Cases & Developments - National Association of College and University Attorneys

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Date:
11/7/2023
MOU between the NLRB and OSHA on Interagency Cooperation and Coordination (Oct. 31, 2023)
Memorandum of Understanding (MOU) between the National Labor Relations Board (NLRB) and the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) to facilitate interagency cooperation and coordination. The MOU establishes “a process for information sharing and referrals, training, and outreach between the agencies” aimed at enhancing enforcement of the National Labor Relations Act and the Occupational Safety and Health Act. The agencies also co-released a resource on Building Safe & Healthy Workplaces that Promote Worker Voice to provide guidance to employers and employees on establishing collaborative safety and health programs in the workplace.
Topics:
Collective Bargaining | Compliance & Risk Management | Faculty & Staff
Date:
11/7/2023
NLRB GC Memo re: Guidance on the NLRB’s Decision in Cemex (Nov. 2, 2023)
Memorandum from the General Counsel (GC) of the National Labor Relations Board (NLRB) re: Guidance in Response to Inquiries about the Board’s Decision in Cemex Construction Materials Pacific, LLC. In the memo, the NLRB General Counsel reviews the framework adopted by the Board in its recent Cemex decision for resolving questions concerning employee representation and offers guidance on the process by which the Board will review charges of unfair labor practices while a representation question is pending to determine whether to issue a remedial bargaining order. The memo also notes situations in which an employer may forfeit or waive its option to seek a Board-conducted election that are not addressed by the Cemex decision.
Topics:
Collective Bargaining | Faculty & Staff
Date:
10/27/2023
Medina v. Univ. of Utah (10th Cir. Oct. 19, 2023)
Order and Judgment affirming dismissal. Plaintiff, the director of BioKids, the University of Utah School of Biological Sciences (SBS) childcare center, brought procedural due process, contract, and state-law retaliation claims against the SBS Director and the University after her employment was (1) terminated through a Reduction in Force (RIF) when the School transferred management of BioKids to the University’s Center for Child & Family Resources as operational needs changed during the coronavirus pandemic, and then (2) reinstated when the arrangement expired. In affirming summary judgment in favor of the University, the Tenth Circuit held that plaintiff waived her procedural due process claim by not exercising her appeal rights under the University’s RIF policy. Her breach of contract claim failed because the RIF policy under which she was terminated was itself a part of her employment contract with the University. Her state-law retaliation claim failed because (1) rather than expressing concern that a planned expansion in BioKids’ capacity would violate state licensing requirements she succeeded in securing a variance from the Utah Department of Health to maintain the center’s compliance, and (2) she pointed to no evidence suggesting that she made a good faith report to the University that she anticipated any regulatory violation.
Topics:
Constitutional Issues | Contracts | Due Process | Employment Separation, RIFs, ERIPs & Retrenchment | Faculty & Staff
Date:
10/27/2023
NLRB Final Rule on Standard for Determining Joint Employer Status (Oct. 27, 2023)
National Labor Relations Board (NLRB) Final Rule on the 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. The Final Rule becomes effective on December 26, 2023.
Topics:
Collective Bargaining | Faculty & Staff
Date:
10/27/2023
DHS NPRM on H-1B Requirements and F-1 Flexibility (Oct. 23, 2023)
U.S. Department of Homeland Security Notice of Proposed Rulemaking (NPRM) Modernizing H-1B Requirements, Providing Flexibility in the F-1 Program, and Program Improvements Affecting Other Nonimmigrant Workers. The proposed regulations would “streamline requirements for the H-1B program by: (1) revising the regulatory definition and criteria for a ‘specialty occupation’; (2) clarifying that ‘normally’ does not mean ‘always’ within the criteria for a specialty occupation; and (3) clarifying that a position may allow a range of degrees, although there must be a direct relationship between the required degree field(s) and the duties of the position.” The regulations would also “change the definition of ‘nonprofit research organization’ and ‘governmental research organization’ by replacing ‘primarily engaged’ and ‘primary mission’ to ‘fundamental activity’ to permit a nonprofit entity or governmental research organization that conducts research as a fundamental activity … to meet the definition of a nonprofit research entity.” They would also provide greater flexibility with automatic extension for F-1 visa holders who seek to change their status to H-1B.
Topics:
Faculty & Staff | Immigration | International Students
Date:
10/13/2023
ACE Letter to DOL Requesting an Extension of the Comment Period for the Proposed Overtime Rule (Oct. 12, 2023)
Letter from the American Council on Education (ACE) and 30 other higher education associations to the Department of Labor requesting a 60-day extension of the comment period for the Notice of Proposed Rulemaking (NPRM) on overtime exemptions. The letter cited the need to gather data and fully assess the potential impact of the proposed rule, noting the potentially disruptive challenges in “absorbing the increased costs that come with much higher salaries for exempt employees; expanded overtime payments; implementing effective monitoring of remote work, which vastly expanded since the last increase; and other costs and disruptions from transitioning traditionally exempt employees into nonexempt status.”
Topics:
Faculty & Staff | Fair Labor Standards Act (FLSA) & Categorization of Employees
Date:
10/6/2023
Waesche v. Embry-Riddle Aeronautical Univ. (D. Ariz. Sep. 29, 2023)
Order granting Defendant’s Motion for Summary Judgment. Plaintiff, a former full-time, non-tenured Instructor of Russian Language at Embry-Riddle Aeronautical University, brought contract and discrimination claims against the University after it declined to renew her contract citing low enrollments. A Faculty Grievance Committee recommended extending her full-time status because her termination letter was signed by the wrong person and issued prior to her annual evaluation, though it found no evidence that her non-renewal was discriminatory, arbitrary, or capricious. In granting summary judgment to the University, the court found that plaintiff could not establish damages because her assertion that her contract would have been renewed if the University had completed her faculty evaluation was speculative. Plaintiff’s discrimination claim failed for lack of evidence that any similarly situated comparators were treated more favorably.
Topics:
Discrimination, Accommodation, & Diversity | Employee Discipline & Due Process | Faculty & Staff | Race and National Origin Discrimination
Date:
9/29/2023
Bird v. Bd. of Regents of the Univ. Sys. of Ga. (M.D. Ga. Sep. 26, 2023)
Order granting Defendant’s Motion for Summary Judgment. Plaintiff, a former University Dual Enrollment Director, brought Title VII and IX claims for a sexually hostile work environment and retaliation, as well as claims under Georgia’s Whistleblower Act. Plaintiff alleged that after she refused a hug from her supervisor in February of 2019, she was subject to a written reprimand, and her position was pretextually eliminated through a Reduction in Force (RIF) in November of 2020. The University asserted that plaintiff was reprimanded for sending a controversial programmatic email to external constituents, which upset University business partners and required presidential involvement to resolve, and that her position was eliminated due to COVID-era cost saving efforts at a period with low programmatic enrollment. In granting summary judgment to the University the court found that a single hug was insufficiently severe and/or pervasive, that the reprimand was not materially adverse as it resulted in no reduction in compensation, and that even if the latter were adverse that there was no casual between either the reprimand or the RIF, since plaintiff did not file an internal complaint until after she received notice of the RIF in July of 2020. The court declined to exercise pendant jurisdiction over the Whistleblower claim.
Topics:
Discrimination, Accommodation, & Diversity | Employment Separation, RIFs, ERIPs & Retrenchment | Faculty & Staff | Retaliation | Sex Discrimination | Sex Discrimination in Employment
Date:
9/22/2023
Jackson v. Wright (5th Cir. Sep. 15, 2023)
Opinion affirming denial of Defendants’ Motion to Dismiss. Plaintiff, a professor of music theory at the University of North Texas (UNT), is a leading scholar on the Austrian music theorist Heinrich Schenker. He is also director of the Center for Schenkerian Studies and founding editor of the Journal of Schenkerian Studies, both of which are housed at and supported by UNT. After plaintiff contributed an article that proved controversial to a symposium in the Journal defending Schenker against charges of racism, University officials investigated the Journal’s editorial practices, removed plaintiff as editor, and suspended the Journal’s activities pending a national search for a new editor. Plaintiff brought First Amendment retaliation claims against the UNT Regents in their individual capacities, alleging an ongoing violation of his First Amendment rights and seeking declaratory and injunctive relief. In affirming denial of the Regents’ Rule 12(b)(1) motion to dismiss, the Fifth Circuit held that plaintiff’s claim against the Regents properly sought only prospective relief and that he had sufficiently alleged an ongoing violation that was fairly traceable to the Regents.
Topics:
Academic Freedom & Employee Speech | Constitutional Issues | Discrimination, Accommodation, & Diversity | Faculty & Staff | First Amendment & Free Speech | Retaliation
Date:
9/15/2023
Texas v. United States (S.D. Tex. Sep. 13, 2023)
Memorandum and Order granting the Plaintiff States’ Motion for Summary Judgment. In 2018, Plaintiffs, Texas and eight other States, challenged the 2012 Memorandum from the Secretary of the Department of Homeland Security (DHS) creating the Deferred Action for Childhood Arrivals (DACA) program. The court held that the Memorandum violated the Administrative Procedure Act (APA) both procedurally for lack of notice and comment rulemaking and substantively by exceeding the statutory authority under the Immigration and Nationality Act (INA). While on appeal with the Fifth Circuit, DHS promulgated a Final Rule enacting DACA through notice and comment rulemaking. Though the Fifth Circuit affirmed the legality of the 2012 Memorandum, it remanded for review limited to whether, in light of the administrative record, the Final Rule was materially different from the 2012 Memorandum. On this limited remand, the court granted the States’ Motion for Summary Judgment, holding that there were no material differences and that its prior analysis of the 2012 Memorandum applies equally to the Final Rule.
Topics:
Deferred Action for Childhood Arrivals (DACA) and Temporary Protected Status (TPS) | Employment of Foreign Nationals | Faculty & Staff

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