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President Donald Trump on Wednesday signed into law funding legislation that ended the longest-ever government shutdown in U.S. history and funds SNAP and WIC until the end of September 2026.
The bill extends current funding levels for most federal government operations through January 2026 and funds several agencies, including the U.S. Department of Agriculture, through the remainder of the federal government’s current fiscal year, which ends Sept. 30, 2026.
The USDA funding includes $107.5 billion for SNAP — about 8% more than the program’s fiscal 2024 level. It also includes $8.2 billion for WIC, almost 8% more than the allotted amount for fiscal 2025. The measure also reimburses the contingency reserves for WIC and SNAP to account for expenditures during the government shutdown.
The deal buys Congress time to hash out spending and brings more financial security to SNAP following a tumultuous battle during the shutdown over how to cover the food aid program with emergency funds.
The National Grocers Association and FMI — The Food Industry Association said in separate statements that the reopening of the government and fully restoring federal funding of SNAP provides stability for consumers receiving food assistance.
“We are proud of the way our retailer and supplier members stepped up during this difficult time to support their communities through a variety of food and household product donation programs, discounted pricing and enhanced funding for neighborhood organizations,” FMI Chief Public Policy Officer Jennifer Hatcher said in a statement.
The most recent USDA data shows nearly 42 million people participated in SNAP and received an average of $188 in May. About 39% of SNAP recipients are children under the age of 18, according to the National Education Policy Center.
Judging from the widespread job and program cuts announced last month, higher education continues to face economic uncertainty on multiple fronts, from declining enrollment to federal funding issues.
September saw layoffs, program cuts and other budget moves at a mix of institutions. While some of the institutions listed below are regional universities battered by declining enrollment, others are among the nation’s wealthiest; they pointed to federal research funding cuts, soaring endowment taxes and other factors as the impetus for recent cutbacks.
Here’s a look at cost-cutting measures announced across the higher ed sector last month.
Washington University in St. Louis
One of the nation’s wealthiest universities is laying off hundreds of employees.
WashU chancellor Andrew Martin announced last month that the private university had cut 316 staff positions and closed another 198 vacant roles as part of an effort to restructure or reduce budgets. He wrote that the cuts, which extend to WashU’s Medical Campus, total “more than $52 million in annual savings.”
The chancellor cited both external and internal pressures.
“These include the changing needs of our students, emerging technologies, and innovations in teaching and learning,” Martin wrote. “Others come from internal decisions and structures that have, over time, created ineffective processes and redundancies in the way we operate. In addition, we’re still facing significant uncertainty about potentially drastic reductions in federal research funding.”
Uncertainty over federal research funding looms even as the university has lobbied heavily on Capitol Hill. Among individual institutions, WashU has been one of the top spenders on higher education lobbying this year, pumping $540,000 into those efforts across the first two quarters. (Third-quarter lobbying numbers are not yet available.)
Despite a $12 billion endowment, WashU follows well-resourced peers, including Johns Hopkins, Northwestern and Stanford Universities, in enacting steep layoffs.
Brown University
Squeezed by a budget deficit and reeling from a battle with the Trump administration over allegations of antisemitism that included a temporary federal research funding freeze and ended with the university making concessions, Brown is laying off 48 employees and axing 55 vacant jobs.
The cost-cutting measure comes after the Ivy League institution in Rhode Island already eliminated “approximately 90 mostly vacant positions” earlier this year, according to an announcement from senior administrators. Following the cuts, Brown is walking back freezes on hiring, travel and discretionary spending.
Officials announced they plan to monetize “non-strategic real estate holdings” and pause “spending on plans to move the University to net-zero emissions,” among other efforts, including “prioritizing fundraising for current-use gifts that have an immediate positive budgetary impact.”
Brown is among the nation’s wealthiest universities, with an endowment valued at $7.2 billion.
University of Oregon
Grappling with a budget deficit of more than $25 million, the public flagship announced plans to lay off 60 employees and close another 59 vacant positions, The Oregonian reported.
The move comes after the university cut dozens of jobs earlier this year.
“Through careful consultation with deans, department heads and the University Senate, we were able to substantially close our budget deficit without eliminating any degree programs,” UO senior officials wrote last month. “And while we are cutting 20 filled career faculty positions and 14 unfilled tenure track faculty positions, we are not eliminating any filled tenure track faculty positions.”
Berklee College of Music
College leaders cited “rising costs, a dynamic enrollment environment, and shifting national policies” in announcing the layoffs of 70 employees at the storied music school last month.
The layoffs reportedly amount to 3 percent of the Berklee College of Music workforce and include employees on campuses in Massachusetts, New York and Spain, according to Boston.com. Of the 70 employees laid off, all were staff members and no faculty jobs were cut.
The cuts will reportedly affect 70 faculty and staff jobs, though not all are currently filled. In addition to layoffs and the elimination of vacant jobs, the university also plans to scale back programs by cutting 10 majors—including chemistry and mathematics—and dropping a dozen minors.
University of Arizona
The public university in Tucson is cutting 43 jobs after Congress eliminated funding for the Supplemental Nutrition Assistance Program, The Arizona Daily Star reported.
The program, known as SNAP-Ed for short, was removed from the federal budget earlier this year. Termination of the program cut off about $6 million in annual funds to the university to provide education-related services, faculty members told the newspaper.
The public university eliminated six jobs and closed the Office of Sustainability and Community Engagement last month as it navigates a $25 million deficit, The Acadiana Advocate reported.
Other offices were restructured.
The newspaper reported that officials have already identified $15 million in cuts to help close the deficit. Most divisions across the university will be required to reduce operational expenses by 10 percent.
Cuyahoga Community College
Following other public institutions in Ohio, CCC is axing 30 associate degree programs in low-enrollment areas, as mandated by Senate Bill 1, which the State Legislature passed earlier this year, Signal Cleveland reported.
The cuts, announced last month, include a mix of programs ranging from advanced manufacturing to creative arts. Multiple apprenticeship programs are also being shut down.
East Carolina University
Officials at the public university in Greenville announced plans last month to cut $25 million from the budget amid declining enrollment and other factors, The Triangle Business Journal reported.
Belt-tightening measures will be implemented over three years and will include “permanent reductions, academic program optimization, and organizational adjustments,” ECU officials announced last month. Administrators did not specify the number of potential layoffs ahead.
Yale University
Increased taxes and federal funding uncertainty are driving cost-cutting measures at the Ivy League university in Connecticut, where officials last month announced retirement incentives to eligible faculty as the university braces for an 8 percent tax on endowment income.
Yale is one of the few universities with a multibillion-dollar endowment that will feel the tax at its highest level. The increase is a significant jump from the prior endowment tax of 1.4 percent.
The university is also delaying major construction projects, among other money-saving moves.
A quick reminder that Focus Friday kicks off today (Sept 26) at 12:30-1:30pm Eastern on the Future of Higher Education. I’m being joined by Jackie Pichette from RBC and Sunny Chan from Business + Higher Education Roundtable. If you haven’t registered yet, it isn’t too late. Sign up here.
This is a new initiative from HESA but the session is simple: we’ll start with some questions to our invited guests, then open the floor for a coffee-chat style discussion. Bring your ideas, hang out, and learn something new.
Two weeks ago, we asked for what you want to chat about during Focus Friday and thank you to everyone who already submitted suggestions for future topics! Here’s what you told us you want to hear about most:
AI and Technology: by far the top theme (teaching, learning, admissions, student support, policy, and the future of work).
Internationalization: Canada’s future strategy and global comparisons.
Funding & Finance: enrolment pressures, revenue models, government funding.
Student Experience & Equity: belonging, value perception, well-being.
Politics & Governance: provincial/federal expectations, US political spillovers, policy changes as they happen.
Academic Programming & Curriculum: innovation in credentials, Quality Assurance reform (one of my favourite topics, so thanks for saying it).
Plus: a variety of topics we’ll touch on throughout the year.
Keep sharing your ideas in the Zoom Registration Form or reach out anytime at [email protected].
From here on, the Focus Friday emails will give a summary of the last discussion. Can’t make the session or simply one of our text-loving audience members? We got you.
The next Focus Friday will be on October 10th focused onthe student experience and student life. I’ll be bringing you some folks directly from your own campuses to lead our discussion. Register via the big green box below.
Two very different universities in the UK are planning to merge: the University of Kent, in the country’s southeast, and the University of Greenwich in Greater London. Some are saying this is less a merger than a take-over, with Greenwich in the driver’s seat. These are two institutions with quite different profiles and ways-of-being; the literature on university mergers is not very encouraging about how this will turn out.
The UK’s famously over-developed periodic research assessment exercise was given a brief pause by Research England as the research councils responsible re-think some of the exercise’s basic principles. One matter under consideration is whether or not all institutions require the same level of scrutiny, regardless of research-intensity. Coincidentally even the head of Universities UK is now calling for more institutional specialization in research or rather less “unfunded hobbyist research” in the face of widespread research funding shortages.
Hong Kong’s universities have been rising in popularity among globally-mobile students lately. The Hong Kong government would now like to expand the number of “non-local” (which includes the PC) university spots to 50% of the total, but claiming these new seats will all be new and no local student will be pushed out. Not everyone is convinced.
Student housing crises are everywhere. Here are stories from Ireland, Italy, Spain, Turkey, Greece, Kazakhstan. The question is: if it’s a crisis absolutely everywhere, can we still call it a crisis?
The OECD’s Annual Education at a Glance publication came out last week, producing a host of stories around the world. In the UK and France, there was shock over PIAAC results (not released at the time PIAAC came out last December) that university graduates in their countries had deeply sub-par language skills. In Belgium, the hand-wringing was mostly about low completion rates and long times-to-completion.
Welcome back to year two of the Fifteen. I think I’ve got the hang of this finally, so I think this will be a much better product now. Without further ado then, some of the world’s biggest higher ed stories from the last three weeks or so.
Government cuts back on university funding and so institutions start raising tuition – a lot – because how is all that research going to get done without money? Sound familiar? It should, except this time it’s happening in China – and some people are getting antsy about top research universities creating financial barriers to study.
Remember all those stories from last year about Kenyan universities being broke? Well, the auditor general has looked into it, and it’s much worse than expected. System-wide institutions are in debt to the tune of about a year and a half’s worth of government grants (the Canadian equivalent would be $45B). So, what does the government do? It cuts tuition fees because popularity. It’s hard to see a way out of this situation.
In Chile, the government is replacing interest-bearing student loans with a system called the Fondo de Educación Superior (FES). Under this program, the government gives money for tuition (if the student is not eligible for gratuidad) and living expenses, and in return the student pays the government a percentage of their post-graduate income for a limited number of years. A graduate tax, basically. I haven’t seen numbers on this one, but I’d bet it’s expensive.
Crazy-pants moment for the Trump administration: seemingly off-the-cuff, Cheeto Jesus – whose main contribution to internationalization in higher education, hitherto, has been to deport international students – suddenly began musing in public about more than doubling the number of Chinese students in American universities. Leave aside the question of whether that many Chinese students are even interested anymore. Is this a change of heart? Or just something to distract attention away from new visa rules that put a four-year maximum on student visas, making doctoral degree attainment very difficult.
Malaysian public universities have been getting better at attracting international students (are they chasing international rankings? Yes. Yes, they are.) That is upsetting the balance of domestic higher education. Ethnic Malays are deliberately a majority at public universities, which means ethnic Chinese students often have to go to private universities. Now, the Malaysian Chinese Association is accusing the government of allowing “domestic” students (implicitly, non-ethnically Malay domestic students”) to be pushed out by foreigners. The government denies it. This story seems like it could run for quite a while.
After two years of nearly relentless government cutbacks to universities, the Argentinian Senate defied President Milei by passing a law requiring the government to spend the equivalent of 1% of GDP on public higher education. It was seen as a rare legislative loss for the President, who seems likely to veto the measure (join us in a couple of weeks on the podcast when Marcelo Rabossi will be joining me to discuss this issue).
Save the date – September 26-27! As a non-profit educational organization, we hope you will join us at our annual conference! If you are looking for a conference that includes sharing histories of education to help define present processes and inform the development of future responses, we hope you will join us and attend our annual conference. This year’s conference will include at least one panel on aspects of how artificial intelligence will impact educational history, but there will be many other panels. While the final conference schedule is still in development, this poster features examples of previous topics at the annual conference, so we can’t guarantee sessions on all these topics yet, but they demonstrate our past conference topics and may be indicative of what will be in this year’s conference. Our conference being offered online ensures low cost as we seek to invite many scholars into the organization by keeping travel costs low – and a full year’s membership, complete with the journal and attendance at the conference, remains affordable with a student rate ($60) and a regular rate (non-student) ($120)! With a peer-reviewed journal, an annual conference attendance complete with a noted keynote speaker, and a membership, we are dedicated to ensuring as many people as are interested can attend our conference. As you look to the fall, save the date and register here to attend: http://www.edhistorians.org/annual-meeting.html
Each month, CUPA-HR General Counsel Ira Shepard provides an overview of several labor and employment law cases and regulatory actions with implications for the higher ed workplace. Here’s the latest from Ira.
Fired Professor Who Praised Hitler Loses Free Speech Retaliation Lawsuit
The New Jersey Institute of Technology prevailed in a federal lawsuit brought by a former philosophy lecturer alleging retaliatory discharge. The professor’s employment agreement was not renewed after a New York Times article exposed his involvement in the “alt-right” (a far-right, white nationalist movement), including his praising Adolph Hitler as a “great European leader” and linking IQ to race. In dismissing the lawsuit, the U.S. District Court for the District of New Jersey held that the professor’s speech disrupted, and would likely continue disrupting, the university’s administration and interfered with the university’s mission (Jorjani v. N.J. Inst. of Technology ((D.N.J. No. 2:18-cv-11693, Jud entered 7/31/24)).
The judge held that public employers can restrict the speech of employees without violating the First Amendment when necessary to maintain effective and efficient operations. The judge also emphasized that the university did not need to wait for protests and demonstrations in order to show disruptions in operations before acting.
NLRB: Private Colleges and Universities Must Bargain With Unions Representing Student Employees Over FERPA-Protected Information
On August 6, 2024, the general counsel of the National Labor Relations Board (NLRB) issued a memo acknowledging the potential conflict between the National Labor Relations Act (NLRA) and the Family Educational Rights and Privacy Act (FERPA) regarding union requests for personal information about student employees. The NLRB general counsel concluded that colleges and universities in this situation must bargain with the applicable union over disclosure of such information and explain why the information request would violate FERPA.
Further, the NLRB concluded that the college or university can bargain with the union over the distribution of FERPA waivers to applicable student employees but that asking the union to hand out such waivers would be unreasonable and a violation of the employer’s duty to bargain in good faith because the union does not have the student contact information. The general counsel concluded that the college or university should hand out the waivers when the union does not have the student employees’ contact information.
Proposed $2.8 Billion NCAA Settlement on Hold as Some Student-Athletes Object
Some student-athletes claiming the NCAA artificially capped the size of college athlete scholarships too low, as well as those pursuing fair-pay claims, objected to the $2.8 billion proposed settlement of the NCAA and the Power Five conferences antitrust case. Plaintiffs in these two areas are asking the Northern District of California court to carve out their claims from the proposed settlement so that they can pursue individual claims in further litigation. The federal judge overseeing the matter questioned the proposed settlement and concluded that the settlement needed a better explanation of damages and a clearer understanding of how much each class member can expect to gain (In re College Athlete NIL Litigation (N.D. Cal. No. 4:20-cv-3919. Brief filed 8/9/24, Fontenot v. NCAA D. Colo. No. 1:23-cv-03076, and Cornelio v. NCAA D. Colo. No. 1:24-cv-02178)).
Two former Brown University student-athletes have dropped their objection, concluding it will not preclude them from proceeding separately in an antitrust claim against the Ivy League. The two former men’s and women’s basketball players have alleged separately that the Ivies have engaged in an illegal agreement which raised the price of an Ivy League education by illegally suppressing compensation for their services. They alleged that Brown only provided them with need-based assistance that did not cover the full cost of their education.
Boston University Graduate Workers Strike Is Longest in the Last Decade
Lasting over 150 days, the Boston University graduate workers strike is the longest student employee strike in the last decade, according to the National Center for the Study of Collective Bargaining in Higher Education and the Professions, located at the City University of New York’s Hunter College. The BU strike, which began on March 25, eclipses a similar work stoppage of 147 days at the University of Michigan in 2023. An unauthorized “wildcat” strike at the University of California, Santa Cruz may have lasted longer but the National Center points out that strike was unauthorized by the applicable union. The center concludes that this is part of the significant increase in unionization of both undergraduate and graduate student workers that has occurred over the past few years.
The Boston University graduate workers formed their union in December 2022. The union is still engaged in efforts to secure their first collective bargaining agreement. September 3 will be the beginning of the second semester in which the grad student workers are striking. Teaching and regular higher education functions have continued at the university, though some interference with regular activities has been reported.
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.
Unionization Increases to Record Levels, Largely Driven by Graduate Students and Medical Interns
Unionization in the first six months of 2023 reached near record levels, surpassing last year’s numbers, which were driven by Starbucks employees’ organization drives. In the first six months of 2023, over 58,000 new workers were unionized, almost 15,000 more than last year’s significant levels. The size of new bargaining units has grown, with new units of 500 or more employees growing by 59% over last year. In the first six months of 2023, unions won 95% of elections in large units of over 500 employees compared to 84% in the first six months of 2022.
According to a Bloomberg Law report, this increase coincides with a growth in graduate assistant and medical intern organizing. There have been union organization elections in 17 units involving graduate students and medical interns in the first six months of 2023. This is the highest level of activity in the sector since the 1990s.
Court of Appeals Rejects Religious Discrimination Claim by Fire Chief Who Was Terminated After Attending a Religious Event on “City Time”
The 9th U.S. Circuit Court of Appeals (covering Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington) rejected a former fire chief’s allegation of religious discrimination after he attended a church-sponsored Christian leadership event in place of attending a non-religious leadership training program he was asked to attend (Hittle v. City of Stockton, California (2023 BL 268076, 9th Cir. 22-15485, 8/4/23)). The court concluded that the fire chief’s supervisors were legitimately concerned about the constitutional implications of a city official attending a church-sponsored event.
The fire chief claimed, as evidence of religious discrimination, that city supervisors questioned whether his attendance at the event was part of a “Christian Coalition.” He further alleged that the supervisors questioned whether he was part of a “Christian clique.” The court rejected the fire chief’s arguments that this questioning amounted to religious bias against Christians. The court concluded that the questioning was related to the report they received on his attendance at the church-sponsored event. The court noted that the supervisors did not use derogatory terms to express their own views. The case may be appealed to the Supreme Court, and we will follow developments as they unfold.
University Wins Dismissal of Federal Sex Harassment Lawsuit for Failure of Professor to File a Timely Underlying Charge of Sex Harassment With the EEOC
Pennsylvania State University won a dismissal of a male ex-professor’s federal sex harassment lawsuit alleging a female professor’s intolerable sex harassment forced him to resign. The Federal Court concluded that the male professor never filed a timely charge with the EEOC (Nassry v. Pennsylvania State University (M.D. Pa. 23-cv-00148, 8/8/23)). The plaintiff professor argued he was entitled to equitable tolling of the statute of limitations because he attempted to resolve the matter internally as opposed to “overburdening the EEOC.”
The court commented that while the plaintiff’s conduct was “commendable,” the court was unable to locate any case where a plaintiff was bold enough to offer such a reason to support equitable tolling. The court dismissed the federal case, holding that there was no way to conclude the plaintiff professor was precluded from filing in a timely manner with the EEOC due to inequitable circumstances. The court dismissed the related state claims without prejudice as there was no requirement that the state claims be filed with the EEOC.
Professor’s First Amendment Retaliatory-Discharge Case Over Refusal to Comply With COVID-19 Health Regulations Allowed to Move to Discovery
A former University of Maine marketing professor who was discharged and lost tenure after refusing to comply with COVID-19 health regulations on the ground that they lacked sufficient scientific evidentiary support is allowed to move forward with discovery. The university’s motion to dismiss was denied (Griffin V. University of Maine System (D. Me. No. 2:22-cv-00212, 8/16/23)).
The court held “for now” the professor is allowed to conduct discovery to flush out evidence of whether or not the actions which led to the termination were actually protected free speech. The court concluded that the actual free speech question will be decided after more facts are unearthed.
U.S. Court of Appeals Reverses Employer-Friendly “Ultimate Employment Decision” Restriction on Actionable Title VII Complaints
The 5th U.S. Circuit Court of Appeals (covering Louisiana, Mississippi and Texas) reversed the long standing, 27-year-old precedent restricting Title VII complaints to those only affecting an “ultimate employment decision.” The employer-friendly precedent allowed the courts to dismiss Title VII complaints not rising to the level of promotion, hiring, firing and the like. The 5th Circuit now joins the 6th Circuit (covering Kentucky, Michigan, Ohio and Tennessee) and the D.C. Circuit (covering Washington, D.C.) in holding that a broader range of employment decisions involving discrimination are subject to Title VII jurisdiction.
The 5th Circuit case involved a Texas detention center which had a policy of allowing only male employees to have the weekend off. The 5th Circuit reversed its prior ruling dismissing the case and allowed the case to proceed. This reversed the old “ultimate employment decision” precedent from being the standard as to whether a discrimination case is subject to Title VII jurisdiction.
Union Reps Can Join OSHA Inspectors Under Newly Revised Regulations
The U.S. Department of Labor has proposed revised regulations that would allow union representatives to accompany OSHA inspectors on inspections. The regulations, which were first proposed during the Obama administration, were stalled by an adverse court order and then dropped during the Trump administration.
The proposed rule would drop OSHA’s current reference to safety engineers and industrial hygienists as approved employee reps who could accompany the inspector. The new rule would allow the OSHA inspector to approve any person “reasonably necessary” to the conduct of a site visit. Among the professions that could be approved are attorneys, translators and worker advocacy group reps. The public comment period on these proposed regulations will run through October 30, 2023.
Each month, CUPA-HR General Counsel Ira Shepard provides an overview of several labor and employment law cases and regulatory actions with implications for the higher ed workplace. Here’s the latest from Ira.
University Football Coach’s First Amendment Retaliatory Discharge Claim For Posting “All Lives Matter” Sign On His Office Door Proceeds
A federal district court judge recently denied a University of Illinois motion to dismiss its former offensive coordinator’s claim that his retaliatory termination was in violation of his First Amendment rights by posting a handwritten note on his office door stating “All lives matter to our lord and savior Jesus Christ.” The federal judge ruled that the former coach was not acting within his official duties when he posted the note. The judge concluded that the plaintiff was not paid by the university to decorate his office door, but rather was paid to coach football. Therefore, the note expressed his personal views (Beathard v. Lyons (C.D. Ill,. No, 21-cv-01352, 8/11/22)).
The court ruled that it is premature to decide whether the university can justify the termination because “there is not enough information to properly weigh” the interests of the university against that of the public employee in this matter. The plaintiff alleges that someone posted a general statement without his permission that supported Black athletes at the university in the wake of George Floyd’s death. He claims to have taken down the note and posted his own handwritten note. According to the complaint, his note upset some players who boycotted practice. CUPA-HR will follow developments in this case.
Federal Appellate Court Holds That Gender Dysphoria Is a Disability Covered Under the ADA
The Fourth Circuit Court of Appeals (covering Maryland, Virginia, West Virginia, North Carolina and South Carolina) recently became the first federal appellate court to rule that gender dysphoria is a disability covered under the Americans with Disabilities Act (ADA). The 33-page majority decision was accompanied by a 21-page dissent. The appellate panel ruled 2-to-1 that gender dysphoria is covered under the ADA (Williams v. Kincaid (4th Cir. 21-2030. 8/16/22)).
The ADA contains a statutory provision excluding gender identity disorders from coverage under the ADA. The appellate court noted that the American Psychiatric Association (APA) removed gender identity disorders from its diagnostic manual nearly a decade ago. Gender identity disorders had referred to a condition of identifying as a different gender. The APA replaced the gender identity disorder diagnosis with the more modern diagnosis of gender dysphoria. Gender dysphoria is currently contained in the APA’s diagnostic manual and is a “clinically significant distress or impairment related to a strong desire to be another gender.” The APA says that the condition can interfere with an individual’s social life, their ability to do their job and other daily functions.
The appellate court concluded that the “plain meaning” of the ADA’s exclusion of gender identity disorders as “it was understood at the time of enactment” does not then or now exclude gender dysphoria from ADA coverage. The court concluded that “the obsolete definition focused on cross gender identification; the modern one on clinically significant distress.” The dissent disagreed stating that “Judicially modifying the meaning of a statute because of society’s changing attitudes not only invades the province reserved for legislature, it turns the statute into a moving target.”
Transgender Class Against the State of West Virginia Alleging State’s Denial of Gender-Affirming Care Violates Obama Care Statute Prevails in Trial Court
A class of more than 600 transgender Medicaid participants prevailed in federal court against the state of West Virginia where a federal judge held that the state’s denial of gender-affirming care violated the federal anti-discrimination provisions of the Obama Care statute and the U.S. Constitution (Fain et al v. Crouch et al (3:20- cv-00740 S.D. W.Va.. 8/2/22)). The case may have applicability to other state medical and health plans.
The court recognized that often the same procedure is used to treat a variety of cases and it is unlawfully discriminatory to deny transgender patients similar treatment given to non-transgender patients.
Court of Appeals Approves NLRB Order for Private Employer to Pay Union Legal Fees Incurred in Collective Bargaining Process
In a case applicable to private colleges and universities which are subject to National Labor Relations Board (NLRB) jurisdiction, the U.S. Court of Appeals for the Ninth Circuit (covering California, Oregon, Washington, Montana, Idaho, Nevada and Arizona) affirmed an NLRB decision ordering an employer to pay its union’s legal fees incurred in the collective bargaining process (NLRB v. Ampersand Publishing (9th Cir. No. 21-71060, 8/11/22)).
The Ninth Circuit concluded that although the NLRB lacks jurisdiction to award attorney fees as a remedy in the litigation context, it is fully within their authority to award such a remedy in the collective bargaining context. In this case, the union filed unfair labor practice charges alleging the employer’s refusal to bargain. The union claimed it had to incur extra attorney fees as part of the bargaining process because of the employers violation. The court rejected the employer’s argument that the legal fees were akin to litigation costs because of the unfair labor practice charges filed with the NLRB. The NLRB disagreed and attributed the attorney fees of $42,000 to the collective bargaining process. The case involved the Santa Barbara News Press as the employer and a local teamster affiliate that has incurred the legal fees.
IRS Initiates Pilot Program Allowing Workplace Employee Benefit Plans to Correct Errors Before Formal Audits Commence
Under a new pilot program, the Internal Revenue Service (IRS) will allow workplace benefit plans to correct errors before investigators formally commence an audit. As part of a new pilot project, about 100 U.S. workplace benefit plans, including retirement plans, have received letters from the IRS since June allowing selected plans a 90-day window to correct mistakes in plan design, administration or documentation before regulators launch formal audits or close out case files.
Self-identified corrections of this sort are not new to the IRS, however, before this pilot they were only available to employers who had not been targeted by an audit.
Federal Judge Blocks Florida Workplace Bias Training Restrictions
A federal district court judge approved a preliminary injunction barring the enforcement of a Florida statute which restricts workplace bias training from teaching about unconscious bias. The Florida statute known as the Individual Freedom Act (IFA) bars employers from endorsing various race, sex and ethnicity-based concepts during workplace training.
The plaintiffs are a coalition of employers and diversity and inclusion specialists who conduct workplace training. The judge ruled that the Florida statute likely violates the First and Fourteenth Amendments and that the plaintiffs will incur irreparable harm if the IFA is allowed to be enforced (Honeyfund.com Inc. et al v. Ron DeSantis et al (Case no. 4:22-cv-00227. N.D. Fla., 8/18/22)).
