Category: Higher Ed News

  • Trump Signs Executive Order on Enforcement of Immigration Laws, Potentially Leading to Increased Worksite Enforcement Action

    Trump Signs Executive Order on Enforcement of Immigration Laws, Potentially Leading to Increased Worksite Enforcement Action

    by CUPA-HR | January 29, 2025

    Along with several immigration-related executive orders and actions issued on Inauguration Day, President Trump signed an executive order titled “Protecting the American People Against Invasion.” The EO sets several directives for U.S. Immigration and Customs Enforcement (ICE) and U.S. Citizenship and Immigration Services (USCIS) to enforce immigration law against immigrants without permanent legal status in the U.S. and could implicate employers the government deems as “facilitating” the presence of such individuals.

    Sections 4 and 5 of the EO establish civil and criminal enforcement priorities for relevant federal agencies. Specifically, the EO directs the secretary of Homeland Security to enable ICE and USCIS to set priorities for their agencies that would ensure successful enforcement of final orders of removal. Additionally, Section 8 of the EO directs increased enforcement action in the form of civil fines and penalties. The EO directs the secretary of Homeland Security to ensure assessment and collection of all fines and penalties from individuals unlawfully present in the U.S. and, notably, those who facilitate such individuals’ presence in the U.S.

    Depending on how the agencies respond to this order, these three sections of the EO could lead to an uptick in worksite enforcement action. As a result of this EO, agencies could take increased enforcement action for employment-related immigration law, which could lead to agency actions such as Form I-9 audits and potential investigations and worksite visits related to immigration compliance. Employers who are not in compliance with federal immigration laws could be considered as entities that potentially “facilitate” the presence of immigrants without permanent legal status, which could lead to significant fines and other penalties for the employers.

    Next Steps for HR Leaders

    CUPA-HR has always worked to help you ensure that your institution’s Form I-9 processes are in compliance with federal requirements, and we’ve partnered with USCIS for many years to provide periodic guidance, support and resources. We also understand that it is sometimes a challenge to ensure total compliance for large, sprawling campuses and that some of you have employees at worksites across your state, the country and the globe. Through speeches and actions like this executive order, the Trump administration has made it clear that they intend to focus enforcement efforts on immigrants without permanent legal status and businesses employing them. As noted above, it is possible that there could be I-9 audits and site visits to ensure compliance. Penalties for noncompliance could include very large fines and loss of federal funding.

    In light of this EO, it is vital for institutions to review their compliance with immigration laws regarding employment eligibility and work authorization. There are several questions HR leaders should ask themselves when reviewing compliance:

    • If you were notified tomorrow that your institution’s Form I-9 records were going to be audited in the coming weeks, where would your institution be most vulnerable?
    • What actions do you need to take today to address any potential vulnerabilities?
    • Do your presidents, provosts and other campus leaders understand and appreciate the magnitude of this potential challenge?
    • What changes do you need to make to your institution’s hiring and onboarding practices now to ensure compliance moving forward?

    CUPA-HR will continue to monitor for any additional updates related to the Form I-9 and other hiring processes related to work authorization. If you need additional guidance or resources, please review the CUPA-HR I-9/E-Verify Toolkit.



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  • Trump Issues Executive Order to Restrict Gender Ideology in the Federal Government

    Trump Issues Executive Order to Restrict Gender Ideology in the Federal Government

    by CUPA-HR | January 22, 2025

    On January 20, the Trump administration issued an executive order (EO) titled, “Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government.” The EO was one of several executive orders and actions published by the Trump administration on its first day in office.

    The EO states that the United States government will recognize only two sexes — male and female — and defines sex as “an individual’s immutable biological classification as either male or female.” The definition continues to say that sex is “not a synonym for and does not include the concept of ‘gender identity.’” The executive order also defines “woman” and “girl” and “man” and “boy” to be adult and juvenile human females and males, respectively.

    The EO orders the secretary of health and human services to provide guidance expanding on the definitions established in the EO. It also directs all federal agencies to use the definitions set forth in the order “when interpreting or applying statutes, regulations, or guidance and in all other official agency business, documents, and communications.” All federal agencies will also be directed to use the term “sex” and not “gender” when administering or enforcing sex-based distinctions in applicable federal policies and documents.

    It also appears that the Trump administration hopes to codify these definitions into law through Congressional action. Specifically, the EO directs the assistant to the president for legislative affairs to provide the president proposed bill text to codify the definitions set in the order within 30 days.

    The EO also discusses the Supreme Court’s decision in Bostock v. Clayton County, which held that Title VII of the Civil Rights Act of 1964 protects employees from discrimination on the basis of sexual orientation or gender identity. The EO states that the Biden administration argued that the Bostock decision “requires gender identity-based access to single-sex spaces under, for example, Title IX of the Educational Amendments Act,” which the Trump administration states is “legally untenable.” As such, the EO directs the U.S. attorney general to issue guidance to federal agencies to “correct the misapplication” of Bostock to “sex-based distinctions in agency activities.” The EO also directs the attorney general to issue guidance and assist federal agencies in protecting sex-based distinctions.

    The EO directs all federal agencies to submit an update to the Trump administration on implementation of this order within 120 days. The update is required to include information on changes to agency documents and agency-imposed requirements on federally funded entities, including federal contractors, that were implemented to comply with the order. The head of each federal agency is also directed to rescind all guidance documents inconsistent with the requirements of the order, and the EO includes a partial list of documents that the administration deems as inconsistent, including several Department of Education guidance documents on Title IX and the Equal Employment Opportunity Commission’s 2024 Enforcement Guidance on Harassment in the Workplace.

    Finally, the EO directs agencies to take “all necessary steps, as permitted by law, to end the federal funding of gender ideology” and to “assess grant conditions and grantee preferences” to “ensure grant funds do not promote gender ideology.”

    Federal agencies will soon begin to take action and announce guidance to comply with the EO requirements. Institutions should therefore be aware of forthcoming guidance from the Department of Education on Title IX as a result of this EO. There could also be future ramifications for institutions that receive federal funds, including grants and contracts. CUPA-HR will continue to monitor for agency actions as well as any additional updates from the Trump administration as it relates to sex and gender-related policy.



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  • Trump Signs Executive Order Ending DEI Programs Including Affirmative Action

    Trump Signs Executive Order Ending DEI Programs Including Affirmative Action

    by CUPA-HR | January 22, 2025

    On January 22, President Trump signed an executive order (EO) titled “Ending Illegal Discrimination and Restoring Merit-Based Opportunity.” The EO directs all federal agencies to “terminate all discriminatory and illegal preferences, mandates, policies, programs, activities, guidance, regulations, enforcement actions, consent orders, and requirements,” to enforce “longstanding civil rights laws,” and to “combat illegal private-sector DEI preferences, mandates, policies, programs, and activities.” The White House also published a fact sheet to supplement the order.

    The EO lists several other executive orders that the Trump administration is revoking. Notably, the Trump EO revokes executive order 11246, titled “Equal Employment Opportunity,” which has required federal contractors to have affirmative action plans since 1965. Additionally, the EO orders the Office of Federal Contract Compliance Programs (OFCCP) at the Department of Labor (DOL) to immediately cease “promoting diversity,” “holding federal contractors and subcontractors responsible for taking ‘affirmative action,’” and “allowing or encouraging federal contractors or subcontractors to engage in workforce balancing based on race, color, sex, sexual preference, religion, or national origin.” Both of these actions are explained by the EO to streamline the federal contracting process “to enhance speed and efficiency, reduce costs, and require federal contractors and subcontractors to comply with our civil rights laws.”

    The EO also directs each federal agency to include in every federal contract or grant award a term requiring a contractual counterparty or grant recipient to agree that it is in compliance with all applicable federal anti-discrimination laws and a term requiring the counterparty or recipient to certify that it does not operate “any programs promoting DEI that violate any applicable federal antidiscrimination laws.”

    The EO also includes orders to encourage the private sector to cease DEI programs and initiatives. Specifically, the EO directs the attorney general, in consultation with other relevant agencies, to promulgate a report with recommendations to enforce civil rights laws and encourage the private sector to end DEI practices. The report is required to identify “the most egregious and discriminatory DEI practitioners in each sector of concern.” It also requires each agency to identify up to nine potential civil compliance investigations as a way to deter DEI programs or principles. The EO lists institutions of higher education with endowments over $1 billion as potential targets for the civil compliance investigations.

    Finally, the EO directs the attorney general and secretary of education to issue guidance to state and local educational agencies and institutions of higher education that receive federal dollars or participate in the Title IV federal student loan assistance program regarding “the measures and practices required to comply with Students for Fair Admissions, Inc. v. President and Fellows of Harvard College.”

    The EO will have widespread implications for federal contractors in the higher education community. CUPA-HR will share further developments on this EO as they are released.



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  • Trump Signs Executive Order Ending DEI Programs Including Affirmative Action

    Trump Signs Executive Order Ending DEI Programs Including Affirmative Action

    by CUPA-HR | January 22, 2025

    On January 22, President Trump signed an executive order (EO) titled “Ending Illegal Discrimination and Restoring Merit-Based Opportunity.” The EO directs all federal agencies to “terminate all discriminatory and illegal preferences, mandates, policies, programs, activities, guidance, regulations, enforcement actions, consent orders, and requirements,” to enforce “longstanding civil rights laws,” and to “combat illegal private-sector DEI preferences, mandates, policies, programs, and activities.” The White House also published a fact sheet to supplement the order.

    The EO lists several other executive orders that the Trump administration is revoking. Notably, the Trump EO revokes executive order 11246, titled “Equal Employment Opportunity,” which has required federal contractors to have affirmative action plans since 1965. Additionally, the EO orders the Office of Federal Contract Compliance Programs (OFCCP) at the Department of Labor (DOL) to immediately cease “promoting diversity,” “holding federal contractors and subcontractors responsible for taking ‘affirmative action,’” and “allowing or encouraging federal contractors or subcontractors to engage in workforce balancing based on race, color, sex, sexual preference, religion, or national origin.” Both of these actions are explained by the EO to streamline the federal contracting process “to enhance speed and efficiency, reduce costs, and require federal contractors and subcontractors to comply with our civil rights laws.”

    The EO also directs each federal agency to include in every federal contract or grant award a term requiring a contractual counterparty or grant recipient to agree that it is in compliance with all applicable federal anti-discrimination laws and a term requiring the counterparty or recipient to certify that it does not operate “any programs promoting DEI that violate any applicable federal antidiscrimination laws.”

    The EO also includes orders to encourage the private sector to cease DEI programs and initiatives. Specifically, the EO directs the attorney general, in consultation with other relevant agencies, to promulgate a report with recommendations to enforce civil rights laws and encourage the private sector to end DEI practices. The report is required to identify “the most egregious and discriminatory DEI practitioners in each sector of concern.” It also requires each agency to identify up to nine potential civil compliance investigations as a way to deter DEI programs or principles. The EO lists institutions of higher education with endowments over $1 billion as potential targets for the civil compliance investigations.

    Finally, the EO directs the attorney general and secretary of education to issue guidance to state and local educational agencies and institutions of higher education that receive federal dollars or participate in the Title IV federal student loan assistance program regarding “the measures and practices required to comply with Students for Fair Admissions, Inc. v. President and Fellows of Harvard College.”

    The EO will have widespread implications for federal contractors in the higher education community. CUPA-HR will share further developments on this EO as they are released.



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  • Student-Athlete Unionization Efforts Withdrawn Prior to Second Trump Administration

    Student-Athlete Unionization Efforts Withdrawn Prior to Second Trump Administration

    by CUPA-HR | January 21, 2025

    Two efforts to extend collective bargaining rights to college athletes have been withdrawn in recent weeks in anticipation of the Trump administration taking control of the National Labor Relations Board (NLRB).

    On December 31, 2024, the Dartmouth men’s basketball team withdrew their petition to unionize. Members of the team overwhelmingly voted in March 2024 to join the Service Employees International Union (SEIU). The vote came one month after an NLRB regional director ruled that the players were employees of the college and were thus eligible to unionize.

    Additionally, on January 10, 2025, the National College Players Association (NCPA) withdrew its case against the University of Southern California, the Pac-12 Conference and the NCAA. In the original complaint, the NCPA claimed the three plaintiffs violated the National Labor Relations Act (NLRA) by misclassifying the student-athletes as non-employees. They also argued all three plaintiffs were joint employers of the student-athletes.

    Both of these efforts were pursued after NLRB General Counsel Jennifer Abruzzo issued a memorandum arguing that student-athletes are employees under the NLRA and are therefore afforded all statutory protections as prescribed under the law. The incoming administration will likely rescind the memorandum, halting or at least hindering unionization efforts among student-athletes.

    The decision to withdraw both petitions is likely meant to avoid an unfavorable outcome and precedent from a soon-to-be Republican-controlled NLRB. The SEIU explained in a statement following their withdrawal request that they sought “to preserve the precedent set by this exceptional group of young people on the men’s varsity basketball team.”

    CUPA-HR will keep members apprised of any updates related to student-athlete employment classification and unionization.



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  • HR and the Courts — January 2025

    HR and the Courts — January 2025

    by CUPA-HR | January 15, 2025

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

    Dartmouth Men’s Basketball Team, SEIU Withdraw Union Petition

    In March 2024, the Dartmouth College men’s basketball team voted 13-2 in favor of joining the Service Employees International Union Local 560 after the National Labor Relations Board regional director ruled that the players were employees eligible to vote in an NLRB-supervised representation election. On December 31, 2024, Local 560 pulled back its representation petition, and the NLRB will dismiss the case (Trustees of Dartmouth College (N.L.R.B. No. 01-RC-325633, Petition Withdrawn 12/31/24)).

    An SEIU spokesperson stated that they withdrew the petition to preserve the legal precedent of the NLRB regional director’s decision holding that the basketball players were employees of Dartmouth. While SEIU will no longer participate as the collective bargaining representative, the union claims it will pursue its goals via a change in tactics. Dartmouth maintains that the regional director’s decision ruling that the basketball players are employees is legally erroneous.

    The employee status of student-athletes is still subject to NLRB litigation in the University of Southern California and Pac-12 case. The NLRB is pursuing unfair labor practice charges against USC and the Pac-12 as joint employers following their refusal to bargain with a union on the grounds that basketball and football players are students and not employees. We will continue to follow developments in this area as they unfold.

    Federal Court Allows Muslim Professor to Proceed With Religious Discrimination Claim — Dismisses Age Discrimination Claim

    The plaintiff professor, an immigrant from Bosnia and a Muslim, has had a non-tenure-track position for more than a decade with Teachers College, Columbia University. She alleged in federal court that she was discriminated against because of her religion and age when the university did not offer her a tenured position. While the court allowed the religious discrimination and retaliation portions of the complaint to proceed, it dismissed her allegations that she was also denied the tenure-track position because of age and age-related comments (Sabic-El-Rayess v. Teachers College (S.D.N.Y. No.-24-cv-2891, 12/5/24)).

    The plaintiff alleged that no Muslim professor has ever received a tenure-track position in Teachers College, despite many being qualified, and that university leaders made remarks that could be construed as anti-Muslim. The plaintiff claims that the university’s rationale for its decision — that she lacked peer-reviewed publications — is false. The court also allowed the plaintiff’s allegations that she was retaliated against by a salary reduction after she made her religious discrimination complaints to proceed, notwithstanding the university’s denial of such allegations.

    Employer Sued in Class Action for Allegedly Mismanaging Pension Fund

    An employee group has filed a class action lawsuit against a national sports retailer alleging that the employer violated pension plan rules. The employee group alleges REI used non-vested pension fund employee forfeitures to reduce contributions otherwise owed to other employees, rather than adhere to plan provisions requiring the employer to use the funds to pay amounts owed for rehired participants or to pay administrative expenses (Smith v. Recreational Equipment Inc. (W.D. Wash, No. 3:24-cv-03062, complaint, 12/17/24)). Plaintiffs propose to represent a class of 24,000 participant employees.

    Plaintiffs claim that the employer used more than $5.8 million in forfeitures incorrectly from 2018 to 2023. Similar claims along these lines have been litigated in other courts, with some courts dismissing the claims in favor of the employer and others allowing the litigation to continue. It appears to be an unsettled issue at this time.

    Judge Rules Terminated Athletic Director Entitled to Jury Trial Over Allegations of Sex and Age Discrimination — Case Dismissed Subject to a Confidential Settlement

    A university’s first woman athletic director, who was terminated for alleged poor athletic team performance, is entitled to have her claims of age and sex discrimination heard by a federal court jury. The plaintiff alleged that she was discriminated against on the basis of age and sex when she was replaced by a man who was 27 years younger. The judge pointed to this in ruling that a jury could find in the plaintiff’s favor (Ford-Kee v. Miss. Valley State University (2024 BL 460757 N.D. Mis. No. 4:23-cv-00107, 12/17/24)).

    The university president testified that hundreds of people recommended that the athletic director be fired, but he refused to identify people calling for the termination. The court concluded that this did not evidence any discriminatory intent by the president, but it did raise the question of whether the president was influenced by discriminatory views of others. The plaintiff alleged that the poor team performance was an after-the-fact rationalization and that the university president was swayed by the “sexist” views of the athletic foundation and key alumni. The plaintiff claimed the president did not raise poor team performance as a reason for the termination during her final meeting, but rather stated it was time for a change.

    Bloomberg later reported that the parties reached a confidential settlement dismissing the case, which will no longer go to trial.

    Federal Appeals Court Rules No Private Right to Sue Under Law Prohibiting Employment Discrimination Against Marijuana Users

    Under the New Jersey Cannabis Regulatory, Enforcement Assistance, and Market Place Modernization Act (CREAMMA), employers are specifically prohibited from discriminating against workers over the age of 21 for their use or non-use of cannabis. The 3rd U.S. Circuit Court of Appeals recently affirmed the decision of the federal trial court, dismissing the case in which the plaintiff alleged cannabis use employment discrimination (Zanetich v. Walmart Stores East Inc. (0:23-cv-01996, 3rd Cir. 12/9/24).

    The plaintiff alleged that his job offer was rescinded after he tested positive for cannabis use. Nonetheless the appeals court dismissed the case, holding that the CREAMMA statute contains no language creating or suggesting a private remedy. The appeals court also denied the plaintiff’s request to remand the case to the New Jersey Supreme Court so that the New Jersey court could interpret the statute. The appeals court concluded that the absence of an express remedy providing a private right to sue under CREAMMA was a deliberate choice of the legislature rather than an oversight.

    University Prevails in Gender Bias Claim Raised by Former Athletic Director

    The 11th U.S. Circuit Court of Appeals, in a split 2-1 decision, held that a university was entitled to a dismissal of a gender-based pay discrimination claim brought by the university’s former athletic director. The former athletic director claimed that her male successor was discriminatorily paid $170,000 annually compared to her last salary of $135,000. The court concluded that the university raised legitimate factors other than gender which led to its decision to pay the male athletic director more (Williams v. Alabama State University (11th Cir., No. 23-121692, unpublished, 12/23/24)). The majority of the three-judge appellate panel concluded that the university was justified in paying the male athletic director more because of his 10 years of experience in athletic administration leadership and because of his Ph.D. This compared to the plaintiff’s two years of relevant experience and a master’s degree.

    The appeals court pointed out that this is not a case of two employees being employed contemporaneously at different salaries to perform the same job. Rather, the court concluded that the employer met the salary demands of a more experienced leader for the job in order to secure him. One judge dissented from the decision to dismiss the case. The dissenting judge concluded that university leaders made a number of comments concerning this selection that a jury should be able to hear and consider.



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  • Federal Judge Strikes Down Biden Administration’s Title IX Rule

    Federal Judge Strikes Down Biden Administration’s Title IX Rule

    by CUPA-HR | January 9, 2025

    On January 9, a federal judge in the Eastern District of Kentucky Court vacated the Biden administration’s Title IX regulations. The order strikes down the regulations nationwide, reverting enforcement back to the 2019 Title IX regulations set by the Trump administration.

    Background

    The Biden administration’s Title IX final rule was released in April 2024 and was set to take effect on August 1, 2024. Soon after the rule was published, several states filed legal challenges against it, resulting in preliminary injunctions that blocked the rule from taking effect in 26 states and hundreds of schools in other states that did not challenge the regulations.

    The Biden administration appealed the preliminary injunctions to the Supreme Court, requesting that the court limit the scope of the preliminary injunctions placed by the lower courts to block only those provisions that related to gender identity. They argued that the lower courts’ decisions to grant the preliminary injunctions were based on concerns with the expanded protections for transgender students and that other provisions like the new grievance procedures and training requirements set forth by the final rule should be able to take effect. The Supreme Court ultimately rejected the Biden administration’s request, arguing that the gender identity provisions were “intertwined with and affect other provisions of the rule.”

    District Court Judge’s Ruling

    In the ruling that vacates the rule nationwide, the federal judge stated that the Biden administration’s Title IX rule is unlawful because Title IX’s prohibition on sex discrimination does not include the scope laid out in the regulations, which include expanded protections for pregnancy or related conditions, gender identity and sexual orientation. The order also states that the rule violates the First Amendment and that it is “arbitrary and capricious.”

    Looking Ahead

    The judge’s order almost certainly ends any hopes for the Biden administration’s Title IX regulations to take effect nationwide. The Biden administration may decide to appeal the decision to a higher court, but efforts to reinstate the rule will likely be unsuccessful given the few days they have left in office and the incoming Trump administration’s unwillingness to defend the rule in court. Alternatively, the Trump administration may seek to update their 2019 Title IX regulations, though any urgency to do so may be diminished now that the 2019 regulations are back in place.

    CUPA-HR will continue to monitor for Title IX updates and keep members apprised via Washington Insider Alert emails and the blog.



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  • Biden Administration Releases Final Regulatory Agenda of Their Term

    Biden Administration Releases Final Regulatory Agenda of Their Term

    by CUPA-HR | January 7, 2025

    On December 13, the Biden administration issued their Fall 2024 Regulatory Agenda, which provides insights on regulatory and deregulatory activity under development across more than 60 federal departments, agencies and commissions. The Fall 2024 Regulatory Agenda is the second agenda published this year, following the Spring 2024 Regulatory Agenda released in July.

    Given the upcoming change in administration, the Fall 2024 Regulatory Agenda is the last that will be released by the Biden administration. The Trump administration will seek to change many regulatory priorities after taking office, meaning that regulations intended to be released after the Biden administration leaves office will change or be withdrawn altogether. As such, the regulations and target dates highlighted below are not final and subject to change once the Trump administration takes office.

    Department of Labor

    Heat Illness Prevention in Outdoor and Indoor Work Settings

    The Biden administration’s regulatory agenda reminds interested stakeholders of the Department of Labor (DOL) Occupational Safety and Health Administration (OSHA)’s notice of proposed rulemaking on heat injury and illness prevention measures for both indoor and outdoor work settings. The comment period is open through January 14, 2025.

    If finalized, the rule would impact all workplace settings under OSHA’s jurisdiction where employees are exposed to heat indexes that equal or exceed 80 degrees, regardless of whether the work is performed in an indoor or outdoor setting. All covered employers would need to circulate heat injury and illness prevention plans (HIIPPs), implement measures for providing breaks and water to employees exposed to high heat, and train employees on heat-related risks and illness prevention, among other provisions.

    Given the comment period’s closing date, the incoming Trump administration will be tasked with next steps for the heat rule upon taking office. Trump nominated Lori Chavez-DeRemer to serve as DOL secretary, where she will oversee future actions taken with respect to heat injury and illness regulations. While she has not publicly weighed in on the current proposal, she co-led a report during her time in Congress that recommended the creation of a federal heat standard for nonimmigrant agricultural workers. She is also from Oregon, which has already implemented its own state heat illness prevention standard. As such, she may be responsive to moving forward with a heat injury and illness rule if confirmed as DOL secretary, though what those regulations may include remains to be seen.

    Equal Employment Opportunity Commission

    Recordkeeping Requirements for PWFA Charge-Related Records

    The regulatory agenda includes a reminder that the Equal Employment Opportunity Commission (EEOC) published a notice of proposed rulemaking to extend existing recordkeeping requirements under EEO law to include charges under the Pregnant Workers Fairness Act (PWFA). The NPRM was published on November 21, 2024, and the comment period runs through January 21, 2025.

    The PWFA was signed into law in December 2022, and the EEOC subsequently finalized implementing regulations for the PWFA in April 2024. The lengthy regulations provide guidance to employers and workers on people covered under the law and regulations, the types of limitations and medical conditions covered, and how to request reasonable accommodations.

    According to the regulatory agenda, the new notice of proposed rulemaking sets out recordkeeping requirements for institutions of higher education relating to PWFA charges. The regulations do not require the creation of any records, but they do require that all covered entities (including higher ed institutions) maintain all employment and personnel records they make or keep in the regular course of business for a period of one year and all records relevant to a PWFA charge. These requirements are identical to the recordkeeping requirements related to Title VII of the Civil Rights Act, Americans with Disabilities Act (ADA), and Genetic Information Nondiscrimination Act (GINA) charges.

    Federal Acquisition Regulation

    Pay Equity and Transparency in Federal Contracting

    In January 2025, the Department of Defense (DOD), General Services Administration (GSA), and NASA anticipate releasing a final rule to amend the Federal Acquisition Regulation on pay equity and transparency in federal contracting.

    The joint agencies published a pay equity and transparency notice of proposed rulemaking  in January 2024, in which the agencies propose to amend the Federal Acquisition Regulation to implement a government-wide policy that would:

    1. prohibit contractors and subcontractors from seeking and considering job applicants’ previous compensation when making employment decisions about personnel working on or in connection with a government contract (“salary history ban”), and
    2. require these contractors and subcontractors to disclose the compensation to be offered on job announcements (“compensation disclosure” or “pay transparency”).

    Although the agencies are targeting January 2025 for release, the final rule has not yet been sent to the Office of Information and Regulatory Affairs (OIRA) for review prior to publication. All regulations are required to be reviewed by OIRA before they are published for the public, and review typically lasts 30-60 days after the regulation is received. Given the short time left, it appears unlikely that the rule will be published before the end of the Biden administration’s term. It is unknown if the Trump administration will move forward with this rule or seek to withdraw it.

    Department of Homeland Security

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

    The Fall 2024 Regulatory Agenda shows that the Department of Homeland Security aimed for a December 2024 release of additional regulations to modernize the H-1B program. DHS met this timeline, publishing a final rule on December 18.

    The final rule included several noteworthy provisions that addressed concerns raised by CUPA-HR in comments responding to the October 2023 proposed rule, including a modification of the definition and criteria for H-1B specialty occupations.

    The rule also codifies DHS’s current policy to give deference to prior determinations when adjudicating petitions involving the same party and facts (known as the “deference policy”), eliminates the itinerary requirement in the Form I-129, expands the H-1B cap exemptions for nonprofit and governmental research organizations, enhances cap-gap protections for F-1 students transitioning to H-1B status, and strengthens the USCIS site-visit program.

    The final rule takes effect on January 17, 2025, just days before the next presidential inauguration. While it is unclear if the incoming Trump administration will seek to modify or roll back the rule, the codification of key provisions, such as the deference policy, makes them more difficult to rescind without formal rulemaking.

    Department of Education

    Discrimination Based on Shared Ancestry or Ethnicity

    Keeping with the date set in the Spring 2024 Regulatory Agenda, the Department of Education’s Office for Civil Rights (OCR) originally targeted December 2024 for the release of a notice of proposed rulemaking to amend Title VI of the Civil Rights Act of 1964 and OCR’s enforcement responsibilities for cases involving discrimination based on shared ancestry or ethnic characteristics. OCR is issuing this in response to a 2019 Trump executive order and a 2021 Biden executive order.

    The proposed rulemaking has become a higher priority for OCR, given the recent political activity on campus related to the Israel-Hamas war and related scrutiny from Congressional Republicans of higher education’s response to protests on campus. OCR explains the need for this rulemaking by stating that they have “received complaints of harassment and assaults directed at Jewish, Muslim, Hindu and other students based on their shared ancestry or ethnicity.”

    OCR missed the December target date, and the rule has not yet been sent to OIRA for review prior to publication. Given the short amount of time the Biden administration has before the end of its term, it seems unlikely that this rule will be published before the Trump administration takes office. It is unknown if and how the Trump administration would move forward with regulations on the same issue, though they may seek to publish a proposal given the first Trump administration’s 2019 executive order on combatting antisemitism.

    Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance: Sex-Related Eligibility Criteria for Male and Female Athletic Teams

    In the Fall 2024 Regulatory Agenda, OCR kept its rule to finalize Title IX requirements related to transgender students’ participation in athletic programs to its “long-term actions” list, but the Biden administration subsequently withdrew it on December 20, 2024, halting all efforts to finalize the rule.

    As a reminder, the April 2023 proposed rule recommended language that would prohibit schools receiving federal funding from adopting or applying a one-size-fits-all ban on transgender student participation on teams consistent with their gender identity.

    The Trump administration is likely to reverse the Biden administration’s Title IX regulations that expand protections to individuals facing discrimination on the basis of sexual orientation and gender identity. Trump and Republicans also spoke of bans on transgender women’s participation in women’s sports during the 2024 election campaign. As such, the Trump administration could choose to issue a separate Title IX rule regarding transgender students’ participation in athletic programs, though it remains to be seen if they will do so.

    Looking Ahead

    As mentioned above, the target dates and regulations themselves are likely to change once the Trump administration takes office. The public will not have insight into the anticipated regulatory and deregulatory activity under the Trump administration until the Spring 2025 Regulatory Agenda is released, which will likely be sometime in late spring or early summer 2025. CUPA-HR will continue to keep members apprised of all relevant regulatory activity as it develops throughout the year.



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  • DHS Issues Final H-1B Modernization Rule

    DHS Issues Final H-1B Modernization Rule

    by CUPA-HR | December 18, 2024

    On December 18, the Department of Homeland Security (DHS) published a final rule to modernize the H-1B visa program, finalizing changes first proposed in October 2023. The rule will take effect on January 17, 2025, introducing significant updates aimed at clarifying the requirements of the H-1B program and improving program efficiency, providing greater benefits and flexibility for petitioners and beneficiaries, and strengthening program integrity measures.

    The final rule responds to comments from a variety of stakeholders, including concerns raised by CUPA-HR and others in a multi-sector joint comment letter signed by 74 organizations and a higher education-focused letter led by the American Council on Education (ACE). Both letters advocated for changes to the definition of a “specialty occupation” and other key areas to ensure the regulations better align with workforce needs. The final rule incorporates feedback from stakeholders and aims to provide clarity while maintaining program integrity.

    Below are highlights of some noteworthy provisions in the final rule and next steps.

    Revised Definition and Criteria for H-1B Specialty Occupations

    The final rule modifies the definition of an H-1B specialty occupation in response to public comments, including those CUPA-HR signed onto in a multi-sector joint comment letter and a higher education-focused letter. DHS clarified that a degree or its equivalent must be “directly related” to the duties of the position, with “directly related” defined as having a logical connection between the degree and the job duties. This change addresses concerns raised in comments that the proposed language could have been misinterpreted to require adjudicators to focus solely on a beneficiary’s specialized studies.

    The rule also permits a range of qualifying degree fields, provided that each field is directly related to the position’s duties. Additionally, DHS removed references to specific degree titles such as “business administration” and “liberal arts” to avoid undue reliance on degree titles. This recognizes that degree titles can vary between institutions and evolve over time, emphasizing the relevance of the degree’s content rather than its name. These changes align with the requests made in the joint comment letter, ensuring that the definition of a specialty occupation is practical and reflective of modern workforce realities.

    Codification of the Deference Policy

    The final rule codifies DHS’s current deference policy, providing greater clarity on how U.S. Citizenship and Immigration Services (USCIS) adjudicators should approach petitions involving the same parties and underlying facts. Under the codified policy, adjudicators are generally required to defer to a prior USCIS determination of eligibility when adjudicating a subsequent Form I-129, Petition for Nonimmigrant Worker. However, deference will not apply if a material error in the prior approval is discovered, or if new material information or a material change impacts the petitioner’s or beneficiary’s eligibility.

    Elimination of the Itinerary Requirement

    The final rule eliminates the itinerary requirement, which previously required petitioners to provide an itinerary detailing the dates and locations of services or training when filing Form I-129. This change addresses concerns that the requirement was largely duplicative of other information already provided in the petition. Eliminating this requirement simplifies the filing process, reducing administrative burdens for petitioners. The change is particularly beneficial for individuals in roles such as medical residencies under H-1B, where work may occur at multiple sites, as it removes unnecessary procedural hurdles without impacting USCIS’s ability to assess eligibility.

    Expanded H-1B Cap Exemptions for Nonprofit and Governmental Research Organizations

    The final rule modestly broadens the scope of H-1B cap exemptions for nonprofit and governmental research organizations, as well as nonprofits affiliated with institutions of higher education. The revised definitions recognize that qualifying organizations may have multiple fundamental activities or missions beyond just research or education. Under the updated regulations, organizations can qualify for a cap exemption if research or education is one of their fundamental activities, even if it is not their primary activity or mission. These changes better align the cap exemption criteria with the diverse roles and structures of modern nonprofit and governmental entities.

    Enhanced Cap-Gap Protections for F-1 Students

    The final rule extends cap-gap protections for F-1 students transitioning to H-1B status. Under the new provision, F-1 students who are beneficiaries of timely filed, nonfrivolous H-1B petitions will receive an automatic extension of their F-1 status and employment authorization through April 1 of the following calendar year. This extension provides up to six additional months of status and work authorization, reducing the risk of lapses in lawful status or employment eligibility while awaiting approval of the change to H-1B status.

    Codification of Site Visit Authority

    The final rule codifies and strengthens the USCIS site visit program, which is administered by the Fraud Detection and National Security (FDNS) unit. DHS clarifies that refusal to comply with a site visit may result in the denial or revocation of a petition. Additionally, the rule explicitly authorizes DHS to conduct site visits at various locations connected to the H-1B employment, including the primary worksite, third-party worksites, and any other locations where the employee works, has worked, or will work. This provision formalizes long-standing practices and enhances USCIS’s ability to monitor compliance with H-1B program requirements.

    Next Steps

    The rule takes effect on January 17, 2025, just days before the next presidential inauguration. While it is unclear if the incoming Trump administration will seek to modify or withdraw the regulation, the codification of key provisions, such as the deference policy, makes them more difficult to rescind without formal rulemaking.

    Employers should also prepare for the required use of a new edition of Form I-129, Petition for a Nonimmigrant Worker, on the rule’s effective date. Because there will be no grace period for accepting prior editions of the form, employers should review the preview version, which will be published soon on uscis.gov, to prepare for the transition.



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  • President-Elect Trump Nominates Lori Chavez-DeRemer for DOL Secretary and Linda McMahon for Education Secretary

    President-Elect Trump Nominates Lori Chavez-DeRemer for DOL Secretary and Linda McMahon for Education Secretary

    by CUPA-HR | December 10, 2024

    Over the past few weeks, President-elect Donald Trump has announced several nominations for leads at federal agencies. Of relevance to CUPA-HR members, Trump has nominated Rep. Lori Chavez-DeRemer (R-OR) to serve as secretary at the Department of Labor (DOL) and Linda McMahon to serve as the Department of Education (ED) secretary. The following analysis dives into how Chavez-DeRemer and McMahon may lead each agency’s regulatory action on a few of the most pressing policy issues.

    DOL Secretary

    FLSA

    Chavez-DeRemer was nominated to serve as labor secretary on November 22. Chavez-DeRemer was viewed as a surprising pick for many in the labor and employment policy space given her Congressional record and support from labor unions. Her nomination raises questions about the direction in which DOL will go under the Trump administration with respect to certain policies and regulations, such as the overtime regulations under the Fair Labor Standards Act (FLSA), joint employer regulations, and independent contractor regulations.

    As a reminder, the Biden administration’s overtime regulations were struck down in federal court on November 15. The ruling strikes down all components of the Biden administration’s rule, including the July 2024 and January 2025 salary thresholds and the triennial automatic updates. On November 26, however, the Biden administration filed a notice of appeal to the 5th U.S. Circuit Court of Appeals in hopes of reinstating the rule before their term ends.

    Chavez-DeRemer has not publicly supported or opposed the Biden administration’s overtime rule, but labor unions have supported the rule through regulatory comments and public statements. Many anticipated that a second Trump administration’s DOL would stop defending the Biden rule in court if the Biden administration chose to appeal. Given organized labor’s support of Chavez-DeRemer, there is a chance that DOL under her authority would continue to defend the rule in court. However, it appears unlikely that the rule in its entirety would be defended, and it is more likely that DOL would attempt to defend the July salary threshold only. As a reminder, the salary threshold increase that took effect on July 1, 2024, used the Trump administration’s 2019 overtime rule methodology to determine the level, which could lead to a possible reasoning for defending the July salary threshold level.

    Joint Employer and Independent Contractor Rules

    Similar to the overtime regulations, the future of other labor and employment regulations relevant to higher ed HR appears uncertain in the face of Chavez-DeRemer’s nomination. Two DOL regulations — the joint employer and independent contractor rules — seem certain to swing back in favor of policies like those implemented under the first Trump administration, but Chavez-DeRemer’s inconsistent record in Congress on both issues makes it unclear how DOL under Trump will regulate them.

    Notably, Chavez-DeRemer is one of three Republican cosponsors of the Protecting the Right to Organize Act, a Democrat-backed bill that would expand organized labor’s power over workers and employers. There are provisions in the PRO Act that a second Trump DOL is not anticipated to implement, including provisions to apply a controversial “ABC” test for worker classification under the National Labor Relations Act and to adopt a broader joint employer standard under the NLRA than the standard implemented by the Trump administration. Given her support for the PRO Act, Chavez-DeRemer could change direction from the anticipated actions expected from the Trump administration with respect to joint employment and independent contractor status, along with other labor policies.

    Education Secretary

    Linda McMahon was nominated to serve as ED secretary on November 19. McMahon’s nomination was also considered a surprise, but for reasons surrounding her previous experience. During Trump’s first term, McMahon served as the administrator of the U.S. Small Business Administration, and most recently, she served as co-chair of Trump’s transition team. She was previously an executive for World Wrestling Entertainment (WWE). With respect to education, McMahon served as a trustee for Sacred Heart University for over a decade, and she also briefly served on the Connecticut Board of Education.

    Title IX

    McMahon’s previous positions and experience do not provide much insight into her stance on higher education policy. That being said, we expect that McMahon will largely follow the education policy direction of President-elect Trump if she is confirmed. With respect to Title IX, it is expected that Trump will seek to reimplement his administration’s 2020 Title IX regulations nationwide, which we anticipate McMahon will follow. It remains to be seen if McMahon and the Trump administration’s ED will attempt to issue new Title IX regulations that may be more conservative than those issued in 2020 to address concerns regarding rights and protections for transgender students.

    Looking Ahead

    Both Chavez-DeRemer and McMahon will face Senate confirmation hearings by relevant oversight committees and votes by the full Senate. During confirmation hearings, more information about the nominees’ priorities at their respective agencies will be revealed. CUPA-HR will keep members apprised of any updates related to the confirmation process of Chavez-DeRemer and McMahon as well as regulatory updates from DOL and ED.



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