Cases & Developments - National Association of College and University Attorneys

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Date:
12/15/2023
NLRB GC Memo re: Updated Election Representation Case Procedures (Dec. 8, 2023)
Guidance Memorandum from the General Counsel (GC) of the National Labor Relations Board (NLRB) on the 2023 Updated Representation Case Procedures. The memo offers guidance on the implementation of the 2023 Final Rule on Representation Case Procedures, which goes into effect on December 26, 2023. The memo describes how the 2023 Rule differs from the 2019 Rule and the ways in which the new rule will “meaningfully reduce the time from petition filing to election and expedite the resolution of any post-election litigation.”
Topics:
Collective Bargaining | Faculty & Staff
Date:
12/15/2023
Dennison v. Ind. Univ. of Pa. (3rd Cir. Dec. 12, 2023)
Opinion affirming summary judgment in favor of the University. Plaintiff, a former Executive Director of Housing, Residential Living and Dining at Indiana University of Pennsylvania, brought discrimination and First Amendment retaliation claims against the University and University officials after she was first demoted to Director of Residence Life and then had her position eliminated with staff reductions at the onset of the coronavirus pandemic. Plaintiff alleged that she was terminated for unilaterally implementing a contactless checkout process when the University closed its residential facilities in March 2020. In affirming summary judgment in favor of the University on her First Amendment retaliation claim, the Third Circuit held that plaintiff’s speech defending her decision to implement the checkout process was not protected because it was pursuant to her duties as a University employee. Her sex discrimination claim failed because she should not show that the University’s decision in favor of flatter, streamlined organization in her demotion was pretextual and because her responsibilities were given to another woman. Her age discrimination claim similarly failed because she was unable to show that the University’s preference for efficiency or her supervisor’s ultimate loss of confidence in her leadership were pretextual.
Topics:
Age Discrimination | Discrimination, Accommodation, & Diversity | Employment Separation, RIFs, ERIPs & Retrenchment | Faculty & Staff | Retaliation | Sex Discrimination | Sex Discrimination in Employment
Date:
12/15/2023
Khlafa v. Or. Health & Sci. Univ. (D. Or. Dec. 12, 2023)
Order granting-in-part and denying-in-part Defendants’ Motion for Summary Judgment. Plaintiff, a former information specialist at the Oregon Health and Science University (OHSU), proceeding pro se, brought age and other discrimination claims against OHSU after he signed a Separation Agreement, which included a broad Mutual Release of All Claims, ending his employment the following day. The court permitted plaintiff to proceed in his age discrimination claim because the Separation Agreement did not provide plaintiff with a 21-day period to consider the agreement or a 7-day period to revoke after execution as required for a knowing and voluntary release under the ADEA as amended by the Older Workers Benefit Protection Act (OWBPA). It granted summary judgment to OHSU on his other discrimination claims because he provided no evidence to support his claim that he signed the Separation Agreement under duress, noting, in particular, that he was represented by counsel at the time.
Topics:
Age Discrimination | Discrimination, Accommodation, & Diversity | Employment Separation, RIFs, ERIPs & Retrenchment | Faculty & Staff
Date:
12/8/2023
Cohen v. Bd. of Trs. of Univ. of Dist. of Columbia (D. D.C. Dec. 5, 2023)
Memorandum Opinion granting Defendants’ Motion for Summary Judgment. Plaintiff, a former professor at the University of the District of Columbia, brought a due process claim against University officials after he was terminated for failing to submit a required cumulative evaluation portfolio. Under the collective bargaining agreement, after an appeal to the University President plaintiff was permitted to file a grievance with the Union, though the Union was not obligated to arbitrate the case. Plaintiff, however, did not file a grievance after his appeal was denied. In granting summary judgment in favor of the University defendants on plaintiff’s due process claim, the court found that the procedures outlined in the collective bargaining agreement provided an adequate post-deprivation opportunity to be heard and that plaintiff had not otherwise identified any necessary additional procedural safeguards.
Topics:
Collective Bargaining | Constitutional Issues | Due Process | Faculty & Staff
Date:
12/8/2023
U.S. Dep.’t of Labor Regulatory Agenda for Spring 2023—FLSA (Dec. 6, 2023)
U.S. Department of Labor Uniform Regulatory Agenda for Fall 2023. The filing indicates that the Department’s Wage and Hour Division plans to issue a Final Rule on Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales, and Computer Employees in April 2024.
Topics:
Faculty & Staff | Fair Labor Standards Act (FLSA) & Categorization of Employees
Date:
11/24/2023
Update: NLRB Final Rule on Standard for Determining Joint Employer Status (Nov. 22, 2023)
National Labor Relations Board (NLRB) Final Rule on Standard for Determining Joint Employer Status. Under the new standard, an entity may be considered a joint employer if each entity has an employment relationship with the employee and if the entities share or codetermine one or more of the employee’s essential terms and conditions of employment, defined as “(1) wages, benefits, and other compensation; (2) hours of work and scheduling; (3) the assignment of duties to be performed; (4) the supervision of the performance of duties; (5) work rules and directions governing the manner, means, and methods of the performance of duties and the grounds for discipline; (6) the tenure of employment, including hiring and discharge; and (7) working conditions related to safety and health of employees.” The NLRB also released a Fact Sheet on the Final Rule. Update: On November 22, 2023, the NLRB published a Notice in the Federal Register delaying the effective date of the regulation to February 26, 2024 “to facilitate resolution of legal challenges with respect to the rule.”
Topics:
Collective Bargaining | Faculty & Staff
Date:
11/24/2023
Underwood v. Cuyahoga Community College (Ohio App. Nov. 20, 2023)
Opinion affirming summary judgment in favor of the College. Plaintiff, a former manager of plant operations at Cuyahoga Community College, brought contract and wrongful termination claims against the College after he was terminated for engaging in multiple inappropriate deals with College vendors, including for a $50,000 personal loan and the installation of cabinetry in his vacation home in the U.S. Virgin Islands, in violation of Ohio Ethics Laws and the College’s Code of Conduct. In affirming summary judgment in favor of the College on plaintiff’s breach of contract claim, the Court of Appeals of Ohio found that plaintiff’s letter of appointment made clear that he was an at-will employee and that plaintiff failed to raise an issue of material fact as to whether he was terminated for good cause or whether the college had paid him all sums due in his final paycheck. The court also affirmed summary judgment in favor of the College on plaintiff’s claim that he was wrongfully terminated in violation of public policy in retaliation for his 2018 report of theft from the College’s metal recycling program, noting that his contract was renewed again in 2019 before his termination in 2020.
Topics:
Employee Discipline & Due Process | Faculty & Staff
Date:
11/17/2023
CUPA-HR Comment Letter to DOL re: NPRM on Overtime Exemptions (Nov. 7, 2023)
Comment Letter from the College and University Professional Association for Human Resources (CUPA-HR) the American Council on Education (ACE) and 47 other higher education organizations on the Department of Labor’s (DOL) Notice of Proposed Rulemaking (NPRM) on Overtime Exemptions. Through the letter, the organizations recommend that the DOL should not update the salary threshold for overtime exemption so soon after its 2020 update, that it should lower the proposed minimum threshold and consider room and board within employee’s total salary for considering whether an employee meets the minimum salary threshold, that it should not implement automatic updates to the salary threshold, and that it should extend the effective date of any final rule from 60 days after its publication to 180 days after publication.
Topics:
Faculty & Staff | Fair Labor Standards Act (FLSA) & Categorization of Employees
Date:
11/10/2023
Pepper v. Brown Univ. (D. R.I. Nov. 2, 2023)
Memorandum and Order granting Defendants’ Motion for Summary Judgment. Plaintiff, pro se, a former food service employee at Brown University who was diagnosed with ADHD, which he asserted included sensitivity to sounds and hypervigilance, brought disability discrimination and retaliation claims against the University after he was fired for violently assaulting a co-worker. The co-worker admitted to managers that he had previously antagonized plaintiff by sneaking up on him and making loud noises. Prior to the unprovoked assault, the University admonished the co-worker, took steps to limit his interactions with plaintiff, and began a process to find plaintiff a new work location on campus. In granting summary judgment to the University on his hostile work environment claim, the court found that plaintiff offered no evidence of disability-based discriminatory animus, noting that the co-worked had no knowledge of plaintiff’s ADHD. Turning to his failure to accommodate claim, the court found that (1) plaintiff had produced insufficient evidence that his ADHD caused a substantial limitation of a major life activity; (2) he was not an otherwise qualified individual because compliance with the University’s Workplace Violence Policy was an essential job function; and (3) the University took steps to stop the inappropriate behavior and provided him with information on the accommodations process, but that plaintiff himself had not yet provided necessary documentation. Plaintiff’s retaliation claim failed because he provided no evidence of continued harassment after he initially complained to managers about the co-worker’s behavior.
Topics:
Disability Discrimination | Discrimination, Accommodation, & Diversity | Employee Discipline & Due Process | Faculty & Staff | Retaliation
Date:
11/10/2023
Duke-Koelfgen v. Alamo Colleges Dist. (W.D. Tex. Nov. 1, 2023)
Memorandum Opinion and Order granting Defendant’s Motion for Summary Judgment. Plaintiff, a tenured Associate Professor of composition and literature at San Antonio College, brought First Amendment claims against the College and individual officials after she was twice disciplined for unprofessional communications related to emails she sent demanding that students be permitted to use scholarship funds to take her class even though it was outside of their degree plans and criticizing officials who had requested volunteers to cover classes for an instructor who was ill. In granting the College’s motion for summary judgment, the court found that the speech in plaintiff’s emails was not protected by the First Amendment because it occurred when she was performing duties within the scope of her job responsibilities, noting that she sent the messages to College administrators in her capacity as an Associate Professor addressing College procedures.
Topics:
Constitutional Issues | Employee Discipline & Due Process | Faculty & Staff | First Amendment & Free Speech

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