Cases & Developments - National Association of College and University Attorneys

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Date:
9/15/2023
Gray v. Bd. of Trs. of the Ga. Military Coll. (M.D. Ga. Sep. 13, 2023)
Order granting Defendant’s Motion for Summary Judgment. Plaintiff, a former Administrative Assistant at Georgia Military College, brought discrimination and retaliation claims against the College after her position was eliminated in June 2020 in a reduction in force (RIF), alleging that it eliminated her position because she had requested additional measures to mitigate the spread of the coronavirus due to her “underlying health conditions” and that it did not consider her for other open positions because she is African American. The court granted summary judgment to the College on her discrimination claim, finding that of the two positions plaintiff applied for one was filled by an African American and one remained unfilled for a year. In granting summary judgment to the College on her retaliation claim under the Rehabilitation Act, the court held that a “vague request for accommodations due to ‘underlying health conditions’” was insufficient to constitute protected activity.
Topics:
Disability Discrimination | Discrimination, Accommodation, & Diversity | Employment Separation, RIFs, ERIPs & Retrenchment | Faculty & Staff | Race and National Origin Discrimination | Retaliation
Date:
9/15/2023
Krug v. Bd. of Trs. of the Cal. State Univ. (Cal. App. Aug. 29, 2023)
Opinion affirming dismissal. Plaintiff, a biology professor at California State University-Los Angeles who shifted to teaching remotely in March 2020, on behalf of himself and a putative class, sued CSU under California Labor Code section 2802 after CSU declined to reimburse him for purchases of computer and other equipment that he asserted were necessary work-related expenses. Section 2802 provides that an employer must “indemnify [an] employee for all necessary expenditures … incurred … in direct consequence of the discharge of [their] duties.” In affirming dismissal, the California Court of Appeals applied the sovereign powers doctrine of statutory interpretation, which states that “absent express words to the contrary, governmental agencies are not included within the general words of a statute” to hold that CSU is not subject to section 2802.
Topics:
Campus Police, Safety, & Crisis Management | Coronavirus | Faculty & Staff
Date:
9/15/2023
OSHA NPRM on Designation of Worker Walkaround Representative (Aug. 30, 2023)
U.S. Department of Labor, Occupational Health and Safety Administration (OSHA) Notice of Proposed Rulemaking (NPRM) on the Worker Walkaround Representative Designation Process. The proposed rule would amend OSHA’s inspection procedures to permit employees to designate a third party to accompany the Compliance Safety and Health Officer if “good cause has been shown why their participation is reasonably necessary to the conduct of an effective and thorough physical inspection of the workplace (e.g., because of their relevant knowledge, skills, or experience with hazards or conditions in the workplace or similar workplaces or language skills).” The preamble of the NPRM clarifies that the third party might be a union representative, attorney, translator, or representative of a worker advocacy group.
Topics:
Collective Bargaining | Environmental Health & Safety | Faculty & Staff | Real Property, Facilities & Construction
Date:
9/15/2023
In re Am. Fed’n for Children, Inc. (N.L.R.B. Aug. 26, 2023)
Decision and Order Remanding. The Charging Party in this case resigned her employment at the American Federation for Children, Inc. after an investigation found she created a “toxic atmosphere” by characterizing a new supervisor as a racist. At the time, the organization was sponsoring a former employee whose immigration status had changed for a work permit and holding her former position open to rehire her. The Charging Party had advocated for the rehire, but the new supervisor sought to fill the position with a different candidate. The Administrative Law Judge, applying Amnesty International (N.L.R.B. 2019), found that because it was on behalf of someone who was not a current employee, the Charging Party’s activity was not for “mutual aid or protection” and not protected. In reversing, the NLRB overruled Amnesty International and returned to its prior precedent, which held that concerted activity on behalf of non-employees is protected when its goal also serves the benefit employees.
Topics:
Collective Bargaining | Faculty & Staff
Date:
9/8/2023
Update: DOL NPRM on Overtime Exemptions (Sep. 8, 2023)
U.S. Department of Labor, Wage and Hour Division Notice of Proposed Rulemaking (NPRM) on Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales, and Computer Employees. The NPRM proposes to update and revise the regulations under the Fair Labor Standards Act implementing the exemptions from minimum wage and overtime pay requirements for executive, administrative, professional, outside sales, and computer employees. Notable revisions include increasing the minimum salary level to $55,068 annually and the salary level for the Highly Compensated Exemption to $143,988. Update: The Department of Labor published the NPRM in the Federal Register on September 8, 2023. Comments are due on or before November 7, 2023.
Topics:
Faculty & Staff | Fair Labor Standards Act (FLSA) & Categorization of Employees
Date:
9/8/2023
In re Miller Plastics Products, Inc. (N.L.R.B. Aug. 25, 2023)
Decision and Order adopting a totality of the circumstances standard for determining concerted activity. In March 2020, an employee of Miller Plastics Products, Inc. challenged his supervisor’s assertion that his employer was an essential, life-sustaining business and, days later, questioned the employer’s return-to-work procedures after another employee returned to the workplace two days after a suspected COVID exposure. Shortly thereafter, his employer terminated him for poor performance and policy violations. In affirming an Administrative Law Judge’s finding that the employee’s activity was both concerted and protected, the National Labor Relations Board overruled its decision in Alstate Maintenance, LLC (2019) and returned the standard in Meyers II (1986), which held that “the question of whether an employee has engaged in concerted activity is a factual one based on the totality of the record evidence.” In so doing, it held that “activity that at inception involves only a speaker and a listener can be concerted, ‘for such activity in an indispensable preliminary step to employee self-organization.’” Here, it held that the employee’s complaints were also protected because they sought to bring group complaints to the attention of management.
Topics:
Collective Bargaining | Faculty & Staff
Date:
9/1/2023
Rakhshandeh v. Tex. Tech Univ. (5th Cir. Aug. 30, 2023)
Opinion affirming summary judgment in favor of the University. Plaintiff, a former tenure-track assistant professor at Texas Tech University, brought discrimination claims after he withdrew his tenure application when it became clear that it would be denied. In affirming summary judgment in favor of the University, the Fifth Circuit held his prima facie case failed because his voluntary withdrawal of his tenure application was not an adverse employment action. It declined to consider his claim that encouragement from his department chair to withdraw the application amounted to constructive discharge because it was not properly presented to the court below.
Topics:
Discrimination, Accommodation, & Diversity | Faculty & Staff | Race and National Origin Discrimination | Tenure
Date:
8/25/2023
NLRB Direct Final Rule on Representation-Case Procedures (Aug. 25, 2023)
National Labor Relations Board Direct Final Rule on Representation-Case Procedures. The direct final rule modifies the procedures by which the Board will administer cases concerning questions of representation. “This rule substantially rescinds the amendments by a rule of the Board promulgated in 2019 … and thereby substantially returns the representation case procedures to those that existed following the Board’s promulgation of a rule concerning representation case procedures in 2014.” In particular, the new rule will shorten the length of time required between an employee petition and an election to resolve a question of representation. The new rule is effective December 26, 2023.
Topics:
Collective Bargaining | Faculty & Staff
Date:
8/25/2023
Babinski v. Sosnowsky (5th Cir. Aug. 21, 2023)
Opinion reversing and dismissing. Plaintiff, a former Ph.D. student in the theatre program at Louisiana State University, brought due process claims against multiple professors in the department based on his assertion that he was “de facto expelled” from the program without a meaningful opportunity to be heard in his own defense. Plaintiff had submitted a “performative writing” for a course term paper that expressed his disapproval of his professor’s views in a course on “Gender, Sexuality, and Performance.” The chair of the department forwarded the paper to the LSU Police Department and the LSU Office of Student Advocacy and Accountability, though neither found an actionable violation. Plaintiff alleged that his professors then conspired to refuse to teach him, serve on his dissertation panel, or administer his general examinations, thus impeding his ability to complete the doctoral program. He subsequently earned a master’s degree in the philosophy department. In reversing the district court’s denial of qualified immunity to the professors, the Fifth Circuit assumed a constitutional violation but nevertheless held that plaintiff failed to show a clearly established right, finding that he had not identified a case that was sufficiently analogous to his asserted “de facto expulsion” that “dealt with the alleged tainting of the process that a school or university provided to a student.”
Topics:
Constitutional Issues | Due Process | Faculty & Staff | First Amendment & Free Speech | Retaliation
Date:
8/18/2023
Williams v. Morgan State Univ. (Md. Aug. 14, 2023)
Opinion answering a certified question. Plaintiff, a former Director of Broadcast Operations at Morgan State University, brought state-law wrongful termination and defamation claims and federal retaliation claims under the National Defense Authorization Act and the American Recovery Reinvestment Act against the University and multiple officials after she was terminated purportedly for alleging violations federal law. The district court dismissed plaintiff’s federal claims, finding that the Maryland Tort Claims Act (MTCA) did not waive the State’s sovereign immunity with respect to the claims. In answering a question certified to it by the Fourth Circuit, the Maryland Supreme Court held that “a tort action” under the MTCA does not include federal statutory claims, noting that “there is no evidence that the General Assembly intended to include federal statutory claims within the scope of the MTCA” and that a contrary approach “would produce results that are inconsistent with the MTCA’s main purposes.”
Topics:
Faculty & Staff | Litigation, Mediation & Arbitration | Retaliation | Tort Litigation

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