Category: General

Department of Labor Moves on Proposed Overtime Rule – CUPA-HR

by CUPA-HR | July 13, 2023

Yesterday, the Department of Labor (DOL) sent its proposed rule on “Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales and Computer Employees” to the White House Office of Information and Regulatory Affairs (OIRA) for review. This is a required initial step before the proposed overtime rule is published.

OIRA, part of the president’s Office of Management and Budget (OMB), 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. If this timetable holds true, DOL stands a reasonable chance of publishing a proposed rule sometime close to the August 2023 target date set forth in the Spring 2023 Regulatory Agenda.

The proposed rule is not public during OIRA’s review, so at this time we do not have any specific details on what the proposal contains. However, OIRA takes meetings to hear from concerned parties about proposed rules under their review, and CUPA-HR will be requesting a meeting to reiterate concerns we have set forth in letters to DOL since the proposal appeared on the Fall 2021 Regulatory Agenda.

We’ll be sure to keep CUPA-HR members updated on all the latest details regarding the proposed overtime rule and possible advocacy opportunities during the OIRA review process.

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July 13, 2023
Senate Holds Markup of the Paycheck Fairness Act, Healthy Families Act and PRO Act – CUPA-HR
by CUPA-HR | June 28, 2023

On June 21, the Senate Health, Education, Labor, and Pensions (HELP) Committee held a markup of three labor bills championed by Democrats: the Paycheck Fairness Act (S. 728), the Healthy Families Act (S. 1664), and the Protecting the Right to Organize (PRO) Act (S. 567). The three bills passed out of the committee by a vote of 11-10 along party lines, demonstrating the challenge these bills will face to be passed into law.

Paycheck Fairness Act

The Paycheck Fairness Act aims to address wage discrimination on the basis of sex. More specifically, the bill limits an employer’s defense that a pay differential is based on a factor other than sex, enhances non-retaliation prohibitions, prohibits employee contracts or waivers banning them from disclosing wage information, and increases civil penalties for violations of equal-pay provisions.

Ranking Member Bill Cassidy (R-LA) introduced several amendments to the proposed Paycheck Fairness Act, including an amendment to substitute the text with the Wage Equity Act. The Wage Equity Act would protect employers’ ability to use bona fide business-related factors other than sex to set workers’ compensation and allow workers to voluntarily disclose their prior salary histories when they choose to do so. The amendment was ultimately defeated by a vote of 9-12, with Sen. Rand Paul (R-KY) joining Democrats in voting against the amendment.

Healthy Families Act

The Healthy Families Act permits employees of businesses with 15 or more workers to accrue up to seven job-protected paid sick days each year to recover from an illness and provide care to a sick family member, among other health-related activities. For employers with 15 or fewer employees, the bill would allow employees to earn up to seven job-protected unpaid sick days each year to be used for the same purposes. Under the bill, workers would accrue one hour of sick leave for every 30 hours worked, with a cap of 56 hours that may be raised by the employer.

Cassidy offered two amendments to the bill that would exempt employers from the requirements of the bill if they already offer paid sick leave that is at least as comprehensive as the seven-day requirement or if they are religious employers denying sick leave taken for reasons that violate their religious beliefs. Both amendments were struck down by Democrats.

PRO Act

The PRO Act is a massive labor reform bill designed to increase union density. The bill includes several provisions that would overhaul existing labor laws — including the National Labor Relations Act (NLRA), the Taft-Hartley Act, and the Labor-Management Reporting and Disclosure Act — and may impose burdens on both employers and employees. Such provisions include:
- codifying the National Labor Relation Board (NLRB)’s Browning-Ferris Industries joint-employer standard;
- imposing the “ABC test” into the NLRA for classifying employees, making it more difficult for workers to operate as independent contractors;
- preempting state right-to-work laws that prevent forced unionization;
- prohibiting arbitration agreements in employment contracts;
- revoking attorney-client confidentiality for employers; and
- facilitating secondary boycotts by barring claims against unions that conduct them.
The PRO Act has been strongly criticized by congressional Republicans over the past several congressional sessions, and committee Republicans offered 35 amendments to modify the current text of the PRO Act. All 35 amendments were ultimately defeated when brought to a vote.

Looking Ahead

Despite the passage of these bills through the Senate HELP Committee, they are unlikely to be signed into law. Due to their partisan support, the bills are unlikely to garner enough support to bypass the 60-vote filibuster on the Senate floor and to be considered in the Republican-controlled House.

CUPA-HR will keep members apprised of future developments on these bills.

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June 28, 2023
CUPA-HR Welcomes a New Board of Directors for 2023-24 – CUPA-HR
by CUPA-HR | June 28, 2023

As we prepare for a new year at CUPA-HR, beginning July 1, we want to take a moment to introduce our board of directors for 2023-24 and to thank those who have served on the board over the past year. The board, which guides the association’s strategic priorities, is an incredible team of higher ed HR leaders who are dedicated to supporting and advancing the higher ed HR profession.

2023-24 Board Members

The chair of CUPA-HR’s board of directors for 2023-24 is Jami Painter, senior associate vice president and chief human resources officer at the University of Illinois System. For more than 20 years, Jami has served in a higher ed HR role that requires leadership for system-wide committee facilitation and workgroups with varying audiences, cultures, priorities and interests. She also brings a wealth of experience from her eight years in HR outside of higher ed and her time serving in board roles for several local and statewide organizations. Jami has been a member of CUPA-HR’s national board since 2019.

Also serving on this year’s board are:

Executive Committee Members

Robyn Salvo, Chair-Elect – Associate Vice President for Human Resources at Monmouth University

Jay Stephens, Past Chair – Vice President for Human Resources Projects at Kansas State University

Kelli Shuman, Treasurer – Associate Vice President for Human Resources and Chief Human Resources Officer at Elon University

Andy Brantley, Ex-Officio – President and CEO at CUPA-HR

Regional Directors

Kristi Yowell, Eastern Region – Associate Vice President for Human Resources at Goucher College

Connie Putland, Midwest Region – Chief Human Resources Officer at the University of Wisconsin-Whitewater

Ale Kennedy, Southern Region – Associate Vice President for Human Resources and Chief Human Resources Officer at Clemson University

Clarity White, Western Region – Human Resources Supervisor at the University of California, Berkeley, Berkeley Regional Services

At-Large Directors

Heather Hart – Vice Chancellor of Human Resources and Strategic Operations at Ivy Tech Community College of Indiana-Lafayette

El pagnier Kay (EK) Hudson – Senior Vice President, Human Resources at Florida International University

Jazzmine Clarke-Glover – Vice President of Workplace Culture and Inclusion (CHRO, CDO, Title IX Coordinator) at Wagner College

Christine Lovely – Vice President and Chief Human Resources Officer at Cornell University

Josh Mackey – Vice President of Human Resources at Northern Arizona University

Helena Rodrigues – Senior Vice President and CHRO at the University of Arizona

Eugene Whitlock – Chief People and Culture Officer/Associate Vice Chancellor for HR at the University of California-Berkeley

Lynne Adams – CHRO-Associate Vice President HR at the University of Maryland, Baltimore County

Maureen Binder – Associate Vice President and Chief HR Officer at the University of Central Florida

Thank You!

We also want to celebrate the outstanding leaders who are rolling off the board. They have invested countless hours of their time and energy in leading our profession and our association, and we are so grateful for their wisdom and guidance.

Jeff C. Herring, Past Chair – Chief Human Resources Officer at The University of Utah

Amanda Bailey – Vice President for Human Resources at Boston University

Theresa Elliot-Cheslek – Vice President and Chief Human Resource Officer at Washington State University

Renee Hiller – Vice President for Human Resources and Workplace Experience at St. Cloud State University

We couldn’t accomplish our mission without our leaders. Thank you for your dedication and commitment!

CUPA-HR’s 2022-23 Board of Directors

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June 28, 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.

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June 26, 2023
Julie Su’s Confirmation for DOL Secretary Uncertain as Senator Manchin Seeks Alternative Nominees

In the latest development on Julie Su’s contentious nomination for secretary of the Department of Labor (DOL), Sen. Joe Manchin (D-WV) appears unlikely to vote in favor of Su when her nomination reaches a floor vote in the Senate. Recent news reported that Manchin may be seeking alternative candidates for the position, though no names have been publicly revealed at this time. Given the current 51-49 Democratic majority in the Senate, however, Manchin’s potential opposition means Democrats cannot afford to lose any additional support for the nomination.

The odds may be further stacked against Su as Sens. Krysten Sinema (I-AZ) and Jon Tester (D-MT) have yet to reveal whether they will support Su’s nomination. Although Manchin, Sinema and Tester all caucus with Democrats, they face reelection in 2024 in Republican-leaning states, leaving them in a precarious position as Republicans are seemingly united in opposing Su.

Nomination Hearing and Committee Vote

On April 19, the Senate Health, Education, Labor, and Pensions (HELP) Committee held a hearing on Su’s nomination to serve as secretary of labor. During the hearing, Republicans and Democrats discussed Su’s performance as the secretary of California’s Labor and Workforce Development Agency (LWDA), including her involvement in the agency’s handling of COVID-19-related unemployment insurance payments. Republicans on the committee pointed to the widespread COVID-19 unemployment insurance (UI) fraud paid out by the state. On the other side of the aisle, Democrats defended Su’s record. With regard to the UI fraud, Democrats held that California’s statistics were low in comparison to other states.

The hearing also focused on several key labor and employment issues that Su will work on as secretary of labor. On the topic of independent contractor classification, Republicans again focused on Su’s work at the LWDA, calling attention to her role in California’s Assembly Bill 5 law. The law establishes an ABC test, which is a three-pronged test used to classify workers as either employees or independent contractors. Republicans expressed concerns over whether Su would try to implement an ABC test through DOL regulations. In response, Democrats clarified that the ABC test is not included in the DOL’s new proposed rulemaking and that the DOL has previously stated that it lacks the legal authority to implement this test for classifying independent contractors.

Another issue area raised by Republicans was that of joint employment. Although her support for the joint employment standard was questioned, Ranking Member Bill Cassidy (R-LA) testified that Su has committed to not pursue changes to the joint employer standard if she is confirmed. Su said she understands the importance of the franchising model, stating that there is no plan currently on DOL’s fall or upcoming spring regulatory agenda to change the standard. Notably, she did not say whether there would be a rulemaking on the joint employer issue after the upcoming spring regulatory agenda.

A week after the hearing, the Senate HELP Committee voted to move Julie Su’s nomination to serve as secretary of labor out of committee and to a full Senate floor vote. The committee vote was divided along party lines, with 11 Democrats voting in favor and 10 Republicans voting against her nomination, foreshadowing the trouble she may face to be confirmed by the full Senate.

Next Steps

Given Manchin’s likely opposition and the narrowly divided Senate, Su’s confirmation as secretary of labor by the full Senate is still uncertain. If Sinema or Tester also commits to opposing Su, Su will likely not have the votes to be confirmed. As a result, Senate Majority Leader Chuck Schumer (D-NY) has yet to announce when the vote on Su’s nomination will hit the Senate floor.

In the meantime, Su will continue to serve as the acting secretary of labor in the absence of a person confirmed into that position. As a reminder, there are no limitations on the functions of an acting secretary, leaving Su with full authority over the DOL while her nomination is pending. That being said, anticipated rulemakings from DOL, such as the FLSA overtime rule and the independent contractor classification rule, may be held back from publication as a result of Su’s drawn-out nomination process.

CUPA-HR will keep members apprised of any major personnel or regulatory updates from DOL.

The post Julie Su’s Confirmation for DOL Secretary Uncertain as Senator Manchin Seeks Alternative Nominees appeared first on CUPA-HR.

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May 25, 2023
Congress and Federal Agencies Consider Paid-Leave Proposals and Protections for Pregnant and Nursing Workers – CUPA-HR

by CUPA-HR | May 24, 2023

Over the past year, lawmakers have taken an increased interest in establishing and expanding upon benefits and protections for paid leave and pregnant workers. As a result, Congress passed two bills granting workplace protections to pregnant and nursing mothers at the end of 2022, while considering new federal proposals for paid family and medical leave. This post details some of the recent actions taken by lawmakers toward a federal paid-leave policy, as well as updates from federal agencies on the enforcement of the Pregnant Workers Fairness Act (PWFA) and the Providing Urgent Maternal Protections (PUMP) for Nursing Mothers Act.

Bipartisan Working Group on Paid Leave

In April, a group of bipartisan lawmakers in the House of Representatives established the Bipartisan Paid Family Leave Working Group, the goal of which “is to create a bipartisan paid family leave policy that supports American families and businesses.” The group consists of three Republicans — Reps. Stephanie Bice (R-OK), Julia Letlow (R-LA) and Mariannette Miller-Meeks (R-IA) — and three Democrats — Reps. Chrissy Houlahan (D-PA), Colin Allred (D-TX) and Haley Stevens (D-MI).

In a letter establishing the working group, the lawmakers expressed their intention to explore both state and federal policies that already exist with the goal of creating an established paid-leave policy. The letter discusses both the successes and areas to improve of the Family and Medical Leave Act, and it states that there is a bipartisan consensus that paid leave is an issue that needs to become law.

FAMILY Act

On May 17, Sen. Kirsten Gillibrand (D-NY) and Rep. Rosa DeLauro (D-CT) reintroduced the FAMILY Act, which would grant up to 12 weeks of paid leave for employees at companies of all sizes through funds collected by payroll taxes paid by both employees and employers. The FAMILY Act was first introduced in 2013, but the most recent bill expands upon previous text by creating a progressive scale for wage replacement during the time off. Under the bill, the lowest paid workers would be eligible to receive up to 85 percent of their wages during their time off, while the average full-time worker would receive approximately two-thirds of their wages. Additionally, the bill extends coverage to include time off taken to address personal incidents with domestic violence, stalking and/or sexual assault.

While most Democrats have championed the FAMILY Act as their preferred proposal for paid leave, the bill is unlikely to gain Republican support and will therefore not pass the House during this Congress. Republicans have previously opposed the bill, arguing against the proposed tax increases as well as potential burdens employers may face as a result of a paid-leave mandate. Instead, Republicans who have shown interest in advancing paid-leave policies have considered programs allowing individuals to borrow from their Social Security funds, incentivizing the creation of a private insurance system for leave pay, and providing tax credits to pay for time off.

PUMP for Nursing Mothers Act

On May 18, the Department of Labor Wage and Hour Division (WHD) issued a Field Assistance Bulletin (FAB) with enforcement information and public guidance for the PUMP for Nursing Mothers Act. The law went into effect on April 28, after being included in the Consolidated Appropriations Act of 2023 year-end legislation to fund the federal government.

As a reminder, the PUMP for Nursing Mothers Act amends the Fair Labor Standards Act (FLSA) to expand access to breastfeeding accommodations in the workplace for lactating employees and builds on existing protections in the 2010 Break Time for Nursing Mothers Provision by broadening breastfeeding accommodations and workplace protections. Specifically, the bill ensures reasonable time and space for working individuals to pump in their workplaces as well as remedies for employer violations of the act.

The FAB provides details on the requirements for reasonable space and break time, compensation, and employer posting of FLSA requirements as provided under the PUMP for Nursing Mothers Act. Employers and field staff alike may use the FAB document as a resource to understand compliance with the act as enforced by WHD.

Pregnant Workers Fairness Act

Alongside the PUMP for Nursing Mothers Act, the PWFA was also signed into law under the Consolidated Appropriations Act of 2023. The effective date of the PWFA is June 27, and the Equal Employment Opportunity Commission (EEOC) was expected to issue proposed regulations on how best to govern and enforce the PWFA by then.

As of May, however, the EEOC has yet to release any proposed regulations, and it seems likely that the agency will not be able to issue a proposed rule by the June 27 date. The commission currently has two Democratic and two Republican commissioners, and given the need for a majority of commissioners to vote to advance a rulemaking, the agency is unable to move proposed rules forward because commissioners are split along party lines. Through the legislation, Congress has allowed the EEOC through the end of 2023 to finalize a rulemaking on the PWFA, which may or may not be achieved, depending on whether the Senate is able to confirm Kalpana Kotagal as the third Democratic appointee on the commission. In lieu of the proposed rulemaking, the EEOC has issued guidance on the law through an FAQ webpage addressing the protections granted under the law, which stakeholders may use as they wait for the official regulations.

CUPA-HR continues to monitor any developments related to these proposals and laws and will keep members apprised of any policy updates related to paid leave and protections for pregnant and nursing workers.

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May 24, 2023
Award-Winning Work in Higher Ed HR – 2023 Regional Awards – CUPA-HR
by CUPA-HR | May 23, 2023

From developing supervisor competencies to transforming HR operations, human resources teams and HR practitioners across the country are doing great work every day.

CUPA-HR’s regional Higher Education HR Awards program recognizes some of the best and brightest in higher ed HR and honors HR professionals who have given their time and talents to the association.

Here are this year’s regional award recipients:

HR Excellence Award

This award honors transformative HR work in higher education and recognizes a team that has provided HR leadership resulting in significant and ongoing organizational change within its institution.

Office of Human Resources, Towson University (Eastern Region)

Towson University has had a partnership with Humanim, a nonprofit community workforce-development program, for many years. However, the pandemic created challenges that threatened to derail the partnership and the program. TU’s office of human resources, along with other anchor institutions, worked with Humanim to move parts of the program online, including virtual mock interviews, information sessions and panel discussions. Despite turnover created by the pandemic, the TU HR team was determined to maintain its relationship with Humanim and continue to provide employment opportunities to Baltimore residents. As TU’s top provider of quality temporary candidates for the university’s administrative functions, Humanim was also essential to the university during pandemic. For their outstanding work, CUPA-HR has contributed $1,000 to Towson University.

Human Resources, Grand Valley State University (Midwest Region)

In February 2022, Grand Valley State University’s HR team began implementing a total transformation of their operations, shifting from a 60-year-old compliance-driven approach to HR to an HR business partner approach. This change resulted in the creation of a “one-stop shop,” where HR services could be delivered more efficiently and consistently across all campus departments. The team also moved to improve efficiency by merging payroll, HR administration and technology, and benefits into a total rewards unit. And in the fall of 2022, HR established a formal talent management unit to organize and advance talent efforts. With these changes, HR is well positioned to unify and transform the university’s organizational culture. For their outstanding work, CUPA-HR has contributed $1,000 to Grand Valley State University.

Culture Team, Utah Valley University (Western Region)

Recognizing a need for a better leadership experience for supervisors on their campus, Utah Valley University’s culture team set out to create a set of standardized leadership competencies that would help ensure that they were hiring the right people, communicating clear expectations during onboarding, providing leadership resources through training, and allowing supervisors to receive feedback. The Leadership Competency Experience, based on six leadership competencies and the university’s core values, established a standardized method of hiring, onboarding, training and feedback processing intended to cultivate effective leadership at all levels. Two years in, the program has made a significant impact on the quality of supervisors being hired and the training and support they receive, and the number of employee relations cases and volume of turnover due to bad supervision have decreased sharply. In fact, it has been so successful that in July 2022 the team released the Staff Competency Experience. For this impressive achievement, CUPA-HR has contributed $1,000 to Utah Valley University.

Higher Ed HR Rock Star Award

This award recognizes an individual who is serving in the first five years of a higher education HR career who has already made a significant impact.

Miranda Arjona, Rollins College (Southern Region)

From day one, Miranda Arjona, assistant director of human resources at Rollins College, has impressed colleagues with her positive outlook, creativity, willingness to learn and helpful attitude. Whether she’s building relationships within the HR team or leading a service excellence subcommittee, Miranda is focused on strengthening connections and making a difference. When she was asked to temporarily assist in student affairs to help manage contact tracing and consulting during the pandemic, she did so with her typical positivity and commitment to the task. Just as seamlessly, she transitioned back to her talent management role with the same mindset and tenacity. Her commitment to being a relationship-builder has not only served Rollins but also the higher ed HR community. She has been a speaker at two local HR events, and she is currently serving as president-elect of the CUPA-HR Florida Chapter.

Lyndon Huling, University of California-Davis (Western Region)

Lyndon Huling, manager of leadership recruitment, temporary staffing and diversity services at UC Davis, routinely taps his broad intergenerational and cross-cultural campus connections in his work, making him an exceptionally effective leader. His commitment to reimagining HR and recruitment best practices through a DEI lens shows in the strategies he’s developed and the innovative programs he’s been instrumental in establishing. Among other projects, he has co-sponsored and delivered transformative Race Matters workshops that create a safe space to learn and discuss race at work, which he has shared through presentations at regional and national CUPA-HR conferences. Through his work to create and share resources, Lyndon has demonstrated himself to be a passionate, progressive leader in higher ed HR.

Chapter Excellence Awards

These regional awards recognize chapters that are making a significant impact through their commitment to CUPA-HR and to the higher ed HR community. They work to achieve this through financial responsibility, commitment to CUPA-HR chapter guiding principles, cultivation of strong leadership, and development of creative networking and professional development opportunities.

This year’s Chapter Excellence regional recipients are:
- The CUPA-HR Michigan Chapter (Midwest Region)
- The CUPA-HR Kentucky Chapter (Southern Region)
- The CUPA-HR Northern and Central California Chapter (Western Region)
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May 23, 2023
ICE Gives Employers Until August 30 for In-Person Form I-9 Verification After COVID Flexibilities Expire – CUPA-HR

by CUPA-HR | May 10, 2023

On May 4, 2023, U.S. Immigration and Customs Enforcement (ICE) announced it will provide employers with 30 days to reach compliance with Form I-9 requirements after the COVID-19 flexibilities sunset on July 31, 2023. Employers will now have until August 30, 2023, to complete all required physical inspections of identity and employment-eligibility documents. This extension aims to ease the transition for employers who have been using the temporary flexibilities throughout the pandemic.

Background

In March 2020, ICE introduced the temporary flexibilities in response to the COVID-19 pandemic, 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. The flexibilities were extended several times, with the most recent extension set to expire on July 31, 2023.

During the pandemic, employers with employees taking physical-proximity precautions were allowed to temporarily defer physical examination of employees’ identity and employment authorization documents. Remote examination methods, such as video link, fax or email, were permitted, with “COVID-19” entered as the reason for the physical-examination delay in the Section 2 Additional Information field on the Form I-9. Once the employees’ documents were physically examined, employers would add “documents physically examined” with the date of examination to Section 2 or Section 3 of the Form I-9, as appropriate.

The recent announcement clarifies that employers have until August 30, 2023, to perform all required physical examinations of identity and employment-eligibility documents for individuals hired on or after March 20, 2020, who have received only a virtual or remote examination under the flexibilities.

What’s Next

On August 18, 2022, ICE issued a proposed rule to allow alternative procedures for examining identity and employment-eligibility documents. CUPA-HR submitted comments to ICE encouraging it to move forward expediently and ensure that a remote review process remains available for all employers. The public comment period closed on October 17, 2022, and DHS is currently reviewing the comments. While the Fall 2022 Regulatory Agenda had forecast a final rule to be issued in May 2023, ICE’s announcement indicates a final rule will be issued later this year.

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May 10, 2023
WHD Begins Enforcement of Remedies Provided Under PUMP for Nursing Mothers Act – CUPA-HR

by CUPA-HR | May 1, 2023

On April 28, the Department of Labor’s Wage and Hour Division (WHD) will begin enforcing remedies for employer violations of an employee’s right to reasonable break time and space to pump breast milk under the Fair Labor Standards Act (FLSA). These remedies were codified into law under the Providing Urgent Maternal Protections (PUMP) for Nursing Mothers Act, which was included in the Consolidated Appropriations Act of 2023 — year-end legislation to fund the federal government.

As a reminder, the PUMP for Nursing Mothers Act amends the FLSA to expand access to breastfeeding accommodations in the workplace for lactating employees and builds on existing protections in the 2010 Break Time for Nursing Mothers Provision by broadening breastfeeding accommodations and workplace protections. In the new law, protections are expanded to include salaried employees exempt from overtime pay requirements under the FLSA as well as other categories of employees currently exempt from such protections, such as teachers, nurses and farmworkers. It also clarifies that break time provided under this bill is considered compensable hours worked so long as the worker is not completely relieved of duty during such breaks, and it ensures remedies for nursing mothers for employer violations of the bill.

According to a WHD fact sheet on FLSA protections to pump breast milk at work, there will be several legal or equitable remedies employers will be liable for if they are found to have violated an employee’s right to reasonable time and space to pump in the workplace. The document states that remedies may include “employment, reinstatement, promotion, and the payment of wages lost and an additional equal amount as liquidated damages, compensatory damages and make-whole relief, such as economic losses that resulted from violations, and punitive damages where appropriate.” The fact sheet also clarifies that the remedies listed above will be available regardless of whether an employee experienced retaliation.

In addition to the fact sheet, the WHD has issued several resources on the PUMP for Nursing Mothers Act’s provisions since its enactment. On February 9, the WHD issued Field Assistance Bulletin No. 2023-1, “Telework Under the Fair Labor Standards Act and Family and Medical Leave Act.” This bulletin provides guidance for WHD field staff on how to apply protections under the FLSA that provide reasonable break time for nursing employees to express milk while teleworking, among other clarifications. The bulletin explicitly refers to the passage of the PUMP for Nursing Mothers Act and its expanded coverage to more employees. Additionally, on March 16, the WHD held a webinar to provide resources and tools to assist employees who wish to continue breastfeeding after returning to work and to help employers understand their responsibilities under the Act.

For more information on the PUMP for Nursing Mothers Act and FLSA protections to pump at work, the WHD has provided a resource website with general guidance, additional resources and the webinar on the PUMP for Nursing Mothers Act. CUPA-HR will keep members apprised of any updates to this law and others regarding FLSA protections for pregnant and nursing workers.

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May 1, 2023
Managing a Multi-State Workforce: Key Findings From the CUPA-HR Survey and a Public University’s Hybrid Approach – CUPA-HR
by CUPA-HR | April 19, 2023

As higher ed institutions face pressure to fill open positions and offer more flexible work opportunities, many are responding by recruiting and hiring employees who live and work in a state different from where their institution’s primary campus is located. CUPA-HR’s Multi-State Workforce Survey was developed to better understand institutions’ policies, practices and challenges related to out-of-state workers.

Notable findings:

89% of responding institutions employ out-of-state workers.

The most common types of out-of-state workers are adjunct/part-time faculty and salaried/exempt staff.

On median, institutions employ out-of-state workers from 8 states.

Most institutions have restricted policies for both recruiting and hiring out-of-state workers.

Of the one third of institutions who avoid hiring from certain states, the most common states institutions avoid hiring from were California, New York, Washington and Colorado.

Many institutions provide salary ranges on job postings, but most do not adjust salaries based on location.

Despite the challenges of a multi-state workforce, excluding out-of-state workers can decrease the quality of the candidate pool and may cause institutions to miss out on top talent. Institutions pursuing, or considering pursuing, out-of-state workers may want to look at Clemson University’s hybrid approach to managing a multi-state workforce.

Charged by senior leadership to explore options for out-of-state employment, Clemson University’s HR team, led by Chief Human Resources Officer Ale Kennedy, convened a cross-campus workgroup that reached out to several schools about their out-of-state work approaches. After reviewing the data, the workgroup recommended that in-house HR manage the green or “easy” states and outsource the more challenging states in order to minimize risk. To learn more about Clemson’s approach — and the full findings from the Multi-State Workforce Survey — be sure to watch CUPA-HR’s recent webinar “The State of the Multi-State Workforce: Employment Practices and Challenges.”

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April 19, 2023