Tag: Courts

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

    HR and the Courts – July 2022 – CUPA-HR

    by CUPA-HR | July 6, 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.

    Long Awaited Title IX Regulations Issued

    On Thursday, June 23 the Biden administration’s Department of Education issued its long anticipated new Title IX proposed regulations. The proposed regulations consist of a 700-page document published in the Federal Register and open for public comment for 60 days. The significant highlights of the proposed regulation include the expanding of the definition of sex harassment to include as prospective claimants those who allege discrimination or harassment based on sexual orientation, gender identity, pregnancy and any situation that creates a “hostile environment.”

    The proposed regulations throw out the Trump administration’s definition of sex harassment, which required the alleged sex harassment be “so severe and pervasive as to be objectively offensive,” and return to the pre-Trump era’s “severe and pervasive” standard, which is consider by most commentators to be a lower bar for future alleged sex harassment victims.

    The proposed regulations also expand jurisdiction over alleged sex harassment to include off-campus and out of the country matters, including study abroad situations. Finally, the proposed regulations also eliminate the requirement that investigations include cross examination of victims and in-person hearings. We will follow developments as these regulations ultimately wind their way to finalization. Learn more.

    Court of Appeals Rules That a Professor Has an Independent Right to Sue a University Under Title IX for an Alleged Gender-Biased Sex Harassment Allegation Which Led to His Denial of Tenure 

    The U.S. Court of Appeals for the 2nd Circuit (covering New York, Vermont and Connecticut) ruled that a professor has an “implied right” of action for alleged gender bias under Title IX concerning the conduct of a Title IX investigation into charges of sex harassment brought by a student. The 2nd Circuit joined a number of other circuit courts in holding that Title IX grant professors have a right to sue under similar alleged circumstances (Vengalatorre v. Cornell University (2nd Cir. No. 15-14, 6/2/22)).

    The professor alleged that the university’s procedures for investigating the allegations were “fundamentally flawed,” as the student’s allegations were time-barred under the university’s Title IX procedures. The university continued its investigation under the university’s “Romance Policy,” which took the investigation out of the hands of the Title IX coordinator and Title IX investigators. The investigation continued under the jurisdiction of a faculty committee, which the plaintiff alleged would not take action against allegedly false accusations because of “Twitter blow back.” The professor alleges that he was denied tenure as a result of a gender-biased investigation. The court ruled that the professor can proceed to trial over his allegations under Title IX.

    Transgender Sheriff’s Deputy Wins Title VII Lawsuit Over Denial of Coverage for Sex-Change Surgery but Loses ADA Claim Based on Gender Dysphoria

    A federal district judge in Georgia ruled in favor of  a sheriff’s deputy that she was improperly denied coverage for sex change and related genital surgery under the county’s health plan. The judge ruled that pursuant to the Supreme Court’s 2020 decision in the Bostock case that gender identity discrimination is prohibited by Title VII of the Civil Rights Act of 1964. The judge ruled that the exclusion for “sex change surgery” contained in the county’s insurance policy is facially discriminatory to transgender plan participants (Lang v. Houston County (2022 BL 191359  M.D. Ga. No. 5:19-cv-00392, 6/2/22)).

    The judge observed that it is undisputed that mastectomies are covered when they are medically necessary for cancer treatment but not when they are medically necessary for a sex change procedure. Similarly hormone replacement therapy is covered when medically necessary to treat menopause but not when medically necessary for a sex change. The judge concluded that this exclusion applies only to transgender participants and therefore violates Title VII.

    However, the judge dismissed plaintiff’s claims under the ADA. The Judge ruled that the ADA exclusion of “gender identity disorders” from coverage under the statute applies to plaintiff’s medical condition of “gender dysphoria.”

    University Subject to Gender-Based Discrimination Claim by Professor/Applicant for Position Never Filled

    The Court of  Appeals for the 6th Circuit recently over turned a trial court’s dismissal of a Title IX gender discrimination lawsuit filed by the top-ranked applicant for a position that was not filled. The plaintiff, a male, alleged gender discrimination against him by way of a plot to leave the leave the position he was ranked number one for unfilled, and then create two new, separate positions that were filled by female applicants. The trial court dismissed the case as “unripe” as the original position was never filled. The appeals court reversed, holding that an employer can commit hiring bias a number of ways, including cancelling a job opening in favor of creating a new position in which to hire employees of a different gender (Charlton-Perkins v. University of Cincinnati (2022 BL 292328, 6th Cir. No. 21-13840, 6/3/22)).

    The appeals court concluded that the alleged failure to hire the male plaintiff professor, despite the fact he was the number one applicant, is enough by itself to describe an adverse employment action and state an actionable discrimination claim for relief.

    North Carolina State Plan Covering Teacher and State Employees Ordered to Pay Employees’ Transgender Care

    The North Carolina Medical Plan for Teachers and State Employees’ exclusion of gender-confirmation coverage discriminates against transgender employees and their dependents on the basis of sex and transgender status in violation of the Constitution’s equal protection clause and Title VII, concludes the U.S. District Court for the Middle District of North Carolina (Kadel V. Falwell (M.D.N.C., No. 19-cv-272, 6/10/22)). The court observed that the plan distinguishes between medically necessary drugs that conform to the patients biological sex and medically necessary drugs that do not. A similar case is pending with the Arizona State Plan, which we recently reported on.



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

    HR and the Courts – June 2022 – CUPA-HR

    by CUPA-HR | June 7, 2022

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

    Supreme Court to Determine Scope of Highly Paid Executive Employee Exemption Under the Fair Labor Standards Act (FLSA)

    The U.S. Supreme Court will review a 5th U.S. Circuit Court of Appeals decision in favor of an employee who was granted overtime status for his non-executive position that paid him $200,000 a year. This oil industry case will have application to all U.S. employers. The executive employee salary exemption threshold is currently $100,000 a year. At issue is whether compensation alone, absent executive/managerial status will exempt employees from the FLSA’s overtime requirements. The employee was a non-executive toolpusher on a drill rig and was paid $200,000 a year, twice the $100,000 executive salary exemption minimum.

    There is a split in the circuit courts on this issue leaving the Supreme Court to decide the issue. The 6th and 8th Circuits have ruled that non-executive employees should not be exempt from the FLSA no matter how much money they make. The 1st and 2nd Circuits allow an exemption for these workers under the salary exemption test.

    Women’s Basketball Coach Can Proceed With Title VII Sex Discrimination Lawsuit — Not Required to Arbitrate Discrimination Claims Under Her Employment Contract

    A U.S. District Court judge rejected the University of Montana’s summary judgement motion to dismiss a sex discrimination lawsuit and enforce mandatory arbitration under its former women’s basketball coach’s employment contract. The sex discrimination claims related to her performance evaluations, criticisms, and decision not to renew her employment agreement. The employment agreement had a general arbitration clause which covered contract disputes. However the court pointed out that the arbitration clause did not mention sex discrimination or bias claims. Therefore, the court concluded that the arbitration clause lacked the “requisite precision” required by the 9th Circuit for an individual to waive their rights to pursue Title VII claims in court (Schweyen V. University of Montana-Missoula (2022 BL 156392, D. Mont No. 9:21-cv-00138, 5/5/22)).

    The court concluded that the arbitration agreement, at most, was an agreement to arbitrate contract disputes as a basketball coach. The court pointed out that the clause did not mention giving up her right to file suit in court over non-contract issues such as sex bias.

    Federal Court Enjoins EEOC and HHS From Requiring Christian Employers and Healthcare Providers to Cover Gender Transition Surgery 

    A U.S. District Court trial judge in North Dakota has barred the Equal Employment Opportunity Commission (EEOC) and the Department of Health and Human Services (HHS) from requiring Christian employers and healthcare providers, under either Title VII of the Civil Rights Act of 1964 or the Affordable Care Act, to cover the cost of or provide gender transition surgery. The judge granted the injunction requested by the plaintiff, the Christian Employers Alliance, to prevent the EEOC and the HHS from requiring the group’s members to provide gender transition surgery until the case is tried on the merits and it is decided whether such a requirement violates the Christian employers’ First Amendment rights or rights under the Religious Freedom Restoration Act of 1993 (Christian Employers Alliance V. The EEOC, et al  (Case no. 1-21-cv-00195 D.N.D. 5/17/22)).

    The judge concluded that the plaintiff businesses must either violate sincerely held religious beliefs or face monetary losses, fines or civil liability. The judge concluded that the plaintiff’s likelihood of prevailing at trial on the merits, “weighed significantly in favor of granting the injunction.” The judge also enjoined the EEOC and HHS from enforcing the requirement to plaintiff employers’ insurers and third party administrators.

    Court of Appeals Reverses NLRB’s Decision Holding That the Employer’s “Back to the Salt Mine” Tweet Was an Unlawful Threat

    The 3rd U.S. Circuit Court of Appeals recently reversed a National Labor Relations Board (NLRB) decision holding that the The Federalist magazine violated the National Labor Relations Act when, during the union’s organization campaign, the magazine’s publisher tweeted that if the magazine’s employees unionized he would send them “back to the salt mine.” The appeals court ruled that no reasonable employee could actually interpret the publicly available tweet as a veiled threat. The court concluded that Twitter posts are often exaggerated and sarcastic, as Twitter encourages such approaches.

    The court also concluded that the publisher sent the tweet to 80,000 followers, which made it publicly available rather than directing it to the six magazine employees who were subject to the union organization drive.

     



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

    HR and the Courts – May 2022 – CUPA-HR

    by CUPA-HR | May 11, 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.

    Anxiety and PTSD Driving Increase in Both Accommodation Requests and Mental Health Discrimination Bias Claims Under the Americans With Disabilities Act

    The EEOC recently reported a substantial increase in the number of mental health-related accusations of employer discrimination in the workplace filed under the Americans with Disabilities Act (ADA). Mental health-related discrimination claims in the past year accounted for 30 percent of all of the ADA claims filed. That is a 20 percent increase in mental health ADA claims filed over the past 10 years. The rise is partially attributable to the pandemic. Anxiety and post-traumatic stress disorder (PTSD)-related claims appear to be driving the increase and account for nearly 60 percent of all mental health ADA claims filed in the past year. Anxiety and PTSD claims now amount to 17.6 percent of all ADA charges filed in fiscal year 2021 according to the Equal Employment Opportunity Commission (EEOC).

    The EEOC will likely be ramping up its publicity efforts emphasizing employer obligations to enter into the interactive accommodation request process with regard to employee requests for accommodation for mental health ADA claims.

    Maryland Legislature Overrides Governor’s Veto and Becomes Tenth State to Mandate Paid Family Leave Through a State Funded Program of Employer and Worker Payroll Taxes

    Maryland, plus the District of Columbia, recently became the tenth state to mandate paid family leave among all private sector employees through a program funded by employer and worker payroll taxes. The program will guarantee all workers up to 12 weeks of paid leave benefits annually (up to a maximum of $1,000 per week) for care for the birth of a new child, their own medical issue, a family member’s serious illness or military deployment. The benefits will begin January 1, 2025. The payroll tax to fund the program is split between employers and workers and is scheduled to begin October 1, 2023. The tax rate will be determined through a Maryland Department of Labor study. The state of Delaware is also considering similar legislation.

    Gay Married Couple Files Class Action Lawsuit Alleging Discrimination From Employer’s Denial of IVF Benefits

    A former gay male employee of the City of New York has filed a class action lawsuit alleging that the City of New York illegally discriminated against gay male employees in its denial of in vitro fertilization (IVF) benefits available to other employees. The plaintiff, who was an assistant district attorney, and his husband, filed the charge with the EEOC alleging a Title IV violation as well as violations of applicable city and state civil rights laws. They allege that the city has unlawfully denied IVF benefits to 100s of gay males who work for the city and have been denied the insurance coverage for these benefits (Benefits Law 360 4/13/22).

    California Legislature Considers Law to Protect Workers’ Off Hours Marijuana Use

    The California Assembly will consider passing a law protecting employees’ off hours marijuana use from the workplace or applicant discrimination. California lawmakers may fill in the gap that exists in 37 states plus the District of Columbia that have legalized medical marijuana use, and 18 states plus the District of Columbia which have legalized recreational use of marijuana. California and other states have long legalized marijuana for medical and recreational use but have not added its legal use to a protected class under the applicable state employer non-discrimination statute. This could be the first state to do so and the beginning of a growing trend.

    Second Opinion Not Enough to Discontinue Family and Medical Leave Act

    Discontinuing Family and Medical Leave (FMLA) solely on the basis of a contrary second opinion rendered by a doctor chosen by the employer is not enough under the FMLA to terminate intermittent leave status. A federal judge in Pennsylvania denied summary judgment to Pennsylvania State University and held that the employee may present evidence at her upcoming FMLA interference trial that the university unlawfully subjected her to a second opinion rendered by a doctor of the university’s choosing. The court held in such circumstances where there is a difference of opinion between the claimant’s doctor and the doctor chosen to review the situation by the employer, a third doctor acceptable to both parties must review the situation (Wert v. Pa. State Univ. ( 2022 BL 132451 M.D. Pa. No. 4-19-cv-00155, 4/15/22).

    The plaintiff had been on intermittent FMLA leave for about four months as her doctor certified she had been suffering from migraines and needed one day of leave per week. When her doctor upped her authorized medical leave to as many as four days a week the university consulted its own physician who disagreed with the employee’s doctor. The court held that in such situations the FMLA does not allow the employer to simply disregard the original doctor’s conclusions but requires the parties to agree on a third doctor to review the situation.



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  • HR and the Courts – CUPA-HR

    HR and the Courts – CUPA-HR

    by CUPA-HR | April 13, 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.

    Court of Appeals to Decide Whether a Non-Citizen Applicant for U.S. College Soccer Coaching Position Is Covered Under U.S. Anti-Discrimination Laws 

    The U.S. Court of Appeals for the D.C. Circuit will review a federal trial court decision concluding that a non-citizen soccer coach applicant is not protected or covered by U.S. anti-discrimination statutes.

    The federal trial court dismissed the case against American University on summary judgement concluding that a non-citizen applicant living outside the United States is not protected under Title VII or the Civil Rights Act of 1866. The plaintiff has appealed to the D.C. Circuit claiming that he was discriminated against because of his race, ethnicity and national origin when he did not receive the position he applied for (Nahkid v. American University ( DC Cir. No. 21-cv-7107, 3/11/22)). The plaintiff was a citizen of Trinidad Tobago and was living in Lebanon when he applied for the position. The plaintiff is a graduate of American University and played on the soccer team when he was a student.

    Federal Court Jury Awards Professor $3 Million for Past and Future Emotional Distress, Pain and Suffering Resulting From Her Tenure Denial Based on Her Sex and Pregnancies

    A federal district court jury in west Texas awarded an assistant engineering professor more than $3 million in damages as a result of finding that the University of Texas At Austin denied her tenure because of her sex and pregnancies. The professor was awarded $1 million for past emotional pain and suffering, $2 million for future emotional pain and suffering and $50,000 for lost back pay and benefits (Nikolova v. University of Texas at Austin (W, Dist Tex. No. 1:19-cv-00877, jury verdict 3/14/22)). Motions may be filed to have the court reduce the jury’s damage verdict.

    Court of Appeals Dismisses Student Intern’s Title VII Discrimination Claims Due to No Employee/Employer Relationship

    The U.S. Court of Appeals for the Third circuit (covering Pennsylvania, New Jersey and Delaware) recently affirmed a trial court’s dismissal of a Temple University student intern’s race discrimination lawsuit against an opioid rehab facility, Prevention Point, where he was interning. The plaintiff was a student in Temple’s public health program and obtained the internship as part of the program to complete his degree. In an unpublished decision, the court of appeals concluded that the plaintiff did not have an employee/employer relationship with Prevention Point, so there was no Title VII jurisdiction (Payne v. Prevention Point Philadelphia (2022 BL 86265 Cir. No. 21-02173, unpublished, 3/15/22)).

    The court pointed to evidence that documented that the goals of the internship related to the plaintiff’s course work at Temple and that other documents supported the fact that university staff coordinated with the facility’s staff to manage the internship.

    New York State Court System Terminates 103 Unvaccinated Employees as Appeals Court Reinstates Presidential Vaccine Mandate Among Federal Workers

    New York state court administrators disclosed that they have terminated 103 employees for failure to adhere to the court system’s vaccine mandate. They also reported that another 12 employees have retired or resigned after they failed to comply with the court’s COVID-19 vaccine requirements. All unvaccinated employees were given a warning last month that they faced possible termination for not complying with the vaccine mandate. Forty-one people in that group did comply and were not among those terminated for non-compliance.

    Four judges also face further action for not complying as the court administrators do not have the power to terminate non-compliant judges. It appears that the court administrators will refer non-compliant judges to the judicial ethics independent watchdog for non-compliance and further potential action.

    Union officials representing the terminated employees continue to fight the terminations. Federal courts have ruled against attempts to block enforcement of the court administration’s vaccine mandate.

    Separately, the U.S. Court of Appeals for the Fifth Circuit reversed a Texas federal district court judge’s order, blocking the presidential requirement for federal civilian employees to be vaccinated. The court of appeals threw out the challenge to the presidential order, requiring over two million federal civilian employees to be vaccinated or face termination (Feds for Medical Freedom v. Joseph Biden (5th Cir. No. 22-40043, 4/7/22).

    States Beginning to Ban Employer Non-Disclosure Agreements

    The state of Washington recently became the latest state to restrict an employer’s ability to request or demand a non-disclosure agreement (NDA) as a condition of employment or as part of a settlement agreement in discrimination or other employment-related cases.

    The Washington state law takes effect on June 9, 2022. The law goes on step further than similar laws in California and New York, which ban NDAs. The Washington state law bans confidentiality agreements, in addition to NDAs, as part of workplace settlements related to allegations of illegal conduct.



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  • HR and the Courts – CUPA-HR

    HR and the Courts – CUPA-HR

    by CUPA-HR | March 9, 2022

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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



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  • HR and the Courts – CUPA-HR

    HR and the Courts – CUPA-HR

    by CUPA-HR | February 9, 2022

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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



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  • HR and the Courts – CUPA-HR

    HR and the Courts – CUPA-HR

    by CUPA-HR | January 12, 2022

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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



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  • HR and the Courts – CUPA-HR

    HR and the Courts – CUPA-HR

    by CUPA-HR | December 15, 2021

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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



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  • HR and the Courts – CUPA-HR

    HR and the Courts – CUPA-HR

    by CUPA-HR | November 17, 2021

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

    Federal Appeals Court Panel Expresses Skepticism Regarding New York City Teachers’ Challenge to the Constitutionality of the New York City Vaccine Mandate for All Public School Teachers

    In a case which could have ramifications for public and private college and university vaccine mandates, a group of New York City teachers recently argued that the New York City mandate that all public school teachers have at least one vaccine shot violates their basic rights under the U.S. Constitution. The case was heard by the U.S. Court of Appeals for the Second Circuit, which covers New York, Connecticut and Vermont. The New York City mandate requires all teachers to have at least one vaccine shot in order to continue teaching or be suspended without pay. The mandate allows them to continue to receive benefits during the suspension, but bars them from teaching elsewhere (Maniscalco v. New York City Department of Education (2nd Cir: Argued Oct 14, 2021)). The case is one of dozens across the country contesting the validity of public and private employer vaccine mandates.

    The teachers’ counsel argued that teaching is a profession and the vaccine mandate takes away the fundamental right of teachers to teach. One of the federal appeals court judges commented during the argument that she was having difficulty understanding why the mandate was “irrational” as argued by the teachers’ counsel.

    Bipolar Teacher Loses Her Disability Discrimination Appeal Following Her Discharge for Violating the School District’s Rules on Sharing Religious Beliefs

    In a case having general applicability to the Americans With Disabilities Act termination claims and requests for accommodation brought in the higher education context, the U.S. Court of Appeals for the Sixth Circuit, covering Michigan, Ohio, Kentucky and Tennessee affirmed a school district’s decision to terminate a teacher for inappropriate communication with students during her paid suspension. The appeals court concluded that a reasonable jury could not conclude that the teacher’s misconduct caused her discharge, notwithstanding her diagnosis of suffering from bipolar disorder (Lockhart v. Marietta City Schools (6th Cir., No. 20-4308, 10/15/21)).

    The plaintiff was put on paid leave after telling her students that she had a deeply religious experience while shoveling snow in which she lost consciousness, was carried away and now God was speaking through her. She was instructed not to communicate with students while on paid leave. She violated the instruction and sent a student a 12-page letter telling them not to trust school administrators and to “Trust me, I am the one you need to trust. I dearly love you, have they told you they love you?”

    The teacher argued that the school district should have accommodated her disability rather than terminate her. The court concluded that the school district was not required to excuse her misconduct during leave and that she repeatedly violated the terms of her administrative leave before even remotely asking for an accommodation request.

    Some States May Alter, Change and/or Challenge OSHA’s New Vaccine Rules

    Some states, through their respective attorney generals, have signaled that they may contest of try to alter the Occupational Safety and Health Administration (OSHA)’s vaccine mandate. OSHA allows by agreement some 26 states plus Puerto Rico and the U.S. Virgin Islands to adopt their own workplace safety rules. Those states include seven states with Republican attorney generals who have taken the position that a vaccine mandate is “disastrous and counterproductive.” The attorney generals of Alaska, Arizona, Indiana, Kentucky, South Carolina, Utah and Wyoming have written letters to OSHA stating that such a vaccine mandate does not meet the “grave danger” threshold needed to justify such an Emergency Temporary Standard. An additional two states, Texas and Arkansas, have taken steps to avoid a potential OSHA vaccination rule. Numerous challenges have been filed in federal court.

    The cases challenging the new OSHA rules will be consolidated for one federal appeals court to rule on. Ultimately, the Supreme Court may step in.

    Student Workers at Private University Seek Union Formation and Bargaining Rights Under the National Labor Relations Act

    Recently, a student worker organizing committee at Kenyon College filed a petition with the National Labor Relations Board (NLRB) to represent 600 student employees at the Ohio college. The committee is asking the NLRB to conduct a union representation election for the proposed student worker bargaining unit. The current NLRB has apparently abandoned its position to limit union organizing among student workers at private colleges and universities over which the NLRB has jurisdiction.

    In March 2021, the then Republican-controlled NLRB abandoned a proposal to block student workers at private colleges and universities form organizing. The NLRB’s current Biden administration appointed general counsel has since publicly backed expanding labor rights for student workers.

    Sex Harassment Case for Employee Perceived as Gay Is Headed to Trial Based on Alleged Physical Attacks and Discrimination for Failure to Conform to Sexual Stereotypes

    A heterosexual employee who was mistakenly perceived as gay and harassed by a supervisor because of the misperception received the right to proceed to a trial over his sex harassment claim. The trial court cited the Supreme Court decision in Bostock v. Clayton County and following decisions which have interpreted Title VII to protect against discrimination based on sexual orientation, gender identity, and/or failure to conform to sexual stereotypes (Roberts v. Glenn Industrial Group ( 2021 BL 404870. W.D.N.C. No.3:17- cv-00747, 10/21/21)).

    The plaintiff complained and the court agreed that the alleged harassment — if proven — was severe and pervasive and included physical assault by his supervisor in which his safety glasses were knocked off and he was put in a choke hold by his supervisor.



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  • HR and the Courts – CUPA-HR

    HR and the Courts – CUPA-HR

    by CUPA-HR | October 20, 2021

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

    Several States Consider Legislation Aimed at Softening Federal Workplace Vaccine Mandates

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

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

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

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

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

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

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

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

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

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

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

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

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



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