The Higher Ed Workplace Blog

HR and the Courts

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:

Many U.S. Federal and State Courts Cancelling Jury Trials Due to Surges in Positive COVID-19 Cases

Bloomberg News reports that courts across the U.S. are shutting their doors again due to rising COVID-19 cases. State and federal courts in Texas, New York, Maryland, New Mexico and Illinois (and elsewhere) have suspended jury trials. At the beginning of the pandemic, most courts halted most operations, but as health conditions improved, courts began resuming operations, including virtual hearings and the like. The rising tide of infections has slowed and reversed the reopening process in many jurisdictions.

The nation’s federal courts have had a varied response to continuing ongoing operations as each federal court is empowered to make an individual decision. Jury trials, especially lengthy ones, are especially risky as there is a likelihood of having to declare a mistrial if one juror gets infected, which could potentially impact remaining jurors. In addition, it is increasingly difficult to find jurors willing to sit in close quarters during the pandemic. According to the administrative office of the U.S. Courts, more than 25 federal trial courts have cancelled or extended orders cancelling jury trials in the past few weeks.

OSHA Issues Clarification That Cloth Masks Are Not Personal Protective Equipment

In November, the Department of Labor (DOL) clarified that cloth masks do not meet Occupational Safety and Health Administration (OSHA)’s legal standards to be considered Personal Protective Equipment (PPE). The DOL clarification came after the Center for Disease Control issued a statement earlier the same month that some cloth coverings have the potential to provide benefits consistent with PPE. Nonetheless, OSHA said in its statement that it continues to encourage workers to wear masks when in close contact with others to reduce the risk of spreading COVID-19.

The DOL concluded that there is not enough current information about the efficacy of cloth masks protecting against COVID-19 to say that they meet OSHA’s legal standard for PPE. Typically, PPE must meet the DOL’s consensus standards for design and construction.

Court of Appeals Considers Reinstatement Remedy for Fired Transgender Professor After Favorable Supreme Court Decision Protecting LGBT Workers From Discrimination

The U.S. Court of Appeals for the 10th Circuit (covering Utah, Wyoming, Colorado, New Mexico, Kansas and Oklahoma) considered reinstatement as an appropriate remedy following the U.S. Supreme Court decision in Bostock v. Clayton County Georgia, which secured anti-discrimination rights for LGBT workers.

The trial court ruled in favor of the plaintiff professor but denied reinstatement and granted only front pay. The plaintiff appealed, requesting reinstatement and enhanced damages. The 19th Circuit recently conducted oral arguments over the issues (Tudor v. Southeastern Oklahoma State University (10th Cir., 18-06102)). Presumably, the trial court denied reinstatement because of the alleged hostility it would create. We will follow the case and report the decision in a later HR and the Courts blog post.

EEOC Collects Record Amount in Monetary Damages for Charging-Party Employees in the Last Fiscal Year While Number of Actual Litigated Cases Drops

The U.S. Equal Employment Opportunity Commission (EEOC) recently announced that it collected a record $535.4 million in its last fiscal year even though it has filed the fewest lawsuits in two decades. The announcement was part of the EEOC’s annual financial report. Aggrieved charging parties are alleging employment discrimination.

The EEOC’s total monetary recoveries came from judicial and jury awards, settlements, mediation and conciliation. EEOC lawsuits accounted for a total of $106 million, which is the highest annual amount collected through litigation in 15 years.

Bloomberg Law Reports a Surge in National Security Enforcement Actions Filed By the Department of Justice Against U.S. Professors With Academic Ties to China

Bloomberg law reported in a recent Daily Labor Report that there has been a surge in national-security-related enforcement actions filed by the U.S. Department of Justice against professors at U.S. universities who have ties with China. The enforcement is intended to combat intellectual property theft, economic espionage and other national security threats to the U.S.

Commentators conclude that given this increase in enforcement actions, universities should enumerate clear disclosure policies and procedures for researchers governing sources of foreign funding and collaboration. Universities are best advised to develop resources to comply with various U.S. regulatory requirements surrounding foreign funding sources.

Employer Not Liable For Injuries Incurred By Employee Resulting From a Coworker Assault

An employee injured on the job as the result of a coworker assault cannot sue his employer because the applicable state workers’ compensation statute (Virginia) is the exclusive remedy for on-the-job employee injuries and the employer is immune to other litigation (Workagegnehu v. WMATA (DC Cir, No. 19-7029, 11/24/20)). The court rejected the plaintiff’s argument that the injuries did not arise out of the employee’s job as they clearly occurred while the plaintiff was at work and were inflicted by a coworker.

The fact that the coworker’s actions may have been criminal did not change the outcome under the Virginia statute. The fact that other state workers’ compensation laws may exempt workplace violence or criminal activity from coverage does not affect this case, as the Virginia statute does not have that exemption. Employers are advised to check their individual state workers’ compensation laws if faced with a similar circumstance.


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