HR and the Courts – June 2022
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.
Supreme Court to Determine Scope of Highly Paid Executive Employee Exemption Under the Fair Labor Standards Act (FLSA)
The U.S. Supreme Court will review a 5th U.S. Circuit Court of Appeals decision in favor of an employee who was granted overtime status for his non-executive position that paid him $200,000 a year. This oil industry case will have application to all U.S. employers. The executive employee salary exemption threshold is currently $100,000 a year. At issue is whether compensation alone, absent executive/managerial status will exempt employees from the FLSA’s overtime requirements. The employee was a non-executive toolpusher on a drill rig and was paid $200,000 a year, twice the $100,000 executive salary exemption minimum.
There is a split in the circuit courts on this issue leaving the Supreme Court to decide the issue. The 6th and 8th Circuits have ruled that non-executive employees should not be exempt from the FLSA no matter how much money they make. The 1st and 2nd Circuits allow an exemption for these workers under the salary exemption test.
Women’s Basketball Coach Can Proceed With Title VII Sex Discrimination Lawsuit — Not Required to Arbitrate Discrimination Claims Under Her Employment Contract
A U.S. District Court judge rejected the University of Montana’s summary judgement motion to dismiss a sex discrimination lawsuit and enforce mandatory arbitration under its former women’s basketball coach’s employment contract. The sex discrimination claims related to her performance evaluations, criticisms, and decision not to renew her employment agreement. The employment agreement had a general arbitration clause which covered contract disputes. However the court pointed out that the arbitration clause did not mention sex discrimination or bias claims. Therefore, the court concluded that the arbitration clause lacked the “requisite precision” required by the 9th Circuit for an individual to waive their rights to pursue Title VII claims in court (Schweyen V. University of Montana-Missoula (2022 BL 156392, D. Mont No. 9:21-cv-00138, 5/5/22)).
The court concluded that the arbitration agreement, at most, was an agreement to arbitrate contract disputes as a basketball coach. The court pointed out that the clause did not mention giving up her right to file suit in court over non-contract issues such as sex bias.
Federal Court Enjoins EEOC and HHS From Requiring Christian Employers and Healthcare Providers to Cover Gender Transition Surgery
A U.S. District Court trial judge in North Dakota has barred the Equal Employment Opportunity Commission (EEOC) and the Department of Health and Human Services (HHS) from requiring Christian employers and healthcare providers, under either Title VII of the Civil Rights Act of 1964 or the Affordable Care Act, to cover the cost of or provide gender transition surgery. The judge granted the injunction requested by the plaintiff, the Christian Employers Alliance, to prevent the EEOC and the HHS from requiring the group’s members to provide gender transition surgery until the case is tried on the merits and it is decided whether such a requirement violates the Christian employers’ First Amendment rights or rights under the Religious Freedom Restoration Act of 1993 (Christian Employers Alliance V. The EEOC, et al (Case no. 1-21-cv-00195 D.N.D. 5/17/22)).
The judge concluded that the plaintiff businesses must either violate sincerely held religious beliefs or face monetary losses, fines or civil liability. The judge concluded that the plaintiff’s likelihood of prevailing at trial on the merits, “weighed significantly in favor of granting the injunction.” The judge also enjoined the EEOC and HHS from enforcing the requirement to plaintiff employers’ insurers and third party administrators.
Court of Appeals Reverses NLRB’s Decision Holding That the Employer’s “Back to the Salt Mine” Tweet Was an Unlawful Threat
The 3rd U.S. Circuit Court of Appeals recently reversed a National Labor Relations Board (NLRB) decision holding that the The Federalist magazine violated the National Labor Relations Act when, during the union’s organization campaign, the magazine’s publisher tweeted that if the magazine’s employees unionized he would send them “back to the salt mine.” The appeals court ruled that no reasonable employee could actually interpret the publicly available tweet as a veiled threat. The court concluded that Twitter posts are often exaggerated and sarcastic, as Twitter encourages such approaches.
The court also concluded that the publisher sent the tweet to 80,000 followers, which made it publicly available rather than directing it to the six magazine employees who were subject to the union organization drive.
