Tag: November

  • HR and the Courts — November 2024

    HR and the Courts — November 2024

    by CUPA-HR | November 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.

    More Than 35,000 University of California Service Employees Vote to Strike

    The union representing over 35,000 service and patient care employees at all 10 campuses and five medical centers of the University of California reports that the membership has voted overwhelmingly to strike if collective bargaining contracts cannot be reached. The American Federation of State, County and Municipal Employees (AFSCME) Local 3299 is the union representing the service and patient care employees. The contract covering 25,000 patient care employees expired on July 31, 2024, and the contract covering 11,000 service employees expired November 7, 2024. The union stated it would provide the university with 10 days advance notice of any strike.

    The union claims higher costs, especially for housing, has led to a major crisis for its members. The union has filed charges with the California Public Employee Relations Board alleging that the university has not shared information on UC finances as part of the bargaining process.

    University Sues NLRB, Claims Requirement to Turn Over Information Violates FERPA

    Vanderbilt University has sued the National Labor Relations Board in federal court, claiming that the agency’s requirement to turn over student information violates its obligations under the Family Educational Rights and Privacy Act. The NLRB and the United Auto Workers (UAW), the union seeking to organize the unit of graduate student employees, have requested information on about 2,200 graduate student employees, including work locations, shifts, and job classifications. Vanderbilt claims that providing such information would jeopardize the university’s ability to receive federal funds due to FERPA.

    Vanderbilt is seeking an injunction requiring the NLRB to vacate the rules as applied so the university will not have to violate FERPA. Vanderbilt asserts that the NLRB’s rules are arbitrary and capricious and contrary to law given the conflict with the university’s obligations under FERPA (Vanderbilt University v. NLRB (M.D. Tenn. No. 3:24-cv-01301, Comp filed, 10/29/24)). Vanderbilt has asserted more than 80 students have objected to the disclosure of the information. We will follow developments in the case as they unfold.

    Educator’s Anti-Male Bias Title IX Claim Can Go to Trial

    The 2nd U.S. Circuit Court of Appeals ruled that an educator’s Title IX claims can go to trial. The educator alleges that a New York state school district’s harassment probe, which resulted in a ruling against him, violated his Title IX rights. He was accused by a student of inappropriate conduct and touching in his mobile agricultural education trailer. The 2nd Circuit noted that the alleged perpetrator was not given timely notice of the allegations, was not told what was specifically alleged, and was denied the chance to review the evidence and present evidence of his own.

    The appeals court reversed the decision of the trial court, thereby giving the alleged perpetrator the right to a trial over the claim that the Title IX investigation was flawed and biased against him as a male (Schiebel v. Schoharie Central District (2nd Cir., No. 23-01080, 11/1/24)). The appeals court also noted that only one other student was interviewed, despite other students and adults allegedly being present, and that student did not confirm the allegations of the alleged victim.

    Union Election Petitions Filed With NLRB Have Doubled Since Fiscal Year 2021

    The NLRB reports that union election petitions for the most recent fiscal year have totaled 3,286, or more than double the amount in fiscal year 2021. The number of election petitions also amounts to a 27% increase over the previous fiscal year of 2023. The NLRB reported a 7% increase in the number of unfair labor practice filings it has received since fiscal year 2023.

    The NLRB has jurisdiction over private colleges and universities. Public college and universities in most states are subject to state-based rules in conducting union election matters. Commentators generally report anecdotally that state-based union election petitions are also increasing. There have been increased reports of union organizing among higher ed student employee work groups.

    NLRB General Counsel Says New College Athlete Employment Legislation Unnecessary  

    NLRB General Counsel Jennifer Abruzzo stated that there is no need for special legislation concerning student-athlete employment status, since there is existing legislation under the Fair Labor Standards Act, minimum wage laws, and the National Labor Relations Act (NLRA). No new laws, such as those promoted by the NCAA, are necessary, she said. Abruzzo made these remarks at a symposium hosted by Temple University in October. The general counsel pointed out that the situation under the FLSA is currently being played out in the courts.

    Court of Appeals Reverses NLRB Order for Elon Musk to Delete Tweet That Workers Will Lose Stock Options if They Unionize

    The 5th U.S. Circuit Court of Appeals reversed an earlier decision that affirmed the NLRB’s order against Musk and Tesla. In 2021, the NLRB ordered that Musk delete a tweet saying that employees of Tesla would lose stock options if they were to unionize. The appeals court ruled 9 to 8 that the NLRB order was not enforceable. The appeals court declined to rule one way or the other whether the tweet violated the NLRA, rather holding that the NLRB’s proposed remedy was not enforceable.

    Bloomberg reported that the decision was a “blow” to the NLRB’s authority to enforce the labor law’s prohibitions on an employer’s allegedly coercive anti-union statements, particularly when they appear on social media.



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

    HR and the Courts — November 2023 – CUPA-HR

    by CUPA-HR | November 8, 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.

    California Becomes First State to Mandate Workplace Violence Prevention Plans

    Under a new law, the first broad state law of its kind, most employers in California must now adopt workplace violence prevention plans by next summer. Before now, hospitals in California were the only group of employers required by state law to adopt workplace violence prevention plans. What specifically must be included in the plan is vague under the terms of the statute. The California Division of Occupational Safety and Health (Cal/OSHA) will be responsible for implementation of this statute and stated that it would adopt an appropriate workplace violence set of standards for employers.

    The law will require employers to establish written plans, employee training and tracking of violent acts. Plans must be specific for each workplace and tailored to meet the individual circumstances of each setting. Commentators are looking for further guidance from Cal/OSHA on the specific details that must be covered by employer plans.

    Mandatory Time Off for Reproductive Loss

    California and Illinois are leading the way in the adoption of state laws mandating that employers guarantee time off following a miscarriage or other reproductive loss to ensure leave for grieving. The laws guarantee employees up to five days of paid or unpaid leave following a reproductive loss including miscarriage and still birth, as well as failed adoption, invitro or surrogacy. Utah has adopted a similar policy for state employees, and several cities have adopted similar statutes. Some national employers already voluntarily include reproductive losses in time-off provisions for employees.

    NLRB Lowers the Bar to Prove Joint Employer Status — May Impact Student-Athlete Cases

    The National Labor Relations Board rescinded a Trump-era regulation requiring that an alleged joint employer must have “direct and immediate” control exercised over employees to prove joint employer status. Under the new standard, if an alleged joint employer indirectly controls job terms or conditions of employment, it is a joint employer subject to NLRB jurisdiction. This will have immediate application to the ongoing dispute as to whether the NCAA and athletic conferences are joint employers of student-athletes, as they exercise control over rules that student-athletes must adhere to.

    This also may affect the NLRB’s attempt to exert jurisdiction over student-athletes at public colleges and universities. While the NLRB has no jurisdiction over public entities, its general counsel is asserting jurisdiction over those student-athletes at public institutions based on the legal theory that the NCAA and/or the athletic conferences are joint employers.

    Student-Athlete Unionization Issue May Affect Smaller Institutions and Athletic Programs

    Two additional, separate NLRB cases are winding their way to a decision on whether student-athletes meet the definition of employee under the National Labor Relations Act and are therefore eligible to unionize. A West Coast case involves the NLRB issuing a complaint claiming that the University of Southern California, the NCAA, and the PAC-12 Conference are joint employers of student basketball and football players and have unlawfully refused to bargain with any union.

    An East Coast case involves a union petition filed by the Service Employees International Union to represent Dartmouth College basketball players. Dartmouth has argued that its basketball players are not employees under the NLRA, as they do not receive sports scholarships and the basketball program does not generate money for the institution.

    Commentators at Bloomberg have concluded that decisions allowing unionization of college athletes may have the most serious repercussions for smaller institutions and even small athletic programs that do not generate revenue at large institutions.

    Class Actions Proliferate Related to Washington State’s Pay Transparency Law  

    A series of 40 or so class actions filed against major employers in Washington state — including Adidas, Home Depot and Marriott — will test the reach of the new Washington state job ad and pay transparency law. The Washington state law, like similar statutes in California, Colorado and New York, requires employers to provide pay ranges and benefits information in job ads, with the aim of improving pay equity for women and employees of color.

    The Washington and California laws also provide plaintiff applicants with a private right to sue, with Washington’s statute incentivizing plaintiffs to sue. It grants plaintiffs an award of actual damages proven or $5000, whichever is greater, plus attorney fees upon proving a pay transparency violation.

    Former Women’s Basketball Coach Loses Sex Discrimination Lawsuit

    The former head women’s basketball coach at the University of Montana has lost the sex discrimination lawsuit she filed following her termination after a poor win-loss record and serious culture complaints made by players and parents, including players threatening to leave the university if she remained as coach. The court also granted a positive inference to the university’s stated rationale for termination under the “same actor” doctrine, where in this case the same athletic director that hired the plaintiff was the person who made the decision to fire the plaintiff (Schweyen v. Univ of Montana–Missoula (2023 BL 390525, D. Mont. 9.21-cv-00138, 10/31/23)).

    The prior coach had a compiled 38-year performance of winning 75% of her games, while the plaintiff had only one winning season in the four years she served as head coach. The court rejected the plaintiff’s attempt to compare herself to a men’s basketball coach who had lost team players to transfer, citing multiple federal cases that have rejected arguments that disparate treatment between men’s and women’s sports teams creates an inference of discriminatory animus under Title VII.



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