case, the Supreme Court abandoned the rule of the presumption of legitimacy of federal agency decisions.

    Court Concludes NLRB Failed to Explain Why It Rejected Employer Objections in Union Election  

    The U.S. Court of Appeals for the District of Columbia Circuit concluded that the NLRB failed to coherently explain its rejection of employer election objections when the NLRB certified a union in a one-vote victory in a mail ballot election.

    The D.C. Circuit court concluded that the NLRB used different legal tests without explanation when it rejected an employer’s objections to the mail ballot election (GHG Mgmt LLC V. NLRB (DC Cir. No, 22-01312, 7/9/24)).

    The court ruled in a unanimous, three-judge decision that the NLRB failed to adequately explain its rejection of employer objections and remanded the case back to the NLRB for determination over which test it used to reject the employer’s objections. The court stated it can only rule on whether the NLRB’s decision was correct if it knows which test the NLRB used in coming to its decision. This case is another criticism of the NLRB’s handling of mail-in ballot elections used during and after the COVID-19 pandemic.

    Federal Judge Temporarily Rejects Texas AG’s Attempt to Block EEOC Guidance on LGBTQ+ Employees

    A federal district trial judge has temporarily rejected the Texas attorney general’s attempt to block current EEOC guidance that covers LGBTQ+ employees. The guidance protects employees’ right to choose pronouns and bathrooms consistent with their gender identity.

    The federal judge dismissed the case, holding that the Texas attorney general must file a new case and not rely on the past decision in which the federal judge vacated similar EEOC regulations protecting LGBTQ+ employees (State of Texas V. EEOC (N.D. Tex. No. 2-21-cv-00194, 7/17/24)).

    The judge ruled that his prior decision in favor of the Texas attorney general vacating prior EEOC LGBTQ+ regulations can be used as a predicate for a new case. Nonetheless, the Texas attorney general must file a new case seeking new injunctive relief. The federal judge explained that his prior decision addressed the EEOC’s 2021 guidance alone and a new case must be filed to adjudicate the issues involved in the new EEOC guidance.



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

    HR and the Courts — June 2023 – CUPA-HR

    by CUPA-HR | June 7, 2023

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

    NLRB Issues a Formal Complaint Alleging College Football and Basketball Players Are Employees and Can Petition to Unionize 

    The NLRB regional director in Los Angeles issued a long-awaited formal complaint alleging that the NCAA, Pac-12, and The University of Southern California all violated the National Labor Relations Act (NLRA) when they refused to treat college basketball and football players as employees under the NLRA. The regional director agreed with the legal conclusion the NLRB general counsel made last December and issued a formal complaint against the three parties. The NLRB regional director is alleging that all three entities are joint employers of these athletes and violated the NLRA by misclassifying them as “non-employee student athletes” (Univ. of Southern California (NLRB Reg Dir Case No. 31-CA-290326, complaint issued 5/18/23)).

    If the NLRB ultimately prevails on all counts, the outcome could lead to unionization of college basketball and football players at both public and private college and universities in the U.S. While the NLRB has no jurisdiction over public institutions, it does have jurisdiction over the private NCAA and various private athletic conferences it alleges are joint employers of these athletes. Needless to say, this will be a heavily contested and lengthy litigation event.

    U.S. Supreme Court Holds That Unions Can Be Held Liable in State Court for Intentional Destruction of Employer Property During a Strike

    In an 8-1 decision, the U.S. Supreme Court held that the Teamsters Union could be held liable for intentional destruction of  employer property during a strike and that the victimized employer could sue the union in state court alleging such intentional infliction of damages (Glacier Northwest Inc. v. Teamsters Local 174 (U.S. No. 21-1449, 6/1/23)). The case had been dismissed under the long-held Supreme Court decision in the Garmon case, holding that the National Labor Relations Act (NLRA) preempted state court litigation against labor unions.

    The Supreme Court created a narrow exception to Garmon’s federal preemption, holding that, “far from taking reasonable precautions to mitigate foreseeable danger to employer property … the union executed the strike designed to compromise the safety of the employer’s trucks and product.” The court concluded that such union conduct is not even arguably protected by the NLRA.

    Here the union called a strike of concrete truck drivers and intentionally instructed the drivers to return their trucks, loaded with concrete, to the employer rather than complete the delivery. This resulted in the concrete hardening in the trucks, leading to the destruction of trucks and concrete product.”

    EEOC Publishes Updated Guidance on the End of the COVID-19 Public Health Emergency 

    On May 15, the EEOC updated its technical assistance entitled “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.” The updated guidance covers a variety of issues related to the end of the public health emergency. While the publication notes that some pandemic-related reasonable accommodations may cease, accommodations for employees with long COVID may continue to be necessary. The guidance contains tips to help employers avoid COVID-related harassment of applicants or employees who need to take precautions because of a disability.

    University Prevails on First Amendment Grounds in Defamation Action Brought by Former Professor

    A Louisiana state appeals court dismissed a defamation action brought by a former professor against the university as a result of the student newspaper publishing allegedly defamatory statements concerning the professor. The student newspaper articles concerned racism allegations. The court of appeals dismissed the case, holding that the newspaper articles constituted speech on matters of public interest protected by the First Amendment. The court also noted that the articles concerned “a high profile individual” (Duhe v. Loyola University of New Orleans (La. Ct. App. 5th Cir. No. 22-C-292, 5/30/23)).

    State-Based Initiatives Restricting or Banning DEI Policies Have Passed or Are in the Legislative Pipeline in More Than 12 States — State-Based Legal Challenges Likely to Ensue

    Florida and North Dakota have become the first states to restrict DEI programs and/or training at public higher ed institutions. Arizona, Tennessee and more than 12 other states are considering such measures. It is likely that these initiatives will be subject to continuing litigation in multiple states. Faculty unions at some public, state-based systems may argue that these restrictions violate existing collective-bargaining provisions. The state of the law in this area is rapidly changing and subject to different turns depending on how different state courts deal with these issues prospectively. We will continue to follow state law developments and will keep CUPA-HR members apprised in this monthly column.

    University Defeats Transgender Detective’s Sex Bias, Promotion Lawsuit — Failure to Identify a Similarly Situated Non-Protected-Class Employee 

    A judge in the U.S. District Court for the Southern District of Florida recently dismissed a Title VII claim filed by a transgender detective alleging sex discrimination under Title VII for failure of the university  to promote. The federal judge dismissed the case, concluding that the plaintiff failed to identify a similarly situated non-protected-class employee who was treated more favorably (Ponce v. Florida Atlantic University Board of Trustees (2023 BL 162924, S.D. Fla. No. 9:22-cv-81546, 5/12/23)).

    The judge dismissed the lawsuit without prejudice to the plaintiff refiling the lawsuit to appropriately allege a similarly situated non-protected-class employee who was treated more favorably.

    State Laws Requiring Pay Ranges to be Part of Job Postings and Ads Are Growing 

    New York, California, Washington and Colorado have already enacted laws requiring pay ranges to be listed in job postings and ads. Specifics should be discussed with local counsel in those jurisdictions.

    Illinois, Michigan, Oregon, New Jersey, Connecticut, Rhode Island, Massachusetts and Hawaii  have bills either pending in the state legislature or before the governor awaiting signature. Specifics vary by state, but the trend is to force employers to be more transparent in job postings and ads.

    Public University Registered to Do Business Out of State Is Subject to Out-of-State Sex-Harassment Litigation — Sovereign Immunity Defense Rejected

    The U.S. Supreme Court has denied the petition by a public university located in Alabama to appeal the divided decision of the North Carolina Supreme Court which allowed the university to be subject to a sex-harassment suit filed in North Carolina (Troy University V. Farmer (U.S. No.  22-787, cert denied, 5/30/23)).

    The Supreme Court denied the university’s appeal of the adverse decision of the North Carolina Supreme Court, which held that the university’s registration to do business in North Carolina and its operation of an office for commercial activities in Fayetteville, North Carolina, was enough to subject it to the jurisdiction of the North Carolina courts. Specifically, the North Carolina court held that the agreement that the university signed, which allowed it to do business in the state, contained an agreement to sue and be sued in the state. The North Carolina court held that this waived the university’s sovereign immunity.



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

    HR and the Courts — April 2023 – CUPA-HR

    by CUPA-HR | April 12, 2023

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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



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

    HR and the Courts — February 2023 – CUPA-HR

    by CUPA-HR | February 2, 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.

    Supreme Court May Consider the Propriety of the Court-Created “Adverse Employment Action” Rule, Limiting Title VII Complaints

    The Supreme Court has asked the U.S. government (the Department of Justice and the Equal Employment Opportunity Commission) to weigh in on whether it should hear two cases challenging the court-created “adverse employment action” rule, which limits consideration of Title VII complaints to those involving an “adverse employment action.”

    The first case involves a female police officer who alleged that she was transferred out of her department because of her sex. The 8th U.S. Circuit Court of Appeals (covering Minnesota, Iowa, Missouri, Arkansas, North Dakota, South Dakota and Nebraska) affirmed the dismissal of the case because it found no adverse employment action where the transfer did not involve a loss of pay and rank or level of responsibilities. 

    The second case involves a former head of an Alabama legal services group who challenged the decision of the 11th U.S. Circuit Court of Appeals (covering Alabama, Georgia and Florida), which affirmed the dismissal of his case on “adverse employment action” grounds where the suspension challenged because of his race was a suspension with pay, and did not involve the loss of any wages or benefits.  

    Both plaintiffs claim that the “adverse employment action” requirement was court-created and not part of the actual Title VII statute. They both claim that the change in job status, which was the subject of their complaint, was involuntary, not to their liking, and based on their protected-class status. Therefore, they claim it should be actionable under terms of the Title VII statute. Both defendants oppose, claiming there is no conflict between the circuits.  

    Professor’s Bias Case Dismissed for Failure to Establish “Pervasive” Harassment, and HR Warning Not a “Substantial Adverse Employment Action”

    A Texas Court of Appeals recently overruled a trial court and dismissed a professor of Indian descent’s bias claims filed under the Texas state anti-discrimination statute. The appellate court concluded that the professor’s complaints of coworker comments reflecting negatively on his national origin did not rise to the level of “pervasive” harassment. Additionally, his complaint that he received a warning from HR about a complaint, which was previously closed, did not rise to the level of a “substantial adverse employment action,” and therefore was not actionable (Texas Southern University v. Nayer (Tex. App. 1st Dist. No. 01-21-00497-CV, 1/10/23)).

    The plaintiff, who is originally from India, was hired by the university in 2009 as an assistant professor in the administration of justice department. He was promoted to associate professor, received tenure and was appointed interim department chair in 2016. The professor alleged that coworkers used the term “you people” as a racial epithet to address him in emails and that he had received a warning from HR relating to a complaint which had been closed. While the trial court ruled he was entitled to a jury trial over his discrimination claims, the appellate court reversed the ruling and dismissed the case for failure to establish “pervasive” harassment and failure to raise a “substantial adverse employment action.   

    In 2022, U.S. Labor Unions Engaged in the Most Strikes Since 2007, With Education Service Employees the Majority of Employees Engaged in Strike Activity 

    More than 225,000 employees engaged in 314 strikes last year, more strikes than in any year since 2007. Education service employees accounted for three out of every five of those workers, according to an analysis report by Bloomberg News. The largest strike of the year was at the University of California, where approximately 48,000 graduate student workers were on strike for six weeks demanding increased wages and changes to working conditions. This strike was the largest strike occurring at any college or university since 1990, according to the Bloomberg database. The graduate student workers were represented by the United Auto Workers Union.  

    The American Federation of Teachers and the National Education Association engaged in the second highest number of work stoppages during 2022, surpassed only by the Service Employees Union. Collectively, these two unions had the largest share of union members involved in strike activity in 2022. Analysts conclude that dual economic factors in 2022 led to the increase in strike activity. The factors noted were a very tight labor market and rising inflation. Union leaders also claim that many other contract negotiations narrowly avoided strike situations as a result of diligent negotiation activity on both sides of the table.  

    Nonetheless, overall union membership dropped to a historic low percentage of the U.S. workforce in 2023. The unionized percentage of the American workforce dropped to 10.1 percent, lower than the previous low of 10.3 percent, recorded in 2019. While union membership actually increased in 2022 by some 273,000 employees, it was not enough to keep pace with the even larger growth on non-union jobs in 2022. These numbers are a continuation of the long-term slide in union membership in America. In 1983, the first year the government began collecting these numbers, the percentage of overall union membership in the U.S. was over 20 percent of the total American workforce.  

    Professor’s Race Discrimination Claim Based on Disparate Treatment of Student Complaints Moves Forward

    A former medical professor’s lawsuit survived a motion for summary judgement filed by her former university employer following allegations that non-minority professors were not terminated following student complaints. In allowing the case to proceed to discovery, the federal court judge concluded that the plaintiff “barely” raised enough facts to allow the case to proceed (Miller-Sethi v. City University of New York et al (S.D.N.Y. No. 21- cv- 08591, I/26/23)).

    The medical school professor’s contract was not renewed following a complaint from a student that the professor criticized her following the student’s refusal to continue working at a site which she was not comfortable working in because of the racial makeup of the area. The university argued that the comparators had received complaints regarding course evaluation or teaching techniques, which were not comparable to plaintiff’s situation. The judge ordered further discovery on the issue. 



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

    HR and the Courts – November 2022 – CUPA-HR

    by CUPA-HR | November 8, 2022

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

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

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

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

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

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

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

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

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

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

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

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

    California Joins Growing List of States Expanding Paid Leave Benefits

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

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

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

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

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

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

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

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

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



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  • HR and the Courts – 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 – CUPA-HR

    HR and the Courts – CUPA-HR

    by CUPA-HR | February 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.

    U.S. Supreme Court to Review Harvard and UNC Affirmative Action Admission Policies In Consolidated Case 

    The U.S. Supreme Court agreed to hear and review two cases challenging the affirmative action admissions policies at Harvard University and the University of North Carolina. The Supreme Court will hear an hour of argument over both court of appeals decisions, which have concluded that the respective affirmative action plans were legal. In the past, the Supreme Court has consistently ruled that college and university admission related affirmative action plans were legal since 1978 in the Bakke decision.

    The composition of the Supreme Court has changed significantly since the last time it ruled that affirmative action in college admissions was legal in 2018 in the University of Texas at Austin case. The argument will be heard in the October 2022 term with a decision likely to be made in 2023. CUPA-HR will follow and report on future developments.

    Court of Appeals Allows a Former Teaching Assistant’s Complaint Alleging Male Bias In Title IX Investigation to Proceed 

    The Ninth Circuit Court of Appeals (covering California, Oregon, Washington, Nevada, Idaho, Montana and Arizona) ruled that a former Chinese national teaching assistant — who lost his job and student visa to stay in the U.S. after a Title IX investigation found that he was in violation of the school’s dating guidelines — can proceed with his own Title IX suit against the university, alleging that the investigation was biased against him as a male (Doe v. University of California (9th Cir. No. 20-55831. 1/11/22)). The plaintiff, who had prevailed in a state court proceeding challenging the disciplinary decision, nonetheless lost his housing, job, student visa and the ability to complete his doctorate.

    The plaintiff had broken off his engagement to a student who he was dating after learning she had been unfaithful to him. She came unannounced to his office, confronted him and blocked his exit when he said he had to leave to teach a class. The plaintiff eventually got around the student to leave, but the student called the campus police claiming that he pushed her and grabbed her arm, and she filed a Title IX complaint. During the investigation, an investigator told the plaintiff, “No female had ever fabricated allegations against a former boyfriend in a Title IX setting.” The plaintiff also alleged that during the two-year time period, the overwhelming majority of Title IX claims were against males and that no female was ever given a two-year suspension in circumstances like his. The court of appeals concluded that given these facts, the plaintiff’s claims should proceed to trial.

    NLRB General Counsel Reiterates Call for NLRB to Issue Make-Whole Remedies, Including Emotional Distress Damages for Employer Unfair Labor Practice Violations

    Jennifer Abruzzo, the Biden administration appointee as general counsel to the National Labor Relations Board (NLRB), has reiterated her request that the NLRB expand its remedy policies for employer violations of the National Labor Relations Act’s unfair labor practice provisions, including discrimination against union members, to include “make-whole” remedies, which would include emotional distress damages. The general counsel announced her initial request in September 2021. Abruzzo followed up the September 2021 request in a legal brief filed with the NLRB on January 10, 2022 arguing that the NLRB remedies are “feeble” and allow employer’s to violate the Act because it is cheaper do so without facing the consequence of make-whole remedies.

    Current NLRB remedies are limited to employment reinstatement, back pay awards and posting of notices that the employer violated the Act. Business groups filed a brief on January 10, 2022, which also opposes the general counsel’s request, arguing that the NLRB lacks authority under the Act to impose make-whole remedies. CUPA-HR will follow this litigation and report the result in a future blog post.

    U.S. Supreme Court Will Hear Football Coach’s First Amendment Claim of Protected Mid-Field Prayer Denied By the Ninth Circuit Court of Appeals 

    The U.S. Supreme Court has granted certiorari (cert) and will hear an appeal of a Washington state football coach whose claim to a First Amendment right to kneel and pray at the 50-yard line after each game was denied by the Ninth Circuit (covering California, Oregon, Washington, Arizona, Nevada, Montana and Idaho) (Kennedy v. Bremerton School District (U.S. No. 21-418, cert granted 1/14/22)). The Bremerton School District suspended the coach after he refused to cease his weekly ritual of kneeling and praying at the 50-yard line after each game. The Ninth Circuit denied the First Amendment claim, holding that the coach’s public statements about his prayer activities belied his argument that is was a private religious act and evidenced his attempts to proselytize his religious beliefs. As such, allowing it to continue would violate the school district’s/government’s duty not to support any particular religion.

    The coach argued that the decision, if left standing, would virtually transform speech of a public employee into government speech, lacking any First Amendment protection. The school district argued against cert, claiming that it had given the coach an accommodation to pray before or after the game in the press box or anywhere else where he would not be surrounded by his team. The coach insisted on being able to pray at mid-field before the team and spectators had cleared the field. CUPA-HR will follow this case and report on the ultimate decision.

    COVID-19 Spousal Death May Be a Way Around Workers’ Compensation Defense to Employer Liability for Some COVID-19 Cases Contracted at Work 

    A California appellate court recently refused to dismiss a case filed by an employee who claimed her husband contracted and died of COVID-19, which she contracted from working on the employer’s assembly line (See’s Candies, Inc. v. Superior Court of L.A. County (2021 BL 485084, Cal. Ct. App. 2nd Dist. No. B312241,12/21/21)). The appeals court rejected the company’s argument that the husband’s death was a “derivative” injury of the employee’s injury/illness contracted at work and therefore barred by the workers’ compensation prohibition of individual lawsuits. This is a new area of the law and the cases popping up elsewhere may come to a different result. CUPA-HR will follow the issue as case law develops.

    U.S. Union Membership Among American Workers Declines to Record Low in 2021

    The percentage of American workers who are union members declined to 10.3 percent in 2021 to match its record low percentage of 2019. While union membership increased in 2020, the percentage dropped 0.5 percent in 2021 to the 2019 percentage according to the U.S. Department of Labor’s Bureau of Labor Statistics. In 2021, the number of union members declined to 14 million while the number of overall workers increased. The percentage of American workers who are union members has declined significantly since 1984 when approximately 20 percent of the U. S. workforce was unionized.



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