Tag: August
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SEALs on Ground in Venezuela … since August (Malcolm Nance)
Higher Education Inquirer : Black Man Spy: SEALs on Ground in Venezuela … since August (Malcolm Nance)
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Queen Elizabeth’s school to open in August 2026
The new campus, Queen Elizabeth’s School in Dubai, will bring over 450 years of British academic heritage to the UAE, offering students access to the National Curriculum for England under the same standards that have made the Barnet school a consistent “outstanding” performer and a leader in UK education.
Developed in partnership with GEDU Global Education, the project recently received initial approval from Dubai’s Knowledge and Human Development Authority (KHDA), making a historic move, as it is the first UK state grammar school to establish an international branch.
“This landmark approval allows us to accelerate our vision to deliver world-leading K-12 education to students from across the UAE,” said Caroline Pendleton-Nash, CEO of Queen Elizabeth’s Global Schools.
“The Dubai branch campus will remain faithful to the mission, ethos, tradition, and exacting academic standards of Queen Elizabeth’s School, Barnet, while embracing Dubai’s spirit of innovation and ambition,” she said.
She added: “In uniting the heritage of one of the UK’s most distinguished schools with the vision of Dubai, we aspire to set a new global benchmark for educational excellence.”
Opening initially from nursery to year 8, the Dubai campus will then expand in phases to include sixth form. The school’s location in Dubai Sports City provides access to exceptional athletic facilities, ensuring that sport and wellbeing remain integral.
We are also excited by the potential for international collaboration, which, in time, will build a global network of Elizabethans for the benefit of our new students as well as those within the state sector in Barnet
Neil Enright, Queen Elizabeth’s School, BarnetNeil Enright, headmaster of Queen Elizabeth’s School, Barnet, emphasised the school’s commitment to fostering opportunity and leadership, saying: “We are delighted to have received this encouragement from the KHDA to offer a rounded and enriching QE education to children in the UAE, spreading opportunity and supporting students to become the leaders of their generation.”
“We are also excited by the potential for international collaboration, which, in time, will build a global network of Elizabethans for the benefit of our new students as well as those within the state sector in Barnet,” he said.
“[That prior interest] confirmed to us the strength of our brand and the strength of a rounded but highly academic education. So the senior staff and governors here have been looking at this move for quite a long time,” he said.
This time, though, working with GEDU, the school was confident it was the right move. “They’re educationalists, they are experienced at partnering with a number of universities in other parts of the world…we felt a real alignment of values with them,” said Enright.
Dan Clark has been appointed as the school’s founding principal, having been deputy head of the elite Marlborough College since 2020.
“Throughout my career in outstanding schools, I’ve seen how powerful education can be,” said Clark.
“It challenges pupils to think deeply, act responsibly and believe in their own capacity to achieve.”
“These values are fundamental to the QE approach. As founding principal of QE Dubai Sports City, I’m excited to establish a community that will produce confident, able and responsible young people who are ready to shape the future.”
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Range of Factors Spurred Campus Cutbacks in August
Multiple colleges and universities, including some ultrawealthy ones, have announced plans to cut jobs and academic programs, as well as implement other changes, due to financial challenges driven by a range of factors.
For some institutions, belt-tightening measures are directly tied to the economic forces battering the sector as a whole: declining enrollments, rising operating costs and broad economic uncertainty. For others, financial pressure from the Trump administration, which has frozen federal research funding at multiple institutions, prompted cuts. State lawmakers have also forced program reductions at some public institutions.
Here’s a look at job and program cuts and other cost-cutting efforts announced in August.
University of Chicago
Despite its $10 billion endowment, the private institution is slashing expenses by $100 million, shedding 400 staff jobs and pausing admissions into multiple graduate programs.
Chicago president Paul Alivisatos wrote in a statement to faculty that the university’s financial woes are twofold, tied to a persistent operating deficit, with expenditures outpacing revenues, combined with the “profound federal policy changes of the last eight months [that] have created multiple and significant new uncertainties and strong downward pressure on our finances.”
In recent years, UChicago has been squeezed by debt, which has ballooned to more than $6 billion as leadership continued to invest in building projects, prompting critics to question how well administrators have managed the institution’s finances.
Middlebury College
The private liberal arts college in Vermont is shutting down the Middlebury Institute of International Studies at Monterey, across the country in California, officials announced last week.
Middlebury president Ian Baucom said the university is winding down graduate programs at the campus over a period of two years. Managing such graduate programs was “no longer feasible,” said Baucom, who added that the decision was made for financial reasons.
Earlier this year, the college announced it was taking action to close a budget deficit that was projected to be as high as $14.1 million. In that announcement, officials said the Middlebury Institute of International Studies was responsible for $8.7 million—more than half—of the shortfall.
Middlebury plans to sunset programs at the California campus by June 2027.
University of New Hampshire
Officials at the public university in Durham last month announced the elimination of 36 jobs, 13 of which were vacant, and 10 employees had their hours reduced, according to The Portsmouth Herald.
The layoffs are part of an effort to cut $17.5 million from UNH’s budget.
University president Elizabeth Chilton also announced other cost-cutting efforts last month, including “scaling back professional development, student employment, building hours, dining hall hours, travel, printing, and other support services.”
Carnegie Mellon University
The private research university in Pittsburgh laid off 18 employees in administrative and academic support roles in early August, WESA reported, and more changes are on the horizon.
Those cuts and other moves are part of an effort to reduce expenses by $33 million, President Farnam Jahanian wrote in a message to campus last month, noting that CMU is not operating at a deficit but is “facing significant constraints and unprecedented uncertainty.” Jahanian pointed to lower-than-expected graduate tuition revenues and federal research funding challenges.
CMU has also paused merit raises and limited hiring. While Carnegie Mellon is undertaking a review of education offerings, Jahanian wrote that “we do not have broad layoffs planned.” Jahanian added that such measures remain “a last resort.”
Bennington College
The private liberal arts college in Vermont announced in mid-August that it was eliminating 15 staff jobs “as part of ongoing efforts to address budget challenges,” VT Digger reported.
In an announcement, President Laura Walker called the cuts “a painful moment” but noted that, like its peer institutions, Bennington is “confronting an uncertain economy and a challenging overall environment for higher education.” She added that no “regular faculty positions” were cut and that the college is providing severance to affected employees.
Utah State University
The public institution laid off seven full-time researchers last month after the federal government terminated grants that supported those jobs, The Salt Lake Tribune reported.
The layoffs precede what will likely be deep cuts across multiple public universities in the state, forced by new laws that require institutions to cut some programs and positions and reinvest in others that lawmakers argue are better aligned with workforce needs. So far eight institutions have proposed axing 271 programs and 412 jobs, though those cuts still await final state approval.
Ohio University
Fallout from the Advance Ohio Higher Education Act, which went into effect in June, continues as Ohio University announced plans to suspend 11 underenrolled programs and merge 18 others.
The new law requires universities to take action on underenrolled programs, though Ohio University officials noted that they have submitted waiver requests to continue offering seven other programs that fall below the required threshold of at least five graduates, on average, across the past three years. The institution is seeking a waiver for undergraduate offerings in economics, dance, music therapy, nutrition science and hospitality management, among other degree programs.
Officials cited state workforce needs or “the unique nature” of the programs in waiver requests.
University of Connecticut
Following a review that began last fall, trustees of the public system approved the closure of seven academic programs with low enrollment—four graduate certificate and three degree programs, CT Insider reported.
Nearly 70 other programs are being monitored for enrollment and completion rates. Officials called the review process “good academic housekeeping.”
Milligan University
Citing the need to “exercise strong fiscal management,” officials at the Christian college in Tennessee announced they are suspending enrollment in six degree programs, WJHL reported.
Milligan will no longer accept students in film, journalism, computer science, cybersecurity, information systems or a graduate coaching and sports management program. University officials pointed to falling enrollment in those programs when they announced the changes.
University of Nebraska
The public university system is offering buyouts to faculty members across all its campuses as part of an effort to address a $20 million budget shortfall, Nebraska Public Media reported.
Tenured faculty members older than 62 with at least 10 years of service at Nebraska are eligible to opt in to the voluntary separation incentive program, which opened this week and closes on Sept. 30. Faculty members that opt in will receive a lump-sum payment amounting to 70 percent of their annual base salary and remain employed through June or August, depending on their contract.
University of California, Los Angeles
One of the wealthiest institutions on this list, UCLA announced last month that it has temporarily paused faculty hiring and is making other belt-tightening moves.
Officials also said UCLA is looking to “streamline services,” starting with information technology.
The public university’s move comes at least partly in response to its standoff with the Trump administration, which froze hundreds of millions in research funding to the university last month as it pressured administrators over alleged antisemitism on campus. (Some funding has been restored by a court order.) The Trump administration has also demanded a $1 billion payout from the university, which California governor Gavin Newsom called “extortion.”
University of Kansas
The public university announced last month that it was implementing a temporary hiring freeze as administrators aim to reduce spending by $32 million, The Lawrence Journal-World reported.
“We are again navigating an uncertain fiscal environment because of external factors, such as disruptions to federal funding, changes in federal law, stagnant state funding, rising costs, changes in international enrollments, and a projected nationwide decline in college enrollment,” KU officials wrote in a message to campus.
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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 — August 2023 – CUPA-HR
by CUPA-HR | August 9, 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.
Tenured Professor Loses First Amendment Retaliation Claim Related to “Offensive” Blog Posted Months Before the Adverse Action
The U.S. Court of Appeals for the 4th Circuit (covering Maryland, Virginia, West Virginia, North Carolina, and South Carolina) dismissed a North Carolina State University professor’s First Amendment retaliatory discrimination claim following the removal of the professor from a key university program. The professor claimed that his removal stemmed from his critical “woke joke” blog post. His blog stated that the Association for the Study of Higher Education’s conference had “… moved from focusing on general post-secondary research to social justice.” He claimed that the comment was protected speech and could best be characterized as a “woke joke.”
The Court of Appeals dismissed his claim holding that the blog post was published 10 months before his removal from the program area and eight months after the department head had emailed him stating that the blog had “generated controversy on social media.” The appeals court ruled 2 to 1 that “temporal proximity” between the alleged speech and the adverse action was lacking and therefore the case must be dismissed (Porter v. Board of Trustees of North Carolina State University (4th Cir. No. 22-01712, 7/6/23)).
Court Decisions on Telework Disability Accommodation Changing in the Aftermath of the COVID-19 Pandemic
Federal judges are less likely to decide in favor of employers rejecting telework accommodation in disability cases in the aftermath of the COVID-19 epidemic. The employer win rate in cases denying a disability telework accommodation has dropped to 60% in the aftermath of COVID-19 compared to a 70% win rate during the two-year period prior to the pandemic, according to statistics cited by Bloomberg Industry Group (DLR 7/6/23).
Federal judges are now more likely to consider telework as a reasonable accommodation in certain disability cases as a result of the widespread use of telework during the COVID-19 pandemic.
Mandatory Paid Family and Medical Leave Becoming More Common Among State and Local Jurisdictions
Twelve states, plus the District of Columbia, have enacted mandatory paid medical and family leave for workers within their jurisdictions. While the form of the mandate varies from jurisdiction to jurisdiction, workers are increasingly being granted by these statutes guaranteed paid time off to care for their own serious medical condition, a newborn or newly adopted child, or a family member’s major medical condition. In addition, according to Bloomberg DLR, Michigan and New Mexico appear likely to adopt mandatory paid-leave programs in the near future. It is important to check your state and local jurisdictions for developments in this area.
Professor of Iranian Decent Entitled to Title VII Jury Trial Over Allegations That His Contract Non-Renewal Was Based on National Origin Prejudice by His Turkish Supervisor
A federal district court judge denied a summary judgement motion and held that a tenure-track art professor of Iranian descent was entitled to a jury trial under Title VII regarding his allegations that his supervisor denied renewal of his contract because of the supervisor’s anti-Iranian, Turkish background. The judge concluded that the plaintiff stated a claim of national origin discrimination under Title VII and was therefore entitled to a jury trial over those allegations and allegations that the university denied the plaintiff access to legal counsel and misstated his legal position (Shams v. Delta State University (N.D. Miss. No. 22-cv-00035, 7/11/23)).
The plaintiff alleged that there is tension between Iranians like himself and Turks like his supervisor because the two countries “… share a contentious border and not much else.” The plaintiff also alleges that he was replaced by an art professor of Turkish background who was contacted for the position before the non-renewal of his contract.
Former Professor’s First Amendment Retaliation Claims Related to His Termination After Publishing an Article on “Racial IQ Gap” Dismissed Against University, But Survives Against University Officials
A former Cleveland State University professor can pursue some of his First Amendment retaliation claims, after he was terminated following publication of an article that advanced a theory that genetics cause a “Racial IQ Gap” between White and Black Americans. The federal district court hearing the case dismissed the complaint against the university on sovereign immunity grounds. However, the court let some of the complaint proceed against some university officials, at least through discovery. After completion of discovery, the court will rule on whether individual university officials are covered by the university’s sovereign immunity (Pesta v. Cleveland State University ( 2023 BL 242086, N.D. Ohio, No. 1-23-cv-00546, 7/14/23)).
The controversial article was subject to outside criticism that the professor unethically misused NIH Data on studies of racial differences to reach his conclusions. The university stated that the professor was terminated for ethical lapses and for violating its academic and integrity standards. The professor claims that he was fired because of university viewpoint discrimination against the conclusions in his article in violation of the First Amendment. We will follow developments as this case unfolds.
New Jersey Equal Pay for Temps Law Is First to Mandate Joint Liability of Employers Along With Temp Agencies
New Jersey employers will face expanded liability along with temp agencies under a law which mandates that temp employees receive pay and benefits equal to comparable full-time employees employed by the employer. The law is the first to impose joint-employer liability along with temp agencies employed by the employer and goes into effect on August 5, 2023, according to Bloomberg DLR, 8/4/23. While other states — including California, Illinois and Massachusetts — have temporary-worker bill-of-rights laws, New Jersey is the first to impose joint-employer liability on the actual employer employing the temp agency.
The New Jersey law imposes the requirement that temp employees in the state receive wages and benefits comparable to those of similarly situated full-time employees.
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ICE Gives Employers Until August 30 for In-Person Form I-9 Verification After COVID Flexibilities Expire – CUPA-HR
by CUPA-HR | May 10, 2023
On May 4, 2023, U.S. Immigration and Customs Enforcement (ICE) announced it will provide employers with 30 days to reach compliance with Form I-9 requirements after the COVID-19 flexibilities sunset on July 31, 2023. Employers will now have until August 30, 2023, to complete all required physical inspections of identity and employment-eligibility documents. This extension aims to ease the transition for employers who have been using the temporary flexibilities throughout the pandemic.
Background
In March 2020, ICE introduced the temporary flexibilities in response to the COVID-19 pandemic, allowing employers to review employees’ identity and employment authorization documents remotely, rather than in person. This virtual inspection was to be followed by a physical examination within three business days after normal operations resumed. The flexibilities were extended several times, with the most recent extension set to expire on July 31, 2023.
During the pandemic, employers with employees taking physical-proximity precautions were allowed to temporarily defer physical examination of employees’ identity and employment authorization documents. Remote examination methods, such as video link, fax or email, were permitted, with “COVID-19” entered as the reason for the physical-examination delay in the Section 2 Additional Information field on the Form I-9. Once the employees’ documents were physically examined, employers would add “documents physically examined” with the date of examination to Section 2 or Section 3 of the Form I-9, as appropriate.
The recent announcement clarifies that employers have until August 30, 2023, to perform all required physical examinations of identity and employment-eligibility documents for individuals hired on or after March 20, 2020, who have received only a virtual or remote examination under the flexibilities.
What’s Next
On August 18, 2022, ICE issued a proposed rule to allow alternative procedures for examining identity and employment-eligibility documents. CUPA-HR submitted comments to ICE encouraging it to move forward expediently and ensure that a remote review process remains available for all employers. The public comment period closed on October 17, 2022, and DHS is currently reviewing the comments. While the Fall 2022 Regulatory Agenda had forecast a final rule to be issued in May 2023, ICE’s announcement indicates a final rule will be issued later this year.
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August Recess Roundup: Congressional and Regulatory Updates – CUPA-HR
by CUPA-HR | August 22, 2022
When August arrives, Congress leaves D.C. and heads to their home districts for the annual August recess period. To keep CUPA-HR members apprised of recent and future actions on the Hill and in federal agencies, here are highlights of the latest actions by Congress, nominations they’ll have to consider when they return, and regulations that may be issued throughout the month.
Legislative Updates
On August 16, President Biden signed the Inflation Reduction Act into law following its passage, along partisan lines, in both the U.S. Senate and House of Representatives. The Inflation Reduction Act, which is a slimmed down version of the reconciliation bill Democrats have been pushing for, focuses on policies to mitigate the impacts of climate change, reduce healthcare costs and increase tax revenue to reduce the federal budget deficit. This reconciliation bill was narrowed down from the “Build Back Better” agenda, a step necessary to gain support from Senators Joe Manchin (D-WV) and Kyrsten Sinema (D-AZ) to get the bill over the 50-vote threshold. Notably, the final package did not include “Build Back Better” provisions like paid leave, universal community college and childcare.
Additionally, on August 9, President Biden signed the CHIPS and Science Act, which provided new funding to boost U.S. investments in research and manufacturing of semiconductors. With respect to the research investments, the bill includes a five-year, $81 billion authorization of the National Science Foundation to go toward research funding. Additionally, the bill provides new funding to historically black colleges and universities and other minority-serving institutions, and for STEM programs at colleges and universities.
Nominations Awaiting Confirmation
On July 27, President Biden announced Jessica Looman as the new nominee for the Department of Labor (DOL)’s Wage and Hour Division Administrator. Looman has been serving as acting administrator for the agency since June 2021. Her nomination replaces Biden’s previously withdrawn nomination of David Weil, who failed to garner enough support in the Senate to be confirmed. Looman’s nomination will have to go through the Senate Health, Education, Labor and Pensions (HELP) Committee prior to going to the Senate floor for a full vote. Timing on both votes are uncertain at this point.
Additionally, Kalpana Kotagal’s nomination for the Equal Employment Opportunity Commission (EEOC) continues to be held up in the Senate. In May, the Senate HELP Committee deadlocked on a vote to move her nomination to the full Senate, which means the full Senate will have to vote to advance her nomination out of committee — a logistical hurdle in a 50-50 Senate with sparse time on their legislative calendar. The result of this hold up means the EEOC will continue to operate with a Republican majority as federal statute allows Republican Commissioner Janet Dhillon, whose term expired in July, to remain an active member of the EEOC while her successor’s nomination is pending. If and when nominee Kotagal is confirmed, she will replace Commissioner Dhillon and tip control of the EEOC to a 3-2 Democratic majority. Her confirmation vote is also uncertain at this point.
Regulatory Updates
Though not guaranteed, there may be several proposals and final regulations that may be released by the Department of Education, the DOL and other relevant agencies throughout the month. Some of these include the expected proposed rule on Form I-9 remote verification flexibilities from the Department of Homeland Security, which has already had its review completed by the White House; a proposed rule on independent contractor classification, which was sent to the White House for review in July; and a final rule on the Deferred Action for Childhood Arrivals program, which has a target release date set for August.
In addition to these proposed and final rules CUPA-HR is waiting to be released, the Department of Education is still undergoing its notice-and-comment period for the Title IX proposed rule that was released in June. CUPA-HR is assessing the proposal and will put together comments in response to the proposed rule. Comments are due September 12.
CUPA-HR will keep members apprised of legislative and regulatory actions as August recess continues and we move into the fall.
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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.
