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Tag: administration
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Trump administration allows immigration arrests at colleges
The acting secretary of the Department of Homeland Security on Tuesday rescinded guidance that prevented immigration arrests at schools, churches and colleges.
Since 1993, federal policy has barred immigration enforcement actions near or at these so-called sensitive areas. The decision to end the policy comes as the Trump administration is moving to crack down on illegal immigration and stoking fears of mass deportations.
“This action empowers the brave men and women in [Customs and Border Protection] and [Immigration and Customs Enforcement] to enforce our immigration laws and catch criminal aliens—including murders and rapists—who have illegally come into our country,” acting DHS secretary Benjamine Huffman said in a statement. “Criminals will no longer be able to hide in America’s schools and churches to avoid arrest. The Trump administration will not tie the hands of our brave law enforcement, and instead trusts them to use common sense.”
Advocates for undocumented people have warned that such a policy change was possible, and some college leaders have said they won’t voluntarily assist in any effort to deport students or faculty solely because of their citizenship status, although they said they would comply with the law. On Wednesday, the Justice Department said it would investigate state and local officials who don’t enforce Trump’s immigration policies.
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Student-Athlete Unionization Efforts Withdrawn Prior to Second Trump Administration
by CUPA-HR | January 21, 2025
Two efforts to extend collective bargaining rights to college athletes have been withdrawn in recent weeks in anticipation of the Trump administration taking control of the National Labor Relations Board (NLRB).
On December 31, 2024, the Dartmouth men’s basketball team withdrew their petition to unionize. Members of the team overwhelmingly voted in March 2024 to join the Service Employees International Union (SEIU). The vote came one month after an NLRB regional director ruled that the players were employees of the college and were thus eligible to unionize.
Additionally, on January 10, 2025, the National College Players Association (NCPA) withdrew its case against the University of Southern California, the Pac-12 Conference and the NCAA. In the original complaint, the NCPA claimed the three plaintiffs violated the National Labor Relations Act (NLRA) by misclassifying the student-athletes as non-employees. They also argued all three plaintiffs were joint employers of the student-athletes.
Both of these efforts were pursued after NLRB General Counsel Jennifer Abruzzo issued a memorandum arguing that student-athletes are employees under the NLRA and are therefore afforded all statutory protections as prescribed under the law. The incoming administration will likely rescind the memorandum, halting or at least hindering unionization efforts among student-athletes.
The decision to withdraw both petitions is likely meant to avoid an unfavorable outcome and precedent from a soon-to-be Republican-controlled NLRB. The SEIU explained in a statement following their withdrawal request that they sought “to preserve the precedent set by this exceptional group of young people on the men’s varsity basketball team.”
CUPA-HR will keep members apprised of any updates related to student-athlete employment classification and unionization.
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Biden administration opened ‘new chapter’ on college financing, Kvaal says
This audio is auto-generated. Please let us know if you have feedback.James Kvaal is the outgoing U.S. under secretary of education. His tenure ends with the inauguration of Donald Trump on Jan. 20.
After decades of an accelerating student debt crisis, Joe Biden is the first president to use every available tool to alleviate the burden of borrowing for college. He will be remembered for turning the page on the worst consequences of the country’s failed experiment with debt-financed college and beginning a new chapter on how to pay for higher education.
For the past two generations, increasing reliance on student debt seemed like an easy solution to paying for college. Loan terms were set at no cost to the government, and students were expected to easily earn enough to pay the loans back following graduation.
But it didn’t work out that way. One in three borrowers don’t graduate, leaving them with debt but no degree. Because interest piles up so fast, more than 20 million people owe more than they borrowed. Before the pandemic, more than a million people default on their college loans every year.
Some critics say that student debt affects borrowers of all income levels equally. But hair stylists, massage therapists and other workers earning modest wages often went into debt to get the training, certificates or degrees needed for their jobs. And debt is not just a problem for the roughly 43 million people with student loans. It hurts their families and communities because it stands in the way of economic security, homeownership and potential new businesses.
James Kvaal, the U.S. under secretary of education under President Joe Biden
Permission granted by U.S. Department of Education
Others say we should eliminate student debt altogether. But until Congress and states invest in lower tuitions and larger scholarships — as President Biden has proposed — loans will remain essential for many low-income and middle-class students.
The COVID-19 pandemic exacerbated these festering problems. Nearly 3 of every 5 students lacked adequate access to food or housing during the pandemic, putting them at risk of dropping out. And most borrowers of modest means expected they couldn’t afford loan payments.
By pausing payments and interest on federal loans, the administration saved the average borrower in repayment more than $3,800 and helped them persevere through the national emergency. President Biden also fought partisan opponents in court for up to $20,000 in one-time relief for borrowers — all the way to the U.S. Supreme Court.
While the pause gave borrowers a break, the U.S. Department of Education worked on long-term solutions.
First, we focused on people who were owed forgiveness but were blocked by bureaucracy.
For example, only 7,000 people had ever received Public Service Loan Forgiveness from the program’s creation in 2007 to when President Biden took office in 2021. Many public servants planned their careers around this benefit only to learn too late that they had the wrong type of loan or had spent years in the wrong repayment plan. Now, more than 1 million borrowers have received the relief they earned.
We also kept promises to borrowers with permanent disabilities and those who were cheated by colleges. In total, we have approved more than 5 million people for loan relief. Many more borrowers are set to benefit in the years to come.
I’ve heard countless stories about what this life-changing relief has meant for Americans. They say they are finally able to plan for retirement, pay off medical expenses, or even have more children.
At the same time, not all of our efforts succeeded. Some 40 million borrowers and their families continue to feel the weight of both the Supreme Court decision to deny one-time relief and litigation hindering our ability to help borrowers experiencing hardship.
Second, to help people with low incomes and high debts, the Biden administration created Saving on a Valuable Education, or SAVE — an income-driven repayment plan that could cut monthly payments in half for eligible borrowers. People making payments would finally see their balances going down, instead of up due to ballooning interest.
SAVE served almost 8 million people before partisan lawsuits held it up, and it’s now under judicial review. The SAVE plan is similar to other repayment plans the department has created over the past 30 years, and we continue to defend it in court.
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Biden administration discharges $4.5B in loans for Ashford students
The Education Department is discharging any remaining loans for more than 260,000 borrowers who attended Ashford University and will move to bar a key executive at Ashford’s former parent company from the federal financial aid system, the agency announced Wednesday.
The agency’s action, totaling $4.5 billion, builds on an August 2023 decision to forgive $72 million in loans for 2,300 former Ashford students after finding that the college repeatedly lied to them about the cost, time requirement and value of its degree program. The discharges through the department’s borrower-defense program are among the largest in the program’s history. Wiping out the loans for Corinthian College students cost the department $5.8 billion, while the discharges for former ITT Technical Institute students totaled $3.9 billion.
The University of Arizona acquired the predominantly online institution Ashford in 2020 and rebranded it as the University of Arizona Global Campus. At first, the university partnered with Zovio Inc., a publicly traded company that owned Ashford, to run the rebranded entity but decided in 2022 to buy Zovio’s assets. The University of Arizona has since moved to completely absorb the online campus.
Borrowers who attended Ashford from March 1, 2009, through April 30, 2020, are eligible for relief.
“Numerous federal and state investigations have documented the deceptive recruiting tactics frequently used by Ashford University,” said U.S. under secretary of education James Kvaal in a statement. “In reality, 90 percent of Ashford students never graduated, and the few who did were often left with large debts and low incomes. Today’s announcement will finally provide relief to many students who were harmed by Ashford’s illegal actions.”
The Biden administration has forgiven $34 billion via borrower defense for 1.9 million borrowers, the department said.
But forgiving loans for Ashford students isn’t enough for the department. Officials proposed a governmentwide debarment of Andrew Clark, who in 2004 founded Bridgepoint Education, which later became Zovio. He stepped down in March 2021.
The debarment would mean Clark could no longer be employed in any role at any institution that receives funding from Title IV of the Higher Education Act of 1965, which authorizes federal financial aid programs, for at least three years.
“The conduct of Ashford can be imputed to Mr. Clark because he participated in, knew, or had reason to know of Ashford’s misrepresentations,” the department said in a news release. “Mr. Clark not only supervised the unlawful conduct, he personally participated in it, driving some of the worst aspects of the boiler-room-style recruiting culture.”
The department’s Office of Hearings and Appeals has final say on whether to debar Clark, who can contest the decision.
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Biden Administration Releases Final Regulatory Agenda of Their Term
by CUPA-HR | January 7, 2025
On December 13, the Biden administration issued their Fall 2024 Regulatory Agenda, which provides insights on regulatory and deregulatory activity under development across more than 60 federal departments, agencies and commissions. The Fall 2024 Regulatory Agenda is the second agenda published this year, following the Spring 2024 Regulatory Agenda released in July.
Given the upcoming change in administration, the Fall 2024 Regulatory Agenda is the last that will be released by the Biden administration. The Trump administration will seek to change many regulatory priorities after taking office, meaning that regulations intended to be released after the Biden administration leaves office will change or be withdrawn altogether. As such, the regulations and target dates highlighted below are not final and subject to change once the Trump administration takes office.
Department of Labor
Heat Illness Prevention in Outdoor and Indoor Work Settings
The Biden administration’s regulatory agenda reminds interested stakeholders of the Department of Labor (DOL) Occupational Safety and Health Administration (OSHA)’s notice of proposed rulemaking on heat injury and illness prevention measures for both indoor and outdoor work settings. The comment period is open through January 14, 2025.
If finalized, the rule would impact all workplace settings under OSHA’s jurisdiction where employees are exposed to heat indexes that equal or exceed 80 degrees, regardless of whether the work is performed in an indoor or outdoor setting. All covered employers would need to circulate heat injury and illness prevention plans (HIIPPs), implement measures for providing breaks and water to employees exposed to high heat, and train employees on heat-related risks and illness prevention, among other provisions.
Given the comment period’s closing date, the incoming Trump administration will be tasked with next steps for the heat rule upon taking office. Trump nominated Lori Chavez-DeRemer to serve as DOL secretary, where she will oversee future actions taken with respect to heat injury and illness regulations. While she has not publicly weighed in on the current proposal, she co-led a report during her time in Congress that recommended the creation of a federal heat standard for nonimmigrant agricultural workers. She is also from Oregon, which has already implemented its own state heat illness prevention standard. As such, she may be responsive to moving forward with a heat injury and illness rule if confirmed as DOL secretary, though what those regulations may include remains to be seen.
Equal Employment Opportunity Commission
Recordkeeping Requirements for PWFA Charge-Related Records
The regulatory agenda includes a reminder that the Equal Employment Opportunity Commission (EEOC) published a notice of proposed rulemaking to extend existing recordkeeping requirements under EEO law to include charges under the Pregnant Workers Fairness Act (PWFA). The NPRM was published on November 21, 2024, and the comment period runs through January 21, 2025.
The PWFA was signed into law in December 2022, and the EEOC subsequently finalized implementing regulations for the PWFA in April 2024. The lengthy regulations provide guidance to employers and workers on people covered under the law and regulations, the types of limitations and medical conditions covered, and how to request reasonable accommodations.
According to the regulatory agenda, the new notice of proposed rulemaking sets out recordkeeping requirements for institutions of higher education relating to PWFA charges. The regulations do not require the creation of any records, but they do require that all covered entities (including higher ed institutions) maintain all employment and personnel records they make or keep in the regular course of business for a period of one year and all records relevant to a PWFA charge. These requirements are identical to the recordkeeping requirements related to Title VII of the Civil Rights Act, Americans with Disabilities Act (ADA), and Genetic Information Nondiscrimination Act (GINA) charges.
Federal Acquisition Regulation
Pay Equity and Transparency in Federal Contracting
In January 2025, the Department of Defense (DOD), General Services Administration (GSA), and NASA anticipate releasing a final rule to amend the Federal Acquisition Regulation on pay equity and transparency in federal contracting.
The joint agencies published a pay equity and transparency notice of proposed rulemaking in January 2024, in which the agencies propose to amend the Federal Acquisition Regulation to implement a government-wide policy that would:
- prohibit contractors and subcontractors from seeking and considering job applicants’ previous compensation when making employment decisions about personnel working on or in connection with a government contract (“salary history ban”), and
- require these contractors and subcontractors to disclose the compensation to be offered on job announcements (“compensation disclosure” or “pay transparency”).
Although the agencies are targeting January 2025 for release, the final rule has not yet been sent to the Office of Information and Regulatory Affairs (OIRA) for review prior to publication. All regulations are required to be reviewed by OIRA before they are published for the public, and review typically lasts 30-60 days after the regulation is received. Given the short time left, it appears unlikely that the rule will be published before the end of the Biden administration’s term. It is unknown if the Trump administration will move forward with this rule or seek to withdraw it.
Department of Homeland Security
Modernizing H-1B Requirements and Oversight and Providing Flexibility in the F-1 Program
The Fall 2024 Regulatory Agenda shows that the Department of Homeland Security aimed for a December 2024 release of additional regulations to modernize the H-1B program. DHS met this timeline, publishing a final rule on December 18.
The final rule included several noteworthy provisions that addressed concerns raised by CUPA-HR in comments responding to the October 2023 proposed rule, including a modification of the definition and criteria for H-1B specialty occupations.
The rule also codifies DHS’s current policy to give deference to prior determinations when adjudicating petitions involving the same party and facts (known as the “deference policy”), eliminates the itinerary requirement in the Form I-129, expands the H-1B cap exemptions for nonprofit and governmental research organizations, enhances cap-gap protections for F-1 students transitioning to H-1B status, and strengthens the USCIS site-visit program.
The final rule takes effect on January 17, 2025, just days before the next presidential inauguration. While it is unclear if the incoming Trump administration will seek to modify or roll back the rule, the codification of key provisions, such as the deference policy, makes them more difficult to rescind without formal rulemaking.
Department of Education
Discrimination Based on Shared Ancestry or Ethnicity
Keeping with the date set in the Spring 2024 Regulatory Agenda, the Department of Education’s Office for Civil Rights (OCR) originally targeted December 2024 for the release of a notice of proposed rulemaking to amend Title VI of the Civil Rights Act of 1964 and OCR’s enforcement responsibilities for cases involving discrimination based on shared ancestry or ethnic characteristics. OCR is issuing this in response to a 2019 Trump executive order and a 2021 Biden executive order.
The proposed rulemaking has become a higher priority for OCR, given the recent political activity on campus related to the Israel-Hamas war and related scrutiny from Congressional Republicans of higher education’s response to protests on campus. OCR explains the need for this rulemaking by stating that they have “received complaints of harassment and assaults directed at Jewish, Muslim, Hindu and other students based on their shared ancestry or ethnicity.”
OCR missed the December target date, and the rule has not yet been sent to OIRA for review prior to publication. Given the short amount of time the Biden administration has before the end of its term, it seems unlikely that this rule will be published before the Trump administration takes office. It is unknown if and how the Trump administration would move forward with regulations on the same issue, though they may seek to publish a proposal given the first Trump administration’s 2019 executive order on combatting antisemitism.
In the Fall 2024 Regulatory Agenda, OCR kept its rule to finalize Title IX requirements related to transgender students’ participation in athletic programs to its “long-term actions” list, but the Biden administration subsequently withdrew it on December 20, 2024, halting all efforts to finalize the rule.
As a reminder, the April 2023 proposed rule recommended language that would prohibit schools receiving federal funding from adopting or applying a one-size-fits-all ban on transgender student participation on teams consistent with their gender identity.
The Trump administration is likely to reverse the Biden administration’s Title IX regulations that expand protections to individuals facing discrimination on the basis of sexual orientation and gender identity. Trump and Republicans also spoke of bans on transgender women’s participation in women’s sports during the 2024 election campaign. As such, the Trump administration could choose to issue a separate Title IX rule regarding transgender students’ participation in athletic programs, though it remains to be seen if they will do so.
Looking Ahead
As mentioned above, the target dates and regulations themselves are likely to change once the Trump administration takes office. The public will not have insight into the anticipated regulatory and deregulatory activity under the Trump administration until the Spring 2025 Regulatory Agenda is released, which will likely be sometime in late spring or early summer 2025. CUPA-HR will continue to keep members apprised of all relevant regulatory activity as it develops throughout the year.
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Biden administration finalizes distance ed, TRIO rules
The Biden administration’s regulations changing how colleges are held accountable and adding new requirements for institutions to access federal financial aid are now in place, though legal challenges loom.
Demetrius Freeman/The Washington Post/Getty Images
Colleges will have to submit to the federal government new data on their distance education programs under a batch of new rules the Biden administration finalized Monday.
The rules, which will take effect July 1, 2026, will likely be the president’s last package of new regulations for colleges and universities before Trump takes office Jan. 20.
The new regulations carry out Biden’s plan to increase federal oversight of online programs, but the final version doesn’t go as far as the president initially intended After receiving significant pushback from online education lobbyists, the Education Department conceded, backing off a plan to disallow asynchronous options for clock-hour courses or require colleges to take attendance in online classes.
The package does, however, still include rules that require colleges to report more data on enrollment in distance education classes, which include those offered online or via correspondence. Higher ed institutions won’t have to begin submitting the data until July 1, 2027.
“Online learning can reach more students and sometimes at a lower cost to students, but what we know about the outcomes of online education compared to traditional in-person instruction is woefully inadequate,” Under Secretary James Kvaal said in the release. “The new reporting in this final rule will help the department and the public better assess student outcomes at online programs and help students make informed choices.”
The final rule also included technical changes to federal college prep programs known as TRIO. But the department decided not to move forward with a plan to open eligibility to some TRIO programs to undocumented students—a long-sought goal of some TRIO directors and advocates, as well as higher education associations.
Distance Education
But one of the most controversial parts of the rule for colleges and universities was whether Biden would decide to end any asynchronous options for students in online clock-hour programs, which are typically short-term workforce training programs that lead to a certificate.
A Trump-era rule allowed asynchronous learning activities—such as watching a prerecorded video—to count toward the required number of credits in short-term clock-hour programs. But the department said in its proposal that because of the hand-on nature of many clock-hour programs, the change often results in a “substandard education” that “puts students and taxpayers at risk.”
Hundreds of professors and higher education groups disagreed. Some, particularly those representing for-profit programs, argued in public comments that the proposal exceeded the department’s authority and would burden institutions. Others said the new rules reflected an antiquated mindset about college modality, arguing that disallowing asynchronous options could limit access for students who benefit from the flexibility that online education provides.
While the department decided not to end asynchronous distance ed programs, the agency intends to keep a close eye on the courses.
“The department refined these final rules based upon extensive public comment on a notice of proposed rulemaking published over the summer,” department officials said in a news release. “However, we remind institutions that asynchronous clock hours cannot be used for homework and that there must be robust verification of regular and substantive interaction with an instructor.”
No Expanded TRIO
Although the decision not to expand eligibility for TRIO has fewer implications for colleges, the move is a blow for the TRIO directors and immigration equity advocates who have been working for years to open up the program.
Miriam Feldblum, executive director of the Presidents’ Alliance on Higher Education and Immigration, told Inside Higher Ed that nearly 100,000 undocumented students graduate from high school each year, many of whom could benefit from TRIO services.
But Republicans opposed the idea. Six GOP members of Congress, including Virginia Foxx, a North Carolinian and former chair of the House education committee, blasted the concept in a letter to Secretary Miguel Cardona in August.
“The proposed expansion is a blatant attempt to provide additional taxpayer-funded services to those not seeking citizenship in the name of reducing ‘burden.’ The department’s proposed expansion will stretch funding thin and risk those currently eligible for TRIO,” they wrote.
Some college administrators and TRIO directors in red states are worried about the potential political backlash Biden’s new regulation could cause for their programs.
“The fighter in me thinks that this is a tough time to go to battle and have an unforced error or a target on our backs and [on] TRIO, given the contentious nature of immigration policy right now,” Geoffrey Garner, a TRIO program director from Oregon, said in at January 2024 advisory committee meeting. “We just think right now is not the best time for this proposal, as much as it breaks my heart to say that out loud.”
That advisory committee ended up backing the changes to expand some TRIO programs to undocumented students.
Education Department officials said its decision wasn’t due to political tensions. Rather, they said the proposal “was too narrow … in scope of additional populations to be served.”
Under the department’s proposed rule, high school students who aren’t citizens or permanent residents could qualify for Upward Bound, Talent Search and Educational Opportunity Centers but not Student Support Services or the McNair Scholars Program.
“An expansion of student eligibility under only certain TRIO programs would create confusion, as many grantees administer grants under more than one TRIO program,” officials wrote in the final rule. “Eligibility for only certain TRIO programs would increase administrative burden by requiring grantees to deny similarly situated noncitizens from participating under certain TRIO programs, but not others.”
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Higher education in England needs a special administration regime
Extra government funding for the higher education sector in England means the debate about the prospect of an HE provider facing insolvency and a special administration regime has gone away, right?
Unfortunately not. There is no additional government funding; in fact the additional financial support facilitated by the new Labour government so far is an increase to tuition fees for the next academic year for those students that universities can apply this to. It is estimated that the tuition cost per student is in excess of £14K per year, so the funding gap has not been closed. Add in increased National Insurance contributions and many HE providers will find themselves back where they are right now.
It is a problem that there is no viable insolvency process for universities. But a special administration regime is not solely about “universities going bust.” In fact, such a regime, based on the existing FE special administration legislation, is much more about providing legal clarity for providers, stakeholders and students, than it is about an insolvency process for universities.
Managing insolvency and market exit
The vast majority of HE providers are not companies. This means that there is a lack of clarity as to whether current Companies and Insolvency legislation applies to those providers. For providers, that means that they cannot avail themselves of many insolvency processes that companies can, namely administration, company voluntary arrangements and voluntary liquidation. It is debatable whether they can propose a restructuring plan or be wound up by the court, but a fixed charge holder can appoint receivers over assets.
Of these processes, the one most likely to assist a provider is administration, as it allows insolvency practitioners to trade an entity to maximise recoveries from creditors, usually through a business and asset sale.
At best therefore, an HE provider might be able to be wound up by the court or have receivers appointed over its buildings. Neither of these two processes allows continued trading. Unlike administration, neither of these processes provides moratorium protection against creditor enforcement either. They are not therefore conducive to a distressed merger, teach out or transfer of students on an orderly basis.
Whilst it is unlikely that special administration would enable survival of an institution, due to adverse PR in the market, it would provide a structure for a more orderly market exit, that does not currently exist for most providers.
Protections for lenders
In addition to there being no viable insolvency process for the majority of HE providers, there is also no viable enforcement route for secured lenders. That is a bad thing because if secured lenders have no route to recovering their money, then they are not going to be incentivised to lend more into the sector.
If government funding is insufficient to plug funding gaps, providers will need alternative sources of finance. The most logical starting point is to ask their existing lenders. Yes, giving lenders more enforcement rights could lead to more enforcements, but those high street lenders in the sector are broadly supportive of the sector, and giving lenders the right to do something is empowering and does not necessarily mean that they will action this right.
Lenders are not courting the negative press that would be generated by enforcing against a provider and most probably forcing a disorderly market exit. They are however looking for a clearer line to recovery, which, in turn, will hopefully result in a clearer line to funding for providers.
Protections for students
Students are obviously what HE providers are all about, but, if you are short of sleep and scour the Companies and Insolvency legislation, you will find no mention of them. If an HE provider gets into financial distress, then our advice is that the trustees should act in the best interest of all creditors. Students may well be creditors in respect of claims relating to potential termination of courses and/or having to move to another provider, potentially missing a year and waiting longer to enter the job market.
However, the duty is to all creditors, not just some, and under the insolvency legislation, students have no better protection than any other creditor. Special administration would change that. The regime in the FE sector specifically provides for a predominant duty to act in the best interest of students and would enable the trustees to put students at the forefront of their minds in a time of financial distress.
A special administration regime would therefore help trustees focus on the interest of students in a financially distressed situation, aligning them with the purposes of the OfS and charitable objects, where relevant.
Protections for trustees
Lastly, and probably most forcefully, a special administration regime would assist trustees of an HE provider in navigating a path for their institution in financial distress. As touched on above, it is not clear, for the vast majority of HE providers, whether the Companies and Insolvency legislation applies.
It is possible that a university could be wound up by the court as an unregistered company. If it were, then the Companies and Insolvency legislation would apply. In those circumstances, the trustees could be personally liable if they fail to act in the best interest of creditors and/or do not have a reasonable belief that the HE provider could avoid an insolvency process.
Joining a meeting of trustees to tell them that they could be personally liable, but it is not legally clear, is a very unsatisfactory experience; trust me, this is not a message they want to hear from their advisors.
A special administration regime, applying the Companies and Insolvency legislation to all HE providers, regardless of their constitution or whether they are incorporated, would allow trustees to have a much clearer idea of the risks that they are taking and the approach that they should follow to protect stakeholders.
In the event a special administration was to be brought in, we would hope it would not need to be applied to a market exit situation. Its real value, however, is in bringing greater legal clarity for lenders and trustees and more protection for students, in the current financial circumstances that HE providers find themselves in.
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Biden Administration Releases Spring 2024 Regulatory Agenda – CUPA-HR
by CUPA-HR | July 11, 2024
On July 5, the Biden administration released the Spring 2024 Unified Agenda of Regulatory and Deregulatory Action (Regulatory Agenda), providing insights on regulatory and deregulatory activity under development across more than 60 federal departments, agencies and commissions. The Spring 2024 Regulatory Agenda is the first of two that will be released during the calendar year, and it sets target dates for regulatory actions in the coming months.
CUPA-HR’s government relations team reviews each Regulatory Agenda that is released and has put together the following list of noteworthy regulations included in the current edition.
Department of Education
The Department of Education’s Office for Civil Rights (OCR) is targeting December 2024 for the release of a Notice of Proposed Rulemaking (NPRM) to amend Title VI of the Civil Rights Act of 1964 and OCR’s enforcement responsibilities for cases involving discrimination based on shared ancestry or ethnic characteristics. OCR is issuing this NPRM in response to a 2019 Trump Executive Order (EO) and a 2021 Biden EO.
The NPRM has become a higher priority for OCR, given the recent political activity on campus related to the war in Gaza and related scrutiny from Congressional Republicans of higher education’s response to protests on campus. In the Regulatory Agenda announcement, OCR explains the need for this rulemaking by stating that they have “received complaints of harassment and assaults directed at Jewish, Muslim, Hindu and other students based on their shared ancestry or ethnicity.”
According to the Regulatory Agenda, the Biden administration has pushed its final rule on transgender students’ participation in athletic programs to its “long-term actions,” with an undetermined date for when the final rule will be published. In the Fall 2023 Regulatory Agenda, the final rule was previously targeted for March 2024.
OCR released an NPRM on this topic 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 explained 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 move to push the final rule to “long-term actions” with an undetermined publication date is likely a result of recent challenges to the Biden administration’s Title IX final rule and the upcoming election. Shortly after the Title IX rule was published, over two dozen states joined lawsuits challenging the regulations, with many citing the inclusion of protections for gender identity and sexual orientation as top concerns with the final rule. Since then, the Title IX final rule has been blocked from going into effect on August 1 in 14 states.
Federal Acquisition Regulation (FAR)
Pay Equity and Transparency in Federal Contracting
In December 2024, the Department of Defense (DOD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA) anticipate releasing a final rule to amend the Federal Acquisition Regulation (FAR) on pay equity and transparency in federal contracting.
The joint agencies published a pay equity and transparency NPRM in January 2024. In the NPRM, the agencies propose to amend the FAR to implement a government-wide policy that would:
- prohibit contractors and subcontractors from seeking and considering job applicants’ previous compensation when making employment decisions about personnel working on or in connection with a government contract (“salary history ban”), and
- require these contractors and subcontractors to disclose on job announcements the compensation to be offered (“compensation disclosure” or “pay transparency”).
As part of its justification for publishing the NPRM, the proposal noted that 21 states, 22 localities, and Washington, D.C., have put bans into place that prohibit employers from asking job applicants for their salary, and 10 states have pay transparency laws in place, with several other states working toward implementing such laws.
Department of Homeland Security
According to the Regulatory Agenda, the Department of Homeland Security’s U.S. Citizenship and Immigration Services (USCIS) anticipates releasing at least one more final rule to modernize the H-1B and F-1 visa programs in December 2024.
In October 2023, USCIS issued an NPRM to simplify the application process for H-1B visas, increase the program’s efficiency, and strengthen the program’s integrity measures. In February 2024, USCIS issued a final rule to implement a new beneficiary-centric selection process for H-1B registrations, but it did not finalize all of the provisions that were originally included in the NPRM. When publishing the February 2024 final rule, DHS indicated that it planned to publish a separate final rule to address the remaining aspects from October’s proposed rule. The separate final action listed in the Spring Regulatory Agenda will likely be the remainder of the provisions from the NPRM.
CUPA-HR will keep members apprised of updates to these regulations and additional policies as they are introduced.
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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
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.
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.
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
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.
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
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
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.
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.
