Legal Watch - August 23, 2016
August 23, 2016
By Ira Michael Shepard, CUPA-HR general counsel and partner with Saul Ewing LLP
On August 23, the National Labor Relations Board issued a 3-1 decision in Columbia University ruling that graduate and undergraduate students who perform work at private institutions as part of their education may be considered in certain cases employees under the National Labor Relations Act. The decision reverses the Board’s 2004 Brown University ruling and means private institutions will be required to collectively bargain with students in some circumstances. Read more in CUPA-HR’s Washington Insider Alert.
A series of separate class action lawsuits have been filed in rapid succession against a number of prominent universities alleging that the administration fees routinely charged to participants’ retirement accounts are too high in violation of the universities’ fiduciary responsibilities owed plan participants under the Employee Retirement Income Security Act. At the time of publication, 11 separate universities have been sued, and the number of lawsuits is likely to expand over the coming weeks.
The lawsuits allege, among other things, that the offering of too many investment options limits the plan’s ability to negotiate better administration fee rates for any particular fund or investment vehicle in comparison to a situation in which a small number of select options are available. The lawsuit also alleges that the offering of so many options (in one case 111 investment options), leads to “decision paralysis” which harms participants. The lawsuits also attack alleged underperforming investment options which are offered by many higher ed retirement plans.
The Court of Appeals for the Seventh Circuit (including Illinois, Indiana and Wisconsin) recently addressed the Equal Employment Opportunity Commission’s position that Title VII covers sexual orientation as a protected class. This is the first time an appeals court has analyzed the EEOC’s position.
The Seventh Circuit rejected the EEOC’s position, holding (consistent with prior precedent) that the language of Title VII is not broad enough to include sexual orientation. The Seventh Circuit also cited the fact that Congress has considered but has not adopted an amendment to Title VII which would add sexual orientation as a protected class as a determining factor in rejecting the EEOC’s position (Hively v. Ivy Tech Community College (2016 BL 244172, 7/28/16)).
The same issue is pending before two other U.S. courts of appeals — the Court of Appeals for the Second Circuit (including New York, Connecticut and Vermont) and the Court of Appeals for the Eleventh Circuit (including Florida, Georgia and Alabama). If there is a split in the circuits, the Supreme Court will likely decide the issue.
A New Jersey appeals court recently ruled that an employee with Lyme disease may sue under the New Jersey Law Against Discrimination (NJLAD), which is more liberal in its coverage than the federal Americans with Disabilities Act (ADA). The New Jersey anti-discrimination law, like some other state laws, differs from the ADA in its definition of disability. Under the New Jersey statute, a disability or condition does not need to” substantially limit a major life activity,” nor does it have to be serious or permanent. Under this more expansive definition, the appeals court held that an employee with Lyme disease may sue under the anti-discrimination law (Cook v. Gregory Press Inc. (2016 BL259465, NJ Sup Ct App Div. unpub 8/11/16)).
The court in reaching its decision pointed to evidence that the plaintiff’s supervisor ordered him to work even though he had a doctor’s note stating he could not work. In reinstating the case, the court held that a jury could conclude that the employer was aware of the employee’s condition and discriminated against him because of his condition.
A campus police officer who sued the university for which he worked, alleging race discrimination and workplace retaliation for filing a complaint of discrimination concerning his supervisor’s allegedly racially inflammatory rhetoric concerning his skin condition and for workplace harassment after he complained, was awarded $1 in damages by the jury at the conclusion of his jury trial. The trial court judge denied his attorney fees request against the university, holding that while he was nominally the prevailing party in his lawsuit, the jury verdict provided him only limited success, and an attorney fee award in these circumstances would not be appropriate (Robinson v. Perales (University of Illinois at Chicago) (N.D. Ill., No. 13-cv-04859, 8/11/16)).
A U.S. Department of Justice study of state court civil litigation in the 75 largest counties in America resulted in a finding that 97 percent of the cases filed are settled or dismissed without ever going to trial. In-house general counsels agree that regardless of whether or not a case makes it to trial, the vast majority of legal fees and expenses occur pretrial in discovery, depositions, interrogatories and motions practice.
While the rise in the use of alternative dispute resolution across the nation has helped to increase pretrial resolution and settlement of cases, it is often a last resort prior to trial after both sides are weary of the emotional, monetary and resource costs of the process. However, the College Arbitration & Mediation Association (CARMA) is looking to make early arbitration the norm rather than a last-ditch effort. CARMA, designed to do for higher ed what the American Arbitration Association does for private industry, facilitates the selection of competent third-party neutral mediators and arbitrators to resolve higher ed disputes, including employment, student and Title IX disputes.
Learn more at http://carmaresolutions.org/.