Tag: CUPAHR

  • 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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  • Proposed Changes to the H-1B Visa Program – CUPA-HR

    Proposed Changes to the H-1B Visa Program – CUPA-HR

    by CUPA-HR | November 9, 2023

    On October 23, 2023, 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.

    Background

    The H-1B visa program is pivotal for many sectors, particularly higher education. It permits U.S. employers to employ foreign professionals in specialty occupations requiring specialized knowledge and a bachelor’s degree or higher or its equivalent. The program is subject to an annual limit of 65,000 visas, with an additional allocation of 20,000 visas reserved for foreign nationals who have earned a U.S. master’s degree or higher. Certain workers are exempt from this cap, including those at higher education institutions or affiliated nonprofit entities and nonprofit or governmental research organizations.

    Highlights of the Proposed Rule

    Prompted by challenges with the H-1B visa lottery, USCIS has prioritized a proposed rule to address the system’s integrity. The move comes after a surge in demand for H-1B visas led to the adoption of a lottery for fair distribution. However, with the fiscal year 2024 seeing a historic 758,994 registrations and over half of the candidates being entered multiple times, there was concern over potential exploitation to skew selection chances. This proposed rule is a direct response to strengthen the registration process and prevent fraud.

    Beyond addressing lottery concerns, the proposal makes critical revisions to underlying H-1B regulations. It seeks to formalize policies currently in place through guidance and tweak specific regulatory aspects.

    Amending the Definition of a “Specialty Occupation.” At present, a “specialty occupation” is identified as a job that requires unique, specialized knowledge in fields like engineering, medicine, education, business specialties, the arts, etc., and it typically mandates a bachelor’s degree or higher in a specific area or its equivalent. USCIS is proposing to refine the definition of a “specialty occupation” to ensure that the required degree for such positions is directly related to the job duties. The proposal specifies that general degrees without specialized knowledge do not meet the criteria, and petitioners must prove the connection between the degree field(s) and the occupation’s duties. The rule would allow for different specific degrees to qualify for a position if each degree directly relates to the occupation’s responsibilities. For example, a bachelor’s degree in either education or chemistry could be suitable for a chemistry teacher’s position if both are relevant to the job. The changes emphasize that the mere possibility of qualifying for a position with an unrelated degree is insufficient, and specific degrees must impart highly specialized knowledge pertinent to the role.

    Amending the Criteria for Specialty Occupation Positions. USCIS is proposing updates to the criteria defining a “specialty occupation” under the Immigration and Nationality Act. This proposal includes a clarification of the term “normally,” which, in the context of a specialty occupation, indicates that a bachelor’s degree is typically, but not always, necessary for the profession. USCIS is aiming to standardize this term to reflect a type, standard, or regular pattern, reinforcing that the term “normally” does not equate to “always.”

    Extending F-1 Cap-Gap Protection. USCIS is proposing to revise the Cap-Gap provisions, which currently extend employment authorization for F-1 students awaiting H-1B visa approval until October 1 of the fiscal year for which H–1B visa classification has been requested. The Cap-Gap refers to the period between the end of an F-1 student’s Optional Practical Training (OPT) and the start of their H-1B status, which can lead to a gap in lawful status or employment authorization. The new proposal seeks to extend this period until April 1 of the fiscal year for which the H-1B visa is filed, or until the visa is approved, to better address processing delays and reduce the risk of employment authorization interruption. To be eligible, the H-1B petition must be legitimate and filed on time. This change is intended to support the U.S. in attracting and maintaining skilled international workers by providing a more reliable transition from student to professional status.

    Cap-Exempt Organizations. USCIS is redefining which employers are exempt from the H-1B visa cap. The proposed changes involve revising the definition of “nonprofit research organization” and “governmental research organization” from being “primarily engaged” in research to conducting research as a “fundamental activity.” This proposed change would enable organizations that might not focus primarily on research, but still fundamentally engage in such activities, to qualify for the exemption. Additionally, USCIS aims to accommodate beneficiaries not directly employed by a qualifying organization but who still perform essential, mission-critical work.

    Deference. USCIS is proposing to codify a policy of deference to prior adjudications of Form I-129 petitions, as delineated in the USCIS Policy Manual, mandating that officers give precedence to earlier decisions when the same parties and material facts recur. This proposal, however, includes stipulations that such deference is not required if there were material errors in the initial approval, if substantial changes in circumstances or eligibility have occurred, or if new and pertinent information emerges that could negatively influence the eligibility assessment.

    Next Steps

    While this summary captures key elements of the proposed changes, our members should be aware that the rule contains other important provisions that warrant careful review. These additional provisions could also significantly impact the H-1B visa program and its beneficiaries, and it is crucial for all interested parties to examine the proposed rule in its entirety to understand its full implications.

    USCIS is accepting public comment on its proposal through December 22, 2023. CUPA-HR is evaluating the proposed revisions and will be working with other higher education associations to submit comprehensive comments for the agency’s consideration. As USCIS moves towards finalizing the proposals within this rulemaking, potentially through one or more final rules depending on the availability of agency resources, CUPA-HR will keep its members informed of all significant updates and outcomes.



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  • CUPA-HR Submits Comments in Response to DOL’s Overtime Rulemaking – CUPA-HR

    CUPA-HR Submits Comments in Response to DOL’s Overtime Rulemaking – CUPA-HR

    by CUPA-HR | November 8, 2023

    On November 7, CUPA-HR, joined by 49 other higher education associations, submitted comments in response to the Department of Labor (DOL) Notice of Proposed Rulemaking (NPRM) to update the Fair Labor Standards Act (FLSA) overtime regulations. In the NPRM, the DOL proposes to update the salary threshold for the “white collar” exemptions to the FLSA overtime pay requirements from its current level of $35,568 annually to $60,209 per year — a nearly 70% increase.* Additionally, the department proposes to automatically increase the salary level every three years.

    CUPA-HR’s comments highlight the concerns from institutions across the country and ask that the DOL consider four recommendations:

    1) The DOL Should Not Update the Salary Threshold at This Time

    The DOL most recently updated the minimum salary threshold in 2020. CUPA-HR welcomed updates at the time, given the minimum threshold had not been successfully updated since 2004 and the level proposed in 2019 was appropriate at the time. With the most recent update becoming effective in 2020, we believe it is too soon for the DOL to move forward with another update to the minimum salary threshold.

    2) The DOL Should Lower the Proposed Minimum Salary Threshold and Account for Room and Board

    If the DOL does choose to move forward with an increase to the threshold, we believe that the proposed minimum salary threshold is too high. Updating the salary level from $684 per week ($35,568 per year) to $1,158 per week ($60,209 per year) leads to a nearly 70% increase, which will result in a large number of employees being reclassified to nonexempt status. To avoid having to reclassify certain employees to nonexempt status, we ask that the DOL consider room and board as part of an employee’s total salary when considering if such employees meet the minimum salary threshold.

    3) The DOL Should Not Implement Automatic Updates to the Salary Threshold

    In the NPRM, the DOL proposes to implement automatic updates to the salary threshold that would occur every three years. CUPA-HR believes that the DOL does not have the authority to implement automatic updates under the FLSA and that automatic increases will negatively impact institutions’ budgets, their ability to provide merit-based increases, and employee morale.

    4) The DOL Should Extend the Effective Date of Any Final Rule Implementing a Higher Salary Threshold

    According to the NPRM, the DOL anticipates providing 60 days for compliance with a final rule once it is published by the agency. CUPA-HR believes 60 days is too short a timeframe to assess the impact, plan, and implement appropriate changes on campus. Instead, we ask for an effective date that is at least 180 days after any final rule is published.

    CUPA-HR’s president and chief executive officer, Andy Brantley, shared the following: “To say campuses are extremely concerned with the Department of Labor’s proposed rule increasing the minimum salary threshold to the FLSA overtime pay requirements by almost 70% would be an understatement. Employees in positions that clearly meet the three criteria to qualify as white-collar employees who are exempt from the federal overtime pay requirement will be forced into nonexempt positions.”

    In addition to submitting these comments, CUPA-HR also joined the Partnership to Protect Workplace Opportunity’s comment letter addressing concerns with the proposed rule. CUPA-HR will keep members apprised of any updates relating to this proposed rule and our advocacy efforts as the department moves toward finalizing these regulations.

    * 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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