Tag: September

  • HR and the Courts — September 2024

    HR and the Courts — September 2024

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

    Fired Professor Who Praised Hitler Loses Free Speech Retaliation Lawsuit

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

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

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

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

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

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

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

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

    Boston University Graduate Workers Strike Is Longest in the Last Decade

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

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

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

    HR and the Courts — September 2023 – CUPA-HR

    by CUPA-HR | September 13, 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.

    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.



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

    HR and the Courts – September 2022 – CUPA-HR

    by CUPA-HR | September 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.

    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)).



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