Category: Higher Ed News

DHS Announces Proposed Pilot Program for Non-E-Verify Employers to Use Remote I-9 Document Examination – CUPA-HR
by CUPA-HR | August 9, 2023

On August 3, 2023, the Department of Homeland Security (DHS) published a notice in the Federal Register seeking comments on a potential pilot program to allow employers not enrolled in E-Verify to harness remote examination procedures for the Form I-9, Employment Eligibility Verification.

Background

DHS’s recent actions are built upon a series of moves aimed at modernizing and making more flexible the employment verification process. On July 25, 2023, the DHS rolled out a final rule enabling the Secretary of Homeland Security to authorize optional alternative examination practices for employers when inspecting an individual’s identity and employment authorization documents, as mandated by the Form I-9. The rule creates a framework under which DHS may implement permanent flexibilities under specified conditions, start pilot procedures with respect to the examination of documents, or react to crises similar to the COVID-19 pandemic.

Alongside the final rule, DHS published a notice in the Federal Register authorizing a remote document examination procedure for employers who are participants in good standing in E-Verify and announced it would be disclosing details in the near future about a pilot program to a broader category of businesses.

Key Highlights of the Proposed Non-E-Verify Remote Document Examination Pilot

DHS’s proposal primarily revolves around the following points:

Purpose: Immigration and Customs Enforcement (ICE) intends to gauge the security impact of remote verification compared to traditional in-person examination of the Form I99. This involves evaluating potential consequences like error rates, fraud and discriminatory practices.

Pilot Procedure: The new pilot program would mirror the already authorized alternative method for E-Verify employers, including aspects such as remote document inspection, document retention and anti-discrimination measures.

Eligibility: The pilot program is open to most employers unless they have more than 500 employees. However, E-Verify employers are excluded since DHS has already greenlit an alternative for them.

Application Process: Interested employers must fill out the draft application form, which DHS has made available online. This form captures details like company information, terms of participation, participant obligations, and more.

Information Collection: Employers wishing to join the pilot would be required to complete the formal application linked above. ICE would periodically seek data from these employers, such as the number of new hires or how many employees asked for a physical inspection.

Documentation: Participating companies must electronically store clear copies of all supporting documents provided by individuals for the Form I-9. They might also be required to undertake mandatory trainings for detecting fraudulent documents and preventing discrimination.

Onsite/Hybrid Employees: Companies might face restrictions or a set timeframe for onsite or hybrid employees, dictating when they must physically check the Form I-9 after the initial remote assessment.

Audits and Investigations: All employers, including pilot participants, are liable for audits and evaluations. DHS plans to contrast data from these assessments to discern any systemic differences between the new method and the traditional one.

What’s Next: Seeking Public Comments by October 2

DHS is actively seeking feedback from the public regarding the proposed pilot and the draft application form. The department encourages stakeholders to consider and provide insights on the following points:

Practical Utility: Assess if the proposed information requirement is vital for the agency’s proper functioning and whether the data collected will be practically useful.

Accuracy and Validity: Analyze the agency’s estimation of the information collection’s burden, ensuring the methods and assumptions are valid.

Enhance Information Quality: Offer suggestions to improve the clarity, utility and overall quality of the data collected.

Minimize Collection Burden: Propose ways to ease the data collection process for respondents, exploring technological solutions such as electronic submissions.

In light of this, CUPA-HR plans to carefully evaluate the notice and associated application. Based on its review, CUPA-HR is considering submitting comments to provide valuable insights to DHS. CUPA-HR will keep members apprised of any updates regarding this proposed pilot program and other changes to Form I-9 alternative examination procedures.

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August 9, 2023
HR and the Courts — August 2023 – CUPA-HR

by CUPA-HR | August 9, 2023

Each month, CUPA-HR General Counsel Ira Shepard provides an overview of several labor and employment law cases and regulatory actions with implications for the higher ed workplace. Here’s the latest from Ira.

Tenured Professor Loses First Amendment Retaliation Claim Related to “Offensive” Blog Posted Months Before the Adverse Action

The U.S. Court of Appeals for the 4th Circuit (covering Maryland, Virginia, West Virginia, North Carolina, and South Carolina) dismissed a North Carolina State University professor’s First Amendment retaliatory discrimination claim following the removal of the professor from a key university program. The professor claimed that his removal stemmed from his critical “woke joke” blog post. His blog stated that the Association for the Study of Higher Education’s conference had “… moved from focusing on general post-secondary research to social justice.” He claimed that the comment was protected speech and could best be characterized as a “woke joke.”

The Court of Appeals dismissed his claim holding that the blog post was published 10 months before his removal from the program area and eight months after the department head had emailed him stating that the blog had “generated controversy on social media.” The appeals court ruled 2 to 1 that “temporal proximity” between the alleged speech and the adverse action was lacking and therefore the case must be dismissed (Porter v. Board of Trustees of North Carolina State University (4th Cir. No. 22-01712, 7/6/23)).

Court Decisions on Telework Disability Accommodation Changing in the Aftermath of the COVID-19 Pandemic

Federal judges are less likely to decide in favor of employers rejecting telework accommodation in disability cases in the aftermath of the COVID-19 epidemic. The employer win rate in cases denying a disability telework accommodation has dropped to 60% in the aftermath of COVID-19 compared to a 70% win rate during the two-year period prior to the pandemic, according to statistics cited by Bloomberg Industry Group (DLR 7/6/23).

Federal judges are now more likely to consider telework as a reasonable accommodation in certain disability cases as a result of the widespread use of telework during the COVID-19 pandemic.

Mandatory Paid Family and Medical Leave Becoming More Common Among State and Local Jurisdictions

Twelve states, plus the District of Columbia, have enacted mandatory paid medical and family leave for workers within their jurisdictions. While the form of the mandate varies from jurisdiction to jurisdiction, workers are increasingly being granted by these statutes guaranteed paid time off to care for their own serious medical condition, a newborn or newly adopted child, or a family member’s major medical condition. In addition, according to Bloomberg DLR, Michigan and New Mexico appear likely to adopt mandatory paid-leave programs in the near future. It is important to check your state and local jurisdictions for developments in this area.

Professor of Iranian Decent Entitled to Title VII Jury Trial Over Allegations That His Contract Non-Renewal Was Based on National Origin Prejudice by His Turkish Supervisor

A federal district court judge denied a summary judgement motion and held that a tenure-track art professor of Iranian descent was entitled to a jury trial under Title VII regarding his allegations that his supervisor denied renewal of his contract because of the supervisor’s anti-Iranian, Turkish background. The judge concluded that the plaintiff stated a claim of national origin discrimination under Title VII and was therefore entitled to a jury trial over those allegations and allegations that the university denied the plaintiff access to legal counsel and misstated his legal position (Shams v. Delta State University (N.D. Miss. No. 22-cv-00035, 7/11/23)).

The plaintiff alleged that there is tension between Iranians like himself and Turks like his supervisor because the two countries “… share a contentious border and not much else.” The plaintiff also alleges that he was replaced by an art professor of Turkish background who was contacted for the position before the non-renewal of his contract.

Former Professor’s First Amendment Retaliation Claims Related to His Termination After Publishing an Article on “Racial IQ Gap” Dismissed Against University, But Survives Against University Officials

A former Cleveland State University professor can pursue some of his First Amendment retaliation claims, after he was terminated following publication of an article that advanced a theory that genetics cause a “Racial IQ Gap” between White and Black Americans. The federal district court hearing the case dismissed the complaint against the university on sovereign immunity grounds. However, the court let some of the complaint proceed against some university officials, at least through discovery. After completion of discovery, the court will rule on whether individual university officials are covered by the university’s sovereign immunity (Pesta v. Cleveland State University ( 2023 BL 242086, N.D. Ohio, No. 1-23-cv-00546, 7/14/23)).

The controversial article was subject to outside criticism that the professor unethically misused NIH Data on studies of racial differences to reach his conclusions. The university stated that the professor was terminated for ethical lapses and for violating its academic and integrity standards. The professor claims that he was fired because of university viewpoint discrimination against the conclusions in his article in violation of the First Amendment. We will follow developments as this case unfolds.

New Jersey Equal Pay for Temps Law Is First to Mandate Joint Liability of Employers Along With Temp Agencies

New Jersey employers will face expanded liability along with temp agencies under a law which mandates that temp employees receive pay and benefits equal to comparable full-time employees employed by the employer. The law is the first to impose joint-employer liability along with temp agencies employed by the employer and goes into effect on August 5, 2023, according to Bloomberg DLR, 8/4/23. While other states — including California, Illinois and Massachusetts — have temporary-worker bill-of-rights laws, New Jersey is the first to impose joint-employer liability on the actual employer employing the temp agency.

The New Jersey law imposes the requirement that temp employees in the state receive wages and benefits comparable to those of similarly situated full-time employees.

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August 9, 2023
DOL Accelerates Regulatory Actions – CUPA-HR

by CUPA-HR | July 25, 2023

The Department of Labor (DOL) has accelerated release of proposed and final regulations as the agency strives to meet the self-imposed deadlines in the Biden administration’s Spring 2023 Unified Agenda of Regulatory and Deregulatory Actions (Regulatory Agenda). Multiple DOL sub-agencies are issuing rules and proposed rules in July and August on independent contractor classification, overtime pay exemptions, workplace inspections, and workplace injuries.

Overtime Pay Exemptions

As previously reported, on July 12, DOL’s Wage and Hour Division (WHD) sent to the White House Office of Information and Regulatory Affairs (OIRA) a proposed rule on “Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales and Computer Employees” (1235-AA39) for review. OIRA is part of the Office of Management and Budget (OMB) and is charged with reviewing the costs and benefits of regulatory actions. In the Regulatory Agenda, DOL targeted August for release of a Notice of Proposed Rulemaking (NPRM) on overtime exemptions. OIRA review signals DOL is trying to publish the NPRM at or close to that deadline.

While the content of the proposed rule has not yet been released to the public, we expect that the proposal will increase the minimum salary an individual must be paid to qualify as a bona fide executive, administrative, and professional employee exempt from the Fair Labor Standards Act (FLSA)’s minimum wage and overtime pay requirements.

WHD first announced that it planned to “update the salary level requirement of the section 13(a)(1) exemption” to overtime pay requirements within the FLSA in the Fall 2021 Regulatory Agenda (125-AA39). In early 2022, CUPA-HR and other employer groups requested that DOL hold stakeholder meetings before issuing any regulations. DOL held these meetings, and employer groups urged DOL to delay moving forward with changes to the overtime rule, which DOL did until July 12 when it sent the proposal to OIRA.

While OIRA may take up to 90 days to conduct a review, the agency generally completes review within 30 to 60 days. In the meantime, as with any proposed rule under review, OIRA is accepting input from stakeholders who would like to voice their potential concerns with the rulemaking. CUPA-HR will be requesting a meeting to reiterate the objections made to the rule in letters that CUPA-HR and other associations have sent to DOL since the introduction of the proposal in the Fall 2021 Regulatory Agenda. Most recently, CUPA-HR and 103 other signatories sent a letter to DOL in May 2023, requesting the abandonment or, at minimum, postponement of the anticipated overtime regulation due to the supply chain disruptions, workforce shortages, inflationary pressures, and shifting workforce dynamics that are already prevalent and could be exacerbated by the rulemaking. CUPA-HR has also participated in several DOL listening sessions on the matter.

Independent Contractor Classification

WHD announced in the Spring 2023 Regulatory Agenda that it plans to release the final rule for “Employee or Independent Contractor Classification Under the Fair Labor Standards Act” (1235-AA43) in August. While DOL has not sent the rule to OIRA yet, we expect it will do so any day now. WHD published the original NPRM on October 13, 2022, and allowed the public to provide comments on the proposal until December 13, 2022. Although DOL has not released the text of the final rule, we expect it will be substantially similar to the NPRM and will replace the existing Trump-era rule (1235-AA34) issued on January 7, 2021.

In evaluating whether a worker is an employee or independent contractor under the FLSA, the courts and DOL have long considered the following five factors: the opportunity for profit or loss; investment and permanency; the degree of control held by the employer over the worker; whether the work is an integral part of the employer’s business; and skill and initiative. In the Trump-era 2021 rule, DOL concluded two of the five identified factors — the nature and degree of control over the worker and the worker’s opportunity for profit or loss — are most probative in the analysis and should be considered “core factors” given additional weight. DOL asserted that this streamlined approach was consistent with how courts had historically applied the five-factor test. The 2021 rule also explained that whether the work is “integral to the employer’s business” depends on whether the work is part of an integrated unit of production and not whether the work is critical, necessary or central to the employer’s business, as the latter is subjective, confusing and difficult to apply.

DOL now asserts that the 2021 rule does not fully adhere to the text and purpose of the FLSA and thus intends to replace it with the new method outlined in the NPRM. This new method would shift away from the core factors test to a test in which the factors are all weighted equally and given full consideration. In addition, the DOL is reversing its position on the interpretations and clarifications of factors in the 2021 rule, including the aforementioned clarification on the integral factor.

Many in the business community filed comments opposing the NPRM and supporting the 2021 rule, and we expect that some of those same groups will challenge DOL’s final rule in court if it is substantially similar to the proposal.

Workplace Walkarounds

On July 17, the Occupational Safety and Health Administration (OSHA) sent the “Worker Walkaround Representative Designation Process” (1218-AD45) rule to OIRA for review. As mentioned above, this is an initial step in releasing the proposed rule, the target date for which was June. Again, we are not certain how long the OIRA review process will take, and OIRA is allowing for meetings with individuals and organizations interested in this NPRM.

Under current rules, a union may designate an employee to accompany an OSHA inspector during their facility walkaround. According to the Regulatory Agenda, this NPRM would allow an employee representative to accompany the OSHA inspector, regardless of whether that representative is a direct employee of the company subject to inspection.

Workplace Injuries and Illnesses

On July 17, OSHA released the text of the “Improve Tracking of Workplace Injuries and Illnesses” (1218-AD40) final rule, which was published in the Federal Register on July 21. DOL had projected in the Regulatory Agenda that it would release the rule in June 2023.

The rule amends OSHA’s occupational injury and illness recordkeeping requirements to mandate that certain employers electronically submit specified workplace injury and illness reports to OSHA on an annual basis. More specifically, the new rule will require employers with 100 or more employees in certain industries to electronically submit content from their OSHA Forms 300 and 301 once a year. To be included in the requirements, industries must meet certain criteria that establish them as high hazard. Meanwhile, employers with 20 or more employees in designated industries will continue to be required to electronically submit content from their OSHA Form 300A annually. Finally, employers with 250 or more employees in any industry will need to continue submitting content from their Form 300A on an annual basis.

OSHA plans to publicize the data from the annual electronic submissions. The data would be inputted to a searchable database after removing anything that could help identify the individuals in the reports. Employers will not be required to submit to OSHA details from Forms 300 and 301 related to employees’ names or addresses, the healthcare professionals involved, or the facilities where treatments were provided. In addition to these reporting requirements, the rule also updates the NAICS codes used by OSHA to select which industries should be included in these reporting obligations.

CUPA-HR will continue to keep members apprised of further details concerning the DOL’s advancement of its Spring 2023 Regulatory Agenda, along with opportunities for advocacy.

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July 25, 2023
DHS Announces Final Rule Permitting Alternative Options for Form I-9 Document Examination – CUPA-HR

by CUPA-HR | July 24, 2023

On July 21, the Department of Homeland Security (DHS) announced a final rule permitting the Secretary of Homeland Security to authorize 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. The rule creates a framework under which DHS may implement permanent flexibilities under specified conditions, start pilot procedures with respect to the examination of documents, or react to crises similar to the COVID-19 pandemic.

Simultaneously, DHS published a notice in the Federal Register authorizing an alternative document examination procedure. This provides employers who are participants in good standing in E-Verify with the option to remotely examine their employees’ identity and employment authorization documents via a live video interaction.

Background

Under current law, employers are required to physically examine an individual’s identity and employment authorization documents within three business days after an individual’s first day of employment. In response to the COVID-19 pandemic, DHS introduced temporary flexibilities in March 2020, enabling employers to remotely review these documents. This virtual inspection was to be succeeded by a physical examination within three business days once normal operations resumed. These flexibilities, extended multiple times, are set to expire on July 31, 2023.

Due to the success of temporary changes to document verification procedures implemented at the onset of the COVID-19 pandemic, DHS issued a Request for Public Input (RPI) on October 26, 2021, concerning remote document examination. This move initiated a discussion on whether these leniencies should be extended permanently. After examining the comments responding to the RPI, DHS proposed a framework on August 18, 2022, empowering the Secretary to extend these flexibilities. CUPA-HR submitted comments in response to the RPI (see here) and proposal (see here) encouraging DHS to move forward expediently and ensure that a remote review process remains available following the end of the COVID-19 Flexibilities.

Details of the Alternative Procedure

From August 1, 2023, eligible employers can start using the alternative procedure as outlined in the Federal Register notice. The conditions include: (1) restricting participation to E-Verify participants in good standing; (2) broadening document retention requirements to include clear and legible copies of all Form I-9 documents; (3) requiring E-Verify training on fraud awareness and antidiscrimination; and (4) holding a live video interaction after the employee transmits a copy of the document(s) to the employer.

Employers participating in E-Verify, who created a case for employees whose documents were examined during the COVID-19 flexibility period (March 20, 2020 to July 31, 2023), can opt for the new alternative procedure from August 1, 2023 to satisfy the required physical examination of the employee’s documents for that Form I-9. Conversely, employers not enrolled in E-Verify during the flexibility period must complete a physical examination in-person by August 30, 2023 as outlined in the Agency’s May 4 announcement.

What’s Next

Looking ahead, DHS continues to expand its efforts to streamline employment verification procedures. As part of this endeavor, the department is gearing up to roll out a pilot program offering a remote examination option not just to E-Verify-enrolled employers but also to a broader category of businesses. This pilot program is expected to inform decisions about a comprehensive expansion of the remote examination option.

Simultaneously, DHS is preparing to issue a new edition of Form I-9. Dated August 1, 2023, the new form will become the standard for all employers starting November 1, 2023. Until then, employers can still use the previous edition dated October 21, 2019, through October 31, 2023. It’s important to note, however, that if an employer chooses to utilize the 2019 edition in conjunction with the new alternative remote inspection procedure, they must mark “alternative procedure” in the Additional Information field in Section 2 of Form I-9.

According to DHS, more details about the new Form I-9 and the pilot program will be disclosed in the near future. CUPA-HR will continue to monitor these developments and keep members apprised as they are announced.

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July 24, 2023
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
HR and the Courts — July 2023 – CUPA-HR

by CUPA-HR | July 5, 2023

Each month, CUPA-HR General Counsel Ira Shepard provides an overview of several labor and employment law cases and regulatory actions with implications for the higher ed workplace. Here’s the latest from Ira.

Supreme Court Holds That Use of Race as a Factor in College Admissions Is Unconstitutional — Impact on Workplace Affirmative Action Plans Not Immediate

Rejecting the arguments of Harvard University, the University of North Carolina, and the Biden administration that these programs were necessary to ensure campus diversity the Supreme Court ruled 6 to 3 on June 29, 2023, that the universities’ use of race in their specific admission programs violates the equal protection clause of the Fourteenth Amendment. The decision is 237 pages long with majority, concurring, and dissenting opinions. The majority decision is 47 pages.

Chief Justice Roberts, who wrote the majority opinion, concluded that these affirmative action programs, “… lacked sufficiently focused and measurable objectives warranting the use of race, … involve racial stereotyping, and lack meaningful end points.” He also concluded, “We have never permitted admission programs to work that way and we do not do so today.”

The immediate impact on employment-based affirmative action plans and DEI initiatives is unclear and will unfold as new cases arise, testing the breadth of this decision. We will continue to monitor developments in the employment area as they occur.

Supreme Court Eases an Employee’s Ability to Prove Religious Discrimination When an Employer Denies a Request for an Employment-Based Religious Accommodation

In a case involving the U.S. Postal Service’s denial of a Christian employee’s request to be exempt from Sunday work, the Supreme Court modified the test applicable to an employer’s denial of a religious accommodation.

In 1977, the Supreme Court ruled that under Title VII an employer could deny an employee’s request for a religious accommodation if the employer could demonstrate that the accommodation would create a “undue burden” (TWA v. Hardison). In its decision last month, the Supreme Court interpreted the long-standing Hardison rule to mean that in order for an employer to deny an employee’s request for a religious accommodation, the employer must show that the burden of granting the accommodation “would result in substantial increased costs in relation to the conduct of its particular business” (Groff v. DeJoy (U.S. No. 22-174, 6/29/23)).

The plaintiff here asked the Supreme Court to modify the standard for denial of a religious accommodation to be consistent with the standard for denial of an ADA accommodation. The Supreme Court did not grant that request but has clearly raised the employer’s burden in being able to reject a religious-based accommodation from the prior standard, which has applied since 1977.

Federal Court of Appeals Rules Offensive Music in the Workplace Is Actionable Sex Harassment — Rejects Dismissal Because It Is Offensive to Both Sexes

The 9th Circuit Court of Appeals (covering California, Oregon, Washington, Idaho, Montana, Nevada and Arizona) reversed a federal trial court dismissal of a sex-harassment hostile-environment complaint brought by warehouse workers who complained about offensive, sexually graphic and misogynistic music played by coworkers and supervisors. The trial court dismissed the case on “equal opportunity harassment” grounds because the music was offensive to both sexes. The Court of Appeals disagreed, holding that sex-based discrimination violates Title VII even if it is directed at more than one sex and can create a hostile work environment which is actionable (Sharp v. S&S Activewear LLC (9th Cir. Blom. DLR, 6/9/23)).

The Court of Appeals effectively put an end to the defense that has become known as the “equal opportunity harasser” defense.

University Prevails Against Tenured Professor for Hostile-Environment Sex Harassment — Appeals Court Rejects Defenses That Education Department and University Enforcement of Title IX Is Anti-Male

The 4th Circuit Court of Appeals (covering Virginia, Maryland, West Virginia, North Carolina and South Carolina) affirmed the lower court decision dismissing the action of a tenured psychology professor at George Mason University contesting the sanctions the institution applied following a decision that he created a sex-harassment hostile environment for graduate students. Four students complained that he shared explicit sex talk regarding his sexual exploits and asked questions about their sex lives and that they were forced to participate in the conversations in order to receive favorable treatment regarding research and education opportunities. The university continued to employ the professor as a tenured psychology professor, but banned him from teaching graduate level courses and mentoring graduate students for approximately two years, and disaffiliated him with the university’s clinical psychology program for five to six years.

The appeals court rejected his due-process allegations, concluding that the sanctions did not amount to a “significant demotion” because he is still employed as a tenured professor and the sanctions are not permanent (Kashdan v. George Mason University (4th Cir. No. 20-01509, 6/13/23)). The court rejected his male-bias accusations levelled against the university, its Title IX coordinator, its compliance coordinator, and the Education Department, concluding that all the general statements he raised did not amount to anti-male bias.

Professor Sues University Over “Anti-Racism Training,” Claiming It Created a “Racially Hostile Environment”

An English professor at Penn State University has sued the university, claiming its anti-racism training created a hostile work environment for him, which forced him to resign his position. He is seeking a declaratory judgement from the federal court that the university is in violation of “federal civil rights and free speech laws,” the removal of disciplinary records from his file, and other damages. He is claiming that the university’s anti-racism training and other race policies created a hostile work environment for him as a White English professor. He also claims he was asked to equalize student outcomes by race in his grading of students (De Piero v. Pa. State University (E.D. Pa. 23-cv-02281, Comp filed 6/14/23)). We will follow developments in this litigation as it unfolds.

Court Rules for Employer That Anonymous Hate Mail Does Not Create Actionable Hostile Work Environment

A federal district court judge recently dismissed a claim of hostile work environment related to the receipt of anonymous hate mail written on office letterhead and other anonymous hate communications received by an employee. The employee involved shared the anonymous letters and communication put on the windshield of her car with her employer. The employer immediately treated the incidents as a hate crime, contacted the police, and embarked on an internal investigation which was not successful in finding the perpetrator. The employer allowed the employee to work from home on request and provided other requested accommodations based on the employee’s claim of post-traumatic stress and other related ailments.

The court dismissed the hostile environment case, holding that the anonymous letters could not be attributed to the employer and that the employer’s response was reasonably calculated to end the harassment (Washington v. Offender Aid and Restoration (2023 BL 205479, W.D. Va. No. 3:22- cv- 00041, 6/15/23)). The court also dismissed the plaintiff’s disability claims, concluding that the employer also accommodated all of plaintiff’s requests for accommodation.

Reinstated Athletic Coach Awarded Nominal $1 in Damages for Being Denied “Name Clearing” Hearing After Raising Due-Process Violations

A federal jury handed down a verdict in the case of an athletic coach who was reinstated by the college with back pay after he filed a due-process claim, but was denied a “name clearing” hearing to repair the alleged damage to his reputation. The plaintiff was a substitute athletic manger at Bronx Community College, which is part of the City University of New York (CUNY).

The jury awarded the plaintiff $1 as nominal damages but denied his claim for economic relief, as the plaintiff had been placed on administrative leave with pay during the investigation. He was then fired. However he received back pay as part of his reinstatement after filing the due-process claim (Knights V. C.U.N.Y. ( E.D.N.Y. 19-CV-480 (FB) jury verdict 6/23/23)).

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July 5, 2023
Supreme Court Rules Against Affirmative Action – CUPA-HR

by CUPA-HR | June 29, 2023

This morning, the Supreme Court issued rulings for the cases Students for Fair Admissions v. Harvard and Students for Fair Admissions v. University of North Carolina (UNC), both of which concerned the use of race-based affirmative action in admissions decisions at colleges and universities. The court ruled in favor of Students for Fair Admissions, ultimately striking down the practice of race-conscious admissions decisions on campus.

The Decision

In a 6-3 decision written by Chief Justice John Roberts, the court held that Harvard’s and UNC’s admissions programs violate the equal protection clause of the Fourteenth Amendment. To summarize his arguments, Roberts noted that using a racial classification is only constitutionally permissible if doing furthers a “compelling governmental interest” and is “‘narrowly tailored’— meaning ‘necessary’— to achieve that interest.” He added that while “remediating specific, identified instances of past discrimination” can constitute a compelling interest that justifies race-based state action, “ameliorating societal discrimination does not.” Roberts continued by stating that “[u]niversity programs must comply with strict scrutiny … may never use race as a stereotype or negative, and — at some point — they must end.” He finished by stating the “respondents’ admissions systems — however well intentioned and implemented in good faith — fail each of these criteria [and] therefore [are invalid] under the Equal Protection Clause of the Fourteenth Amendment.”

As an initial matter, Roberts noted that for universities to operate a “race-based admissions programs in a manner that” satisfies constitutional muster, it must be “‘sufficiently measurable to permit judicial [review].’” He found both universities failed to do so, stating:

“Harvard identifies the following educational benefits that it is pursuing: (1) ‘training future leaders in the public and private sectors’; (2) preparing graduates to ‘adapt to an increasingly pluralistic society’; (3) ‘better educating its students through diversity’; and (4) ‘producing new knowledge stemming from diverse outlooks.’ (…) UNC points to similar benefits, namely, ‘(1) promoting the robust exchange of ideas; (2) broadening and refining understanding; (3) fostering innovation and problem-solving; (4) preparing engaged and productive citizens and leaders; [and] (5) enhancing appreciation, respect, and empathy, cross-racial understanding, and breaking down stereotypes.’ (…) Although these are commendable goals … it is unclear how courts are supposed to measure any of [them].”

Secondarily, Roberts found the “respondents’ admissions programs fail to articulate a meaningful connection between the means they employ and the goals they pursue,” as well as “how assigning students to (…) racial categories and making admissions decisions based on them furthers the educational benefits that the universities claim to pursue.” Roberts states that “[r]acial classifications are simply too pernicious to permit any but the most exact connection between justification and classification.” On this point, Roberts concluded that the “categories [used by the universities] are themselves imprecise in many ways” and that institutions “would apparently prefer a class with 15% of students from Mexico over a class with 10% of students from several Latin American countries, simply because the former contains more Hispanic students than the latter.”

Additionally, Roberts states that “race may never be used as a ‘negative’ and that it may not operate as a stereotype,” and he argues the universities’ admissions policies failed because they did both. With respect to the first item, Roberts said “the District Court observed that Harvard’s ‘policy of considering applicants’ race (…) overall results in fewer Asian American and white students being admitted.’” With respect to the stereotypes, he found the policies at issue allocated preference to those “who may have little in common with one another but the color of their skin [and that t]he entire point of the Equal Protection Clause is that treating someone differently because of their skin color is not like treating them differently because they are from a city or from a suburb, or because they play the violin poorly or well.”

Finally, Roberts found that “admissions programs also lack a ‘logical end point,’ which the majority found was needed under the court’s jurisprudence.

The chief justice closed his opinion by stating that colleges and universities are not prohibited from considering an applicant’s “discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise,” but institutions are banned from establishing admissions programs and practices that explicitly consider race. The opinion elaborates, “A benefit to a student who overcame racial discrimination, for example, must be tied to that student’s courage and determination. Or a benefit to a student whose heritage or culture motivated him or her to assume a leadership role or attain a particular goal must be tied to that student’s unique ability to contribute to the university. In other words, the student must be treated based on his or her experiences as an individual — not on the basis of race.”

Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson issued a dissenting opinion in both cases (To note: Jackson did not take part in considering the decision in the Harvard case due to her previous connection with Harvard College). Sotomayor wrote in the dissenting opinion that the court’s decision “rolls back decades of precedent and momentous progress” and that it “holds that race can no longer be used in a limited way in college admissions to achieve such critical benefits,” which “cements a superficial rule of colorblindness as a constitutional principle in an endemically segregated society where race has always mattered and continues to matter.”

In August 2022, CUPA-HR joined the American Council on Education and others in filing an amicus brief in support of Harvard and UNC. The brief argued that the Supreme Court should rule in favor of preserving race-conscious affirmative action, as has been made precedent for decades. The brief highlights the value of considering race and ethnicity during the admissions process and the broader impact such initiatives have for institutions’ efforts to increase diversity on campus.

The Decision

Prior to the rule’s issuance, stakeholders also raised concerns with the impact the decision could have on employers’ hiring and employment decisions as well as any diversity, equity and inclusion (DEI) programs or initiatives. Today’s decision to strike down race-based affirmative action in admissions practices could leave employers open to future legal challenges against their hiring decisions and other diversity programs.

CUPA-HR strongly supports the need to create and sustain diverse, inclusive college and university communities. We’re disappointed that the Supreme Court’s action has limited our efforts. CUPA-HR’s government relations team is further analyzing the decision and will keep members apprised of any additional updates as it relates to these cases.

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June 29, 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