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Advocacy & Compliance News

Legal Watch - February 20, 2014
February 20, 2014

By Ira Michael Shepard, CUPA-HR general counsel and partner with Saul Ewing LLP


Northwestern University Football Players File Unionization Petition With NLRB

In an unprecedented move, a coalition of scholarship football players at Northwestern University filed a representation petition with the National Labor Relations Board (NLRB) claiming the right to unionize as employees under the National Labor Relations Act (NLRA). With the creation of the College Athletes Players Association (CAPA), the group is seeking to negotiate with both Northwestern and the National Collegiate Athletic Association (NCAA). The United Steelworkers Union is assisting CAPA with the petition, which was filed with the Chicago regional office of the NLRB, and has agreed to pay the legal fees associated with the filing. According to the Steelworkers, there were 108 players on Northwestern’s roster last year, 85 of which were scholarship athletes, the “vast majority” of which signed union authorization cards.

CAPA states it will represent its members with regard to issues of financial equity and personal safety. CAPA claims that notwithstanding the extraordinary value these athletes bring to the university, they most often are forced to pay their own medical expenses for serious injuries incurred both during their college careers and afterward. CAPA also claims that these athletes can be stripped of their scholarships for virtually any reason, including injury. CAPA states that it is committed to seek coverage for sports-related medical expenses and reduce the probability of traumatic brain injuries. CAPA also plans to seek higher athletic scholarships and compensation for commercial sponsorships.

A spokesman for the NCAA said that he thought the petition would be dismissed quickly by the NLRB because the student athletes simply are not employees under the NLRA and therefore have no right to unionize under that statute. He also stated that the student athletes’ participation in college athletics is “voluntary.” Northwestern stated that its student athletes are not employees and therefore have no collective bargaining rights under the NLRA. The university, however, stated that the health and academic issues being raised are important and deserve further consideration.


U.S. Court of Appeals Holds Temporary Impairment May Be a Covered Disability Under ADA Amendments

Reversing a federal trial court decision which dismissed an Americans with Disabilities Act (ADA) lawsuit brought by a former employee who was discharged after incurring a temporary impairment following an injury, the U.S. Court of Appeals for the Fourth Circuit ruled that a temporary impairment may be a covered disability under the ADA amendments if it is “sufficiently severe” to substantially limit a major life activity (Summers v. Altarum Institute (4th Cir., No. 13-1645, 1/23/14)). The Fourth Circuit is normally regarded as one of the more conservative circuits. It is the first circuit court of appeals to rule that a temporary impairment may constitute a disability under the ADA amendments.

The plaintiff in the Summers case was a senior analyst at the Altarum Institute who was fired after less than two months on the job after sustaining serious injuries to both of his legs which prevented him from walking normally for at least seven months. The employer argued that a temporary impairment cannot constitute a disability consistent with prior Supreme Court precedent decided before the ADA amendments. The court of appeals rejected that argument, holding specifically that the prior Supreme Court precedent excluding temporary impairments from ADA coverage was rejected by Congress when it passed the ADA amendments.

The plaintiff worked for a government contractor who allowed its contractors to work from home if the client approved. The plaintiff alleged in his complaint that while the agencies he worked for preferred the contractors to work on site, they did on occasion allow them to work from home. The trial court in ruling that the ADA amendments did not cover temporary impairments reasoned that since the plaintiff could effectively work from a wheelchair while recovering, he simply was not disabled under the ADA. The court of appeals rejected that analysis as inverting the appropriate inquiry, concluding that if an accommodation made the individual not disabled, then the ADA would be “eviscerated.”

The appeals court said the proper analysis is to determine, in the first instance, whether a disability exists with or without an accommodation. In making that determination, the appeals court said, the duration of the disability is irrelevant to determining whether the alleged disability is “sufficiently severe” to limit a major life function. In this case, the court said that the the plaintiff should have a chance to demonstrate at trial that his alleged disability substantially limited the major life function of walking.


Supreme Court to Review First Amendment Claim of Community College Director Allegedly Terminated Because of Subpoenaed Grand Jury and Criminal Trial Testimony Against a State Official

The U.S. Supreme Court agreed to review the case of a community college employee who was a state employee and was allegedly fired by the community college president because of his negative, subpoenaed grand jury and criminal trial testimony against a state legislator who was convicted of mail fraud, setting up a no-show job for herself at the community college, and stealing federal funds. The plaintiff initially sued both the community college and the college president but dropped the case against the community college and pursued the college president in a section 1983 claim (42 U.S.C. 1983). The college claims that the plaintiff, who was a probationary employee, was terminated as a result of budget cuts (Lane v. Franks (U.S., No. 13-483, cert granted 1/17/14)).

The federal district trial court and 11th Circuit Court of Appeals both dismissed the plaintiff’s claims on summary judgment in favor of the community college president, holding that the plaintiff, who was a public employee, had no First Amendment rights under the Supreme Court’s prior precedent in Garcetti v. Ceballos because the plaintiff was speaking pursuant to his job duties and not as a private citizen about a matter of public concern.

The plaintiff argued that the Supreme Court should grant review because he did qualify under the Garcetti v. Ceballos test, as his speech was protected under the First Amendment as he spoke as a citizen on a matter of public concern by opposing official corruption and the societal interest in encouraging public employees to blow the whistle on fraud. The plaintiff argued to the Supreme Court that a public employee in such a case is indistinguishable from any citizen responding to a subpoena, and his employee status offers no shield to testifying. Such an employee must therefore be deemed a citizen while testifying, as to do otherwise would subject him to sanctions for testifying truthfully under subpoena, which would undermine the justice system. The plaintiff argued that any other result would sanction retaliation against a citizen who did nothing more than his duty to tell the truth and support the criminal justice system.

As this case will have a substantial impact on the free speech rights of public employees, we will follow the Supreme Court’s deliberation and decision on the merits of this case after it is argued.


EEOC Settles First Systemic GINA Case

In its first case involving alleged systemic violations of the Genetic Information Nondiscrimination Act (GINA), enacted in 2008, the Equal Employment Opportunity Commission (EEOC) obtained a five-year consent decree and payment of $370,000 in damages, including a $100,000 fund for victims from a New York nursing and rehabilitation center that had violated the Act by routinely seeking family medical history data from all applicants for employment in post-offer, pre-employment exams (EEOC v. Founders Pavilion (W.D.N.Y., No.13-cv-6250, settlement approved 1/9/14)).

The EEOC general counsel said the case was the third case the Commission had brought under GINA since its enactment and the first one involving allegations of systemic violations. It is also the first GINA case resulting in systemic relief to a class of victims. Genetic discrimination is now one of six EEOC national priorities in antidiscrimination enforcement. The head of the EEOC’s New York District underlined that employers should be aware that there are strict consequences for seeking family medical history as part of the applicant process.