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.
New Union Activity Rates Declined in 2025
Bloomberg reports that its review of National Labor Relations Board (NLRB) records indicates that new union membership dropped in 2025, which it attributes to volatile economic conditions as well as increased and hostile federal oversight. The number of new union elections conducted by the NLRB in 2025 dropped almost 30% from the number of elections conducted in 2024. The NLRB conducted 1,372 new elections in 2025 compared to 1,938 conducted in 2024.
The number of new union election wins in 2025 compared to 2024 fell almost 27%, according to Bloomberg. This is the first downturn since 2020. New workers organized as a result of NLRB elections dropped almost 40% to 65,542.
2026 To Bring More Student-Athlete Antitrust Litigation Likely Involving the NCAA and Power Conferences
Legal observers predict that more student-athlete antitrust litigation is on the horizon for the NCAA and the power conferences, according to Bloomberg. The basic antitrust settlement allowing participating institutions to share up to $20.5 million in 2026 with certain athletes will likely be challenged with some arguing against the cap. Years of eligibility, including the transfer rules from junior colleges, will also be the subject of continuing litigation, with the possibility of a split in circuits necessitating a Supreme Court review of this additional issue.
Legal commentators add that the antitrust settlement reached by the NCAA and certain power conferences is itself subject to antitrust violation claims.
OFCCP Near Shutdown Resulting From Trump Administration’s Cutbacks
Executive order 11246, which was signed by President Lyndon Johnson in 1965 and gave the Office of Federal Contract Compliance Programs (OFCCP) most of its powers regarding race and sex discrimination and affirmative action requirements for federal government contractors, has been rescinded by President Trump. The OFCCP has been stripped of its authority regarding race and gender discrimination and, according to Bloomberg, most of its employees have been transferred or have resigned. In the decade preceding the current Trump administration, Department of Labor records indicate that the OFCCP obtained more than $260 million in settlements for more than 250,000 employees.
The OFCCP was in charge of enforcing the affirmative action plan requirements of all federal government contractors and routinely oversaw affirmative action plan audits.
DOL Rescinds Guidance Extending Antidiscrimination Training – EEOC Rescinds Biden Administration Transgender Guidance Protection
The Department of Labor (DOL) rescinded Biden administration guidance extending antidiscrimination protection to transgender participants in the DOL’s workforce development programs. This is part of the Trump administration policy that directed federal and government agencies to recognize only two sexes.
There continues to be a split in the federal appeals courts as to whether antidiscrimination protection applies to Title IX. The 4th, 7th and 9th Circuits have applied this antidiscrimination protection to transgender individuals while the 6th and 11th Circuits have not. Institution counsel should be consulted regarding the applicable law in the institution’s location.
Separately, the Equal Employment Opportunity Commission (EEOC) voted 2 to 1 on January 22, 2026, to rescind Biden administration guidance protecting transgender employees. This effectively means the EEOC will not enforce the transgender discrimination prohibitions outlined in the former EEOC guidance on this topic. The former EEOC general counsel commented, however, that this does not mean the courts will not necessarily enforce private lawsuits in this area. Counsel should be consulted in this fast-changing area of the law as to the latest developments applicable to individual institutions.
Worker Sues, Claiming Termination for Refusal To Accommodate Service Animal Request in Employee Housing Violates the ADA
A federal court has ruled that a Utah resort must face a claim that it violated the Americans with Disabilities Act (ADA) when it refused a diabetic worker’s request for an accommodation to keep his service animal in employee housing.
The federal court rejected the employer’s argument that the matter was housing-related and not employment-related. The court reasoned that since employee housing was only available to employees, the rules that come with it are job-related. The employer will face allegations that denial of the service animal request in employee housing was a failure to accommodate a reasonable disability-related accommodation request (O’Connor v. Colette’s Mountain Resort (2026 BL 10556, D. Utah, 1/13/26)).
Employee Gets Jury Trial Over Employer’s Refusal To Accommodate His Change in Work Schedule
An Amazon employee with autism had successfully worked the 6:30 p.m. to 5:00 a.m. shift because his carpool arrangements enabled him to get to work on time, as his condition precluded him from driving. The employee claimed he was unable to arrange a different carpool arrangement to meet the requirements of a new schedule. A federal district court judge in Pennsylvania ruled that the plaintiff employee was entitled to a jury trial over whether the employer did enough to accommodate the plaintiff’s disability (Marquart v. Amazon.com Services LLP (2026 BL 20054 M.D. Pa. 1:23-cv 01095, 1/22/26)).
The employer sought to dismiss the case, claiming that it proposed several reasonable, alternative accommodations. Nonetheless, the judge ruled that the plaintiff was entitled to a jury trial over the issues of whether the employer did enough to accommodate the plaintiff’s request and whether the plaintiff’s request posed an undue hardship for the employer.
Because of the unprecedented and fast-changing pronouncements of the new presidential administration and the intervening court challenges, the developments contained in this blog post are subject to change. Before acting on the legal issues discussed here, please consult your college or university counsel and, as always, act with caution.