Each month, CUPA-HR General Counsel Ira Shepard provides an overview of some labor and employment law cases and regulatory actions with implications for the higher ed workplace. Here’s the latest from Ira:
State Prosecutors Beginning to Bring Criminal Charges Against Employers That Violate Wage and Hour Laws
Minimum wage and overtime violations have for decades, as a matter of civil law, been the exclusive domain of government investigations or private lawsuits. However, prosecutors in New York State and California have recently begun to enforce wage and hour violations with criminal actions against some offending employers and their officials, particularly those who have allegedly “institutionalized” wage theft as part of their operating model. Because the construction industry has been ripe with action in this area, special care might be in order during campus construction projects.
ERISA Pension Litigation Against Prominent Universities Continues, With Mixed Results
At least 20 prominent universities across the country have been sued under ERISA in collective actions, facing allegations of excessive administrative fees, fiduciary violations for having confusing and too numerous investment alternatives, and other fiduciary breaches.
Recently, Northwestern University and the University of Pennsylvania received complete victories in their cases, with federal district court judges dismissing the cases as without merit on the basis of the summary judgement motions filed by the universities.
The University of Chicago took a different route and settled its case, reportedly for $6.5 million, after the presiding judge denied the university’s motion to dismiss and certified two classes of plaintiffs. Other judges have allowed similar lawsuits to proceed against Columbia University, Emory University, Johns Hopkins and Princeton, denying respective motions to dismiss.
Other judges have granted class status to lawsuits filed against New York University and Duke University, which could raise the stakes in ongoing litigation. Most recently, George Washington University filed a motion to dismiss the proposed class action filed against it alleging administrative and fiduciary violations of ERISA, stating the allegations were “meritless” and if allowed to proceed could “needlessly saddle the university with millions of dollars of legal fees, just to defend.”
Supreme Court’s Janus Decision Barring Public-Sector Unions From Collecting Money for Collective Bargaining From Nonmembers May Spur Union-Friendly Legislation in Democratic States
The recent decision of the U.S. Supreme Court in Janus v. American Federation of State, County, and Municipal Employees, Council 31, which bars public-sector unions from collecting money for collective bargaining from nonmembers on First Amendment grounds, is a blow to public-sector unions, including those representing employees, professors and staff at public colleges and universities. Nonetheless, in Democratic and union-friendly states, the decision may spur state legislatures to find other ways to assist public-sector unions, and a wave of public-sector union-friendly legislation may be on the horizon in “Blue” states.
In the Janus decision, the Supreme Court reasoned that collective bargaining itself is a political matter and that collecting money from public-sector employees who are not union members to support collective bargaining is a violation of those employees’ First Amendment rights to support or not support the effort. In areas such as the right of public-sector employees to strike and to seek mandatory arbitration, states which currently bar such activities or are silent on the matter may see a wave of proposals to allow such activity.
NYU Prevails in Adjunct Professor’s Hostile Work Environment and Sexual Harassment Litigation Where Allegations Were Not Tied to a Specific Individual, But Rather the Plaintiff’s Speculation as to the Authors of the Offending Communications
The Second Circuit U.S. Court of Appeals (covering New York, Vermont and Connecticut) recently affirmed a federal district court judge’s decision to dismiss claims made by a former adjunct professor, who, following termination, asserted that she had been the victim of sexual harassment and a hostile work environment and was terminated for raising these issues (Russell v. New York University et al. (Case no. 17-2527, 2nd Cir, July 1, 2018)).
The plaintiff claimed that she had received mailings including pornographic pictures of women and named five professors who she suspected were responsible for the harassment. She claimed that the university took no action against the alleged perpetrators and failed to even warn them to stop the offending conduct. She also claimed that she was terminated shortly after raising these allegations.
The appeals court affirmed the trial court’s dismissal of the plaintiff’s case, holding that the university had no legal duty to take any action against the alleged perpetrators where the plaintiff produced no evidence against them other than her “speculative say-so.” The appeals court also affirmed the dismissal of her retaliatory discharge allegations, holding that in the Second Circuit, the precedent stands that “temporal proximity alone is not enough to establish pretext” to commit unlawful discrimination. The plaintiff’s counsel stated that he intends to continue to pursue related litigation pending in state court.
Mandatory Paid Sick Leave Is Now Required in Almost 20 Percent of States, Plus D.C. and Puerto Rico
Employers in Arizona, Connecticut, Maryland, Massachusetts, New Jersey (effective October 2018) Oregon, Rhode Island, Vermont and Washington, plus the District of Columbia and Puerto Rico, must now provide some kind of paid sick leave to regular employees. While the statutes vary from state to state, many require some kind of paid sick leave for part-time and temporary employees as well. The trend appears to be growing and may affect more states as time goes on.