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:

Education Industry Consulting Firm Blackboard Inc. Hit With Gender Pay Discrimination Collective Action Lawsuit Brought by Former Employees

Education industry consulting firm Blackboard Inc. was hit with a nationwide collective action lawsuit claiming that it discriminated against women under the Equal Pay Act in paying women in the K-12 sales division less than men for the same jobs and responsibilities. The lawsuit was filed by two former female sales employees who worked from their respective homes in Arkansas and Illinois. They have asked a federal court judge to certify a collective action lawsuit which would include all past and current female K-12 salespeople who worked there over the previous three years. Three years is the applicable look-back period under the federal Equal Pay Act (McMechen v. Blackboard Inc. (E.D. Ark. No. 3:18-cv-00218, complaint filed, 11/14/18)).

The lawsuit alleges that Blackboard used a variety of different titles for the same work to justify pay differential. The company responded by saying that it investigated the allegations when they first arose and found no substantiation of them and indicated it would vigorously defend the lawsuit.

Falsifying Wage Records to Make Them Appear to Be Minimum-Wage-Compliant Can Lead to a Jail Sentence

A Kansas restaurant owner who admitted that he did not pay minimum wage or overtime but falsified records indicating that he did will serve 10 months in prison. The prosecution came at the federal level by the U.S. Department of Labor, although many states are now cracking down on parallel state wage-and-hour falsifications (U.S. v. Linn (D. Kan. 2:17-cr-20001, sentenced 11/13/18)).

The allegations included a practice under which the defendant paid certain workers appropriate minimum and overtime wages to create the appropriate records and then required that they return the money to him. He initially defended the actions, claiming “sloppy bookkeeping.” In addition to serving jail time, the defendant was required to pay all employees the minimum wage and overtime wages that he failed to pay.

Federal Court Rules That County HR Director Can Be Sued Individually for Alleged FMLA Violations, But Federal Circuits Split on Issue

A federal district court judge in Wisconsin recently ruled in favor of allowing a county HR director to be sued individually for an alleged violation of the Family and Medical Leave Act (FMLA) where a sheriff’s deputy was ordered back to work by the HR director even though the deputy claimed to be on lawful FMLA leave. The judge observed that the 7th Circuit Court of Appeals (including Wisconsin, Illinois and Indiana) in which his court sits has never ruled on the issue (Hemenway v. Rock City (2018 BL 427414, W.D. Wis., No. 18-cv-307, 11/19/18)).

The judge recognized that the plain language of the FMLA allows HR directors to be sued under its broad definition of “employer.” The FMLA defines “employer” as any person who acts in the interest of the employer. The judge also observed that three federal circuit courts of appeals have already ruled this way in favor of allowing HR directors to be sued, including the Third Circuit (including Pennsylvania, New Jersey and Delaware); Fifth Circuit (including Texas, Louisiana and Mississippi); and Eighth Circuit (including North Dakota, South Dakota, Nebraska, Minnesota, Iowa, Missouri and Arkansas).

The judge recognized that two circuits (the Sixth Circuit, including Michigan, Ohio, Kentucky and Tennessee, and the Eleventh Circuit, including Alabama, Georgia and Florida) have ruled against allowing HR directors to be sued under the FMLA.

Business School Professor Loses First Amendment Retaliatory Discharge Claim Raising Personal Grievances

The Second Circuit U.S. Court of Appeals (covering New York, Connecticut, Vermont and New Hampshire) recently affirmed the dismissal of a business school professor’s First Amendment retaliatory discharge lawsuit,  holding that a First Amendment claim must raise broad public purpose issues, not just an airing of personal grievances, in order to move forward (Weinstein v. University of Connecticut (2018 BL 445706, 2nd Cir., No. 17-3839, unpublished, 12/4/18)).

The professor argued that he complained, among other things, about his supervisor’s nepotism and that nepotism for a public institution is a matter of public concern. He also complained about labor issues and again argued that for a public institution to commit labor violations is a matter of public concern. He argued that his complaints are therefore protected under the First Amendment and that the university’s failure to continue his contract is a retaliatory violation of his First Amendment rights to raise these issues.

The appeals court rejected all of the professor’s arguments, holding that his complaints arose during a time that changes were being made to an academic program and his own reappointment as a professor. Therefore, the complaints were much more of a personal nature as opposed to the broader public purpose required by the First Amendment. The court pointed out that the professor’s speech was focused on the private matter of his employment, which the court underlined is not a matter of public concern.

Federal Appeals Court Rules Against the EEOC, Holding That Rejection of a Religious-Based Accommodation Request Is Not Grounds for a Retaliatory Discharge Claim

The U.S. Court of Appeals for the Eighth Circuit recently rejected the position of the Equal Employment Opportunity Commission (EEOC) in dismissing a religious accommodation retaliatory discharge case. The court held that unlike the Americans with Disabilities Act, a request for a religious accommodation under Title VII is not necessarily protected activity and therefore not necessary grounds upon which to base a retaliatory discharge claim (EEOC v. North Memorial Healthcare (8th Cir., No. 17-2926, 11/13/18)).

The case involved a job applicant who was of the Seventh Day Adventist religion and who after receiving a job offer but before starting work requested the religious accommodation of taking Friday evenings off. The hospital denied the request and withdrew the job offer because the applicant could not perform a job requirement that all other nurses were required to perform. The hospital responded that the collective bargaining agreement requires all nurses to work every other weekend and that this requirement had been explained to the plaintiff at the beginning of the hiring process.

The EEOC took the position that a request for a religious accommodation is always protected activity and grounds for retaliatory discharge without any other evidence. The appeals court rejected this view, holding that without more evidence of religious discrimination, the simple rejection of an accommodation request by itself is not sufficient to raise a claim of unlawful religious discrimination. Amicus briefs were filed by multiple religious groups and the American Civil Liberties Union. The holding will likely be appealed to the Supreme Court.