Category: Higher Ed News

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

    HR and the Courts — June 2024 – CUPA-HR

    by CUPA-HR | June 12, 2024

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

    Judge Halts Academic Workers’ Strike at Several University of California Campuses

    The University of California has taken legal action against United Auto Workers Local 4811, which represents some 48,000 academic workers and graduate students across UC’s multiple campuses. The lawsuit requested an injunction to end the rolling strike at six campuses, which the university contended is in violation of the applicable no-strike contractual provisions. The judge granted the university’s request for a temporary restraining order on June 7, 2024. The order will halt the strike until the judge conducts a hearing over whether to grant a permanent injunction enforcing the no-strike provisions of the applicable labor contract (Regents of the University of California v. UAW Local 4811 (Cal Sup Court, No. 30-2024-01403666-CU-MC-CXC, 6/7/24)).

    This case followed the university’s complaint to the California Public Employment Relations Board alleging that the union had violated the applicable no-strike provisions. The board filed a complaint against the union, arguing it failed to give the university “adequate advance notice” and “failed and refused to meet and confer in good faith,” but declined the university’s request to seek a court order halting the strike.

    Following its exhaustion of all remedies at the state board, the university filed its own state court complaint, seeking to end the strike. The complaint accused picketers of blocking entrances to university property, including hospitals, and illegally occupying buildings. The university argued that the breach of contract endangers lifesaving research at hundreds of laboratories across many campuses. The UAW claimed that the no-strike clause is inapplicable because the university violated state law by calling in police to break up pro-Palestinian encampments on several campuses and allegedly changed workplace rules in response to the protests. The proceedings will continue with a full hearing over whether to convert the restraining order into a permanent injunction further barring the strike activity.

    University of Florida Recruit Sues Over Claimed $13.85 Million NIL Deal — NCAA Proposes Settlement of NIL Class Action

    A former football recruit has sued the University of Florida’s football coach and boosters, alleging they recruited him with the promise of $13.85 million in name, image and likeness payments and then reneged. The complaint, filed in federal district court in Florida, alleges fraud, tortious interference and other claims. The plaintiff alleges that, after the NIL offer, he rejected other lucrative offers only to have the Florida offer “decrease drastically” (Rashada v. Hathcock (N.D. Fla., 3:24-cv-00219, complaint 5/21/24)).

    The plaintiff alleges that, as a 19-year-old college-bound athlete, he was persuaded by a network of university officials and donors to flip on his commitment to the University of Miami, but they never came through on the NIL promises. After the deal never materialized, the plaintiff went to the University of Arizona instead and ultimately transferred to the University of Georgia.

    Separately, the NCAA and the Power Five conferences have proposed a nearly $2.8 billion settlement of the class action claim against them relating to their former ban on NIL payments to student-athletes. If the settlement is approved, the NCAA also agrees that it would no longer attempt to regulate NIL payments, which would be solely up to each college and university to determine and administer (In Re College Athlete NIL Litigation (N.D. Cal., No., 4:20-cv-03919)).

    Court of Appeals to Review Whether Discharge for Refusal to Take Anti-Discrimination Training Is Itself Discriminatory

    The 7th U.S. Circuit Court of Appeals (covering Illinois, Indiana and Wisconsin) will decide whether to affirm a federal trial court’s dismissal of a discrimination claim brought by a White employee. The employee claimed he was discharged in violation of federal and state anti-discrimination laws for his refusal to take the employer’s mandatory anti-discrimination training, which he claimed was discriminatory. The plaintiff claimed the training was inherently biased against White employees, after admitting he had no knowledge of the contents of the training (Vavra v. Honeywell International Inc. (Case No. 23-02823, oral arg sched 5/21/24)).

    The trial court concluded that the plaintiff’s internal emails to the company’s president, which accused the company of “race baiting,” were protected communications. The court further concluded that the plaintiff was not terminated for the communications, but rather because of his refusal to take mandatory anti-discrimination training that was not itself discriminatory. The employer’s diversity, equity and inclusion and law departments had properly vetted the training and concluded it was intended to foster an inclusive work environment.

    U.S. Supreme Court Rejects White Professor’s Claims of Race and Sex Discrimination Filed Against HBCU

    The Supreme Court turned down a request for certiorari and declined to hear a White law school professor’s claim that the 5th U.S. Circuit Court of Appeals had erroneously dismissed her claim of race and sex discrimination and retaliation under Title VII and the Equal Pay Act. The law professor had claimed that the appeals court erroneously dismissed her claims that she and other female professors were treated poorly in violation of Title VII and the Equal Pay Act and that she was forced to resign from Texas Southern University, a historically Black institution. The court denied the professor’s two petitions for it to hear her case without issuing an opinion (Sacks v. Texas Southern University (Case Nos. 23-891 & 23-1031, Cert denied 5/13/24)).

    The plaintiff asked the Supreme Court to adopt a “totality of circumstances” standard in determining whether her claims of years of “alleged” harassment and continuing violations justified her conclusion that she felt compelled to resign. The plaintiff also complained that the lower court had denied her the right to receive female wage data while requiring her to identify male comparators to make her Equal Pay Act claims. The Supreme Court denied the professor’s request to be heard in the absence of a response from the university, which had waived its right to respond to the professor’s petitions.

    In Employment Law Matter, U.S. Supreme Court Rules Federal Courts Can No Longer Dismiss Federal Lawsuits Subject to Mandatory Arbitration

    The U.S. Supreme Court resolved a split among federal appellate courts on whether, under the Federal Arbitration Act, federal trial courts can dismiss rather than stay a lawsuit that is covered by the terms of a mandatory arbitration agreement pending the outcome of arbitration. The 1st, 5th, 8th and 9th U.S. Circuit Courts of Appeals have previously allowed dismissal while the 2nd, 3rd, 6th, 7th, 10th and 11th have ruled that the case must be stayed pending the outcome of the arbitration.

    The case involved a group of drivers who claimed they were misclassified as independent contractors rather than employees entitled to minimum wage, overtime and paid sick leave under federal and state laws. Both sides agreed that the dispute was subject to a mandatory arbitration agreement. The 9th Circuit ruled the case should be dismissed. The Supreme Court reversed, concluding that the specific provisions of the Federal Arbitration Act require the courts to stay the action while it is referred to arbitration, pending the outcome of the arbitration (Smith v. Spizzirri (US No, 22-1218, 5/16/24)).

    Texas Sues EEOC Over Guidance Protecting LGBTQIA+ Employees From Sex Harassment Relating to Their Choice of Pronouns and Bathrooms Consistent With Gender Identity

    The Texas attorney general has filed suit in federal court seeking to block enforcement of the Equal Employment Opportunity Commission’s recent guidance aimed at shielding LGBTQIA+ employees who seek to use pronouns and bathrooms consistent with their gender identity. The Texas suit alleges that the most recent EEOC guidance goes beyond the statutory limits of Title VII just as the prior EEOC workplace guidance, which was vacated in Texas federal court, did (The State of Texas v. EEOC (N/D. Tex., 2:21-CV-194-Z, Complaint, filed 5/21/24)).

    Separately, a coalition of 18 Republican attorneys general have also filed suit, seeking to block this EEOC guidance and alleging the same legal overreach by the EEOC.



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  • Frequently Asked Questions From CUPA-HR’s FLSA Overtime Webinar – CUPA-HR

    Frequently Asked Questions From CUPA-HR’s FLSA Overtime Webinar – CUPA-HR

    by CUPA-HR | May 29, 2024

    Reminder for the July 1 threshold update: Lawsuits challenging the final rule are underway. Though such challenges are ongoing, we expect the July 1 salary threshold to withstand legal challenges and to go into effect on that date. Institutions should therefore prepare to implement changes to comply with the July 1 threshold. We will continue to keep members apprised of any new legal updates on the final rule.

    On May 8, CUPA-HR hosted the webinar “How the DOL’s Changes to Overtime Rules Will Impact Campus.” The webinar — presented by Josh Ulman, CUPA-HR’s chief government relations officer, and Laurie Bishop, partner at Hirsch Roberts Weinstein LLP — provided an overview of the upcoming changes to the Fair Labor Standards Act (FLSA) overtime regulations, including the new minimum salary thresholds and automatic updates that are included in the department’s final rule. Nearly 3,000 people attended.

    During the webinar, CUPA-HR received several questions about the applicability of the final rule’s changes to institutions. To answer these questions, CUPA-HR’s government relations team has put together the following FAQ. We also encourage members to visit CUPA-HR’s FLSA Overtime News and Resources page for more guidance and to discuss potential changes with legal counsel and leadership at their respective institutions.

    Background

    On April 23, the Department of Labor (DOL) issued its final rule to alter the overtime pay regulations under the FLSA. The rule increases the minimum salary threshold to $43,888 on July 1, 2024, and then to $58,656 on January 1, 2025. The rule also implements automatic updates to the threshold that will occur every three years. Institutions will need to make all necessary adjustments by July 1, 2024, in order to be in compliance with the first increase under the final rule.

    FAQs

    1. Do all exempt workers need to meet the minimum salary threshold requirement?

    Not necessarily. Generally speaking, an employee must satisfy a three-part test to qualify as an executive, administrative and professional (EAP) employee and therefore be exempt from the FLSA’s overtime pay requirements: (1) the employee must be paid on a salary basis and paid the same amount each week regardless how many hours they work (unless the employee does not work at all that week), (2) the employee must receive a salary not less than the minimum salary threshold established by DOL, and (3) the employee’s primary duties must involve the kind of work associated with executive, administrative or professional positions.

    Some workers, however, may be “exempt” even though they are paid below the minimum salary threshold. In 2019, DOL issued Fact Sheet #17S, which states that teachers, coaches and “academic administrative employees” that meet certain requirements can be exempt even though they are paid below the minimum salary threshold.

    According to the guidance, teachers need not meet the minimum salary threshold if their primary duty is teaching, tutoring, instructing, or lecturing to impart knowledge, and if they are performing that duty as an employee of an educational establishment. This teaching exemption would include higher ed positions such as faculty, part-time faculty, adjunct faculty and others who primarily engage in teaching while working. Additionally, graduate students and postdoctoral employees whose primary duties are teaching, tutoring, instructing or lecturing may also qualify for the teacher exemption.

    Coaches may also fall under the teacher exemption. As DOL explains, coaches whose primary duty is to “teach” student-athletes how to perform in their sport can qualify for the teacher exemption. The guidance clarifies, however, that coaches whose primary duties are recruiting students would not qualify for the teacher exemption, as their primary duty is not teaching, and are therefore subject to the three-part test used for most other employees.

    DOL also explains that “academic administrative employees” need not be paid the minimum salary threshold if they meet the requirements of a separate exemption test. According to the guidance, “academic administrative employees” are administrative employees whose primary duty is “performing administrative functions directly related to academic instruction or training in an educational establishment.” DOL states that, in order for such employees to be exempt, they must:

    • Satisfy the salary basis and salary threshold tests OR receive a salary of at least the entrance salary for teachers in the same educational establishment, and
    • Have primary duties to perform administrative functions directly related to academic instruction or training in an educational establishment.

    DOL explains that academic administrative employees at institutions of higher education generally include department heads; intervention specialists who respond to student academic issues; and academic counselors that may administer school testing programs, assist students with academic problems, and advise students on degree requirements. As with all exemptions, however, DOL clarifies that exemptions are granted based on the employee’s duties rather than their titles.

    1. Are students/graduate students exempt from overtime pay requirements?

    In Fact Sheet #17S, DOL states that most students that work for their institution are hourly nonexempt workers who typically do not work more than 40 hours per week. However, DOL provides guidance on three types of student workers who may receive salaries or other non-hourly pay. These include graduate teaching assistants, who can fall under the teacher exemption if their primary duty is teaching; research assistants, who DOL says typically have educational relationships when performing research under faculty supervision and do not have employment relationships; and student residential assistants, who DOL states are not generally considered employees under the FLSA, as they are often students enrolled in educational programs and receive reduced room or board charges or tuition credits.

    1. How do the overtime pay requirements apply to part-time workers?

    Part-time workers are required to meet all three tests (the duties test, salary basis test and salary level test) to be exempt from overtime pay requirements. Regardless of full- or part-time status, employees must be paid at least the minimum salary threshold on a weekly basis in order to be exempt from overtime pay requirements. That means that, beginning July 1, 2024, full- and part-time employees must be paid at least $833 per week in order to maintain exempt status, so long as the salary basis and duties tests are also met. The same will be true beginning January 1, 2025, when full- and part-time employees must be paid $1,128 per week per week to maintain their exempt status. It is important to note that the minimum salary threshold cannot be prorated for part-time employees.

    1. How do you determine nonexempt/exempt status for partial-year employment? For example, how do you determine exemption status for employees who work for less than 12 months per year but are paid their salary over a 12-month period?

    According to the Wage and Hour Division (WHD) Field Operations Handbook, institutions “may prorate the salary of an otherwise-exempt employee who has a duty period of less than a full year.” For example, an employee who works a nine-month schedule but receives paychecks over a 12-month period may have their checks prorated over the actual period of work (nine months) to determine whether the employee is paid at least the salary threshold.

    Example: An employee who works for nine months (39 weeks) of a year but is paid over a 12-month period receives a salary of $40,000 ($769.23 per week), which would fall below the new July 1 salary threshold of $43,888 per year ($844 per week). Without prorating the salary, it would appear that the employee would need to be classified as nonexempt for failing to meet the minimum salary threshold. However, because DOL allows for employers to prorate the salary of the partial-year employee, the nine-month employee would actually meet the salary level requirement because the prorated weekly salary is $1,025.64 ($40,000/39 weeks), which is well over the July 1 level of $844 per week. As such, the nine-month employee could be classified as exempt, so long as they also meet the salary basis and duties tests. It is important to note, however, that the nine-month employee cannot perform any work outside of the nine-month period if employers choose to prorate their salary to meet the minimum salary threshold.

    1. Can room and board be included in total compensation to meet the salary threshold?

    No. In the existing overtime regulations, DOL specifies that “an [exempt] employee must be compensated on a salary basis at a rate of not less than $684 per week … exclusive of board, lodging or other facilities.”*

    CUPA-HR has historically advocated for the inclusion of room and board in the total compensation considered when determining whether an employee meets the salary level test, and we most recently included this request in our comments responding to the 2023 proposed rule. Despite these efforts, DOL has declined to update the regulations to allow for this. In the 2024 final rule, DOL states that they received comments about granting employers the ability to credit the value of board and lodging towards the salary level, but they declined to address the issue as they view it as outside of the scope of the rulemaking.

    *Note that the $684 per week refers to the current salary threshold. Beginning on July 1, 2024, the new minimum salary threshold will be $844 per week, and beginning January 1, 2025, the new minimum salary threshold will be $1,128 per week.

    1. Can other benefits, such as health insurance, dental insurance and tuition reimbursement, be counted toward an employee’s salary to meet the salary threshold?

    No. Similar to room and board, benefits provided to an employee such as health and dental insurance or tuition reimbursement cannot be counted toward an employee’s salary to meet the salary threshold. These would fall under “other facilities” as included in the regulatory language.

    1. Can institutions provide compensatory time to nonexempt employees in lieu of overtime pay?

    Under the FLSA and its implementing regulations, nonexempt employees at a “public agency” may be compensated with compensatory time off in lieu of overtime pay. Fact Sheet #17S explains that a public institution may be considered “a public agency under the FLSA if it is a political subdivision of a state.” To determine whether a public institution falls under the definition of a “political subdivision,” DOL considers “whether the state created the [institution]” or “if individuals administering the [institution] are responsible to public officials or the general electorate.”

    At qualifying public institutions, nonexempt employees may be compensated with compensatory time off at a rate of not less than one and one-half hours for each hour worked over 40 hours in a given workweek. Most nonexempt employees are not allowed to accrue more than 240 hours of compensatory time off, but nonexempt employees who work in public safety, emergency response or seasonal activity may accrue up to 480 hours of compensatory time off.

    1. My institution is in a state where the minimum salary threshold for overtime pay exemptions is higher than that of the federal standards. Does the federal level take precedence over my state’s salary threshold?

    No. The minimum wage and overtime requirements under the FLSA are meant to establish a floor for pay requirements. This means that institutions in states that have minimum salary requirements for overtime exemptions that are higher than the federal FLSA requirements must adhere to the state levels. For example, in 2024, California mandates that employees must earn an annual salary of at least $66,560 to be exempt from overtime pay requirements. This is significantly higher than the July 1, 2024, level established in DOL’s recent final rule ($43,888 per year). In this case, institutions in California must adhere to the state’s level for overtime exemptions.

    1. Will the final rule be challenged in court?

    Yes. On May 23, a group of 13 local and national associations and Texas businesses filed suit in federal court in Texas, challenging the U.S. Department of Labor’s rule setting new minimum salary thresholds for the white collar overtime pay exemptions under the FLSA. The suit claims that the salary threshold that goes into effect on January 1, 2025, is so high it will result in more than 4 million individuals being denied exempt status, even though these individuals could be reasonably classified as exempt based on their duties, and in doing so, the rule violates both the statutory language of the FLSA and prior court decisions. The suit also challenges the automatic updates.

    CUPA-HR will continue to provide regular updates on DOL’s overtime final rule and the court case underway.

    Disclaimer: The purpose of this blog post is to provide additional information from existing guidance, regulations and laws from the federal government on the FLSA overtime regulations. Content included in this blog post does not constitute legal advice. We encourage members to speak with their institution’s legal counsel about appropriate ways to implement changes on their respective campuses.



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  • Overtime Rule Challenged in Federal Court – CUPA-HR

    Overtime Rule Challenged in Federal Court – CUPA-HR

    by CUPA-HR | May 23, 2024

    On May 23, a group of 13 local and national associations and Texas businesses filed suit in federal court in Texas, challenging the U.S. Department of Labor’s rule setting new minimum salary thresholds for the white collar overtime pay exemptions under the Fair Labor Standards Act (FLSA).

    The final rule of April 23, 2024 increases the minimum salary threshold to $43,888 on July 1, 2024, and then to $58,656 on January 1, 2025. The rule also implements automatic updates to the threshold that will occur every three years. The suit claims that the salary threshold that goes into effect on January 1, 2025, is so high it will result in more than 4 million individuals being denied exempt status, even though these individuals could be reasonably classified as exempt based on their duties, and in doing so, the rule violates both the statutory language of the FLSA and prior court decisions. The suit also challenges the automatic updates.

    The following are plaintiffs in the case: Plano Chamber of Commerce, American Hotel and Lodging Association, Associated Builders and Contractors, International Franchise Association, National Association of Convenience Stores, National Association of Home Builders, National Association of Wholesaler-Distributors, National Federation of Independent Business, National Retail Federation, Restaurant Law Center, Texas Restaurant Association, Cooper General Contractors and Dase Blinds.

    CUPA-HR will be following the case closely and provide you with regular updates.



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

    HR and the Courts — May 2024 – CUPA-HR

    by CUPA-HR | May 14, 2024

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

    Unions Representing Student Employees File Unfair Labor Practice Charges Related to Student Protests

    Nearly 30 unions representing more than 100,000 student workers at 58 campuses throughout the country have issued a joint letter supporting protesting students and condemning violent responses to peaceful protests. Unfair labor practice charges have also been filed with the National Labor Relations Board against a small number of private institutions in protest of schools’ enforcement of their rules.

    The NLRB has found in the past that civil rights protests — for example, those connected to the Black Lives Matter movement — are protected concerted activity when they are tied to protesting employer or employment discrimination matters. However, commentators have drawn a distinction related to the Israel-Hamas war protests. While each unfair labor practice case will rise and fall on the specific facts related to the situation, a university enforcing safety rules and cracking down on protests will likely not violate the National Labor Relations Act. Additionally, if a union member participates in a protest unrelated to their employment and violates university rules, the sanctions involved will likely not violate the NLRA.

    Court of Appeals Affirms Dismissal of ERISA Lawsuit Against Georgetown University

    The U.S. Court of Appeals for the District of Columbia Circuit unanimously affirmed the dismissal of an employee-filed Employee Retirement Income Security Act lawsuit. The lawsuit claimed that Georgetown University had packed its retirement plans with expensive and badly performing investment options.

    The lawsuit further alleged that Georgetown had offered its faculty and staff retirement plans with too many investment options and retained multiple recordkeepers, which drove up the administrative costs of the plans. A federal district court judge dismissed the amended complaint in April 2023, ruling that the amended complaint did not address the concerns that led to the dismissal of the original complaint.

    The Court of Appeals unanimously concluded that the original complaint failed to plead any adequate claims and the proposed amended complaint was futile as it did not cure the problem (Wilcox et al. v. Georgetown University et al. (Case no. 23-7059, DC Cir. 4/23/24)).

    Student-Athlete NLRB Unionization Decisions May Modify Taxability of Athletic Scholarships

    Although the NLRB’s decision in the Dartmouth College men’s basketball team case is under review, if the board affirms the decision that players are employees and can unionize, it could ultimately cause the IRS to rethink its current position that student-athletes receiving scholarships are not employees for purposes of the tax code. This could possibly include a change in the current position that these scholarships are not taxable as income.

    If the NLRB affirms the regional director’s decision, which many commentators conclude is likely given its composition under the Biden administration, the decision is not binding for the IRS. The IRS has independent authority to conclude whether these student-athletes are employees and are receiving taxable compensation in the form of scholarships under the Internal Revenue Code. Separately, the courts are wrestling with the question of whether student-athletes are employees under the Fair Labor Standards Act and are entitled to minimum wage and overtime. We will keep following these issues as they unfold.

    IRS Giving More Scrutiny to Tax-Exempt Status of Name, Image and Likeness Payments to Student-Athletes From Booster Donations

    Bloomberg reports that the IRS has begun revoking and not granting 501(c)(3) status to some groups formed to collect money from boosters to fund name, image and likeness payments to student-athletes. In testimony before the Senate finance committee, the IRS commissioner stated that they are scrutinizing those NIL groups that are not operating for tax-exempt purposes. These collectives have raised millions of dollars from boosters who generally expect those gifts to be tax deductible. For specific tax guidance, a tax professional should be consulted on questions arising in this area.

    U.S. Supreme Court Rules Job Transfers Can Violate Title VII and Other Anti-Discrimination Statutes

    The Supreme Court ruled unanimously on the issue of whether a plaintiff must prove significant harm to state a claim of discrimination under the applicable anti-discrimination statutes because of a job transfer. The court reversed the holdings of some circuit courts of appeal that “significant harm” must be stated to state a claim of job discrimination resulting from a job transfer.

    Nonetheless, the Supreme Court stopped short of eliminating the harm requirement entirely. The court held that a plaintiff must show that the transfer resulted in some level of injury or harm, concluding that the statute does not require by its terms the high bar of “significant” harm (Muldrow v. St. Louis (U.S. Case No. 22-193, 4/17/24)). The concurring justices, who did not dissent, argued that the change from significant harm to some other lower level of harm was confusing and would lead to further inconsistent litigation.

    NLRB Reports 10% Rise in Case Load in First Half of Fiscal Year 2024

    The NLRB reports that case filings of unfair labor practice charges or union representation votes rose 10% during the first half of fiscal year 2024 compared to the same period in the previous fiscal year. Union election petitions rose by 35% during this period, and unfair labor practice charges rose by 7%. The NLRB has jurisdiction over private institutions of higher education and has no jurisdiction over state-based public institutions. State public institutions are generally subject to state labor boards and state statutes with separate, but often parallel, rules. This uptick in private employer unfair labor practice charges and election petitions will likely be accompanied by an increase in activity by public-sector unions at public institutions of higher education.



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  • Department of Education Issues Guidance on Discrimination Policies Under Title VI – CUPA-HR

    Department of Education Issues Guidance on Discrimination Policies Under Title VI – CUPA-HR

    by CUPA-HR | May 13, 2024

    On May 7, the Department of Education’s Office for Civil Rights (OCR) issued a “Dear Colleague” letter to offer guidance on schools’ responsibilities to prevent and rectify discrimination based on race, color, or national origin, including shared ancestry or ethnic characteristics, under Title VI of the Civil Rights Act of 1964 and its implementing regulations. The guidance aims to provide examples to institutions to help them carry out their Title VI requirements.

    In its letter, OCR explains that it has received an increase in complaints alleging discrimination based on race, color, or national origin at colleges and universities, as well as public reports of such discrimination. While it does not explicitly state that the guidance is in response to reports of antisemitism on campuses and protests regarding the Israel-Hamas war, the department emphasizes in the letter that Title VI’s “protections extend to students and school community members who are or are perceived because of their shared ancestry or ethnic characteristics to be Jewish, Israeli, Muslim, Arab, Sikh, South Asian, Hindu, Palestinian or any other faith or ancestry,” and that “Title VI’s protections against discrimination based on race, color and national origin encompass antisemitism.”

    Additionally, the letter addresses First Amendment considerations, as well as two legal frameworks used by OCR and courts to assess whether schools have violated Title VI through discrimination: hostile environment and different treatment. The guidance illustrates nine examples that may prompt OCR to investigate an institution for possible Title VI violations within these two frameworks. Of particular importance for higher ed HR are the instances outlined in the letter when educators and other faculty members might engage in actions constituting harassment under Title VI, as well as schools’ obligations to address such incidents.

    As OCR notes, the guidance lacks the authority of law and does not impose obligations on the public or establish new legal standards. Instead, its purpose is to provide clarity to institutions receiving federal financial assistance regarding their requirements under Title VI. CUPA-HR will continue to share resources regarding institutions’ obligations to address discrimination under federal law.



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  • EEOC Finalizes Guidance on Workplace Harassment – CUPA-HR

    EEOC Finalizes Guidance on Workplace Harassment – CUPA-HR

    by CUPA-HR | May 8, 2024

    On April 29, the U.S. Equal Employment Opportunity Commission issued final guidance on workplace harassment and discrimination titled “Enforcement Guidance on Harassment in the Workplace.” The guidance clarifies existing employer obligations to address workplace discrimination and aims to assist employers in recognizing, managing and preventing in-person and online workplace harassment.

    Background

    The EEOC administers and enforces Equal Employment Opportunity law to protect workers against workplace discrimination. As such, the EEOC issues guidance to help employers and employees understand their obligations and rights under EEO law to a workplace free from discrimination. In October 2023, the EEOC issued its proposed guidance on harassment in the workplace, in which they provided an overview and examples of situations that would constitute workplace harassment. The EEOC received over 38,000 comments from the public in response to the proposed guidance, which they analyzed to develop the final guidance summarized below.

    Summary of Final Guidance

    The EEOC’s final guidance aligns with and expands upon the proposed guidance and revises previous EEOC workplace harassment and discrimination guidance to address significant legal developments in recent years. Specifically, the guidance includes new overviews of workplace protections against harassment based on sexual orientation and gender identity, which the 2020 Supreme Court Bostock v. Clayton County ruling established as precedent. The guidance also addresses pregnancy, childbirth and related medical conditions as protected characteristics under the scope of “sex.” Though pregnancy has previously been protected against workplace harassment under laws like the Pregnancy Discrimination Act, recent laws like the Pregnant Workers Fairness Act and its implementing regulations have strengthened the protections afforded to pregnant workers, necessitating the need for the EEOC to update its guidance.

    In addition to the expanded scope of sex, the EEOC also includes new guidance on potential challenges relating to social media and the workplace. This includes conduct occurring in a non-work-related virtual setting (such as social media platforms or private messaging systems on personal computers or phones) that could impact the workplace. In the guidance, the EEOC provides scenarios in which certain messages shared via private messages on phones or posts shared on social media platforms about employees could create hostile work environments, triggering the requirement for employers to correct the situation.

    In total, the guidance provides 77 examples to explain harassment and discrimination in the workplace, hostile work environments, employer liability and obligations to correct workplace harassment and discrimination, and systemic harassment. As the EEOC noted in the proposed rule, the guidance and its examples “do not have the force and effect of law and are not meant to bind the public in any way.” Instead, the guidance is “intended only to provide clarity to the public regarding existing requirements under the law or agency policies.”

    In addition to the guidance, the EEOC also published educational materials for employers and employees seeking direction and support on harassment prevention strategies, including a summary of key provisions, an FAQ for employees, and a fact sheet for small businesses.

    CUPA-HR will keep members apprised of further EEOC guidance on discrimination and harassment in the workplace.



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  • DOL Issues Guidance on AI in the Workplace – CUPA-HR

    DOL Issues Guidance on AI in the Workplace – CUPA-HR

    by CUPA-HR | May 8, 2024

    On April 29, the Department of Labor Wage and Hour Division (WHD) issued a Field Assistance Bulletin on “Artificial Intelligence and Automated Systems in the Workplace Under the Fair Labor Standards Act and Other Federal Labor Standards.” The bulletin provides guidance on the applicability of the FLSA and other federal labor standards as they relate to employers’ increased use of artificial intelligence and automated systems in the workplace.

    Background

    In October 2023, President Biden released an Executive Order on the “Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence” and directed agencies across the federal government to take action to address the increased use of AI in all areas of life. With respect to AI in the workplace, the order directed the U.S. Secretary of Labor to “issue guidance to make clear that employers that deploy AI to monitor or augment employees’ work must continue to comply with protections to ensure that workers are compensated for their hours worked, as defined under the Fair Labor Standards Act (…) and other legal requirements.” The Field Assistance Bulletin is the first response from the DOL to the Executive Order’s directive, though additional guidance may be provided in the future.

    Summary of Guidance

    The bulletin discusses existing employer obligations to comply with and avoid penalties under relevant federal labor laws. It also clarifies that the use of AI and other technologies does not absolve employers of their responsibilities to comply with such laws. CUPA-HR’s government relations team has summarized the key points of the guidance below.

    AI and the FLSA

    The guidance highlights employers’ obligations to pay employees at least the federal minimum wage for all hours worked and at a rate of at least one and one-half times their regular rate of pay for every hour worked in excess of 40 in a single workweek. As such, WHD recognizes that employers have implemented AI and other automated systems to comply with these requirements, including implementing systems to help track work time, monitor break time, assign tasks to available workers, and monitor work locations. Additionally, WHD provides examples of AI and other technologies employers use to help calculate wages owed under the FLSA.

    WHD also recognizes that AI has the potential to undercount hours worked or miscalculate wage rates owed to employees. Regardless of the use of AI, WHD states in its guidance that “employers are responsible for ensuring that they are paying employees for all hours worked” under the FLSA and that “employers are responsible for ensuring that the use of AI or other technologies to calculate and determine workers’ wage rates does not cause workers to be paid in violation of” the FLSA and other applicable federal wage standards. As such, WHD suggests that employers exercise human oversight over the technologies to ensure they are not violating the FLSA.

    AI and the Family and Medical Leave Act

    Similar to WHD’s discussion of employers’ obligations to adhere to the requirements of the FLSA, the bulletin provides guidance on employers’ responsibilities to adhere to the requirements of providing Family and Medical Leave Act leave when using AI and other automated systems. WHD once again recognizes that some employers use AI and other tools to process leave requests, determine whether an employee has provided proper certification that supports the need for FMLA leave, or track the use of FMLA leave. As a result, WHD states that employers should oversee the use of AI or automated systems used to implement FMLA leave “to avoid the risk of widespread violations of FMLA rights when eligibility, certification, and anti-retaliation and anti-interference requirements are not complied with.”

    AI and Nursing Employee Protections

    WHD also provides guidance for employers’ use of AI as it relates to nursing employees’ rights to reasonable break time and space to express breast milk while at work, as protected under the FLSA and the Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act). The bulletin states that, though employers may use AI to track employee work hours, set work schedules, and manage break time requests, any instance in which automated systems “limit the length, frequency, or timing of a nursing employee’s breaks to pump would violate the FLSA’s reasonable break time requirement.” The guidance also states that systems that score productivity and/or penalize workers for failing to meet productivity standards due to pump breaks would violate the FLSA. Finally, they clarify that automated systems that require nursing employees to work additional hours to make up for time spent during pump breaks or that reduce the hours scheduled in the future for workers because they took pump breaks would be considered “unlawful retaliation” under the FLSA. WHD therefore provides that “employers are responsible for ensuring that AI or other automated systems do not impose adverse actions on employees for exercising their rights to pump at work.”

    AI and the Employee Polygraph Protection Act

    The bulletin provides an overview of the Employee Polygraph Protection Act (EPPA) and most private employers’ prohibition from using lie detector tests on employees or for pre-employment screenings. In light of this law, WHD recognizes that AI technologies have been developed to “use eye measurements, voice analysis, micro-expressions, or other body movements to suggest if someone is lying or detect deception.” As such, WHD reaffirms that EPPA prohibits covered private employers from using AI technology as a lie detector test.

    AI and Prohibited Retaliation

    Finally, the bulletin covers protections against retaliatory conduct provided under the FLSA and other laws administered by WHD to employees who have filed complaints about potential violations of their rights. As a result of these protections, WHD states that “the use of AI and other technologies by employers to take adverse action against workers for engaging in protected activities under one or more laws enforced by WHD constitutes unlawful retaliation.” Additionally, WHD clarifies that the use of AI to surveil the workforce for protected activity and to take adverse actions could violate anti-retaliation protections under the FLSA and other laws. As such, WHD reminds employers in the guidance that they are responsible for compliance with anti-retaliation provisions regardless of whether they incorporate AI technology into their business practices.

    CUPA-HR will continue to monitor for additional guidance from federal agencies as it relates to the use of AI in the workplace.



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  • DOL Increases Overtime Minimum Salary Threshold to $58,656 in Final Rule, Implements Automatic Updates – CUPA-HR

    DOL Increases Overtime Minimum Salary Threshold to $58,656 in Final Rule, Implements Automatic Updates – CUPA-HR

    by CUPA-HR | April 23, 2024

    On April 23, the Department of Labor (DOL) issued the highly anticipated final rule to alter the overtime pay regulations under the Fair Labor Standards Act (FLSA). The rule increases the minimum salary threshold to $43,888 on July 1, 2024, and then to $58,656 on January 1, 2025. The rule also implements automatic updates to the threshold that will occur every three years. Institutions will need to make all necessary adjustments by July 1, 2024, in order to be in compliance with the final rule.

    The department clarified that the first increase updates the minimum salary threshold using the department’s current methodology, which was used in the 2019 Trump-era overtime rulemaking to set the current standard of $35,568. The second increase then implements the department’s new preferred methodology, which sets the minimum salary threshold to the 35th percentile of weekly earnings of full-time salaried workers in the lowest wage census region. This phased-in implementation will likely impact how litigation challenging the rule is both pursued and decided over the next six months.

    In September 2023, DOL issued its proposed rule to update the minimum salary threshold, which sought to increase the threshold from its current level of $35,568 annually to $60,209 — a nearly 70% increase. The proposed rule also sought to implement triennial automatic updates based on the 35th percentile.

    CUPA-HR submitted comments in response to the proposed rule and participated in a meeting with DOL and officials from the White House Office of Information and Regulatory Affairs (OIRA) to express our concerns with the proposal. In both the comments and OIRA meeting, CUPA-HR made the four following recommendations for DOL to consider before issuing their final rule:

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

    Lawsuits challenging the final rule are forthcoming. In the meantime, CUPA-HR will be hosting a webinar on May 8 covering the provisions of the final rule and its impact on higher education. Registration is open and free to all.



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  • ED Releases Final Title IX Rule – CUPA-HR

    ED Releases Final Title IX Rule – CUPA-HR

    by CUPA-HR | April 19, 2024

    On April 19, the Department of Education (ED) released the text of the highly anticipated Title IX final rule. The final rule expands protections against sex-based discrimination to cover sexual orientation, gender identity, and pregnancy or related conditions. The rule also revokes both the Trump administration’s ban on campuses using a single person to investigate and adjudicate Title IX complaints and the Trump mandate regarding cross-examination of complainants. Institutions will need to be in compliance with the final rule by August 1, 2024.

    Background

    The ED released the text of the proposed rule on June 23, 2022, though the Federal Register did not officially publish the proposal until several weeks later on July 12, 2022. The agency received over 240,000 comments in response, including CUPA-HR comments seeking clarification on the overlaps between the ED’s proposal with institutions’ existing obligations to address employment discrimination. CUPA-HR also joined comments led by the American Council on Education.

    Noteworthy Provisions of the Final Rule

    As discussed above, the final rule defines “sex-based harassment” as a form of sex discrimination that includes sexual harassment and harassment based on sex stereotypes, sex characteristics, sexual orientation, gender identity, or pregnancy or related conditions. The term “pregnancy or related conditions” is further defined in the final rule to include pregnancy, childbirth, termination of pregnancy, lactation, and all related medical conditions and recovery.

    Additionally, as first introduced in the proposed rule, the final rule establishes new grievance procedures for sex-based harassment complaints. Specifically, the final rule requires institutions to apply two separate grievance procedures for sex-based harassment complaints depending on whether or not students are involved. The first section (§106.45) applies to any complaint of sex discrimination on campus, including employee-to-employee sex-based harassment complaints. The second section (§ 106.46) only applies when a student is involved as either the complainant or respondent (or both), regardless of whether the matter also involves employees. Notably, the second set of procedures also applies where a student is also an employee. The new rules also allow for certain complaints to move through an informal resolution process separate from the grievance procedures listed above if both parties agree to choose to move forward with that process.

    The final rule also imposes several training requirements, which the ED also included in the proposed rule. Under the rule, institutions must train all employees on the institution’s obligation to address sex discrimination under Title IX, the scope of conduct that constitutes sex discrimination under the law, and the notification and information requirements that applicable employees must follow upon learning about instances of sex-based harassment. Additionally, institutions must train individuals who serve as investigators, decisionmakers, and others responsible for implementing an institution’s grievance procedures on the institution’s grievance procedures and how to serve impartially through the grievance procedures. Facilitators of the informal resolution process must be trained on the rules and practices of an institution’s informal resolution process, and the institution must train individuals serving as Title IX coordinators on the requirements of their specific responsibilities throughout the notification, information, and grievance procedure processes as required by Title IX.

    Finally, the rule clarifies that when responding to retaliation, institutions must undergo all procedures for notifying and informing involved parties of their obligations under Title IX and initiate the appropriate grievance procedures.

    Looking Forward

    CUPA-HR’s government relations team is going through the 1,577-page final rule and will provide more information on the rule as needed through CUPA-HR’s blog. Additionally, CUPA-HR will host a webinar to cover the final rule on April 30. Registration is now open and is free for all to attend.



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  • EEOC Issues Long-Awaited Regulations on Implementation of the Pregnant Workers Fairness Act – CUPA-HR

    EEOC Issues Long-Awaited Regulations on Implementation of the Pregnant Workers Fairness Act – CUPA-HR

    by CUPA-HR | April 17, 2024

    On April 15, 2024, the Equal Employment Opportunity Commission issued its long-awaited final regulations and interpretative guidance on the implementation of the Pregnant Workers Fairness Act (PWFA). The EEOC states in its press release that the final rule is intended to offer “important clarity that will allow pregnant workers the ability to work and maintain a healthy pregnancy and help employers understand their duties under the law.” It provides guidance to employers and workers “about who is covered, the types of limitations and medical conditions covered, and how individuals can request reasonable accommodations.” The regulations will be published in the Federal Register on April 19 and go into effect 60 days later.

    The PWFA, which was signed into law in December 2022, requires most employers with 15 or more employees “to provide reasonable accommodations to a qualified employee’s or applicant’s known limitations related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions, absent undue hardship on the operation of the business of the covered entity.” It passed Congress with strong bipartisan support.

    Known Limitations

    Under the regulation, “limitations” include both physical and mental conditions related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions. The regulations specify that the definition of a limitation “shall be construed broadly to the maximum extent permitted by the PWFA.” A limitation “may be a modest, minor, and/or episodic impediment or problem” and can be related to current or past pregnancies, potential or intended pregnancies, and labor and childbirth.

    The examples of limitations provided in the rule include miscarriage or stillbirth, migraines, lactation, postpartum depression, and pregnancy-related episodic conditions, such as morning sickness, but the list is not intended to be exhaustive. The limitation may be “a need or a problem related to maintaining [the worker’s] health or the health of the pregnancy,” and it “need not be caused solely, originally, or substantially by pregnancy or childbirth.” Related medical conditions can include conditions that existed before pregnancy or childbirth but are exacerbated by the pregnancy or childbirth.

    The employee or their representative must communicate the limitation to the employer to receive a reasonable accommodation. The employee and employer should engage in an interactive process to determine if a worker’s limitation qualifies for a reasonable accommodation and the appropriate accommodation.

    Reasonable Accommodations

    Under the final rule, “reasonable accommodations” have the same definition as under the Americans with Disabilities Act. They include modifications or adjustments to the application process, to the work environment or how the work is performed, and that allow the employee to enjoy equal benefits and privileges of employment as are enjoyed by similarly situated employees without known limitations. It also includes modifications or adjustments to allow a covered employee to temporarily suspend one or more essential functions of the job.

    The rule provides several examples of reasonable accommodations that may be appropriate under the act. These include but are not limited to additional breaks, allowing the worker to sit while they work, temporary reassignment or suspension of certain job duties, telework, or time off to recover. Leave can be requested even if the employer does not offer leave as an employee benefit, the employee is not eligible for the employer’s leave policy, or the employee has used up their allotted leave under the employer’s policy.

    Reasonable accommodations are limited to the individual who has a PWFA-covered limitation; it does not extend to an individual who is associated with someone with a qualifying limitation or someone with a limitation related to, affected by, or arising out of someone else’s pregnancy, childbirth, or related medical condition. The regulations specifically clarify that “time for bonding or time for childcare” are not covered by the PWFA.

    Undue Hardship

    The rule explains that an employer does not have to provide a reasonable accommodation if it would cause an “undue hardship,” or a significant difficulty or expense. The rule includes a variety of factors that should be considered when determining if a reasonable accommodation would impose an undue hardship, including the nature and net cost of the accommodation; the overall financial resources of the facility or covered entity; the type of operations of the covered entity; and the impact of the accommodation on operations, including on the ability of other employees to perform their duties or the facility’s ability to conduct business.

    The rule provides several factors to consider when analyzing whether an accommodation involving the temporary suspension of essential functions of the position qualifies as an undue hardship. These include the length of time the employee will not be able to perform the essential function; whether there is work for the employee to accomplish; the nature of the essential function; the employer’s history of providing temporary suspensions to other, similarly situated employees; whether other employees can perform the functions; and whether the essential functions can be postponed.

    Other Provisions

    The rule also encourages “early and frequent communication between employers and workers” in order “to raise and resolve requests for reasonable accommodation in a timely manner.” Employers are also instructed that they are not required to request supporting documentation when an employee asks for a reasonable accommodation; they should only do so when it is reasonable under the circumstances.

    Controversies Surrounding the Regulations

    While the PWFA was passed by Congress with strong bipartisan support, the EEOC has faced significant pushback about the implementing regulations.

    The EEOC’s delay in issuing these regulations caused considerable frustration from employers. The PWFA went into effect in June 2023, which was when employers were required to comply with the law and the EEOC began accepting claims of discrimination under the act. Without the implementing regulations, however, employers had no certainty as to how to comply, leaving them exposed to potential liability.

    The most significant criticism stemmed from the regulation’s implications around abortion. In fact, of the nearly 100,000 comments the EEOC received in response to its notice of proposed rulemaking on the regulations, over 96,000 discussed the regulation’s inclusion of abortion. The final rule clarifies that “having or choosing not to have an abortion” qualifies as a medical condition under the regulations. Several Republican members of Congress accused the EEOC of using the regulations to further the Biden administration’s pro-choice agenda. EEOC Chair Charlotte Burrows, however, defended the language, saying it is consistent with legal precedent and the agency’s interpretations of other civil rights statutes under their jurisdiction. The regulation clarifies that employers will not be required to pay for abortions or travel-related expenses for an employee to obtain an abortion. The EEOC specifies they expect the most likely accommodation related to abortion will be leave to attend a medical appointment or recover from a procedure. Several conservative organizations are threatening legal action against the final rule.

    Litigation Challenging the PWFA

    On February 27, 2024, a federal district court in Texas ruled that the House of Representatives lacked a quorum when it passed the PWFA, because over 200 representatives voted by proxy. The Constitution required that a quorum be present for the House to conduct business, but in response to the COVID-19 pandemic, the House allowed for proxy voting. The court found Congress violated the Constitution when it passed the law and blocked enforcement of the act against the state of Texas and its agencies. The law is in effect elsewhere in the United States, but other legal challenges may follow Texas’s approach.



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