HR and the Courts: Recent Rulings on Class-Action Pension Litigation, First Amendment Free Speech, Anxiety as a Disability Under the ADA and More

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:

University of Pennsylvania Wins ERISA Class-Action Lawsuit
The University of Pennsylvania received a complete victory in a class-action ERISA lawsuit when a federal district court judge granted its motion for summary judgement dismissing all ERISA claims, including all the fiduciary violation and recordkeeping allegations. The case brought against the university was almost identical to the ones brought against more than a dozen other institutions. With this ruling, Penn becomes the first university to have all allegations dismissed (Sweda v. University of Pennsylvania (ED Pa. No. 2:16 cv-04329-GEKP, 9/21/17)).

The lawsuit challenged that the university’s retirement plan fees were excessive; that its multiple investment options which were confusing and a violation of fiduciary responsibility; and that its use of multiple recordkeepers was expensive, confusing and in violation of its fiduciary responsibility.

While this is the first case to be totally dismissed, judges in cases involving Duke, Columbia, Emory, MIT and Princeton have issued partial dismissals while leaving some of the allegations standing for further litigation. Judges are still yet to rule at all in cases involving Yale, Vanderbilt, Johns Hopkins, Cornell and others.

In the Penn case, the judge cited favorable appeals court precedent in the Third Circuit in dismissing the case in its entirety. In dismissing one of the more novel claims in the lawsuit, (that the university offered too many investment options), the judge pointed out that the plaintiffs failed to identify any employee who was confused. The judge also concluded, regarding multiple recordkeepers, that it was perfectly reasonable for the university to put two vendors in its plan as part of distinct service bundles that came with the two entities’ recordkeeping services.

Restrictive State Public Employee Bargaining Statutes May Be Spreading Following the Iowa Mandate That Public Employees Recertify Their Union Before Bargaining Commences
The controversial Iowa statute limiting collective bargaining in that state for public employees to wages only also requires that each union be recertified by a majority vote of all bargaining unit members before bargaining can commence. Prior to this statute, the standard rule required only a majority of those voting to certify a union. Under the new statute, the certification requires a majority of those eligible to vote.

The Iowa law is similar to one in Wisconsin which requires every public employee union to be recertified each year. Commentators state that such statutes, which are difficult to pass, may spread to other states, especially right-to-work states and states that are cash strapped and have a difficult time dealing with continued and expensive union demands.

Court Rules That Overbroad Ban on Police Officers Speaking to “Any Non-Departmental and Non-Law Enforcement Entity or Person” About Police Matters Violates First Amendment
A court of appeals recently found that a Nevada Highway Patrol policy which constitutes a complete ban on any “communication” with non-departmental or non-law enforcement persons or entities violated the plaintiff’s First Amendment rights when he chose to speak critically about the department’s canine program. The court also ruled that the police officer is entitled to damages (Moonin v. Tice (2017 BL 293545, 9th Cir., No 15-16571, 8/22/17)). The court ruled that the ban was overbroad and not tailored to allow any speech whatsoever, and therefore could not stand First Amendment scrutiny.

Plaintiff Alleges “Anxiety Associated With Panic Attacks” Is a Disability Covered by the ADA and That Her Discharge With No Attempt at an Accommodation Violates the ADA
A hotel worker sued her employer after she was discharged following a panic attack at work which led her to be taken from work to the hospital by ambulance. The plaintiff was fired two days after the incident and told that “she should step down and take care of her health.” She was also told that “she needed to quit because having a panic attack in front of guests could not be tolerated.”

She filed suit in federal court, alleging that the employer discriminated against her in violation of the Americans with Disabilities Act (ADA). The plaintiff also alleges that because her employer fired her without even attempting to determine whether an appropriate accommodation could be made, the employer further violated the ADA (Skinner-Jones v. Merriville Lodging Inc. (N.D. of Ind., No. 2:17-cv-00340, complaint filed 8/21/17)). Additionally, the plaintiff alleges that if her condition is not a disability covered by the ADA, her employer fired her because it “perceived her to be disabled,” which is also a violation of the ADA.

Supreme Court Hears Argument Whether an Employer Can Require That Employees Must Waive the Right to Class Actions in Return for Requiring Arbitration of Individual Claims
The U.S. Supreme Court heard oral argument on October 2 in three combined cases where the issue is whether an employer can require that employees waive their right to class action and require employees to arbitrate their disputes on a solo basis. The Fifth Circuit ruled in a recent case that an employer can make such a requirement without violating the National Labor Relations Act (NLRA). The Seventh and Ninth Circuit disagreed, and ruled in similar cases that when an employer makes such a requirement, it violates employees’ right to “concerted activity” guaranteed them under the NLRA.