HR and the Courts — June 2023

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.

NLRB Issues a Formal Complaint Alleging College Football and Basketball Players Are Employees and Can Petition to Unionize 

The NLRB regional director in Los Angeles issued a long-awaited formal complaint alleging that the NCAA, Pac-12, and The University of Southern California all violated the National Labor Relations Act (NLRA) when they refused to treat college basketball and football players as employees under the NLRA. The regional director agreed with the legal conclusion the NLRB general counsel made last December and issued a formal complaint against the three parties. The NLRB regional director is alleging that all three entities are joint employers of these athletes and violated the NLRA by misclassifying them as “non-employee student athletes” (Univ. of Southern California (NLRB Reg Dir Case No. 31-CA-290326, complaint issued 5/18/23)).

If the NLRB ultimately prevails on all counts, the outcome could lead to unionization of college basketball and football players at both public and private college and universities in the U.S. While the NLRB has no jurisdiction over public institutions, it does have jurisdiction over the private NCAA and various private athletic conferences it alleges are joint employers of these athletes. Needless to say, this will be a heavily contested and lengthy litigation event.

U.S. Supreme Court Holds That Unions Can Be Held Liable in State Court for Intentional Destruction of Employer Property During a Strike

In an 8-1 decision, the U.S. Supreme Court held that the Teamsters Union could be held liable for intentional destruction of  employer property during a strike and that the victimized employer could sue the union in state court alleging such intentional infliction of damages (Glacier Northwest Inc. v. Teamsters Local 174 (U.S. No. 21-1449, 6/1/23)). The case had been dismissed under the long-held Supreme Court decision in the Garmon case, holding that the National Labor Relations Act (NLRA) preempted state court litigation against labor unions.

The Supreme Court created a narrow exception to Garmon’s federal preemption, holding that, “far from taking reasonable precautions to mitigate foreseeable danger to employer property … the union executed the strike designed to compromise the safety of the employer’s trucks and product.” The court concluded that such union conduct is not even arguably protected by the NLRA.

Here the union called a strike of concrete truck drivers and intentionally instructed the drivers to return their trucks, loaded with concrete, to the employer rather than complete the delivery. This resulted in the concrete hardening in the trucks, leading to the destruction of trucks and concrete product.”

EEOC Publishes Updated Guidance on the End of the COVID-19 Public Health Emergency 

On May 15, the EEOC updated its technical assistance entitled “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.” The updated guidance covers a variety of issues related to the end of the public health emergency. While the publication notes that some pandemic-related reasonable accommodations may cease, accommodations for employees with long COVID may continue to be necessary. The guidance contains tips to help employers avoid COVID-related harassment of applicants or employees who need to take precautions because of a disability.

University Prevails on First Amendment Grounds in Defamation Action Brought by Former Professor

A Louisiana state appeals court dismissed a defamation action brought by a former professor against the university as a result of the student newspaper publishing allegedly defamatory statements concerning the professor. The student newspaper articles concerned racism allegations. The court of appeals dismissed the case, holding that the newspaper articles constituted speech on matters of public interest protected by the First Amendment. The court also noted that the articles concerned “a high profile individual” (Duhe v. Loyola University of New Orleans (La. Ct. App. 5th Cir. No. 22-C-292, 5/30/23)).

State-Based Initiatives Restricting or Banning DEI Policies Have Passed or Are in the Legislative Pipeline in More Than 12 States — State-Based Legal Challenges Likely to Ensue

Florida and North Dakota have become the first states to restrict DEI programs and/or training at public higher ed institutions. Arizona, Tennessee and more than 12 other states are considering such measures. It is likely that these initiatives will be subject to continuing litigation in multiple states. Faculty unions at some public, state-based systems may argue that these restrictions violate existing collective-bargaining provisions. The state of the law in this area is rapidly changing and subject to different turns depending on how different state courts deal with these issues prospectively. We will continue to follow state law developments and will keep CUPA-HR members apprised in this monthly column.

University Defeats Transgender Detective’s Sex Bias, Promotion Lawsuit — Failure to Identify a Similarly Situated Non-Protected-Class Employee 

A judge in the U.S. District Court for the Southern District of Florida recently dismissed a Title VII claim filed by a transgender detective alleging sex discrimination under Title VII for failure of the university  to promote. The federal judge dismissed the case, concluding that the plaintiff failed to identify a similarly situated non-protected-class employee who was treated more favorably (Ponce v. Florida Atlantic University Board of Trustees (2023 BL 162924, S.D. Fla. No. 9:22-cv-81546, 5/12/23)).

The judge dismissed the lawsuit without prejudice to the plaintiff refiling the lawsuit to appropriately allege a similarly situated non-protected-class employee who was treated more favorably.

State Laws Requiring Pay Ranges to be Part of Job Postings and Ads Are Growing 

New York, California, Washington and Colorado have already enacted laws requiring pay ranges to be listed in job postings and ads. Specifics should be discussed with local counsel in those jurisdictions.

Illinois, Michigan, Oregon, New Jersey, Connecticut, Rhode Island, Massachusetts and Hawaii  have bills either pending in the state legislature or before the governor awaiting signature. Specifics vary by state, but the trend is to force employers to be more transparent in job postings and ads.

Public University Registered to Do Business Out of State Is Subject to Out-of-State Sex-Harassment Litigation — Sovereign Immunity Defense Rejected

The U.S. Supreme Court has denied the petition by a public university located in Alabama to appeal the divided decision of the North Carolina Supreme Court which allowed the university to be subject to a sex-harassment suit filed in North Carolina (Troy University V. Farmer (U.S. No.  22-787, cert denied, 5/30/23)).

The Supreme Court denied the university’s appeal of the adverse decision of the North Carolina Supreme Court, which held that the university’s registration to do business in North Carolina and its operation of an office for commercial activities in Fayetteville, North Carolina, was enough to subject it to the jurisdiction of the North Carolina courts. Specifically, the North Carolina court held that the agreement that the university signed, which allowed it to do business in the state, contained an agreement to sue and be sued in the state. The North Carolina court held that this waived the university’s sovereign immunity.