Category: Compliance/Legal Issues

  • Federal Judge Blocks Department of Education’s Title IX Guidance – CUPA-HR

    Federal Judge Blocks Department of Education’s Title IX Guidance – CUPA-HR

    by CUPA-HR | July 27, 2022

    On July 15, a federal judge from the U.S. District Court of the Eastern District of Tennessee issued a preliminary injunction blocking enforcement of the Department of Education’s Title IX guidance that prohibits discrimination on the basis of gender identity and sexual orientation. Specifically, the ruling blocks enforcement of a June 2021 Notice of Interpretation issued by the department’s Office for Civil Rights (OCR) in light of the Supreme Court’s 2020 decision in Bostock v. Clayton County and President Biden’s Executive Order, “Guaranteeing an Educational Environment Free from Discrimination on the Basis of Sex, Including Sexual Orientation and Gender Identity.”

    Twenty Republican-controlled states, led by their attorneys general, were listed as plaintiffs on the case, arguing that the department’s guidance should not be enforced by the agency as it did not go through the notice-and-comment rulemaking process and is not codified law. They claimed that the department’s enforcement of the guidance also puts states at risk of losing significant federal funding if they do not comply with the guidance. The Eastern District of Tennessee judge ruled in favor of the plaintiffs, issuing the preliminary injunction while stating that the guidance interferes with states’ abilities to enforce their own laws that prohibit transgender students from participating on sports teams or using restrooms that align with their gender identity.

    As it currently stands, the injunction applies only to the 20 states listed as plaintiffs in the case, potentially impacting the policies of colleges and universities in those states. Notably, the injunction does not impact the recently issued Title IX proposed regulations that are currently undergoing a 60-day notice-and-comment period. If the Title IX regulations are codified into law, however, they may face similar legal challenges.

    CUPA-HR will continue to monitor this issue and keep members apprised of any developments related to Title IX.



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

    HR and the Courts – July 2022 – CUPA-HR

    by CUPA-HR | July 6, 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.

    Long Awaited Title IX Regulations Issued

    On Thursday, June 23 the Biden administration’s Department of Education issued its long anticipated new Title IX proposed regulations. The proposed regulations consist of a 700-page document published in the Federal Register and open for public comment for 60 days. The significant highlights of the proposed regulation include the expanding of the definition of sex harassment to include as prospective claimants those who allege discrimination or harassment based on sexual orientation, gender identity, pregnancy and any situation that creates a “hostile environment.”

    The proposed regulations throw out the Trump administration’s definition of sex harassment, which required the alleged sex harassment be “so severe and pervasive as to be objectively offensive,” and return to the pre-Trump era’s “severe and pervasive” standard, which is consider by most commentators to be a lower bar for future alleged sex harassment victims.

    The proposed regulations also expand jurisdiction over alleged sex harassment to include off-campus and out of the country matters, including study abroad situations. Finally, the proposed regulations also eliminate the requirement that investigations include cross examination of victims and in-person hearings. We will follow developments as these regulations ultimately wind their way to finalization. Learn more.

    Court of Appeals Rules That a Professor Has an Independent Right to Sue a University Under Title IX for an Alleged Gender-Biased Sex Harassment Allegation Which Led to His Denial of Tenure 

    The U.S. Court of Appeals for the 2nd Circuit (covering New York, Vermont and Connecticut) ruled that a professor has an “implied right” of action for alleged gender bias under Title IX concerning the conduct of a Title IX investigation into charges of sex harassment brought by a student. The 2nd Circuit joined a number of other circuit courts in holding that Title IX grant professors have a right to sue under similar alleged circumstances (Vengalatorre v. Cornell University (2nd Cir. No. 15-14, 6/2/22)).

    The professor alleged that the university’s procedures for investigating the allegations were “fundamentally flawed,” as the student’s allegations were time-barred under the university’s Title IX procedures. The university continued its investigation under the university’s “Romance Policy,” which took the investigation out of the hands of the Title IX coordinator and Title IX investigators. The investigation continued under the jurisdiction of a faculty committee, which the plaintiff alleged would not take action against allegedly false accusations because of “Twitter blow back.” The professor alleges that he was denied tenure as a result of a gender-biased investigation. The court ruled that the professor can proceed to trial over his allegations under Title IX.

    Transgender Sheriff’s Deputy Wins Title VII Lawsuit Over Denial of Coverage for Sex-Change Surgery but Loses ADA Claim Based on Gender Dysphoria

    A federal district judge in Georgia ruled in favor of  a sheriff’s deputy that she was improperly denied coverage for sex change and related genital surgery under the county’s health plan. The judge ruled that pursuant to the Supreme Court’s 2020 decision in the Bostock case that gender identity discrimination is prohibited by Title VII of the Civil Rights Act of 1964. The judge ruled that the exclusion for “sex change surgery” contained in the county’s insurance policy is facially discriminatory to transgender plan participants (Lang v. Houston County (2022 BL 191359  M.D. Ga. No. 5:19-cv-00392, 6/2/22)).

    The judge observed that it is undisputed that mastectomies are covered when they are medically necessary for cancer treatment but not when they are medically necessary for a sex change procedure. Similarly hormone replacement therapy is covered when medically necessary to treat menopause but not when medically necessary for a sex change. The judge concluded that this exclusion applies only to transgender participants and therefore violates Title VII.

    However, the judge dismissed plaintiff’s claims under the ADA. The Judge ruled that the ADA exclusion of “gender identity disorders” from coverage under the statute applies to plaintiff’s medical condition of “gender dysphoria.”

    University Subject to Gender-Based Discrimination Claim by Professor/Applicant for Position Never Filled

    The Court of  Appeals for the 6th Circuit recently over turned a trial court’s dismissal of a Title IX gender discrimination lawsuit filed by the top-ranked applicant for a position that was not filled. The plaintiff, a male, alleged gender discrimination against him by way of a plot to leave the leave the position he was ranked number one for unfilled, and then create two new, separate positions that were filled by female applicants. The trial court dismissed the case as “unripe” as the original position was never filled. The appeals court reversed, holding that an employer can commit hiring bias a number of ways, including cancelling a job opening in favor of creating a new position in which to hire employees of a different gender (Charlton-Perkins v. University of Cincinnati (2022 BL 292328, 6th Cir. No. 21-13840, 6/3/22)).

    The appeals court concluded that the alleged failure to hire the male plaintiff professor, despite the fact he was the number one applicant, is enough by itself to describe an adverse employment action and state an actionable discrimination claim for relief.

    North Carolina State Plan Covering Teacher and State Employees Ordered to Pay Employees’ Transgender Care

    The North Carolina Medical Plan for Teachers and State Employees’ exclusion of gender-confirmation coverage discriminates against transgender employees and their dependents on the basis of sex and transgender status in violation of the Constitution’s equal protection clause and Title VII, concludes the U.S. District Court for the Middle District of North Carolina (Kadel V. Falwell (M.D.N.C., No. 19-cv-272, 6/10/22)). The court observed that the plan distinguishes between medically necessary drugs that conform to the patients biological sex and medically necessary drugs that do not. A similar case is pending with the Arizona State Plan, which we recently reported on.



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  • DOL Targets October 2022 for Release of a New Overtime Proposal – CUPA-HR

    DOL Targets October 2022 for Release of a New Overtime Proposal – CUPA-HR

    by CUPA-HR | June 29, 2022

    On June 21, the Biden administration released the anticipated Spring 2022 Unified Agenda of Regulatory and Deregulatory Actions (Regulatory Agenda), providing the public with a detailed glimpse into the regulatory and deregulatory activities under development across approximately 67 federal departments, agencies and commissions. Agendas are generally released in the fall and spring and set target dates for each agency and sub-agency’s regulatory actions for the coming year.

    Based on a thorough review of the Regulatory Agenda, CUPA-HR would like to highlight the following proposed actions for members, including an updated target date for the release of a new overtime proposal.

    Department of Labor

    Wage and Hour Division – Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales and Computer Employees

    According to the Regulatory Agenda, the Department of Labor (DOL)’s Wage and Hour Division (WHD) is now planning to release a Notice of Proposed Rulemaking (NPRM) to address changes to the Fair Labor Standards Act (FLSA)’s overtime pay requirements in October 2022. In the Fall 2021 Regulatory Agenda, WHD announced their intention to move forward with the NPRM with the goal “to update the salary level requirement of the section 13(a)(1) exemption [under the FLSA].”

    Changes to overtime pay requirements have been implemented through regulations under both the Obama and Trump administrations. In May 2016, the Obama administration’s DOL issued a final rule increasing the salary threshold from $23,660 to $47,476 per year and imposed automatic updates to the threshold every three years. However, court challenges prevented the rule from taking effect and it was permanently enjoined in September 2017. After the Trump administration started the rulemaking process anew, in September 2019, DOL issued a new final rule raising the minimum salary level required for exemption from $23,660 annually to $35,568 annually. This final rule went into effect January 1, 2020, and it remains in effect today.

    From April through June 2022, DOL held several listening sessions for interested stakeholders to discuss any support or concerns they may have with the anticipated rulemaking. CUPA-HR participated in all of the calls, expressing our concerns with the timing of the rulemaking as it relates to the ongoing challenges of the COVID-19 pandemic, a historically tight labor market, and increasing inflation.

    Employment and Training Administration – Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States

    In October 2022, DOL’s Employment and Training Administration (ETA) plans to issue an NPRM to establish “a new wage methodology for setting prevailing wage levels for H-1B/H-1B1/E-3 and PERM programs consistent with the requirements of the Immigration and Nationality Act.” The proposal will likely amend the Trump administration’s final rule that was scheduled to take effect on November 14, 2022, but was subsequently vacated by a federal court in June 2021. The new proposal, which is included in the Department’s Statement of Regulatory Priorities, will take into consideration the feedback it received in response to a Request for Information (RFI) on data and methods for determining prevailing wage levels “to ensure fair wages and strengthen protections for foreign and U.S. workers.”

    CUPA-HR filed comments in opposition to the Trump administration’s regulations on the issue and in response to the Biden administration’s RFI.

    National Labor Relations Board

    Joint Employer

    In July 2022, the National Labor Relations Board (NLRB) is planning to release an NPRM to potentially amend the standard determining when two employers may be considered joint employers under the National Labor Relations Act. The new standard will revise the 2020 Trump Administration’s final rule, which reversed the Obama-era NLRB decision in the 2015 Browning-Ferris Industries case and established that an entity can only be a joint employer if it actually exercises control over the essential terms and conditions of another employer’s employees. While details of the Democratic-majority NLRB’s NPRM on joint employer status are unknown, we would expect them to revise the current standard to reflect the Obama-era decision.

    Department of Homeland Security

    USCIS – Modernizing H-1B Requirements and Oversight and Providing Flexibility in the F-1 Program

    In May 2023, the Department of Homeland Security (DHS)’s United States Citizenship and Immigration Services (USCIS) plans to release an NPRM to “amend its regulations governing H-1B specialty occupation workers and F-1 students who are the beneficiaries of timely filed H-1B cap-subject petitions.” The NPRM will specifically propose to “revise the regulations relating to ‘employer-employee relationship’ and provide flexibility for start-up entrepreneurs; implement new requirements and guidelines for site visits including in connection with petitions filed by H-1B dependent employers whose basic business information cannot be validated through commercially available data; provide flexibility on the employment start date listed on the petition (in limited circumstances); address ‘cap-gap’ issues; bolster the H-1B registration process to reduce the possibility of misuse and fraud in the H-1B registration system; and clarify the requirement that an amended or new petition be filed where there are material changes, including by streamlining notification requirements relating to certain worksite changes, among other provisions.”

    ICE – Optional Alternative to the Physical Examination Associated With Employment Eligibility Verification (Form I-9)

    According to the Regulatory Agenda, DHS plans to issue an NPRM in July 2022 to “revise employment eligibility verification regulations to allow the Secretary to authorize alternative document examination procedures in certain circumstances or with respect to certain employers.”

    DHS has provided temporary flexibility in the Form I-9 verification process since the beginning of the COVID-19 pandemic. Specifically, the flexibility guidance allows for remote inspection of Form I-9 documents in situations where employees work exclusively in a remote setting due to COVID-19-related precautions. While that guidance is only temporary, DHS issued a Request for Public Input (RPI) on October 26, 2021, to determine whether those flexibilities should be kept in place permanently. It is possible that DHS will use that feedback to develop and implement this NPRM.

    CUPA-HR has engaged with DHS on the Form I-9 flexibilities through the pandemic. Most recently, DHS announced an additional extension of the Form I-9 flexibility guidance through October 31, 2022. CUPA-HR sent a letter to USCIS Director Ur M. Jaddou asking for this additional extension. Additionally, CUPA-HR submitted comments in response to the RPI based on a recent survey detailing members’ experiences with the Form I-9 verification process flexibilities.

    On June 7, ICE sent its proposal to the Office of Information and Regulatory Affairs (OIRA). OIRA is the White House office responsible for reviewing regulations and proposed regulations before they are publicly released and generally takes 30-90 days for this review, indicating ICE is on target to issue their proposal in July.

    Department of Agriculture

    Agriculture Acquisition Regulation: Internal Policy and Procedural Updates and Technical Changes

    In December 2022, the Department of Agriculture (USDA) plans to re-propose an NPRM that was previously issued in February 2022 and included controversial provisions that would require federal contractors on projects procured by the agency to certify their compliance with dozens of federal and state labor laws and executive orders.

    In the February NPRM, USDA provided only 32 days for stakeholder comment submissions on the proposal. CUPA-HR filed an extension request with the department asking for an additional 90 days to “evaluate the NPRM’s impact on [members’] research missions and collect the information needed in order to provide thoughtful and accurate input to the USDA,” as well as official comments that were pulled from 2012 comments CUPA-HR submitted with the Society for Human Resource Management (SHRM).

    While it is unclear whether the December NPRM will include the blacklisting language again, the abstract of the re-proposal states that “the new proposed rule would be responsive to the comments received on our February 2022 proposal.”

     



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  • Department of Education Releases Title IX Proposed Rule – CUPA-HR

    Department of Education Releases Title IX Proposed Rule – CUPA-HR

    by CUPA-HR | June 23, 2022

    On June 23, the Department of Education released the highly anticipated Notice of Proposed Rulemaking (NPRM) to amend Title IX. The NPRM proposes to replace the Trump administration’s 2020 Title IX rule and establishes safeguards for transgender students by proposing a ban on “all forms of sex discrimination, including discrimination based on sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation and gender identity.” The proposal will be open for public comment for 60 days following publication in the Federal Register.

    In March 2021, President Biden issued an Executive Order (EO) titled, “Guaranteeing an Educational Environment Free from Discrimination on the Basis of Sex, Including Sexual Orientation and Gender Identity.” The EO directed the secretary of education to evaluate the Trump administration’s Title IX regulations and to “issue new guidance as needed on the implementation of the rule.”

    Of significance, the NPRM proposes to repeal the Trump administration’s requirement for live hearings for Title IX investigations. It also proposes to change the definition of sexual harassment back to “unwelcome sex-based conduct” that creates a hostile environment sufficiently severe or pervasive that it denies or limits a person’s ability to participate in a school’s education program or activity.

    CUPA-HR will be conducting a deeper analysis of the 700-page proposal in the days and weeks to come and will be partnering with other higher education associations to ensure the department receives meaningful feedback on its proposal.

    For additional information on the proposed rule, the department has provided a summary of the major provisions and a fact sheet.



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  • DOL Secretary Testifies in House and Senate Committee Hearings – CUPA-HR

    DOL Secretary Testifies in House and Senate Committee Hearings – CUPA-HR

    by CUPA-HR | June 22, 2022

    On June 14 and 15, the House Education and Labor Committee and Senate Appropriations Committee’s Subcommittee on Labor, Health and Human Services, Education, and Related Agencies held hearings on policies and priorities of the U.S. Department of Labor (DOL), as well as President Biden’s Fiscal Year 2023 Budget Request for DOL. In both hearings, Secretary of Labor Marty Walsh testified and answered questions about DOL’s regulations and actions, as well as potential future funding for programs under DOL.

    In both hearings, Walsh pointed to the accomplishments DOL has achieved during the Biden administration. He discussed efforts to increase the minimum wage for federal contractors to $15 and to protect workers’ organizing rights as some of the highlights of the department’s work during the Biden administration thus far. In addition to these accomplishments, he also called for increased funding and investments for workforce training and development.

    During the House committee hearing, Walsh was asked several questions about the anticipated overtime regulations. Rep. Mark Takano (D-CA) began his question period by restating his request for DOL to increase the minimum salary threshold to $82,732 by 2026, and asked Walsh his opinion on the current level and whether it was too high or low. Walsh responded saying he had no opinion on where the current level stands at this time, but that the department recently concluded listening sessions to hear from stakeholders about their opinions on updating the salary threshold. Additionally, Takano asked Walsh if there was a timeline of when the anticipated Notice of Proposed Rulemaking (NPRM) would be released for the overtime regulations, but Walsh responded that there was no set timeline at the time of the hearing.

    Many representatives and senators also discussed DOL’s workforce development and training programs. In the Senate hearing, Walsh explained that the current disconnect between youth and job openings is an opportunity for DOL to reach out and connect with those workers, better preparing them for the jobs available. Walsh also expressed his support for a wide range of apprenticeships in different, untraditional industries, and he stated DOL should partner with community colleges, existing workforce development programs, and other organizations to expand apprenticeships.

    CUPA-HR will keep members apprised of any developments that arise as a result of these hearings.



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  • CUPA-HR Participates in DOL Overtime Regional Listening Sessions – CUPA-HR

    CUPA-HR Participates in DOL Overtime Regional Listening Sessions – CUPA-HR

    by CUPA-HR | June 14, 2022

    In May and June, CUPA-HR participated in five regional listening sessions hosted by the Department of Labor (DOL) on the anticipated Notice of Proposed Rulemaking (NPRM) to update the criteria for the “executive, administrative and professional” exemptions for overtime pay under the Fair Labor Standards Act (FLSA). The listening sessions provided regional employers the opportunity to discuss their support or concerns with changes to the minimum salary level required to be exempt from overtime payments under the FLSA.

    CUPA-HR joined each of the five sessions to express concerns with the timing of the proposed increase to the minimum salary threshold to qualify for exempt status under the FLSA. Specifically, we raised concerns with the timing of such changes, as they would come while institutions, employees and students are still grappling with the challenges of the COVID-19 pandemic, a tight labor market and historically high inflation. Additionally, several CUPA-HR members joined the calls to raise similar concerns and discuss issues more specific to their individual institutions.

    Though many in higher ed and other industries are expressing similar concerns about raising the overtime minimum salary threshold level at this time, labor unions and worker advocates have led efforts to both raise the minimum salary threshold and expand coverage of overtime regulations to workers currently not covered under the FLSA. Notably, the National Education Association sent a letter to DOL urging the agency to remove the teacher exemption that currently exempts teachers from the FLSA requirements to receive overtime payments regardless of how much they are paid.

    The overtime NPRM that was targeted for release in April 2022 is now expected to come anytime within the next couple of months, though more information on when it will be released may be included in the anticipated Spring 2022 Regulatory Agenda. CUPA-HR will continue to monitor for the NPRM and will keep members apprised of any updates to the overtime regulations.



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

    HR and the Courts – June 2022 – CUPA-HR

    by CUPA-HR | June 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.

    Supreme Court to Determine Scope of Highly Paid Executive Employee Exemption Under the Fair Labor Standards Act (FLSA)

    The U.S. Supreme Court will review a 5th U.S. Circuit Court of Appeals decision in favor of an employee who was granted overtime status for his non-executive position that paid him $200,000 a year. This oil industry case will have application to all U.S. employers. The executive employee salary exemption threshold is currently $100,000 a year. At issue is whether compensation alone, absent executive/managerial status will exempt employees from the FLSA’s overtime requirements. The employee was a non-executive toolpusher on a drill rig and was paid $200,000 a year, twice the $100,000 executive salary exemption minimum.

    There is a split in the circuit courts on this issue leaving the Supreme Court to decide the issue. The 6th and 8th Circuits have ruled that non-executive employees should not be exempt from the FLSA no matter how much money they make. The 1st and 2nd Circuits allow an exemption for these workers under the salary exemption test.

    Women’s Basketball Coach Can Proceed With Title VII Sex Discrimination Lawsuit — Not Required to Arbitrate Discrimination Claims Under Her Employment Contract

    A U.S. District Court judge rejected the University of Montana’s summary judgement motion to dismiss a sex discrimination lawsuit and enforce mandatory arbitration under its former women’s basketball coach’s employment contract. The sex discrimination claims related to her performance evaluations, criticisms, and decision not to renew her employment agreement. The employment agreement had a general arbitration clause which covered contract disputes. However the court pointed out that the arbitration clause did not mention sex discrimination or bias claims. Therefore, the court concluded that the arbitration clause lacked the “requisite precision” required by the 9th Circuit for an individual to waive their rights to pursue Title VII claims in court (Schweyen V. University of Montana-Missoula (2022 BL 156392, D. Mont No. 9:21-cv-00138, 5/5/22)).

    The court concluded that the arbitration agreement, at most, was an agreement to arbitrate contract disputes as a basketball coach. The court pointed out that the clause did not mention giving up her right to file suit in court over non-contract issues such as sex bias.

    Federal Court Enjoins EEOC and HHS From Requiring Christian Employers and Healthcare Providers to Cover Gender Transition Surgery 

    A U.S. District Court trial judge in North Dakota has barred the Equal Employment Opportunity Commission (EEOC) and the Department of Health and Human Services (HHS) from requiring Christian employers and healthcare providers, under either Title VII of the Civil Rights Act of 1964 or the Affordable Care Act, to cover the cost of or provide gender transition surgery. The judge granted the injunction requested by the plaintiff, the Christian Employers Alliance, to prevent the EEOC and the HHS from requiring the group’s members to provide gender transition surgery until the case is tried on the merits and it is decided whether such a requirement violates the Christian employers’ First Amendment rights or rights under the Religious Freedom Restoration Act of 1993 (Christian Employers Alliance V. The EEOC, et al  (Case no. 1-21-cv-00195 D.N.D. 5/17/22)).

    The judge concluded that the plaintiff businesses must either violate sincerely held religious beliefs or face monetary losses, fines or civil liability. The judge concluded that the plaintiff’s likelihood of prevailing at trial on the merits, “weighed significantly in favor of granting the injunction.” The judge also enjoined the EEOC and HHS from enforcing the requirement to plaintiff employers’ insurers and third party administrators.

    Court of Appeals Reverses NLRB’s Decision Holding That the Employer’s “Back to the Salt Mine” Tweet Was an Unlawful Threat

    The 3rd U.S. Circuit Court of Appeals recently reversed a National Labor Relations Board (NLRB) decision holding that the The Federalist magazine violated the National Labor Relations Act when, during the union’s organization campaign, the magazine’s publisher tweeted that if the magazine’s employees unionized he would send them “back to the salt mine.” The appeals court ruled that no reasonable employee could actually interpret the publicly available tweet as a veiled threat. The court concluded that Twitter posts are often exaggerated and sarcastic, as Twitter encourages such approaches.

    The court also concluded that the publisher sent the tweet to 80,000 followers, which made it publicly available rather than directing it to the six magazine employees who were subject to the union organization drive.

     



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

    HR and the Courts – May 2022 – CUPA-HR

    by CUPA-HR | May 11, 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.

    Anxiety and PTSD Driving Increase in Both Accommodation Requests and Mental Health Discrimination Bias Claims Under the Americans With Disabilities Act

    The EEOC recently reported a substantial increase in the number of mental health-related accusations of employer discrimination in the workplace filed under the Americans with Disabilities Act (ADA). Mental health-related discrimination claims in the past year accounted for 30 percent of all of the ADA claims filed. That is a 20 percent increase in mental health ADA claims filed over the past 10 years. The rise is partially attributable to the pandemic. Anxiety and post-traumatic stress disorder (PTSD)-related claims appear to be driving the increase and account for nearly 60 percent of all mental health ADA claims filed in the past year. Anxiety and PTSD claims now amount to 17.6 percent of all ADA charges filed in fiscal year 2021 according to the Equal Employment Opportunity Commission (EEOC).

    The EEOC will likely be ramping up its publicity efforts emphasizing employer obligations to enter into the interactive accommodation request process with regard to employee requests for accommodation for mental health ADA claims.

    Maryland Legislature Overrides Governor’s Veto and Becomes Tenth State to Mandate Paid Family Leave Through a State Funded Program of Employer and Worker Payroll Taxes

    Maryland, plus the District of Columbia, recently became the tenth state to mandate paid family leave among all private sector employees through a program funded by employer and worker payroll taxes. The program will guarantee all workers up to 12 weeks of paid leave benefits annually (up to a maximum of $1,000 per week) for care for the birth of a new child, their own medical issue, a family member’s serious illness or military deployment. The benefits will begin January 1, 2025. The payroll tax to fund the program is split between employers and workers and is scheduled to begin October 1, 2023. The tax rate will be determined through a Maryland Department of Labor study. The state of Delaware is also considering similar legislation.

    Gay Married Couple Files Class Action Lawsuit Alleging Discrimination From Employer’s Denial of IVF Benefits

    A former gay male employee of the City of New York has filed a class action lawsuit alleging that the City of New York illegally discriminated against gay male employees in its denial of in vitro fertilization (IVF) benefits available to other employees. The plaintiff, who was an assistant district attorney, and his husband, filed the charge with the EEOC alleging a Title IV violation as well as violations of applicable city and state civil rights laws. They allege that the city has unlawfully denied IVF benefits to 100s of gay males who work for the city and have been denied the insurance coverage for these benefits (Benefits Law 360 4/13/22).

    California Legislature Considers Law to Protect Workers’ Off Hours Marijuana Use

    The California Assembly will consider passing a law protecting employees’ off hours marijuana use from the workplace or applicant discrimination. California lawmakers may fill in the gap that exists in 37 states plus the District of Columbia that have legalized medical marijuana use, and 18 states plus the District of Columbia which have legalized recreational use of marijuana. California and other states have long legalized marijuana for medical and recreational use but have not added its legal use to a protected class under the applicable state employer non-discrimination statute. This could be the first state to do so and the beginning of a growing trend.

    Second Opinion Not Enough to Discontinue Family and Medical Leave Act

    Discontinuing Family and Medical Leave (FMLA) solely on the basis of a contrary second opinion rendered by a doctor chosen by the employer is not enough under the FMLA to terminate intermittent leave status. A federal judge in Pennsylvania denied summary judgment to Pennsylvania State University and held that the employee may present evidence at her upcoming FMLA interference trial that the university unlawfully subjected her to a second opinion rendered by a doctor of the university’s choosing. The court held in such circumstances where there is a difference of opinion between the claimant’s doctor and the doctor chosen to review the situation by the employer, a third doctor acceptable to both parties must review the situation (Wert v. Pa. State Univ. ( 2022 BL 132451 M.D. Pa. No. 4-19-cv-00155, 4/15/22).

    The plaintiff had been on intermittent FMLA leave for about four months as her doctor certified she had been suffering from migraines and needed one day of leave per week. When her doctor upped her authorized medical leave to as many as four days a week the university consulted its own physician who disagreed with the employee’s doctor. The court held that in such situations the FMLA does not allow the employer to simply disregard the original doctor’s conclusions but requires the parties to agree on a third doctor to review the situation.



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  • CUPA-HR Participates in Hill Meetings With House Ways and Means Committee Member Offices – CUPA-HR

    CUPA-HR Participates in Hill Meetings With House Ways and Means Committee Member Offices – CUPA-HR

    by CUPA-HR | May 10, 2022

    Over the last month, CUPA-HR’s government relations team joined the American Council on Education (ACE) and other higher education organizations in virtual Capitol Hill meetings to discuss tax priorities for the higher education community. Meetings have been held with staffers of Members of the House Ways and Means Committee to advocate for tax policies and proposals to alleviate various burdens placed on students, employees and institutions alike.

    Specifically, the meetings have allowed the higher education community to encourage members’ action on the following issues:

    • Supporting the extension and expansion of the universal, non-itemizer charitable deduction;
    • Repealing the taxability of scholarships and grant aid, specifically for the Pell Grant and other scholarships for graduate and medical students;
    • Enhancing higher ed tax credits like the American Opportunity Tax Credit and the Lifetime Learning Credit;
    • Repealing the endowment tax;
    • Expanding and modernizing tax-free employer-provided educational assistance as granted under Section 127 of the Internal Revenue Code (IRC);
    • Reinstating advance refunding of tax-exempt bonds and expanding debt issuance with a Direct Pay Bonds program;
    • Creating “lifelong learning and training accounts” to provide workers and employers the opportunity to make tax-free contributions to pay for future training and credentials; and
    • Repealing the unrelated business income tax “basketing” provision.

    In June 2021, ACE sent a letter to House Ways and Means Committee and Senate Finance Committee leadership requesting these proposals and others be included in the American Jobs and American Families Plans. CUPA-HR signed onto this letter, along with several other higher education groups.

    CUPA-HR joined the most recent meetings specifically to advocate for the Section 127 expansion and modernization. Section 127 of the IRC is an educational assistance program that allows employers to pay or reimburse an employee tuition or student loan repayments on a tax-free basis up to $5,250. CUPA-HR previously advocated for the program to include student loan repayments, which was granted under the 2020 CARES Act and the Consolidated Appropriations Act of 2021, as well as to increase the annual exclusion cap of $5,250 to an amount closer to $12,000, to expand coverage to employee’s partners and dependents, and to expand coverage to gig workers and independent contractors, all of which were a focus during the meetings.

    CUPA-HR will continue to participate in these meetings and will keep members apprised of any legislative proposals that result from these meetings.



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  • DHS to Temporarily Increase the Automatic Extension Period of Work Permits for Certain Visa Applicants – CUPA-HR

    DHS to Temporarily Increase the Automatic Extension Period of Work Permits for Certain Visa Applicants – CUPA-HR

    by CUPA-HR | May 4, 2022

    Effective May 4, U.S. Citizenship and Immigration Services (USCIS) announced a Temporary Final Rule (TFR) to increase the automatic extension period of expiring employment authorization documents (EADs) for certain renewal applicants from 180 days to 540 days.

    Specifically, the TFR applies to three groups of applicants in EAD categories currently eligible for the previous 180-day automatic extension of employment authorization and EAD validity. They are as follows:

    • Renewal applicants whose renewal Form I-765 application remains pending as of May 4, 2022, and whose EAD has not expired or whose current 180-day auto-extension has not yet lapsed.
    • New renewal applicants who file Form I-765 during the 18-month period following the rule’s publication to avoid a future gap in employment authorization and/or documentation.
    • Renewal applicants with a pending EAD renewal application whose 180-day automatic extension has lapsed and whose EAD has expired will be granted an additional period of employment authorization and EAD validity beginning on May 4, 2022, and lasting up to 540 days from the expiration date of their EAD.

    Categories that are eligible for the lengthened automatic extension can be found here and include refugees and asylees (a3 and a5), spouses of certain H-1B principal non-immigrants with an unexpired I-94 showing H-4 non-immigrant status (c26), and adjustment of status applicants (c9), among others.

    The TFR is part of a trio of efforts USCIS announced on March 29, 2022, to address the agency’s major backlogs and crisis-level processing delays. According to USCIS Director Ur M. Jaddou, “as USCIS works to address pending EAD caseloads, the agency has determined that the current 180-day automatic extension for employment authorization is currently insufficient,” and this temporary rule is necessary to “provide those non-citizens otherwise eligible for the automatic extension an opportunity to maintain employment and provide critical support for their families, while avoiding further disruption for U.S. employers.”

    CUPA-HR will continue to monitor the implementation of the new auto-extension period and keep members apprised of further developments.



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