Cases & Developments - National Association of College and University Attorneys

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Latest Cases & Developments

Date:
4/26/2024
FTC Final Rule on Non-Compete Clauses (Apr. 23, 2024)
Federal Trade Commission (FTC) Final Rule on Non-Complete Clauses. The Non-Compete Clause Rule provides that it is an unfair method of competition under the Federal Trade Commission Act to enter into non-compete clauses with workers after the rule’s effective date. The rule provides that current non-competes may remain in force for senior executives but that non-competes with other workers are not enforceable after the effective date. The Final Rule will be effective 120 days after publication in the Federal Register.
Topics:
Contracts | Faculty & Staff
Date:
4/19/2024
Settlement Agreement between DOJ and The Washington Univ. (Apr. 16, 2024)
Settlement Agreement between the U.S. Department of Justice, Civil Rights Division, Immigrant and Employee Rights (IER) Section and The Washington University. The Agreement resolves IER’s investigation of its reasonable cause belief that individuals at The Washington University School of Medicine allegedly discriminated against an individual granted asylum status by questioning him about his immigration status, work authorization documentation, and right to work after he had satisfied Form I-9 requirements, and then retaliated against him by terminating his employment after he complained of the treatment. The Agreement, which is effective for two years, provides that the University will pay civil penalties and backpay to the complainant, revise its employment policies, train all I-9 personnel on unfair immigration-related employment practices, and be subject to reporting and monitoring for the term of the agreement.
Topics:
Employment of Foreign Nationals | Faculty & Staff
Date:
4/12/2024
NLRB GC Memo re: Securing Full Remedies for All Victims of Unlawful Conduct (Apr. 8, 2024)
Memorandum from the General Counsel (GC) of the National Labor Relations Board (NLRB) on Securing Full Remedies for All Victims of Unlawful Conduct. The memo offers guidance to Regional Directors to “seek full make-whole remedies for all employees harmed as a result of an unlawful work rule or contract term, regardless of whether those employees are identified during the course of the unfair labor practice investigation.” It notes, “[t]he remedy of mere recission of an overbroad, unlawfully promulgated, or unlawfully applied rule or contract term does not expunge discipline imposed under those unlawful provisions or retract related legal enforcement action, and thus fails to make impacted employees whole.” If further advises that in seeking settlements, Regions should seek information about which employees, if any, were disciplined or subject to legal enforcement actions to include them in settlement agreements or urge the Board to ensure that all such employees receive make-whole relief.
Topics:
Collective Bargaining | Faculty & Staff
Date:
4/5/2024
Swender v. Garden City Cmty. Coll. (D. Kan. Mar. 29, 2024)
Memorandum and Order granting-in-part and denying-in-part Defendants’ Motions to Dismiss. Plaintiff, a former president of Garden City Community College, brought contract and tort claims against the College and its outside counsel after a controversy involving a student protest at a Board of Trustees’ meeting led to the end of plaintiff’s formal employment relationship with the College. Following the Board meeting, on the advice of the College and outside counsel, plaintiff issued the students a No Trespass Order that was lifted when the students sued. After plaintiff and the College entered into a Separation Agreement, the College categorized him as an independent consultant in order to satisfy the “Continued Employment” clause of his original Employment Contract, which provided that he should still receive his full salary and benefits for the full term of his contract even if he ceased to be president. As an independent consultant, however, he was no longer eligible for certain retirement benefits. In permitting plaintiff’s contract claim to proceed against the College, the court found he had sufficiently alleged that the Separation Agreement incorporated the terms of the Employment Contract by reference, including its “Continued Employment” clause. It rejected the College’s Release Clause affirmative defense, finding that the clause released the College from claims arising from actions taken up to the time of the Settlement Agreement and that the alleged miscategorization occurred afterwards. The court found plaintiff’s malpractice claims against the College and its outside counsel related to their advice to issue the No Trespass Order were time-barred.
Topics:
Contracts | Employment Separation, RIFs, ERIPs & Retrenchment | Faculty & Staff | Governance | Governing Boards & Administrators
Date:
3/29/2024
Gardner v. Kutztown Univ. (E.D. Pa. Mar. 27, 2024)
Memorandum granting-in-part and denying-in-part Plaintiff’s Motion for Partial Summary Judgment and Defendants’ Motions for Summary Judgment. Plaintiff, a tenured associate professor at Kutztown University who takes immunosuppressive medications to reduce the risk of permanent blindness from an incurable eye condition, brought discrimination and retaliation claims against the University and multiple officials after they denied her request for a remote work accommodation for Fall 2021 in favor of a blanket policy that any change to course modality would present an undue hardship to the University. The court granted summary judgment to the plaintiff on her intentional discrimination, failure to accommodate, and interference claims, finding no evidence in the record that the University considered plaintiff’s individual circumstances in applying the preferred blanket policy. The court granted summary judgment in favor of the University on plaintiff’s retaliation claims, finding no reasonable jury could conclude that the University’s requirement that plaintiff submit additional medical documentation after she filed her suit was so severe as to dissuade an objectively reasonable employee from requesting an accommodation.
Topics:
Campus Police, Safety, & Crisis Management | Coronavirus | Disability Discrimination | Discrimination, Accommodation, & Diversity | Faculty & Staff | Retaliation
Date:
3/29/2024
Zow v. Bd. of Governors of the Univ. of N.C. (E.D. N.C. Mar. 26, 2024)
Order granting-in-part and denying-in-part Defendants’ Motion to Dismiss. Plaintiff, a former Chief of Staff to the Chancellor and Assistant Secretary to the Board at North Carolina Central University, brought First Amendment retaliation and other claims against the University after he was terminated in October 2021 for failure to comply with a requirement that unvaccinated employees who travel domestically self-quarantine and test negative for COVID-19 before returning to work. Plaintiff alleged that his termination was in retaliation for his participation on the University’s COVID-19 Operations Continuity Committee where he opposed the mandatory vaccination policy that was eventually adopted. In dismissing his First Amendment retaliation claim, the court found that plaintiff’s opposition to the proposed policy, which included his belief that the policy would violate federal and state laws, was not protected activity because it occurred during the normal course of his ordinary duties; and moreover, plaintiff claimed that in response to his concerns his supervisor paused adoption of the policy to seek further legal review. The court dismissed his ADA retaliation claim as untimely and declined to exercise supplemental jurisdiction over his state-law claims.
Topics:
Campus Police, Safety, & Crisis Management | Constitutional Issues | Coronavirus | Discrimination, Accommodation, & Diversity | Faculty & Staff | First Amendment & Free Speech | Retaliation
Date:
3/29/2024
Sloan-Brown v. Meharry Med. Coll. (M.D. Tenn. Mar. 26, 2024)
Memorandum Opinion granting-in-part and denying-in-part Defendant’s Motion for Summary Judgment. Plaintiff, a former lab coordinator at Meharry Medical College, brought discrimination and retaliation claims against the College after she was terminated for alleged insubordination and unsatisfactory performance. The court granted summary judgment to the College on plaintiff’s Equal Pay Act claim after rejecting portions of two affidavits, finding affiants failed to articulate any basis for personal knowledge supporting their conclusory assertion that plaintiff and a male comparator with a different job description actually performed the same work. In denying summary judgment on her retaliation claims, the court found that although it was undisputed that her 2017 complaint with the EEOC lacked temporal proximity to her December 2019 termination, there was a material question as to whether plaintiff had made other complaints to College personnel after July 2019. Plaintiff abandoned her Title VII discrimination claim.
Topics:
Discrimination, Accommodation, & Diversity | Faculty & Staff | Retaliation | Sex Discrimination | Sex Discrimination in Employment
Date:
3/22/2024
Wortis v. Trs. of Tufts Coll. (Mass. Mar. 14, 2024)
Opinion affirming-in-part and reversing-in-part summary judgment in favor of the University. Plaintiffs, eight tenured faculty at Tufts University School of Medicine (TUSM), brought contract claims against the University when it reduced their salaries, full-time status, and lab space after they purportedly failed to meet the requirements of TUSM’s 2016, 2017, and 2019 compensation and lab space policies. The trial court granted summary judgment in favor of the University, concluding that the compensation and lab space policies did not violate the academic freedom or economic security provisions of the University’s tenure documents. In reversing and remanding with respect to the compensation policies, the Supreme Judicial Court of Massachusetts found that the meaning of the “economic security” provisions in the tenure documents is ambiguous and that “more evidence is required regarding the customs and practices and reasonable expectations related to salary and full-time status for tenured professors at TUSM, and even other universities and medical schools, to resolve the question whether the significant reductions … violated the economic security provided in the tenure documents.” It affirmed summary judgment in favor of the University on plaintiffs’ claims regarding lab space, finding statements on academic freedom and economic security insufficient to support the claim that lab space was guaranteed.
Topics:
Contracts | Faculty & Staff | Grants, Contracts, & Sponsored Research | Tenure
Date:
3/22/2024
Goldstein v. Prof’l Staff Congress/CUNY (2nd Cir. Mar. 18, 2024)
Opinion affirming dismissal. Plaintiffs are six full-time instructional staff members at the City University of New York (CUNY) who resigned from the Professional Staff Congress (PSC) of CUNY (their state-mandated exclusive bargaining representative) as they “vehemently disagree” with its political activity related to Israel and Palestine and believe it unfairly prioritizes the interest of part-time instructors over theirs. Plaintiffs brought First Amendment claims against PSC, CUNY, and the City of New York, challenging provisions of a New York state law (1) requiring that a union certified as the exclusive bargaining unit of public employees be the exclusive bargaining representative even for non-union employees and (2) limiting that union’s duty of fair representation to collective bargaining, thus permitting it to decline to represent non-members in individual disciplinary proceedings. The Second Circuit affirmed dismissal of the challenge to the exclusive bargaining provision, finding “the First Amendment does not guarantee public employees the right to engage in collective bargaining with their employer.” The court also upheld the limitation on the union’s duty of fair representation to collective bargaining, reasoning that while Janus v. AFSCME, 585 U.S. 878 (U.S. 2018) rejected mandatory payment of union fees by non-members, it allowed that unions could choose to offset financial burdens by declining to represent non-union employees in collateral proceedings.
Topics:
Collective Bargaining | Constitutional Issues | Faculty & Staff | First Amendment & Free Speech
Date:
3/15/2024
ACE Statement to House Subcommittees on the NLRB’s Decision on Student-Athletes (Mar. 12, 2024)
Statement from the American Council on Education and five other higher education associations to a joint congressional hearing titled “Safeguarding Student-Athletes from NLRB Misclassification” conducted by subcommittees of the House Health, Employment, Labor, and Pensions and Education and Workforce Development committees on the National Labor Relation Board’s decision to recast collegiate student-athletes as employees. The statement foregrounds that “[t]he vast majority of college and university athletic programs are not revenue generating enterprises for their institutions” and identifies potential consequences of recategorizing student-athletes as employees for both institutions that might need to eliminate fiscally unsustainable teams and aspiring collegiate athletes who might not have the opportunity to participate in intercollegiate athletics.
Topics:
Collective Bargaining | Faculty & Staff | Student Athlete Issues | Students

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