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.

National College Players Association Files Unfair Labor Practice Charges Against the NCAA and Multiple Public and Private Colleges, Asserting College Basketball and Football Players Are Employees Under the NLRA

The National College Players Association (NCPA), a non-profit advocacy group, has filed unfair labor practice charges with the National Labor Relations Board (NLRB) asserting that private and public universities, USC and UCLA, as well as the National Collegiate Athletic Association (NCAA) and the Pac-12 conference as joint employers have violated the National Labor Relations Act (NLRA) in refusing to treat college basketball and football players as employees. The NCPA hopes to convince the NLRB to rule that all division college basketball and football players at public and private colleges and universities are employees with collective bargaining rights.

The current NLRB general counsel has stated publicly that she believes that student-athletes at private colleges and universities are employees subject to coverage under the NLRB. Nonetheless, the NLRB with jurisdiction over private colleges and universities has not yet ruled on the issue. The NCPA asserts that public colleges and universities will be covered because they are joint employers with the NCAA and the Pac-12 conference, both of which are private organizations subject to NLRB jurisdiction. This joint employer argument has not been ruled on by the NLRB in the past.

U.S. Court of Appeals to Consider Whether Student-Athletes Are Employees Under the FLSA and Must Be Paid Minimum Wage and Overtime 

Apart from the action described above concerning whether student-athletes are employees under the NLRA and therefore subject to unionization and mandatory collective bargaining, the U.S. Court of Appeals for the Third Circuit (covering Pennsylvania, New Jersey, Delaware and Maryland) will hear an appeal by colleges that the lawsuit by student-athletes seeking coverage under the Fair Labor Standards Act (FLSA) and minimum wage and overtime payments should not go to trial, but rather should be dismissed under current precedent. The lawsuit was filed in Pennsylvania against the NCAA and several Division-I colleges.

The federal trial court judge denied the NCAA’s and college’s motion for summary judgment and ordered that the case proceed to trial. The NCAA and colleges argued that the trial court judge’s decision contradicted the decision of the Seventh Circuit Court of Appeals (covering Wisconsin, Illinois and Indiana) and a California state court case ruling that the student-athletes are not employees under the FLSA (Johnson et, al v. NCAA et al (3rd Cir., Case no. 22-8003, 2/4/22)).

Gymnastics Coach Claims Gender Bias and Sex Stereotype That Female Coaches Are Not Expected to Be As Aggressive as Their Male Counterparts as Reasons For Her Termination  

A former Towson University gymnastics coach was terminated after the university received complaints from gymnastics team members claiming that her coaching techniques were discriminatory against Black team members, that she bullied team members into competing while injured and that she did not adequately feed the team. The coach claimed that the termination resulted from the sex stereotype that female coaches are not expected to be as aggressive as their male counterparts.

The university countered that her discharge resulted from valid complaints by team members. The university also argued that it is the coach who is guilty of sex stereotyping with regard to her defense that female athletes are more likely to complain about her coaching practices than male athletes. The university also responded to the coach’s claim of pregnancy discrimination, arguing that the coach never explicitly advised the university that she was pregnant. The coach claimed that she was visibly pregnant at her last meeting with the university. The case is pending in federal district court in Maryland (May v. Towson University (Case no. 1:21-cv-02229, D. Md.)).

Federal Court Rules School District Likely Violated Constitutional Rights of Three Paraprofessionals Who Were Prohibited From Wearing Black Lives Matter and Other Anti-Racism Messaging 

A federal district court trial judge ruled in favor of three paraprofessional employees who were prohibited by their school district from wearing masks and other clothing with Black Lives Matter and other anti-racism messaging. The judge ruled that the school board’s actions “likely” violated First Amendment free speech rights (Fuller et al v. Warren County Educational Service Center et al (2022 BL 48702, S.D. Ohio 2/14/22)).

The judge ruled that the school district must immediately lift its ban on any such controversial social or political messaging while the case is litigated further. The judge ruled that the employees’ messaging addresses a matter of public concern and they “spoke” as private citizens by making statements on Black Lives Matter and other related issues that are not within their job duties. The judge concluded that the school district did not demonstrate that the wearing of the material would disrupt school operations. While avoiding an emotional or violent outburst by a sensitive student body would justify the ban, the school district did not prove the likelihood of such a development. The judge also concluded that there was no evidence supporting the school district’s concerns, making them purely conjectural and outweighed by the free speech rights of the employees.

Professor Files ADA and Rehab Act Discrimination Case Alleging His Heightened COVID-19 Risk Is a Disability and He Was Unfairly Denied a Reasonable Accommodation to Continue Teaching Remotely

A former science professor at Georgia Military College sued the college’s board of directors in federal court after he was put on an unpaid suspension and ultimately terminated following the alleged denial of his accommodation request that would allow him to teach his classes remotely based on his doctor’s advice that he was of high risk for COVID-19 because of numerous conditions, including Crohn’s disease, kidney failure and anemia. The professor asked that he be allowed to continue teaching remotely as he had allegedly done for six months before the college asked most professors to resume teaching in person. The professor alleges that other professors were allowed to continue teaching remotely in small class situations, but he was denied his request because his class was very large due to the popularity of his teaching (Fields v. Board of Trustees of Georgia Military College and Georgia Military Prep School (M. Dist. Ga. 5-22-cv-00074)).

The professor claimed that he was a former recipient of a teaching excellence award at the school and was treated “dismissively” in his denial of his accommodation request. He also claims he was allowed to teach remotely due to his disabilities in 2016, prior to the pandemic, and that is when he received the teaching excellence award. The college claimed it responded to his accommodation request by offering him two alternatives: return to teaching in person or take an unpaid leave of absence. The professor is seeking back pay, loss of employment benefits and three to five years of front pay. The professor claims job reinstatement is not feasible in these circumstances.