Tag: administration

  • Biden administration finalizes distance ed, TRIO rules

    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

    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

    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

    Office for Civil Rights – Discrimination Based on Shared Ancestry or Ethnicity in Response to EO 13899 on Combating Anti-Semitism and EO 13985 on Advancing Racial Equity and Support for Underserved Communities

    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.”

    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

    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:

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

    U.S. Citizenship and Immigration Services – Modernizing H-1B Requirements and Oversight and Providing Flexibility in the F-1 Program, and Program Improvements Affecting Other Nonimmigrant Workers

    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

    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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  • DOL Wage and Hour Division Publishes First Opinion Letter Under Biden Administration, Regarding FMLA Leave – CUPA-HR

    DOL Wage and Hour Division Publishes First Opinion Letter Under Biden Administration, Regarding FMLA Leave – CUPA-HR

    by CUPA-HR | February 21, 2023

    On February 9, the Department of Labor’s Wage and Hour Division (WHD) issued an opinion letter stating that employees with chronic serious health conditions may use Family and Medical Leave Act (FMLA) leave to reduce work hours indefinitely. The WHD opinion letters serve as a means by which the public can develop a clearer understanding of what FMLA compliance entails. This particular letter is the first issued by the Biden administration.

    The letter from the WHD and Acting Administrator Jessica Looman comes in response to an employer’s letter asking whether “an employee may use FMLA leave to limit their work schedule for an indefinite period of time if the employee has a chronic serious health condition and a healthcare provider certifies that the employee has a medical need to limit their schedule.” The question only applies to employees who are regularly scheduled to work more than eight hours per day.

    The opinion letter specifies that if an employee is regularly scheduled to work more than eight hours per day but has an FMLA-qualifying condition that grants them to take FMLA leave, then the employee is entitled to use the 12 weeks of FMLA leave to reduce their work hours to eight hours per day. It adds that an employee may indefinitely reduce their work hours so long as they don’t surpass the 12 weeks of FMLA leave in a 12-month period that they are entitled to under the law.

    The letter also addresses concerns from the employer that the need for a work day limited to eight hours may be “better suited” as a reasonable accommodation granted under the Americans with Disabilities Act (ADA). The letter states that the requirements and protections of the FMLA and ADA are separate and distinct, and that employees may be entitled to use protections granted under both laws at the same time. It further states that an employee who has exhausted all of the afforded FMLA leave for a 12-month period may have additional rights granted under the ADA to continue to work at the reduced level, but it clarifies that the WHD does not “interpret or provide any advice for” the ADA and its requirements.

    Finally, the letter states that employees are entitled to the equivalent of 12 standard workweeks of FMLA leave, which may be more than 480 hours (equivalent to working 40 hours per week for 12 weeks) if the regular schedule of the employee is greater than 40 hours per week. The letter uses an example of an employee regularly working 50 hours per week, in which case the employee would be entitled to 600 hours of FMLA leave.

    It’s worth noting that the content of the letter is consistent with long-standing guidance and enforcement of the FMLA. The letter may draw increased attention to the issue, however, since the letter is the first provided by the Biden administration’s WHD.

    CUPA-HR will continue to monitor for any future WHD opinion letters and will keep members apprised of any significant updates in the future.



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  • Biden Administration Releases Fall 2021 Regulatory Agenda – CUPA-HR

    Biden Administration Releases Fall 2021 Regulatory Agenda – CUPA-HR

    by CUPA-HR | January 10, 2022

    On December 10, the Biden administration issued the Fall 2021 Unified Agenda of Regulatory and Deregulatory Actions (Regulatory Agenda), providing the public with insights on what various federal agencies expect to work on in terms of regulatory activity in the near- and long-term.

    In an effort to keep members apprised of upcoming noteworthy regulatory actions, CUPA-HR has read through the Regulatory Agenda and has flagged the following proposed activity:

    Department of Labor

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

    In April 2022, the Department of Labor (DOL)’s Wage and Hour Division plans to issue a Notice of Proposed Rulemaking (NPRM) addressing overtime pay requirements for certain “white-collar” employees, including executive, administrative, and professional employees, currently exempt from the requirements under the Fair Labor Standards Act (FLSA). According to the Regulatory Agenda, one of the goals of the NPRM would be “to update the salary level requirement of the section 13(a)(1) exemption [under the FLSA].”

    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, in September 2019, DOL issued a new final rule 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 it remains in effect today.

    DOL’s Statement of Regulatory Priorities, a component of the fall Regulatory Agenda that presents additional information about the most significant regulatory activities planned for the coming year, states that this proposed update will “ensure that middle class jobs pay middle class wages, extending important overtime pay protections to millions of workers and raising their pay.”  Given this statement, it is likely that we will see the Biden administration’s DOL attempt to increase the salary level in the NPRM to something closer to the Obama administration’s proposed level, if not higher.

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

    In March 2022, DOL’s Employment and Training Administration (ETA) plans to issue a NPRM 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 proposal 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, which is included in the Department’s Statement of Regulatory Priorities 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.

    Occupational Safety and Health Administration — Improve Tracking of Workplace Injuries and Illnesses

    According to the Regulatory Agenda, the Biden administration’s Occupational Safety and Health Administration (OSHA) plans to release a NPRM to restore provisions of the May 2016 “Improve Tracking of Workplace Injuries and Illnesses” final rule. The Regulatory Agenda set December 2021 as the target date for release, but as of early January, the regulation is still pending review at the Office of Information and Regulatory Affairs.

    The proposal seeks “to amend [OSHA’s] recordkeeping regulation to restore the requirement to electronically submit to OSHA information from the OSHA Form 300 (Log of Work-Related Injuries and Illnesses) and OSHA Form 301 (Injury and Illness Incident Report) for establishments that meet certain size and industry criteria.” In the Regulatory Agenda, OSHA notes that the current regulations only require electronic submissions from the OSHA Form 300A (Summary of Work-Related Injuries and Illnesses), as the Trump administration’s 2019 final rule rescinded the requirements to electronically submit the OSHA Form 300 and OSHA Form 301.

    National Labor Relations Board

    Joint Employer

    In February 2022, the National Labor Relations Board (NLRB) is planning to release a NPRM to potentially amend the standard determining when two employers may be considered joint employers under the National Labor Relations Act. The new standard will revise the 2020 Trump Administration’s final rule, which reversed the Obama-era NLRB decision in the 2015 Browning-Ferris Industries case and established that an entity can only be a joint employer if it actually exercises control over the essential terms and conditions of another employer’s employees. While details of the Democratic-majority NLRB’s NPRM on joint employer status are up in the air, we would expect them to revise the current standard to look something more like the Obama-era decision.

    Department of Education

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

    In April 2022, the Department of Education is planning to release a NPRM to amend the “regulations implementing Title IX (…) consistent with the priorities of the Biden-Harris administration,” such as the priorities set forth in Executive Order (EO) 13988, “Preventing and Combating Discrimination on the Basis of Gender Identity and Sexual Orientation” and EO 14021, “Guaranteeing an Educational Environment Free from Discrimination on the Basis of Sex, Including Sexual Orientation and Gender Identity.” This NPRM will revise the amendments the Trump administration made through the 2020 Title IX final rule.

    The Department of Education highlighted this new rulemaking in their Statement of Regulatory Priorities. The addition of the rulemaking to the priorities document and the accelerated expected release date of April 2022 from May 2022 as stated in the Spring 2021 Regulatory Agenda indicate that the agency is likely considering this as one of the top regulatory priorities above other proposed actions.

    Department of Homeland Security

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

    According to the Regulatory Agenda, the Department of Homeland Security (DHS)’s United States Citizenship and Immigration Services (USCIS) plans to release a NPRM in May 2022 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.”

    ICE — Optional Alternative to the Physical Examination Associated With Employment Eligibility Verification (Form I-9)

    According to the Regulatory Agenda, DHS is planning to issue a NPRM in June 2022 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.”

    Since the outset of the COVID-19 pandemic, DHS has provided temporary flexibility in the Form I-9 verification process to allow for remote inspection of Form I-9 documents in situations where employees work exclusively in a remote setting due to COVID-19-related precautions. While that guidance is only temporary, DHS issued a Request for Public Input (RPI) on October 26, 2021 to determine whether those flexibilities should be kept in place permanently. It is possible that DHS will use that feedback to develop and implement this NPRM.

    CUPA-HR has engaged with DHS on the Form I-9 flexibilities through the pandemic. In December, CUPA-HR sent a letter to DHS requesting the Form I-9 flexibilities be extended past December 31, 2021. DHS announced soon after that the flexibilities would be extended until April 30, 2022. Additionally, CUPA-HR submitted comments in response to the RPI based on a recent survey detailing members’ experiences with the Form I-9 verification process flexibilities.

    CUPA-HR will keep members apprised of these proposed regulations and others as they are introduced in the coming year.



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