Legal Issues That Keep Presidents Up At Night. The Council of Independent Colleges: President s Institute. January 6, 2015

Transcription

1 The Council of Independent Colleges: President s Institute Legal Issues That Keep Presidents Up At Night January 6, 2015 Presented by Natasha J. Baker nbaker@hkemploymentlaw.com

2 LEGAL TRENDS

3 Federal Regulations & Compliance Obligations Rankings State Authorization Program Integrity Regulations Title IX Campus SaVE/Clery Act Section 504 (disability) Title VI (consideration of race)

4 The Shifting Mindset of Student/Parent Increased litigation. Breach of Contract Breach of Process Expectation of what institutions should be doing and how they should be doing it. Legal obligation? In loco parentis? Public Relations

5 Doing More With Less Decline in enrollment Reduced budgets Changing personnel

6 SPECIFIC LEGAL ISSUES

7 Overview of Specific Legal Issues Unionization on campus Faculty trends Campus sexual assault & Title IX Disability & Section 504 Athletics Cybersecurity International issues Consideration of race in admissions

8 Unionization on Campus Adjuncts ( Graduate students and student workers (UAW petitions at Columbia University & The New School filed December 2014) Religious institutions (Pacific Lutheran) Full-time faculty (Pacific Lutheran) Student-athletes (Northwestern)

9 NLRB s New Election Procedures Effective April 14, 2015 Elections within 20 days of petition Pre-election hearings within 8 days Limitations on pre-election hearings (eligibility of voters may be deferred) No elections stays pending an appeal to the NLRB Excelsior list due within 2 days after DDE

10 Adjunct Faculty Ask: What are the issues? Who are our adjunct faculty? Are we likely to see an organizing campaign?

11 Adjunct Faculty Readings The Just-In-Time Professor: A Staff Report Summarizing e-forum Responses on the Working Conditions of Contingent Faculty in Higher Education (January 2014) ( documents/ adjuncteforumreport.pdf) AAUP Report: The Inclusion in Governance of Faculty Members Holding Contingent Appointments (January 2013) ( "Cultivating Labor Peace With Adjunct Faculty" The Higher Education Workplace (Spring 2014) ( The_Higher_Education_Workplace- Cultivating_Labor_Peace_With_Adjunct_Faculty.pdf) American University: Georgetown University: Collective-Bargaining-Agreement.pdf Other:

12 Faculty as Managerial Employees Yeshiva (1980) Factors under Pacific Lutheran (December 2014) Academic programs Enrollment management Finances Personnel policies and decisions Academic policies

13 Religious Exemption from the NLRA Hold institution out as providing a religious educational environment. Hold contingent faculty out as performing a specific role in creating or maintaining the religious or educational environment i.e. performing a specific religious function.

14 Faculty Voluntary Incentive Retirement Programs Involuntary Layoffs TIP: Need 45 days for agreements involving 2+ employees

15 Campus Sexual Assault a. Title IX b. Campus SaVE/Clery Act c. State laws a. California s affirmative consent law b. California s pending reporting law

16 Campus Sexual Assault Ask: Where do we have an issue? How will I know? What are we doing for training? Who is REQUIRED to report?

17 Disability Issues for Students Classrooms, facilities and technology Managing mental and emotional disabilities. Ask: Who is our Section 504 Coordinator? What is the status of our Section 504 Grievance Procedures? Are we in compliance with our online/website offerings?

18 Athletics Health and safety Concussion management Compensation (Sacko vs. NCAA and all Division One institutions) Ask: Who is responsible for health & safety?

19 Cybersecurity Data breach laws. Protection/indemnification when releasing data to third parties. Ask: How are we protected? What policies and procedures do we have concerning sensitive information?

20 International Issues Increased focus on international recruitment. Increasing use of international partnerships. Ask: Where are we doing business? Are we in compliance with local law?

21 Consideration Of Race In Admissions Michigan/Texas cases Consideration of race permissible as a part of a holistic admissions review. November 2014: Students for Fair Admissions Process vs. Harvard, UNC Ask: Brought under Title VI, which applies to recipients of federal funds. Do we use race as a factor? If so, how?

22 QUESTIONS & ANSWERS