Tag: March

  • HR and the Courts — March 2025

    HR and the Courts — March 2025

    by CUPA-HR | March 11, 2025

    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 Judge Orders a Halt to Part of the Trump Administration’s Executive Orders Targeting DEI Plans It Considers Illegal and Discriminatory

    A federal district court judge in Baltimore issued a preliminary injunction that temporarily halts enforcement of the Trump administration’s executive orders targeting government contractors’ DEI plans. The judge granted in part the petitioner’s request for an injunction, holding that several provisions of the executive orders are unconstitutionally vague. Other executive order provisions were held to violate the Constitution’s free speech provisions. The lead plaintiff is the National Association of Diversity Officers in Higher Education, who was joined by the American Association of University Professors, the Restaurant Opportunities Centers United, and the City of Baltimore (National Association of Diversity Officers in Higher Education, et al v. Trump, et al (D. Md., No. 1:25-cv-00333. 2/21/25)).

    The judge concluded that the challengers are likely to prevail on their allegations that the executive orders’ threatened enforcement, including contract termination, is “unconstitutionally vague on their face.” The injunction does not block the attorney general from pursuing investigations into allegedly illegal DEI programs.

    Education Department “Dear Colleague” Letter Broadly Interprets the Supreme Court Decision in SFFA v. Harvard to Apply to All Campus Activities

    The acting assistant secretary for the Department of Education’s Office for Civil Rights issued a “Dear Colleague” letter late Friday, February 14, that broadly interprets the Supreme Court decision outlawing the use of race in college admissions in Students for Fair Admissions v. Harvard to apply to all campus policies and activities. The letter warns colleges and universities against using race as a preference in any policy and activity, and encourages anyone believing that an institution has violated civil rights laws to contact the Office for Civil Rights (OCR).

    The letter directly criticizes the development of DEI activities on campus and warns that the department will not tolerate overt or covert race discrimination, which, it concluded, has become “widespread at our nation’s educational institutions.” The letter asserts that educational institutions have “toxically indoctrinated” students with the false premise that the U.S. is built upon “systemic and structural racism.” The letter indicates that the department would take appropriate steps to assess compliance with the civil rights laws no later than 14 days after the letter was issued.

    On March 1, the Education Department released an FAQ offering further guidance.

    Disparate Impact Legal Liability Being Targeted as Unlawful in Anti-DEI Litigation

    The disparate impact legal theory of employer liability allows plaintiffs to prevail in discrimination litigation without proving discriminatory intent. Under the disparate impact liability theory, an employer can be held liable for unlawful discrimination if a neutral policy applied to all employees has a statistically adverse impact on a minority group. In such a circumstance, the employer is held liable without the necessity to prove that the employer intended to discriminate against any particular group.

    The Supreme Court adopted the disparate impact liability theory in the landmark case Griggs v. Duke Power in 1971. Conservatives have long held that the disparate impact liability theory unfairly punishes employers for unintentional practices and overemphasizes protected traits in HR decision-making. It will take a Supreme Court decision to reverse current precedent. The Trump administration may adopt an enforcement position at the Department of Justice and elsewhere in which they do not prosecute disparate impact cases. Such an enforcement decision, should it be made, would likely be subject to court challenge.

    Collegiate Baseball Player Sues NCAA for Anti-Trust Violation Regarding Four-Year Eligibility Restriction

    A collegiate baseball player has sued the NCAA, claiming its four-year eligibility restriction on Division I baseball violates anti-trust laws (Sanchez v. NCAA (E.D. Tenn., No. 3:25-cv-00062 Comp Filed 2/12/25)). The plaintiff is seeking to play baseball at the University of Tennessee this spring. He previously played one year at a junior college and then the last three years at the University of North Carolina. Under NCAA rules, he is not allowed to play this spring because his junior college playing year used up one of his four eligibility years.

    In response to a similar lawsuit (Pavia v. NCAA), the NCAA granted a limited waiver of the four-year eligibility rule for the 2025-26 season for Division I football. That waiver, however, does not apply to spring sports such as baseball.

    Civil Rights Groups Sue Trump Administration to Stop Anti-DEI Initiatives and Elimination of Transgender Protection of Federal Government Employees

    A group of civil rights organizations lead by the National Urban League have sued the Trump administration in an attempt to stop the administration’s anti-DEI initiatives and its elimination of protection of transgender federal government employees (National Urban League v. Trump (D.D.C. 1:25-cv-00471, Complaint 2/19/25)). The lawsuit seeks to halt the enforcement of three Trump executive orders: “EO 14151: Ending Radical and Wasteful DEI Programs and Preferencing,” “EO 14168: Defending Women From Gender Ideology Extremism and Restoring Biological Truth to the Federal Government,” and “EO 14173: Ending Illegal Discrimination and Restoring Merit-Based Opportunity.”

    The lawsuit alleges that the executive orders are unconstitutional because they suppress free speech. The groups allege that the executive orders target specific “content” and “viewpoints” and use “vague and subjective terms.” The plaintiffs argue that this makes them “constitutionally void for vagueness” under past Supreme Court precedent.

    OFCCP Is Preparing to Cut Staff by Approximately 90% and Reduce Offices from 55 to 4

    The acting director of the Department of Labor’s Office of Federal Contract Compliance Programs announced on February 25 in a memo it is preparing to cut employees from 479 to 50 and reduce offices from 55 to four. The OFCCP has already halted audits and investigations of government contractors’ affirmative action plans pursuant to direction from the Trump administration’s executive orders. As a result of these executive orders eliminating much of the OFCCP’s responsibilities, the OFCCP will have statutory authority to enforce only Section 503 of the Rehabilitation Act and the Vietnam War Veterans Readjustment Act.

    Under the OFCCP reduction plan, the office would eliminate its Division of Enforcement, which is comprised of labor economists and statisticians who worked on enforcement and analysis of systemic cases, which will no longer be part of the OFCCP enforcement responsibilities.

    Because of the unprecedented and fast-changing pronouncements of the new presidential administration and the intervening court challenges, the developments contained in this blog post are subject to change. Before acting on the legal issues discussed here, please consult your college or university counsel and, as always, act with caution.



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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 — March 2023 – CUPA-HR

    HR and the Courts — March 2023 – CUPA-HR

    by CUPA-HR | March 15, 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.

    Court of Appeals May Narrow LBGTQ Rights Under Title VII

    The 5th U.S. Circuit Court of Appeals (covering Texas, Louisiana and Mississippi) recently heard oral argument over a U.S. District Court judge’s ruling that private businesses may assert a religious exemption to bias claims brought by LBGTQ workers under federal anti-discrimination statutes. The trial court had granted summary judgment that religious employers objecting to dress codes, bathroom policies or hiring of LBGTQ employees are protected by the First Amendment (Braidwood Management v. EEOC (5th Cir. No 22-10145, oral ARG 2/7/23).

    If the trial court decision is upheld, it would blunt the reach of the recent Supreme Court decision in Bostock v. Clayton County, which held that LBGTQ workers can sue employers for job discrimination under Title VII based on gender identity or sexual orientation. The plaintiffs in the case are a Texas based healthcare provider and a Church. We will follow developments in this case.  

    Qualifying Temporary Workers Granted Pay-Parity Rights Equal to Full-Time Employees Under New Jersey State Statute

    New Jersey-based employers will have to grant certain temporary employees hired in the state pay and benefits equal to what the employer pays full-time direct-hire employees. The new law, recently signed by the governor (effective 180 days after the 2/7/23 signing), creates a “bill of rights” for many temporary employees and applies to specific New Jersey employers. The law applies only to the manufacturing, warehousing and logistics, food service, construction, building security and maintenance, cleaning, and landscaping industries. The statute does not cover healthcare workers, business and finance professionals, salespeople, and information security and technology staff. The statute does apply to temporary staffing agencies.

    New Jersey is joining California, Illinois and Massachusetts in adopting a statute protecting temporary employees. However, the New Jersey statute goes a step further than the other states in requiring pay and benefits equivalent to similarly situated full time employees in the industries and areas described above.   

    Offensive Music in Workplace Brings Sex Harassment/Hostile Environment Litigation  

    Bloomberg reports multiple filings of sex harassment, hostile work environment lawsuits based on claims that offensive music being played in the workplace creates a sexually hostile work environment. The multiple litigation filings involve manufacturing and warehouse employees. The employees are complaining that obscene and misogynistic rap music was continually played in the workplace over the objection of the complaining employees. The complaints allege that managers and other employees regularly played vulgar music and ignored the complaints and objections of offended employees. The allegations state that allowing the music to continue created a sexually hostile work environment, which is actionable under Title VII.

    Employers can avoid such litigation by establishing and enforcing policies that forbid sexually or racially offensive content in the workplace.  

    Tenured Public School Teacher’s Termination for Unprofessional Social Media Posts Reversed — Court Holds Tenure Entitled Her to a Warning and Opportunity to Remedy 

    A tenured Illinois public school history teacher who was terminated after posting publicly available “unprofessional” and “disrespectful” social media posts had her termination reversed by an Illinois appellate court. The termination had been affirmed by the trial court. The teacher claimed not to realize that her posts were public as opposed to being distributed only to “friends” on Facebook.

    Among other posts, the teacher shared a Facebook post from a group called Bored Teachers which stated, “I can think of no better form of birth control than to have people observe my class for a day.” In another post she described a student’s parents as “clearly crazy” and “nuts.” The teacher was terminated for making unprofessional remarks about students on Facebook. The head of HR testified that the plaintiff was not remorseful and thought the posts were therapeutic.

    The Illinois appellate court concluded that the plaintiff’s posts were “clearly foolish” and “unprofessional.” Nonetheless the appellate court concluded that the Illinois state statute afforded tenured teachers the right to warning and a chance to remedy their transgressions (Kelleher v. Illinois State Board of Education (Ill App. Ct. 1st Dist. No. 1-22-0058, Order 2/14/23)). 

    EEOC Commissioner Charges at Record High 

    EEOC commissioner charges for fiscal 2022 jumped to a record high of 22, up from just 3 in the previous year and the highest number since records have been kept on annual commissioner charges. A commissioner charge is one filed by an EEOC commissioner raising a potential legal issue. The vast majority of EEOC charges are filed by alleged victims.

    Commentators point out that the commissioner charge increase is likely due to a partisan block of action at the EEOC. Under the Biden administration, the EEOC had a Democrat chair and a Republican majority of members (three Republicans, two Democrats) until November 2022. Currently, the commission has a Democrat chair and a vacant seat, leaving it with two Democrat members and two Republican members. The filling of the open commission seat is still on hold due to blockage of the nomination process in Congress. 

    OFCCP Rescinds Trump Administration Religious Carve-Out Allowing Federal Contractors to Ignore Anti-Discrimination Obligations Based on Faith 

    The OFCCP announced new regulations on February 28, 2023, rescinding the Trump administration regulations allowing government contractors to ignore certain anti-discrimination obligations based on their faith. The new regulations bring back the prior standard, which had been in place for nearly two decades, and do not allow the defense. The new regulations will be published shortly and effective 30 days after publication. The Trump administration rule, which will be revoked, faced continued opposition from civil rights groups and LBGTQ advocates. This rule applies to the OFCCP enforcement of antidiscrimination rules under Executive Order 11246, applicable to all federal government contractors. 

     



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  • I’ll be attending the virtual The PIE Live TNE & Tech event from March 22-26, 2021 #PIELive21

    I’ll be attending the virtual The PIE Live TNE & Tech event from March 22-26, 2021 #PIELive21

    I’m very excited to be attending the upcoming The PIE Live TNE & Tech event March 22-26, 2021.

    I’m a big fan of the work of our colleagues at The PIE News in advancing international education. Information and registration is available at https://thepielive.com/tneandtech/en/page/thepielive. If you are unable to attend The PIE Live you can follow the backchannel on Twitter via #PIELive21.


    Note: I received free registration for this event but I receive no other compensation.

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