Legal Watch - May 17, 2017
May 17, 2017

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

NLRB Rules Private College and University Resident Advisors Are Employees and Have the Right to Unionize  

A National Labor Relations Board (NLRB) regional director has ruled that college and university resident advisors are employees of the private college they work for and as such have the right to unionize under the National Labor Relations Act. The case was filed by the Service Employees International Union (SEIU) Local 500, which seeks to represent resident advisors at George Washington University in Washington, D.C. (NLRB Reg. Dir., No. 05-RC- 1888721, 4/21/17). 

The regional director ruled that the resident advisors are employees, reasoning “The RAs enter into an employment agreement with the university; are subject to the university’s control, including where they sleep and when they must perform their duties; and they can be disciplined for violating the employment agreement or the applicable confidentiality policy.” 

However, about 10 days after the ruling, in a surprise move, SEIU Local withdrew its petition, claiming that student final exams would interfere with the election. The union claimed that it would refile the petition at a later date. 

The employee unit described in the original petition covered roughly 110 RAs at the university. This is the first private university case to allow RAs to organize. In the public sector, RAs at the University of Massachusetts at Amherst are organized.  

California Federal Court Rules in Favor of NCAA — Division I College Football Players Are Not Employees Entitled to Pay

A federal district court judge dismissed a class action claim brought by a former Division I college football player at the University of Southern California on behalf of all Division I players against the NCAA and the Pac 12 Conference claiming that the student athletes are employees and entitled to compensation (Dawson v. Nat’l Collegiate Athletic Assn (NCAA) et al. (N.D. Cal. No. 3:16-cv-05487, 4/25/17)). 

The judge relied heavily on a recent Seventh Circuit decision dismissing a similar case brought by collegiate athletes claiming coverage as employees under the Fair Labor Standards Act. The court concluded that no employment relationship exists between the athletes and the college even where the sports program brings in significant revenue to the school.

The NCAA welcomed the ruling, stating “As we have said in this case and in others, there is no legal support for the idea that college athletics participation makes a student a university employee.” The NCAA went on to say that “Playing college sports allows student to get a quality education and build skills that will prepare them for success after college.” 

The plaintiff’s counsel indicated that the case was headed for an appeal to the Ninth Circuit.

Appeals Court, Backing EEOC Position, Rules That Single Use of a Racial Epithet in the Workplace Is Sufficient to Sustain a Title VII Complaint of Racial Harassment

Initial Equal Employment Opportunity Commission (EEOC) regulations concerning workplace harassment generally required the offensive conduct to be repeated and “pervasive” in the workplace in order to sustain a harassment discrimination claim. However, the EEOC always held to the position that a single incident or comment, if severe enough, could constitute actionable workplace harassment. 

It argued this in an amicus brief to the U.S. Court of Appeals for the Second Circuit (Covering New York, Vermont and Connecticut) in a recent case involving a single incident of a very nasty racial epithet made by a supervisor against a subordinate. The court accepted the EEOC’s position on this issue and will allow the single incident racial epithet case to proceed to trial over allegations of racial harassment in the workplace, overturning a trial court decision to dismiss the case (Daniel v. T&M Protective Resources (2017 BL 135339, 2nd Cir., No. 15-560-cv, unpublished, 4/25/17)).

The appeals court’s decision is unpublished and is one of the first of its kind to allow a single incident comment to proceed to trial over racial harassment under the applicable Title VII statute. 

Bloomberg BNA Reports Some Yale Grad Students to Start Hunger Strike Following University’s Decision to Postpone Bargaining Until NLRB Rules on Its Scope-of-Bargaining-Unit Appeal

On February 23, Yale graduate students across eight departments voted in favor of organizing into a union to negotiate a collective bargaining agreement. The university appealed the election results, arguing that “micro unit organizing,” which allows organizing by department rather than school-wide, is unprecedented and inconsistent with NLRB bargaining unit rules. The NLRB has yet to rule on the university’s appeal, and the university has elected to postpone bargaining until the appeal is decided. 

UNITE HERE Local 33, which organized the graduate students, announced on April 25 that some graduate student union members would commence a hunger strike until bargaining commences. No further details have been reported. 

Courts Split on Whether a Disabled Employee Must Specifically Request an Accommodation or Whether the Request Is Implied if Employer Knows of Disability and Vague Mention of Accommodation Has Been Made

A federal district court judge recently dismissed a failure-to-accommodate Americans with Disabilities Act (ADA) case in which the disabled plaintiff, who was suffering from multiple sclerosis, had not made a specific request for a specific accommodation but had vaguely said when presenting a doctor’s note substantiating her MS that she “may need some consideration from time to time” (Haddad v. 21st Mortgage Corp. (2017 BL131413, E.D. Tenn., No. 3:15-cv-277, 4/21/17)). 

The federal district court trial judge dismissed the case, citing Sixth Circuit Court of Appeals (Tennessee, Kentucky, Michigan and Ohio) precedent requiring a specific reasonable accommodation request in order to sustain a failure-to accommodate ADA claim. 

The Seventh and Eighth Circuits (covering respectively Illinois, Indiana and Wisconsin, and North Dakota, South Dakota, Nebraska, Minnesota, Iowa, Missouri and Arkansas) take a different approach. The Seventh Circuit holds that an employer must seek a clarification where the circumstances make it ambiguous as to whether the employee is seeking an accommodation, and if the employer does not, the employee may proceed with its ADA failure-to-accommodate claim. The Eight Circuit holds that a court may infer that an accommodation request was made by the employee from a situation that is ambiguous where no specific request was made. 

Therefore, unless they are located within the Sixth Circuit, employers are best advised to seek a clarification if an ambiguous situation arises where the employee is known to be disabled and has implied the need for an accommodation but has not made a specific request.