CUNY Scoffs At Profs' CARES Act Bid To Rehire Adjuncts

By Jon Steingart
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Law360 (July 28, 2020, 6:02 PM EDT) -- The CARES Act doesn't create a path for worker lawsuits claiming that a university misused coronavirus aid, the City University of New York told a Manhattan federal judge Monday, urging the court not to force it to rehire 2,800 professors and other workers whose contracts ended in June.

CUNY filed a brief Monday opposing Professional Staff Congress/CUNY's motion for an injunction that would make the university hire those laid-off adjunct staff members for the fall 2020 semester, arguing that the professors' union has no right to file a Coronavirus Aid, Relief, and Economic Security Act suit in the first place.

"The language of the pertinent provision of the CARES Act focuses entirely on the entity regulated, not the persons who might benefit from the regulation," the university said. "The language providing that an institution shall 'to the greatest extent practicable, continue to pay its employees and contractors' confers discretion on the institution, militating against any private right of action in the unfortunate event that, as here, it is not practicable for an institution to renew all expiring contracts."

However, adjuncts may file complaints with the U.S. departments of Education and Justice under longstanding processes for ensuring compliance with rules governing use of federal funds, CUNY said. It's more accurate to characterize the decision not to rehire the adjuncts, whose terms ended June 30, as nonrenewals of their contracts rather than layoffs, the university contended.

The union sued on July 1, claiming CUNY fell short of the law's requirement that universities continue to pay employees and contractors if possible. It argued that the CARES Act amounted to a contract by which the university agreed to preserve its payroll in exchange for receiving federal funds, and the adjuncts could sue to enforce it because they were the intended beneficiaries of the deal.

The coronavirus relief bill, passed in March, allocated $31 billion for educational institutions. Section 18006 requires schools that receive funds to continue paying workers to "the greatest extent practicable."

CUNY said it uses funds it receives under the CARES Act to support the university's primary mission to help students transition to remote learning.

"Put bluntly, plaintiff asserts that its members' interest in employment is more important than the students' interest in being able to continue their education in this time of crisis," the university said.

Counsel for the union didn't immediately respond to a request for comment. Representatives for CUNY and the New York attorney general's office, which represents the university, declined to comment.

The professors union is represented in-house by Peter Zwiebach and by Hanan Kolko and Kate Swearengen of Cohen Weiss and Simon LLP and Michael Del Piano and Robert Reilly of New York State United Teachers.

CUNY is represented by Clement Colucci of the state attorney general's office.

The case is Professional Staff Congress/CUNY v. Rodriguez et al., case number 1:20-cv-05060, in the U.S. District Court for the Southern District of New York.

--Editing by Adam LoBelia.

For a reprint of this article, please contact reprints@law360.com.

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Case Information

Case Title

Professional Staff Congress/CUNY v. The City University of New York


Case Number

1:20-cv-05060

Court

New York Southern

Nature of Suit

Other Statutory Actions

Judge

Jed S. Rakoff

Date Filed

July 01, 2020

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