Category: Compliance/Legal Issues

  • CUPA-HR Participates in OIRA Meeting on FLSA Overtime Rule – CUPA-HR

    CUPA-HR Participates in OIRA Meeting on FLSA Overtime Rule – CUPA-HR

    by CUPA-HR | April 9, 2024

    On April 4, CUPA-HR’s government relations team, President and CEO Andy Brantley, and four national board members met with officials at the Department of Labor (DOL) and the Office of Information and Regulatory Affairs (OIRA) to discuss the upcoming overtime regulations to increase the minimum salary threshold. During the call, the group expressed CUPA-HR’s broad concerns with the rule, as well as the specific challenges implementation of the new rule could create for different types of institutions in various areas of the country.

    On March 1, DOL sent the final rule to update the Fair Labor Standards Act overtime regulations to OIRA for review. As previously noted, the OIRA review marks one of the last steps required before DOL can publish the final rule for public viewing. While the rule is at OIRA, the text and details of the final rule are not public, but interested stakeholders are able to request meetings with the administrator to discuss the proposed changes.

    During the meeting, Andy Brantley and Bailey Graves from the CUPA-HR government relations team reiterated the concerns that were addressed in CUPA-HR’s comments submitted in November 2023. The comments made the following four recommendations for DOL to consider prior to issuing a final rule:

    1. DOL should not update the salary threshold at this time.
    2. DOL should lower the proposed minimum salary threshold and account for room and board.
    3. DOL should not implement automatic updates to the salary threshold.
    4. DOL should extend the effective date of any final rule implementing a higher salary threshold.

    Brantley and Graves were joined by CUPA-HR Board Chair Jami Painter, Chair-Elect Robyn Salvo, and board members El pagnier Hudson and Kristi Yowell, who discussed the impact of these potential changes on employee exempt/nonexempt status and employee morale and benefits. They also discussed the impact of the rule on higher education’s efforts to offer competitive wages to employees, the difficulties of having employees in areas with different costs of living, and the impact this rule could have on an institution’s ability to provide student services.

    Looking Forward

    It is unknown when the final rule will clear OIRA review and be published for public viewing. OIRA review typically lasts 30-60 days, and OIRA meetings are currently set through April 11. However, the Biden administration has incentive to move quickly to publish the final rule in order to avoid the rule being overturned via legislation if Republicans win Congress and the White House in the November election.

    The final rule will also likely face legal action once it is published, which could delay the effective date or stop the rule from going into effect in its entirety. CUPA-HR will keep members apprised of when the final rule clears OIRA review and is published, as well as any legal challenges that may arise.



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  • OSHA Issues Worker Walkaround Rule – CUPA-HR

    OSHA Issues Worker Walkaround Rule – CUPA-HR

    by CUPA-HR | April 4, 2024

    On April 1, the Occupational Safety and Health Administration issued a final rule on the Worker Walkaround Representative Designation Process. The rule allows third-party representatives to accompany OSHA inspectors during physical workplace inspections.

    Under the Occupational Safety and Health Act and existing regulations to implement the law, employer representatives and authorized representatives of employees are allowed the opportunity to accompany OSHA inspectors during workplace inspections. The existing regulations state that authorized representatives of the employee are limited to employees of the employer, though OSHA inspectors may allow accompaniment by a third party that is not an employee if it is “reasonably necessary to the conduct of an effective and thorough physical inspection.”

    The new rule broadens the category of who may serve as an authorized representative of the employee by explicitly including third parties as potential authorized representatives. The rule clarifies that third-party employee representatives may accompany the OSHA inspector when “good cause has been shown why accompaniment by a third party is reasonably necessary to the conduct of an effective and thorough physical inspection of the workplace (including but not limited to because of their relevant knowledge, skills, or experience with hazards or conditions in the workplace or similar workplaces, or language or communication skills).” This new language makes it easier for non-employees, such as union officials, to potentially be involved in the inspection process.

    The final rule largely mirrors the proposed rule that was published in October 2023. Nearly 11,000 comments were submitted in response to the proposal, and employers across several industries have expressed concern with the rule, including concerns with the lack of mechanisms for employers to object to the selection of non-employee third-party representatives. Additionally, employers were concerned about the increased liability that they could face from non-employees walking around their worksite and the possible costs of providing personal protective equipment to non-employee third-party representatives when needed for inspections.

    The rule goes into effect on May 31, 2024, but it is expected to face legal challenges that could delay the effective date. CUPA-HR will keep members apprised of any updates on the status of this rule.

     



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  • Senators Introduce Bill to Implement 32-Hour Workweek – CUPA-HR

    Senators Introduce Bill to Implement 32-Hour Workweek – CUPA-HR

    by CUPA-HR | April 3, 2024

    On March 14, Senator Bernie Sanders (I-VT) and Senator Laphonza Butler (D-CA) introduced the Thirty-Two-Hour Workweek Act, which would amend the Fair Labor Standards Act to reduce the standard workweek from 40 hours to 32 hours, while also providing that workers do not lose pay as a result of the reduced hours. A nearly identical bill was introduced in the House earlier this Congress.

    According to the Senate version of the bill, the FLSA would be amended to reduce the standard workweek from 40 hours to 32 hours by requiring overtime payment for any work done in excess of 32 hours in a given week. The bill includes a new requirement to provide overtime pay at the standard rate of one-and-a-half times the regular rate for any workday that is longer than eight hours but shorter than 12 hours, and it requires employers to pay an overtime rate of double the regular rate for any workday longer than 12 hours. The bill also stipulates that employers subject to the shortened workweek requirements may not reduce the total workweek compensation or any other benefit of an employee due to the employee being brought into the purview of the legislation. The 32-hour workweek would be phased in over a four-year period.

    The same day the bill text was introduced, the Senate Health, Education, Labor, and Pensions (HELP) Committee held a hearing on the need for a 32-hour workweek. Senator Sanders serves as the chairperson of the committee and led the Democrats’ arguments for shortening the workweek without reducing pay. He argued that new technology has increased the productivity of American workers, therefore decreasing the need for a 40-hour workweek as was enacted in the FLSA over 80 years ago. Republicans, on the other hand, argued that shortening the workweek without decreasing pay would hurt small businesses and would result in increased prices for goods and services and more automated jobs. They argued against a law mandating the 32-hour workweek and preferred flexibility for employers to choose to make that change if appropriate for their business operations.

    Given the partisan divide shown during the hearing, the bill is unlikely to move in the Senate anytime soon. Even if the bill passed out of the HELP Committee, it appears unlikely that it will garner the 60 votes necessary to bypass the filibuster if brought to the floor for a vote. The House version of the bill faces a similar fate, as the House Republicans currently have the majority. With the upcoming election in November, it will be interesting to see if power shifts in favor of Democrats in either chamber, which will likely be the only way the bill could pass in the House or Senate.

    CUPA-HR will keep members apprised of any updates as it relates to this legislation and future policy related to a shortened workweek.



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  • District Court Invalidates NLRB’s Joint-Employer Rule – CUPA-HR

    District Court Invalidates NLRB’s Joint-Employer Rule – CUPA-HR

    by CUPA-HR | March 13, 2024

    On March 8, 2024, the U.S. District Court for the Eastern District of Texas invalidated the National Labor Relations Board’s joint-employer final rule, meaning the rule did not go into effect on March 11, as was anticipated. The NLRB will likely appeal the ruling to the 5th U.S. Circuit Court of Appeals.

    The final rule expanded the joint-employer standard under the National Labor Relations Act, which is used to determine when two or more entities are jointly responsible for setting the terms and conditions of employment over a shared group of employees. Joint-employer status comes with significant responsibilities and liabilities under the law, including bargaining with any union representing the shared employees and being liable for any NLRA violations either employer commits against those employees.

    Traditionally, joint-employer status was only triggered if the potential joint employer exercised direct and immediate control over the shared workers’ terms and conditions of employment, including hiring, firing, disciplining, supervising, and directing the employees. The final rule, however, would have expanded joint-employer status to entities that have indirect or unexercised, reserved control over the terms and conditions of employment.

    The decision from the district court invalidates the ruling, halting implementation and reinstating the traditional joint-employer standard. As the judge in the case explained, the rule was too broad and violated the NLRA. Specifically, the judge stated it “would treat virtually every entity that contracts for labor as a joint employer because virtually every contract for third-party labor has terms that impact, at least indirectly … essential terms and conditions of employment.”

    Details of the appeal and subsequent decision from the the 5th U.S. Circuit Court of Appeals will be shared in the coming months. If the NLRB wins on appeal and the rule is eventually implemented, it will apply to private-sector higher education institutions. It will impact colleges’ and universities’ relationships with many of their contractors whose employees perform work on campus, including food service, security and landscaping services.

    CUPA-HR will continue to keep members apprised of updates regarding the status of the NLRB’s joint-employer rule.



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

    HR and the Courts — March 2024 – CUPA-HR

    by CUPA-HR | March 13, 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.

    Dartmouth College May Appeal NLRB’s Decision Allowing Basketball Players to Unionize

    The Dartmouth College men’s basketball team voted 13-2 to unionize, selecting the Service Employees International Union Local 560 to represent them in collective bargaining. While student-athletes at Northwestern University voted to unionize some 10 years ago, the National Labor Relations Board declined jurisdiction in that case. Here, the NLRB appears to be taking a different approach and has affirmed the regional director’s decision that the basketball players are employees of the college.

    Bloomberg reports that Dartmouth stated it has “deep respect” for its unionized workers but does not believe this path is “appropriate” for basketball players. Dartmouth has argued to the NLRB that its student-athletes are not employees and that its basketball players are participating in a voluntary extracurricular activity. The NLRB, with one dissenting vote, denied Dartmouth’s motion to stay its decision, ruling that the basketball players are employees of the institution. The legal path forward is complex, and we will report on developments as they occur.

    Separately, the NLRB is conducting a hearing on the West Coast involving an unfair labor practice complaint filed against the University of Southern California, the Pac-12 Conference and the NCAA regarding their refusal to bargain with a union representing football and basketball players at USC. The NLRB general counsel has publicly stated that she believes student-athletes are employees who should be able to unionize.

    Student-Athlete Employee Status Could Lead to Student Visa Problems

    The classification of college student-athletes as employees could lead to F-1 visa problems for international athletes enrolled in U.S. colleges and universities. The F-1 visa restricts work to 20 hours per week when classes are in session and 40 hours per week when classes are not in session. The F-1 visa is used by roughly 20,000 international athletes enrolled in U.S. colleges and universities.

    Possible workarounds are either the P-1 visa, which is a nonimmigrant visa used by professional athletes, or an O-1 visa, which is used by individuals with extraordinary ability. Commentators conclude that these workarounds are not feasible on the scale necessary to accommodate the number of international student-athletes involved. A legislative solution will probably be necessary to address this problem should the employee status of college athletes be confirmed by the NLRB, or in other litigation under statutes such as the Fair Labor Standards Act.

    Union Membership and Strike Activity Rose Dramatically in 2023

    Bloomberg Law’s statistical analyses show that union membership and strike activity rose considerably in 2023 to levels not seen in years. Unions organized almost 100,000 new workers in NLRB-supervised elections in 2023, the largest single year total since 2000. This is the fourth-largest total one-year organizing gain since 1990, according to Bloomberg Law statistics. This is also the first time since 1990 that unions have managed to increase their annual headcount for three years in a row.

    The news is similar on the strike activity front. Over 500,000 workers participated in work stoppages in 2023. This is the second-highest number since Bloomberg Law began collecting this data in 1990. The only year that saw more strike activity since 1990 was 2018, the year of multiple city- and state-wide teacher strikes.

    SpaceX’s Challenge to NLRB’s Administrative Procedures Is Transferred From Texas to California

    A federal district court judge in Texas recently granted the NLRB’s motion to transfer SpaceX’s constitutional challenge from federal court in Texas to federal court in the Central District of California, where the underlying facts, NLRB hearing, and decision took place (SpaceX v. NLRB (S.D. Tex., No. 24-00001, Motion Granted 2/15/24)).

    SpaceX argued that the Texas venue was proper because SpaceX has operations and employees in Texas who received and were subject to a company letter, distributed nationally, that the NLRB ruled violated employee rights under the National Labor Relations Act.

    The Texas federal judge rejected SpaceX’s arguments, concluding that the underlying California-based administrative proceedings were brought against a California-based company and involved its California employees. With the transfer of the case to California, SpaceX lost a potentially more favorable appeals court precedent and appellate review. The 5th U.S. Circuit Court of Appeals (covering Louisiana, Mississippi and Texas) is viewed as more conservative than the 9th Circuit, which covers California. In addition, the 5th Circuit has in the past ruled that aspects of decisions by other federal agencies, including the Securities and Exchange Commission, violate the U.S. Constitution.

    Employer Risk Associated With Targeting Remote Workers for Termination

    Remote work is not in and of itself a protected classification under federal or state civil rights laws. Nonetheless, the reasons for remote work could be protected, such as a disability-related concern. Bloomberg Law commentators conclude that remote workers are more likely to be laid off or miss out on promotional opportunities than peers who work in the office or in hybrid environments. Also according to Bloomberg Law, studies demonstrate that remote workers are more likely to be women, persons of color and those with disability accommodations. Evidence that any of those protected factors contributed to the termination, layoff or failure to promote could give rise to a successful challenge of the employment action under either the Americans with Disabilities Act or applicable state or federal civil rights statutes.

    Disney Actor Tests California State Law Protecting Employees From Discharge for Off-Work Political Comments

    An actor in the Disney show “The Mandalorian” filed a lawsuit claiming that she was unlawfully terminated from the show because of political comments she made outside of the workplace. Actor Gina Carano claims she was terminated after social media posts comparing the treatment of Trump supporters to how Jews were treated during the Holocaust. The plaintiff also alleges that Disney took issue with other comments she made on the COVID-19 vaccine, gender identity and voter fraud during the 2020 election.

    The lawsuit has been filed in federal court in the Central District of California and is being funded by Elon Musk. The suit was filed under a California statute that has broader protections than Title VII in protecting off-work political comments and has no cap on damages. Section 1101 of the California Labor Code protects a worker’s right to political expression outside of work, including speaking up for a candidate or cause.

    The plaintiff also alleges sex discrimination and that Disney treated male actors more favorably in similar circumstances. She alleges that male stars Mark Hamill and her co-star Pedro Pascal were treated more favorably when they engaged in off-work political statements. The breadth of the protection and scope of the California statute will be tested by this litigation brought against Disney.

    NLRB Reverses Decision, Finds Home Depot Violated NLRA Over Employee’s Black Lives Matter Slogan

    A three-member panel of the NLRB ruled 2-1 that Home Depot violated the NLRA when it told an employee that he could not work with a “BLM” slogan on his company-issued apron, thus forcing his resignation (Home Depot USA (NLRB Case no. 18-CA-273796, 2/23/24)). The NLRB panel reversed the decision of the administrative law judge who had handled the trial of the case and had ruled in favor of Home Depot, holding that the company had the right to maintain its rules about company uniforms.

    The NLRB panel reversed, concluding that Home Depot violated the NLRA because the record demonstrated the employee’s protest was in furtherance of earlier group complaints about racism in the Home Depot workplace. In these circumstances, the NLRB concluded that the employee’s action in working with a Black Lives Matter slogan on his work apron was protected, concerted activity under the NLRA, as a “logical outgrowth” of earlier employee protests of race discrimination at the specific Home Depot store. The dissenting board member stated in his decision that the majority holding was an “unprecedented extension” of the “logical outgrowth” theory.



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  • Dartmouth Men’s Basketball Team Votes to Unionize – CUPA-HR

    Dartmouth Men’s Basketball Team Votes to Unionize – CUPA-HR

    by CUPA-HR | March 6, 2024

    On March 5, 2024, the Dartmouth College men’s basketball team voted 13-2 in favor of joining the Service Employees International Union. The election marks the first time in nearly a decade that student-athletes have been authorized to vote for union representation and may be the first case in which their election results in certified representation.

    Background

    On February 5, the National Labor Relations Board Regional Director Laura Sacks determined that players on the Dartmouth men’s basketball team are employees under the National Labor Relation Act and are thus eligible to unionize. The decision argues that the student-athletes are employees because Dartmouth has the “right to control the work performed by” the players on the team and players receive several benefits, including, but not limited to, lodging, meals, gear and training. Sacks’s decision ordered a secret-ballot election for representation, allowing all 15 players on the roster to determine whether or not to unionize.

    On February 29, Dartmouth filed a request to the NLRB to reconsider the decision made by the regional director and to place a stay on the election or impound the ballots during the reconsideration period. The NLRB rejected these requests to reconsider the decision and stay the election, allowing the election to move forward as scheduled.

    On March 5, before the 13-2 vote, Dartmouth appealed the regional director’s decision to recognize the student-athletes as employees. The appeal asked the NLRB to review and reverse the regional director’s decision and dismiss the petition, making the following arguments in favor of doing so:

    • The NLRB regional director inaccurately defined a student-athlete as an employee.
    • The NLRB regional director contradicted precedent set by a 2015 NLRB decision involving the Northwestern University men’s football team by asserting jurisdiction in this case.*
    • There will be several adverse and unintended consequences for institutions and players if student-athletes are found to be employees, including potential immigration and Title IX issues.

    Looking Ahead

    The SEIU has five days to respond to this appeal, after which the NLRB will consider both motions. The review by the NLRB, along with any further legal challenges that could go all the way to the U.S. Supreme Court, might significantly delay the union’s official recognition and the start of collective bargaining negotiations. These processes could take months or even longer to complete.

    Several lawsuits challenging NCAA policies are also ongoing, and other recent NLRB decisions and complaints further challenge the NCAA’s structure and question the classification of student-athletes as employees. Last month, a district court judge in Tennessee issued a preliminary injunction that bars the NCAA from enforcing its policy prohibiting incoming student-athletes from capitalizing on name, image, and likeness deals prior to enrolling at a college or university. Additionally, the NLRB has also issued a complaint against the University of Southern California, the PAC-12 Conference and the NCAA, alleging the three have misclassified USC’s football and men’s and women’s basketball players as student-athletes rather than employees and that they are joint employers of the athletes. The NLRB complaint is currently being challenged in court.

    The establishment of a student-athlete union is a divergence from the NCAA’s amateurism standards; for example, unionized players gain opportunities to negotiate compensation and working conditions related to practice hours and travel. With unionized players empowered to negotiate, the landscape of collegiate athletics may undergo a significant shift.

    CUPA-HR will keep members apprised of upcoming developments as it relates to this case.


    *In 2015, the NLRB declined to assert jurisdiction in a case involving the Northwestern University men’s football team. Prior to issuing the decision, the men’s football team had voted for representation, but the NLRB ultimately dismissed the petition filed by the union that planned to represent the unit. The NLRB held that, though Northwestern is a private institution, it is a part of the Big Ten Conference, which was comprised of all public schools except for Northwestern at the time.



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  • New Instructions Clarify USCIS Fee Rule Reductions and Exemptions for Higher Ed – CUPA-HR

    New Instructions Clarify USCIS Fee Rule Reductions and Exemptions for Higher Ed – CUPA-HR

    by CUPA-HR | March 6, 2024

    On March 1, 2024, U.S. Citizenship and Immigration Services published updated forms and filing instructions for the I-129, Petition for a Nonimmigrant Worker and the I-140, Immigrant Petition for Alien Workers. These updates incorporate new fee calculations as outlined in the USCIS fee rule. Notably, the filing instructions state that institutions “of higher education, as defined in section 101(a) of the Higher Education Act of 1965” are eligible for the reduced fees and exemption from the Asylum Program fee.

    This clarification follows the issuance of a final rule by USCIS on January 31, 2024, which adjusted the fees for most immigration applications and petitions, resulting in significantly higher fees for most employment-based petitioners. However, due to concerns raised by stakeholders, including CUPA-HR and other higher education institutions, the final rule provided relief for nonprofit organizations in the form of fee reductions as well as an exemption from a newly introduced fee intended to fund the Asylum Program.

    In a previous blog post, CUPA-HR addressed the confusion stemming from the final rule’s reliance on the Internal Revenue Code’s definition of a nonprofit organization, particularly 26 U.S.C. 501(c)(3). This definition caused uncertainty among public universities and colleges, which, while tax-exempt, are not classified as 501(c)(3) entities. The preamble to the final rule suggested that the agency’s approach to defining “nonprofit” was designed to ensure that the primary types of organizations eligible for the American Competitiveness and Workforce Improvement Act’s fee reduction — specifically, educational institutions, nonprofit research organizations, and governmental research organizations — would also qualify for fee reductions and exemptions under this rule. However, the possibility of a strict interpretation of “nonprofit” might have left public universities and colleges facing increased fees.

    The updated filing instructions offer much-needed clarity on the fee reductions and exemptions, ensuring that institutions of higher education as defined by the Higher Education Act of 1965 will not be overly burdened by petitioner fees.



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  • NLRB Higher Education Union Election Data for 2023 – CUPA-HR

    NLRB Higher Education Union Election Data for 2023 – CUPA-HR

    by CUPA-HR | March 5, 2024

    During calendar year 2023, union organizing continued to rise at institutions of higher education. Data from the National Labor Relations Board on union organizing show that 31.2% of all private-sector workers who successfully unionized in 2023 were employed by institutions of higher education. Public institutions also saw considerable union activity, though this is not reflected in NLRB data.*

    To provide an update regarding collective bargaining at private colleges and universities across the country, CUPA-HR’s government relations team has compiled the following NLRB data** from 2023 and early 2024 to summarize organizing activity.

    Organizing Efforts at Private Institutions in 2023

    • There were 132,303 workers in bargaining units that held elections in 2023. Of this total, 32,477 workers were from institutions of higher education.
    • There were 92,574 workers in total who joined certified bargaining units in the U.S. in 2023. Of this total, 28,859 workers were from institutions of higher education.

    Private Institution Union Drive Data in 2023

    • There were 55 union elections held at private institutions of higher education last year.
    • Of the 55 held, 48 union elections resulted in worker unionization. Again, this totaled 28,859 workers from private institutions of higher education.***
      • 20 elections included non-faculty, non-student workers with various positions.
      • 14 elections included graduate students with various positions (including two RA elections).
      • 13 elections included undergraduate students with various positions (including five RA elections).
      • Two elections included faculty.
      • Two elections included non-tenured faculty specifically.
      • Two elections included adjunct faculty.
      • Two elections included postdoctoral workers.
    • Three elections did not result in unionization. Four elections have been held at institutions, but they have not yet been closed. It is unclear why they are pending.

    Private Institution Election Data since January 1, 2024

    • So far this year, there have been eight union elections at institutions of higher education. Seven of the elections resulted in worker unionization, and one is still open for unknown reasons.
      • In the seven decided elections, 2,477 workers are included in the bargaining units.
      • In the one open case, 290 workers could be unionized.
    • Since January 1, 2024, there are seven pending petitions for unionization at institutions of higher education. In the seven pending petitions, 3,674 workers could be unionized depending on the result of the elections.

    CUPA-HR will continue to monitor this NLRB data and keep members apprised of future higher education union organizing trends.


    *The NLRB is a federal agency and only has jurisdiction over private employers, which includes private higher education institutions. Public institutions handle collective bargaining activity with their state and local labor relations agencies. CUPA-HR regularly tracks activity from the NLRB and is providing an overview of union activity at private institutions, but members at public institutions are encouraged to share union activity with the CUPA-HR government relations team as it occurs.

    **To compile the data, CUPA-HR searched for “Election Results” and “R Case Reports” that included the search terms “university,” “college,” and “school” during the calendar year 2023 and from January 1, 2024 to March 4, 2024.

    ***The grouped data below do not add up to 48 total elections because some units included multiple groups (i.e. undergraduate and graduate students, tenured and non-tenured faculty, etc.).

     



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  • Department of Labor Sends Overtime Rule to OIRA for Review – CUPA-HR

    Department of Labor Sends Overtime Rule to OIRA for Review – CUPA-HR

    by CUPA-HR | March 4, 2024

    On March 1, the Department of Labor (DOL)’s Wage and Hour Division (WHD) sent the highly anticipated final rule to update Fair Labor Standards Act (FLSA) overtime regulations to the Office of Information and Regulatory Affairs (OIRA) for review. This is a required step in the regulatory process and acts as one of the last steps prior to releasing the text of the regulation to the public.

    OIRA, as part of the president’s Office of Management and Budget, is required to review all proposed and final rules, as well as all regulatory actions, before implementation. While OIRA has 90 days to conduct its review, in most cases, the review takes 30 to 60 days. This means the final rule could be released as early as the end of March or in April, which would meet WHD’s April 2024 target date for release as indicated in the Fall 2023 Regulatory Agenda.

    WHD issued the proposed rule to increase the minimum salary threshold under the FLSA overtime regulations in September 2023. In the proposed rule, WHD sought to increase the salary threshold from its current level of $35,568 annually to $60,209 — a nearly 70% increase.* The proposed rule also sought to implement automatic updates to the salary threshold that would occur every three years and would tie the updated salary threshold to the 35th percentile of weekly earnings of full-time salaried workers in the lowest-wage census region. Notably, the proposed rule did not include any changes to the duties requirements of the FLSA overtime regulations.

    Comments in response to the proposed rule were due in November 2023. WHD received over 33,000 comments in response to the proposed rule. CUPA-HR, joined by 49 other higher education associations, submitted comments, which made the following recommendations:

    1. DOL should not update the salary threshold at this time.
    2. DOL should lower the proposed minimum salary threshold and account for room and board.
    3. DOL should not implement automatic updates to the salary threshold.
    4. DOL should extend the effective date of any final rule implementing a higher salary threshold.

    The text of the final rule is not public until the rule is published in the Federal Register, so details of the finalized salary threshold and the timeframe for compliance are unknown at this time. While the rule is at OIRA, however, interested stakeholders can request a meeting with the administrator to discuss the proposed changes. CUPA-HR will request a meeting with OIRA to discuss our concerns with the proposed rule.

    CUPA-HR will continue to keep members apprised of all updates as it relates to the FLSA overtime final rule.

     


    * The discrepancy between our figure of $60,209 and the DOL’s preamble figure of $55,068 arises from DOL’s own projections based on anticipated wage growth. The DOL’s proposed rule is rooted in 2022 data (yielding the $55,068 figure), but a footnote in the Notice of Proposed Rulemaking confirms that the salary threshold will definitely change by the time the final rule is issued to reflect the most recent data. Our comments, aiming to respond to the most probable salary threshold at the time a final rule is released, reference the DOL’s projected figure for Q1 2024, which is $60,209. We do not believe DOL will be able to issue a final rule before Q1 2024, so we are incorporating this projected figure into our response to the NPRM. In essence, our goal is to provide members with a clearer picture of the likely salary figure when the final rule comes into play.



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  • Federal Judge Blocks NCAA Name, Image and Likeness Policy for Recruits Nationwide – CUPA-HR

    Federal Judge Blocks NCAA Name, Image and Likeness Policy for Recruits Nationwide – CUPA-HR

    by CUPA-HR | February 27, 2024

    On February 23, a federal judge with the District Court for the Eastern District of Tennessee issued a preliminary injunction barring the NCAA from enforcing its rules prohibiting name, image and likeness compensation for recruits. The injunction applies nationwide.

    The policy in question prohibited student-athletes from negotiating and signing NIL contracts prior to enrolling at a college or university. This meant NIL compensation could not be used to “induce” a recruit to a specific school. This policy stood in contrast to the NCAA’s policy for student-athletes already enrolled at a college or university, who, as of 2021, have been allowed to seek NIL compensation.

    In his decision, U.S. District Judge Clifton Corker explained, “The NCAA’s prohibition likely violates federal antitrust law and harms student-athletes.” He clarified, “Without the give and take of a free market, student-athletes simply have no knowledge of their true NIL value. It is this suppression of negotiating leverage and the consequential lack of knowledge that harms student-athletes.” He further argued that the NCAA “fails to show how the timing of when a student-athlete enters such an agreement would destroy the goal of preserving amateurism,” thereby not establishing rationale for treating recruits differently than enrolled student-athletes.

    The lawsuit was filed by the attorneys general of Tennessee and Virginia after the NCAA investigated the University of Tennessee for potential violations of the policy. The NCAA will likely appeal the case to the 6th U.S. Circuit Court of Appeals overseeing Tennessee, Kentucky, Ohio and Michigan, but in the meantime, reports indicate the organization is already considering potential policy changes.

    This case is only one of the lawsuits targeting the NCAA and its policies towards student-athletes. Several lawsuits are currently pending before various federal courts, alleging the NCAA in its current form violates federal antitrust law. Additionally, the National Labor Relations Board recently ruled that the Dartmouth men’s basketball team are employees of the university, allowing them to organize and schedule a union representation election for early March. The NLRB has also issued a complaint against the University of Southern California, the PAC-12 Conference and the NCAA, alleging the three have misclassified USC’s football and men’s and women’s basketball players as student-athletes rather than employees and that the three organizations are joint employers of the athletes.

    CUPA-HR will continue to monitor for and keep members apprised of any updates on these cases.



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