Category: Department of Education

U.S. Department of Education’s Trump Appointees and America First Agenda

Rachel
Oglesby most recently served as America First Policy Institute’s Chief
State Action Officer & Director, Center for the American Worker. In
this role, she worked to advance policies that promote worker freedom,
create opportunities outside of a four-year college degree, and provide
workers with the necessary skills to succeed in the modern economy, as
well as leading all of AFPI’s state policy development and advocacy
work. She previously worked as Chief of Policy and Deputy Chief of Staff
for Governor Kristi Noem in South Dakota, overseeing the implementation
of the Governor’s pro-freedom agenda across all policy areas and state
government agencies. Oglesby holds a master’s degree in public policy
from George Mason University and earned her bachelor’s degree in
philosophy from Wake Forest University.

Jonathan Pidluzny – Deputy Chief of Staff for Policy and Programs

Jonathan
Pidluzny most recently served as Director of the Higher Education
Reform Initiative at the America First Policy Institute. Prior to that,
he was Vice President of Academic Affairs at the American Council of
Trustees and Alumni, where his work focused on academic freedom and
general education. Jonathan began his career in higher education
teaching political science at Morehead State University, where he was an
associate professor, program coordinator, and faculty regent from
2017-2019. He received his Ph.D from Boston College and holds a
bachelor’s degree and master’s degree from the University of Alberta.

Chase Forrester – Deputy Chief of Staff for Operations

Virginia
“Chase” Forrester most recently served as the Chief Events Officer at
America First Policy Institute, where she oversaw the planning and
execution of 80+ high-profile events annually for AFPI’s 22 policy
centers, featuring former Cabinet Officials and other distinguished
speakers. Chase previously served as Operations Manager on the
Trump-Pence 2020 presidential campaign, where she spearheaded all event
operations for the Vice President of the United States and the Second
Family. Chase worked for the National Republican Senatorial Committee
during the Senate run-off races in Georgia and as a fundraiser for
Members of Congress. Chase graduated from Clemson University with a
bachelor’s degree in political science and a double-minor in Spanish and
legal studies.

Steve Warzoha – White House Liaison

Steve
Warzoha joins the U.S. Department of Education after most recently
serving on the Trump-Vance Transition Team. A native of Greenwich, CT,
he is a former local legislator who served on the Education Committee
and as Vice Chairman of both the Budget Overview and Transportation
Committees. He is also an elected leader of the Greenwich Republican
Town Committee. Steve has run and served in senior positions on numerous
local, state, and federal campaigns. Steve comes from a family of
educators and public servants and is a proud product of Greenwich Public
Schools and an Eagle Scout.

Tom Wheeler – Principal Deputy General Counsel

Tom
Wheeler’s prior federal service includes as the Acting Assistant
Attorney General for Civil Rights at the U.S. Department of Justice, a
Senior Advisor to the White House Federal Commission on School Safety,
and as a Senior Advisor/Counsel to the Secretary of Education. He has
also been asked to serve on many Boards and Commissions, including as
Chair of the Hate Crimes Sub-Committee for the Federal Violent Crime
Reduction Task Force, a member of the Department of Justice’s Regulatory
Reform Task Force, and as an advisor to the White House Coronavirus
Task Force, where he worked with the CDC and HHS to develop guidelines
for the safe reopening of schools and guidelines for law enforcement and
jails/prisons. Prior to rejoining the U.S. Department of Education, Tom
was a partner at an AM-100 law firm, where he represented federal,
state, and local public entities including educational institutions and
law enforcement agencies in regulatory, administrative, trial, and
appellate matters in local, state and federal venues. He is a frequent
author and speaker in the areas of civil rights, free speech, and
Constitutional issues, improving law enforcement, and school safety.

Craig Trainor – Deputy Assistant Secretary for Policy, Office for Civil Rights

Craig
Trainor most recently served as Senior Special Counsel with the U.S.
House of Representatives Committee on the Judiciary under Chairman Jim
Jordan (R-OH), where Mr. Trainor investigated and conducted oversight of
the U.S. Department of Justice, including its Civil Rights Division,
the FBI, the Biden-Harris White House, and the Intelligence Community
for civil rights and liberties abuses. He also worked as primary counsel
on the House Judiciary’s Subcommittee on the Constitution and Limited
Government’s investigation into the suppression of free speech and
antisemitic harassment on college and university campuses, resulting in
the House passing the Antisemitism Awareness Act of 2023. Previously, he
served as Senior Litigation Counsel with the America First Policy
Institute under former Florida Attorney General Pam Bondi, Of Counsel
with the Fairness Center, and had his own civil rights and criminal
defense law practice in New York City for over a decade. Upon graduating
from the Catholic University of America, Columbus School of Law, he
clerked for Chief Judge Frederick J. Scullin, Jr., U.S. District Court
for the Northern District of New York. Mr. Trainor is admitted to
practice law in the state of New York, the U.S. District Court for the
Southern and Eastern Districts of New York, and the U.S. Supreme Court.

Madi Biedermann – Deputy Assistant Secretary, Office of Communications and Outreach

Madi
Biedermann is an experienced education policy and communications
professional with experience spanning both federal and state government
and policy advocacy organizations. She most recently worked as the Chief
Operating Officer at P2 Public Affairs. Prior to that, she served as an
Assistant Secretary of Education for Governor Glenn Youngkin and worked
as a Special Assistant and Presidential Management Fellow at the Office
of Management and Budget in the first Trump Administration. Madi
received her bachelor’s degree and master of public administration from
the University of Southern California.

Candice Jackson – Deputy General Counsel

Candice
Jackson returns to the U.S. Department of Education to serve as Deputy
General Counsel. Candice served in the first Trump Administration as
Acting Assistant Secretary for Civil Rights, and Deputy General Counsel,
from 2017-2021. For the last few years, Candice has practiced law in
Washington State and California and consulted with groups and
individuals challenging the harmful effects of the concept of “gender
identity” in laws and policies in schools, employment, and public
accommodations. Candice is mom to girl-boy twins Madelyn and Zachary,
age 11.

Joshua Kleinfeld – Deputy General Counsel

Joshua
Kleinfeld is the Allison & Dorothy Rouse Professor of Law and
Director of the Boyden Gray Center for the Study of the Administrative
State at George Mason University’s Scalia School of Law. He writes and
teaches about constitutional law, criminal law, and statutory
interpretation, focusing in all fields on whether democratic ideals are
realized in governmental practice. As a scholar and public intellectual,
he has published work in the Harvard, Stanford, and University of
Chicago Law Reviews, among other venues. As a practicing lawyer, he has
clerked on the D.C. Circuit, Fourth Circuit, and Supreme Court of
Israel, represented major corporations accused of billion-dollar
wrongdoing, and, on a pro bono basis, represented children accused of
homicide. As an academic, he was a tenured full professor at
Northwestern Law School before lateraling to Scalia Law School. He holds
a J.D. in law from Yale Law School, a Ph.D. in philosophy from the
Goethe University of Frankfurt, and a B.A. in philosophy from Yale
College.

Hannah Ruth Earl – Director, Center for Faith-Based and Neighborhood Partnerships

Hannah
Ruth Earl is the former executive director of America’s Future, where
she cultivated communities of freedom-minded young professionals and
local leaders. She previously co-produced award-winning feature films as
director of talent and creative development at the Moving Picture
Institute. A native of Tennessee, she holds a master of arts in religion
from Yale Divinity School.

AFPI Reform Priorities

AFPI’s higher education priorities are to:

Related links:

America First Policy Institute Team

America First Policy Initiatives

Source link

January 24, 2025
Department of Education Issues Report on Diversity and Opportunity in Higher Education – CUPA-HR

by CUPA-HR | October 18, 2023

On September 28, 2023, the Department of Education released a report titled “Strategies for Increasing Diversity and Opportunity in Higher Education.” The report was issued in response to the Supreme Court’s June 2023 ruling against affirmative action in college admissions and it outlines ways institutions and states can adapt to prioritize improved accessibility to educational opportunities for underserved students.

The Report

In an introductory message for the report, Secretary of Education Matthew Cardona emphasized the enduring commitment to equal opportunity and student body diversity in higher education on behalf of his department and the president’s administration. While condemning the Supreme Court’s decision on affirmative action, Cardona pledged the Department of Education’s and the Biden administration’s support in promoting inclusivity and equity and stimulating long-term prosperity.

The Department of Education’s report centers around four areas that the administration believes institutions should consider when working to promote diversity and opportunity on campus: student recruitment, admissions, financial aid and student retention. The report focuses mostly on promoting diversity, equity and inclusion (DEI) initiatives in these areas to ensure underserved students have an equitable opportunity to be admitted into and succeed in postsecondary programs.

Relevant to higher education HR, the report discusses the need for improved training of admissions officers and other employees to ensure consistent, equitable evaluations of applicants.

Moving Forward

Prior to the release of the Supreme Court’s affirmative action decision, stakeholders also raised concerns regarding the impact such a decision could have on hiring and employment decisions as well as programs or initiatives focused on creating diverse and inclusive workplaces that align with institutional values. The decision to strike down race-based affirmative action in admissions practices could leave employers open to future legal challenges regarding their hiring decisions and other diversity programs.

CUPA-HR endorses efforts to promote inclusive communities on campuses across the nation. The government relations team continues to track developments impacting these efforts and will inform members of updates as they become available.

Share This Article:

Source link

October 18, 2023
Biden Administration Releases Spring 2023 Regulatory Agenda – CUPA-HR
by CUPA-HR | June 26, 2023

On June 14, the Biden administration released its Spring 2023 Unified Agenda of Regulatory and Deregulatory Actions (Regulatory Agenda), providing the public with an update on the regulatory and deregulatory activities under development across approximately 67 federal departments, agencies and commissions. This release serves as the first Regulatory Agenda for the 2023 year, setting target dates for regulatory actions in the coming year.

CUPA-HR’s government relations team has completed a thorough review of the Spring 2023 Regulatory Agenda and put together the following list of noteworthy proposed actions for members.

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) has again delayed the Notice of Proposed Rulemaking (NPRM) to address changes to the Fair Labor Standards Act (FLSA)’s overtime pay requirements to August 2023. The WHD first announced their intention to move forward with the NPRM in the Fall 2021 Regulatory Agenda, stating its goal “to update the salary level requirement of the section 13(a)(1) exemption [under the FLSA].”

As a reminder, 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, the DOL issued a new final rule in September 2019 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 remains in effect today.

Since the regulation’s reintroduction in the Fall 2021 Regulatory Agenda, CUPA-HR has participated in several DOL listening sessions and has sent letters to the DOL expressing concerns with the timing of the rulemaking. In a recent letter, CUPA-HR joined other associations in calling for the Department to postpone or abandon the anticipated overtime rulemaking, citing concerns with supply chain disruptions, workforce shortages, inflation, and shifting workplace dynamics.

Wage and Hour Division — Employee or Independent Contractor Classification Under the Fair Labor Standards Act

In August 2023, the WHD anticipates issuing a final rule to amend the current method for determining independent contractor status for workers.

On October 13, 2022, the DOL published an NPRM to rescind the current method for determining independent contractor status under the FLSA. 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.
Employment and Training Administration — Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States

The DOL’s Employment and Training Administration (ETA) has moved the “Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States” proposed rule to the list of long-term actions to be taken by the agency, anticipating a release of the NPRM in June 2024. According to the listing in the regulatory agenda, the NPRM will seek 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 upcoming NPRM 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 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.

Department of Education

Office for Civil Rights — Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance

In October 2023, the Department of Education’s Office for Civil Rights (OCR) plans to release its highly anticipated Title IX final rule. The rulemaking would finalize the June 2022 NPRM to roll back and replace the Trump administration’s 2020 regulations while simultaneously expanding protections against sex-based discrimination to cover sexual orientation, gender identity, and pregnancy or related conditions.

CUPA-HR filed comments in September 2022 in response to the NPRM. In our comments, we brought attention to the possible impact the proposed regulations could have on how higher education institutions address employment discrimination.

On May 26, the Department of Education published a blog post stating that the release of the anticipated Title IX final rule will be delayed until at least October 2023. The final rule was previously targeted in the Fall 2022 Regulatory Agenda for May 2023. The department stated that they need additional time to review the 240,000 comments they received in response to the Title IX proposed rule.

Nondiscrimination on the Basis of Sex in Athletics Education Programs or Activities Receiving Federal Financial Assistance

The Department of Education also plans to release the Title IX final rule for student eligibility in athletic programs in October 2023. The rule would finalize the NPRM that was released by the Department in April 2023.

Under the NPRM, schools that receive federal funding would not be permitted to adopt or apply a “one-size-fits-all” ban on transgender students participating on teams consistent with their gender identity. Instead, the proposal allows schools the flexibility to develop team eligibility criteria that serves important educational objectives, such as fairness in competition and preventing sports-related injuries. The Department further explains that the eligibility criteria must take into account the sport, level of competition, and grade or education level of students participating, and the criteria would have to minimize harm to students whose opportunity to participate on a team consistent with their gender identity would be limited or denied.

The NPRM received over 150,000 comments addressing support for and concerns with the NPRM. Again, the Department must review all comments before issuing a final rule to implement these regulations, which may lead to a further delay.

National Labor Relations Board

Joint Employer

In August 2023, the National Labor Relations Board (NLRB) plans to release its anticipated final rule to amend “the standard for determining whether two employers, as defined under the National Labor Relations Act (NLRA), are a joint employer under the NLRA.”

On September 7, 2022, the NLRB issued an NPRM on the joint employer standard. 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; and 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.”

Department of Homeland Security

U.S. Immigration and Customs Enforcement — Optional Alternative to the Physical Examination Associated With Employment Eligibility Verification (Form I-9)

According to the Regulatory Agenda, the Department of Homeland Security (DHS) plans to issue a final rule in August 2023 that would finalize the agency’s proposed rule aiming 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.”

On August 18, 2022, the DHS published its 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. If finalized, the proposed rulemaking 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 rather than directly allowing employers and agents to use such alternative examination options. According to the NPRM, the secretary would be authorized to implement the alternative examination 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.

CUPA-HR filed comments in response to the DHS NPRM in October 2022. The comments were supportive of the Department moving forward with the NPRM, but cautioned against requiring secondary, in-person review of I-9 documents after virtual inspection and once an employee is in-person on a regular and consistent basis; issuing training for document detection and/or anti-discrimination training that may be offered at a high cost without proper vetting, and requiring institutions to be enrolled in E-Verify to participate in the alternative options.

On a related noted, on May 4, 2023, the U.S. Immigration and Customs Enforcement (ICE) announced it will provide employers with 30 days to reach compliance with in-person Form I-9 requirements after the COVID-19 flexibilities sunset on July 31, 2023. ICE previously introduced temporary flexibilities in response to the COVID-19 pandemic in March 2020, allowing employers to review employees’ identity and employment authorization documents remotely, rather than in person. This virtual inspection was to be followed by a physical examination within three business days after normal operations resumed. With the new final rule set for earliest release in August 2023, employers will likely have to resume traditional Form I-9 examination practices until the new final rule goes into effect.

U.S. Citizenship and Immigration Services — Modernizing H-1B Requirements and Oversight and Providing Flexibility in the F-1 Program

In December 2023, the 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.”

CUPA-HR continues to monitor these regulations and will keep members apprised of any significant updates.

Share This Article:
Source link
June 26, 2023
Workforce Innovation and Opportunity Act Reauthorization Prospects for the 118th Congress – CUPA-HR
by CUPA-HR | February 15, 2023

In the 118th Congress, bills will likely be introduced to reauthorize the Workforce Innovation and Opportunity Act (WIOA), which includes programs used by community colleges and other higher education institutions pursuing their own workforce development agendas. Passed in July 2014, the WIOA is the primary federal law to increase access to and coordination between workforce development and other related programs. This blog post provides context on what the WIOA accomplishes and highlights recent attempts to reauthorize the law.

Background

There are four major components to the WIOA:
- Title I includes programs related to workforce development activities and authorizes three formula grants through federally-funded, state- and locally-administered delivery systems that are administered by the Department of Labor.
- Title II enacts the Adult Education and Family Literacy Act (AEFLA), which authorizes programs for adult education up to the secondary level, as well as English training, and is administered by the Department of Education.
- Title III amends the Wagner-Peyser Act, which authorizes the Employment Service formula grant program that is essential to the WIOA for planning and accountability purposes.
- Title IV amends the Rehabilitation Act of 1973 and provides funding to state agencies to support employment-related services to individuals with disabilities, among other smaller programs.
The WIOA originally funded its programs from fiscal year 2015 to fiscal year 2020 after most WIOA programs went into effect July 2015. Appropriations authorization for the WIOA was set to expire after fiscal year 2020, but Congress has extended authorization through the annual appropriations process since fiscal year 2021. Despite the extended authorization, Congress has tasked itself with producing a reauthorization of the WIOA that will extend appropriations for another five or more years and help modernize its workforce development programs. We will likely see reauthorization legislation in the House and/or Senate before the current term ends in 2025.

WIOA Reauthorization Attempt in the 117th Congress

In the 117th Congress, House Education and Labor Committee Chair Bobby Scott (D-VA) and 17 committee Democrats introduced the Workforce Innovation and Opportunity Act of 2022 (H.R. 7309, “WIOA reauthorization bill”) and sent it to the House floor for a vote. According to a Congressional Research Service (CRS) report on H.R. 7309, the bill “would retain the general structure and systems established by the WIOA” and would “authorize appropriations for fiscal years 2023 through 2028, increasing funding for existing systems and establishing several new programs.” The CRS report specifies that the WIOA reauthorization bill focused mostly on amending Title I of the law.

On May 17, 2022, the House passed the WIOA reauthorization bill and sent it to the Senate where the bill stalled in the Senate Help, Education, Labor and Pensions (HELP) Committee until the 117th Congress adjourned. The WIOA reauthorization bill passed the House among mostly partisan lines with 216 Democrats and four Republicans voting in favor of the bill and 196 Republicans voting against it.

House Republicans criticized Scott and other Democrats on the Education and Labor Committee for failing to collaborate with Republicans to create a bipartisan bill prior to its introduction and during the committee markup. Prior to its final House vote, Education and Labor Committee Ranking Member Virginia Foxx (R-NC) spoke out against the bill on the House floor stating that the Democrats’ bill did not create a workforce development system that prepares workers for in-demand skills.

Potential for WIOA Reauthorization Attempts in the 118th Congress

Given a divided House and Senate, both chambers will have to work together to pass any meaningful legislation for a WIOA reauthorization. Democrats and Republicans may be incentivized to produce a consensus WIOA reauthorization bill to address the record labor shortages and resulting open positions that employers are struggling to fill across the country. With Foxx now serving as the chair of the House Education and the Workforce Committee and her interest in WIOA reauthorization during the last Congress, we believe she and other House Republicans will introduce a new bill, though it’s unknown whether they’ll be able to come to an agreement with Democrats in both the House and Senate to finalize and pass a new reauthorization bill.

Without knowing how or when Congress will consider WIOA reauthorization, we are more certain of members who may be House champions of such a bill. In addition to Full Committee Chair Foxx and Ranking Member Scott, House Higher Education and Workforce Development Subcommittee leaders Burgess Owens (R-UT) and Frederica Wilson (D-FL) will be involved in WIOA reauthorization bills that are introduced in this Congress. Less certain is where new Senate HELP leaders Bernie Sanders (I-VT) and Bill Cassidy (R-LA) will stand on this particular issue given the Senate’s lack of action in the last Congress and each senator’s new ascension to top leadership positions of the HELP Committee.

CUPA-HR will monitor WIOA reauthorization bills this Congress and keep members apprised of any new developments.

Share This Article:
Source link
February 15, 2023
Fall 2022 Regulatory Agenda Targets Release Dates for DOL’s Overtime Proposal and Final Title IX Rule – CUPA-HR
by CUPA-HR | January 10, 2023

On January 4, 2023, the Biden administration released the anticipated Fall 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.

After completing a thorough review of the items included in the Regulatory Agenda, CUPA-HR put together the following list of significant proposed actions for members.

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 May 2023. The WHD first announced their intention to move forward with the NPRM in the Fall 2021 Regulatory Agenda, stating its goal “to update the salary level requirement of the section 13(a)(1) exemption [under the FLSA].”

As a refresher, 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, the DOL issued a new final rule in September 2019 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 remains in effect today.

Since the regulation’s reintroduction in the Fall 2021 Regulatory Agenda, CUPA-HR has participated in several DOL listening sessions and has sent letters to the DOL expressing concerns with the timing of the rulemaking. Specifically, our concerns highlight the ongoing challenges of the COVID-19 pandemic and the continued reliance on hybrid and remote work, a historically tight labor market in the U.S. and the effects of inflation on the workforce.

Wage and Hour Division — Employee or Independent Contractor Classification Under the Fair Labor Standards Act

In May 2023, the WHD anticipates issuing a final rule to amend the current method for determining independent contractor status for workers.

On October 13, 2022, the DOL published an NPRM to rescind the current method for determining independent contractor status under the FLSA. 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.
Employment and Training Administration — Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States

In September 2023, the 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 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 August 2023, the National Labor Relations Board (NLRB) plans to release its anticipated final rule to amend “the standard for determining whether two employers, as defined under the National Labor Relations Act (NLRA), are a joint employer under the NLRA.”

On September 7, 2022, the NLRB issued an NPRM on the joint employer standard. 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 and 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.”

Department of Education

Office for Civil Rights — Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance

In May 2023, the Department of Education’s Office for Civil Rights (OCR) plans to release its highly anticipated Title IX final rule. The rulemaking would finalize the June 2022 NPRM to rollback and replace the Trump administration’s 2020 regulations, specifically with respect to its grievance procedures, while simultaneously expanding protections against sex-based discrimination to cover sexual orientation, gender identity and pregnancy or related conditions.

CUPA-HR filed comments in September 2022 in response to the NPRM. In our comments, we tried to bring attention to the possible impact the proposed regulations could have on how higher education institutions address employment discrimination. The Department of Education received over 200,000 comments in response to the NPRM, which they must review prior to issuing a final rule to implement their changes.

In addition to the Title IX rulemaking, the OCR also announced its intention to issue an NPRM to address Title IX protections as it relates to athletics programs at educational institutions. The Department of Education announced its intention to pursue a separate rulemaking to address transgender students participation in athletic programs at institutions of higher education and such protections afforded to them under Title IX after the topic was frequently discussed in the media and in Congress in 2022. According to the Regulatory Agenda, the NPRM was set to be released in December 2022, but it has not yet been released.

Department of Homeland Security

U.S. Immigration and Customs Enforcement — Optional Alternative to the Physical Examination Associated With Employment Eligibility Verification (Form I-9)

According to the Regulatory Agenda, the Department of Homeland Security (DHS) plans to issue a final rule in May 2023 that would finalize the agency’s proposed rule aiming 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.”

On August 18, 2022, the DHS published its 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. If finalized, the proposed rulemaking 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 rather than directly allowing employers and agents to use such alternative examination options. According to the NPRM, the Secretary would be authorized to implement the alternative examination 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.

CUPA-HR filed comments in response to the DHS NPRM in October 2022. The comments were supportive of the Department moving forward with the NPRM, but cautioned against requiring secondary, in-person review of I-9 documents after virtual inspection and once an employee is in-person on a regular and consistent basis; issuing training for document detection and/or anti-discrimination training that may be offered at a high cost without proper vetting, and requiring institutions to be enrolled in E-Verify to participate in the alternative options.

U.S. Citizenship and Immigration Services — Modernizing H-1B Requirements and Oversight and Providing Flexibility in the F-1 Program

In October 2023, the 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.”

Department of Agriculture

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

In May 2023, 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, the 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 May 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.”

Share This Article:
Source link
January 10, 2023
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.

Share This Article:

Source link

September 13, 2022
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.

Share This Article:

Source link

August 22, 2022
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.

Share This Article:

Source link

June 23, 2022