Cases & Developments - National Association of College and University Attorneys

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Latest Cases & Developments

Date:
8/18/2023
In re Stericycle, Inc. and Teamsters Local 628 (N.L.R.B. Aug. 2, 2023)
Decision and Order from the National Labor Relations Board (NLRB) adopting a new standard for evaluating when workplace rules and policies may be unfair labor practices. In its decision, the NLRB adopted a standard that holds that “overbroad workplace rules and policies may chill employees in the exercise of their Section 7 rights” under the National Labor Relations Act. In evaluating specific employer rules or policies, the Board will “interpret the rule from the perspective of an employee who is subject to the rule and economically dependent on the employer.” If the General Counsel can show that a rule would chill such an employee from exercising Section 7 rights, it is presumptively unlawful. However, “the employer may rebut that presumption by proving that the rule advances a legitimate and substantial business interest and that the employer is unable to advance that interest with a more narrowly tailored rule.”
Topics:
Collective Bargaining | Faculty & Staff
Date:
8/18/2023
Griffin v. Univ. of Me. Sys. (D. Me. Aug. 16, 2023)
Order granting-in-part and denying-in-part Defendants’ Partial Motion to Dismiss. Plaintiff, a former tenured professor at the University of Southern Maine, brought First Amendment retaliation claims against the University and its President, after she was terminated in September 2021 for challenging the University’s COVID-19 vaccination and facemask policies. The court permitted plaintiff to proceed in her claim against the President in his official capacity, finding she had sufficiently alleged her demands that the University provide evidence to counter her own assertions about the efficacy of vaccinations and masking was speech about a matter of public concern outside of the scope of her duties as a professor. It held, however, that her constitutional claims against the President in his personal capacity were barred by qualified immunity.
Topics:
Campus Police, Safety, & Crisis Management | Constitutional Issues | Coronavirus | Faculty & Staff | First Amendment & Free Speech | Retaliation
Date:
8/18/2023
Turner v. Bd. of Supervisors of the Univ. of La. Sys. (5th Cir. Aug. 9, 2023)
Opinion affirming summary judgment in favor of the University. Plaintiff, a former tenured English professor at Nicholls State University, brought a federal Family and Medical Leave Act (FMLA) interference claim and state-law disability discrimination and retaliation claims against the University and multiple officials, alleging that following her diagnosis with irritable bowel syndrome and approval for intermittent FMLA leave, the University nevertheless required her to submit doctor’s notes for each absence and reassigned her to the Writing Lab allegedly as a way to force her to retire. In affirming summary judgment in favor of the University, the Fifth Circuit found that her interference claim failed because the University had required the documentation only for plaintiff to collect paid sick leave for her otherwise unpaid FMLA leave. Her retaliation claim failed because she had not identified any protected activity in her opening brief, and her discrimination claim failed because she admitted that her request to teach all of her classes online would have required the University to reassign adjunct professors already scheduled to teach the classes.
Topics:
Disability Discrimination | Discrimination, Accommodation, & Diversity | Faculty & Staff | Family and Medical Leave Act (FMLA) | Retaliation
Date:
8/4/2023
Wallace v. Owens (C.D. Ill. July 31, 2023)
Opinion granting Defendants’ Motion to Dismiss. Plaintiff, a former sworn law enforcement officer at the University of Illinois Springfield, brought Equal Protection claims against her former supervisors after she was terminated because of actions she took during a traffic stop. The court dismissed her claims (1) as barred by sovereign immunity and (2) because her allegation that she “was disciplined more harshly than male co-workers who engaged in comparable violations of policy” was insufficient to “meet the low threshold required of a plaintiff who alleges a Fourteenth Amendment gender discrimination claim.”
Topics:
Campus Police, Safety, & Crisis Management | Constitutional Issues | Employee Discipline & Due Process | Equal Protection | Faculty & Staff
Date:
7/28/2023
DHS Optional Alternatives to Physical Form I-9 Document Examination (July 25, 2023)
U.S. Department of Homeland Security (DHS), Immigration and Customs Enforcement (ICE) Final Rule on Optional Alternatives to Physical Document Examination associated with Employee Eligibility Verification (Form I-9). The amended regulations permit the Secretary to authorize alternative document examination procedures for employment eligibility verification. With COVID-19 flexibilities set to expire on July 31, 2023, DHS also announced the first Optional Alternative Procedure permitting employers participating in E-Verify in good standing to examine copies of Form I-9 documents and conduct a live video interaction “to ensure that they documentation reasonably appears to be genuine and related to the individual.”
Topics:
Background Checks & Employee Verification | Faculty & Staff
Date:
7/28/2023
USCIS Introduction of a New Version of Form I-9 (July 25, 2023)
U.S. Department of Homeland Security, U.S. Citizenship and Immigration Services (USCIS) Introduction of a New Version of Employment Eligibility Verification Form (Form I-9). USCIS announced a new version of Form I-9, which employers should begin using as of August 1, 2023. The updated, streamlined Form I-9 contains multiple revisions to the form and its instructions. It also contains a new box that “eligible employers must check if the employee’s Form I-9 documentation was examined under a DHS-authorized alternative procedure rather than via physical examination.”
Topics:
Background Checks & Employee Verification | Faculty & Staff
Date:
7/21/2023
Pesta v. Cleveland State Univ. (N.D. Ohio July 14, 2023)
Opinion & Order granting-in-part and denying-in-part Defendants’ Motion to Dismiss. Plaintiff, a former Professor of Management at Cleveland State University, brought First Amendment retaliation claims against the University and six officials after he was terminated following a committee investigation into allegations that he had used NIH data unethically. Plaintiff alleged, however, that the investigation and termination were retaliation for his defense of the “hereditarian hypothesis” in an article entitled “Global Ancestry and Cognitive Ability.” In permitting plaintiff to proceed in his First Amendment retaliation claims, the court found, first, that in the absence of a developed record regarding the alleged misuse of NIH data plaintiff had plausibly alleged that his speech interest outweighed the University’s interest in promoting the efficiency of its public services. It further found that plaintiff’s assertion that prior to his termination the University had also removed links on its website to other controversial articles he had written was sufficient to allege causation. The court, however, dismissed plaintiff’s claims for monetary damages against the University and the individual defendants in their official capacities as barred by sovereign immunity.
Topics:
Academic Freedom & Employee Speech | Constitutional Issues | Discrimination, Accommodation, & Diversity | Faculty & Staff | First Amendment & Free Speech | Retaliation
Date:
7/21/2023
In re Duke Univ. (N.L.R.B July 10, 2023)
National Labor Relations Board Decision and Direction of Election. Petitioners, the Southern Region Workers United, affiliated with the Service Employees International Union (SEIU), sought to represent a unit of all Ph.D. students at Duke University at its Durham and Beaufort, N.C. campuses who are working toward Ph.D. degrees and who are employed to teach undergraduate or graduate courses or labs or to provide research services. The N.L.R.B. Regional Director for Region 10 found that Ph.D. students in the proposed unit are employees within the meaning of Section 2(3) of the National Labor Relations Act. The Regional Director further directed that since the election is to be conducted during the summer it should be a mail ballot election.
Topics:
Collective Bargaining | Faculty & Staff
Date:
7/21/2023
Stedrak v. Seton Hall Univ. (N.J. Super. App. Div. July 10, 2023)
Opinion affirming dismissal. Plaintiff, a former assistant professor at Seton Hall University, brought wrongful termination in violation of a clear public policy and tortious interference with prospective economic advantage claims against the University and several officials after the University denied him tenure and declined to renew his contract. Plaintiff alleged that the interim president had a conflict of interest because she intended to return to the faculty and would be supervised by a member of the faculty who opposed his tenure. In affirming dismissal, the Appellate Division held that plaintiff’s factual allegations of a conflict of interest were insufficient to show a violation of a clear public policy. In affirming dismissal of his tortious interference claim, the court held that plaintiff failed to identify intentional or malicious interference with his tenure application and failed to allege facts that the defendants knew of or interfered with his attempt to obtain a position at another college or university.
Topics:
Faculty & Staff | Tenure
Date:
7/14/2023
Young Conservatives of Tex. Found. v. Smatresk (5th Cir. July 10, 2023)
Opinion reversing and vacating injunction. Plaintiff, on behalf of its members who attend or have attended the University of North Texas and who are United States citizens from states other than Texas, sought a permanent injunction barring the University from carrying out a provision of the Texas Education Code permitting undocumented immigrants to establish residency and qualify for in-state tuition rates. The district court granted the injunction, finding that the Texas Code was preempted by a provision of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) that says that “an alien who is not lawfully present in the United States shall not be eligible on the basis of residence within a State … for any postsecondary education benefit unless a citizen or national of the United States is eligible for such a benefit … without regard to whether the citizen or national is such a resident.” 8 U.S.C. § 1623(a). In reversing and vacating, the Fifth Circuit held that the IIRIRA provision expresses only the condition precedent that U.S. citizens must be eligible for a benefit before illegal aliens are made eligible and that this does not expressly preempt the Texas Code provision setting tuition rates for those who satisfy residency requirements. It similarly held that the Texas Code provisions did not conflict with the objectives of the IIRIRA because it only imposes nonresident tuition rates on those who do not establish Texas residency, whether they are aliens or citizens.
Topics:
Constitutional Issues | Deferred Action for Childhood Arrivals (DACA) and Temporary Protected Status (TPS) | Employment of Foreign Nationals | Faculty & Staff

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