The Higher Ed Workplace Blog

HR and the Courts

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

NLRB Proposes Administrative Rule That Would Make Graduate Students Ineligible to Unionize

The National Labor Relations Board (NLRB) recently announced its consideration to adopt an administrative rule that would reverse current NLRB case law that would make graduate students and some student workers ineligible to form unions. The rule will apply only to private colleges and universities, as the NLRB has no jurisdiction over public colleges and universities that are regulated by applicable state laws regarding unionization.

“Over the past 19 years, the board has changed its stance on this issue three times. This rulemaking is intended to bring maximum input on this issue from the public and then to bring stability to this important area of federal labor law,” said NLRB chairman John Ring.

The rulemaking was published in the Federal Register on September 23, 2019, and comments will be accepted for 60 days thereafter.

Since the NLRB last extended graduate students the right to unionize in 2016, there have been 15 representation elections, 12 of which have resulted in student workers voting to unionize. The proposed rule is supported by three Republican members of the NLRB and opposed by the sole Democrat member. There is one vacancy in the five-member NLRB.

The past debate centered around the common-law definition of an employee. The current case precedent holds that while graduate assistants are students, they are also workers entitled to unionize. Prior board cases held that graduate assistants are primarily students and are not entitled to unionize.

Lesbian Hockey Coach’s $3 Million Emotional Distress Jury Verdict Reduced to $750,000 in Sex Discrimination Case, $1.2 Million in Back and Front Pay and $2.3 Million in Attorney Fees Stand

Shannon Miller, who founded the University of Minnesota-Duluth’s hockey program in 1998 and led teams to win five NCAA championships, sued the university after it failed to renew her contract. Miller held the coaching position for 16 years and claimed sex discrimination by presenting evidence that the male athletic director had difficultly working with powerful women. The federal district court judge found $3 million in emotional distress damages to be excessive and reduced the jury verdict by $2.25 million, holding that $750,000 in non-economic damages is still greater than any award of non-economic damages affirmed by the Eighth Circuit Court of Appeals (Miller v. Board of Regents of the University of Minnesota (D. Minn.,No. 15-CV-3740, 9/6/19)).

The judge approved $1.2 million in back and front pay, $2.3 million in attorney fees and $99,400 in litigation expenses. The judge concluded that the awarded attorney fees in excess of damages is acceptable given the “values at stake in a civil rights case.”

Professor’s First Amendment Challenge for Tenure Removal Dismissed as Appeals Court Concludes His Harassment of Students and Violation of University Policies on Student Privacy Are Not Protected by the First Amendment

A University of Illinois professor was fired and lost tenure after he harassed honor society students who presented a student award to another professor. He filed a First Amendment claim alleging that he could not lose tenure or be fired because his speech was protected by the First Amendment. The U.S. Court of Appeals for the Seventh Circuit (covering Illinois, Wisconsin and Indiana) recently affirmed the federal trial court judge’s dismissal of the case (Wozniak v. Adesida (2019 BL 292319, 7th Cir., No. 18-3315, 8/6/19)).

The professor questioned an honor society student about why the award was given to another professor. The student claimed his “aggressive” interrogation made her cry. The professor proceeded to criticize the student honor society leaders by name on his personal website and posted a report from the Committee of Academic Freedom, along with the students’ names who were on the committee, that concluded he should not lose tenure.

The university board of trustees revoked his tenure for violating university rules on student privacy and for disrespecting students. The professor argued that the First Amendment allows professors to make student information public no matter how embarrassing in nature.

The court rejected the professor’s argument, holding that the First Amendment does not govern how employers respond to speech and that a part of faculty members’ jobs is to relate to students. The court also pointed out that professors who harass and humiliate students cannot teach them successfully and that a university that tolerates such behavior cannot fulfill its educational functions. The appeals court concluded that speech which concerns “personal job-related matters” is outside the scope of the First Amendment, and that while the award — a $500 prize and a plaque — was important to the professor, it was not a matter of public concern.

Tennis Coach’s Discriminatory, Unequal Pay and Retaliatory Termination Claims Dismissed

A federal district court judge recently dismissed discrimination and retaliation claims filed by Sacred Heart University’s former men’s tennis coach, who claimed he was underpaid compared to the women’s tennis coach. The women’s tennis coach was also the athletic director at the university (Gagliardi v. Sacred Heart University (2019 BL 263026, D. Conn., No. 3:17-cv-857, 7/17/19)).

The court concluded that coaching salaries across men’s and women’s sports are often unique and not always comparable. Both coaches are male, as well as the entire group of those who decided to terminate the plaintiff. The plaintiff had a record of showing up late or not at all for practices and tournaments, which was a legitimate reason for his termination.

In granting summary judgement for the university on the retaliation claim, the court also recognized that the plaintiff’s termination came well after his last complaint to HR and his supervisor regarding alleged unequal pay.

Join Ira and his colleague Candace McLaren on November 7 for the virtual workshop “What’s Keeping You up at Night? Navigating Higher Ed HR’s Most Pressing Employment Law Challenges.” During this interactive workshop, Ira and Candace will offer insight and guidance on recent legal cases and issues related to HR’s role in Title IX training and investigations, mental health and workplace violence.


The CUPA-HR national office will be closed July 4 in observance of Independence Day.