The Higher Ed Workplace Blog

HR and the Courts – Recent Rulings and Legislation

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:

Georgetown Becomes Fifth University to Prevail in ERISA Breach of Fiduciary Duty Allegations Concerning Pension Plan Administration

Georgetown University recently prevailed in a motion to dismiss an array of alleged Employee Retirement Income Security Act (ERISA) violations brought in federal district court in Washington, D.C. (Wilcox v. Georgetown University et al. (Case #1:18-cv-00422, D. Ct. DC, 1/8/19)). Georgetown joins New York University, Northwestern University, the University of Pennsylvania and Washington University, which also prevailed in similar cases brought in different federal district courts across the country.

About two dozen universities have been hit with similar lawsuits filed by the same law firm since July 2016. Two other institutions, the University of Chicago and Duke University, settled the suits filed against them. The rest of the lawsuits are pending in various stages of litigation.

Federal district court judge Rosemary M. Collyer, in dismissing the Georgetown lawsuit as meritless, recognized that “this type of lawsuit seems to have taken higher education by storm, with suits brought all over the country.” Judge Collyer rejected the plaintiff’s claim that Georgetown’s inclusion of mediocre-performing investment choices in its array of selections was a fiduciary violation, specifically holding that ERISA does not require fiduciaries to provide only the best-performing options in its array of investment options.

Regarding the allegation that the plan’s administrative recordkeeping fees were excessive, the judge concluded that the plaintiff failed to show how the fees could be lowered. The allegation that the pension plan provided too many investment alternatives was also dismissed as meritless.

Federal Courts Ran Out of Money to Operate on January 11 Due to Government Shutdown – Criminal Cases Continue, But Civil Cases Are Subject to Individual Court Decision on How They Proceed

The administrative office of the U.S. Courts reports that the money to run the court system ran out on January 11, 2019, because of the government shutdown. This means that non-essential workers at the 94 federal district courts and higher courts across the country may have to stay home as skeleton crews show up without pay to handle matters deemed essential under U.S. law, including many criminal cases. Individual judges and courts will determine if or how to proceed with pending civil cases, including hundreds if not thousands of civil employment law matters mostly including discrimination and disability claims lodged in federal courts throughout the country.

The U.S. court system statistics indicate that over 25,000 employment-related lawsuits are filed in federal courts across the nation annually. The statistics also show that approximately 1,945 appeals of employment-related lawsuits are handled annually by the federal appellate system.

University of North Texas Prevails in Jury Trial Brought by Former Philosophy Professor Alleging He Was Terminated in Retaliation for Participating in Title IX Investigation of His Own Allegedly Inappropriate Conduct

After three years of litigation, including multiple decisions of a federal trial court and U.S. court of appeals on aspects of the case, a jury found no merit in a former philosophy professor’s allegation of retaliatory discharge resulting from his participation and defense of himself in a Title IX investigation (Wilkerson v. University of North Texas (E.D. Tex., Case No., jury verdict, 12/13/18)).

The professor had been accused of having an inappropriate relationship with one of his graduate students and subsequently participated in a Title IX investigation conducted by the university, which concluded that he had not broken any university rules or policies. Nonetheless, the university terminated the professor’s teaching contract, citing “poor judgement.” He filed the lawsuit, which was whittled down by the federal court to include only his allegation that he was terminated in retaliation for his participation in the Title IX investigation. After a four-day trial, the jury concluded that the university did not retaliate against the professor and thus he was entitled to no damages.

Non-Tenured and Adjunct Professors at a Number of Florida Public Institutions Have Filed for Union Representation

The Service Employees International Union (SEIU) has reported that non-tenured professors, including adjunct professors, at seven Florida public colleges have filed petitions for union representation. The SEIU has reported that the applicable paperwork was submitted in December and includes adjunct faculty at Santa Fe College, St. Petersburg College, Lake Sumter College, Polk State College, Florida Gateway College, Chipola College and South Florida State College. Separately, in another state college system — the University of California — researchers voted to unionize and will be represented by the United Auto Workers.

Minimum Wage Increases in Many States and Cities Across the Country, and Federal Minimum Wage May Follow Suit

According to Bloomberg Law, there are at least 19 states and 20 cities and counties that raised minimum wage effective either December 31, 2018 or January 1, 2019. California has the most localities with minimum wage increases (nine cities or towns are raising minimum wage to between $12 and $15 per hour).

The federal minimum wage of $7.25 was last raised in 2009. House Democrats, who are now in the majority in the U.S. House, intend to introduce a bill raising the federal minimum wage to possibly as high as $15 an hour. Voters in four states — Arizona, Colorado, Maine and Washington — approved minimum wage increases in 2016 that will further raise minimum wages in those states this year.

Court of Appeals Affirms Dismissal of Sexual Harassment and Retaliatory Discharge Claims Based on “Overheard” Offensive Language Not Actually Directed at Plaintiff

The U.S. Court of Appeals for the Seventh Circuit (covering Illinois, Wisconsin and Indiana) recently affirmed the dismissal of sexual harassment and retaliatory discharge allegations brought by a former female sales representative which were based on inappropriate sexual banter at work which she overheard but was not part of any conversation in which she actually participated. The company defended her discharge based on unrebutted performance-based evidence (failure to follow directives and a pattern of late customer deliveries) which had nothing to do with her claims of sexual harassment (Swyear v. Fare Foods Corp. (2018 BL 478065, 7th Cir., No. 18-2108. 12/26/18)).

The plaintiff allegedly overheard sexual banter, including name calling, in the workplace, although none of it was directed at her (nor was she a participant in any of the conversations). The court concluded that the overheard comments were not severe enough and were too infrequent to be objectively offensive and did not constitute a hostile work environment. The court also rejected the plaintiff’s sexual harassment claim based on a male employee entering her hotel room and allegedly climbing into bed next to her when she testified that his actions were not forceful and she always had control of the situation.


The CUPA-HR national office will be closed July 4 in observance of Independence Day.