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  • The Ultimate Guide To Online Teaching

    The Ultimate Guide To Online Teaching

    What is Online Teaching?

    Online teaching typically refers to courses that are delivered completely online, meaning there are no physical or on-campus class sessions. Online courses can be designed for a handful of enrolled students or can be made open and accessible to a wide variety of participants. Instructors may choose to teach an online course because they want to take their teaching beyond the confines of the physical classroom. Other instructors may choose to do so because they want students to benefit from the online environment. Online teaching gives students unlimited access to resources and the ability to collaborate and connect with each other at any time of day. It also gives educators the ability to teach online classes from home.

    Contents

    1) Developing and Teaching an Online Course
    2) Planning and Designing an Online Course
    3) Synchronous vs. Asynchronous Online Teaching
    4) Online Assessments
    5) 7 Best Practices in Online Teaching
    6) Conclusion

    Developing and Teaching an Online Course

    Preparing for online teaching is not as simple as taking materials from a traditional course and putting them online. Educators engaging in online teaching for the first time will need to plan their approach thoughtfully, even full-time experienced educators. This starts with identifying learning objectives and then building educational activities to support them. Rather than make wholesale use of course content from previous classes, materials should be repurposed or adapted by taking into account the strengths and weaknesses of online learning environments. Organizing course content into units, with submodules, key concept reviews and unit tests—along with a tailored and consistent content release schedule—will help ensure students remain on track to achieve desired learning outcomes.

    Online Curriculum Development

    In online teaching, curriculum development is defined as the step-by-step process used to create positive improvements in the courses offered by a school, college or university. As new discoveries are made, they have to be incorporated into the online education curricula. Innovative teaching techniques and effective online teaching strategies are constantly being developed and refined in order to improve the student learning experience.

    Current online curriculum models can be divided into two broad categories—the product model and the process model. The product model focuses primarily on results. Grades are the primary objective, with more emphasis placed on achieving desired objectives at the summation of the course rather than on the learning process itself. The process model, however, is more open-ended and focuses on how learning progresses over the course of a semester. Both models are important when it comes to developing a holistic and effective curriculum for online teaching.

    There are three types of online curriculum design: subject-centered, learner-centered and problem-centered.

      • Subject-centered curriculum design revolves around a particular subject matter or discipline, such as mathematics, literature or biology. This type of curriculum design tends to focus on the subject matter being taught online, rather than the individual student.
        Educators create lists of topics and specific examples of how they should be studied, which are then mapped to the most effective online learning activity or method. This approach is most popular in large university or college classes taught online, where teachers focus on a particular subject or discipline in their classes.
      • Learner-centered curriculum design prioritizes student needs, interests and goals. It acknowledges that students are individuals and have different learning needs and therefore should not, in all cases, be subject to a standardized curriculum. This approach aims to empower learners to shape their education through choices and relies heavily on asynchronous online teaching and learning. This can be complex for large class sizes and is more suitable for smaller, seminar-style courses.
        Differentiated instruction and learning plans provide an opportunity to select assignments, teaching and learning experiences or activities online. This form of curriculum design is highly effective at engaging and motivating students, particularly in online teaching and learning environments by providing students with greater choice and flexibility. However, the drawback to this form of curriculum design is that it can create pressure on the educator to source learning materials online that are highly specific to each student’s personal learning needs. This can be challenging due to teaching time constraints.
      • Problem-centered curriculum design teaches students how to examine and analyze problems and develop solutions, largely using online simulations. This is considered an authentic form of learning because students are exposed to real-life issues, helping students develop skills that are transferable to the real world.
        Problem-centered curriculum design has been shown to increase the relevance of the curriculum and encourages creativity, innovation and collaboration in the online classroom. However, one shortcoming of this format is that it does not always consider individual learning styles and requires a great deal of collaboration between students.

    By considering all three types of curriculum design before you begin planning, instructors can choose the types that are best suited to their students and the learning objectives for their course.

    Planning and Designing an Online Course

    Planning for Online Teaching

    An important step in bringing your online course to life is the actual implementation. This includes aligning course materials to learning goals and in accordance with your online teaching philosophy. There are a number of things to consider during the decision-making process.

    First, it is important to understand the audience for your online course and who will be participating in supporting the delivery of modules, labs and other learning activities. Recognizing that learners may vary widely in their background, knowledge and skills is essential in order to accommodate these differences in your course design. Secondly, it is imperative to have specific learning goals in mind. An effective online pedagogy means carefully considering what you expect your students to know and be able to do at the conclusion of your course. Next, consider the different types of content your course requires. Decide how students will engage with that content and with each other. Also consider which assessment types best support the measurement of learning objectives for your students. Here are a number of helpful methods that can be used to guide the planning and development of your online teaching curriculum.

    Backward Design

    Backward design is often used in online teaching to design learning experiences and instructional techniques to meet specific learning goals. Backward design begins with identifying the objectives of a unit or course—what students are expected to learn and be able to do—and then working “backwards” to create lessons that achieve those desired goals. In online teaching, the educational goals for a course or unit are often closely aligned with a given institution’s learning standards. These are concisely written descriptions of what learners are expected to understand and be able to do at a specific stage of their education. In the context of online teaching, this includes the expectation that students have mastered certain technology tools and platforms to meet these goals.

    There are many benefits to backward design. Starting with the end goal in mind helps educators design a sequence of assessments, readings, course materials and group activities that are more likely to result in learners achieving the academic goals of a given course or unit—that is, actually learning what they were expected to learn.

    Beginning the planning process with the end goal in mind is often a counterintuitive process. However, backward design gives educators a structure they can follow when creating their curriculum, as well as planning their instructional process. Using a backward design approach also helps educators better align the different elements of their course by methodically integrating learning goals, activities and assessments at every step.

    Managing the Logistics of Online Teaching

    Even though planning for an online class may start in a similar way as an on-campus or face-to-face course, there are several important differences that those teaching online should keep in mind. First, it is important to consider how technology will influence the way you conduct your online teaching. If you would like to use an interactive lecture format, you will need to find ways to engage students in an online environment. Chat channels, discussion forums, blog postings and online office hours are a few ways for online teachers to connect with learners. Those engaging in online teaching will also need to consider how the use of virtual classroom technology will impact student learning. Do your students require specific technical knowledge or computer functionality such as a webcam? How will they interact in the online environment? What will you do to make your online classroom inclusive to all students?

    When transitioning to online teaching, educators also need to address technical issues. It is important to plan all of your components for an online course before the first day of class. Start early and seek collaboration and support from your colleagues, when possible. Many institutions have Centres for Teaching and Learning with experienced instructional designers who are able to help manage the transition for instructors and their students.

    Synchronous vs. Asynchronous Online Teaching

    Synchronous Online Teaching

    Synchronous online teaching occurs in real-time through video conferencing platforms like Zoom, Go-to-Meeting and YouTube Live. When used with an online teaching platform or learning management system, synchronous online teaching allows educators to continue many of the same learning activities found in an in-person classroom. Learners can access lecture slides, respond to interactive questions and engage with discussion threads with their peers.

    Delivering online teaching information and presentations in real-time creates a sense of speed and intimacy that helps increase student engagement. This allows educators to respond directly to student questions and discussions, provide feedback and adjust online teaching to ensure students are comprehending course material.

    To ensure synchronous online teaching is effective, it is important to have the proper technology tools and platforms in place. Ideally, video conferencing solutions should be used for delivering online lecture content, as well as an active learning platform or learning management system to support assessments, readings, live discussions and interactive questions. With large class sizes, having a remote teaching assistant is especially helpful in alerting instructors to any technical or experiential issues that may occur when using technology tools and platforms. Online teaching assistants can also provide support by responding to discussion threads directly or gathering commonly asked questions requiring further review and clarification.

    Similar to a physical classroom, it is important to balance content delivery with interactive learning activities, as well as building in time for review into the lecture schedule. A best practice is for course information to be presented in ten-minute chunks, followed by blocks dedicated for reflection exercises and interactive questions and discussions to keep students engaged.

    In the same way that the answers to in-class discussion questions inform how comprehensively course material is covered, it is important to be able to understand where students are struggling. This includes using low stakes quizzes and discussion questions to ensure students are able to achieve online teaching objectives. Synchronous online teaching provides opportunities to apply concepts and collaborate, helping to deepen learning. Real-time interaction is also particularly useful when it comes to delivering complex concepts that require immediate feedback or clarification to keep students on track.

    Asynchronous Online Teaching

    Asynchronous online teaching uses many of the same technology tools and platforms, with the main difference being student learning is self-paced. With asynchronous online teaching, educators deliver course content and assignments remotely using a combination of solutions like Zoom to record and post lectures online as well as learning management platforms to centralize assignments and other learning resources. Learners interact with digital courseware, assignments and their peers through discussion channels. Asynchronous online teaching is more convenient for students who may have children or other dependents as well as inflexible job hours. As well, not every student can afford or has easy access to the internet. The ability to learn on an individual schedule gives learners the flexibility they need to find time where they can engage with online course material. The benefit of this online teaching method is being able to utilize active learning techniques without the need for participants to be active at the same time.

    Asynchronous online teaching is particularly useful when it is difficult for your students to maintain a specific schedule. Accessing materials, readings, assignments, quizzes and lecture recordings in a single place allows students to engage with course material at their own pace. There are many simple ways to drive engagement even if much of the learning is self-directed, such as using discussion forums, integrating questions into assigned readings to test comprehension and using multimedia elements like video to dimensionalize learning. Asynchronous online teaching also provides the opportunity to promote peer collaboration, creating specific assignments that require students to work with one another or review others’ work outside the confines of a class schedule.

    Asynchronous learning requires online educators to take time to revisit learning objectives for the semester. Identifying whether there are components that can be recorded for students to view on their own schedule versus what information should be delivered live or asynchronously is an integral part of the design process. Giving thought to where students can access readings, lecture materials, assignments and instructions can help develop a more effective learning plan and identify any potential gaps that may exist in course instruction.

    Without the benefit of live interaction, it’s especially important to communicate expectations and reminders and address student questions in a timely fashion. Regular, helpful and empathetic communication is an essential tool for reducing the apathy and sense of isolation many students feel when learning remotely.

    Online Assessments

    When teaching online courses, there are two primary types of assessments: open-book tests and remotely proctored exams. There are a number of benefits to each, but the effectiveness of both is determined by how well they are designed and implemented into online teaching.

    Remote Open-Book Exams

    Online teaching provides the opportunity to look at different options beyond the traditional summative assessment. Open-book exams offer a great deal of flexibility, making it an ideal option for instructors or institutions that rely on asynchronous learning.

    An open-book assessment that is strategically designed provides interesting opportunities to test skills beyond rote memorization, such as problem-solving and critical thinking. Open-book exams are especially effective when they focus on using synthesis, analysis and evaluation to assess what students know, according to the Center for Teaching at Learning at UC Berkeley. The ability to intersperse questions with digital reference materials like images, video and audio clips also allow for more creativity and freedom when constructing an exam in relation to traditional in-class tests.

    Developing interactive digital documents with pictures and videos embedded alongside test questions creates a more dynamic assessment experience for students. Using multimedia and other reference content allows learners to discuss and assess opinions given to them within the assessment or analyze a diagram and its findings. Depending on the learning platform, open-book assessments can also include a variety of different question types, including matching, sorting, fill-in-the-blank, long-form answer and click-on-target (with multiple targets) questions.

    Proctored Tests and Exams

    In many cases, such as courses required for accreditation, open-book assessments are simply not an option. In these instances, there are a number of platforms that offer secure proctored tests and exams. Students can take on their own computers, at a pre-set time and from any location. Advanced ID verification, the ability to secure browser settings and the use of artificial intelligence to monitor students have helped assuage concerns over academic integrity.

    Using a variety of question types—multiple choice, word answer, fill in the blank, matching and long answer—instructors can provide students with an assessment that tests their knowledge as well as their analysis and communication skills. For these types of assessments, student performance can be automatically graded upon submission, making the turnaround time for student feedback much faster than manual grading.

    7 Best Practices in Online Teaching

    1) Bring who you are into the online classroom: One of the key benefits of traditional, face-to-face teaching is being able to share your passion with your students. Many educators use the performative aspect of teaching to their advantage, feeding off the energy in the classroom to deliver their lectures. However, it is easy for unique teaching characteristics—humor, emphasis, body language, facial expressions—to get lost in translation when a student can’t see or hear you. The predominant means of online communication is text, which can quickly become demotivating and uninteresting for students. It is necessary and inevitable that some components of your online course will be delivered through written communications. Assignment instructions, emails to students and weekly course-wide announcements can all be tailored to your unique voice and style:

    • Record yourself: audio or video recordings are a great way to bring your whole self to your students in addition to lecture videos (if you choose to use this functionality). Students need to know you in order to engage in learning online and showing them that you are human with a short video greeting at the beginning of your course is a great way to set the right tone.
    • Express your support: It’s important to infuse your writing with warmth when teaching online classes. As digital natives, Gen Z students are highly adept at sensing the tone of written digital communications. When reminding students about upcoming assignment deadlines, for example, don’t write, “A number of you have not completed the readings necessary for the assignment due later this week. Please note that the assignment is worth 40% of your grade.” Instead, write “Thanks for your hard work so far this semester. Small reminder to complete the specified readings before you start this week’s assignment. Please let me know what questions you have or if you need any help. Thanks all!”

    2) Be present and responsive on your online course site: Your presence is so important in teaching online college courses because it encourages bonding as the class evolves as a group and develops intellectual and personal connections. Thoughtful and consistent daily presence shows the students that the online educator cares about them and their questions and concerns, even if they are a part-time educator and busy with other responsibilities. It also shows that you are generally present for them to do the mentoring, guiding and challenging that online teaching is all about. Schedule a few hours of time each week to be visibly engaged and present in your online class. Here are a few ways to interact with your students:

    • Hold online office hours or virtual ‘coffee chats,’ to get to know your students on a more personal level.
    • Answer questions regularly in your course’s online discussion forum.
    • Post a weekly announcement to recap the previous week’s learnings or introduce the coming week’s content.

    3) Use a variety of large-group, small-group and individual learning experiences: Online teaching works best when a variety of learning experiences and activities are offered. Online courses are more enjoyable and effective when learners are given the opportunity to work through course concepts and assignments with their fellow students. However, some students learn and work most effectively on their own. Incorporating options and opportunities for students to work together and individually is beneficial for accommodating different types of learners. Small groups are particularly effective in online teaching when learners are working on complex case studies or scenarios for the first time. It is also important to have activities that involve the whole class such as discussion boards or events with invited experts for creating a sense of community in an online course.

    4) Ask for informal feedback on your online teaching: Early surveys or informal discussions are effective in getting students to provide feedback on what is working well in an online course. It is also a chance to solicit suggestions and ideas on what might help learners have a better online course experience. This early feedback should be done in week three or four of a semester so time is available to make corrections and modifications while the course is ongoing. A simple e-mail or discussion thread asking a few of these questions works well:

    • What’s working so far?
    • How could your online learning experience be improved?
    • What would you like help with?

    5) Think like a student: Teaching online means that the learning environment loses the built-in sense of community that comes more naturally to a traditional classroom environment. This can lead to feelings of isolation and disengagement and demands a different kind of support than teaching in person.

    Envisioning how your students will experience the class, having never learned this content before, helps prepare for these potential challenges. Did you give straightforward instructions for your extension policy? Have you supplied a detailed breakdown of how assignments will be graded? Are learning objectives and curriculum objectives explicitly tied to online teaching and learning activities? Students should ideally understand exactly what you are teaching online and what is expected of them as a result. Being intentional about course design is essential to ensuring students interact with course content the way that instructors intend. Here are a few ways to create a sense of community in the classroom:

    • Use a discussion board thread to have students share tidbits about their interests inside and outside of the classroom
    • Ask students to post pictures of their pets or what they’ve been watching on television (and be sure to share as well!)
    • Play music at the beginning of each lecture video

    6) Organize your content logically: When teaching online, the design and sequence of content and learning activities must be methodical, intuitive and systematic. Help students move through content and learning activities easily, so that their attention remains focused on learning the material. If they are required to leave a lecture module and use another drop-down menu or folder to watch a required video, that can be distracting—or frustrating if it’s complicated to find. When students use a lot of cognitive resources just trying to figure out where to go to access resources, they have less mental energy left for learning the content itself. This can be a bigger challenge for students who are already unmotivated in the first place. Instead, try to order materials and activities in a sequence that is straightforward and easy to navigate for students.

    7) Ground online teaching in reality: A variety of examples and explanations can help learners grasp course concepts in a way that makes the most sense to them. Examples are perhaps even more crucial in online teaching, since students don’t always have the opportunity to ideate with instructors or peers in the moment to clarify a course concept or missed detail. Online learners benefit from multiple explanations of difficult concepts and being prescriptive when it comes to the kind of work you want to see. Modelling behaviors is a good way to lead by example. For instance, use a friendly yet professional tone when writing discussion posts and assignment instructions. Demonstrate respect for diverse opinions and respect differences in learning. When you show students what you expect, they are likely to be more confident in their ability to make online learning successful. This positively impacts their motivation to engage meaningfully with course concepts, and participate in learning activities.

    Conclusion

    Online teaching can be quite different than teaching in a classroom. Teaching online requires specific competencies and skills associated with effective online course delivery and facilitation. However, it is clear that the ability to teach effectively in online environments is becoming more of a necessity than a nice-to-have in the higher education space. The good news is that there are many resources available as well as tools and platforms to support educators in making this shift. By combining the power of experience with the right technology, instructors can pivot their teaching practices online, increasing flexibility for students and accommodating the diverse needs of today’s learners.

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  • The Benefits of Distant Learning

    The Benefits of Distant Learning

    What is distance learning?

    Distance learning refers to the education of students who may not always be physically present at a school. Historically, this involved correspondence between an individual and an academic institution by mail. Today, it involves learning through online tools and platforms. A distance learning program can take place entirely in online learning environments, or a combination of distance learning and traditional classroom instruction (called blended or hybrid). Massive open online courses (MOOCs), offering large-scale interactive participation and learning resources, are more recent developments in distance learning. During the COVID-19 pandemic and subsequent campus closures, educators and institutions relied heavily on distance learning methods to complete the semester.

    Types of distance learning

    Within the scope of distance education there are two very important concepts: synchronous and asynchronous learning.

    Synchronous learning

    Synchronous learning requires some form of communication during classroom time. It has a less flexible learning plan because the classes are conducted on a set schedule using videoconferencing or live online webinars.

    • Fixed-time online courses are the most common type of distance education. Students sign into their online educational portal to access distance learning resources, including live class video streams. Using this method, students and instructors make use of live chats and discussion boards for communication.
    • Video conferencing takes advantage of tools and platforms, like Zoom, that have expansive capabilities and can be used globally. Video conferencing provides learning opportunities for students by allowing them to see their instructors and peers in real time, creating a sense of community in the virtual classroom.

    Synchronous distance learning most closely mirrors the typical in-class experience. Delivering course content virtually in real time creates a sense of intimacy and timeliness that is particularly effective for increasing student engagement. Depending on supporting technology, such as learning management platforms, educators can also respond directly to questions and discussions, provide feedback and use interactive polling and click-on-target questions to gauge comprehension and ensure students are moving in the right direction. This includes the ability for attending students to access lecture slides, engage with their peers in discussion threads, and answer interactive questions.

    Synchronous learning provides opportunities to apply concepts and collaborate. It’s especially useful when teaching material that requires immediate feedback or clarification to keep students on track. There are important social benefits as well. Given the new normal students and faculty find themselves contending with, the opportunity to connect with peers, work together and see each other can go a long way in alleviating the sense of isolation many may feel when learning in a virtual environment.

    Asynchronous learning

    Asynchronous learning allows the student to work at their own pace, and normally has a very distinct syllabus, with weekly deadlines for homework and other assignments. Students have regular access to their peers and their instructors, although this is typically managed through email and discussion boards.

    • Open schedule online courses give students the greatest amount of freedom. All deadlines are pre-set and students are encouraged to be self-sufficient and complete their assignments on their own timelines. Without dedicated class time, students complete their coursework whenever they choose to allot the time to do so. Final exams normally occur at the end of the semester, and are open for several days to provide students with some flexibility as to when they choose to take it.
    • Hybrid distance education combines synchronous and asynchronous methods of online learning. Students must adhere to specific predetermined deadlines for assignment completion. The majority of the coursework is completed online, but in some cases, the student can physically speak with an instructor in person through live chats or video conferencing. Hybrid distance education may also include attending a physical classroom for certain periods of time. Conversely, it may involve covering specific modules and then returning to distance learning to complete additional modules and assignments.

    Asynchronous learning is particularly beneficial if students with varying levels of Internet access find it difficult to follow a specific schedule. Accessing all course materials, readings and assignments in a single place allows students to explore topics in detail and at their own pace. Discussion forums and one-to-one communications through email are simple ways to create engagement, even if much of the learning is self-directed. Asynchronous learning also provides the opportunity for instructors to promote peer collaboration, creating specific assignments that require students to work with each other or review each other’s work outside the confines of a class schedule.

    Without the benefit of live interaction, it’s especially important for students and instructors alike to communicate—or over-communicate —as the case may be. One of the disadvantages of asynchronous learning is student apathy and isolation. Taking time to set course expectations, provide clear assignment instructions and responding to student emails and discussion thread posts are essential.

    How distance learning impacts students

    There are many advantages to distance education. Online courses provide a more accessible learning experience for students. Accessibility in higher education means all students are provided with an equal opportunity to access course materials. This should be top of mind for educators in planning how to deliver their courses. It is no longer realistic to expect that all students have access to online materials outside of the traditional classroom, and even when they do, it’s important to take time to orient students properly. A Top Hat survey of more than 3,000 students found that 28 percent reported difficulty navigating and using online learning resources and tools. Accessibility goes hand-in-hand with flexibility: letting students choose how and where learning takes place can reduce barriers associated with finding success in higher ed.

    Forming an accessible course starts with giving careful consideration to ensuring all students can benefit from your teaching model.

    In online learning environments, students may feel isolated from their peers and campus communities. Participation has therefore become even more important with the shift to remote education. With in-person learning, instructors can gauge by a show of hands who understood your course material. In an online environment, opportunities for participation, such as discussion questions interspersed throughout lecture presentations, can help bridge the gap. Engagement in the classroom may start with icebreaker activities and diagnostic assessments. From here, instructors should consider introducing more collaborative activities such as case studies and debates to ensure students have ample opportunity to put theory into practice.

    Academic success isn’t the only concern students face. Stable housing facilities and regular access to food, along with physical and mental health resources are also top of mind for today’s college students. This is particularly in the midst of the coronavirus pandemic. Empathetic teaching practices, such as shortening lecture modules to provide students with key takeaways and making those lectures available for students to review on their own, are essential in creating supportive learning communities. Empowering students starts with respecting their individual needs and circumstances. It’s also important to dedicate time to connect with students beyond the actual class schedule. As part of the responsibilities of teaching in an online learning environment, instructors should set aside time to answer students’ questions, provide feedback and connect with them on a more personal level, similar to on a social media site.

    The future of distance learning

    Students were okay with “good enough” online education at the height of the pandemic and subsequent school closures, according to Top Hat’s COVID-19 State of Flux Survey results. But they will be less likely to put up with subpar learning in the coming semester. The good news is that many students see value in the flexibility of virtual learning. In fact, around a third of students would prefer a blended approach, with both in-person and online components. The key to success is improving the online experience and ensuring students see the return on their academic investment.

    It is clear that distance learning is here to stay. The fall semester is approaching and pressure on institutions to be ready to teach effectively is increasing. Regardless of what the situation on college campuses looks like in the fall, it is paramount to ensure students see the value of investing their time and effort in courses that may need to be delivered online.

    Even when institutions reopen their physical doors and life returns to ‘normal,’ the ability to teach online, in-person or some combination of the two will yield important benefits in terms of flexibility, as well as dimensionalizing the learning experience. As educators and students grow more comfortable and more confident with the virtual classroom, so do the opportunities to infuse learning with new experiences and new possibilities.

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  • HR and the Courts — May 2024 – CUPA-HR

    HR and the Courts — May 2024 – CUPA-HR

    by CUPA-HR | May 14, 2024

    Each month, CUPA-HR General Counsel Ira Shepard provides an overview of several labor and employment law cases and regulatory actions with implications for the higher ed workplace. Here’s the latest from Ira.

    Unions Representing Student Employees File Unfair Labor Practice Charges Related to Student Protests

    Nearly 30 unions representing more than 100,000 student workers at 58 campuses throughout the country have issued a joint letter supporting protesting students and condemning violent responses to peaceful protests. Unfair labor practice charges have also been filed with the National Labor Relations Board against a small number of private institutions in protest of schools’ enforcement of their rules.

    The NLRB has found in the past that civil rights protests — for example, those connected to the Black Lives Matter movement — are protected concerted activity when they are tied to protesting employer or employment discrimination matters. However, commentators have drawn a distinction related to the Israel-Hamas war protests. While each unfair labor practice case will rise and fall on the specific facts related to the situation, a university enforcing safety rules and cracking down on protests will likely not violate the National Labor Relations Act. Additionally, if a union member participates in a protest unrelated to their employment and violates university rules, the sanctions involved will likely not violate the NLRA.

    Court of Appeals Affirms Dismissal of ERISA Lawsuit Against Georgetown University

    The U.S. Court of Appeals for the District of Columbia Circuit unanimously affirmed the dismissal of an employee-filed Employee Retirement Income Security Act lawsuit. The lawsuit claimed that Georgetown University had packed its retirement plans with expensive and badly performing investment options.

    The lawsuit further alleged that Georgetown had offered its faculty and staff retirement plans with too many investment options and retained multiple recordkeepers, which drove up the administrative costs of the plans. A federal district court judge dismissed the amended complaint in April 2023, ruling that the amended complaint did not address the concerns that led to the dismissal of the original complaint.

    The Court of Appeals unanimously concluded that the original complaint failed to plead any adequate claims and the proposed amended complaint was futile as it did not cure the problem (Wilcox et al. v. Georgetown University et al. (Case no. 23-7059, DC Cir. 4/23/24)).

    Student-Athlete NLRB Unionization Decisions May Modify Taxability of Athletic Scholarships

    Although the NLRB’s decision in the Dartmouth College men’s basketball team case is under review, if the board affirms the decision that players are employees and can unionize, it could ultimately cause the IRS to rethink its current position that student-athletes receiving scholarships are not employees for purposes of the tax code. This could possibly include a change in the current position that these scholarships are not taxable as income.

    If the NLRB affirms the regional director’s decision, which many commentators conclude is likely given its composition under the Biden administration, the decision is not binding for the IRS. The IRS has independent authority to conclude whether these student-athletes are employees and are receiving taxable compensation in the form of scholarships under the Internal Revenue Code. Separately, the courts are wrestling with the question of whether student-athletes are employees under the Fair Labor Standards Act and are entitled to minimum wage and overtime. We will keep following these issues as they unfold.

    IRS Giving More Scrutiny to Tax-Exempt Status of Name, Image and Likeness Payments to Student-Athletes From Booster Donations

    Bloomberg reports that the IRS has begun revoking and not granting 501(c)(3) status to some groups formed to collect money from boosters to fund name, image and likeness payments to student-athletes. In testimony before the Senate finance committee, the IRS commissioner stated that they are scrutinizing those NIL groups that are not operating for tax-exempt purposes. These collectives have raised millions of dollars from boosters who generally expect those gifts to be tax deductible. For specific tax guidance, a tax professional should be consulted on questions arising in this area.

    U.S. Supreme Court Rules Job Transfers Can Violate Title VII and Other Anti-Discrimination Statutes

    The Supreme Court ruled unanimously on the issue of whether a plaintiff must prove significant harm to state a claim of discrimination under the applicable anti-discrimination statutes because of a job transfer. The court reversed the holdings of some circuit courts of appeal that “significant harm” must be stated to state a claim of job discrimination resulting from a job transfer.

    Nonetheless, the Supreme Court stopped short of eliminating the harm requirement entirely. The court held that a plaintiff must show that the transfer resulted in some level of injury or harm, concluding that the statute does not require by its terms the high bar of “significant” harm (Muldrow v. St. Louis (U.S. Case No. 22-193, 4/17/24)). The concurring justices, who did not dissent, argued that the change from significant harm to some other lower level of harm was confusing and would lead to further inconsistent litigation.

    NLRB Reports 10% Rise in Case Load in First Half of Fiscal Year 2024

    The NLRB reports that case filings of unfair labor practice charges or union representation votes rose 10% during the first half of fiscal year 2024 compared to the same period in the previous fiscal year. Union election petitions rose by 35% during this period, and unfair labor practice charges rose by 7%. The NLRB has jurisdiction over private institutions of higher education and has no jurisdiction over state-based public institutions. State public institutions are generally subject to state labor boards and state statutes with separate, but often parallel, rules. This uptick in private employer unfair labor practice charges and election petitions will likely be accompanied by an increase in activity by public-sector unions at public institutions of higher education.



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  • Department of Education Issues Guidance on Discrimination Policies Under Title VI – CUPA-HR

    Department of Education Issues Guidance on Discrimination Policies Under Title VI – CUPA-HR

    by CUPA-HR | May 13, 2024

    On May 7, the Department of Education’s Office for Civil Rights (OCR) issued a “Dear Colleague” letter to offer guidance on schools’ responsibilities to prevent and rectify discrimination based on race, color, or national origin, including shared ancestry or ethnic characteristics, under Title VI of the Civil Rights Act of 1964 and its implementing regulations. The guidance aims to provide examples to institutions to help them carry out their Title VI requirements.

    In its letter, OCR explains that it has received an increase in complaints alleging discrimination based on race, color, or national origin at colleges and universities, as well as public reports of such discrimination. While it does not explicitly state that the guidance is in response to reports of antisemitism on campuses and protests regarding the Israel-Hamas war, the department emphasizes in the letter that Title VI’s “protections extend to students and school community members who are or are perceived because of their shared ancestry or ethnic characteristics to be Jewish, Israeli, Muslim, Arab, Sikh, South Asian, Hindu, Palestinian or any other faith or ancestry,” and that “Title VI’s protections against discrimination based on race, color and national origin encompass antisemitism.”

    Additionally, the letter addresses First Amendment considerations, as well as two legal frameworks used by OCR and courts to assess whether schools have violated Title VI through discrimination: hostile environment and different treatment. The guidance illustrates nine examples that may prompt OCR to investigate an institution for possible Title VI violations within these two frameworks. Of particular importance for higher ed HR are the instances outlined in the letter when educators and other faculty members might engage in actions constituting harassment under Title VI, as well as schools’ obligations to address such incidents.

    As OCR notes, the guidance lacks the authority of law and does not impose obligations on the public or establish new legal standards. Instead, its purpose is to provide clarity to institutions receiving federal financial assistance regarding their requirements under Title VI. CUPA-HR will continue to share resources regarding institutions’ obligations to address discrimination under federal law.



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  • More Than Half of Financial Aid Employees Likely to Seek Other Employment Within the Next Year – CUPA-HR

    More Than Half of Financial Aid Employees Likely to Seek Other Employment Within the Next Year – CUPA-HR

    by CUPA-HR | May 13, 2024

    A majority of those who work in financial aid at the nation’s colleges and universities are job hunting, according to new research from CUPA-HR and the National Association of Student Financial Aid Administrators (NASFAA). What are they looking for? Better pay, opportunities to work remotely and a more flexible schedule.

    A new report examining pay, pay equity, staffing, representation and retention in the higher ed financial aid workforce outlines several findings from analyses of data of financial aid employees from CUPA-HR’s 2022-23 higher ed workforce surveys and the 2023 Higher Education Employee Retention Survey. Positions included in the analyses are chief student financial aid officers, deputy heads of financial aid and student financial aid counselors.

    The analyses found that more than half (56%) of financial aid employees are at least somewhat likely to seek other employment opportunities within the next 12 months, with 1 in 3 (33%) being likely or very likely to do so. Four in 5 (79%) rank a pay increase as one of the top three reasons they would seek other employment opportunities, while 3 in 5 (59%) rank an opportunity to work remotely as one of the top three reasons they would seek other employment opportunities. The desire for a flexible schedule is also ranked as a top reason for seeking other employment by nearly 2 in 5 (37%) financial aid employees.

    Other Findings

    • Institutions with the highest number of FAFSA applications have far more student financial aid counselors than institutions with the lowest number of FAFSA applications. At each increase in FAFSA application quartile, the median number of student financial aid counselors per institution doubles (or nearly doubles). Institutions with the greatest number of FAFSA applications on median have six more student financial aid counselors than institutions with the least number of FAFSA applications.
    • On median, institutions have four financial aid employees working in one of the three examined positions. Thirteen percent of institutions have a one-person financial aid office. Even the institutions that process the lowest number of FAFSA applications tend to have need for more than one person working in their office – over half of these institutions have at least three people in their financial aid office.
    • The representation of people of color declines as the level of financial aid position increases. The representation of people of color is almost two times higher among student financial aid counselors than among chief student financial aid officers. The representation of women overall among chief student financial aid officers is lower than the representation of women within the lower-level financial aid positions, but the difference is much smaller than the declines seen for people of color.
    • Pay equity is lower among chief student financial aid officers than among lower-level financial aid positions. Black women and Hispanic or Latino men are paid equitably within student financial aid counselor and deputy head of student financial aid positions, but not within the chief student financial aid officer position. At each increase in position level, White women’s pay relative to White men in the same position decreases. White women are paid equitably to White men in student financial aid counselor positions but are paid only 94 cents per $1 paid to White men in chief student financial aid officer positions.
    • Among financial aid employees, years in position is lowest among student financial aid counselors. Of all financial aid positions, student financial aid counselors have the highest concentration of people who have been in their position for fewer than two years (43%). Retention is better among deputy heads of student financial aid and chief student financial aid officers; one-third have been in their position for 10 years or longer.

    Read the full report, The Higher Education Financial Aid Workforce: Pay, Representation, Pay Equity, and Retention, and explore the interactive graphics.



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  • On the right track – Sijen

    On the right track – Sijen

    In March 2024, in response to New Governmental mandates that all state schools (publicly funded schools) ban all mobile phones from classrooms and playgrounds during school hours, I wrote a blog piece for the Flexible Learning Association of New Zealand. It was a balanced for-and-against piece, highlights arguments for both perspectives.

    My actual views, my personal views, are somewhat different. I have no insight into the government policy space but it worries me that this is the first stage of what should be a three stage policy implementation when noone has got passed stage one.

    The mobile phone as a means of making or receiving voice calls and phone messages, possibly even SMS text messages, are not likely to be overly  intrusive. However, even this argument doesn’t survive even a cursory glance at recent history. It stands up about as well as Trump’s suggestion that without total immunity all US Presidents would be continuously harangued by their successors, as though he was the first rather than the forty-fifth to hold that office. History tells us that students survived before the advent of the mobile phone. As they had indeed survived before the introduction of the ball-point pen, the ink pen, and the chalk board.

    Stage One: removing social media

    The distinction to be made is not whether students NEED to have access to a mobile phone in order to learn, both knowledge acquisition and associatedcognitive skills, and social interpersonal and affective skills, (spolier, they do not), it is rather a question as to WHETHER mobile phones are an appropriate means of exposing progressive generations of students to emerging technologies andthe power they harness.

    Until mobile phone manufacturers take their responsibility for limiting most egregious damage created by young people’s addiction to social media andintroduce some form of ‘airflight mode’ for schools, ideally accurately GPS mapped and enforceable, the onus will be on school management, teachers and parents to enforce a ban. (Heads up to any of the major handset manufacturers, having a youth-safety mode function is a market share winner.)

    Here in New Zealand, there is strong, though largely still anecdotal, evidence that playgrounds are noisier, more energetic and happier places sincethe ban was introdced, and that in-class attention is more sustained and better managed. There are even suggestions that there is a detectable reduction in cyberbullying.

    Stage Two: infuse technology

    So, on balance taking the mobile phones, as an instrument of constant social distraction rather than as a tool for communication, out of schools makes sense. However, I would personally like to ensure that schools are supported to infuse technology throughout the curriculum. We need to consider what a technology infused school looks like, free of social media distraction. Schools might consider providing tablets for each student to ensure digital equity. Students need to learn how to manage their digital profile, articulate what a digital-twin persona might look like, express themselves digitally as well as learning just to be confident surfers, clickers and users of a wide variety oftools.

    In less economically prosperous areas of the world the mobile phone provides a personal gateway to resources and interactivity and the price we pay, as a society, is the corrosive, addictive behaviour that social media creates. In wealthier areas I believe we can throw away the baby (social media handheld devices) without losing the bathwater (digitally immersive tools).

    Stage Three: lobby handset manufacturers

    Given that there is no incentive for the social media companies to face upto their responsibilities and curtail usage of their apps, they will simply to continue, as the tobacco industry did before them and the food industry does today, to deny and deny, and obscure the worst of their excesses under the banner of ‘user choice’. We need to lobby leading device manufacturers, Apple,Samsung, Google, Sony, Motorola, Huawei, OnePlus, Nokia, Blackberry and LG,to step up and introduce serious zone based protections. And aggressively market them!

    We don’t need social media apps in schools but we do need to enable access to technology in our classrooms.

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  • Voluntary Turnover in the Higher Ed Workforce Is Trending Downward – CUPA-HR

    Voluntary Turnover in the Higher Ed Workforce Is Trending Downward – CUPA-HR

    by CUPA-HR | May 8, 2024

    The workforce retention challenges higher education has been experiencing post-pandemic might just be letting up. A recent trend analysis of turnover data collected in CUPA-HR’s annual higher education workforce surveys found that in 2023-24, voluntary turnover rates for faculty and staff trended downward for the first time in three years.

    CUPA-HR began collecting turnover data in 2017-18. In the three years prior to the pandemic, there was little variability year to year in voluntary turnover (voluntary separations not due to retirement), and in the year immediately following the pandemic’s onset (2020-21), there were slight dips in voluntary turnover for each category of staff and faculty, likely due to the economic uncertainty that characterized that year. However, voluntary turnover trended upward in 2021-22 and again in 2022-23, with the highest voluntary turnover occurring in 2022-23.

    The largest decline in voluntary turnover rates was for part-time non-exempt staff (down 6.4 percentage points, from 21.4% in 2022-23 to 15.0% in 2023-24). However, there were notable declines in voluntary turnover for full-time exempt staff and full-time non-exempt staff as well.

    Findings on Overall Current Turnover

    • In considering turnover from all types of separations (i.e., voluntary and involuntary), overall turnover of faculty and staff combined in 2023-24 was 14%. Turnover in 2023-24 was higher than pre-pandemic rates (approximately 12%), but lower than the 16% high of 2022-23.
    • In 2023-24, overall turnover was highest for part-time non-exempt staff (22%) and lowest for faculty (7% for tenure-track and 11% for non-tenure-track faculty).
    • Involuntary turnover rates were highest for full-time non-exempt staff (2.1%) and full-time exempt staff (1.4%). Retirement rates were highest for tenure-track faculty (2.2%) and full-time non-exempt staff (2.0%).

    Explore the Higher Ed Workforce Turnover interactive graphics.



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  • EEOC Finalizes Guidance on Workplace Harassment – CUPA-HR

    EEOC Finalizes Guidance on Workplace Harassment – CUPA-HR

    by CUPA-HR | May 8, 2024

    On April 29, the U.S. Equal Employment Opportunity Commission issued final guidance on workplace harassment and discrimination titled “Enforcement Guidance on Harassment in the Workplace.” The guidance clarifies existing employer obligations to address workplace discrimination and aims to assist employers in recognizing, managing and preventing in-person and online workplace harassment.

    Background

    The EEOC administers and enforces Equal Employment Opportunity law to protect workers against workplace discrimination. As such, the EEOC issues guidance to help employers and employees understand their obligations and rights under EEO law to a workplace free from discrimination. In October 2023, the EEOC issued its proposed guidance on harassment in the workplace, in which they provided an overview and examples of situations that would constitute workplace harassment. The EEOC received over 38,000 comments from the public in response to the proposed guidance, which they analyzed to develop the final guidance summarized below.

    Summary of Final Guidance

    The EEOC’s final guidance aligns with and expands upon the proposed guidance and revises previous EEOC workplace harassment and discrimination guidance to address significant legal developments in recent years. Specifically, the guidance includes new overviews of workplace protections against harassment based on sexual orientation and gender identity, which the 2020 Supreme Court Bostock v. Clayton County ruling established as precedent. The guidance also addresses pregnancy, childbirth and related medical conditions as protected characteristics under the scope of “sex.” Though pregnancy has previously been protected against workplace harassment under laws like the Pregnancy Discrimination Act, recent laws like the Pregnant Workers Fairness Act and its implementing regulations have strengthened the protections afforded to pregnant workers, necessitating the need for the EEOC to update its guidance.

    In addition to the expanded scope of sex, the EEOC also includes new guidance on potential challenges relating to social media and the workplace. This includes conduct occurring in a non-work-related virtual setting (such as social media platforms or private messaging systems on personal computers or phones) that could impact the workplace. In the guidance, the EEOC provides scenarios in which certain messages shared via private messages on phones or posts shared on social media platforms about employees could create hostile work environments, triggering the requirement for employers to correct the situation.

    In total, the guidance provides 77 examples to explain harassment and discrimination in the workplace, hostile work environments, employer liability and obligations to correct workplace harassment and discrimination, and systemic harassment. As the EEOC noted in the proposed rule, the guidance and its examples “do not have the force and effect of law and are not meant to bind the public in any way.” Instead, the guidance is “intended only to provide clarity to the public regarding existing requirements under the law or agency policies.”

    In addition to the guidance, the EEOC also published educational materials for employers and employees seeking direction and support on harassment prevention strategies, including a summary of key provisions, an FAQ for employees, and a fact sheet for small businesses.

    CUPA-HR will keep members apprised of further EEOC guidance on discrimination and harassment in the workplace.



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  • My Aha Moments From the Spring Conference – CUPA-HR

    My Aha Moments From the Spring Conference – CUPA-HR

    by CUPA-HR | May 8, 2024

    This blog post was contributed by Jennifer Addleman, director of human resources at Rollins College and 2024-25 chair-elect for the CUPA-HR Southern Region board.

    Spring had sprung in Minneapolis, Minnesota, at the CUPA-HR Spring Conference, where more than 400 higher ed HR pros had the opportunity to connect with and learn from some of the brightest HR leaders in higher education. From three dynamic keynotes to 29 interactive concurrent sessions, the conference provided a platform to engage in meaningful discussions, network with peers and gain valuable knowledge to help navigate the dynamic profession of higher ed HR.

    The conference was full of aha moments, and here are some of my key takeaways:

    • Kris McGuigan, founder and principal owner of Professional Courage, kicked off the conference by sharing tips on leading with purpose and confidence. During her keynote, we had the opportunity to reflect on our own personal values and how they align with change, and reviewed the principle of A.C.E.: acknowledge change, connect to change and embrace failure. Reminding us that there is no perfect time to start, Kris stressed that not changing is still choosing.
    • During the first concurrent session, Washington State University’s Paul Fleming McCullagh and Laura Hamilton shared how they created a professional development program for all employees. “If you can dream it, do it!”
    • Kevin McClure, Murphy distinguished scholar of education and associate professor of higher education at the University of North Carolina Wilmington, gave a thought-provoking keynote on creating the “caring university.” He warned against toxic positivity and emphasized that creating a culture of care is a shared responsibility of the entire institution, and we reviewed the U.S. Surgeon General’s framework for mental well-being in the workplace. Kevin also suggested that institutions should humanize policies for real people and not ideal worker norms.
    • The affinity group lunch provided an opportunity for folks to connect with HR professionals who have similar interests and skills. I met HRIS colleagues who shared their challenges and best practices with systems. Data, data, data!
    • Andy Brantley (president and CEO of CUPA-HR), Jazzmine Clarke-Glover (vice president of workplace culture and inclusion at Wagner College), and Helena Rodrigues (senior vice president and chief human resources officer at the University of Arizona) led a roundtable discussion regarding HR’s role in creating inclusive campus communities. How do we reinforce our institutional values by ensuring all employees feel connected and supported? Some comments shared by the group included focusing on outcomes, making your institution a great place to work for everyone, fostering a safe space for challenging conversations, encouraging employees to build relationships, and developing inclusive policies.
    • We had the opportunity to network, connect and sing karaoke at the Punch Bowl Social reception, where I learned that we have some talented singers among our profession!
    • Keynote speaker Amy Wrzesniewski, William and Jacalyn Egan Professor at the Wharton School of the University of Pennsylvania, shared her research findings on job crafting and what makes our work meaningful. We were able to take a quiz to determine our career, calling, and job scores and how they impact our job satisfaction. Amy also shared that job crafting is an employee-driven activity but should be supported by managers. I left the session reflecting on the question, how I do I make the job my own?
    • John Whelan, vice president and CHRO at Yale University, and Michael Rask of Aon described the importance of a strategic plan for HR and how it’s like the sails on the organizational sailboat. They warned against committing to things we can’t deliver and shared that folks appreciate change when it is for them and through them, not to them.
    • This was my first time visiting Minneapolis, and I was pleasantly surprised by the art, culture and walkability. Thank you for the hospitality!
    • CUPA-HR continues to provide invaluable resources and conference experiences where everyone is willing to help each other and share their expertise. I feel energized catching up with friends I have come to know over the years and meeting new colleagues who share passion for what we do. Thank you to the CUPA-HR team, sponsors and presenters for a great event.
    • Finally, Andy Brantley summed up the Spring Conference well: “Your work matters. You matter more.”



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  • DOL Issues Guidance on AI in the Workplace – CUPA-HR

    DOL Issues Guidance on AI in the Workplace – CUPA-HR

    by CUPA-HR | May 8, 2024

    On April 29, the Department of Labor Wage and Hour Division (WHD) issued a Field Assistance Bulletin on “Artificial Intelligence and Automated Systems in the Workplace Under the Fair Labor Standards Act and Other Federal Labor Standards.” The bulletin provides guidance on the applicability of the FLSA and other federal labor standards as they relate to employers’ increased use of artificial intelligence and automated systems in the workplace.

    Background

    In October 2023, President Biden released an Executive Order on the “Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence” and directed agencies across the federal government to take action to address the increased use of AI in all areas of life. With respect to AI in the workplace, the order directed the U.S. Secretary of Labor to “issue guidance to make clear that employers that deploy AI to monitor or augment employees’ work must continue to comply with protections to ensure that workers are compensated for their hours worked, as defined under the Fair Labor Standards Act (…) and other legal requirements.” The Field Assistance Bulletin is the first response from the DOL to the Executive Order’s directive, though additional guidance may be provided in the future.

    Summary of Guidance

    The bulletin discusses existing employer obligations to comply with and avoid penalties under relevant federal labor laws. It also clarifies that the use of AI and other technologies does not absolve employers of their responsibilities to comply with such laws. CUPA-HR’s government relations team has summarized the key points of the guidance below.

    AI and the FLSA

    The guidance highlights employers’ obligations to pay employees at least the federal minimum wage for all hours worked and at a rate of at least one and one-half times their regular rate of pay for every hour worked in excess of 40 in a single workweek. As such, WHD recognizes that employers have implemented AI and other automated systems to comply with these requirements, including implementing systems to help track work time, monitor break time, assign tasks to available workers, and monitor work locations. Additionally, WHD provides examples of AI and other technologies employers use to help calculate wages owed under the FLSA.

    WHD also recognizes that AI has the potential to undercount hours worked or miscalculate wage rates owed to employees. Regardless of the use of AI, WHD states in its guidance that “employers are responsible for ensuring that they are paying employees for all hours worked” under the FLSA and that “employers are responsible for ensuring that the use of AI or other technologies to calculate and determine workers’ wage rates does not cause workers to be paid in violation of” the FLSA and other applicable federal wage standards. As such, WHD suggests that employers exercise human oversight over the technologies to ensure they are not violating the FLSA.

    AI and the Family and Medical Leave Act

    Similar to WHD’s discussion of employers’ obligations to adhere to the requirements of the FLSA, the bulletin provides guidance on employers’ responsibilities to adhere to the requirements of providing Family and Medical Leave Act leave when using AI and other automated systems. WHD once again recognizes that some employers use AI and other tools to process leave requests, determine whether an employee has provided proper certification that supports the need for FMLA leave, or track the use of FMLA leave. As a result, WHD states that employers should oversee the use of AI or automated systems used to implement FMLA leave “to avoid the risk of widespread violations of FMLA rights when eligibility, certification, and anti-retaliation and anti-interference requirements are not complied with.”

    AI and Nursing Employee Protections

    WHD also provides guidance for employers’ use of AI as it relates to nursing employees’ rights to reasonable break time and space to express breast milk while at work, as protected under the FLSA and the Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act). The bulletin states that, though employers may use AI to track employee work hours, set work schedules, and manage break time requests, any instance in which automated systems “limit the length, frequency, or timing of a nursing employee’s breaks to pump would violate the FLSA’s reasonable break time requirement.” The guidance also states that systems that score productivity and/or penalize workers for failing to meet productivity standards due to pump breaks would violate the FLSA. Finally, they clarify that automated systems that require nursing employees to work additional hours to make up for time spent during pump breaks or that reduce the hours scheduled in the future for workers because they took pump breaks would be considered “unlawful retaliation” under the FLSA. WHD therefore provides that “employers are responsible for ensuring that AI or other automated systems do not impose adverse actions on employees for exercising their rights to pump at work.”

    AI and the Employee Polygraph Protection Act

    The bulletin provides an overview of the Employee Polygraph Protection Act (EPPA) and most private employers’ prohibition from using lie detector tests on employees or for pre-employment screenings. In light of this law, WHD recognizes that AI technologies have been developed to “use eye measurements, voice analysis, micro-expressions, or other body movements to suggest if someone is lying or detect deception.” As such, WHD reaffirms that EPPA prohibits covered private employers from using AI technology as a lie detector test.

    AI and Prohibited Retaliation

    Finally, the bulletin covers protections against retaliatory conduct provided under the FLSA and other laws administered by WHD to employees who have filed complaints about potential violations of their rights. As a result of these protections, WHD states that “the use of AI and other technologies by employers to take adverse action against workers for engaging in protected activities under one or more laws enforced by WHD constitutes unlawful retaliation.” Additionally, WHD clarifies that the use of AI to surveil the workforce for protected activity and to take adverse actions could violate anti-retaliation protections under the FLSA and other laws. As such, WHD reminds employers in the guidance that they are responsible for compliance with anti-retaliation provisions regardless of whether they incorporate AI technology into their business practices.

    CUPA-HR will continue to monitor for additional guidance from federal agencies as it relates to the use of AI in the workplace.



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