Category: Compliance/Legal Issues

  • CUPA-HR Sends Letter to Congress Asking for DACA Protections – CUPA-HR

    CUPA-HR Sends Letter to Congress Asking for DACA Protections – CUPA-HR

    by CUPA-HR | November 22, 2022

    On November 17, CUPA-HR joined the American Council on Education (ACE) and over 60 other higher education associations in sending a letter to House of Representatives and Senate leadership urging Congress to pass permanent protections for the Deferred Action for Childhood Arrivals (DACA) program after recent court decisions have left the status of the program in limbo.

    On October 5, the U.S. Court of Appeals for the Fifth Circuit unanimously upheld a 2021 ruling by the lower Court in the Southern District of Texas that enjoined the DACA program and vacated the 2012 Department of Homeland Security (DHS) memorandum that originally established the program. The Fifth Circuit agreed with the lower court’s finding that the promulgation and enforcement of the DACA memorandum violated the Administrative Procedure Act but noted that the Biden administration had finalized a new DACA regulation in August, leading the Appeals Court to send the case back to the Texas District Court to consider the legality of the August rulemaking. On October 14, however, the Texas District Court ruled against the final rule, arguing that the existing injunction blocking the 2012 memorandum also covered the new final rule.

    As a result of these rulings, the DHS is blocked from accepting new applications for the DACA program, but the agency is permitted to continue renewing existing protections to current DACA beneficiaries. DHS Secretary Alejandro Mayorkas issued a statement in response to the Texas Court’s decision saying “It is clearer than ever that only the passage of legislation will give full protection and a well-deserved path to citizenship for DACA recipients. I urge Congress to swiftly pass legislation to provide permanent protection to the hundreds of thousands of Dreamers who call the United States home.”

    ACE’s letter states the urgency with which Congress needs to act to ensure protections are granted to DACA recipients. The letter specifically asks Congress to pass legislation to provide DACA protections to current and future beneficiaries before the 117th Congress ends January 3, 2023.

    CUPA-HR will keep members apprised of any updates on the status of the DACA program.



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  • HR and the Courts – November 2022 – CUPA-HR

    HR and the Courts – November 2022 – CUPA-HR

    by CUPA-HR | November 8, 2022

    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.

    EEOC Disavows Publicly-Expressed Views of Former General Counsel Regarding Abortion Travel Issues 

    The Equal Employment Opportunity Commission (EEOC) took the rare step of publicly disavowing the views expressed by its former general counsel who was appointed during the Trump administration and replaced during the Biden administration. The EEOC stated on October 31, 2022 that its former general counsel expressed her personal views, not that of the agency, when she warned that employers providing travel assistance to employees seeking an abortion but not for other procedures might be sued by the EEOC. Nonetheless, this is a developing area of the law and counsel should be consulted on these issues.

    Supreme Court Hears Oral Argument Over Continuation of Affirmative Action In College Admissions

    The Supreme Court heard oral argument over the continuation of Affirmative Action in college admissions on October 31, 2022 in Students for Fair Admissions (SFFA) v. Harvard and Students for Fair Admissions (SSFA) v. University of North Carolina (UNC). The first major Supreme Court decision involving Affirmative Action in college admissions occurred in 1978 in University of California v. Bakke. In Bakke, a divided Supreme Court approved the University of California’s Affirmative Action plan with four justices ruling in favor of the plan and four justices ruling that the Affirmative Action plan violated the constitution. The remaining solo opinion of Justice Lewis Powell coupled with the four votes in favor of Affirmative Action became the precedent. Justice Powell concluded that a race-conscious admissions program could theoretically satisfy constitutional strict scrutiny by being narrowly tailored to promote a diverse student body.

    In 2003, a majority of the Supreme Court endorsed Justice Powell’s solo opinion in Grutter v. Bollinger when Justice Sandra Day O’Connor added in the majority opinion that the Court expects that such policies will no longer be necessary in 25 years.

    The Supreme Court set aside two hours to hear oral argument in two lawsuits brought by the SFFA, an anti-Affirmative Action group, against Harvard University and the University of North Carolina. The SFFA wants the Supreme Court to overturn Justice Powell’s solo opinion in the Bakke case and end consideration of race in college admissions. The group argues among other things that current Affirmative Actions policies routinely discriminate against Asian Americans who do not receive racial preferences. Both colleges deny that Affirmative Action policies discriminate against Asian Americans.

    To complicate matters further, both cases were coupled for oral argument, but were uncoupled and heard separately because Justice Ketanji Brown Jackson recused herself for the Harvard case because of past work on Harvard’s Board of Overseers.

    Supreme Court Considers Long-Standing Preemption of State Laws Barring Employer State-Based Claims of Destruction of Property During Labor Disputes

    The Supreme Court will also reconsider this term its 60-year-old decision in San Diego Building Trades v. Garmon (commonly referred to as the Garmon Preemption Doctrine), in a case in which an employer is seeking to sue a teamsters local union alleging common law state claims of intentional destruction of property during a labor dispute and commencement of a strike (Glacier Northwest Inc. v. International Brotherhood of Teamsters, Local 174 (US No. 21-1449)). The Supreme Court ruled in the Garmon case that the federal National Labor Relations Act (NLRA) preempts and therefore prohibits all state court lawsuits against unions, concluding that an employer’s sole remedy is subject to the provisions of the NLRA, and that sole remedy for relief is up to the National Labor Relations Board (NLRB).

    In the case at hand, the Washington State Supreme Court dismissed an employer’s common law lawsuit against Teamster Local Union No. 174 for intentional destruction of property holding that under Garmon preemption the employer’s sole remedy is before the NLRB, which does not grant property damages to employers so harmed. The employer in the case alleged that its teamster union drivers returned the employers ready mix concrete trucks fully loaded with concrete to the yard prior to leaving on strike with the concrete in the trucks ready to harden and therefore destroyed the trucks. The teamsters claimed that they left the trucks running so that they could be unloaded safely.

    Some commentators conclude that if the Supreme Court alters Garmon broadly and allows such lawsuits to proceed, it could trigger a new and effective employer weapon in holding union’s liable for economic consequences of strikes and other actions taken during labor disputes. Those commentators also point out that if the Supreme Court broadly limits preemption, it could lead to conservative-leaning states to enact legislation restricting union conduct during strikes.

    California Joins Growing List of States Expanding Paid Leave Benefits

    California’s recent enactment of paid leave protections requiring employers to provide employees with paid leave to care for individuals who are not legal relatives joins the growing list of states regulating this area of employee benefits. So far, 11 states and the District of Columbia have enacted paid leave programs. Five of those states (Colorado, Connecticut, New Jersey, Oregon and Washington) allow employees to use those benefits to take care of non-relatives designated as “akin to family.”

    Nationwide, this is leading to a unique patchwork of requirements depending on where the employee is employed. Research should be conducted in your local jurisdiction to guide your institution on the breadth and application of possible city and/or state requirements. In addition, remote work in another state may also alter which state’s laws applies.

    U.S. Court of Appeals to Address Whether Sovereign Immunity Exempts State University From Federal Whistleblower Wrongful Discharge Claims

    The U.S. Court of Appeals for the 4th Circuit (covering Maryland, Virginia, West Virginia, North Carolina and South Carolina) will address whether Maryland state sovereign immunity applies to Morgan State University and Maryland State University in a case involving federal whistleblower wrongful discharge claims by the university’s former director of broadcast operations (Williams v. Morgan State University (4th Cir., Case no 21-01918, 10/13/22)).

    The plaintiff complained that the university mishandled a debate between Baltimore mayoral candidates and that she was ultimately discharged because she claimed that the mishandling may have violated the Federal Hatch Act and Federal Communications Commission regulations. The federal trial court dismissed the plaintiff’s federal claims, holding that while Maryland had waived sovereign immunity with respect to state tort claims, it did not do so regarding federal claims. The Court of Appeals has taken the unusual position of asking the Maryland State Court of Appeals whether the state has waived sovereign immunity with regard to federal tort claims.

    The plaintiff also added a federal whistleblower claim that the university’s dean and other professors were intentionally inflating expense numbers to federal and state agencies to “pad the university’s funding.”

    NLRB Returns to In-Person Manual Union Elections to Replace Mail-In Ballots Mandated During COVID-19 Pandemic

    In-person voting at employer premises in NLRB-supervised union elections is returning as the primary method of voting as the NLRB modifies the rules that it enacted during the onset of the COVID-19 pandemic, which lead to a great increase in mail-in voting. Nearly 75 percent of the 3,185 NLRB-supervised elections, which were conducted since the start of 2020 during the pandemic, were conducted by mail according to Bloomberg BNA. Unions prevailed in 76 percent of the mail-in elections as opposed to prevailing in 68 percent of the in-person elections. Employers generally prefer in-person manual elections because of the NLRB rules, which ensure secrecy, avoid electioneering around voting areas and arguably prevent voter fraud coercion.

    Employer groups argue that there is greater turn out during in-person manual voting. Unions claim that employers have an unfair advantage at in-person, manual voting because the election takes place on the employer’s “home turf.”



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  • Labor and Employment Policy Updates — October 2022 – CUPA-HR

    Labor and Employment Policy Updates — October 2022 – CUPA-HR

    by CUPA-HR | October 22, 2022

    As the 2022 midterm election nears, Congress has turned its focus to campaigning and essentially halted legislative action until after the election. Despite the lack of activity from Congress, federal agencies have continued to push forward with anticipated regulatory actions in the labor and employment policy area. This blog post details some of the regulatory activity CUPA-HR is currently monitoring, as well as a stalled nomination for a top position at the Department of Labor (DOL).

    NLRB Joint Employer Rule

    On September 7, the National Labor Relations Board (NLRB) issued a notice of proposed rulemaking (NPRM) on the joint employer standard. Generally speaking, the NPRM proposes to expand joint employer status to entities with indirect or reserved control over essential terms and conditions of employment.

    The NPRM establishes joint employer status of two or more employers if they “share or co-determine those matters governing employees’ essential terms and conditions of employment,” such as wages, benefits and other compensation, work and scheduling, hiring and discharge, discipline, workplace health and safety, supervision, assignment and work rules. According to the NLRB’s press release, the Board “proposes to consider both direct evidence of control and evidence of reserved and/or indirect control over these essential terms and conditions of employment when analyzing joint-employer status.”

    Comments in response to the proposal were originally due November 7, but after stakeholders requested an extension to the filing deadline the Board extended the comment period to December 7.

    Independent Contractor Rule

    On October 13, the DOL published an NPRM to rescind the current method for determining independent contractor status under the Fair Labor Standards Act. The current test finalized by the Trump administration in 2021 has two core factors of control and investment with three additional factors (integration, skill and permanency) that are relevant only if those core factors are in disagreement. The Biden rule proposes a return to a “totality-of-the-circumstances analysis” of multiple factors in an economic reality test, including the following six factors, which are equally weighted with no core provisions:

    • The extent to which the work is integral to the employer’s business;
    • The worker’s opportunity for profit or loss depending on managerial skill;
    • The investments made by the worker and the employer;
    • The worker’s use of skill and initiative;
    • The permanency of the work relationship; and
    • The degree of control exercised or retained by the employer control.

    Comments in response to the NPRM are due November 28.

    Jessica Looman Nomination

    On September 13, the Senate Health, Education, Labor and Pensions (HELP) Committee held a hearing on the nomination of Jessica Looman to serve as Administrator of the DOL’s Wage and Hour Division (WHD). Looman was officially nominated for the position in July 2022, months after Biden’s previous nominee David Weil failed to receive 50 votes to clear the Senate floor and become the WHD Administrator.

    Looman has not yet had a committee vote to move her nomination to a full Senate floor vote. It is unclear when a Senate HELP vote will take place, but is likely to come after the election in November. Regardless of the timing on a vote, Looman continues to carry out the WHD’s rulemaking agenda in her current role as the Principal Deputy Administrator.

    CUPA-HR will keep members apprised of any updates relating to the rulemakings and nomination discussed above.



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  • DHS Extends I-9 Flexibility Guidance Through July 2023 – CUPA-HR

    DHS Extends I-9 Flexibility Guidance Through July 2023 – CUPA-HR

    by CUPA-HR | October 12, 2022

    On October 11, the Department of Homeland Security (DHS) announced a further extension of the flexibilities on Form I-9 compliance requirements that have been in place since the onset of the COVID-19 pandemic. The guidance was set to expire October 31, but has now been extended through July 31, 2023.

    The guidance will continue to allow for remote inspection of Form I-9 documents in situations where employees work exclusively in a remote setting due to COVID-19-related precautions. For employees who physically report to work at a company location on any regular, consistent or predictable basis, employers are required to use standard I-9 procedures.

    On August 18, the DHS published a Notice of Proposed Rulemaking which would create a framework under which the Secretary would be authorized to extend the flexibilities on a more permanent basis. Given the length of time the rulemaking process takes, CUPA-HR is grateful for the DHS’s extension of the Form I-9 flexibilities.



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  • HR and the Courts – October 2022 – CUPA-HR

    HR and the Courts – October 2022 – CUPA-HR

    by CUPA-HR | October 4, 2022

    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.

    University’s Internal Investigation of Pay Equity Claims Protected By Attorney-Client Privilege — EEOC Fails In Attempt to Require Disclosure of Documents 

    A federal district court judge recently rejected the Equal Employment Opportunity Commission (EEOC)’s demand that a university turn over 54 documents related to an internal investigation the university conducted by inside and outside counsel concerning pay equity claims made by an athletic department employee who claimed she was paid approximately $37,000 less annually than a similarly situated male employee. The court rejected the EEOC’s argument that the investigation was conducted by the institution’s EEO office and did not involve seeking legal advice (Equal Employment Opportunity Commission v. George Washington University (2022 BL 308648, D.D.C., No. 1:17-cv-01978. 9/1/22)). The court ruled that the investigation and all related documents are protected by the attorney-client privilege.

    The court concluded that the university did not waive privilege by asserting good faith compliance with federal law as a defense to the EEOC’s claim for punitive damages. The court added that the university does not intend to use the documents in question in proving the good faith defense.

    Failure to Renew a Coach’s Discretionary Contract May Be an Actionable Adverse Employment Action Subject to a Title IX Retaliatory Termination Claim

    The Ninth Circuit Court of Appeals (covering California, Oregon, Washington, Arizona, Montana, Idaho, Nevada, Alaska and Hawaii) recently ruled that failure to renew a golf coach’s contract may be an adverse employment action subject to a Title IX retaliation claim (Macintyre v. Carroll College (9th Cir., No. 21- 35642, 9/8/22)). The plaintiff was hired as an assistant golf coach in 2006, promoted to head golf coach in 2007 and appointed associate athletic director in 2013. His contract was subject to renewal at the discretion of the college.

    The plaintiff became aware of what he thought was an improper disparity in the amount the college spent on men’s versus women’s athletic programs. He concluded that the college was out of compliance with applicable Title IX mandates. He alleges that after raising these issues with the interim athletic director and the Title IX coordinator he received negative performance reviews for the first time. He filed a grievance alleging discrimination. In settling the matter, he was given a two-year contract to be head golf coach. At the end of the two-year period his contract was not renewed. His current action alleges that the non-renewal was in retaliation for his raising Title IX concerns.

    The court, in ruling that the case should go forward, concluded that this non-renewal might be an adverse employment action and might deter employees from reporting discrimination.

    California Appeals Court Rules That Remote Work Due to COVID-19 Can Broaden Where Employees May Sue for Job Bias

    A California appellate court recently ruled that the COVID-19 pandemic and technological advances have changed the way people work. The court went on to hold that the venue provisions of the California Fair Employment and Housing Act were meant to remove barriers for suing for job discrimination. Therefore, the “modern reality” of work means that an employee who was fired while on pregnancy leave at her home in Los Angeles County can sue there rather than in Orange County where the employer was located (Malloy v. Superior Court of Los Angeles County ( 2022 BL 330038 Cal. St. App 2nd Dist, 9/19/22)).

    The court concluded that allowing remote workers to sue where they worked or would have worked effectuates the purposes of the Act. The case involved a demand by the plaintiff’s employer that she return to the physical office after her pregnancy leave had ended. After the plaintiff was fired for not coming back to work, the plaintiff sued under the California statute for pregnancy and sex discrimination and sex harassment, interference with her family and medical leave rights, and retaliation for trying to exercise her family and medical leave rights. The plaintiff also included a claim for wrongful termination in violation of public policy.

    California Moves Toward Requiring Employers to Prove Impairment Before Terminating an Employee for Cannabis Use

    In another California development which may spread to other states, the governor signed a new law which goes into effect on January 1, 2024 that prohibits employers from discriminating against employees who use cannabis during off-duty hours. Commentators conclude that this gives California employers 15 months to develop an accurate test on whether an employee is impaired at the job after smoking marijuana or consuming cannabis-infused snacks before firing them or otherwise disciplining an employee for marijuana use. The dilemma is that scientists conclude that there is currently no accurate test that determines impairment form using marijuana or cannabis products.

    Cosmetology Students and School Both Win Partial Summary Judgement on Claims That Students Should Be Paid For Work Completed as Part of School-Supervised Job Training

    A federal court in Michigan ruled in favor on summary judgement on some of the claims brought by cosmetology students that they should be paid for work performed as part of their course obligations to engage in supervised on-the-job training. The cosmetology school also won partial summary judgement regarding some of the tasks for which the student made wage claims (Eberline v. Douglas J. Holdings, Inc. (2022 BL 332583, E.D. Mich. Partial Summary Judgement 9/22/22)).

    The court divided the student tasks for which pay was claimed into three categories, namely client services, janitorial tasks and retail sales. The court held that there was no genuine dispute of facts on who was the primary beneficiary of client services tasks, ruling that the students were the primary beneficiary in this area, therefore granting partial summary judgement to the school. Similarly, the court ruled that there was no genuine dispute of facts on who was the primary beneficiary of janitorial tasks, ruling that the school was the primary beneficiary, therefore granting partial summary judgement to the students. Finally, the court ruled that there is a genuine dispute of facts on who is the primary beneficiary of retail sales tasks, thus ruling that this area must be given to a jury to decide.



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  • CUPA-HR Submits Comments in Response to Title IX NPRM – CUPA-HR

    CUPA-HR Submits Comments in Response to Title IX NPRM – CUPA-HR

    by CUPA-HR | September 13, 2022

    On September 12, CUPA-HR submitted comments in response to the Department of Education (DOE)’s Notice of Proposed Rulemaking (NPRM) to amend Title IX. The NPRM seeks to rollback and replace the Trump administration’s 2020 Title IX rule, specifically with respect to its grievance procedures, and establish expanded protections against sex-based discrimination to cover sexual orientation, gender identity and pregnancy or related conditions.

    CUPA-HR filed comments to bring attention to the possible impact the proposed regulations could have on how higher education institutions address employment discrimination. In our comments, we highlight the two sets of grievance procedures promulgated by the proposal: procedures used for cases involving employee-on-employee sex-based harassment (section 106.45) and procedures used for sex-based harassment involving an employee and student, regardless of whether the employee involved is the complainant or respondent (section 106.46). Our comments argue that such procedures in cases where the employee is a respondent may be unnecessarily prescriptive and will interfere with existing obligations, policies and procedures already utilized by institutions that are required to handle such incidents of sex-based employment discrimination under Title VII of the Civil Rights Act of 1964 (Title VII) and state and local employment laws.

    In light of our concerns, our comments ask the DOE to exempt any sex-based harassment of employee respondents against a student complainant from the section 106.46 requirements, and to exempt all sex-based harassment claims where an employee is the respondent, regardless of whether the complainant is a student or an employee, from the section 106.45 requirements. These comments directly align with the concerns and requests written in the American Council on Education’s comments, which CUPA-HR also signed on to.

    Finally, our comments suggest that the DOE consult with other federal agencies with jurisdiction over discrimination law, including the Equal Employment Opportunity Commission to rationalize the requirements instituted by the Title IX regulations and Title VII, and to issue joint guidance on how to minimize potential conflicts between the obligations to claimants under Title VII and respondents under Title IX.

    The DOE received over 200,000 comments in response to the NPRM, which they must now review prior to issuing a final rule to implement their changes. It is therefore unclear when we can expect the final rule and effective date of the new regulations. CUPA-HR will keep members apprised of any updates on the Title IX regulations.



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  • HR and the Courts – September 2022 – CUPA-HR

    HR and the Courts – September 2022 – CUPA-HR

    by CUPA-HR | September 7, 2022

    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.

    University Football Coach’s First Amendment Retaliatory Discharge Claim For Posting “All Lives Matter” Sign On His Office Door Proceeds

    A federal district court judge recently denied a University of Illinois motion to dismiss its former offensive coordinator’s claim that his retaliatory termination was in violation of his First Amendment rights by posting a handwritten note on his office door stating “All lives matter to our lord and savior Jesus Christ.” The federal judge ruled that the former coach was not acting within his official duties when he posted the note. The judge concluded that the plaintiff was not paid by the university to decorate his office door, but rather was paid to coach football. Therefore, the note expressed his personal views (Beathard v. Lyons (C.D. Ill,. No, 21-cv-01352, 8/11/22)).

    The court ruled that it is premature to decide whether the university can justify the termination because “there is not enough information to properly weigh” the interests of the university against that of the public employee in this matter. The plaintiff alleges that someone posted a general statement without his permission that supported Black athletes at the university in the wake of George Floyd’s death. He claims to have taken down the note and posted his own handwritten note. According to the complaint, his note upset some players who boycotted practice. CUPA-HR will follow developments in this case.

    Federal Appellate Court Holds That Gender Dysphoria Is a Disability Covered Under the ADA

    The Fourth Circuit Court of Appeals (covering Maryland, Virginia, West Virginia, North Carolina and South Carolina) recently became the first federal appellate court to rule that gender dysphoria is a disability covered under the Americans with Disabilities Act (ADA). The 33-page majority decision was accompanied by a 21-page dissent. The appellate panel ruled 2-to-1 that gender dysphoria is covered under the ADA (Williams v. Kincaid (4th Cir. 21-2030. 8/16/22)).

    The ADA contains a statutory provision excluding gender identity disorders from coverage under the ADA. The appellate court noted that the American Psychiatric Association (APA) removed gender identity disorders from its diagnostic manual nearly a decade ago. Gender identity disorders had referred to a condition of identifying as a different gender. The APA replaced the gender identity disorder diagnosis with the more modern diagnosis of gender dysphoria. Gender dysphoria is currently contained in the APA’s diagnostic manual and is a “clinically significant distress or impairment related to a strong desire to be another gender.” The APA says that the condition can interfere with an individual’s social life, their ability to do their job and other daily functions.

    The appellate court concluded that the “plain meaning” of the ADA’s exclusion of gender identity disorders as “it was understood at the time of enactment” does not then or now exclude gender dysphoria from ADA coverage. The court concluded that “the obsolete definition focused on cross gender identification; the modern one on clinically significant distress.” The dissent disagreed stating that “Judicially modifying the meaning of a statute because of society’s changing attitudes not only invades the province reserved for legislature, it turns the statute into a moving target.”

    Transgender Class Against the State of West Virginia Alleging State’s Denial of Gender-Affirming Care Violates Obama Care Statute Prevails in Trial Court

    A class of more than 600 transgender Medicaid participants prevailed in federal court against the state of West Virginia where a federal judge held that the state’s denial of gender-affirming care violated the federal anti-discrimination provisions of the Obama Care statute and the U.S. Constitution (Fain et al v. Crouch et al (3:20- cv-00740 S.D. W.Va.. 8/2/22)). The case may have applicability to other state medical and health plans.

    The court recognized that often the same procedure is used to treat a variety of cases and it is unlawfully discriminatory to deny transgender patients similar treatment given to non-transgender patients.

    Court of Appeals Approves NLRB Order for Private Employer to Pay Union Legal Fees Incurred in Collective Bargaining Process

    In a case applicable to private colleges and universities which are subject to National Labor Relations Board (NLRB) jurisdiction, the U.S. Court of Appeals for the Ninth Circuit (covering California, Oregon, Washington, Montana, Idaho, Nevada and Arizona) affirmed an NLRB decision ordering an employer to pay its union’s legal fees incurred in the collective bargaining process (NLRB v. Ampersand Publishing (9th Cir. No. 21-71060, 8/11/22)).

    The Ninth Circuit concluded that although the NLRB lacks jurisdiction to award attorney fees as a remedy in the litigation context, it is fully within their authority to award such a remedy in the collective bargaining context. In this case, the union filed unfair labor practice charges alleging the employer’s refusal to bargain. The union claimed it had to incur extra attorney fees as part of the bargaining process because of the employers violation. The court rejected the employer’s argument that the legal fees were akin to litigation costs because of the unfair labor practice charges filed with the NLRB. The NLRB disagreed and attributed the attorney fees of $42,000 to the collective bargaining process. The case involved the Santa Barbara News Press as the employer and a local teamster affiliate that has incurred the legal fees.

    IRS Initiates Pilot Program Allowing Workplace Employee Benefit Plans to Correct Errors Before Formal Audits Commence

    Under a new pilot program, the Internal Revenue Service (IRS) will allow workplace benefit plans to correct errors before investigators formally commence an audit. As part of a new pilot project, about 100 U.S. workplace benefit plans, including retirement plans, have received letters from the IRS since June allowing selected plans a 90-day window to correct mistakes in plan design, administration or documentation before regulators launch formal audits or close out case files.

    Self-identified corrections of this sort are not new to the IRS, however, before this pilot they were only available to employers who had not been targeted by an audit.

    Federal Judge Blocks Florida Workplace Bias Training Restrictions 

    A federal district court judge approved a preliminary injunction barring the enforcement of a Florida statute which restricts workplace bias training from teaching about unconscious bias. The Florida statute known as the Individual Freedom Act (IFA) bars employers from endorsing various race, sex and ethnicity-based concepts during workplace training.

    The plaintiffs are a coalition of employers and diversity and inclusion specialists who conduct workplace training. The judge ruled that the Florida statute likely violates the First and Fourteenth Amendments and that the plaintiffs will incur irreparable harm if the IFA is allowed to be enforced (Honeyfund.com Inc. et al v. Ron DeSantis et al (Case no. 4:22-cv-00227. N.D. Fla., 8/18/22)).



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  • DHS Proposes Rule Permitting Alternative Options for Form I-9 Document Examination – CUPA-HR

    DHS Proposes Rule Permitting Alternative Options for Form I-9 Document Examination – CUPA-HR

    by CUPA-HR | August 23, 2022

    On August 18, the Department of Homeland Security (DHS) published in the Federal Register its anticipated Notice of Proposed Rulemaking (NPRM) on optional alternative examination practices for employers when reviewing an individual’s identity and employment authorization documents required by the Form I-9, Employment Eligibility Verification. Interested stakeholders can submit comments on the NPRM through October 17.

    Under current law, employers are required to physically examine an individual’s identity and employment authorization documents within three business days after an individual’s first day of employment. The proposed rulemaking, however, would create a framework under which the Secretary of Homeland Security could allow alternative options for verifying those documents, such as reviewing the documents via video, fax or email.

    As explained in the NPRM, the proposal does not directly allow employers or agents acting on the employer’s behalf to use such alternative examination options, but instead would create a framework under which the Secretary would be authorized to extend the flexibilities. The Secretary would be authorized to implement the alternative options in a pilot program if they determine such procedures would offer an equivalent level of security, as a temporary measure to address a public health emergency declared by the Secretary of Health and Human Services, or a national emergency declared by the President.

    The DHS is issuing this rulemaking following the success of temporary changes to document verification procedures implemented at the onset of the COVID-19 pandemic. In March 2020, the DHS’s Immigration and Customs Enforcement deferred its physical examination requirements for Form I-9 and relaxed its enforcement. Employers were allowed to review documents through video, fax or email so long as they also retained copies of the documents. The policy proved successful and was extended several times, but is currently set to expire October 31, 2022. It may still be extended as the agency pursues this rulemaking.

    In December 2021, CUPA-HR submitted comments to the DHS in response to the agency’s Request for Public Input on remote document examination. In its comments, CUPA-HR reported the results of the survey it conducted of member institutions’ experiences with the agency’s Form I-9 flexibilities. CUPA-HR members reported positive experiences with the changes and said they did not run into challenges with implementation. Respondents strongly supported a permanent option for remote document examination and said the policy provides numerous benefits for higher education institutions, including providing more flexibility for remote work, reducing the time needed to complete document verification and reducing institutions’ paperwork burden. Respondents also criticized physical document examination as overly burdensome.

    CUPA-HR plans to submit comments on the NPRM and will likely ask members for their input in the coming weeks.



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  • August Recess Roundup: Congressional and Regulatory Updates – CUPA-HR

    August Recess Roundup: Congressional and Regulatory Updates – CUPA-HR

    by CUPA-HR | August 22, 2022

    When August arrives, Congress leaves D.C. and heads to their home districts for the annual August recess period. To keep CUPA-HR members apprised of recent and future actions on the Hill and in federal agencies, here are highlights of the latest actions by Congress, nominations they’ll have to consider when they return, and regulations that may be issued throughout the month.

    Legislative Updates

    On August 16, President Biden signed the Inflation Reduction Act into law following its passage, along partisan lines, in both the U.S. Senate and House of Representatives. The Inflation Reduction Act, which is a slimmed down version of the reconciliation bill Democrats have been pushing for, focuses on policies to mitigate the impacts of climate change, reduce healthcare costs and increase tax revenue to reduce the federal budget deficit. This reconciliation bill was narrowed down from the “Build Back Better” agenda, a step necessary to gain support from Senators Joe Manchin (D-WV) and Kyrsten Sinema (D-AZ) to get the bill over the 50-vote threshold. Notably, the final package did not include “Build Back Better” provisions like paid leave, universal community college and childcare.

    Additionally, on August 9, President Biden signed the CHIPS and Science Act, which provided new funding to boost U.S. investments in research and manufacturing of semiconductors. With respect to the research investments, the bill includes a five-year, $81 billion authorization of the National Science Foundation to go toward research funding. Additionally, the bill provides new funding to historically black colleges and universities and other minority-serving institutions, and for STEM programs at colleges and universities.

    Nominations Awaiting Confirmation

    On July 27, President Biden announced Jessica Looman as the new nominee for the Department of Labor (DOL)’s Wage and Hour Division Administrator. Looman has been serving as acting administrator for the agency since June 2021. Her nomination replaces Biden’s previously withdrawn nomination of David Weil, who failed to garner enough support in the Senate to be confirmed. Looman’s nomination will have to go through the Senate Health, Education, Labor and Pensions (HELP) Committee prior to going to the Senate floor for a full vote. Timing on both votes are uncertain at this point.

    Additionally, Kalpana Kotagal’s nomination for the Equal Employment Opportunity Commission (EEOC) continues to be held up in the Senate. In May, the Senate HELP Committee deadlocked on a vote to move her nomination to the full Senate, which means the full Senate will have to vote to advance her nomination out of committee — a logistical hurdle in a 50-50 Senate with sparse time on their legislative calendar. The result of this hold up means the EEOC will continue to operate with a Republican majority as federal statute allows Republican Commissioner Janet Dhillon, whose term expired in July, to remain an active member of the EEOC while her successor’s nomination is pending. If and when nominee Kotagal is confirmed, she will replace Commissioner Dhillon and tip control of the EEOC to a 3-2 Democratic majority. Her confirmation vote is also uncertain at this point.

    Regulatory Updates

    Though not guaranteed, there may be several proposals and final regulations that may be released by the Department of Education, the DOL and other relevant agencies throughout the month. Some of these include the expected proposed rule on Form I-9 remote verification flexibilities from the Department of Homeland Security, which has already had its review completed by the White House; a proposed rule on independent contractor classification, which was sent to the White House for review in July; and a final rule on the Deferred Action for Childhood Arrivals program, which has a target release date set for August.

    In addition to these proposed and final rules CUPA-HR is waiting to be released, the Department of Education is still undergoing its notice-and-comment period for the Title IX proposed rule that was released in June. CUPA-HR is assessing the proposal and will put together comments in response to the proposed rule. Comments are due September 12.

    CUPA-HR will keep members apprised of legislative and regulatory actions as August recess continues and we move into the fall.



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  • HR and the Courts – August 2022 – CUPA-HR

    HR and the Courts – August 2022 – CUPA-HR

    by CUPA-HR | August 9, 2022

    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.

    EEOC Reaches Settlement Banning Employer Collection of Family COVID-19 Testing Results — GINA Implications 

    In a case involving a dermatology medical practice in Florida, the EEOC reached a settlement of the charge it brought against the employer medical. The case alleged that the employer violated the Genetic Information Nondiscrimination Act of 2008 (GINA) when it collected family COVID-19 testing results of its employees. Title II of GINA bans employers from collecting an employee’s genetic testing results and a worker’s family medical history.

    However, the EEOC also issued guidance stating that an employer can still ask its employees if they had contact with anyone who has been diagnosed with COVID-19 or who has had symptoms of COVID-19. Nonetheless GINA prohibits employers from inquiring directly and specifically as to the COVID-19 status of an employee’s family members.

    The EEOC also recently issued guidance on July 12, 2022, that, going forward, before requiring employees to submit to COVID-19 testing, employers should consider whether current pandemic circumstances and individual workplace circumstances justify viral screening of employees. Essentially the EEOC’s position is that before going forward with workplace COVID-19 screening, the employer must demonstrate a “business necessity” based on general pandemic circumstances and individual workplace circumstances.

    Federal Court Holds That Discharge Proximity to an Employee’s Filing for Extended FMLA Leave Warrants a Jury Trial Over Retaliatory Discharge Claims 

    A federal district judge recently ruled that a plaintiff’s claim that her discharge shortly after seeking an extension in FMLA leave to deal with mental health problems was retaliatory  warrants a jury trial over FMLA retaliatory discharge allegations and dismissed the employer’s motion for summary judgement. The plaintiff was a human resources manager who allegedly suffered from depression and anxiety. The employer argued that it was entitled to summary judgement because the plaintiff was discharged before the employer made a decision on the FMLA extension request. The judge concluded that gaps and inconsistencies in the employer’s explanation of the reasons for discharge warrant a finding of fact by a jury as to the timing and reason for discharge (Moryn v. G4S Secure Solutions USA, Inc. (2022 BL 222775 Dist Minn. No. 0:21-cv-00123, 6/28/22)).

    The plaintiff had requested and received a three-month leave of absence based on the recommendation of her physician for mental health reasons. When the three-month leave concluded, the employee requested an additional month followed by a part-time work schedule that progressively added more days to the job.

    Separately the judge dismissed the allegations under Minnesota state discrimination law related to disability discrimination and the allegations that the employer failed to accommodate the plaintiff.

    Court of Appeals Rules That a State Agency’s Banning of “Black Lives Matter” Adornments to Employee Uniforms Violates the First Amendment

    The U. S. Court of Appeals for the 3rd Circuit (covering Pennsylvania, New Jersey and Delaware) affirmed the decision of a federal trial court, which ruled that a Pennsylvania local transit authority violated the First Amendment guarantee of free speech by prohibiting Black Lives Matter adornments on employees’ uniforms as part of its policy prohibiting political and social adornments on employee uniforms.

    The court of appeals also ruled that the Allegheny County Port Authority’s policy revision, which allowed employees to wear only certain masks to make it easier for the authority to enforce its ban on Black Lives Matter messaging, violated the First Amendment. The case challenging the transit authority’s policies was brought by the employees’ union in Amalgamated Transit Union Local 85 v. Port Authority of Allegheny County (3rd Cir. No. 21-1256, 6/29/22 ).

    U.S. Supreme Court Rules in Favor of Football Coach’s After-Game Prayer, Concluding His Discharge Violates the First Amendment Free Speech and Religion Provisions 

    In a long-awaited and controversial decision, the U.S. Supreme Court ruled against a school district firing of a football coach who refused to abandon his long-practiced ritual of kneeling in prayer at the 50-yard line at the conclusion of each football game. In doing so, the Supreme Court overruled the decision of the 9th U.S. Circuit Court of Appeals ruling in favor of the school district. The football coach argued that he had agreed to the school district’s demands that he stop leading prayers with his players, but wanted to continue taking a knee in prayer alone after each game.

    Justice Neil Gorsuch concluded that the case was about “three quiet prayers,” and because no student joined in those prayers, the coach was acting as a private citizen, not a school employee or coach. The justice concluded that the coach was not acting within the scope of his activities as a coach and therefore his actions were protected by the First Amendment. The Supreme Court decision was a divided one, 6 to 3 (Kennedy v. Bremerton School District ( US 21-418, 6/27/22 )).

    NLRB Reports That Private-Sector Union-Organizing Petitions Have Risen 58% and Unfair Labor-Practice Charges Filed by Employees Have Risen 16% in Fiscal Year 2022

    The National Labor Relations Board (NLRB) reported a sharp increase in private-sector union-organizing petitions filed during the first three quarters of fiscal 2022 (October 1-June 30), concluding that union-organizing petitions rose by 58%. The increase in union-organizing petitions has been across the board in the private sector and not limited to high-profile organizing nationwide at Starbucks and Amazon. U.S. workers filed 1,892 organizing petitions in the first three quarters of fiscal 2022 as compared to 1,197 petitions in the first three quarters of fiscal 2021.

    The data also show that U.S. workers filed 16% more unfair labor-practice charges against employers during the first three quarters of fiscal 2022. Unfair labor-practice charges at the end of June had increased from 11,451 in fiscal 2021 to 13,105 in fiscal 2022.



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