Category: Pregnant Workers Fairness Act

  • 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.



    Source link

  • 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.



    Source link

  • December Policy Roundup: Paid Leave Policy, Pregnant Workers Fairness Act Regulations, and Workforce Development Initiatives – CUPA-HR

    December Policy Roundup: Paid Leave Policy, Pregnant Workers Fairness Act Regulations, and Workforce Development Initiatives – CUPA-HR

    by CUPA-HR | January 10, 2024

    Through December and into the new calendar year, federal government leaders kept busy with Congressional hearings and markups, new legislation, and proposed and final rules focusing on issues that may be of significance to higher education HR professionals. CUPA-HR tracked several actions from both Congress and federal agencies on issues including paid family leave, short-term Pell Grants, the Pregnant Workers Fairness Act, and workforce development.

    House Education and Workforce Committee Markup

    On December 12, 2023, the House Committee on Education and the Workforce held a full committee markup on H.R. 6585, the Bipartisan Workforce Pell Act, and H.R. 6655, A Stronger Workforce for America Act.

    The Bipartisan Workforce Pell Act aims to amend the Higher Education Act of 1965, allowing students to use Pell Grants for eight-week or longer educational programs. This bill also establishes quality control measures for Pell initiatives, enabling higher education institutions to participate if they meet specific criteria. The committee voted to move the legislation out of committee with 37 members voting in favor and 8 members voting against the bill.

    The next bill, A Stronger Workforce for America Act, seeks to renew and enhance the Workforce Innovation and Opportunity Act (WIOA). Originally established in 2014, WIOA has been extended through yearly appropriations since fiscal year 2021. The bill incorporates multiple measures to modernize WIOA, bolstering the country’s workforce development to better equip and retain workers. The bill passed through the committee with bipartisan support; 44 members voted in favor of and only one member voted against it.

    Paid Leave Request for Information

    On December 13, the Congressional Bipartisan Paid Family Leave Working Group published a Request for Information (RFI) for diverse stakeholder input to aid in the expansion of access to paid parental, caregiving, and personal medical leave nationwide. The members encouraged interested stakeholders to submit letters that answer these ten questions on the role the federal government can play in creating a national paid leave program.

    Responses must be submitted by January 31, 2024, and can be directed to [email protected], [email protected], [email protected], and [email protected]. CUPA-HR will continue to track developments and intends to collaborate with associate organizations to submit feedback on an as-needed basis.

    National Apprenticeship System Enhancement Proposed Rule

    On December 14, the Department of Labor (DOL) unveiled a proposed rule to modernize the regulations for Registered Apprenticeship programs. The 779-page proposal focuses on provisions to create “safeguards for apprentices to ensure that they have healthy and safe working and learning environments as well as just and equitable opportunities throughout their participation in a registered apprenticeship program,” while also creating baseline requirements for career and technical education apprenticeships, which would target high school and postsecondary students to programs that align more closely with programs found at institutions of higher education.

    DOL is providing a 60-day comment period for the proposed rule, which will commence once the regulation is posted in the Federal Register. CUPA-HR is analyzing the rule and will coordinate with other higher education associations as needed to file comments.

    Federal Transit Authority General Directive on Assaults on Transit Workers

    On December 20, the Department of Transportation (DOT)’s Federal Transit Administration (FTA) proposed a General Directive to address the ongoing national safety risk concerning assaults on transit workers. Transit agencies falling under FTA’s Public Transportation Agency Safety Plans directive would be instructed to conduct safety risk assessments, identify mitigation strategies, and report discoveries to FTA. Per the Bipartisan Infrastructure Law, transit agencies operating in urban areas must collaborate with the joint labor-management safety committees to reduce safety hazards.

    The deadline for submitting comments in the Federal Register is February 20, 2024, but late submissions may be considered. CUPA-HR is working with members and other higher education associations to determine the impact that this directive may have on transportation and HR services at institutions of higher education.

    Regulations to Implement the Pregnant Workers Fairness Act

    On December 27, the Equal Employment Opportunity Commission (EEOC) sent its final rule to implement the Pregnant Workers Fairness Act (PWFA) to the Office of Information and Regulatory Affairs (OIRA) for review prior to its publication in the Federal Register. The final rule will likely look very similar to the proposed rule that was issued in August 2023, which provides a framework for how the EEOC plans to enforce protections granted to pregnant workers under the PWFA.

    The EEOC was tasked by law with finalizing regulations to implement the PWFA by December 29, 2023. Given the missed deadline, OIRA may move quickly on its review of the regulations, and we could see the final rule published sometime between late January and late February. CUPA-HR is continuing to monitor for any updates and will keep members apprised of any new details that may arise in the final rule.



    Source link

  • Overtime and Title IX Final Rules Targeted for Early 2024 Release in Fall Regulatory Agenda – CUPA-HR

    Overtime and Title IX Final Rules Targeted for Early 2024 Release in Fall Regulatory Agenda – CUPA-HR

    by CUPA-HR | December 12, 2023

    On December 6, the Biden administration released the Fall 2023 Unified Agenda of Regulatory and Deregulatory Actions, providing the public with an update on the regulatory and deregulatory activities under development across approximately 67 federal departments, agencies and commissions. This release is the second and final regulatory agenda for 2023, and it sets target dates for upcoming regulatory actions mainly for the first half of 2024.

    CUPA-HR has highlighted the following items from the Fall 2023 Regulatory Agenda for members to be aware of as we enter the new year. As a reminder, these target dates are not a guarantee, but they provide insight into when we can possibly expect the regulations to be published. CUPA-HR’s government relations team will continue to monitor for any updates on the following regulations and others that may impact the higher education space.

    Department of Labor

    Wage and Hour Division — Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales, and Computer Employees

    According to the Fall 2023 Regulatory Agenda, the Department of Labor (DOL)’s Wage and Hour Division (WHD) has targeted April 2024 for release of the final rule to update the Fair Labor Standards Act’s overtime pay regulations. The final rule seeks to increase the minimum salary threshold required for white-collar professionals to maintain exempt status under the FLSA.

    On September 8, WHD released a Notice of Proposed Rulemaking (NPRM) to update the salary threshold. The NPRM increases the minimum salary threshold from its current level of $35,568 per year ($684 per week) to $60,209 annually ($1,158 per week), which amounts to a nearly 70% increase.* Additionally, WHD proposes to automatically increase the salary level every three years by tying the threshold to the 35th percentile of full-time salaried wages in the lowest wage census region. DOL indicated in the proposed rule that it is considering implementing an effective date in the final rule that could come as soon as 60 days after the final rule is published to the public.

    CUPA-HR was joined by 49 other higher education associations in submitting comments in response to the NPRM. In our comments, we raised concerns with the timing of this increase, the size of the proposed increase, the implementation of automatic updates, and the timeline for regulatory compliance that WHD anticipates. Our comments were informed by a CUPA-HR member survey, in which over 300 members provided feedback on their concerns with and thoughts about the proposal. For ongoing updates, visit CUPA-HR’s FLSA Overtime page.

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

    The Fall 2023 Regulatory Agenda indicates that WHD anticipated releasing the FLSA independent contractor rule in November 2023. The final rule has been at the White House Office of Information and Regulatory Affairs (OIRA) for review since September 28, 2023, and once the agency finishes its review, the rule will be published.

    On October 13, 2022, the DOL published an NPRM to rescind the current method for determining independent contractor status under the FLSA. The current test, finalized by the Trump administration in 2021, has two core factors of control and investment with three additional factors (integration, skill and permanency) that are relevant only if those core factors are in disagreement. The Biden rule proposes a return to a “totality-of-the-circumstances analysis” of multiple factors in an economic reality test, including the following six factors, which are equally weighted with no core provisions:

    • The extent to which the work is integral to the employer’s business.
    • The worker’s opportunity for profit or loss depending on managerial skill.
    • The investments made by the worker and the employer.
    • The worker’s use of skill and initiative.
    • The permanency of the work relationship.
    • The degree of control exercised or retained by the employer.

    Employment and Training Administration — Revising Schedule A to Include Updating Occupations in Science, Technology, Engineering, and Mathematics (STEM)

    The regulatory agenda indicates that DOL’s Employment and Training Administration (ETA) aimed to issue a Request for Information (RFI) in November 2023. According to the notice in the agenda, ETA is seeking input from the public “on whether Schedule A serves as an effective tool for addressing current labor shortages, and how the Department may create a timely, coherent and transparent methodology for identifying STEM occupations that are experiencing labor shortages in keeping with its requirements under the Immigration and Nationality Act … to ensure the employment of foreign nationals does not displace U.S. workers or adversely affect their wages and working conditions.”

    The RFI was sent to OIRA for review before publication on November 11, 2023, and will likely be released to the public soon.

    Equal Employment Opportunity Commission

    Regulations to Implement the Pregnant Workers Fairness Act

    In December 2023, the Equal Employment Opportunity Commission (EEOC) plans to issue a final rule to implement the Pregnant Workers Fairness Act (PWFA). The rule will create a framework for the EEOC on how to enforce protections granted to pregnant workers under the PWFA. For a detailed analysis of the proposed rule on implementing the PWFA, please see CUPA-HR’s blog post.

    In December 2022, the PWFA was signed into law through the Consolidated Appropriations Act of 2023. The law establishes employer obligations to provide reasonable accommodations to pregnant employees so long as such accommodations do not cause an undue hardship on the business, and makes it unlawful to take adverse action against a qualified employee requesting or using such reasonable accommodations. The requirements of the law apply only to businesses with 15 or more employees.

    Unlike the other regulations with target dates, the PWFA final rule has a statutory deadline for publication, which is December 29, 2023. Given this upcoming deadline, we will likely see the EEOC publish this rule soon.

    Department of Education

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

    According to the regulatory agenda, the Department of Education (ED) anticipates releasing the highly anticipated Title IX final rule in March 2024. The rulemaking would finalize the June 2022 NPRM to roll back and replace the Trump administration’s 2020 regulations while simultaneously expanding protections against sex-based discrimination to cover sexual orientation, gender identity, and pregnancy or related conditions.

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

    The new March target deadline marks the third time ED has delayed the issuance of the Title IX final rule. The rule was originally targeted for release in May 2023, but ED subsequently pushed the target date back to October 2023 via a blog post, when it became clear that the department would not meet the May timeline. Since ED missed the October timeline, they have faced increased pressure from Congressional Democrats and other advocacy groups to publish the final rule as soon as possible. While it’s not a guarantee ED will be able to publish the final rule in March 2024, the increased pressure will certainly motivate the department to move quickly.

    CUPA-HR plans to hold a webinar to inform members of the final rule’s new requirements once the final rule has been published. Details to come.

    Office for Civil Rights — 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

    Similar to the Title IX final rule above, ED plans to issue a final rule on student eligibility in athletic programs under Title IX in March 2024. The rule would finalize the NPRM that was released by the department in April 2023.

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

    The NPRM received over 150,000 comments addressing support for and concerns with the proposal. ED must review all comments before issuing a final rule to implement these regulations, which is the likely cause of delay for both this rulemaking and the broader Title IX final rule.

    Department of Homeland Security

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

    On October 23, the Department of Homeland Security’s U.S. Citizenship and Immigration Services (USCIS) issued a proposed rule that aims to improve the H-1B program by simplifying the application process, increasing the program’s efficiency, offering more advantages and flexibilities to both petitioners and beneficiaries, and strengthening the program’s integrity measures.

    Prompted by challenges with the H-1B visa lottery, USCIS has prioritized a proposed rule to address the system’s integrity. The proposed rule is aimed at strengthening the lottery registration process and preventing fraud, and it makes critical revisions to underlying H-1B regulations. For a detailed summary of what the H-1B proposal includes, see CUPA-HR’s blog post.

    The NPRM is open for public comment until December 22, 2023. The Fall 2023 Regulatory Agenda included the regulations, but it did not provide a timeline for issuing the final rule, likely because the comment period is still open for the NPRM.

    U.S. Citizenship and Immigration Services — Fee Schedule and Changes to Certain Other Immigration Benefit Request Requirements

    In April 2024, USCIS anticipates issuing a final rule to adjust the fees charged by the agency for immigration and naturalization benefit requests.

    USCIS published an NPRM on this issue in January 2023. The comprehensive proposal has implications for both employment-based and family-based filings, but certain provisions would have significant impacts for higher education employers. Specifically, the proposed rule includes a provision to fund the Asylum Program with employer petition fees, which would be a $600 fee paid by any employers who file either a Form I-129, Petition for a Nonimmigrant Worker, or Form I-140, Immigrant Petition for Alien Worker. Additionally, the proposed rule seeks to increase almost all employment-based and employment-based “adjacent” filing fees. For more information on the details of this proposed rule, see CUPA-HR’s blog post.

    On March 13, 2023, CUPA-HR joined the American Council on Education’s comments in response to the NPRM. The comments address higher ed-specific concerns with the proposal to increase fees for immigration and naturalization benefit requests, including concerns about the impact the increased fees will have on international scholars and institutions’ ability to hire nonimmigrant workers, including H-1B workers.

    U.S. Citizenship and Immigration Services — Petition for Immigrant Worker Reforms

    The regulatory agenda shows that USCIS plans to issue an NPRM in August 2024 that will “amend its regulations governing employment-based immigrant petitions in the first, second and third preference classifications.” According to the posting, the proposed rule would “codify current policy guidance and implement administrative decisions regarding successorship-in-interest and ability to pay; update provisions governing extraordinary ability and outstanding professors and researchers; modernize outdated provisions for individuals of extraordinary ability and outstanding professors and researchers; … implement reforms to ensure the integrity of the I-140 program; and correct errors and omissions.”

    U.S. Citizenship and Immigration Services — Modernizing Regulations Governing Nonimmigrant Workers

    In October 2024, USCIS plans to issue an NPRM to update employment authorization rules for dependent spouses of certain nonimmigrants and to increase flexibilities for nonimmigrant workers. CUPA-HR plans to monitor for any updates to this rule as it may apply to H-1B or other relevant nonimmigrant visas used by institutions.

    Department of State

    Pilot Program to Resume Renewal of H-1B Nonimmigrant Visas in the United States for Certain Qualified Noncitizens

    In February 2024, the Department of State plans to begin a pilot program to “resume domestic visa renewal for qualified H-1B nonimmigrant visa applicants who meet certain requirements.” The department will issue a notice in the Federal Register that will describe pilot program participation requirements and will provide “information on how those falling within the bounds of the pilot program may apply for domestic visa renewal.” The pilot program has been at OIRA since October 17, meaning the pilot notice could be published sooner than anticipated.


    * The discrepancy between our figure of $60,209 and the DOL’s preamble figure of $55,068 arises from DOL’s own projections based on anticipated wage growth. The DOL’s proposed rule is rooted in 2022 data (yielding the $55,068 figure), but a footnote in the NPRM confirms that the salary threshold will definitely change by the time the final rule is issued to reflect the most recent data. Our comments, aiming to respond to the most probable salary threshold at the time a final rule is released, references the DOL’s projected figure for Q1 2024, which is $60,209. We do not believe DOL will be able to issue a final rule before Q1 2024, so we are incorporating this projected figure into our response to the NPRM. In essence, our goal is to provide members with a clearer picture of the likely salary figure when the final rule comes into play.



    Source link

  • EEOC Issues Proposed Updated Guidance on Workplace Harassment – CUPA-HR

    EEOC Issues Proposed Updated Guidance on Workplace Harassment – CUPA-HR

    by CUPA-HR | October 27, 2023

    On September 28, 2023, the U.S. Equal Employment Opportunity Commission (EEOC) published new proposed guidance for employees and employers on navigating and preventing workplace harassment. “Enforced Guidance on Harassment in the Workplace” highlights and upholds existing federal employment discrimination laws and precedence, such as the Pregnant Workers Fairness Act (PWFA) and the Supreme Court’s Bostock v. Clayton County decision.

    The Updated Guidance

    The proposed enforcement guidance provides an overview and examples of situations that would constitute workplace harassment. Of particular interest are provisions included that reflect new and existing protections from harassment under federal laws and precedence, as well as emerging issues surrounding the workforce. The guidance discusses the following notable provisions for consideration:

    • Pregnancy, childbirth and related medical conditions. The guidance states that sex-based harassment includes harassment revolving around pregnancy, childbirth or related medical conditions, all of which are protected under federal laws like the Pregnancy Discrimination Act and the recently enacted PWFA.
    • Sexual orientation and gender identity. The guidance provides several examples of discrimination and harassment on the basis of sexual orientation and gender identity, which is considered sex-based discrimination under Title VII of the Civil Rights Act after the Supreme Court’s 2020 Bostock v. Clayton County decision.
    • Virtual and online harassment. The guidance states that conduct within a virtual work environment can contribute to a hostile environment, providing examples such as harassing comments made during remote calls or discriminatory imagery being visible in an employee’s workspace while in a work-related video call. Additionally, the guidance provides examples of conduct on social media outside of work-related contexts that may contribute to hostile work environments if such conduct impacts the workplace.

    In the proposed guidance, the EEOC reminds stakeholders that the final guidance will “not have the force and effect of law” and that such guidance is “not meant to bind the public in any way.” Instead, the document “is intended only to provide clarity to the public regarding existing requirements under the law or Commission policies.”

    Looking Ahead

    The proposed guidance is open for public comments through November 1, 2023. Once the comment period closes, the EEOC will review all feedback they received and make changes to address the comments prior to issuing a final rule. CUPA-HR will keep members apprised of any updates on this EEOC guidance, as well as new and existing laws falling under the EEOC’s jurisdiction.



    Source link

  • Congress and Federal Agencies Consider Paid-Leave Proposals and Protections for Pregnant and Nursing Workers – CUPA-HR

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

    by CUPA-HR | May 24, 2023

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

    Bipartisan Working Group on Paid Leave

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

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

    FAMILY Act

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

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

    PUMP for Nursing Mothers Act

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

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

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

    Pregnant Workers Fairness Act

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

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

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



    Source link

  • Retirement Plan Changes and Workplace Protections for Pregnant Workers Included in Fiscal Year 2023 Omnibus Bill – CUPA-HR

    Retirement Plan Changes and Workplace Protections for Pregnant Workers Included in Fiscal Year 2023 Omnibus Bill – CUPA-HR

    by CUPA-HR | January 10, 2023

    On December 29, 2022, President Biden signed the $1.7 trillion Consolidated Appropriations Act of 2023 (omnibus bill) to fund the federal government through fiscal year 2023 (FY 2023). Given the “must-pass” nature of the bill, the omnibus bill also served as a vehicle for policy unrelated to government funding that was unlikely to pass as a standalone bill in Congress. Below outlines some of the highlights that will impact higher education generally and human resources specifically.

    SECURE 2.0

    Notably, the new law includes changes to the access and use of individual retirement funds. Provisions from a package of retirement-related bills, referred to as SECURE 2.0, were ultimately included in the final omnibus package. Specifically, the new law included the following provisions, in addition to others not listed here:

    • Automatic 401(k) and 403(b) plan enrollment: The new law requires employers to automatically enroll employees into newly created 401(k) and 403(b) retirement plans at a rate between 3 to 10 percent of eligible wages. Employees will then have the option to opt out of the enrollment. Employers with 10 or fewer employees and companies in business for less than three years are excluded from this requirement.
    • Expanded eligibility for part-time employees: The law requires employers to provide the option to participate in employer retirement plans for part-time employees who work between 500 and 999 hours for at least two consecutive years (lowered from three consecutive years previously required).
    • Emergency expenses and savings accounts: Employees would be allowed to withdraw up to $1,000 from retirement accounts for qualified emergency expenses without facing early withdrawal penalties if the worker is under 59.5 years old. Additionally, the law allows employers to offer employees an emergency savings account through payroll deductions for amounts up to $2,500.
    • Matching employer contributions for student loan payments: Employers will be allowed to make contributions to their company retirement plan on behalf of employees who are paying student loans and are not contributing to a retirement account as a result.
    • Roth treatment of employer contributions: The new law grants employers the option to amend their retirement plans and allow employees to choose their employer’s matching and non-elective contributions to be made as Roth contributions.
    • Multiple Employer and Pooled Employer Plans for 403(b) plans: The new law allows employers to participate in Multiple Employer Plans (MEPs) and Pooled Employer Plans (PEPs) for 403(b) plans.

    The final law also included several changes to individual activity with respect to their retirement plans, including an increase to the “catch-up” contribution limits of up to $10,000 for older retirement savers and an increase to the age an individual is required to begin taking minimum distributions from their retirement accounts, which is now effective at age 73 and effective at age 75 effective in 2033.

    Workplace Protections for Pregnant Workers

    Additionally, Congress was able to agree on the inclusion of the Pregnant Workers Fairness Act (PWFA) and the Providing Urgent Maternal Protections (PUMP) for Nursing Mothers in the omnibus bill.

    Pregnant Workers Fairness Act

    Passed by the House in May 2021, the PWFA specifically declares that it is an unlawful employment practice for employers with 15 or more employees to do any of the following:

    • fail to make reasonable accommodations to known limitations of such employees unless the accommodation would impose an undue hardship on an entity’s business operation;
    • require a qualified employee affected by such condition to accept an accommodation other than any reasonable accommodation arrived at through an interactive process;
    • deny employment opportunities based on the need of the entity to make such reasonable accommodations to a qualified employee;
    • require such employees to take paid or unpaid leave if another reasonable accommodation can be provided; or
    • take adverse action in terms, conditions or privileges of employment against a qualified employee requesting or using such reasonable accommodations.

    Though the bill enjoyed bipartisan support in both the House and Senate, Republicans opposed bringing the bill to a Senate vote without the inclusion of a religious exemption for employers. Such exemptions were provided in the omnibus bill’s version of the PWFA, ultimately helping lead to its passage.

    PUMP for Nursing Mothers Act

    The PUMP for Nursing Mothers Act passed the House of Representatives in October 2021 with bipartisan support. The bill aims to amend the Fair Labor Standards Act (FLSA) to expand access to breastfeeding accommodations in the workplace for lactating employees and builds upon existing protections in the 2010 Breaktime for Nursing Mothers Act by broadening breastfeeding accommodations and workplace protections. In the new law, the PUMP for Nursing Mothers Act is expanded to include salaried employees exempt from overtime pay requirements under the FLSA as well as other categories of employees currently exempt from such protections, such as teachers, nurses and farmworkers. It also clarifies that break time provided under this bill is considered compensable hours worked so long as the worker is not completely relieved of duty during such breaks, and it ensures remedies for nursing mothers for employer violations of the bill.

    Similar to the PWFA, the PUMP for Nursing Mothers Act did not reach a Senate floor vote, leaving the omnibus bills as one of the last options for passage before the 117th Congress’s term expired.

    Immigration Provisions

    Due to the situation at the southern border, the new law excluded any major immigration overhauls, such as the Equal Access to Green cards for Legal Employment (EAGLE) Act, which would have addressed the immigration visa backlog and made changes to the H-1B visa program. Additionally, protections for the Deferred Action for Childhood Arrivals (DACA) program and Dreamers that have been threatened by recent court decisions were not included in the final bill enacted into law.

    Despite the exclusion of important reforms, the new law reauthorized several expiring immigration programs that are already utilized by institutions of higher education, including additional funds for the E-Verify program.

    Higher Education Funding

    Several provisions were included in the omnibus package that will increase funding for a variety of higher education programs. Notably, the bill includes a $500 increase to the maximum Pell Grant a recipient can receive, raising the total to $7,395 for the 2023-24 award year. Additionally, the bill included funding increases for Federal Work-Study grants, Title III and V programs, Postsecondary Student Success Grants, and the TRIO and GEAR UP programs.

    CUPA-HR will continue to analyze the provisions included in the FY 2023 funding bill and will keep members apprised of any additional noteworthy provisions included in the law.



    Source link