Tag: CUPAHR

  • Ten Higher Ed HR Stories That Defined 2023 – CUPA-HR

    Ten Higher Ed HR Stories That Defined 2023 – CUPA-HR

    by Julie Burrell | January 17, 2024

    Last year brought major changes to the higher education landscape. Turnover reached a peak, prompting more attention than ever to retention and recruitment, while looming policy changes in overtime pay and Title IX regulations further complicated long-term planning. And, though it may feel like unprecedented change is the new normal, timeless HR topics like onboarding and compensation strategy also captured readers’ attention in 2023.

    We’ve rounded up the CUPA-HR articles, resources and research that defined 2023 and will continue to shape your 2024. These are the most-viewed stories on our website as well as some resources you may have missed.

    Top Stories

    CUPA-HR members were understandably concerned about the impact of two issues — the retention crisis and the potential shake-up to overtime pay rules — on their campuses.

    1. The Higher Ed Employee Retention Crisis — And What to Do About It

    Key Takeaway: Turnover in higher ed reached a peak last year — the highest level since we started tracking it in 2017 — so it’s no surprise that talent management and recruitment was top of mind. This article marshals a wealth of insights from our members and the CUPA-HR research team to aid HR pros, including a blueprint for employee recognition, as well as strategies for rethinking compensation and flexible work.

    1. The CUPA-HR 2023 Higher Education Employee Retention Survey

    Key Takeaway: The data provided here help explain the record-high turnover. The report also digs into the factors that most impact retention, offering a model for understanding higher ed retention. Analyzing data from 4,782 higher ed employees — administrators, professionals and non-exempt staff, with faculty excluded — from 529 institutions, the survey found that more than half (56%) of employees are at least somewhat likely to search for a new job in the coming year. (Looking for an overview of report findings? Check out our press release.)

    1. Overtime and Title IX Final Rules Targeted for Early 2024 Release in Fall Regulatory Agenda

    Key Takeaway: Last year, the Department of Labor announced that they would target April 2024 for the release of a final rule to update the Fair Labor Standards Act’s overtime pay regulations. The rule seeks to substantially increase the minimum salary threshold required for white-collar professionals to maintain exempt status. To stay abreast of any updates, don’t forget to register for our Washington Update webinars and visit our FLSA overtime resources page.

    Relationships and Well-Being

    The demands on HR pros are at an all-time high. Last year, our members sought ways to care for themselves, their team and their campuses. Two of the most popular resources of 2023 addressed mental health and resolving interpersonal conflict.

    1. Managing Stress and Self-Care: “No” Is a Complete Sentence

    Key Takeaway: In this highly rated recorded webinar, Jennifer Parker, professional development and training manager of the Colorado Community College system, gives practical tools for minimizing stress and leads participants in creating a self-care plan.

    1. Ushering in the New Wave of Conflict Resolution: Tulane University’s Restorative Approach

    Key Takeaway: Learn how Tulane University’s Office of Human Resources and Institutional Equity launched a conflict resolution program, all while successfully managing the pivot to virtual offerings during the pandemic. One of the few university programs in the country to provide a restorative approach, Tulane’s program is a roadmap for fostering and maintaining campus relationships.

    Retention and Recruitment

    Our members offered real-world case studies of talent management and attraction in these feature articles in Higher Ed HR Magazine. They provide success stories and practical tips you can tailor to fit your needs.

    1. Modernizing Workplace Culture and the Employee Experience — Strategies for HR

    Key Takeaway: Workplace culture encompasses so much that it’s tricky to pin down. Jacob Lathrop, consultant to the vice president/CHRO at Michigan State University, defines workplace culture as the feeling employees are left with when they leave work. It’s how they describe their days to family or friends. Old ways of doing things may be harmful to employees’ well-being, while modernizing workplace culture might mean retaining and attracting talent. Lathrop’s tips include embracing flexibility and autonomy, evolving your paid-leave policies, and updating career exploration programs, among others.

    1. A Tale of Two Onboarding Programs: North Carolina State University and
    2. A Tale of Two Onboarding Programs: The University Of St. Francis

    Key Takeaway: A perennially popular topic, onboarding can look very different depending on the institution. In the first article, North Carolina State University’s onboarding manager Amy Grubbs tells the story of their efforts to create consistent new-hire experiences, get supervisors involved in the onboarding process, and bring a full-service Onboarding Center to life through strategic campus partnerships. (Check out Amy’s webinar too, which provides even more information on the Onboarding Center and strategic partnerships.) With more limited resources, Carol Sheetz, formerly of the small, private University of St. Francis, shares her solo effort to build USF’s onboarding program from scratch. This article contains her top tips and resources for other HR pros in the same situation.

    1. Investing in Employees During an Economic Downturn: How We Implemented Our Living Wage Strategy

    Key Takeaway: A decade ago, the Maricopa County Community College District committed to a $30,000 livable wage for its full-time employees, but employees found it challenging to keep up with inflationary pressures and the COVID-related economic downturn. Maricopa responded by raising the livable wage by 15.5 percent, from $14.42 to $16.65. This article explains how HR managed to implement this raise, while preventing additional pay compression and reduced employee morale. (The second phase of MCCCD’s plan, focusing on progressive pay practices, internal pay equity and market alignment, is explored here.)

    1. Recalibrating Employee Recognition in Higher Education

    Key Takeaway: “Most of us continue churning out the same recognition programs — many decades old — often without questioning their value, validating their impact or reviewing for bias,” says author Sharri Margraves, the executive director of organization and professional development for Michigan State University’s human resources. She surveyed 65 higher education institutions to find out how they formally and informally recognize employees. This article not only presents these findings, but also suggests ways to redesign your own recognition program, including a self-audit tool to assess your strengths and weaknesses.



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  • Bridging 2023 and 2024: Key U.S. Immigration Updates From December – CUPA-HR

    Bridging 2023 and 2024: Key U.S. Immigration Updates From December – CUPA-HR

    by CUPA-HR | January 11, 2024

    December was a busy month for immigration-related developments, with several important updates that have implications for the higher education sector. In this post, we provide highlights of the actions that took place last month.

    CUPA-HR Joins Comments to DHS on H-1B Modernization NPRM

    On December 22, 2023, CUPA-HR and 19 other higher education associations joined comments led by the American Council on Education (ACE) in response to the Department of Homeland Security’s (DHS) H-1B Modernization Proposal. Additionally, CUPA-HR joined 73 organizations from the higher education, state and local economic development, business, science, and policy sectors to submit a comment in response to the H-1B Notice of Proposed Rulemaking’s (NPRM) proposed definition for specialty occupations.

    The ACE-led letter expresses support for several of the proposed changes. These include the change to a beneficiary-centric lottery system, codifying DHS policy of deference to prior adjudications of Form I-129 petitions, clarifying the term “normally” in specialty occupation criteria, and implementing an automatic extension for CAP-GAP. (CAP-GAP is the time between the official end-date of an F-1 student visa and the start date of the H-1B visa). However, the letter also expresses concerns about proposed changes to the definition of a “specialty occupation” and “specific specialty requirement” in the H-1B visa program. The concerns highlight the potential limitation on the ability to attract diverse candidates for faculty positions and the narrowing pipeline for growth in high-technology fields, which could deter foreign students and hinder research and innovation in the United States. The letter calls for a reconsideration of these proposed changes to ensure that H-1B visa regulations align with the evolving dynamics of professional education and the modern workforce.

    In the multi-sector comment letter, CUPA-HR joined voices to address concerns over the H-1B NPRM’s proposed redefinition of “specialty occupations.” This diverse coalition raised issues about the potential negative impacts of these changes on interdisciplinary hiring, particularly in emerging science and technology fields. They argued that the new requirements, like the need for a degree to be “directly related” to job duties, could limit U.S. competitiveness in global innovation and create challenges for employers.

    Now that the comment period has concluded, the DHS will begin the process of reviewing the feedback received. As the department moves toward finalizing the proposals within this rulemaking, they may issue one or more final rules, depending on the availability of agency resources. CUPA-HR will continue to closely monitor these developments and keep its members informed of all significant updates and outcomes.

    State Department Announces Extension and Expansion of the Nonimmigrant Visa Interview Waiver Program

    On December 21, 2023, the Department of State (DOS) determined that, in consultation with DHS, certain categories of interview waivers are in the national interest. As a result, consular officers will continue to have the authority and discretion to waive an in-person interview for certain categories of nonimmigrant visa cases, with some changes made by DOS.

    This update includes the following key changes.

    • First-time H-2 Visa Applicants: Temporary agricultural and non-agricultural workers applying for H-2 visas are now eligible for an interview waiver.
    • Extended Eligibility for Other Visa Applicants: The waiver also applies to applicants for any nonimmigrant visa classification who have previously been issued a visa other than a B visa and are reapplying within 48 months of their last visa’s expiration.
    • Renewal Policy Unchanged: Applicants renewing their nonimmigrant visa in the same classification within 48 months of the prior visa’s expiration date continue to be eligible for the interview waiver.

    The department’s previous interview waiver eligibility criteria were set to expire on December 31, 2023. Not only has the program been extended as of January 1, but it now also includes more nonimmigrant categories. Notably, the current guidance is intended to remain in place indefinitely, as no expiration date has been specified.

    DOL Issues Request for Information on PERM Schedule A Revisions

    On December 21, 2023, in alignment with President Biden’s Executive Order 14110 on Artificial Intelligence, the Department of Labor’s (DOL) Employment and Training Administration (ETA) issued a Request for Information (RFI) that aims to gather public feedback on potential updates to Schedule A job classifications that exempt certain roles from the standard labor certification requirements. Specifically, the DOL is exploring the inclusion of AI, other STEM-related occupations, and additional fields where there is a notable shortage of qualified U.S. workers.

    According to the Immigration and Nationality Act’s labor certification provisions, employers are obligated to demonstrate that there are insufficient U.S. workers available and that hiring foreign nationals will not adversely affect the wages and working conditions of similar U.S. roles. This process is managed through the Program Electronic Review Management (PERM) system by the ETA. Employers seeking labor certification for prospective permanent immigrant workers must navigate a complex and time-consuming process, often extending the immigration timeline.

    Schedule A, established by the DOL in the mid-1960s, pre-certifies occupations experiencing national labor shortages, thereby waiving the labor certification requirement for these roles. Currently, Schedule A is divided into two groups: Group I comprises physical therapists and professional nurses, and Group II includes occupations that require exceptional ability in the sciences, arts, or performing arts. With this RFI, the DOL aims to critically examine and potentially broaden Schedule A’s scope, a move that could accelerate the hiring of essential foreign talent by aligning with evolving labor market demands and streamlining the employment authorization process.

    Key areas where the department seeks input include the following.

    1. Identifying Labor Shortages in STEM: The department invites suggestions on the most appropriate data sources and methods to ascertain whether there are labor shortages in STEM occupations. They are interested in understanding if Schedule A should be utilized to mitigate these shortages and how to develop a reliable, objective, and transparent method to identify STEM occupations facing labor shortages.
    2. Scope of STEM Occupations: There’s a need for input on whether the examination of STEM occupations should be limited to those outlined in the Occupational Employment and Wage Statistics and recent Bureau of Labor Statistics publications, or whether it should be broadened to include additional occupations, particularly those covering Skilled Technical Work occupations.
    3. Inclusion of Non-STEM Occupations: The department is also open to suggestions on whether non-STEM occupations facing worker shortages should be added to Schedule A. Input is sought on how to determine such shortages and ensure that the employment of foreign workers in these roles does not negatively impact U.S. workers.

    Comments in response to the RFI are due on February 20, 2024.

    U.S. Department of State Announces Pilot Program for Domestic Renewal of H-1B Visas

    On December 21, 2023, DOS announced a pilot program to resume domestic visa renewal for H-1B nonimmigrant visa applicants who meet certain requirements. It offers eligible H-1B visa holders the chance to renew their visas within the U.S., bypassing the need for an in-person interview at a consulate or embassy. DOS will start accepting online applications for the H-1B visa renewal pilot program on January 29, 2024.

    Eligibility for the U.S. Department of State’s H-1B visa renewal pilot program is defined by a set of specific criteria:

    • Visa Classification and Issuance: The program is strictly for those looking to renew an H-1B visa. Eligible visas must have been issued by Mission Canada (from January 1, 2020, to April 1, 2023) or Mission India (from February 1, 2021, to September 30, 2021).
    • Fee and Interview Requirements: Applicants should not be subject to a nonimmigrant visa issuance fee, often referred to as a “reciprocity fee,” and must be eligible for a waiver of the in-person interview.
    • Biometric and Visa Status: Participants must have previously submitted ten fingerprints for a visa application, and their prior visa should not include a “clearance received” annotation. Additionally, they must not have any visa ineligibilities requiring a waiver.
    • Petition and Status Maintenance: It’s essential that applicants have an approved, unexpired H-1B petition, are currently maintaining H-1B status in the U.S., and their period of authorized admission in this status has not expired.
    • Travel and Reentry Intent: Applicants must have been last admitted to the U.S. in H-1B status and intend to reenter the U.S. in the same status after temporary travel abroad.

    Background and Objectives. The pilot is a response to the discontinuation of domestic non-diplomatic visa renewals in 2004 due to the requirement for biometric identifiers. With advancements in technology, the DOS is now looking to assess its capacity to handle domestic renewals and reduce global visa application backlogs. This pilot is particularly aimed at alleviating uncertainties for U.S. companies employing temporary H-1B workers.

    Application Process:

    • Application Portal: U.S. Visa Employment Domestic Renewal.
    • Slot Allocation: Approximately 4,000 slots will be available weekly, split between applicants with visas issued by Mission Canada and Mission India.
    • Application Dates: January 29, February 5, 12, 19, and 26. The portal will close temporarily once weekly caps are reached.
    • Application Window: The program will close on April 1, 2024, or when all slots are filled, whichever is earlier.

    Currently, the program excludes categories like H-4 visas. The DOS plans to extend the program to more visa types in the future, but for now, it’s limited to H-1B principal applicants meeting the specified criteria.



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  • Department of Labor Issues Independent Contractor Final Rule – CUPA-HR

    Department of Labor Issues Independent Contractor Final Rule – CUPA-HR

    by CUPA-HR | January 11, 2024

    On January 10, the Department of Labor’s (DOL) Wage and Hour Division (WHD) published the highly anticipated rule modifying the test for determining whether a worker is an employee or independent contractor under the Fair Labor Standards Act (FLSA). The final rule rescinds the current “core factors” method for determining independent contractor status under the FLSA and implements a return to a “totality-of-the-circumstance analysis.”

    Under the final rule, the method of determining worker classification will use a totality-of-the-circumstance analysis of multiple factors in an economic reality test, including the following six factors.

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

    Under the final rule, any particular factor could be determinative in establishing a worker’s classification, and additional undefined factors may be relevant in the analysis as well. The final rule is therefore a significant departure from the previous rule finalized in 2021, under which two core factors primarily guided worker classification determinations.

    The WHD has established March 11, 2024, as the effective date of this new rule, meaning institutions will need to be in compliance by then. The rule is likely to be challenged in federal court by business groups, and legislators in the U.S. House of Representatives and Senate have indicated they will introduce resolutions of disapproval under the Congressional Review Act in an attempt to nullify the final regulation. CUPA-HR will keep members apprised of any new updates as it relates to the status of this final rule.



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

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

    by CUPA-HR | January 10, 2024

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

    House Education and Workforce Committee Markup

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

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

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

    Paid Leave Request for Information

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

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

    National Apprenticeship System Enhancement Proposed Rule

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

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

    Federal Transit Authority General Directive on Assaults on Transit Workers

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

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

    Regulations to Implement the Pregnant Workers Fairness Act

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

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



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

    HR and the Courts — January 2024 – CUPA-HR

    by CUPA-HR | January 10, 2024

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

    Medical School Surgeon Awarded $15 Million in Damages Resulting From Biased Harassment Investigation

    A federal trial court jury awarded a medical school surgeon $15 million in damages. The jury concluded that the Thomas Jefferson University Hospital medical school’s sex harassment investigation of the plaintiff, who was accused of harassment and sexually assaulting a female medical school resident, was biased against males (Abraham v. Thomas Jefferson University Hospital, et al (Case No. 2:20-cv-02967, E.D. Pa. 12/11/23)). The plaintiff claimed that prior to the incident, he had an “unblemished” reputation. He claimed that due to the medical school’s mishandling of the disciplinary proceeding, he had been labelled a “rapist,” had been ostracized by professional colleagues, and had suffered damages to his livelihood.

    The incident, subject to the lawsuit, involved a pool party at the plaintiff’s home in 2018. The plaintiff alleged that the medical resident became sexually aggressive toward him without his consent, and he was too intoxicated to resist. The plaintiff claims to have reported the incident to the hospital and found that the resident had filed a complaint against him, which resulted in the allegedly anti-male biased investigation and proceedings. Prior to the verdict, the medical school filed a motion for mistrial, alleging that the “belligerent” treatment of the court by the plaintiff’s counsel unduly influenced the jury. As of writing, there has been no action on the defendant’s motion.

    LSU Associate Athletic Director Claims Race and Sex Discrimination, Retaliation, and Hostile Work Environment in Lawsuit

    A federal district court judge granted partial summary judgement dismissing some charges brought against Louisiana State University by a terminated, former associate athletic director, but allowed some allegations of race and sex retaliatory discrimination and hostile work environment to move forward to a jury trial against the university’s board of supervisors (Lewis v. Board of Supervisors, Louisiana State University (2023 BL 437930, M.D. La., No. 3-21-cv-00198, Partial summary judgement, 12/1/23)).

    The university argued that the former associate athletic director was fired in a shake-up made by a new university football coach, which had nothing to do with the plaintiff’s race or sex. However, the new coach denied at deposition that he made the decision to fire the associate athletic director, creating a factual dispute that the court ruled should go to a jury. The federal judge concluded that the plaintiff’s allegations of a sexually hostile work environment should proceed to a jury trial as well as the allegations that she was denied a pay raise and ultimately fired because she is a Black woman.

    NCAA Proposes Plan to Allow Institutions to Pay Student-Athletes

    The NCAA proposed a plan in December 2023 to allow some institutions to invest at least $30,000 into an educational trust for at least half of their student-athletes to address the ongoing controversy over payments to student-athletes. Commentators point out that there will be many challenges to the new plan, including possibly running afoul of Title IX. Moreover, the plan will not make the pending Fair Labor Standards Act and National Labor Relations Act student-athlete claims go away.

    Commentators also point out that the proposal does not address the pending class action damage claim filed against the NCAA in the name, image and likeness (NIL) litigation, which is scheduled for trial in January 2025. Plaintiffs in that class action are claiming damages of $4.5 billion as a result of the NCAA’s past ban on NIL payments, which was overturned by the Supreme Court in NCAA v. Alston in August 2021 on anti-trust grounds.

    Federal Judge Rejects Religious Discrimination Claim Against Princeton

    A federal district court judge recently granted a motion to dismiss filed by Princeton University in a case brought by a former budget analyst who claims she was fired because of her religious beliefs when she refused to comply with COVID-19 protocols, including wearing a mask (McKinley . Princeton University (Case No. 3:22-cv-05069, D. N.J. 15/5/23)).

    The case was initially dismissed because the complaint did not mention any specific religion or set of beliefs. The court gave the plaintiff the opportunity to refile and correct that omission. The plaintiff’s amended complaint contained allegations that “my body is my temple” and “decries… any and all abuse against life.” In dismissing the case, the judge concluded that the plaintiff’s beliefs appear to be a collection of general moral commandments. The court found that the plaintiff’s personal moral code and beliefs do not constitute a comprehensive system of beliefs that could be called a religion.

    Appeals Court Reverses Dismissal of Former UMass Soccer Coach’s Age Discrimination Case

    A Massachusetts state appeals court reversed the dismissal of a former women’s soccer coach’s age discrimination complaint (Matz v. University of Massachusetts–Amherst (Mass App Ct No. 22-P-1162, 12/7/23)). The coach, who was 51 years old, filed the claim alleging that his termination was because the university wanted to hire a younger coach and that the stated reasons for his termination were a pretext.

    In dismissing the case, the university claimed the coach was terminated because of “an undisputed poor record” and “student criticism of his coaching abilities.” The appellate court recognized that the coach’s performance review concluded that he needed improvement and that there were student criticisms of his coaching abilities. Nonetheless, the appellate court held that the record contains “numerous positive reviews, inconsistent with the [2015 season] criticisms,” from which a jury could find he was terminated because of his age. The appellate court concluded that the plaintiff raised a claim by a member of a protected class, who was performing his job sufficiently, and his allegations could raise reasonable speculation about discrimination.

    California Jury Awards Nurse $41.5 million in Damages in Retaliatory Discharge, Whistleblower Case

    A neonatal intensive care nurse who was fired after 30 years of service to her employer was awarded a California jury verdict of $41.5 million in compensatory and punitive damages as a result of her discharge, which she claimed was in retaliation for raising safety issues. The California state court jury awarded the plaintiff $1.3 million in lost wages, $1.2 million in future lost wages, $1.5 million in past mental suffering, $7.5 million in future mental suffering, $15 million in punitive damages against the hospital, and $15 million in punitive damages against the Kaiser Foundation.

    According to the hospital, the plaintiff was fired after she was found reclining in the neonatal unit, talking on her personal phone with her feet resting on an isolette that had a neonatal infant inside. The plaintiff claimed that the stated reason for discharge was a pretext and that the real reason for her discharge was that she reported a supervisor who refused to report that the father of a patient was present in the hospital with a knife, creating an unsafe situation in the hospital (Gatchalian v. Kaiser Foundation Hospitals et. al. (Case No.  21STCV15300 Ca. Sup Ct. L.A. Cty. Jury Verdict 12/16/23)).



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  • HR and the Courts — December 2023 – CUPA-HR

    HR and the Courts — December 2023 – CUPA-HR

    by CUPA-HR | December 12, 2023

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

    University of California May Test Federal Ban on Hiring Undocumented Workers

    The University of California may be the first public institution to challenge whether the 1986 Immigration Reform and Control Act (IRCA) applies to state entities, including public colleges and universities. The IRCA prohibits U. S. employers from hiring undocumented workers.

    On November 20, 2023, the University of California postponed plans to go forward with a self-imposed deadline of November 30, 2023, to initiate a plan to hire undocumented workers. The university has decided to study the issue further before deciding on a specific course of action. The Supreme Court has dealt with the constitutionality of federal regulation of state employers on multiple occasions in the past, having come down on both sides of the issue. We will follow developments in this area as they unfold.

    Texas Community College Wins Suit Brought by Professor Who Commented on Race and COVID-19 Policies

    Collin College in Texas prevailed in partial summary judgement against a former professor who sued alleging First Amendment free speech retaliation in the non-renewal of his teaching contract. He claimed his contract was terminated because of his outspoken views as a private citizen on public issues including race relations in Dallas, Confederate monuments and his criticism of the college’s COVID-19 policies.

    The court granted part of the college’s motion to dismiss because the college’s policies were not facially unconstitutional. However, the federal court denied each side’s motions for summary judgement on the professor’s claims that the college’s policies were overboard in their restriction of his speech, holding that the issue should be reserved for decision until factual questions are resolved (Phillips v. Collin Community College District (E.D. Tex. No. 22-cv-00184, 11/4/23)).

    Law Professor Sues Northwestern University, Claiming Age Discrimination

    A 78-year-old law professor has sued his university employer claiming age-based salary discrimination. The professor, who is tenured and taught at the law school for 42 years, claims he has been consistently paid substantially less than “significantly younger, less experienced and less tenured” comparators (Postlewaite v. Northwestern University (N.D. Ill. No 1:23-cv-15729, Comp filed 11/7/23)).

    The professor claims to be “a preeminent scholar” in the field of tax law and started his law school’s lucrative Master of Laws in Taxation program, which he claims has been the school’s “highest ranked specialty department” for 17 of the last 19 years. The professor alleges that he has been awarded lower base-salary increases than his younger counterparts. He further alleges that for the academic year 2022-23, his salary was $7,000 less than the 50th percentile and $55,000 less than the 75th percentile, even though those percentiles equated to 20 and 32 years, respectively, of total teaching while he has completed 49 years of total legal academic teaching.

    The lawsuit was filed in federal court and alleges violation of the federal Age Discrimination in Employment Act and the Illinois Human Rights Act.

    Supreme Court Declines to Review Decision on UPS Driver’s Disability Accommodation

    The Supreme Court declined to review a 4th U.S. Circuit Court of Appeals case in which the 4th Circuit upheld the dismissal of a driver’s disability accommodation request. The driver requested that he be allowed to drive a smaller truck with softer suspension to accommodate his hip and back bursitis disability, which caused him severe pain (Hannah v. United Parcel Service (Case No. 23-264 US Sup Ct, cert den. 11/6/23)).

    The 4th Circuit decision, which the Supreme Court let stand, concluded that the employee’s request for an accommodation was not reasonable because the request altered the “essential elements” of the employee’s job. The court concluded that if the driver was given the accommodation to drive a smaller truck, he would not be able to complete the daily work load requirement of his existing driver position.

    Tesla Allowed to Ban Union Shirts

    The 5th U.S. Circuit Court of Appeals overturned an NLRB decision holding that Tesla violated the NLRA when it required its production employees to wear black Tesla-monogrammed uniform work shirts and did not allow production workers to wear black union-insignia work shirts. The decision of the three-judge panel was unanimous in overturning the NLRB ruling against Tesla (Tesla v. NLRB (5th Cir. No. 22-60493 11/14/23)).

    While Tesla had banned the wearing of union-insignia work shirts, it allowed production employees to wear Tesla-insignia work shirts with a union insignia pinned on the shirt. Tesla had argued unsuccessfully to the NLRB that its rule was necessary to prevent damage to cars and to help supervisors distinguish between production employees and other employees at the company’s California facility. The Court of Appeals decision allows Tesla to continue to enforce its prior policy requiring Tesla-insignia work shirts, with the employee’s option of pinning on a union insignia.

    Appeals Court Affirms Dismissal of Gymnastic Coach’s Wrongful Termination and Defamation Lawsuits

    A Pennsylvania state appellate court affirmed a trial court dismissal of a former Pennsylvania State University gymnastic coach’s lawsuit. The former coach alleged defamation and violation of his employment contract when the university terminated his contract after investigating allegations that he created a hostile environment for gymnasts. The three-judge appellate panel adopted the decision of the trial court judge, concluding that the university had good cause for firing the coach and that the athletic director’s statement about prior accusations against him had not been defamatory (Thompson v. Pennsylvania State University (Case no. 1460 MDA 2022, 11/28/23)).

    The appeals court ruled that the gymnastic coach’s high profile in collegiate sports made him a limited public figure and that the university’s reaction to allegations of mistreatment of athletes were matters of public concern. That meant that the plaintiff must show “actual malice” in order to prove defamation in these circumstances. The appellate court concluded that the university’s actions did not rise to the level of “actual malice.”



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

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

    by CUPA-HR | December 12, 2023

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

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

    Department of Labor

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

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

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

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

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

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

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

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

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

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

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

    Equal Employment Opportunity Commission

    Regulations to Implement the Pregnant Workers Fairness Act

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

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

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

    Department of Education

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

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

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

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

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

    Office for Civil Rights — Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance: Sex-Related Eligibility Criteria for Male and Female Athletic Teams

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

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

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

    Department of Homeland Security

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

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

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

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

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

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

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

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

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

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

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

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

    Department of State

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

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

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



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  • Pay Equity Still Lags for Women Administrators – CUPA-HR

    Pay Equity Still Lags for Women Administrators – CUPA-HR

    by Julie Burrell | November 29, 2023

    An analysis of two decades worth of CUPA-HR data on gender and pay in higher ed administrative roles paints a troubling picture of pay equity. In 2022, women made up 51% of administrators in college and universities, but they were paid 93 cents for each dollar a man in an administrator position was paid. This represents an increase of just 3 cents from 2002, when women made 90 cents for each dollar a man was paid.

    Among chief human resources officers, the pay disparity is even wider. Though three in four (76%) of CHROs are women, their pay in 2022 was only 89 cents for each dollar male CHROs were paid. Deputy CHROs who are women were paid only 83 cents, a figure that remained unchanged from 2002 through 2022.

    The Higher Ed Administrators: Trends in Diversity and Pay Equity From 2002 to 2022 report also found that people of color — women especially — are increasingly represented in administrative positions. Drawing on 10 years of data, CUPA-HR found that between 2012 and 2022, the representation of people of color in higher ed administration increased by 41%. In 2012, people of color comprised 13% of administrators and in 2022, 18% of administrators. Women of color went from comprising 7% of higher ed administrators in 2012 to 10% of higher ed administrators in 2022.

    Despite these gains in representation, women of most races and ethnicities are still paid less than White men in the same administrator positions.

    The Report’s Major Findings Include:

    • The past 20 years saw an increase of 20% of women in administration, from 43% in 2022 to 51% in 2022, but pay equity for women has not kept pace. In 2002, women in administrator positions were paid 90 cents for each dollar men in administrator positions were paid. Two decades later, women in administrator positions were paid just 93 cents for each dollar men in administrator positions are. These wage gaps are not explained by the fact that women may have greater representation in lower-paying positions.
    • From 2012-2022, the representation of people of color in administrative roles increased by 41%. The biggest increases were among administrators of two or more races (290% increase) and Asian administrators (76%). Women of color have seen more than double the percentage increase in representation than men of color (54% increase for women versus 26% for men).
    • But people of color are still underrepresented in administrative positions. Using the percentage of people of color with U.S. graduate degrees (31%) as a comparison, we find that only 18% of higher ed administrators were people of color in 2022.
    • Women’s representation in executive roles increased, but pay inequity still exists. In 2022, women held one in three campus presidencies, an increase of 60% from 2002. In 2002, female presidents were paid 92 cents on the dollar to male presidents and saw only a 1-cent increase in the 20 years since. The worst pay equity for presidents was for Hispanic or Latina women, who were paid 82 cents per dollar paid to White men. In the same time span, the representation of women provosts increased, comprising nearly half (48%) of provosts in 2022. The gender pay gap narrowed as well: Female provosts were paid 91 cents on the dollar compared to male provosts in 2002, and in 2022, female provosts were paid 96 cents on the dollar compared to male provosts.
    • CHRO gender pay equity remains low. In 2022, three in four (76%) CHROs were women, with White women representing 60%. In 2002, female CHROs were paid 86 cents for each dollar male CHROs were paid. In 2022, female CHROs were paid only 89 cents for each dollar male CHROs were paid.

    Addressing the Administrative Pay Gap

    Addressing pay inequity and increasing the representation of people of color among higher ed administrators requires long-term solutions like conducting pay analyses. CUPA-HR’s DataOnDemand for the Administrators in Higher Education Survey features the most comprehensive data available on higher ed administrator salaries, as well as data on pay equity and representation for women and people of color for every administrative position.

    Recruiting a more diverse pool of faculty candidates and mitigating bias in faculty promotions are also important to succession planning, as one notable path to the presidency is to start off as a faculty member, ascend to dean, then to provost, and then to president.

    You also might consider what talent pipeline programs exist on your campus. For inspiration, see these models of internal talent development:



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  • Artificial Intelligence Sparks the Interest of Federal Policymakers – CUPA-HR

    Artificial Intelligence Sparks the Interest of Federal Policymakers – CUPA-HR

    by CUPA-HR | November 15, 2023

    A growing interest in artificial intelligence and its potential impact on the workforce has sparked action by policymakers at the federal level. As employers increasingly turn to AI to fill workforce gaps, as well as improve hiring and overall job quality, policymakers are seeking federal policies to better understand the use and development of the technology. Recent policies include an executive order from the Biden administration and a Senate committee hearing on AI, both of which are detailed below.

    Executive Order on AI Use and Deployment

    On October 30, the Biden Administration released an executive order delineating the “Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence.” The order urges responsible AI deployment that satisfies workforce development needs and ethical considerations.

    The executive order directs several agency heads to issue guidance and regulations to address the use and deployment of AI and other technologies in several policy areas. Some orders of particular interest to higher education HR include:

    • The secretary of labor is directed to submit a report analyzing ways agencies can support workers who may be displaced by AI.
    • The secretaries of labor, education and commerce are directed to expand education and training opportunities to provide pathways to careers related to AI.
    • The secretary of labor is ordered to publish principles and best practices for employers to help mitigate harmful impacts and maximize potential benefits of AI as it relates to employees’ well-being.
    • The secretary of labor is directed to issue guidance clarifying that employers using AI to monitor employees’ work are required to comply with protections that ensure workers are compensated for hours worked as defined under the Fair Labor Standards Act.
    • The secretary of labor is directed to publish guidance for federal contractors on nondiscrimination in hiring practices that involve the use of AI and other technology.
    • The director of the National Science Foundation is directed to “prioritize available resources to support AI-related education and AI-related workforce development through existing programs.”
    • The secretary of education is ordered to develop resources and guidance regarding AI, including resources addressing “safe, responsible and nondiscriminatory uses of AI in education.”
    • The secretary of state is ordered to establish a program to “identify and attract top talent in AI and other critical and emerging technologies at universities [and] research institutions” and “to increase connections with that talent to educate them on opportunities and resources for research and employment in the United States.”
    • The secretary of homeland security is directed to continue its rulemaking process to modernize the H-1B program and to consider a rulemaking that would ease the process of adjusting noncitizens’ status to lawful permanent resident status if they are experts in AI and other emerging technologies.

    The executive order directs the agency heads to produce their respective guidance and resources within the next year. As these policies and resources begin to roll out, CUPA-HR will keep members updated on any new obligations or requirements related to AI.

    Senate HELP Committee Hearing on AI and the Future of Work

    On October 31, 2023 the Senate Employment and Workplace Safety Subcommittee held a hearing titled “AI and the Future of Work: Moving Forward Together.” The hearing provided policymakers and witnesses the opportunity to discuss the use of AI as a complementary tool in the workforce to skill and reskill American workers and help them remain a valuable asset to the labor market.

    Democrats and Republicans on the committee agreed that AI has the potential to alter the workforce in positive ways but that the growth of the use of the technology needs to be supported by a framework of regulations that do not smother its potential. According to witnesses, employers using AI currently face a patchwork of state and local laws that complicate the responsible use and growth of AI technologies. They argued that a federal framework to address the safe, responsible use of AI could help employers avoid such complications and allow AI use to continue to grow.

    Democrats on the committee also asked whether education opportunities and skills-based training on AI can help provide an employment pathway for workers. Witnesses argued that AI education is needed at the elementary and secondary level to ensure future workers are equipped with the skills needed to work with AI, and that skills-based training models to reskill workers have proven successful.

    CUPA-HR will continue to track any developments in federal AI regulations and programs and will inform members of updates.



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  • Senate Finance Committee Holds Hearing on Paid Leave – CUPA-HR

    Senate Finance Committee Holds Hearing on Paid Leave – CUPA-HR

    by CUPA-HR | November 14, 2023

    On October 25, the Senate Finance Committee held a hearing on federal paid leave. This comes as congressional Democrats and Republicans have shown interest in finding bipartisan consensus for a federal paid leave program. The hearing also provided policymakers and witnesses the opportunity to discuss the promise and drawbacks of paid leave proposals.

    Increasing employee access to paid leave was a primary focus of the hearing. Both sides of the aisle agreed that all workers will need to take leave during their careers without the obligation to juggle work requirements. Policymakers highlighted that 70 percent of Americans want national paid leave and that 72 percent of Americans who are not currently working cite caregiving and family responsibilities as the main reason. To address these issues, Democrats argued for a federally mandated paid leave program, while Republicans worried that a one-size-fits-all program could limit employer-provided paid leave options and be difficult to implement on a wide scale.

    Witnesses Describe Potential Benefits of Federal Paid Leave

    Some of the witnesses discussed the benefits of a federal paid leave program, concluding that better access to paid leave would benefit workers, employers and the economy. Jocelyn Frye, president of the National Partnership for Women & Families, stated that offering paid leave tends to benefit both workers and employers through increased labor force participation (both for women and generally), worker retention, and wage growth. Ben Verhoeven, president of Peoria Gardens Inc., added that investing in paid leave gave him better return on investment than his capital investments, as implementing paid leave increased business growth and employee retention and promotions.

    Objection to a One-Size-Fits-All Leave Program

    Despite these benefits, Elizabeth Milito, executive director of the National Federation of Independent Business’s Small Business Legal Center, said that employers would face trade-offs under a federal paid leave program. Milito argued that employers operating on the same amount of funds but under new federal benefit requirements would be obliged to provide paid leave as a benefit, leading to some employers being unable to provide higher compensation or other benefits like health insurance. Rachel Greszler, senior research fellow at The Heritage Foundation, said that in response to state paid leave programs, some companies choose to send workers to the state program first and then supplement the paid leave benefit to provide 100 percent wage replacement. This creates an administrative burden for the employee, who receives full wage replacement only if they participate in both paid leave programs.

    Republicans and their witnesses also said that a federal program would require flexibility and simplicity to be most effective. Milito and Greszler concurred that most small businesses do not have a qualified HR professional to deal with additional compliance needs. Greszler also stated that the biggest unintended consequence of a one-size-fits-all approach would be a rigid structure that does not work for most employees and businesses. She specified that a carve-out for small businesses or the ability to opt in to a federal program would be most appropriate.

    CUPA-HR continues to monitor for any updates on federal paid leave programs and will keep members apprised of any new developments.



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