Category: Title IX

  • 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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  • White House Approves Title IX Final Rule — Rule Release Imminent – CUPA-HR

    White House Approves Title IX Final Rule — Rule Release Imminent – CUPA-HR

    by CUPA-HR | April 12, 2024

    On April 10, the White House Office of Information and Regulatory Affairs (OIRA) announced it had concluded review of the Department of Education’s (ED) final rule to amend Title IX. OIRA review is the final step in the regulatory process, and we expect the ED will issue the final rule any day now. We will send another alert as soon as ED publishes the final rule.

    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.

    The Federal Government’s Fall 2022 Regulatory Agenda had set the target release date of the final rule for May 2023, but the Department had to further delay that timeline to review all comments submitted in response to the proposed rule and address them in the final rule. Most recently, the ED indicated a March 2024 release of the final rule in the Fall 2023 Regulatory Agenda.

    CUPA-HR plans to hold a timely webinar on the final rule after publication. In the meantime, CUPA-HR will keep members apprised of additional updates on the Title IX final rule, including completion of the review and publication of the rule.



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  • Department of Education Moves Forward With Title IX Final Rule – CUPA-HR

    Department of Education Moves Forward With Title IX Final Rule – CUPA-HR

    by CUPA-HR | February 5, 2024

    On February 2, 2024, the Department of Education (ED) sent its highly anticipated Title IX final rule to the White House Office of Information and Regulatory Affairs (OIRA) for review. OIRA review is the final step before the Title IX rule is published. While ED’s final rule is being reviewed, the public is not provided with any specific details on changes to the proposed rule. However, interested stakeholders can request a meeting with the administrator while a rule is under review.

    The Department of Education introduced a Title IX proposed rule in June 2022, under which the department proposed to replace the Trump administration’s 2020 Title IX rule and establish expanded protections against sex-based discrimination to cover sexual orientation, gender identity, and pregnancy or related conditions. CUPA-HR submitted comments in response to the proposed rule, in which we brought attention to the possible impact the proposed regulations could have on how higher education institutions address employment discrimination.

    The Department of Education has been reviewing the 240,000 submitted comments in response to the Title IX proposed rule since the comment period closed in September 2022. The final rule was initially included in the Fall 2022 Regulatory Agenda with a target release date in May 2023, but the department had to further delay that timeline to ensure all comments submitted in response to the proposed rule were reviewed and addressed in the final rule. Most recently, ED indicated a March 2024 release of the final rule in the Fall 2023 Regulatory Agenda.

    OIRA reviews typically last between 30-60 days, though the agency has up to 90 days to review the rule before it is released to the public. As such, the final rule could be released as soon as early March, possibly meeting the Fall 2023 Regulatory Agenda’s target date.

    Once the final rule is published, CUPA-HR will hold a webinar presented by Title IX experts. In the meantime, CUPA-HR will keep members apprised of additional updates on the Title IX final rule, including when the review is completed and the rule is published.



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  • 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.



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  • Biden Administration Releases Spring 2023 Regulatory Agenda – CUPA-HR

    Biden Administration Releases Spring 2023 Regulatory Agenda – CUPA-HR

    by CUPA-HR | June 26, 2023

    On June 14, the Biden administration released its Spring 2023 Unified Agenda of Regulatory and Deregulatory Actions (Regulatory Agenda), providing the public with an update on the regulatory and deregulatory activities under development across approximately 67 federal departments, agencies and commissions. This release serves as the first Regulatory Agenda for the 2023 year, setting target dates for regulatory actions in the coming year.

    CUPA-HR’s government relations team has completed a thorough review of the Spring 2023 Regulatory Agenda and put together the following list of noteworthy proposed actions for members.

    Department of Labor

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

    According to the Regulatory Agenda, the Department of Labor (DOL)’s Wage and Hour Division (WHD) has again delayed the Notice of Proposed Rulemaking (NPRM) to address changes to the Fair Labor Standards Act (FLSA)’s overtime pay requirements to August 2023. The WHD first announced their intention to move forward with the NPRM in the Fall 2021 Regulatory Agenda, stating its goal “to update the salary level requirement of the section 13(a)(1) exemption [under the FLSA].”

    As a reminder, changes to overtime pay requirements have been implemented through regulations under both the Obama and Trump administrations. In May 2016, the Obama administration’s DOL issued a final rule increasing the salary threshold from $23,660 to $47,476 per year and imposed automatic updates to the threshold every three years. However, court challenges prevented the rule from taking effect, and it was permanently enjoined in September 2017. After the Trump administration started the rulemaking process anew, the DOL issued a new final rule in September 2019 raising the minimum salary level required for exemption from $23,660 annually to $35,568 annually. This final rule went into effect January 1, 2020, and remains in effect today.

    Since the regulation’s reintroduction in the Fall 2021 Regulatory Agenda, CUPA-HR has participated in several DOL listening sessions and has sent letters to the DOL expressing concerns with the timing of the rulemaking. In a recent letter, CUPA-HR joined other associations in calling for the Department to postpone or abandon the anticipated overtime rulemaking, citing concerns with supply chain disruptions, workforce shortages, inflation, and shifting workplace dynamics.

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

    In August 2023, the WHD anticipates issuing a final rule to amend the current method for determining independent contractor status for workers.

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

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

    Employment and Training Administration — Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States 

    The DOL’s Employment and Training Administration (ETA) has moved the “Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States” proposed rule to the list of long-term actions to be taken by the agency, anticipating a release of the NPRM in June 2024. According to the listing in the regulatory agenda, the NPRM will seek to establish “a new wage methodology for setting prevailing wage levels for H-1B/H-1B1/E-3 and PERM programs consistent with the requirements of the Immigration and Nationality Act.”

    The upcoming NPRM will likely amend the Trump administration’s final rule that was scheduled to take effect on November 14, 2022, but was subsequently vacated by a federal court in June 2021. The new proposal will take into consideration the feedback it received in response to a Request for Information (RFI) on data and methods for determining prevailing wage levels “to ensure fair wages and strengthen protections for foreign and U.S. workers.”

    CUPA-HR filed comments in opposition to the Trump administration’s regulations on the issue and in response to the Biden administration’s RFI.

    Department of Education

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

    In October 2023, the Department of Education’s Office for Civil Rights (OCR) plans to release its highly anticipated Title IX final rule. The rulemaking would finalize the June 2022 NPRM to roll back and replace the Trump administration’s 2020 regulations while simultaneously expanding protections against sex-based discrimination to cover sexual orientation, gender identity, and pregnancy or related conditions.

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

    On May 26, the Department of Education published a blog post stating that the release of the anticipated Title IX final rule will be delayed until at least October 2023. The final rule was previously targeted in the Fall 2022 Regulatory Agenda for May 2023. The department stated that they need additional time to review the 240,000 comments they received in response to the Title IX proposed rule.

    Nondiscrimination on the Basis of Sex in Athletics Education Programs or Activities Receiving Federal Financial Assistance

    The Department of Education also plans to release the Title IX final rule for student eligibility in athletic programs in October 2023. The rule would finalize the NPRM that was released by the Department in April 2023.

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

    The NPRM received over 150,000 comments addressing support for and concerns with the NPRM. Again, the Department must review all comments before issuing a final rule to implement these regulations, which may lead to a further delay.

    National Labor Relations Board

    Joint Employer

    In August 2023, the National Labor Relations Board (NLRB) plans to release its anticipated final rule to amend “the standard for determining whether two employers, as defined under the National Labor Relations Act (NLRA), are a joint employer under the NLRA.”

    On September 7, 2022, the NLRB issued an NPRM on the joint employer standard. The NPRM establishes joint employer status of two or more employers if they “share or co-determine those matters governing employees’ essential terms and conditions of employment,” such as wages, benefits and other compensation; work and scheduling; hiring and discharge; discipline; workplace health and safety; supervision; and assignment and work rules. According to the NLRB’s press release, the board “proposes to consider both direct evidence of control and evidence of reserved and/or indirect control over these essential terms and conditions of employment when analyzing joint-employer status.”

    Department of Homeland Security

    U.S. Immigration and Customs Enforcement — Optional Alternative to the Physical Examination Associated With Employment Eligibility Verification (Form I-9) 

    According to the Regulatory Agenda, the Department of Homeland Security (DHS) plans to issue a final rule in August 2023 that would finalize the agency’s proposed rule aiming to “revise employment eligibility verification regulations to allow the secretary to authorize alternative document examination procedures in certain circumstances or with respect to certain employers.”

    On August 18, 2022, the DHS published its NPRM on optional alternative examination practices for employers when reviewing an individual’s identity and employment authorization documents required by the Form I-9, Employment Eligibility Verification. If finalized, the proposed rulemaking would create a framework under which the secretary of Homeland Security could allow alternative options for verifying those documents, such as reviewing the documents via video, fax, or email rather than directly allowing employers and agents to use such alternative examination options. According to the NPRM, the secretary would be authorized to implement the alternative examination options in a pilot program if they determine such procedures would offer an equivalent level of security, as a temporary measure to address a public health emergency declared by the secretary of Health and Human Services, or a national emergency declared by the president.

    CUPA-HR filed comments in response to the DHS NPRM in October 2022. The comments were supportive of the Department moving forward with the NPRM, but cautioned against requiring secondary, in-person review of I-9 documents after virtual inspection and once an employee is in-person on a regular and consistent basis; issuing training for document detection and/or anti-discrimination training that may be offered at a high cost without proper vetting, and requiring institutions to be enrolled in E-Verify to participate in the alternative options.

    On a related noted, on May 4, 2023, the U.S. Immigration and Customs Enforcement (ICE) announced it will provide employers with 30 days to reach compliance with in-person Form I-9 requirements after the COVID-19 flexibilities sunset on July 31, 2023. ICE previously introduced temporary flexibilities in response to the COVID-19 pandemic in March 2020, allowing employers to review employees’ identity and employment authorization documents remotely, rather than in person. This virtual inspection was to be followed by a physical examination within three business days after normal operations resumed. With the new final rule set for earliest release in August 2023, employers will likely have to resume traditional Form I-9 examination practices until the new final rule goes into effect.

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

    In December 2023, the DHS’s United States Citizenship and Immigration Services (USCIS) plans to release an NPRM to “amend its regulations governing H-1B specialty occupation workers and F-1 students who are the beneficiaries of timely filed H-1B cap-subject petitions.” The NPRM will specifically propose to “revise the regulations relating to ‘employer-employee relationship’ and provide flexibility for start-up entrepreneurs; implement new requirements and guidelines for site visits including in connection with petitions filed by H-1B dependent employers whose basic business information cannot be validated through commercially available data; provide flexibility on the employment start date listed on the petition (in limited circumstances); address ‘cap-gap’ issues; bolster the H-1B registration process to reduce the possibility of misuse and fraud in the H-1B registration system, and clarify the requirement that an amended or new petition be filed where there are material changes, including by streamlining notification requirements relating to certain worksite changes, among other provisions.”

    CUPA-HR continues to monitor these regulations and will keep members apprised of any significant updates.



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  • Department of Education Delays Target Release of Title IX Rulemaking to October – CUPA-HR

    Department of Education Delays Target Release of Title IX Rulemaking to October – CUPA-HR

    by CUPA-HR | May 30, 2023

    On May 26, the Department of Education published a blog post stating that the release of the anticipated Title IX final rule will be delayed until at least October 2023. The final rule was previously targeted in the Fall 2022 Regulatory Agenda for May 2023.

    In the blog post, the department states that they need additional time to review the 240,000 comments they received in response to the Title IX proposed rule that was issued in July 2022. The department said that the 240,000 comments are nearly twice the number of comments the department received during the Trump administration’s Title IX rulemaking process, which included the release of a proposed rule in November 2018 and the subsequent final rule in May 2020. The department added that the new target date of October 2023 will be reflected in the upcoming Spring 2023 Regulatory Agenda, which will likely be released in the next month.

    As a reminder, the Biden administration’s Title IX rulemaking rolls back the Trump administration’s 2020 regulations, specifically with respect to its grievance procedures, 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 which we brought attention to the possible impact the proposed regulations could have on how higher education institutions address employment discrimination.

    In addition to the Title IX rulemaking, the blog post also states that the final rule on transgender student eligibility in athletic programs under Title IX will also be delayed until at least October 2023. Released on April 6, the proposed rule establishes that 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 and would instead allow schools the flexibility to develop team eligibility criteria that serves important educational objectives, such as fairness in competition and preventing sports-related injuries.

    CUPA-HR will continue to monitor for updates on the Title IX final rule.



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  • WHD Begins Enforcement of Remedies Provided Under PUMP for Nursing Mothers Act – CUPA-HR

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

    by CUPA-HR | May 1, 2023

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

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

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

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

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



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  • Department of Education Releases Title IX Rulemaking on Transgender Student Eligibility in School Athletics – CUPA-HR

    Department of Education Releases Title IX Rulemaking on Transgender Student Eligibility in School Athletics – CUPA-HR

    by CUPA-HR | April 12, 2023

    On April 6, the U.S. Department of Education released a Notice of Proposed Rulemaking (NPRM) on student eligibility for athletic teams under Title IX. The proposed rulemaking focuses on transgender students’ eligibility to participate on athletic teams as legislation and policies at the federal, state and local levels have been introduced to ban transgender student participation in athletic programs.

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

    The NPRM comes after the Biden administration announced its intention to release such a proposed rule after it excluded language on transgender student eligibility in athletics in its June 2022 Title IX proposed rule. The rule comes as policymakers at the federal, state and local levels have introduced and passed legislation that bans transgender participation on women’s athletic teams. Most recently, the House of Representatives passed H.R. 734, the Protection of Women and Girls in Sports Act, out of the Education and the Workforce Committee, where it now awaits a full floor vote. The bill would prohibit federally-funded education programs or activities to operate, sponsor or facilitate athletic programs or activities that allow individuals of the male sex to participate in programs or activities that are designated for women or girls, defining “sex” as an individual’s reproductive biology and genetics at birth.

    Public comments in response to the NPRM will be due 30 days from the date of publication in the Federal Register. CUPA-HR will work with other higher education associations to fully analyze the NPRM and respond accordingly.



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  • Department of Education’s OCR Issues Resource Documents on Title IX Compliance for Athletic Programs – CUPA-HR

    Department of Education’s OCR Issues Resource Documents on Title IX Compliance for Athletic Programs – CUPA-HR

    by CUPA-HR | March 1, 2023

    On February 17, the Department of Education’s Office for Civil Rights (OCR) issued three resource documents on Title IX compliance for school athletic programs. The first resource document covers support for equal opportunity in school athletic programs generally, while the other two cover Title IX and athletic opportunities at K-12 schools and colleges and universities separately.

    According to the OCR, these documents were designed “to help students, parents, coaches, athletic directors and school officials evaluate whether a school is meeting its legal duty to provide equal athletic opportunity regardless of sex,” and they provide examples of situations that may mean a school is not complying with Title IX requirements. The guidance does not make any changes to existing enforcement procedures for the OCR, rather, it is intended to be used by institutions to ensure that their existing protocols and programs are compliant with Title IX.

    Supporting Equal Opportunity in School Athletic Programs

    The first resource document reiterates Title IX’s prohibition of discrimination on the basis of sex in education programs and activities, including athletic programs, that receive federal funds. It states that Title IX requires schools to effectively accommodate the athletic interests and abilities of their students regardless of sex, and provide equal opportunity in the benefits, opportunities and treatment provided for their athletic teams. It also clarifies that Title IX requires colleges and universities to not discriminate on the basis of sex in the provision of any athletic scholarships or financial assistance to students.

    The resource document included four examples of situations that may surface Title IX concerns at colleges and universities, which are listed below:

    • The men’s teams at a college receives new athletic apparel and gear each year, while the women’s teams must use old apparel and purchase some of their own equipment.
    • Across its entire athletic program, a college awards disproportionately more athletic financial assistance to men than women.
    • A university provides funds for its coaches to recruit athletes for its men’s football and basketball teams because it considers those teams to be “flagship sports.” It provides no funds for coaches to recruit women athletes. As a result, the school has difficulty attracting women to participate in its athletic program.
    • Women are underrepresented in a university’s athletic program compared to their representation in the student body. The university would have to offer 54 additional spots for its women students on existing or new teams for women to have substantially proportionate athletic participation opportunities. Women have expressed an interest in having more teams, and there are women students participating in club sports for which there are no varsity teams. Those club sports include lacrosse, water polo, ice hockey and bowling — all of which have intercollegiate competitions available and are sanctioned by the athletic governing body the university belongs to. Yet, the university has not added a women’s team for many years.

    Title IX and Athletic Opportunities in Colleges and Universities

    The resource document designed specifically for institutions of higher education dives deeper into background information on Title IX, as well as ways that students, coaches, athletic directors and school officials can evaluate a school’s athletic program and whether it’s meeting its legal requirements to provide equal athletic opportunity. With respect to the evaluation, the document guides readers with questions and examples of Title IX compliance with respect to the benefits, opportunities and treatment for men’s and women’s teams; athletic scholarships and financial assistance, and meeting students’ athletics interests and abilities.

    Benefits, Opportunities and Treatment for Men’s and Women’s Teams

    With respect to equivalent benefits, opportunities and treatment for men’s and women’s teams, the resource document lists several questions about an institution’s attempts to provide equal opportunities to both men and women student-athletes. These questions surround the following topics:

    • Equipment and supplies
    • Scheduling games and practice time
    • Travel and daily allowances
    • Coaching
    • Academic tutors
    • Locker rooms, fields, courts and other facilities for practice and competition
    • Medical and training facilities and services
    • Housing and dining services
    • Publicity
    • Recruitment

    The resource document explicitly states that if any of the questions listed under these topics is answered as a “no,” it may indicate a possible Title IX violation.

    Athletic Scholarships and Financial Assistance

    The document also creates questions that may be used to assess a school’s provision of scholarships and athletic financial assistance. The questions help guide users to measure the percentage of women and men participants at their institution and the percentage of scholarship awards provided to women and men, and it lists questions and examples to help compare these percentages. These questions may again point to disparities among programs that could be potential violations of Title IX, but the OCR states that it “will take into account all legitimate, non-discriminatory reasons for disparities provided by the school” if there are disparities present between percentages awarded to men’s and women’s programs.

    Meeting Students’ Athletic Interests and Capabilities

    The resource document refers to the “three-part test” that institutions may use to demonstrate that all Title IX legal requirements are being fulfilled. Schools are only required to use one of three options to show compliance with Title IX, which are detailed in the document and briefly listed below:

    • Option 1: Substantial Proportionality — This option looks to whether the percentage of women and men participants on athletic teams are about the same as, or “substantially proportionate” to, the percentage of women and men enrolled as full-time undergraduates at your school.
    • Option 2: History and Continuing Practice — This option looks to whether your school can show it has a history and continuing (i.e. present) practice of expanding its athletic program to respond to the interests and abilities of women, if women have been underrepresented, or if men have been underrepresented.
    • Option 3: Interests and Abilities of Students — This option asks whether your school can show that — despite the disproportionality — it is otherwise meeting the interests and abilities of the underrepresented sex.

    The resource document states that following longstanding practice for showing Title IX compliance — if an institution is unable to use any of the three options to show compliance with Title IX — may not be meeting legal requirements to provide equal opportunity to participate in athletics based on sex under Title IX.

    Options for Filing Complaints for Title IX Violations

    Both the general support and higher education-specific documents end their guidance with ways in which students, parents, employees and others in the school community may file Title IX complaints through their school’s grievance procedures if they believe their institution is not providing equal athletic opportunity based on sex. The documents first turn readers to their institution’s Title IX coordinator, but also provides the option to file a complaint online with the OCR. It also clarifies that anyone is able to file complaints with the OCR, which may include individuals outside of the school community.

    CUPA-HR will continue to monitor for any updates to Title IX compliance and will keep members apprised of any updates with respect to Title IX law and regulations.



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  • HR and the Courts – January 2023 – CUPA-HR

    HR and the Courts – January 2023 – CUPA-HR

    by CUPA-HR | January 18, 2023

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

    Divided Court of Appeals Rules That Separating Bathrooms By Biological Sex Does Not Violate the Constitution or Title IX — Transgender Student’s Discrimination Claim Denied

    The full 11th U.S. Circuit Court of Appeals (covering Florida, Alabama and Georgia) recently held in a sharply divided 7 to 4 decision that separating school bathrooms by biological sex is constitutional and does not violate Title IX. The majority decision is subject to multiple dissents (Adams v. School Board of St. Johns County, Florida (11th Cir. No. 18-13592, 12/30/22)). The case involved a St. Johns County, Florida, school board, which restricted bathroom use by biological sex, not allowing students who identified with a sex different from their biological sex to use the bathroom of their choice.   

    The majority decision rejected the transgender plaintiff’s reliance on the Supreme Court decision in Bostock v. Clayton County, which held that under federal job discrimination law, sex discrimination includes bias based on gender identity or sexual orientation. The majority decision pointed out that a school setting “is not the workplace,” and Bostock expressly decided not to tackle the issue of sex-segregated locker rooms or bathrooms. The majority concluded that the U.S. has a long history of separating sexes when it comes to the use of public bathrooms, and such sex-based classifications have never necessarily violated the Equal Protection Clause. It is likely that other circuits may decide this issue differently, setting up an ultimate decision on this issue by the Supreme Court.  

    NLRB Expands Damage Remedies Against Employers Who Commit Unfair Labor Practices

    The National Labor Relations Board (NLRB), in a decision applicable to all private colleges and universities in America, recently ruled that it will award damages in addition to back pay and reinstatement to employees who are subject to unfair labor practices (Thryv Inc. (N.L.R.B. Case No. 20-CA-250250, 12/13/22)). The case was brought by the NLRB against Thryv Inc., a software and marketing company, which the NLRB alleged violated the National Labor Relations Act (NLRA) by laying off employees without first bargaining with the union.  

    The NLRB ruled 3 to 2 (with two Republican member dissenters) that its “make-whole” remedies for employees affected by unfair labor practices will include damages that are the “direct and foreseeable pecuniary harm” resulting from an employer’s unfair labor practice, in addition to back pay and reinstatement. For example, this would include out of pocket costs for medical payments that would have been covered by an employer’s health insurance had the employee continued to be employed but for the unlawful termination. 

    Firefighter Loses First Amendment Religious Objection to Being Photographed for ID and Accountability Card

    A Christian firefighter from Bourne, Massachusetts, lost his First Amendment religious claim against his fire department after he was disciplined (suspended for 24 hours and ineligible for pay increases for at least six months) for refusing to be photographed for his ID card and accountability tag that would be attached to his firefighting gear and used at fire scenes (Swartz v. Sylvester (2022 BL 416412, 1st Cir., No. 2101568, 11/21/22)). The firefighter claimed that his religious beliefs precluded him from engaging in acts of self-promotion and that the photos might be used for promotional purposes. 

    The fire chief’s directive came after he became aware that some firefighters had worn ties and others wore t-shirts for their ID and authentication tag photos. The fire chief issued a directive that all firefighters would sit for their photos wearing their dress uniform for consistency. The photos would also be used in a display at the firehouse, be submitted to the media when a firefighter died in the line of duty and might be submitted to the media following a firefighter’s promotion.  

    In rejecting the plaintiff’s claim, the court concluded that the directive was applied uniformly, without exception, was facially neutral and was rationally related to the legitimate government purpose of publicizing the fire department and promoting the integrity of governmental institutions. 

    NLRB General Counsel Concludes That the NCAA Violated the NLRA By Failing to Treat Student-Athlete Basketball and Football Players as Employees

    The NLRB general counsel has concluded that the NCAA is violating the NLRA by failing to treat student-athlete basketball and football players as employees. The decision could eventually lead to the ability of these student-athletes to form labor unions. Absent settlement of the case, the NLRB Los Angeles Regional Office will issue a complaint against the NCAA and likely the Pac-12 Conference and the University of Southern California for failure to treat these student-athletes as employees. The case was brought to the NLRB by the National College Players Association, an advocacy group seeking to organize student-athletes. The final decision as to whether student-athletes are employees rests with the full NLRB, which will eventually address this matter. 

    New York Temporarily Abandons Statute of Limitations on State Law Sex Harassment Claims

    New York state has temporally done away with the statute of limitations on sex abuse claims, giving adult victims of sex abuse one year to file a claim against employers and offenders seeking financial compensation. The Adult Survivors Act, which became effective November 24, 2022, gives victims of alleged sex abuse a one year period to file a claim in New York no matter when the alleged abuse occurred. The new statute is intended to fill the gap left by 2019 legislation, which expanded New York’s statute of limitations on sex abuse cases from one year to 20 years, but did not do so retroactively.  

    Jury Awards Former Softball Coach $800,000 in Damages for Emotional Pain and Mental Anguish in Sex Discrimination Case

    A federal court jury has awarded a former university baseball coach $800,000 in damages for alleged emotional pain and mental anguish in a sex discrimination case in which the former coach alleged she was paid less than male comparators and was suspended from her position because of her sex. She had been suspended from her position following parental complaints about her coaching style. She alleged that a male coach who was the subject of similar parental complaints was treated less severely. The court dismissed her complaint with regard to salary discrimination, but allowed her discriminatory suspension allegations to proceed to a jury trial. The $800,000 jury award is subject to the university’s Motion for Judgment, not on the verdict likely to be filed after a final award is formalized by the federal district court judge (Hall v. Alabama State University (M.D. Ala. No. 16-cv-00593, 12/19/22)).  

    The jury trial proceeded for two days, and the jury concluded that the plaintiff’s gender was a motivating factor in the decision to suspend her.   

    Boston College Trustees Sued in Class-Action Lawsuit Claiming ERISA Violations in Allegedly Allowing “Above Market” Administrative Fees to Be Paid to Investment Adviser Without Competitive Bidding

    A federal district court judge recently denied the motion for summary judgement filed by defendants and allowed a class-action lawsuit to proceed against the trustees at Boston College who were sued for allegedly allowing “above market” record-keeping fees and “excessive” investment-management fees, which plaintiff’s claimed were not properly monitored or assessed through a competitive bidding process. In ruling the motion a “close call,” the judge allowed the lawsuit to proceed to discovery into the institution’s and trustees’ conduct (Sellers v. Trustees of Boston College (2022 BL 461759, D. Mass. No. 1:22-cv-10912, 12/27/22)).

    The plaintiffs also challenged the alleged inadequate performance of certain plan investments. The retirement plans in question cover approximately 3,000 employees and contain over $1.1 billion in assets. In allowing the case to proceed, the judge concluded that the plaintiffs are alleging more than poor performance during a limited time. The plaintiffs are alleging that the institution and trustees were not aware of the historical imprudence of certain investments or recent published court decisions regarding questionable fees and investments in this area.  



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