Tag: Courts

  • HR and the Courts — September 2024

    HR and the Courts — September 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.

    Fired Professor Who Praised Hitler Loses Free Speech Retaliation Lawsuit

    The New Jersey Institute of Technology prevailed in a federal lawsuit brought by a former philosophy lecturer alleging retaliatory discharge. The professor’s employment agreement was not renewed after a New York Times article exposed his involvement in the “alt-right” (a far-right, white nationalist movement), including his praising Adolph Hitler as a “great European leader” and linking IQ to race. In dismissing the lawsuit, the U.S. District Court for the District of New Jersey held that the professor’s speech disrupted, and would likely continue disrupting, the university’s administration and interfered with the university’s mission (Jorjani v. N.J. Inst. of Technology ((D.N.J. No. 2:18-cv-11693, Jud entered 7/31/24)).

    The judge held that public employers can restrict the speech of employees without violating the First Amendment when necessary to maintain effective and efficient operations. The judge also emphasized that the university did not need to wait for protests and demonstrations in order to show disruptions in operations before acting.

    NLRB: Private Colleges and Universities Must Bargain With Unions Representing Student Employees Over FERPA-Protected Information

    On August 6, 2024, the general counsel of the National Labor Relations Board (NLRB) issued a memo acknowledging the potential conflict between the National Labor Relations Act (NLRA) and the Family Educational Rights and Privacy Act (FERPA) regarding union requests for personal information about student employees. The NLRB general counsel concluded that colleges and universities in this situation must bargain with the applicable union over disclosure of such information and explain why the information request would violate FERPA.

    Further, the NLRB concluded that the college or university can bargain with the union over the distribution of FERPA waivers to applicable student employees but that asking the union to hand out such waivers would be unreasonable and a violation of the employer’s duty to bargain in good faith because the union does not have the student contact information. The general counsel concluded that the college or university should hand out the waivers when the union does not have the student employees’ contact information.

    Proposed $2.8 Billion NCAA Settlement on Hold as Some Student-Athletes Object

    Some student-athletes claiming the NCAA artificially capped the size of college athlete scholarships too low, as well as those pursuing fair-pay claims, objected to the $2.8 billion proposed settlement of the NCAA and the Power Five conferences antitrust case. Plaintiffs in these two areas are asking the Northern District of California court to carve out their claims from the proposed settlement so that they can pursue individual claims in further litigation. The federal judge overseeing the matter questioned the proposed settlement and concluded that the settlement needed a better explanation of damages and a clearer understanding of how much each class member can expect to gain (In re College Athlete NIL Litigation (N.D. Cal. No. 4:20-cv-3919. Brief filed 8/9/24, Fontenot v. NCAA D. Colo. No. 1:23-cv-03076, and Cornelio v. NCAA D. Colo. No. 1:24-cv-02178)).

    Two former Brown University student-athletes have dropped their objection, concluding it will not preclude them from proceeding separately in an antitrust claim against the Ivy League. The two former men’s and women’s basketball players have alleged separately that the Ivies have engaged in an illegal agreement which raised the price of an Ivy League education by illegally suppressing compensation for their services. They alleged that Brown only provided them with need-based assistance that did not cover the full cost of their education.

    Boston University Graduate Workers Strike Is Longest in the Last Decade

    Lasting over 150 days, the Boston University graduate workers strike is the longest student employee strike in the last decade, according to the National Center for the Study of Collective Bargaining in Higher Education and the Professions, located at the City University of New York’s Hunter College. The BU strike, which began on March 25, eclipses a similar work stoppage of 147 days at the University of Michigan in 2023. An unauthorized “wildcat” strike at the University of California, Santa Cruz may have lasted longer but the National Center points out that strike was unauthorized by the applicable union. The center concludes that this is part of the significant increase in unionization of both undergraduate and graduate student workers that has occurred over the past few years.

    The Boston University graduate workers formed their union in December 2022. The union is still engaged in efforts to secure their first collective bargaining agreement. September 3 will be the beginning of the second semester in which the grad student workers are striking. Teaching and regular higher education functions have continued at the university, though some interference with regular activities has been reported.

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  • 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 — July 2024 – CUPA-HR

    HR and the Courts — July 2024 – CUPA-HR

    by CUPA-HR | July 10, 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.

    University of California and UAW Agree to End Grad Student Strike

    The rolling strike of University of California graduate students at several campuses, protesting the university’s handling of Israel-Hamas war protests is formally over as a result of the university and union agreement to extend the injunction granted by a California state court at the university’s request. The university successfully argued that the rolling strike violated the collective bargaining agreement’s no-strike provision. The UAW represents 38,000 grad students at several University of California campuses.

    UC student workers walked off their jobs at six campuses in May and continued a rolling strike until the court enjoined the strike activity. The university breach-of-contract litigation continues, as there remain issues to be decided by the court as to the breadth of the no-strike provisions and the university’s claim for damages resulting from the breach of the no-strike provisions.

    University Prevails in Title IX Lawsuit Alleging Student Sex Harassment at a Private Party Off Campus

    A federal judge recent ruled that a plaintiff student failed to provide evidence that the university had substantial control over the context in which the assault or sex harassment occurred to make the university liable under Title IX. The judge concluded that even though the university had control over the alleged harasser because of an alleged student code violation, this was not enough to substantiate jurisdiction under Title IX (Roe V. Marshall University Board of Governors (2024 BL 215044, S.D. W. Va. No. 3:22-cv-00532, 6/24/24)).

    When the harassment occurs off campus, the judge ruled that the court must find some nexus between the “out of school conduct and the school.” The court concluded that the incident in question took place at a private party at a private residence and the party was not sanctioned, hosted or sponsored by the university or an entity affiliated with the university. Moreover, permission for the party was not sought from the university, and the university was unaware of the party until it was over.

    The university’s Title IX office determined, four days after the incident, that the matter should be handled by the university’s Office of Student Conduct, which the judge concluded was consistent with Title IX regulations at the time. The student conduct office immediately issued an no-contact order between the student and the alleged harasser and conducted a six-week investigation.

    The male student (alleged harasser) was ultimately placed on probation and required to participate in an alcohol education program, do 20 hours of community service, and accept responsibility for violation of the student code. The plaintiff (alleged victim) was also put on probation and required to participate in an alcohol education program and complete 10 hours of community service, after admitting to underage drinking. In dismissing the case against the university, the judge also concluded that the male student (alleged harasser) also faced possible independent criminal penalties.

    Two Conservative Groups Are Bringing Court Challenges to Large Employers’ Workplace DEI Programs

    America First Legal, led by former Trump adviser Stephen Miller, has filed at least 15 lawsuits alleging that employer DEI programs are illegal under Title VII and has sent more than 30 letters asking the EEOC to probe employer DEI programs at large employers, including Morgan Stanley and IBM Corp. Academic institutions could be their next target.

    The second organization, American Alliance for Equal Rights, led by conservative activist Edward Blum, has claimed that these DEI programs violate Section 1981 of the Civil Rights Act of 1866, which affirms that all citizens are equally protected by the law. The organization has used the 1866 statute in challenging DEI programs at law firms, including Winston and Strawn, Morrison Foerster, and Perkins Coe. The 1866 statute is broader than Title VII. Plaintiffs suing under the 1866 statute avoid the Title VII damage cap and the requirement that a charge be filed with the EEOC before filing suit.

    Transgender Woman Reaches Settlement of Claim That She Was Wrongly Denied Medical Coverage

    A transgender woman plaintiff sued her employer’s group insurance plan, alleging that she was wrongly denied medical coverage for facial hair removal, which she claimed is an extremely important part of gender-affirming care. The plaintiff alleged that the care is deemed medically necessary for treating gender dysphoria by the World Professional Association for Transgender Health. The lawsuit claimed that the denial, based on the conclusion that the surgery was cosmetic and unnecessary, was inconsistent with the evidence presented that the treatment was medically necessary (Cox V. WSP USA Inc. Group Insurance Plan (N.D. Cal. No. 3-24-cv-01312, 6/6/24)).

    The plaintiff sought $5,000 in out-of-pocket expenses plus $20,000 for future services. The case was dismissed after the parties stipulated to the judge that they had reached an undisclosed settlement.

    Supreme Court Raises the Bar for the NLRB to Obtain an Adverse Injunction Against an Employer for Unfair Labor Practices

    The U.S. Supreme Court concluded that the federal courts should give no more weight to an NLRB request for injunctive relief against employers allegedly violating the NLRA unfair labor practice provisions than it would give other litigants in injunction cases (Starbucks Corp, V. McKinney (U.S. No. 23-367, 6/13/24)). The Supreme Court essentially held that a defending employer is entitled to discovery over the NLRB’s alleged evidence before the court can issue an injunction. In the past, the NLRB has been able to maintain secrecy over this information when seeking extraordinary relief (e.g. an injunction requiring reinstatement of employees allegedly terminated for supporting a union).

    Supreme Court to Determine Employer Burden of Proof to Obtain an Exemption From FLSA Minimum Wage and Overtime Provisions

    The Supreme Court has granted certiorari to resolve the split in appellate courts on the precise evidentiary burden applicable to employers attempting to justify an exemption to the application of the FLSA’s minimum wage and overtime provisions. Right now the circuits are split over whether an employer must prove an exemption by “clear and convincing evidence” rather than the lesser standard of “preponderance of the evidence.” The Supreme Court will resolve this split and decide which standard is applicable to employers going forward (E.M.D. Sales Inc. V. Carrera (U.S. No. 23-217, petition granted 6/17/24)).

    The issue involves whether the defendant firm’s sales personnel fall inside the “outside sales exemption.”  The company lost the case at trial, where the federal court held that it did not meet the “clear and convincing” standard, while numerous other appellate courts have applied the less stringent “preponderance of the evidence” standard.



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

    HR and the Courts — June 2024 – CUPA-HR

    by CUPA-HR | June 12, 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.

    Judge Halts Academic Workers’ Strike at Several University of California Campuses

    The University of California has taken legal action against United Auto Workers Local 4811, which represents some 48,000 academic workers and graduate students across UC’s multiple campuses. The lawsuit requested an injunction to end the rolling strike at six campuses, which the university contended is in violation of the applicable no-strike contractual provisions. The judge granted the university’s request for a temporary restraining order on June 7, 2024. The order will halt the strike until the judge conducts a hearing over whether to grant a permanent injunction enforcing the no-strike provisions of the applicable labor contract (Regents of the University of California v. UAW Local 4811 (Cal Sup Court, No. 30-2024-01403666-CU-MC-CXC, 6/7/24)).

    This case followed the university’s complaint to the California Public Employment Relations Board alleging that the union had violated the applicable no-strike provisions. The board filed a complaint against the union, arguing it failed to give the university “adequate advance notice” and “failed and refused to meet and confer in good faith,” but declined the university’s request to seek a court order halting the strike.

    Following its exhaustion of all remedies at the state board, the university filed its own state court complaint, seeking to end the strike. The complaint accused picketers of blocking entrances to university property, including hospitals, and illegally occupying buildings. The university argued that the breach of contract endangers lifesaving research at hundreds of laboratories across many campuses. The UAW claimed that the no-strike clause is inapplicable because the university violated state law by calling in police to break up pro-Palestinian encampments on several campuses and allegedly changed workplace rules in response to the protests. The proceedings will continue with a full hearing over whether to convert the restraining order into a permanent injunction further barring the strike activity.

    University of Florida Recruit Sues Over Claimed $13.85 Million NIL Deal — NCAA Proposes Settlement of NIL Class Action

    A former football recruit has sued the University of Florida’s football coach and boosters, alleging they recruited him with the promise of $13.85 million in name, image and likeness payments and then reneged. The complaint, filed in federal district court in Florida, alleges fraud, tortious interference and other claims. The plaintiff alleges that, after the NIL offer, he rejected other lucrative offers only to have the Florida offer “decrease drastically” (Rashada v. Hathcock (N.D. Fla., 3:24-cv-00219, complaint 5/21/24)).

    The plaintiff alleges that, as a 19-year-old college-bound athlete, he was persuaded by a network of university officials and donors to flip on his commitment to the University of Miami, but they never came through on the NIL promises. After the deal never materialized, the plaintiff went to the University of Arizona instead and ultimately transferred to the University of Georgia.

    Separately, the NCAA and the Power Five conferences have proposed a nearly $2.8 billion settlement of the class action claim against them relating to their former ban on NIL payments to student-athletes. If the settlement is approved, the NCAA also agrees that it would no longer attempt to regulate NIL payments, which would be solely up to each college and university to determine and administer (In Re College Athlete NIL Litigation (N.D. Cal., No., 4:20-cv-03919)).

    Court of Appeals to Review Whether Discharge for Refusal to Take Anti-Discrimination Training Is Itself Discriminatory

    The 7th U.S. Circuit Court of Appeals (covering Illinois, Indiana and Wisconsin) will decide whether to affirm a federal trial court’s dismissal of a discrimination claim brought by a White employee. The employee claimed he was discharged in violation of federal and state anti-discrimination laws for his refusal to take the employer’s mandatory anti-discrimination training, which he claimed was discriminatory. The plaintiff claimed the training was inherently biased against White employees, after admitting he had no knowledge of the contents of the training (Vavra v. Honeywell International Inc. (Case No. 23-02823, oral arg sched 5/21/24)).

    The trial court concluded that the plaintiff’s internal emails to the company’s president, which accused the company of “race baiting,” were protected communications. The court further concluded that the plaintiff was not terminated for the communications, but rather because of his refusal to take mandatory anti-discrimination training that was not itself discriminatory. The employer’s diversity, equity and inclusion and law departments had properly vetted the training and concluded it was intended to foster an inclusive work environment.

    U.S. Supreme Court Rejects White Professor’s Claims of Race and Sex Discrimination Filed Against HBCU

    The Supreme Court turned down a request for certiorari and declined to hear a White law school professor’s claim that the 5th U.S. Circuit Court of Appeals had erroneously dismissed her claim of race and sex discrimination and retaliation under Title VII and the Equal Pay Act. The law professor had claimed that the appeals court erroneously dismissed her claims that she and other female professors were treated poorly in violation of Title VII and the Equal Pay Act and that she was forced to resign from Texas Southern University, a historically Black institution. The court denied the professor’s two petitions for it to hear her case without issuing an opinion (Sacks v. Texas Southern University (Case Nos. 23-891 & 23-1031, Cert denied 5/13/24)).

    The plaintiff asked the Supreme Court to adopt a “totality of circumstances” standard in determining whether her claims of years of “alleged” harassment and continuing violations justified her conclusion that she felt compelled to resign. The plaintiff also complained that the lower court had denied her the right to receive female wage data while requiring her to identify male comparators to make her Equal Pay Act claims. The Supreme Court denied the professor’s request to be heard in the absence of a response from the university, which had waived its right to respond to the professor’s petitions.

    In Employment Law Matter, U.S. Supreme Court Rules Federal Courts Can No Longer Dismiss Federal Lawsuits Subject to Mandatory Arbitration

    The U.S. Supreme Court resolved a split among federal appellate courts on whether, under the Federal Arbitration Act, federal trial courts can dismiss rather than stay a lawsuit that is covered by the terms of a mandatory arbitration agreement pending the outcome of arbitration. The 1st, 5th, 8th and 9th U.S. Circuit Courts of Appeals have previously allowed dismissal while the 2nd, 3rd, 6th, 7th, 10th and 11th have ruled that the case must be stayed pending the outcome of the arbitration.

    The case involved a group of drivers who claimed they were misclassified as independent contractors rather than employees entitled to minimum wage, overtime and paid sick leave under federal and state laws. Both sides agreed that the dispute was subject to a mandatory arbitration agreement. The 9th Circuit ruled the case should be dismissed. The Supreme Court reversed, concluding that the specific provisions of the Federal Arbitration Act require the courts to stay the action while it is referred to arbitration, pending the outcome of the arbitration (Smith v. Spizzirri (US No, 22-1218, 5/16/24)).

    Texas Sues EEOC Over Guidance Protecting LGBTQIA+ Employees From Sex Harassment Relating to Their Choice of Pronouns and Bathrooms Consistent With Gender Identity

    The Texas attorney general has filed suit in federal court seeking to block enforcement of the Equal Employment Opportunity Commission’s recent guidance aimed at shielding LGBTQIA+ employees who seek to use pronouns and bathrooms consistent with their gender identity. The Texas suit alleges that the most recent EEOC guidance goes beyond the statutory limits of Title VII just as the prior EEOC workplace guidance, which was vacated in Texas federal court, did (The State of Texas v. EEOC (N/D. Tex., 2:21-CV-194-Z, Complaint, filed 5/21/24)).

    Separately, a coalition of 18 Republican attorneys general have also filed suit, seeking to block this EEOC guidance and alleging the same legal overreach by the EEOC.



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

    HR and the Courts — May 2024 – CUPA-HR

    by CUPA-HR | May 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.

    Unions Representing Student Employees File Unfair Labor Practice Charges Related to Student Protests

    Nearly 30 unions representing more than 100,000 student workers at 58 campuses throughout the country have issued a joint letter supporting protesting students and condemning violent responses to peaceful protests. Unfair labor practice charges have also been filed with the National Labor Relations Board against a small number of private institutions in protest of schools’ enforcement of their rules.

    The NLRB has found in the past that civil rights protests — for example, those connected to the Black Lives Matter movement — are protected concerted activity when they are tied to protesting employer or employment discrimination matters. However, commentators have drawn a distinction related to the Israel-Hamas war protests. While each unfair labor practice case will rise and fall on the specific facts related to the situation, a university enforcing safety rules and cracking down on protests will likely not violate the National Labor Relations Act. Additionally, if a union member participates in a protest unrelated to their employment and violates university rules, the sanctions involved will likely not violate the NLRA.

    Court of Appeals Affirms Dismissal of ERISA Lawsuit Against Georgetown University

    The U.S. Court of Appeals for the District of Columbia Circuit unanimously affirmed the dismissal of an employee-filed Employee Retirement Income Security Act lawsuit. The lawsuit claimed that Georgetown University had packed its retirement plans with expensive and badly performing investment options.

    The lawsuit further alleged that Georgetown had offered its faculty and staff retirement plans with too many investment options and retained multiple recordkeepers, which drove up the administrative costs of the plans. A federal district court judge dismissed the amended complaint in April 2023, ruling that the amended complaint did not address the concerns that led to the dismissal of the original complaint.

    The Court of Appeals unanimously concluded that the original complaint failed to plead any adequate claims and the proposed amended complaint was futile as it did not cure the problem (Wilcox et al. v. Georgetown University et al. (Case no. 23-7059, DC Cir. 4/23/24)).

    Student-Athlete NLRB Unionization Decisions May Modify Taxability of Athletic Scholarships

    Although the NLRB’s decision in the Dartmouth College men’s basketball team case is under review, if the board affirms the decision that players are employees and can unionize, it could ultimately cause the IRS to rethink its current position that student-athletes receiving scholarships are not employees for purposes of the tax code. This could possibly include a change in the current position that these scholarships are not taxable as income.

    If the NLRB affirms the regional director’s decision, which many commentators conclude is likely given its composition under the Biden administration, the decision is not binding for the IRS. The IRS has independent authority to conclude whether these student-athletes are employees and are receiving taxable compensation in the form of scholarships under the Internal Revenue Code. Separately, the courts are wrestling with the question of whether student-athletes are employees under the Fair Labor Standards Act and are entitled to minimum wage and overtime. We will keep following these issues as they unfold.

    IRS Giving More Scrutiny to Tax-Exempt Status of Name, Image and Likeness Payments to Student-Athletes From Booster Donations

    Bloomberg reports that the IRS has begun revoking and not granting 501(c)(3) status to some groups formed to collect money from boosters to fund name, image and likeness payments to student-athletes. In testimony before the Senate finance committee, the IRS commissioner stated that they are scrutinizing those NIL groups that are not operating for tax-exempt purposes. These collectives have raised millions of dollars from boosters who generally expect those gifts to be tax deductible. For specific tax guidance, a tax professional should be consulted on questions arising in this area.

    U.S. Supreme Court Rules Job Transfers Can Violate Title VII and Other Anti-Discrimination Statutes

    The Supreme Court ruled unanimously on the issue of whether a plaintiff must prove significant harm to state a claim of discrimination under the applicable anti-discrimination statutes because of a job transfer. The court reversed the holdings of some circuit courts of appeal that “significant harm” must be stated to state a claim of job discrimination resulting from a job transfer.

    Nonetheless, the Supreme Court stopped short of eliminating the harm requirement entirely. The court held that a plaintiff must show that the transfer resulted in some level of injury or harm, concluding that the statute does not require by its terms the high bar of “significant” harm (Muldrow v. St. Louis (U.S. Case No. 22-193, 4/17/24)). The concurring justices, who did not dissent, argued that the change from significant harm to some other lower level of harm was confusing and would lead to further inconsistent litigation.

    NLRB Reports 10% Rise in Case Load in First Half of Fiscal Year 2024

    The NLRB reports that case filings of unfair labor practice charges or union representation votes rose 10% during the first half of fiscal year 2024 compared to the same period in the previous fiscal year. Union election petitions rose by 35% during this period, and unfair labor practice charges rose by 7%. The NLRB has jurisdiction over private institutions of higher education and has no jurisdiction over state-based public institutions. State public institutions are generally subject to state labor boards and state statutes with separate, but often parallel, rules. This uptick in private employer unfair labor practice charges and election petitions will likely be accompanied by an increase in activity by public-sector unions at public institutions of higher education.



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

    HR and the Courts — April 2024 – CUPA-HR

    by CUPA-HR | April 9, 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.

    Dartmouth Refuses to Bargain With Men’s Basketball Team Union

    As the next chapter in the Dartmouth College men’s basketball players union dispute, Dartmouth has refused to bargain with the union elected to represent the players. The men’s basketball team voted 13-2, in a National Labor Relations Board-supervised election, to be represented in collective bargaining negotiations by the Service Employees International Union Local 560. The election was conducted after the NLRB regional director ruled that the student-athletes were employees under the National Labor Relations Act and therefore were entitled to an NLRB-supervised election as to whether they wanted a union to represent them. Dartmouth stated, “While we continue to negotiate in good faith with multiple unions representing Dartmouth employees, our responsibility to future generations of students means we must explore all our legal options for challenging the regional director’s legal error.”

    This action will likely lead to the NLRB filing unfair labor practice charges against Dartmouth. Dartmouth can defend on the grounds that the student-athletes do not meet the NLRA definition of employees. If the NLRB again rejects this argument, the case will be reviewable by a federal court of appeals with jurisdiction over this matter.

    Tufts Professors Charge That Fundraising Part of Their Salary Violates Their Tenure Contract

    A state of Massachusetts appellate court ruled that tenured faculty at Tufts University School of Medicine must pursue more discovery concerning their claim that the university’s requirement that they fundraise to pay for a significant part of their salary violates their tenure contract (Wortis v. Trustees of Tufts College (Mass., No. SJC-13472, 3/14/24)). The medical school professors claim that the fundraising requirement violates their contractual rights to academic freedom and to economic security.

    The allegations include the college nearly halving the salary and lab space of some of the professors who did not meet the fundraising requirement. The court sided with the college on the professors’ lab space claim, concluding that altering lab space did not threaten a professor’s economic security. The court concluded, however, that tenure is “permanent and continuous” once granted, and it would seem a “hollow promise” without a salary commitment of strong protections. Nonetheless, the court concluded that the tenure documents are ambiguous on “economic security” and more discovery is necessary to flush out the meaning of the tenure documents as they pertain to the college’s significant reductions of salary and full-time status alleged here.

    University Baseball Coach’s Reverse-Discrimination Claim Dismissed, But Retaliation Claim Proceeds to Jury Trial

    A White baseball coach’s reverse-discrimination claim against St. Edward’s University was dismissed. The coach claimed that he was fired after two separate investigations concluded that he did not discriminate against two Black baseball players. However, the federal trial court judge ruled that his retaliation claim that he was discharged because he complained about reverse discrimination should proceed to trial (Penders v. St. Edward’s University (2024 BL 90254, W.D. Tex., No. 1-22-CV-178 – DAE, 3/18/24)).

    While the investigations were ongoing, the university reviewed a tape submitted by one of the complaining players which evidenced the coach cursing at the player. While the university concluded that incident did not involve discrimination by the coach, it told the coach that his values were not in line with the school’s values and that he would be terminated at the end of the season.

    The coach alleged that the decision to terminate him at the end of the season was illegal and demanded another meeting with his lawyer present. The university allegedly responded a couple of hours later terminating the coach immediately. The judge ruled that the coach’s claim that his termination was “illegal” was protected activity and a jury could conclude that the termination, in close proximity to his protected activity, was an unlawful retaliation against the coach for raising his legal claim.

    School Board Prevails in Race Discrimination and Defamation Lawsuit Brought by Former Track Coach

    Maryland’s Anne Arundel County school board won summary judgement, after a judge dismissed a discrimination case brought by a former track and cross-country coach who was fired after a verbal and physical altercation with a student. The federal court dismissed the coach’s discrimination claims after review of the incident, which was recorded on video, concluding that the plaintiff exercised poor judgement in his actions, which violated school policy, and presented no evidence of discrimination or more favorable treatment of comparators (Daniels v. Board of Education of Anne Arundel County (2024 BL 77797, D. Md. No. 1:22-cv-03057, 3/8/24)).

    The federal court judge rejected the plaintiff’s argument that his conduct was justified because he also served as a substitute school security officer, concluding that his actions still violated school policy. The court also dismissed the plaintiff’s defamation claims, holding that the school board’s statements to a local news blog, including that the plaintiff had been suspended while an investigation was taking place, were not false.

    Several States Pass Ban on Anti-Union Captive-Audience Meetings — Employer DEI Training Is a Target in Conservative-Leaning States

    Five states have passed employer bans on anti-union captive-audience speeches (New York, Connecticut, Maine, Oregon and Minnesota) and such legislation has been introduced in nine additional states (California, Washington, Alaska, Colorado, Illinois, Maryland, Vermont, Massachusetts and Rhode Island). Business groups in Minnesota and Connecticut have initiated litigation challenging these state bans.

    As a federal matter, the NLRB has not ruled that such captive-audience meetings violate the NLRA. However, the NLRB’s general counsel has taken the position publicly that such captive-audience meetings violate employees’ federal labor rights.

    At the same time, conservative-leaning states such as Florida have enacted restrictions on employer diversity, equity and inclusion training. The 11th U.S. Circuit Court of Appeals (covering Alabama, Florida and Georgia) has struck down part of the Florida DEI restriction on First Amendment grounds. Separately, about six states, according to Bloomberg, require anti-discrimination training, including sex harassment training, as a matter distinct from DEI training. It is important to keep up with these matters according to the latest developments in the individual states in which your institution is operating.



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

    HR and the Courts — March 2024 – CUPA-HR

    by CUPA-HR | March 13, 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.

    Dartmouth College May Appeal NLRB’s Decision Allowing Basketball Players to Unionize

    The Dartmouth College men’s basketball team voted 13-2 to unionize, selecting the Service Employees International Union Local 560 to represent them in collective bargaining. While student-athletes at Northwestern University voted to unionize some 10 years ago, the National Labor Relations Board declined jurisdiction in that case. Here, the NLRB appears to be taking a different approach and has affirmed the regional director’s decision that the basketball players are employees of the college.

    Bloomberg reports that Dartmouth stated it has “deep respect” for its unionized workers but does not believe this path is “appropriate” for basketball players. Dartmouth has argued to the NLRB that its student-athletes are not employees and that its basketball players are participating in a voluntary extracurricular activity. The NLRB, with one dissenting vote, denied Dartmouth’s motion to stay its decision, ruling that the basketball players are employees of the institution. The legal path forward is complex, and we will report on developments as they occur.

    Separately, the NLRB is conducting a hearing on the West Coast involving an unfair labor practice complaint filed against the University of Southern California, the Pac-12 Conference and the NCAA regarding their refusal to bargain with a union representing football and basketball players at USC. The NLRB general counsel has publicly stated that she believes student-athletes are employees who should be able to unionize.

    Student-Athlete Employee Status Could Lead to Student Visa Problems

    The classification of college student-athletes as employees could lead to F-1 visa problems for international athletes enrolled in U.S. colleges and universities. The F-1 visa restricts work to 20 hours per week when classes are in session and 40 hours per week when classes are not in session. The F-1 visa is used by roughly 20,000 international athletes enrolled in U.S. colleges and universities.

    Possible workarounds are either the P-1 visa, which is a nonimmigrant visa used by professional athletes, or an O-1 visa, which is used by individuals with extraordinary ability. Commentators conclude that these workarounds are not feasible on the scale necessary to accommodate the number of international student-athletes involved. A legislative solution will probably be necessary to address this problem should the employee status of college athletes be confirmed by the NLRB, or in other litigation under statutes such as the Fair Labor Standards Act.

    Union Membership and Strike Activity Rose Dramatically in 2023

    Bloomberg Law’s statistical analyses show that union membership and strike activity rose considerably in 2023 to levels not seen in years. Unions organized almost 100,000 new workers in NLRB-supervised elections in 2023, the largest single year total since 2000. This is the fourth-largest total one-year organizing gain since 1990, according to Bloomberg Law statistics. This is also the first time since 1990 that unions have managed to increase their annual headcount for three years in a row.

    The news is similar on the strike activity front. Over 500,000 workers participated in work stoppages in 2023. This is the second-highest number since Bloomberg Law began collecting this data in 1990. The only year that saw more strike activity since 1990 was 2018, the year of multiple city- and state-wide teacher strikes.

    SpaceX’s Challenge to NLRB’s Administrative Procedures Is Transferred From Texas to California

    A federal district court judge in Texas recently granted the NLRB’s motion to transfer SpaceX’s constitutional challenge from federal court in Texas to federal court in the Central District of California, where the underlying facts, NLRB hearing, and decision took place (SpaceX v. NLRB (S.D. Tex., No. 24-00001, Motion Granted 2/15/24)).

    SpaceX argued that the Texas venue was proper because SpaceX has operations and employees in Texas who received and were subject to a company letter, distributed nationally, that the NLRB ruled violated employee rights under the National Labor Relations Act.

    The Texas federal judge rejected SpaceX’s arguments, concluding that the underlying California-based administrative proceedings were brought against a California-based company and involved its California employees. With the transfer of the case to California, SpaceX lost a potentially more favorable appeals court precedent and appellate review. The 5th U.S. Circuit Court of Appeals (covering Louisiana, Mississippi and Texas) is viewed as more conservative than the 9th Circuit, which covers California. In addition, the 5th Circuit has in the past ruled that aspects of decisions by other federal agencies, including the Securities and Exchange Commission, violate the U.S. Constitution.

    Employer Risk Associated With Targeting Remote Workers for Termination

    Remote work is not in and of itself a protected classification under federal or state civil rights laws. Nonetheless, the reasons for remote work could be protected, such as a disability-related concern. Bloomberg Law commentators conclude that remote workers are more likely to be laid off or miss out on promotional opportunities than peers who work in the office or in hybrid environments. Also according to Bloomberg Law, studies demonstrate that remote workers are more likely to be women, persons of color and those with disability accommodations. Evidence that any of those protected factors contributed to the termination, layoff or failure to promote could give rise to a successful challenge of the employment action under either the Americans with Disabilities Act or applicable state or federal civil rights statutes.

    Disney Actor Tests California State Law Protecting Employees From Discharge for Off-Work Political Comments

    An actor in the Disney show “The Mandalorian” filed a lawsuit claiming that she was unlawfully terminated from the show because of political comments she made outside of the workplace. Actor Gina Carano claims she was terminated after social media posts comparing the treatment of Trump supporters to how Jews were treated during the Holocaust. The plaintiff also alleges that Disney took issue with other comments she made on the COVID-19 vaccine, gender identity and voter fraud during the 2020 election.

    The lawsuit has been filed in federal court in the Central District of California and is being funded by Elon Musk. The suit was filed under a California statute that has broader protections than Title VII in protecting off-work political comments and has no cap on damages. Section 1101 of the California Labor Code protects a worker’s right to political expression outside of work, including speaking up for a candidate or cause.

    The plaintiff also alleges sex discrimination and that Disney treated male actors more favorably in similar circumstances. She alleges that male stars Mark Hamill and her co-star Pedro Pascal were treated more favorably when they engaged in off-work political statements. The breadth of the protection and scope of the California statute will be tested by this litigation brought against Disney.

    NLRB Reverses Decision, Finds Home Depot Violated NLRA Over Employee’s Black Lives Matter Slogan

    A three-member panel of the NLRB ruled 2-1 that Home Depot violated the NLRA when it told an employee that he could not work with a “BLM” slogan on his company-issued apron, thus forcing his resignation (Home Depot USA (NLRB Case no. 18-CA-273796, 2/23/24)). The NLRB panel reversed the decision of the administrative law judge who had handled the trial of the case and had ruled in favor of Home Depot, holding that the company had the right to maintain its rules about company uniforms.

    The NLRB panel reversed, concluding that Home Depot violated the NLRA because the record demonstrated the employee’s protest was in furtherance of earlier group complaints about racism in the Home Depot workplace. In these circumstances, the NLRB concluded that the employee’s action in working with a Black Lives Matter slogan on his work apron was protected, concerted activity under the NLRA, as a “logical outgrowth” of earlier employee protests of race discrimination at the specific Home Depot store. The dissenting board member stated in his decision that the majority holding was an “unprecedented extension” of the “logical outgrowth” theory.



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

    HR and the Courts — February 2024 – CUPA-HR

    by CUPA-HR | February 14, 2024

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

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

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

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

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

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

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

    SpaceX Challenges Constitutionality of NLRA

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

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

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

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

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

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

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

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

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

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

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

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

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

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

    Yale Professor Sues, Claiming Sex Discrimination Against Males

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

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



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

    HR and the Courts — January 2024 – CUPA-HR

    by CUPA-HR | January 10, 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.

    Medical School Surgeon Awarded $15 Million in Damages Resulting From Biased Harassment Investigation

    A federal trial court jury awarded a medical school surgeon $15 million in damages. The jury concluded that the Thomas Jefferson University Hospital medical school’s sex harassment investigation of the plaintiff, who was accused of harassment and sexually assaulting a female medical school resident, was biased against males (Abraham v. Thomas Jefferson University Hospital, et al (Case No. 2:20-cv-02967, E.D. Pa. 12/11/23)). The plaintiff claimed that prior to the incident, he had an “unblemished” reputation. He claimed that due to the medical school’s mishandling of the disciplinary proceeding, he had been labelled a “rapist,” had been ostracized by professional colleagues, and had suffered damages to his livelihood.

    The incident, subject to the lawsuit, involved a pool party at the plaintiff’s home in 2018. The plaintiff alleged that the medical resident became sexually aggressive toward him without his consent, and he was too intoxicated to resist. The plaintiff claims to have reported the incident to the hospital and found that the resident had filed a complaint against him, which resulted in the allegedly anti-male biased investigation and proceedings. Prior to the verdict, the medical school filed a motion for mistrial, alleging that the “belligerent” treatment of the court by the plaintiff’s counsel unduly influenced the jury. As of writing, there has been no action on the defendant’s motion.

    LSU Associate Athletic Director Claims Race and Sex Discrimination, Retaliation, and Hostile Work Environment in Lawsuit

    A federal district court judge granted partial summary judgement dismissing some charges brought against Louisiana State University by a terminated, former associate athletic director, but allowed some allegations of race and sex retaliatory discrimination and hostile work environment to move forward to a jury trial against the university’s board of supervisors (Lewis v. Board of Supervisors, Louisiana State University (2023 BL 437930, M.D. La., No. 3-21-cv-00198, Partial summary judgement, 12/1/23)).

    The university argued that the former associate athletic director was fired in a shake-up made by a new university football coach, which had nothing to do with the plaintiff’s race or sex. However, the new coach denied at deposition that he made the decision to fire the associate athletic director, creating a factual dispute that the court ruled should go to a jury. The federal judge concluded that the plaintiff’s allegations of a sexually hostile work environment should proceed to a jury trial as well as the allegations that she was denied a pay raise and ultimately fired because she is a Black woman.

    NCAA Proposes Plan to Allow Institutions to Pay Student-Athletes

    The NCAA proposed a plan in December 2023 to allow some institutions to invest at least $30,000 into an educational trust for at least half of their student-athletes to address the ongoing controversy over payments to student-athletes. Commentators point out that there will be many challenges to the new plan, including possibly running afoul of Title IX. Moreover, the plan will not make the pending Fair Labor Standards Act and National Labor Relations Act student-athlete claims go away.

    Commentators also point out that the proposal does not address the pending class action damage claim filed against the NCAA in the name, image and likeness (NIL) litigation, which is scheduled for trial in January 2025. Plaintiffs in that class action are claiming damages of $4.5 billion as a result of the NCAA’s past ban on NIL payments, which was overturned by the Supreme Court in NCAA v. Alston in August 2021 on anti-trust grounds.

    Federal Judge Rejects Religious Discrimination Claim Against Princeton

    A federal district court judge recently granted a motion to dismiss filed by Princeton University in a case brought by a former budget analyst who claims she was fired because of her religious beliefs when she refused to comply with COVID-19 protocols, including wearing a mask (McKinley . Princeton University (Case No. 3:22-cv-05069, D. N.J. 15/5/23)).

    The case was initially dismissed because the complaint did not mention any specific religion or set of beliefs. The court gave the plaintiff the opportunity to refile and correct that omission. The plaintiff’s amended complaint contained allegations that “my body is my temple” and “decries… any and all abuse against life.” In dismissing the case, the judge concluded that the plaintiff’s beliefs appear to be a collection of general moral commandments. The court found that the plaintiff’s personal moral code and beliefs do not constitute a comprehensive system of beliefs that could be called a religion.

    Appeals Court Reverses Dismissal of Former UMass Soccer Coach’s Age Discrimination Case

    A Massachusetts state appeals court reversed the dismissal of a former women’s soccer coach’s age discrimination complaint (Matz v. University of Massachusetts–Amherst (Mass App Ct No. 22-P-1162, 12/7/23)). The coach, who was 51 years old, filed the claim alleging that his termination was because the university wanted to hire a younger coach and that the stated reasons for his termination were a pretext.

    In dismissing the case, the university claimed the coach was terminated because of “an undisputed poor record” and “student criticism of his coaching abilities.” The appellate court recognized that the coach’s performance review concluded that he needed improvement and that there were student criticisms of his coaching abilities. Nonetheless, the appellate court held that the record contains “numerous positive reviews, inconsistent with the [2015 season] criticisms,” from which a jury could find he was terminated because of his age. The appellate court concluded that the plaintiff raised a claim by a member of a protected class, who was performing his job sufficiently, and his allegations could raise reasonable speculation about discrimination.

    California Jury Awards Nurse $41.5 million in Damages in Retaliatory Discharge, Whistleblower Case

    A neonatal intensive care nurse who was fired after 30 years of service to her employer was awarded a California jury verdict of $41.5 million in compensatory and punitive damages as a result of her discharge, which she claimed was in retaliation for raising safety issues. The California state court jury awarded the plaintiff $1.3 million in lost wages, $1.2 million in future lost wages, $1.5 million in past mental suffering, $7.5 million in future mental suffering, $15 million in punitive damages against the hospital, and $15 million in punitive damages against the Kaiser Foundation.

    According to the hospital, the plaintiff was fired after she was found reclining in the neonatal unit, talking on her personal phone with her feet resting on an isolette that had a neonatal infant inside. The plaintiff claimed that the stated reason for discharge was a pretext and that the real reason for her discharge was that she reported a supervisor who refused to report that the father of a patient was present in the hospital with a knife, creating an unsafe situation in the hospital (Gatchalian v. Kaiser Foundation Hospitals et. al. (Case No.  21STCV15300 Ca. Sup Ct. L.A. Cty. Jury Verdict 12/16/23)).



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

    HR and the Courts — December 2023 – CUPA-HR

    by CUPA-HR | December 12, 2023

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

    University of California May Test Federal Ban on Hiring Undocumented Workers

    The University of California may be the first public institution to challenge whether the 1986 Immigration Reform and Control Act (IRCA) applies to state entities, including public colleges and universities. The IRCA prohibits U. S. employers from hiring undocumented workers.

    On November 20, 2023, the University of California postponed plans to go forward with a self-imposed deadline of November 30, 2023, to initiate a plan to hire undocumented workers. The university has decided to study the issue further before deciding on a specific course of action. The Supreme Court has dealt with the constitutionality of federal regulation of state employers on multiple occasions in the past, having come down on both sides of the issue. We will follow developments in this area as they unfold.

    Texas Community College Wins Suit Brought by Professor Who Commented on Race and COVID-19 Policies

    Collin College in Texas prevailed in partial summary judgement against a former professor who sued alleging First Amendment free speech retaliation in the non-renewal of his teaching contract. He claimed his contract was terminated because of his outspoken views as a private citizen on public issues including race relations in Dallas, Confederate monuments and his criticism of the college’s COVID-19 policies.

    The court granted part of the college’s motion to dismiss because the college’s policies were not facially unconstitutional. However, the federal court denied each side’s motions for summary judgement on the professor’s claims that the college’s policies were overboard in their restriction of his speech, holding that the issue should be reserved for decision until factual questions are resolved (Phillips v. Collin Community College District (E.D. Tex. No. 22-cv-00184, 11/4/23)).

    Law Professor Sues Northwestern University, Claiming Age Discrimination

    A 78-year-old law professor has sued his university employer claiming age-based salary discrimination. The professor, who is tenured and taught at the law school for 42 years, claims he has been consistently paid substantially less than “significantly younger, less experienced and less tenured” comparators (Postlewaite v. Northwestern University (N.D. Ill. No 1:23-cv-15729, Comp filed 11/7/23)).

    The professor claims to be “a preeminent scholar” in the field of tax law and started his law school’s lucrative Master of Laws in Taxation program, which he claims has been the school’s “highest ranked specialty department” for 17 of the last 19 years. The professor alleges that he has been awarded lower base-salary increases than his younger counterparts. He further alleges that for the academic year 2022-23, his salary was $7,000 less than the 50th percentile and $55,000 less than the 75th percentile, even though those percentiles equated to 20 and 32 years, respectively, of total teaching while he has completed 49 years of total legal academic teaching.

    The lawsuit was filed in federal court and alleges violation of the federal Age Discrimination in Employment Act and the Illinois Human Rights Act.

    Supreme Court Declines to Review Decision on UPS Driver’s Disability Accommodation

    The Supreme Court declined to review a 4th U.S. Circuit Court of Appeals case in which the 4th Circuit upheld the dismissal of a driver’s disability accommodation request. The driver requested that he be allowed to drive a smaller truck with softer suspension to accommodate his hip and back bursitis disability, which caused him severe pain (Hannah v. United Parcel Service (Case No. 23-264 US Sup Ct, cert den. 11/6/23)).

    The 4th Circuit decision, which the Supreme Court let stand, concluded that the employee’s request for an accommodation was not reasonable because the request altered the “essential elements” of the employee’s job. The court concluded that if the driver was given the accommodation to drive a smaller truck, he would not be able to complete the daily work load requirement of his existing driver position.

    Tesla Allowed to Ban Union Shirts

    The 5th U.S. Circuit Court of Appeals overturned an NLRB decision holding that Tesla violated the NLRA when it required its production employees to wear black Tesla-monogrammed uniform work shirts and did not allow production workers to wear black union-insignia work shirts. The decision of the three-judge panel was unanimous in overturning the NLRB ruling against Tesla (Tesla v. NLRB (5th Cir. No. 22-60493 11/14/23)).

    While Tesla had banned the wearing of union-insignia work shirts, it allowed production employees to wear Tesla-insignia work shirts with a union insignia pinned on the shirt. Tesla had argued unsuccessfully to the NLRB that its rule was necessary to prevent damage to cars and to help supervisors distinguish between production employees and other employees at the company’s California facility. The Court of Appeals decision allows Tesla to continue to enforce its prior policy requiring Tesla-insignia work shirts, with the employee’s option of pinning on a union insignia.

    Appeals Court Affirms Dismissal of Gymnastic Coach’s Wrongful Termination and Defamation Lawsuits

    A Pennsylvania state appellate court affirmed a trial court dismissal of a former Pennsylvania State University gymnastic coach’s lawsuit. The former coach alleged defamation and violation of his employment contract when the university terminated his contract after investigating allegations that he created a hostile environment for gymnasts. The three-judge appellate panel adopted the decision of the trial court judge, concluding that the university had good cause for firing the coach and that the athletic director’s statement about prior accusations against him had not been defamatory (Thompson v. Pennsylvania State University (Case no. 1460 MDA 2022, 11/28/23)).

    The appeals court ruled that the gymnastic coach’s high profile in collegiate sports made him a limited public figure and that the university’s reaction to allegations of mistreatment of athletes were matters of public concern. That meant that the plaintiff must show “actual malice” in order to prove defamation in these circumstances. The appellate court concluded that the university’s actions did not rise to the level of “actual malice.”



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