Higher Education Report

Higher Education Report

Potential Institutional Liability to the Accused in Sexual Assault Cases

Posted in Sexual Assault

university buildingRecent articles and postings not only highlight the continuing focus on sexual assault cases on college campuses by the victims of those assaults, but also on the threat of litigation by those accused of the assaults.  In the past two years, at least half a dozen actions have been brought against institutions by those accused, generally alleging various issues with the handling of their cases.  A recent decision by a federal court in Ohio, in Wells v. Xavier University, illustrates institutions’ potential liability to the accused.

In this case, a student athlete at Xavier was accused, falsely he claimed, by another student of a sexual assault.  The University’s Conduct Board found the student responsible for a “serious violation” of the Code of Student Conduct.  At some point, the University apparently issued a statement, naming the student, and indicating that he was “found….responsible for a serious violation of the Code of Student Conduct” and that he was expelled from the University. Continue Reading

The NLRB, Northwestern University and Unintended Consequences

Posted in Higher Education, National Labor Relations Board

As reported here last week, the NLRB’s Regional Director in Chicago has determined that those members of the Northwestern University football team who receive grants-in-aid are “employees” under the National Labor Relations Act.  Even aside from the questionable basis for this conclusion, the Regional Director’s decision begs the question what are the possible unintended consequences of this decision?  And there are quite a few, only some of which are mentioned below.

Perhaps the first unintended consequence is whether the Board’s determination, if upheld, will actually render these student athletes ineligible to play intercollegiate football.  Under NCAA By-law 12.1.2, only amateurs are eligible for competition under NCAA rules.  Therefore,  student-athletes may not use their athletic skill for pay in any form in the sport in which they compete.  If a student-athlete is receiving compensation for their services, as determined by the Regional Director, is that student-athlete now receiving “pay in any form in [their] sport” and as a result no longer an amateur able to compete?  The irony of course is if that ends up being the NCAA’s interpretation of its by-law, that would of course defeat the very purpose behind unionizing in the first place.  Moreover, this possibility is not dependent upon the student-athletes actually unionizing but rather on the mere fact that they are now “paid” for playing.  It would seem that if bargaining actually resulted and any additional benefits were provided to these student-athletes, the likelihood of a loss of amateur status would be even greater.

For any other “employee” being “compensated” for their services, income tax is required to be paid on that compensation.  While the test for an employee under the National Labor Relations Act may not be identical to the test used by the IRS, how far behind can taxation be?  Using the numbers reported in the Regional Director’s decision for the value of the players’ grants-in-aid (as much as $76,000 per year at Northwestern), where is a player, or his family, going to come up with the cash to cover this tax bill? Continue Reading

NLRB Regional Director Finds College Football Players Qualify as Employees and Can Unionize

Posted in Higher Education, National Labor Relations Board
Image courtesy of arkorn / FreeDigitalPhotos.net

Image courtesy of arkorn / FreeDigitalPhotos.net

In a stunning and potential landmark decision, a Regional Director of the National Labor Relations Board has found that football players receiving grant-in-aid scholarships from Northwestern University (the University) are “employees” under the National Labor Relations Act.  In his decision released Wednesday afternoon, the Regional Director determined that “players receiving scholarships to perform football-related services for [the University] under a contract for hire in return for compensation are subject to [the University]’s control and are therefore employees within the meaning of the Act.”  Accordingly, the Regional Director ordered that an election be conducted among all football players receiving grant-in-aid scholarships who have not exhausted their playing eligibility for the University.

In support of his decision, the Regional Director found that the players receive compensation for the athletic services they perform in the form of scholarships, which pay for the players’ tuition, fees, room, board, and books and can total as much as $76,000 per calendar year for up to five years.  Furthermore, the Regional Director found that the players are under the strict control of the University throughout the year.  The coaches determine the location, duration, and manner in which the players carry out their football-related activities; they monitor the players’ adherence to NCAA and team rules; and they control “nearly every aspect of the players’ private lives,” including their living arrangements, applications for outside employment, off-campus travel, social media posts, and communications with the media.  In contrast, the Regional Director held that “walk-ons do not meet the definition of ‘employee’ for the fundamental reason that they do not receive compensation for the athletic services that they perform.”

The University has confirmed that it plans to appeal the decision to the full National Labor Relations Board in Washington, D.C.   If upheld, the decision has the potential to dramatically alter the world of big-time athletics in higher education as it would open the door for scholarship
athletes at all private universities to unionize.  Indeed, the decision could have implications for scholarship students in a number of areas beyond athletics.

The Union, College Athletes Players Association (CAPA), which has the financial backing of the United Steelworkers, is seeking, among other demands, financial coverage for former players with sports-related medical expenses and the creation of an educational trust fund to help former players graduate.

Recent Background Check Lawsuit is Reminder of the Importance of Strictly Following the Fair Credit Reporting Act Disclosure Requirements

Posted in Background Checks

Image courtesy of David Castillo Dominici / FreeDigitalPhotos.net

Many institutions of higher education, like employers in many industries, use background checks as an integral part of their hiring process.  A recently filed class action lawsuit serves as a reminder to institutions of the importance of strict compliance with the Fair Credit Reporting Act (FCRA).

The FCRA limits the purposes for which a background check (including a credit check or criminal background check) can be obtained.  One of the permissible purposes is for employment, including hiring decisions.  However, the Act imposes strict requirements in order to lawfully obtain and use a report.  One of those requirements is that the employer must provide applicants with a stand-alone disclosure and authorization form prior to obtaining a background check.  15 U.S.C. § 1681b(b)(2)(A).  This form must be separate from the employment application, and cannot include any type of language attempting to release the institution from liability associated with obtaining the background check.  Unfortunately, many institutions still fail to comply with this law by relying solely on a disclosure located on employment application to inform applicants that they will be subject to a background check, or by attempting to include additional language on the disclosure.

This particular requirement is the focus of a recent class action lawsuit filed against Whole Foods Market California.  Whole Foods is accused of using a legally invalid form to obtain consent to conduct backgrounds checks during their employment application process.  In this case, it is alleged that the employer relied on a background check consent that was included alongside several other consent paragraphs on an online employment application.  Additionally, that consent included a release of claims related to obtaining the background check.  If the employer is found to have used an invalid form the consequences are significant, including invalidation of the consent, statutory damages in the amount of up to $1,000 for each applicant, costs and attorneys’ fees and, potentially, punitive damages.

This lawsuit is a reminder that FCRA compliance makes good business sense, and that institutions should periodically review their application and hiring forms and processes to ensure strict compliance.

The National Labor Relations Board and Higher Education: More change on the Horizon?

Posted in Faculty, Unionization

After what seemed like a small lull in NLRB activity impacting Higher Education, the National Labor Relations Board has once again signaled potentially significant alterations to the legal landscape.

Just last week, the NLRB issued an “invitation” to file briefs in a case involving Pacific Lutheran University.  This specific case involves the interplay between organizing rights (in this instance for adjunct faculty) under Section 7 of the National Labor Relations Act and the Religious Clause of the First Amendment, which in 1979 the Supreme Court held in NLRB v. Catholic Bishop of Chicago precludes the NLRB from becoming entangled in religious issues (in that case the Court held that the NLRB could not require a union election among lay teachers at a Catholic school).

This “invitation” asks interested parties to address the appropriate test that the Board should apply under Catholic Bishop and to identify factors it should consider in determining the appropriate standard for asserting jurisdiction.

But the invitation goes much further than this question which is only of significance to religiously affiliated institutions.  The underlying Pacific Lutheran University case also includes a claim that the University’s adjunct faculty are managerial under NLRB v. Yeshiva University because, among other things, there are adjuncts who are voting members of the University’s Faculty Assembly, along with their tenured and tenure track faculty.  The invitation, therefore, also requests interested parties to identify those factors that the Board should consider most significant in making a managerial determination, as well as what evidence should be required to establish that faculty “effectively control” decisions.  In particular, the Board has solicited information on whether there have been “developments in models of decision making in private universities since the issuance of Yeshiva that are relevant to the factors the Board should consider in making a determination of faculty managerial status?”

What is the significance of this invitation?  It likely signals some significant changes in the near future.  The fact is that unless the Board were inclined to consider some dramatic moves in these two areas, it would not have needed (or wanted) to solicit briefs on these issues.  Stay tuned – given the recent history of this Board, significant change is almost certainly on the horizon.

Higher Education Institutions That Are Federal Contractors Face a New Minimum Wage Requirement

Posted in Federal Contractor

higher ed minimum wageWhile not all colleges and universities meet the definition of a “federal contractor,” many do perform contract work for the federal government.  Those institutions will be facing a new minimum wage obligation in connection with any new contracts.

On February 12, 2014, President Obama signed an Executive Order requiring that all new federal contracts and subcontracts contain a clause specifying that the minimum wage to be paid to workers under those federal contracts and subcontracts must be at least $10.10 per hour beginning January 1, 2015. The federal contracts and subcontracts covered by this Executive Order include procurement contracts for services or construction and contracts for concessions. This new $10.10 minimum wage will also apply to disabled employees who are currently working under a special certificate issued by the Secretary of Labor permitting payment of less than the minimum wage.

Beginning January 1, 2016, and annually thereafter, the minimum wage for federal contractors will be increased by the Secretary of Labor based on the annual percentage increase in the Consumer Price Index for Urban Wage Earners and Clerical Workers, and rounded to the nearest multiple of five cents. The Secretary of Labor is required to publish the new minimum wage at least 90 days before the new minimum wage is scheduled to take effect.

For those institutions that might utilize tipped employees, the hourly cash wage that must be paid by a federal contractor will be at least $4.90 beginning on January 1, 2015. In each subsequent year, the federal contractor minimum wage for tipped employees will increase by 95 cents until it equals 70 percent of the federal contractor minimum wage in effect for non-tipped employees. If an employee’s tips, when added to the hourly wage, do not add up to the federal contractor minimum wage for non-tipped employees, the federal contractor will be required to supplement the employee’s hourly wage to make up the difference.

The Secretary of Labor is expected to issue regulations by October 1, 2014, to implement the provisions of the Executive Order.

The Importance of Clarity: Institutional Website Descriptions Cause Congressman to Question Financial Aid Application Processes

Posted in Financial Aid

higher ed financial aidSince 1992, the Higher Education Act has required colleges and universities to determine applicants’ eligibility for federal aid programs only through use of the Free Application for Federal Student Aid (FAFSA).  On February 3, 2014, Rep. Elijah Cummings, the ranking Democrat on the House Committee on Oversight and Government Reform, sent a letter to Secretary of Education Arne Duncan in which he identified 111 colleges and universities he believes to be requiring applicants to complete forms other than the FAFSA to apply for federal aid.

The information set forth in the letter was gleaned from a survey of institutional websites, many of which, the letter claims, reflect the use of forms other than the FAFSA (such as the College Board’s CSS Profile) to determine eligibility for federal IV aid, or, at a minimum, provide unclear guidance to applicants as to whether additional forms are required.  In reality, the majority of institutions are likely administering programs correctly, requiring applicants to complete only the FAFSA for federal aid purposes but using other data collection tools for institutional and other non-federal aid purposes (and encouraging submission of the additional information in order to maximize accessibility).  However, institutions’ descriptive materials may not clearly reflect these compliant practices.

It is not clear what, if anything, the Education Department may do in response to Rep. Cummings’ letter.  Although it appears that Rep. Cummings is suggesting only an admonishment to institutions, colleges and universities should use this opportunity to ensure that their website disclosures and other descriptive materials made available to applicants clearly identify that only the FAFSA is required for federal aid purposes (and, of course, that they are administering the application process in a corresponding manner).

When Complaining About “Everything” Defeats A Retaliation Claim

Posted in Discrimination

It is often said that retaliation claims are much harder to defend than the underlying discrimination claim.  This is at least in part because human nature is such that it is not a stretch to believe that someone falsely branded a discriminator will either look to retaliate against his/her accuser or will not pass up the opportunity to retaliate when circumstances present themselves.  Knowing this, clever would-be plaintiffs, believing that the writing is on the proverbial wall in terms of their own performance deficiencies, often try to lay the foundation for a retaliation claim by engaging in protected activity (complaining about discrimination) prior to their employer pulling the trigger on a termination.  The case law is replete with such efforts.   But what happens when the would-be plaintiff’s complaints go beyond allegations they were being discriminated against?

j0177838Earlier this month, Judge Leonard Wexler of the Eastern District of New York, in Saliba v. Five Towns College, 2014 WL 92690 (E.D.N.Y. 2014),[1] held that the Plaintiff essentially complained her way out of a Title VII retaliation claim.  The Plaintiff was an Assistant Professor of English at Five Towns College.   She alleged she was terminated for complaining about:  sexual harassment committed by another faculty member against students; illegal drug use; campus security issues; and “rampant corruption” in the administration of the College.

In granting the College’s motion to dismiss the complaint,  Judge Wexler held that to the extent Plaintiff’s Title VII retaliation claim was predicated on her complaints about students being harassed, as a matter of law, such complaints did not constitute “protected activity.”  Title VII does not cover complaints about “non-employees,” such as students, being subjected to discrimination.  Additionally, Judge Wexler held that because Plaintiff complained about so many different aspects of the College’s operations that had nothing to do with discrimination, her complaint failed as a matter of law.   Citing the most recent Supreme Court decision on point, Judge Wexler held that Plaintiff was require to show that her protected activity was a “but-for” cause of her termination, not just a motivating factor.   In this case, however, Plaintiffs complaints were not about an employee being the victim of discrimination, but were rather about matters completely outside the scope of the anti-discrimination laws.

In light of Saliba, employers facing retaliation claims would be well-served to carefully examine the precise nature of the alleged protected activity and to scrutinize whether such activity was the “but-for” cause of the adverse employment action.


[1] The author of this blog represented Five Towns College in this case.

Sexual Assault on Campus: President Obama Weighs In

Posted in Student Affairs, Student Discipline, Title IX

vtWith students, faculty and other groups increasingly vocal about institutional responses to campus rape and sexual assault, President Obama has announced the creation of The White House Task Force on Protecting Students from Sexual Assault.  The group will include cabinet level leaders and US Attorney General Eric Holder.

Under Title IX, colleges and universities are required to respond promptly to reports of campus rape and sexual assault.  An increasing number of students have filed federal claims of sex discrimination, alleging that their institution had not adequately responded in cases where they have been sexually assaulted.  At the same time, many college administrators have expressed frustration with the US Education Department’s Office for Civil Rights, finding that OCR does not fully understand the realities involved in addressing sexual assault on campuses, particularly when it comes to the student disciplinary process, and that there is confusion regarding exactly what OCR expects of them.

The President has charged the Task Force with developing “best practices” for preventing and responding to rape and sexual assaults; to assure compliance with existing federal laws governing colleges; and to make available to the public individual college’s compliance with these laws.  The President also asked the Task Force to improve coordination among federal agencies dealing with this issue, and to increase the transparency of federal enforcement efforts.

In announcing the Task Force, the President indicated that the Task Force will look for ways to work collaboratively with colleges to develop these recommendations, though the Task Force will not include any members of the higher education community.

The Task Force’s recommendations are to be submitted to the President in 90 days, and a full report on implementing those recommendations is due in one year.

Bond will be following closely the work of the Task Force, and will keep clients updated on developments.

Got Lawyers? Virginia Seeks to Follow North Carolina in Requiring Institutions to Allow Attorney Advocacy in Campus Disciplinary Proceedings

Posted in Higher Education, Student Affairs, Student Discipline, Title IX

Interior of CourtroomFollowing the lead of North Carolina last year, members of the Virginia legislature have  become the latest to propose legislation to provide students at public colleges and universities the right to attorney representation in on-campus disciplinary proceedings.

With narrow exceptions generally arising only at public institutions (e.g., in circumstances where a student faces parallel criminal charges arising out of an incident giving rise to an on-campus proceeding), courts have almost uniformly held that students have no right to counsel during campus disciplinary proceedings.  Even in those circumstances where courts have mandated the presence of an attorney, the attorney has been restricted to providing advice to protect the interests of the student, rather than being permitted to perform a formal advocacy role in which he or she presents a defense on a student’s behalf.

Like the 2013 North Carolina law after which it appears to have been modeled, the proposed Virginia legislation would change this equation drastically at public institutions. With limited exceptions for charges of academic dishonesty, any student who is accused of a violation punishable by a suspension of greater than 10 days or expulsion would have the right to be represented, at the student’s expense, by a licensed attorney (or nonattorney advocate). If present, the attorney would be entitled to “fully participate” during the proceedings, presumably meaning that counsel would be entitled to present opening and closing arguments, cross-examine witnesses (either directly or through the hearing body), make objections, and generally function in a manner similar to defense counsel in a criminal court.  Continue Reading