Tag: CUPAHR

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

    HR and the Courts — November 2023 – CUPA-HR

    by CUPA-HR | November 8, 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.

    California Becomes First State to Mandate Workplace Violence Prevention Plans

    Under a new law, the first broad state law of its kind, most employers in California must now adopt workplace violence prevention plans by next summer. Before now, hospitals in California were the only group of employers required by state law to adopt workplace violence prevention plans. What specifically must be included in the plan is vague under the terms of the statute. The California Division of Occupational Safety and Health (Cal/OSHA) will be responsible for implementation of this statute and stated that it would adopt an appropriate workplace violence set of standards for employers.

    The law will require employers to establish written plans, employee training and tracking of violent acts. Plans must be specific for each workplace and tailored to meet the individual circumstances of each setting. Commentators are looking for further guidance from Cal/OSHA on the specific details that must be covered by employer plans.

    Mandatory Time Off for Reproductive Loss

    California and Illinois are leading the way in the adoption of state laws mandating that employers guarantee time off following a miscarriage or other reproductive loss to ensure leave for grieving. The laws guarantee employees up to five days of paid or unpaid leave following a reproductive loss including miscarriage and still birth, as well as failed adoption, invitro or surrogacy. Utah has adopted a similar policy for state employees, and several cities have adopted similar statutes. Some national employers already voluntarily include reproductive losses in time-off provisions for employees.

    NLRB Lowers the Bar to Prove Joint Employer Status — May Impact Student-Athlete Cases

    The National Labor Relations Board rescinded a Trump-era regulation requiring that an alleged joint employer must have “direct and immediate” control exercised over employees to prove joint employer status. Under the new standard, if an alleged joint employer indirectly controls job terms or conditions of employment, it is a joint employer subject to NLRB jurisdiction. This will have immediate application to the ongoing dispute as to whether the NCAA and athletic conferences are joint employers of student-athletes, as they exercise control over rules that student-athletes must adhere to.

    This also may affect the NLRB’s attempt to exert jurisdiction over student-athletes at public colleges and universities. While the NLRB has no jurisdiction over public entities, its general counsel is asserting jurisdiction over those student-athletes at public institutions based on the legal theory that the NCAA and/or the athletic conferences are joint employers.

    Student-Athlete Unionization Issue May Affect Smaller Institutions and Athletic Programs

    Two additional, separate NLRB cases are winding their way to a decision on whether student-athletes meet the definition of employee under the National Labor Relations Act and are therefore eligible to unionize. A West Coast case involves the NLRB issuing a complaint claiming that the University of Southern California, the NCAA, and the PAC-12 Conference are joint employers of student basketball and football players and have unlawfully refused to bargain with any union.

    An East Coast case involves a union petition filed by the Service Employees International Union to represent Dartmouth College basketball players. Dartmouth has argued that its basketball players are not employees under the NLRA, as they do not receive sports scholarships and the basketball program does not generate money for the institution.

    Commentators at Bloomberg have concluded that decisions allowing unionization of college athletes may have the most serious repercussions for smaller institutions and even small athletic programs that do not generate revenue at large institutions.

    Class Actions Proliferate Related to Washington State’s Pay Transparency Law  

    A series of 40 or so class actions filed against major employers in Washington state — including Adidas, Home Depot and Marriott — will test the reach of the new Washington state job ad and pay transparency law. The Washington state law, like similar statutes in California, Colorado and New York, requires employers to provide pay ranges and benefits information in job ads, with the aim of improving pay equity for women and employees of color.

    The Washington and California laws also provide plaintiff applicants with a private right to sue, with Washington’s statute incentivizing plaintiffs to sue. It grants plaintiffs an award of actual damages proven or $5000, whichever is greater, plus attorney fees upon proving a pay transparency violation.

    Former Women’s Basketball Coach Loses Sex Discrimination Lawsuit

    The former head women’s basketball coach at the University of Montana has lost the sex discrimination lawsuit she filed following her termination after a poor win-loss record and serious culture complaints made by players and parents, including players threatening to leave the university if she remained as coach. The court also granted a positive inference to the university’s stated rationale for termination under the “same actor” doctrine, where in this case the same athletic director that hired the plaintiff was the person who made the decision to fire the plaintiff (Schweyen v. Univ of Montana–Missoula (2023 BL 390525, D. Mont. 9.21-cv-00138, 10/31/23)).

    The prior coach had a compiled 38-year performance of winning 75% of her games, while the plaintiff had only one winning season in the four years she served as head coach. The court rejected the plaintiff’s attempt to compare herself to a men’s basketball coach who had lost team players to transfer, citing multiple federal cases that have rejected arguments that disparate treatment between men’s and women’s sports teams creates an inference of discriminatory animus under Title VII.



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  • Gender-Inclusive HR Strategies: Are You on the Right Track? – CUPA-HR

    Gender-Inclusive HR Strategies: Are You on the Right Track? – CUPA-HR

    by Julie Burrell | November 6, 2023

    This year’s Transgender Awareness Week (November 13-19) is an opportunity for HR pros to educate themselves about daily steps that make a more inclusive workplace. It’s also a good time to review strategies for inclusion for all employees, including those who are transgender, nonbinary, and agender, among other gender identities.

    Small Steps to a More Gender-Inclusive Workplace

    At this year’s CUPA-HR annual conference, Jon Humiston of Central Michigan University laid out some simple actions everyone can take to make gender inclusiveness a daily practice. They suggest:

    • Use gender-inclusive language when referring to groups of people. For example, use terms like “people” or “individuals” rather than “ladies and gentlemen.”
    • Pay attention to the assumptions you make about someone’s gender identity and expression.
    • Feel free to ask about pronouns or share your own pronouns, but don’t require people to share theirs, as they may be uncomfortable doing so.
    • Use “pronouns” rather than “preferred pronouns,” since it’s not a preference but an identity.
    • Do know that it’s OK if you make a mistake by accidentally misgendering someone. Apologize and move on. If you repeatedly make the same mistake, it might be time to practice. Consider using AI, like ChatGPT, as a conversation tool or asking a friend to be a practice buddy.

    HR’s Role in Creating a Gender-Affirming Culture

    Jon also proposed a framework for higher ed HR to review inclusion policies, focusing on transgender and nonbinary employees, but with potential benefits for all employees. Reviewing the following questions (adapted from sources such as CUPA-HR and Out & Equal toolkits) will help you identify potential gaps in your institution’s efforts to be gender inclusive.

    Policies and Procedures

    • Do you have a non-discrimination policy that includes sexual orientation, sex (or biological sex), gender identity and gender expression?
    • Do you allow employees to identify their gender outside of the gender binary?
    • Do you have a name-in-use policy or chosen-name policy that is easy to access and navigate?
    • Do systems such as software allow for gender pronouns to be included?
    • Does health insurance cover benefits for transgender and nonbinary employees?
    • Is gender-inclusive language used in internal and external materials (marketing, job ads, etc.)?
    • Are gender-inclusive bathroom locations shared with all potential employees during the interview process and all new employees?

    Programmatic Support

    • Do you have an Employee Resource Group for LGBTQIA+ employees?
    • Do you have LGBTQIA+ safe-zone training available for all employees?

    Visibility

    • Does your institution publicly show its support of LGBTQIA+ communities during Pride Month, National Coming Out Day, National Day of Silence, etc.?
    • Does your institution publicly address hate and bias crimes that occur, or have a plan for doing so?
    • Does your institution have a presence at local LGBTQIA+ pride events?

    Making the Case for Gender Inclusion

    Policies that support LGBTQIA+ employees benefit all employees.

    For example, flexible work arrangements are desired by two-thirds of the higher ed workforce, yet most campus staff members must work on-site. For employees experiencing misgendering at work or in public, a day working from home might provide them the respite they need from the exhaustion of being misgendered or experiencing gender dysphoria.

    Both job seekers and current employees want their workplace cultures to be inclusive. According to a recent Workhuman study, 72 percent of employees see this as somewhat or very important to them. Inclusive cultures also promote creativity and innovation and may reduce absenteeism.

    Preventing workplace discrimination and harassment is also a matter of regulatory compliance. The EEOC recently published new proposed guidance on preventing workplace harassment, including several examples of discrimination and harassment on the basis of sexual orientation and gender identity.

    The Future of Gender Inclusion

    The makeup of the higher ed workplace won’t look the same in the years to come. The share of Americans who know someone whose gender differs from the sex they were assigned at birth continues to grow, with 44 percent of Americans saying they know someone who is trans and 20 percent saying they know someone who is nonbinary.

    If a major overhaul of institutional inclusion policies isn’t something you’re in a position to initiate, Jon suggests networking with your colleagues at other institutions to provide support, personally recognizing national days of awareness or remembrance, and encouraging allyship.

    Additional Resources

    Gender Identity and Sexual Orientation in the Workplace (CUPA-HR Toolkit)

    Assessing LGBTQI+ Inclusion in Your Workplace (Out & Equal Toolkit)

    A Guide to Gender Identity Terms

    What’s Your Pronoun? Strategies for Inclusion in the Workplace



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  • NLRB Issues Joint Employer Final Rule – CUPA-HR

    NLRB Issues Joint Employer Final Rule – CUPA-HR

    by CUPA-HR | October 27, 2023

    On October 26, 2023, the National Labor Relations Board (NLRB) released its final rule amending the standard for determining joint employer status under the National Labor Relations Act (NLRA). The rule replaces the board’s 2020 final rule on the same issue and greatly expands joint employer status under the NLRA.

    The final rule establishes joint employer status of two or more employers if they “share or co-determine those matters governing employees’ essential terms and conditions of employment,” such as wages, benefits and other compensation; work and scheduling; hiring and discharge; discipline; workplace health and safety; supervision; and assignment and work rules. Today’s final rule finds that either indirect control or reserved control may stand alone as sufficient for finding that a joint employer relationship exists. The final rule specifically states that an entity may be considered a joint employer if it possesses the authority to control one or more essential terms and conditions of employment, regardless of whether that authority is exercised, or if it exercises the power to indirectly control one or more terms and conditions of employment, regardless of whether that power is exercised directly. This is a departure from the 2020 rule, which found that an entity must exercise substantial direct and immediate control over essential terms and conditions of employment to be considered a joint employer.

    Joint employment has recently been a focal point for higher ed institutions as disputes around the worker classification of student-athletes continue. Last year, an NLRB regional office announced it would be pursuing a complaint by a student-athlete advocacy group that filed an unfair labor practice charge against that the University of Southern California, the Pac-12 Conference, and the NCAA, alleging that the three entities are joint employers who violated the NLRA by “repeatedly misclassifying employees as ‘student-athlete’ non-employees.” The case is set to be heard by an administrative law judge in November, but a final decision could take years to come to fruition.

    This final rule could have significant implications for private institutions, as they fall under the NLRB’s jurisdiction. Public institutions are not impacted by this rulemaking, as the NLRB does not have jurisdiction over public entities.

    CUPA-HR is assessing the final rule and will provide members with more information as it becomes available.



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  • EEOC Issues Proposed Updated Guidance on Workplace Harassment – CUPA-HR

    EEOC Issues Proposed Updated Guidance on Workplace Harassment – CUPA-HR

    by CUPA-HR | October 27, 2023

    On September 28, 2023, the U.S. Equal Employment Opportunity Commission (EEOC) published new proposed guidance for employees and employers on navigating and preventing workplace harassment. “Enforced Guidance on Harassment in the Workplace” highlights and upholds existing federal employment discrimination laws and precedence, such as the Pregnant Workers Fairness Act (PWFA) and the Supreme Court’s Bostock v. Clayton County decision.

    The Updated Guidance

    The proposed enforcement guidance provides an overview and examples of situations that would constitute workplace harassment. Of particular interest are provisions included that reflect new and existing protections from harassment under federal laws and precedence, as well as emerging issues surrounding the workforce. The guidance discusses the following notable provisions for consideration:

    • Pregnancy, childbirth and related medical conditions. The guidance states that sex-based harassment includes harassment revolving around pregnancy, childbirth or related medical conditions, all of which are protected under federal laws like the Pregnancy Discrimination Act and the recently enacted PWFA.
    • Sexual orientation and gender identity. The guidance provides several examples of discrimination and harassment on the basis of sexual orientation and gender identity, which is considered sex-based discrimination under Title VII of the Civil Rights Act after the Supreme Court’s 2020 Bostock v. Clayton County decision.
    • Virtual and online harassment. The guidance states that conduct within a virtual work environment can contribute to a hostile environment, providing examples such as harassing comments made during remote calls or discriminatory imagery being visible in an employee’s workspace while in a work-related video call. Additionally, the guidance provides examples of conduct on social media outside of work-related contexts that may contribute to hostile work environments if such conduct impacts the workplace.

    In the proposed guidance, the EEOC reminds stakeholders that the final guidance will “not have the force and effect of law” and that such guidance is “not meant to bind the public in any way.” Instead, the document “is intended only to provide clarity to the public regarding existing requirements under the law or Commission policies.”

    Looking Ahead

    The proposed guidance is open for public comments through November 1, 2023. Once the comment period closes, the EEOC will review all feedback they received and make changes to address the comments prior to issuing a final rule. CUPA-HR will keep members apprised of any updates on this EEOC guidance, as well as new and existing laws falling under the EEOC’s jurisdiction.



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  • Department of Education Issues Report on Diversity and Opportunity in Higher Education – CUPA-HR

    Department of Education Issues Report on Diversity and Opportunity in Higher Education – CUPA-HR

    by CUPA-HR | October 18, 2023

    On September 28, 2023, the Department of Education released a report titled “Strategies for Increasing Diversity and Opportunity in Higher Education.” The report was issued in response to the Supreme Court’s June 2023 ruling against affirmative action in college admissions and it outlines ways institutions and states can adapt to prioritize improved accessibility to educational opportunities for underserved students.

    The Report

    In an introductory message for the report, Secretary of Education Matthew Cardona emphasized the enduring commitment to equal opportunity and student body diversity in higher education on behalf of his department and the president’s administration. While condemning the Supreme Court’s decision on affirmative action, Cardona pledged the Department of Education’s and the Biden administration’s support in promoting inclusivity and equity and stimulating long-term prosperity.

    The Department of Education’s report centers around four areas that the administration believes institutions should consider when working to promote diversity and opportunity on campus: student recruitment, admissions, financial aid and student retention. The report focuses mostly on promoting diversity, equity and inclusion (DEI) initiatives in these areas to ensure underserved students have an equitable opportunity to be admitted into and succeed in postsecondary programs.

    Relevant to higher education HR, the report discusses the need for improved training of admissions officers and other employees to ensure consistent, equitable evaluations of applicants.

    Moving Forward

    Prior to the release of the Supreme Court’s affirmative action decision, stakeholders also raised concerns regarding the impact such a decision could have on hiring and employment decisions as well as programs or initiatives focused on creating diverse and inclusive workplaces that align with institutional values. The decision to strike down race-based affirmative action in admissions practices could leave employers open to future legal challenges regarding their hiring decisions and other diversity programs.

    CUPA-HR endorses efforts to promote inclusive communities on campuses across the nation. The government relations team continues to track developments impacting these efforts and will inform members of updates as they become available.



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  • Three Questions to Help You Build a Better Workplace Culture — Annual Conference Takeaways – CUPA-HR

    Three Questions to Help You Build a Better Workplace Culture — Annual Conference Takeaways – CUPA-HR

    by CUPA-HR | October 18, 2023

    Culture was at the heart of the three keynote events at CUPA-HR’s 2023 national conference, which took place recently in New Orleans. Our keynote speakers asked thought-provoking questions that resonate with higher ed HR’s mission. Engaging with these questions can help you boost employee engagement, promote a culture of inclusivity and strengthen collaboration with your campus colleagues.

    1. Are You Creating an Ecosystem of Opportunity?

    Organizations with strong learning cultures tend to have significantly higher retention rates.

    In her keynote presentation on employee retention, business strategist and author Erica Keswin pointed out that the days of climbing the same corporate ladder for 50 years are long gone. Organizations are flatter, which means you need to get creative to give people opportunities to move not only up, but sideways, helping them gain new skills and find new pathways for their careers. Instead of thinking “ladders,” Keswin said, think “lilypads.”

    She also encouraged attendees to talk about employee learning opportunities early and often, beginning with their onboarding programs! Managers should be talking regularly with employees about what skills they want to learn and giving them the opportunity to learn with no strings attached.

    The mission, values and priorities of higher education have learning at their core, and that culture of learning is a value proposition higher ed is uniquely positioned to provide as an employer. Make it work to your advantage by prioritizing learning and opportunity for all employees.

    Another key takeaway from Keswin’s presentation was the importance of being a “human professional” and checking in with your team on a regular basis. She shared the story of a company that starts team meetings with a quick check-in called “Pick Your Nic.” Referring to a popular meme of Nicolas Cage images representing different feelings (happy, relaxed, excited, focused, stressed, meh, etc.), each person picks the Nic that represents how they’re feeling that day. The goal isn’t to address the responses in the meeting, but rather to give the team leader the opportunity to take a pulse and to give team members the opportunity to be seen and heard.

    You’ll find more retention strategies in Keswin’s new book, The Retention Revolution: 7 Surprising (and Very Human!) Ways to Keep Employees Connected to Your Company. And be sure to check out the article “The Higher Ed Employee Retention Crisis — and What to Do About It” in the fall issue of Higher Ed HR Magazine.

    2. Are You Treating Diversity as a Problem to Be Managed or a Value to Be Cherished?

    When it comes to creating and sustaining a more inclusive culture, Princeton professor and religion scholar Dr. Eddie S. Glaude Jr. prompted attendees to consider a question: Do you view diversity as a problem to be managed or a value to be cherished?

    Through a problem-solving lens, we might see diversity as a series of goals to be met and obstacles to be overcome. Through the lens of a cherished value, on the other hand, we are more likely to see every situation as an opportunity to expand and celebrate diversity of people and ideas. A problem-solving lens divides “us” from “others,” while a value-based lens sees diversity as constitutive of who we are, as a people, a country and an institution. Instead of envisioning inclusion as something undertaken in response to a mandate or in compliance with a law, what if diversity was seen as key metric of an institution’s success?

    The data support the positive impact of diversity on metrics like productivity and creativity in the workplace, and Glaude urged higher education to also view diversity as an integral part of its core identity and a reflection of its regional or national reach.

    To see how your institution compares to others when it comes to composition of your workforce and pay equity for employees, see the results of CUPA-HR’s signature surveys.

    3. Are You Ramping Up Retention Efforts in Your Most Vulnerable Departments?

    Retention and recruitment were on everyone’s mind at CUPA-HR’s annual conference. The closing panel discussion brought together leaders in student affairs, campus facilities and IT and provided insights on how HR can partner with these campus constituencies to support a culture of belonging. Here are a few of their recommendations:

    Provide training opportunities.

    John O’Brien, president of EDUCAUSE, which represents IT professionals in higher ed, stressed the importance of career pathways to support employees’ desire to grow in their careers.

    Noting that “supervisors will make or break us,” Lander Medlin, president and CEO of APPA, which serves the needs of facilities professionals, stressed the critical role that supervisor training has on retention and workplace culture in facilities, where the aging of the skilled craft workforce has posed unique recruitment and retention challenges, and all areas.

    Ensure employees feel they belong and are valued.

    No matter their role on campus, employees want their opinions to be heard and valued.

    Kevin Kruger, president of NASPA, the association for student affairs administrators in higher education, noted that millennial and Generation Z employees especially want to feel cared about at work and to believe their opinions matter. Today, as all student affairs professionals find themselves on the front lines of the mental health crisis, they need supervisors who have the skills to meet them where they are and to create a culture of belonging.

    Medlin seconded the importance of feeling heard when it comes to job satisfaction. She would ask supervisors this question: Are you a coach and mentor, or are you a boss?

    Offer job flexibility.

    Some campus jobs don’t easily lend themselves to remote work, but that doesn’t mean institutions can’t build in flexibility, which CUPA-HR found is a key retention factor.

    For example, facilities employees might take advantage of a compressed workweek, with employees having the option to work four 10-hour shifts.

    Since student affairs professionals often work outside of a typical nine-to-five day, there’s room for remote work. In fact, students might prefer to meet with student affairs professionals remotely.

    If year-round remote work isn’t a possibility, seasonal flexibility might be. When students are off campus during holiday and summer break, your staff might be able to work from home.

    See employees as a strategic asset (and pay them accordingly).

    The three areas represented by the panel — IT, facilities and student affairs — are among the most vulnerable to turnover and recruitment challenges on most campuses. How can HR lead the way in creating a culture that positions these employees as strategic assets? The panel offered these suggestions, based on their unique perspectives:

    • O’Brien encouraged satisfaction surveys. Find what’s working well and replicate it.
    • Kruger recommended streamlining job searches, posting salary ranges, and focusing on internal pay equity and livable wages.
    • Medlin asked conference attendees to help us help you. How we treat people matters, and HR leads the way in building that culture of belonging.



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  • Federal Agencies Propose Major Changes to Mental Health Parity Regulations – CUPA-HR

    Federal Agencies Propose Major Changes to Mental Health Parity Regulations – CUPA-HR

    by CUPA-HR | October 11, 2023

    This blog post was contributed by Elena Lynett, JD, senior vice president at Segal, a CUPA-HR Mary Ann Wersch Premier Partner.

    Institutions generally provide comprehensive mental health and substance use disorder (MH/SUD) benefits as part of their commitment to creating a safe and nurturing campus. However, the Mental Health Parity and Addiction Equity Act (MHPAEA) requires that institutions providing MH/SUD benefits ensure parity in coverage between the MH/SUD and medical/surgical benefits. The Department of Health and Human Services, the Department of Labor, and the Department of the Treasury recently proposed major changes to the MHPAEA regulations for group health plan sponsors and insurers.

    The proposed changes address nonquantitative treatment limitations (NQTLs) — a term which references a wide range of medical management strategies and network administrative practices that may impact the scope or duration of MH/SUD benefits. Examples of NQTLs include prior or ongoing authorization requirements, formulary design for prescription drugs, and exclusions of specific treatments for certain conditions.

    If government agencies issue a final rule similar to the proposal, plans will face additional data collection, evaluation, compliance and administrative requirements. The most significant proposed changes are:

    • The “predominant/substantially all” testing that currently applies to financial requirements and quantitative treatment limitations under MHPAEA would apply as a threshold test for any NQTL;
    • New data collection requirements, including denial rates and utilization information;
    • A new “meaningful benefits” standard for MH/SUD benefits;
    • Detailed requirements regarding the documented comparative analysis that plans must have for each applicable NQTL;
    • Introduction of a category of NQTLs related to network composition and new rules aimed at creating parity in medical/surgical and MH/SUD networks;
    • Prohibition on separate NQTLs for MH/SUD;
    • For plans subject to the Employee Retirement Income Security Act of 1974 (ERISA), a requirement that a named fiduciary would have to review and certify documented comparative analysis as complying with MHPAEA; and
    • For non-federal governmental plans, sunset of the ability to opt out of compliance with the MHPAEA rules.

    For more information on the proposed rules, see Segal’s August 1, 2023 insight.

    The deadline to comment on the proposed rules is October 17, 2023. If interested, your institution may file comments here. CUPA-HR will be filing comments with other associations representing higher education and plan sponsors. As proposed, plans could be expected to comply as early as the first day of any plan year beginning on or after January 1, 2025.



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

    HR and the Courts — October 2023 – CUPA-HR

    by CUPA-HR | October 10, 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.

    Governor Newsom Vetoes Bill That Would Ban Caste Discrimination

    California Governor Gavin Newsom vetoed what would have been the first specific state ban on employment discrimination on the basis of caste. Seattle recently became the first U.S. municipality to ban caste discrimination. The California bill would have added caste to the definition of ancestry, which is already included in state law. The governor stated in his veto declaration that existing law already covers this type of discrimination. Commentators weighed in on both sides of this conclusion, some stating there is no specific case law on this question.

    Caste is defined as a system of rigid social stratification based on a person’s birth and ancestry and primarily affects people of South Asian descent. Allegations of caste discrimination have recently arisen and gained notoriety in California’s tech industry. This proposal has been subject to much controversy in California, including a hunger strike by those supporting the proposal.

    University Trustees May Be Sued for Professor’s Alleged First Amendment Claims

    The 5th U.S. Circuit Court of Appeals (covering Louisiana, Mississippi and Texas) recently rejected a university board of trustees’ motion to dismiss First Amendment lawsuit allegations against them, holding that sovereign immunity did not apply to the board members (Jackson v. Wright (5th Cir., No. 22-40059, 9/15/23)).

    The case involves eight members of the University of North Texas board of regents who were sued by a music professor. The professor lost his position as editor in chief of a university music journal because of alleged “racial statements” contained in an article he published in advance of a 2020 symposium sponsored by the journal.

    In denying the sovereign immunity defense, the court concluded that the trustees had direct authority over university officials who denied the professor his First Amendment rights. The court noted that the trustees had refused to act on a letter the professor had submitted to the trustees raising the issue.

    SEIU Local 560 Files NLRB Petition to Represent the Dartmouth College Men’s Basketball Team

    To address the student-athlete employee status issue encouraged by the existing National Labor Relations Board’s general counsel, Service Employees International Union Local 560 has brought a petition to the NLRB to represent the Dartmouth College men’s basketball team in collective bargaining negotiation with the institution. This is nearly a decade after the NLRB denied jurisdiction over student athletes in the Northwestern case. If the SEIU is successful, it would be the first case involving potential unionization of college athletes.

    The filing follows on the heels of the favorable Supreme Court decision striking down the NCAA’s ban on compensation of student-athletes for name, image and likeness in the 2021 case NCAA v. Alston. While the Supreme Court did not address the labor organizing question under the National Labor Relations Act for student athletes, it certainly took the first step in recognizing the group as employees.

    This case brings an added mechanism for the NLRB to decide whether student-athletes are protected under the NLRA and able to organize into labor unions. The NLRB’s general counsel already raised the issue in May of this year in the case brought against the University of Southern California, the Pac-12 Conference, and the NCAA, in which they are alleged to have violated the NLRA in failing to recognize student-athletes as employees.

    On the first day of the NLRB hearing, Dartmouth took the position that the athletes involved are students who do not meet any of the common law attributes of employees and, therefore, are not union-eligible employees under the NLRA.

    Undergraduate Student-Employee Union Organizing Is Expanding, Leading the Way to More Organization Drives

    Bloomberg reports that there are now over a dozen colleges in the U.S. with undergraduate student-employee unions. This is up from just two before 2022. Pay, sick leave and insecurity due to the COVID-19 pandemic have been reported as reasons prompting this significant increase in undergraduate employee organizing, which appears to be motivating expanded organizing at the graduate assistant and professor levels.

    A union-organizing campaign appears to be proceeding across campus lines at the California State University System, where a union is organizing as many as 20,000 undergraduate workers at 23 campuses, Bloomberg reports. Separately, 4,000 University of Oregon student employees are set to vote next month on union representation.

    Fired Football Coach Sues University, Seeks $130 Million in Damages

    A former Northwestern University football coach has sued the university and its president for wrongful discharge and defamation and is seeking a minimum of $130 million in damages. The lawsuit alleges that the coach was fired for “no reason whatsoever.”

    The coach was placed on a two-week unpaid suspension after a six-month investigation revealed incidents of hazing within the football program. The report was allegedly inconclusive as to whether the coaches were aware of the hazing. Details of the actual termination will be the subject of the trial. We will follow developments as they unfold.



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  • Keys to Retaining Supervisors in a Time of Turnover – CUPA-HR

    Keys to Retaining Supervisors in a Time of Turnover – CUPA-HR

    by CUPA-HR | October 3, 2023

    While the ongoing turnover crisis impacts all of higher ed, supervisors are among the hardest hit. In our recent study, The CUPA-HR 2023 Higher Education Employee Retention Survey, supervisors say they’re grappling with overwork and added responsibilities (especially when their staff members take other jobs), while struggling to maintain morale.

    Supervisor retention is especially critical in a time of turnover, as these are the employees we rely on most to preserve institutional knowledge and provide continuity amid transition. But our research shows that many supervisors are not getting the kinds of institutional support they need. By empowering managers to make decisions on behalf of their staff, institutions make it less likely that their supervisors will seek employment opportunities elsewhere.

    The Supervisor’s Perspective

    Taking a closer look at the data, it’s clear that supervisors are overworked and under-resourced. Seven in ten work more hours than what is expected of full-time employees at their institution. Nearly double the percentage of supervisors versus non-supervisors agree that it is normal to work weekends and that they cannot complete their job duties working only their institution’s normal full-time hours.

    Supervisors are also facing challenges unique to their leadership roles. Filling vacant positions and maintaining the morale of their staff are their chief worries:

    Strategies for Supervisor Retention

    Given the pressures supervisors are under, what can institutions do to ensure that their top talent won’t seek other employment? While common retention incentives like increased pay and recognition are crucial, supervisors need improved institutional support.

    Our data show that supervisors are in need of the following:

    When supervisors are empowered in these ways, they are less likely to be among the 56 percent of employees who say they’re at least somewhat likely to search for a new job in the coming year.

    Additional Resources

    Managing Stress and Self-Care: “No” Is a Complete Sentence (On-Demand Webinar, August 2023)

    Ready to Crack: Solutions for HR Managers Dealing With Burnout (Spring 2022)

    Health and Well-Being Toolkit

    Management and Supervisor Training Toolkit



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  • Hybrid, Remote and Flexible Work: The Secret Sauce for Employee Retention? – CUPA-HR

    Hybrid, Remote and Flexible Work: The Secret Sauce for Employee Retention? – CUPA-HR

    by CUPA-HR | September 19, 2023

    Given the number of employees who successfully executed their work remotely at the height of the pandemic, it may come as no surprise that a substantial gap exists between the work arrangements that higher ed employees want and what institutions offer. According to the new CUPA-HR 2023 Higher Education Employee Retention Survey, although two-thirds of employees state that most of their duties could be performed remotely and two-thirds would prefer hybrid or remote work arrangements, two-thirds of employees are working completely or mostly on-site.

    Inflexibility in work arrangements could be costly to institutions and contribute to ongoing turnover in higher ed. Flexible work is a significant predictor of employee retention: Employees who have flexible work arrangements that better align with their preferences are less likely to look for other job opportunities.

    Flexible Work Benefits: A No-Brainer for Retention

    While more than three-fourths of employees are satisfied with traditional benefits such as paid time off and health insurance, survey respondents were the most dissatisfied with the benefits that promote a healthier work-life balance. These include remote work policies and schedule flexibility, as well as childcare benefits and parental leave policies.

    Most employees are not looking for drastic changes in their work arrangements. Even small changes in remote policies and more flexible work schedules can make a difference. Allowing one day of working from home per week, implementing half-day Fridays, reducing summer hours and allowing employees some say in their schedules are all examples of flexible work arrangements that provide employees some autonomy in achieving a work-life balance that will improve productivity and retention.

    A more flexible work environment could be an effective strategy for institutions looking to retain their top talent, particularly those under the age of 45, who are significantly more likely not only to look for other employment in the coming year, but also more likely to value flexible and remote work as a benefit. Flexible work arrangements could also support efforts to recruit and retain candidates who are often underrepresented: the survey found that women and people of color are more likely to prefer remote or hybrid options.

    Three Things You Can Do

    1. Use Data to Make a Case for Change. The CUPA-HR 2023 Higher Education Employee Retention Survey provides multiple data points that support remote, hybrid and flexible work for the retention and recruitment of top talent.
    1. Explore CUPA-HR Resources. Discover best practices and policy models for navigating the challenges that come with added flexibility, including managing a multi-state workforce:
    1. Remember the Two-Thirds Rule. In reevaluating flexible and remote work policies, remember: Two-thirds of higher ed employees believe most of their duties can be performed remotely and two-thirds would prefer hybrid or remote work arrangements, yet two-thirds are compelled to work mostly or completely on-site.

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