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.
Appeals Court Rules That Employer’s Mental Health EAP Referral May Have Been an Adverse Action Under the ADA
The 10th U.S. Circuit Court of Appeals (covering Colorado, Kansas, New Mexico, Oklahoma, Utah and Wyoming) reversed a federal trial court’s dismissal of a plaintiff’s case alleging that an employer’s referral of the plaintiff to an EAP for mental health issues violated the ADA as an adverse employment action. The appeals court remanded the case for further consideration (Scheer v. Sisters of Charity Leavenworth Health System (10th Cir. No. 24- 01055, 7/21/25)). The trial court had dismissed the case, concluding that any adverse employment action under these circumstances was not significant.
The Court of Appeals reversed the dismissal, holding that workers need only show “some harm” to establish an adverse employment action under the new standard laid out by the Supreme Court in the Muldrow v. City of St. Louis case. The appeals court recognized that the trial court ruled correctly at the time but that the new standard laid out by the Supreme Court in the Muldrow case requires that the trial court look at the matter again.
President Trump Issues Executive Order Addressing Student-Athlete NIL Payments, Calling on Federal Agencies To Address Situation
A new presidential executive order was issued on July 24, 2025, asking federal agencies to preserve women’s athletic scholarships and scholarships for non-revenue producing sports. The order asks the Department of Labor and the National Labor Relations Board to clarify the status of student-athletes. The order seeks to prohibit third parties from paying student-athletes directly, although it does not specifically address brands making payments. The president also instructed the Department of Justice and the Federal Trade Commission to seek ways to protect student-athletes and universities from anti-trust and legal challenges.
There is an indication that White House aides will consult with Olympic and Paralympic teams on their development programs. There were reports that the president was considering appointing a presidential commission to study the student-athlete situation, but those plans have stalled in light of the possible congressional action addressing the situation. Learn more.
Federal Court Certifies Class Action Brought by College Tennis Players Suing the NCAA for Anti-Trust Violations in Limiting Competition Prize Money
In a related action, a federal court judge has certified a new class of college tennis players raising anti-trust claims in a lawsuit against the NCAA. The lawsuit alleges that NCAA rules unlawfully restrict the amount of prize money college tennis players can earn in non-NCAA tournaments, forcing them to forfeit winnings or lose their eligibility to compete in collegiate and NCAA events. The claims were initially raised by a female tennis player at the University of North Carolina at Chapel Hill but have been joined by additional players who claim to have been harmed by the NCAA’s restrictive rules as they apply to tennis competition. The initial lawsuit included other sports but has been narrowed to include only tennis players.
The claimants allege that they have been forced to forfeit thousands of dollars in winnings or lose their NCAA status and ability to play college tennis. The federal judge ordered that the class be certified and that the litigation should proceed to trial (Brantmeier v. NCAA (M.D.N.C. No. 1:24-cv-00298, 7/28/25)).
Appeals Court Dismisses Professor’s National Origin Discrimination and Retaliation Claims
The 5th U.S. Circuit Court of Appeals, covering Louisiana, Mississippi and Texas, affirmed the dismissal of a Texas professor’s national origin and retaliation claims, concluding that the professor offered no evidence of a non-minority professor treated any better, and that the one-year gap between settling a prior lawsuit and the university’s denial of his summer teaching request was too great a time frame to support a retaliation claim (Narayanan v. Midwestern State University (No. 24-10848, unpublished, 8/5/25)).
The professor had been successful in a prior appeal in 2023.
Federal Courts Adopt a New Standard on Deferring to Mandatory Arbitration
In the wake of the Supreme Court’s unanimous 2022 decision in Morgan v. Sundance, in which the court abandoned the old deferral to arbitration rule requiring the party opposing deferral to show prejudice, the federal courts are focusing on a new standard. The federal courts are focusing on the party asking for dismissal and deferral to arbitration (usually the employer) to show that it did not proceed with the litigation in discovery and motion practice and later decide to invoke an arbitration agreement.
The federal court rulings of late serve as a warning to employers to invoke the deferral to arbitration motion as soon as possible in litigation rather than proceeding to discovery, and then attempting to invoke the mandatory arbitration argument. Asserting this argument at the outset of litigation allows employers to avoid the negative conclusion that they are asserting the deferral action as a litigation tactic, rather than the argument that mandatory arbitration is in both parties’ interest in terms of cost, efficiency and length of time to dispute resolution.
NLRB on Path to Quorum With Two Trump Administration Appointees Submitted to Senate for Confirmation – Immediate Precedential Change Unlikely
Private colleges and universities are subject to NLRB jurisdiction with regard to applicability of federal labor management law, NLRB decisions on alleged unfair labor practice allegations, and NLRB-administered union certification elections. The five-member NLRB has been without a three-member quorum to act since early in the Trump administration. President Trump has now nominated two individuals, Scott Mayer, labor counsel to Boeing, and James Murphy, former NLRB career attorney, to join Democratic-appointed Chair Marvin Kaplan. Once approved by the Senate, this will give the NLRB a quorum to act and go forward with certification of union elections and hearing unfair labor practice cases. Nonetheless, the NLRB will still be two short of it five-member complement.
Commentators conclude that the NLRB may not be in a position to reverse labor-friendly decisions it rendered during the prior presidential administration when Democratic members were in the majority because of a long-standing NLRB tradition of not reversing precedent with less than three votes of the five-member board. We will follow developments at the NLRB as they unfold.
Because of the unprecedented and fast-changing pronouncements of the new presidential administration and the intervening court challenges, the developments contained in this blog post are subject to change. Before acting on the legal issues discussed here, please consult your college or university counsel and, as always, act with caution.