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:

Wife of Former Sheriff Loses First Amendment Right-to-Intimate-Association Lawsuit Following Discharge From the Sheriff’s Department After Her Husband Resigned Because of Allegations of Sexual Harassment

The wife of a former Iowa county sheriff who worked in the sheriff’s department for 22 years as a jailer and a dispatcher was discharged by the new acting sheriff after her husband resigned following allegations by other dispatchers of sexual harassment. The acting sheriff stated that his reason for discharging her was that it would be unsettling to other employees who were witnesses against her husband and that it had nothing to do with her job performance.

She subsequently sued the county, alleging that her discharge violated her First Amendment right to intimate association. The federal trial court denied the county’s motion for summary judgement, ruling that the former employee’s marriage was the motivating factor in her discharge and that she had a right to proceed to trial. However, the U.S. Court of Appeals for the Eighth Circuit (covering North Dakota, South Dakota, Nebraska, Minnesota, Iowa, Missouri and Arkansas) reversed the decision, holding that the plaintiff had no right to a jury trial under the First Amendment.

The appeals court ruled that in order to succeed in a case alleging breach of a person’s right to intimate association, the plaintiff must show that the government substantially interfered with the plaintiff’s right to maintain a marital relationship by discouraging a marriage or making it practically impossible to continue a marriage.

The court concluded that while the former employee’s marriage was the motivating factor in the termination, it does not necessarily follow that the acting sheriff was trying in any way to interfere with her marriage. Instead, the court concluded that the acting sheriff was merely trying to avoid a hostile work environment for the remaining employees who had been witnesses against the plaintiff’s husband.

Fired Basketball Coach Seeks Court Intervention to Allow Him to Proceed With Arbitration While Also Pursuing Court-Related Discrimination Claims

The University of Connecticut’s former men’s basketball coach is seeking a court of appeals intervention and an injunction which will preclude the university from invoking a clause in the applicable collective bargaining agreement which allows the university to terminate arbitration proceedings when an employee elects to file and seek other court remedies (Ollie v. University of Connecticut (No. 3:18-cv-02070, notice of appeal 3/4/19)). A federal trial court rejected the coach’s request for relief.

The coach wants to be able to pursue both avenues of relief at the same time, and argues that by precluding him from doing so, the university diminishes his civil rights to fully vindicate his alleged discrimination claims.

University’s Former Research Director Loses First Amendment Retaliatory Discharge Case Where His Comments Were About the Research Center’s Finances and Its Need for More Space

A former research director at the University of North Dakota failed to convince the Eighth Circuit Court of Appeals (covering North Dakota, South Dakota, Nebraska, Minnesota, Iowa, Missouri and Arkansas) that the university violated his constitutional rights when it terminated him for comments he made about the research center’s budget, finances and need for more space (Groenewold v. Kelley (2018 BL 143529, 8th Cir., No. 16-4019, dismissed affirmed 4/2/18)).

The decision is consistent with federal court precedent holding that when a public employee’s alleged protected speech involves his or her job responsibilities, it is not protected by the First Amendment. The court also rejected the plaintiff’s allegations that he was denied due process, as the university sent him in advance of his termination a detailed explanation of the reasons for the action and provided him with opportunities both before and after his termination to contest it.

The plaintiff participated in the pre-termination hearing and partially in the post-termination hearing but stopped participating when the university rejected his demand that its president not be the one to make the final decision.

Second Circuit Court of Appeals Joins Three Other Appeals Courts in Holding Vocational School Students Are Not Entitled to Minimum Wage Under the FLSA as Long as Their Work Is Primarily Part of an Educational Program

The Second Circuit U.S. Court of Appeals (covering New York, Connecticut and Vermont) recently ruled that cosmetology students providing unpaid styling services during their beauty school training are not employees entitled to the minimum wage (Valarde v. GW GJ Inc. (2nd Cir., no. 17-330, 2/5/19)).

The court recognized that consumers paid a discounted price for the services performed by the unlicensed trainees/students and that the academy’s salon may turn a profit through the unpaid work. Nonetheless, the court concluded that educating the students and preparing them for the state licensure exam is the primary purpose of the arrangement and as such, they are not employees. The court held the same way in a case brought by interns recently who sued for minimum wage and handed down a six-factor test to apply in the vocational school context to determine whether the program is primarily educational.

Massage school students who brought a similar suit in Colorado against a for-profit school received a similar result in a case decided by the Tenth Circuit U.S. Court of Appeals (covering Utah, Wyoming, Colorado, New Mexico, Kansas and Oklahoma). While the Tenth Circuit applied a different analysis, it reached the same result, holding that the students were not employees for FLSA purposes because they were receiving vocational training which was required for their state licenses.

The Sixth Circuit (covering Michigan, Ohio, Kentucky and Tennessee) and the Seventh Circuit (covering Wisconsin, Illinois and Indiana) have reached similar conclusions that vocational students are not employees for purposes of the FLSA.


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