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  • Date:

    Chamber of Commerce v. National Labor Relations Board (E.D. Tex. Mar. 8, 2024)

    Opinion and Order granting Plaintiffs’ Motion for Summary Judgment and vacating the NLRB’s 2023 Final Rule, Standard for Determining Joint Employer Status. Plaintiffs, the U.S. Chamber of Commerce and other business organizations, challenged the National Labor Relations Board’s 2023 Final Rule establishing a new standard for determining when two entities may be treated as joint employers under the National Labor Relations Act. Subsections of that Rule enumerate seven “essential terms and conditions of employment” and provide that it is sufficient to establish an entity’s status as a joint employer if it (1) possess “the authority to control one or more essential terms and conditions of employment,” even if that authority is reserved and not exercised, or (2) exercises “the power to control indirectly (including through an intermediary) one or more essential terms and conditions of employment.” The court held that those provisions are inconsistent with the common-law agency principles incorporated in the National Labor Relations Act and, accordingly, exceed the limits of the Board’s regulatory authority. The court then found the Board’s reasoning in its 2023 rulemaking for rescinding the 2020 version of the regulation was arbitrary and capricious and ruled that the 2020 Final Rule will remain in place.   

    Topics:

    Collective Bargaining | Faculty & Staff

  • Date:

    Ng v. Fairleigh Dickinson Univ. (N.J. Super. App. Div. Feb. 16, 2024)

    Opinion affirming summary judgment in favor of the University. Plaintiff, a former tenured professor at Fairleigh Dickinson University, alleged that the University did not follow the procedures in its faculty handbook when it terminated him after it gave him multiple opportunities to correct unprofessional behavior that was documented in 46 student complaints between 2009 and 2017. In affirming summary judgment in favor of the University, the Appellate Division found that the Law Division did not err in applying an administrative agency arbitrary, capricious, and unreasonable standard of review, noting the deference New Jersey courts accord to the internal procedures and decisions of universities. It further found sufficient credible evidence in the record to support the University’s decision and declined to substitute its judgment for that of the University’s Board.   

    Topics:

    Faculty & Staff | Tenure

  • Date:

    Univ. of S. Fla. Bd. of Trs. v. United States (Fed. Cir. Feb. 9, 2024)

    Opinion affirming summary judgment in favor of the U.S. Government. Plaintiff, the University of South Florida (USF), sued the United States, alleging infringement of its patent entitled “Transgenic Mice Expressing APPK670N,M671L and a Mutant Presenilin Transgenes,” for mice used in studying Alzheimer’s Disease and other neurogenerative disorder, by allowing a third party to use and manufacture the mice, which were developed, in large part, by USF researchers. At issue was whether research, which had been delegated to USF researchers by two former USF professors who moved to the Mayo Clinic (Mayo) in December 1996, was supported by a grant awarded to Mayo by the National Institute on Aging, thereby entitling the Government to a license to practice the patent under the Bayh-Dole Act. USF urged that Bayh-Dole is not triggered since the invention was reduced to practice in April 1997, but Mayo did not execute its subcontract with USF to pay for the work under the NIH grant until November 1997. In affirming summary judgment in favor of the U.S. Government, the Federal Circuit upheld the Government’s right to the invention, noting that “against the well-known background of the Bayh-Dole Act Regime” USF accepted funding under the grant that was designated for past-work. The court found this consistent with the “statutory policy to ‘ensure that the Government obtains sufficient rights to federally supported inventions’” and noted that it is common for research work to continue without interruption with the expectation that it will be covered by a subsequent grant award.  

    Topics:

    Faculty & Staff | Intellectual Property | Technology | Technology Transfer

  • Date:

    In re: Trs. of Dartmouth Coll. (N.L.R.B. Region No. 1 Feb. 5, 2024)

    Decision and Direction of Election from the National Labor Relations Board (NLRB) Region 1 Director re: the Dartmouth College men’s varsity basketball team. Service Employees International Union, Local 560, which represents some College employees, petitioned the NLRB to represent “a bargaining unit comprised of the approximately fifteen students enrolled at Dartmouth who comprise the men’s varsity basketball team.” The Regional Director found that “because Dartmouth has the right to control the work performed by the men’s varsity basketball team, and because the players perform that work in exchange for compensation, the petitioned for basketball players are employees within the meaning of the [National Labor Relations] Act,” and directed that the NLRB will conduct an election on whether they wish to be represented by the petitioner for collective bargaining purposes.   

    Topics:

    Collective Bargaining | Faculty & Staff | Fair Labor Standards Act (FLSA) & Categorization of Employees | Student Athlete Issues | Students

  • Date:

    U.S. Dep.’t of Homeland Security Final Rule on Improving H-1B Registration Selection Process (Feb. 2, 2024)

    U.S. Department of Homeland Security Final Rule on Improving the H-1B Registration Selection Process and Program Integrity. This Rule implements a beneficiary centric selection process for H-1B registrations whereby each beneficiary will enter the selection process only once without regard to the number of registrations submitted on their behalf. The Rule also provides flexibility on the start date for certain H-1B cap-subject petitions and implements additional integrity measures such as the beneficiary’s valid passport or travel document information for each registration.   

    Topics:

    Employment of Foreign Nationals | Faculty & Staff

  • Date:

    Yao v. Oakland Univ. (6th Cir. Jan. 19, 2024) (unpub.)

    Opinion affirming summary judgment in favor of the University. Plaintiff, a former tenure-track assistant professor of nursing at Oakland University who is of Chinese national origin, brought discrimination and retaliation claims against the University after it cited her lack of peer-reviewed publications in denying her tenure. In affirming summary judgment in favor of the University on her discrimination claim, the Sixth Circuit found that plaintiff was not similarly situated to her closest comparator because the comparator had one published article and one designated at the “revise and resubmit” stage, whereas plaintiff only had one co-authored article published. In affirming summary judgment in favor of the University on her retaliation claim, the Sixth Circuit noted that plaintiff filed the claim she asserted as protected activity a month after the University notified her that her employment would end.   

    Topics:

    Discrimination, Accommodation, & Diversity | Faculty & Staff | Race and National Origin Discrimination | Retaliation | Tenure

  • Date:

    Haltigan v. Drake (N.D. Cal. Jan. 12, 2024)

    Order granting Defendants’ Motion to Dismiss. Plaintiff holds a Ph.D. in psychology and is seeking employment in postsecondary psychology departments across the country. He brought First Amendment unconstitutional conditions and viewpoint discrimination claims against the University of California, Santa Cruz, challenging its Advancing Faculty Diversity program and the requirement that candidates submit a diversity statement for consideration for open faculty positions. He alleged that he did not apply for an open position because it would require him “to alter his behavior and remain silent … or recant his views to conform to the dictates of the University administration.” In granting defendant’s motion to dismiss for lack of standing, the court held that plaintiff’s bare statement that he “desires a position at the University” was insufficient to allege that he was “able and ready” to apply in order to establish competitor standing. The court further found that plaintiff had alleged insufficient facts to show that his application would be futile.   

    Topics:

    Constitutional Issues | Diversity in Employment | Faculty & Staff | First Amendment & Free Speech

  • Date:

    U.S. Dep.’t of Labor Final Rule on Employee and Independent Contractor Classification (Jan. 10, 2024)

    U.S. Department of Labor Final Rule on Employee or Independent Contractor Classification Under the Fair Labor Standards Act. The “final rule returns to a totality-of-the-circumstances analysis of the economic reality test in which the factors do not have a predetermined weight and are considered in view of the economic reality of the whole activity.” The rule identifies six non-exclusive factors to be considered: (1) the opportunity for profit or loss depending on managerial skill, (2) investments by the worker and the potential employer, (3) the degree of permanence of the work relationships, (4) the nature and degree of the employer’s control, (5) the extent to which the work performed is an integral part of the employer’s business, and (6) the extent and nature of the worker’s skill and initiative. The Final Rule becomes effective on March 11, 2024.   

    Topics:

    Faculty & Staff | Fair Labor Standards Act (FLSA) & Categorization of Employees

  • Date:

    Iowa Individual Health Benefit Reinsurance Ass’n v. State Univ. of Iowa, et al. (Iowa Dec. 29, 2023)

    Opinion affirming-in-part, reversing-in-part, and remanding. In 1995, Iowa’s Individual Health Insurance Market Reform Act established the Iowa Individual Health Benefit Reinsurance Association (IIHBRA). The Act required that “all persons that provide health benefit plans in the state” be members of IIHBRA and authorized IIHBRA to assess its members, based on information they provided about premiums and losses, in order to equalize its members’ gains and losses. The University of Iowa, Iowa State University, and the University of Northern Iowa, which provided self-funded health benefit plans for their employees, contended they were not members and declined to pay IIHBRA’s assessments. Following a protracted procedural history, a bench trial awarded damages for unpaid assessments to IIHBRA, and the Universities appealed. In affirming the trial court, the Supreme Court of Iowa held that the Universities’ statutory interpretation that limited IIHBRA membership to entities enumerated as examples in the text is unduly restrictive. It further held that because the assessments were primary obligations of the Universities and did not impose suretyship for other entities, the Act did not violate the Iowa Constitution as applied to the Universities. The court affirmed the denial of attorney fees and costs but reversed and remanded with instructions to award 5% late payment fees to IIHBRA.   

    Topics:

    Employee Benefits | Faculty & Staff | Health Care & Insurance

  • Date:

    ACE Comment Letter to DHS on Proposed Rule to Modernize the H-1B and Other Visa Processes (Dec. 22, 2023)

    Comment Letter from the American Council on Education (ACE) and 19 other higher education associations to the Department of Homeland Security (DHS) on its NPRM “Modernizing H-1B Requirements, Providing Flexibility in the F-1 Program, and Program Improvements Affecting Other Nonimmigrant Workers.” The letter expresses support for multiple provisions of the NPRM, including those that would shift to a beneficiary-centric lottery system in the H-1B registration process, codify the current deference policy that requires consideration of prior determinations when there have been no material changes that would adversely impact an application, provide greater flexibility for graduating students seeking to move from Optional Practical Training into an H-1B position, and eliminating the requirement that applicants provide an itinerary if their work or training will occur in more than one location. The letter expresses concern about a proposed change to the definition and process for determining when a position involves a “specialty occupation,” noting that it would limit the potential pool of applicants for many faculty positions (such as in engineering programs) for which required specialization need not be in a specifically identified subspecialty. 

    Topics:

    Employment of Foreign Nationals | Faculty & Staff | Immigration | International Students

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