Tag: CUPAHR

Department of Labor Moves on Proposed Overtime Rule – CUPA-HR

by CUPA-HR | July 13, 2023

Yesterday, the Department of Labor (DOL) sent its proposed rule on “Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales and Computer Employees” to the White House Office of Information and Regulatory Affairs (OIRA) for review. This is a required initial step before the proposed overtime rule is published.

OIRA, part of the president’s Office of Management and Budget (OMB), is required to review all proposed and final rules, as well as all regulatory actions, before implementation. While OIRA has 90 days to conduct its review, in most cases, the review takes 30 to 60 days. If this timetable holds true, DOL stands a reasonable chance of publishing a proposed rule sometime close to the August 2023 target date set forth in the Spring 2023 Regulatory Agenda.

The proposed rule is not public during OIRA’s review, so at this time we do not have any specific details on what the proposal contains. However, OIRA takes meetings to hear from concerned parties about proposed rules under their review, and CUPA-HR will be requesting a meeting to reiterate concerns we have set forth in letters to DOL since the proposal appeared on the Fall 2021 Regulatory Agenda.

We’ll be sure to keep CUPA-HR members updated on all the latest details regarding the proposed overtime rule and possible advocacy opportunities during the OIRA review process.

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July 13, 2023
HR and the Courts — July 2023 – CUPA-HR

by CUPA-HR | July 5, 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.

Supreme Court Holds That Use of Race as a Factor in College Admissions Is Unconstitutional — Impact on Workplace Affirmative Action Plans Not Immediate

Rejecting the arguments of Harvard University, the University of North Carolina, and the Biden administration that these programs were necessary to ensure campus diversity the Supreme Court ruled 6 to 3 on June 29, 2023, that the universities’ use of race in their specific admission programs violates the equal protection clause of the Fourteenth Amendment. The decision is 237 pages long with majority, concurring, and dissenting opinions. The majority decision is 47 pages.

Chief Justice Roberts, who wrote the majority opinion, concluded that these affirmative action programs, “… lacked sufficiently focused and measurable objectives warranting the use of race, … involve racial stereotyping, and lack meaningful end points.” He also concluded, “We have never permitted admission programs to work that way and we do not do so today.”

The immediate impact on employment-based affirmative action plans and DEI initiatives is unclear and will unfold as new cases arise, testing the breadth of this decision. We will continue to monitor developments in the employment area as they occur.

Supreme Court Eases an Employee’s Ability to Prove Religious Discrimination When an Employer Denies a Request for an Employment-Based Religious Accommodation

In a case involving the U.S. Postal Service’s denial of a Christian employee’s request to be exempt from Sunday work, the Supreme Court modified the test applicable to an employer’s denial of a religious accommodation.

In 1977, the Supreme Court ruled that under Title VII an employer could deny an employee’s request for a religious accommodation if the employer could demonstrate that the accommodation would create a “undue burden” (TWA v. Hardison). In its decision last month, the Supreme Court interpreted the long-standing Hardison rule to mean that in order for an employer to deny an employee’s request for a religious accommodation, the employer must show that the burden of granting the accommodation “would result in substantial increased costs in relation to the conduct of its particular business” (Groff v. DeJoy (U.S. No. 22-174, 6/29/23)).

The plaintiff here asked the Supreme Court to modify the standard for denial of a religious accommodation to be consistent with the standard for denial of an ADA accommodation. The Supreme Court did not grant that request but has clearly raised the employer’s burden in being able to reject a religious-based accommodation from the prior standard, which has applied since 1977.

Federal Court of Appeals Rules Offensive Music in the Workplace Is Actionable Sex Harassment — Rejects Dismissal Because It Is Offensive to Both Sexes

The 9th Circuit Court of Appeals (covering California, Oregon, Washington, Idaho, Montana, Nevada and Arizona) reversed a federal trial court dismissal of a sex-harassment hostile-environment complaint brought by warehouse workers who complained about offensive, sexually graphic and misogynistic music played by coworkers and supervisors. The trial court dismissed the case on “equal opportunity harassment” grounds because the music was offensive to both sexes. The Court of Appeals disagreed, holding that sex-based discrimination violates Title VII even if it is directed at more than one sex and can create a hostile work environment which is actionable (Sharp v. S&S Activewear LLC (9th Cir. Blom. DLR, 6/9/23)).

The Court of Appeals effectively put an end to the defense that has become known as the “equal opportunity harasser” defense.

University Prevails Against Tenured Professor for Hostile-Environment Sex Harassment — Appeals Court Rejects Defenses That Education Department and University Enforcement of Title IX Is Anti-Male

The 4th Circuit Court of Appeals (covering Virginia, Maryland, West Virginia, North Carolina and South Carolina) affirmed the lower court decision dismissing the action of a tenured psychology professor at George Mason University contesting the sanctions the institution applied following a decision that he created a sex-harassment hostile environment for graduate students. Four students complained that he shared explicit sex talk regarding his sexual exploits and asked questions about their sex lives and that they were forced to participate in the conversations in order to receive favorable treatment regarding research and education opportunities. The university continued to employ the professor as a tenured psychology professor, but banned him from teaching graduate level courses and mentoring graduate students for approximately two years, and disaffiliated him with the university’s clinical psychology program for five to six years.

The appeals court rejected his due-process allegations, concluding that the sanctions did not amount to a “significant demotion” because he is still employed as a tenured professor and the sanctions are not permanent (Kashdan v. George Mason University (4th Cir. No. 20-01509, 6/13/23)). The court rejected his male-bias accusations levelled against the university, its Title IX coordinator, its compliance coordinator, and the Education Department, concluding that all the general statements he raised did not amount to anti-male bias.

Professor Sues University Over “Anti-Racism Training,” Claiming It Created a “Racially Hostile Environment”

An English professor at Penn State University has sued the university, claiming its anti-racism training created a hostile work environment for him, which forced him to resign his position. He is seeking a declaratory judgement from the federal court that the university is in violation of “federal civil rights and free speech laws,” the removal of disciplinary records from his file, and other damages. He is claiming that the university’s anti-racism training and other race policies created a hostile work environment for him as a White English professor. He also claims he was asked to equalize student outcomes by race in his grading of students (De Piero v. Pa. State University (E.D. Pa. 23-cv-02281, Comp filed 6/14/23)). We will follow developments in this litigation as it unfolds.

Court Rules for Employer That Anonymous Hate Mail Does Not Create Actionable Hostile Work Environment

A federal district court judge recently dismissed a claim of hostile work environment related to the receipt of anonymous hate mail written on office letterhead and other anonymous hate communications received by an employee. The employee involved shared the anonymous letters and communication put on the windshield of her car with her employer. The employer immediately treated the incidents as a hate crime, contacted the police, and embarked on an internal investigation which was not successful in finding the perpetrator. The employer allowed the employee to work from home on request and provided other requested accommodations based on the employee’s claim of post-traumatic stress and other related ailments.

The court dismissed the hostile environment case, holding that the anonymous letters could not be attributed to the employer and that the employer’s response was reasonably calculated to end the harassment (Washington v. Offender Aid and Restoration (2023 BL 205479, W.D. Va. No. 3:22- cv- 00041, 6/15/23)). The court also dismissed the plaintiff’s disability claims, concluding that the employer also accommodated all of plaintiff’s requests for accommodation.

Reinstated Athletic Coach Awarded Nominal $1 in Damages for Being Denied “Name Clearing” Hearing After Raising Due-Process Violations

A federal jury handed down a verdict in the case of an athletic coach who was reinstated by the college with back pay after he filed a due-process claim, but was denied a “name clearing” hearing to repair the alleged damage to his reputation. The plaintiff was a substitute athletic manger at Bronx Community College, which is part of the City University of New York (CUNY).

The jury awarded the plaintiff $1 as nominal damages but denied his claim for economic relief, as the plaintiff had been placed on administrative leave with pay during the investigation. He was then fired. However he received back pay as part of his reinstatement after filing the due-process claim (Knights V. C.U.N.Y. ( E.D.N.Y. 19-CV-480 (FB) jury verdict 6/23/23)).

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July 5, 2023
Supreme Court Rules Against Affirmative Action – CUPA-HR

by CUPA-HR | June 29, 2023

This morning, the Supreme Court issued rulings for the cases Students for Fair Admissions v. Harvard and Students for Fair Admissions v. University of North Carolina (UNC), both of which concerned the use of race-based affirmative action in admissions decisions at colleges and universities. The court ruled in favor of Students for Fair Admissions, ultimately striking down the practice of race-conscious admissions decisions on campus.

The Decision

In a 6-3 decision written by Chief Justice John Roberts, the court held that Harvard’s and UNC’s admissions programs violate the equal protection clause of the Fourteenth Amendment. To summarize his arguments, Roberts noted that using a racial classification is only constitutionally permissible if doing furthers a “compelling governmental interest” and is “‘narrowly tailored’— meaning ‘necessary’— to achieve that interest.” He added that while “remediating specific, identified instances of past discrimination” can constitute a compelling interest that justifies race-based state action, “ameliorating societal discrimination does not.” Roberts continued by stating that “[u]niversity programs must comply with strict scrutiny … may never use race as a stereotype or negative, and — at some point — they must end.” He finished by stating the “respondents’ admissions systems — however well intentioned and implemented in good faith — fail each of these criteria [and] therefore [are invalid] under the Equal Protection Clause of the Fourteenth Amendment.”

As an initial matter, Roberts noted that for universities to operate a “race-based admissions programs in a manner that” satisfies constitutional muster, it must be “‘sufficiently measurable to permit judicial [review].’” He found both universities failed to do so, stating:

“Harvard identifies the following educational benefits that it is pursuing: (1) ‘training future leaders in the public and private sectors’; (2) preparing graduates to ‘adapt to an increasingly pluralistic society’; (3) ‘better educating its students through diversity’; and (4) ‘producing new knowledge stemming from diverse outlooks.’ (…) UNC points to similar benefits, namely, ‘(1) promoting the robust exchange of ideas; (2) broadening and refining understanding; (3) fostering innovation and problem-solving; (4) preparing engaged and productive citizens and leaders; [and] (5) enhancing appreciation, respect, and empathy, cross-racial understanding, and breaking down stereotypes.’ (…) Although these are commendable goals … it is unclear how courts are supposed to measure any of [them].”

Secondarily, Roberts found the “respondents’ admissions programs fail to articulate a meaningful connection between the means they employ and the goals they pursue,” as well as “how assigning students to (…) racial categories and making admissions decisions based on them furthers the educational benefits that the universities claim to pursue.” Roberts states that “[r]acial classifications are simply too pernicious to permit any but the most exact connection between justification and classification.” On this point, Roberts concluded that the “categories [used by the universities] are themselves imprecise in many ways” and that institutions “would apparently prefer a class with 15% of students from Mexico over a class with 10% of students from several Latin American countries, simply because the former contains more Hispanic students than the latter.”

Additionally, Roberts states that “race may never be used as a ‘negative’ and that it may not operate as a stereotype,” and he argues the universities’ admissions policies failed because they did both. With respect to the first item, Roberts said “the District Court observed that Harvard’s ‘policy of considering applicants’ race (…) overall results in fewer Asian American and white students being admitted.’” With respect to the stereotypes, he found the policies at issue allocated preference to those “who may have little in common with one another but the color of their skin [and that t]he entire point of the Equal Protection Clause is that treating someone differently because of their skin color is not like treating them differently because they are from a city or from a suburb, or because they play the violin poorly or well.”

Finally, Roberts found that “admissions programs also lack a ‘logical end point,’ which the majority found was needed under the court’s jurisprudence.

The chief justice closed his opinion by stating that colleges and universities are not prohibited from considering an applicant’s “discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise,” but institutions are banned from establishing admissions programs and practices that explicitly consider race. The opinion elaborates, “A benefit to a student who overcame racial discrimination, for example, must be tied to that student’s courage and determination. Or a benefit to a student whose heritage or culture motivated him or her to assume a leadership role or attain a particular goal must be tied to that student’s unique ability to contribute to the university. In other words, the student must be treated based on his or her experiences as an individual — not on the basis of race.”

Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson issued a dissenting opinion in both cases (To note: Jackson did not take part in considering the decision in the Harvard case due to her previous connection with Harvard College). Sotomayor wrote in the dissenting opinion that the court’s decision “rolls back decades of precedent and momentous progress” and that it “holds that race can no longer be used in a limited way in college admissions to achieve such critical benefits,” which “cements a superficial rule of colorblindness as a constitutional principle in an endemically segregated society where race has always mattered and continues to matter.”

In August 2022, CUPA-HR joined the American Council on Education and others in filing an amicus brief in support of Harvard and UNC. The brief argued that the Supreme Court should rule in favor of preserving race-conscious affirmative action, as has been made precedent for decades. The brief highlights the value of considering race and ethnicity during the admissions process and the broader impact such initiatives have for institutions’ efforts to increase diversity on campus.

The Decision

Prior to the rule’s issuance, stakeholders also raised concerns with the impact the decision could have on employers’ hiring and employment decisions as well as any diversity, equity and inclusion (DEI) programs or initiatives. Today’s decision to strike down race-based affirmative action in admissions practices could leave employers open to future legal challenges against their hiring decisions and other diversity programs.

CUPA-HR strongly supports the need to create and sustain diverse, inclusive college and university communities. We’re disappointed that the Supreme Court’s action has limited our efforts. CUPA-HR’s government relations team is further analyzing the decision and will keep members apprised of any additional updates as it relates to these cases.

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June 29, 2023
Senate Holds Markup of the Paycheck Fairness Act, Healthy Families Act and PRO Act – CUPA-HR
by CUPA-HR | June 28, 2023

On June 21, the Senate Health, Education, Labor, and Pensions (HELP) Committee held a markup of three labor bills championed by Democrats: the Paycheck Fairness Act (S. 728), the Healthy Families Act (S. 1664), and the Protecting the Right to Organize (PRO) Act (S. 567). The three bills passed out of the committee by a vote of 11-10 along party lines, demonstrating the challenge these bills will face to be passed into law.

Paycheck Fairness Act

The Paycheck Fairness Act aims to address wage discrimination on the basis of sex. More specifically, the bill limits an employer’s defense that a pay differential is based on a factor other than sex, enhances non-retaliation prohibitions, prohibits employee contracts or waivers banning them from disclosing wage information, and increases civil penalties for violations of equal-pay provisions.

Ranking Member Bill Cassidy (R-LA) introduced several amendments to the proposed Paycheck Fairness Act, including an amendment to substitute the text with the Wage Equity Act. The Wage Equity Act would protect employers’ ability to use bona fide business-related factors other than sex to set workers’ compensation and allow workers to voluntarily disclose their prior salary histories when they choose to do so. The amendment was ultimately defeated by a vote of 9-12, with Sen. Rand Paul (R-KY) joining Democrats in voting against the amendment.

Healthy Families Act

The Healthy Families Act permits employees of businesses with 15 or more workers to accrue up to seven job-protected paid sick days each year to recover from an illness and provide care to a sick family member, among other health-related activities. For employers with 15 or fewer employees, the bill would allow employees to earn up to seven job-protected unpaid sick days each year to be used for the same purposes. Under the bill, workers would accrue one hour of sick leave for every 30 hours worked, with a cap of 56 hours that may be raised by the employer.

Cassidy offered two amendments to the bill that would exempt employers from the requirements of the bill if they already offer paid sick leave that is at least as comprehensive as the seven-day requirement or if they are religious employers denying sick leave taken for reasons that violate their religious beliefs. Both amendments were struck down by Democrats.

PRO Act

The PRO Act is a massive labor reform bill designed to increase union density. The bill includes several provisions that would overhaul existing labor laws — including the National Labor Relations Act (NLRA), the Taft-Hartley Act, and the Labor-Management Reporting and Disclosure Act — and may impose burdens on both employers and employees. Such provisions include:
- codifying the National Labor Relation Board (NLRB)’s Browning-Ferris Industries joint-employer standard;
- imposing the “ABC test” into the NLRA for classifying employees, making it more difficult for workers to operate as independent contractors;
- preempting state right-to-work laws that prevent forced unionization;
- prohibiting arbitration agreements in employment contracts;
- revoking attorney-client confidentiality for employers; and
- facilitating secondary boycotts by barring claims against unions that conduct them.
The PRO Act has been strongly criticized by congressional Republicans over the past several congressional sessions, and committee Republicans offered 35 amendments to modify the current text of the PRO Act. All 35 amendments were ultimately defeated when brought to a vote.

Looking Ahead

Despite the passage of these bills through the Senate HELP Committee, they are unlikely to be signed into law. Due to their partisan support, the bills are unlikely to garner enough support to bypass the 60-vote filibuster on the Senate floor and to be considered in the Republican-controlled House.

CUPA-HR will keep members apprised of future developments on these bills.

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June 28, 2023
CUPA-HR Welcomes a New Board of Directors for 2023-24 – CUPA-HR
by CUPA-HR | June 28, 2023

As we prepare for a new year at CUPA-HR, beginning July 1, we want to take a moment to introduce our board of directors for 2023-24 and to thank those who have served on the board over the past year. The board, which guides the association’s strategic priorities, is an incredible team of higher ed HR leaders who are dedicated to supporting and advancing the higher ed HR profession.

2023-24 Board Members

The chair of CUPA-HR’s board of directors for 2023-24 is Jami Painter, senior associate vice president and chief human resources officer at the University of Illinois System. For more than 20 years, Jami has served in a higher ed HR role that requires leadership for system-wide committee facilitation and workgroups with varying audiences, cultures, priorities and interests. She also brings a wealth of experience from her eight years in HR outside of higher ed and her time serving in board roles for several local and statewide organizations. Jami has been a member of CUPA-HR’s national board since 2019.

Also serving on this year’s board are:

Executive Committee Members

Robyn Salvo, Chair-Elect – Associate Vice President for Human Resources at Monmouth University

Jay Stephens, Past Chair – Vice President for Human Resources Projects at Kansas State University

Kelli Shuman, Treasurer – Associate Vice President for Human Resources and Chief Human Resources Officer at Elon University

Andy Brantley, Ex-Officio – President and CEO at CUPA-HR

Regional Directors

Kristi Yowell, Eastern Region – Associate Vice President for Human Resources at Goucher College

Connie Putland, Midwest Region – Chief Human Resources Officer at the University of Wisconsin-Whitewater

Ale Kennedy, Southern Region – Associate Vice President for Human Resources and Chief Human Resources Officer at Clemson University

Clarity White, Western Region – Human Resources Supervisor at the University of California, Berkeley, Berkeley Regional Services

At-Large Directors

Heather Hart – Vice Chancellor of Human Resources and Strategic Operations at Ivy Tech Community College of Indiana-Lafayette

El pagnier Kay (EK) Hudson – Senior Vice President, Human Resources at Florida International University

Jazzmine Clarke-Glover – Vice President of Workplace Culture and Inclusion (CHRO, CDO, Title IX Coordinator) at Wagner College

Christine Lovely – Vice President and Chief Human Resources Officer at Cornell University

Josh Mackey – Vice President of Human Resources at Northern Arizona University

Helena Rodrigues – Senior Vice President and CHRO at the University of Arizona

Eugene Whitlock – Chief People and Culture Officer/Associate Vice Chancellor for HR at the University of California-Berkeley

Lynne Adams – CHRO-Associate Vice President HR at the University of Maryland, Baltimore County

Maureen Binder – Associate Vice President and Chief HR Officer at the University of Central Florida

Thank You!

We also want to celebrate the outstanding leaders who are rolling off the board. They have invested countless hours of their time and energy in leading our profession and our association, and we are so grateful for their wisdom and guidance.

Jeff C. Herring, Past Chair – Chief Human Resources Officer at The University of Utah

Amanda Bailey – Vice President for Human Resources at Boston University

Theresa Elliot-Cheslek – Vice President and Chief Human Resource Officer at Washington State University

Renee Hiller – Vice President for Human Resources and Workplace Experience at St. Cloud State University

We couldn’t accomplish our mission without our leaders. Thank you for your dedication and commitment!

CUPA-HR’s 2022-23 Board of Directors

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June 28, 2023
Biden Administration Releases Spring 2023 Regulatory Agenda – CUPA-HR
by CUPA-HR | June 26, 2023

On June 14, the Biden administration released its Spring 2023 Unified Agenda of Regulatory and Deregulatory Actions (Regulatory Agenda), providing the public with an update on the regulatory and deregulatory activities under development across approximately 67 federal departments, agencies and commissions. This release serves as the first Regulatory Agenda for the 2023 year, setting target dates for regulatory actions in the coming year.

CUPA-HR’s government relations team has completed a thorough review of the Spring 2023 Regulatory Agenda and put together the following list of noteworthy proposed actions for members.

Department of Labor

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

According to the Regulatory Agenda, the Department of Labor (DOL)’s Wage and Hour Division (WHD) has again delayed the Notice of Proposed Rulemaking (NPRM) to address changes to the Fair Labor Standards Act (FLSA)’s overtime pay requirements to August 2023. The WHD first announced their intention to move forward with the NPRM in the Fall 2021 Regulatory Agenda, stating its goal “to update the salary level requirement of the section 13(a)(1) exemption [under the FLSA].”

As a reminder, changes to overtime pay requirements have been implemented through regulations under both the Obama and Trump administrations. In May 2016, the Obama administration’s DOL issued a final rule increasing the salary threshold from $23,660 to $47,476 per year and imposed automatic updates to the threshold every three years. However, court challenges prevented the rule from taking effect, and it was permanently enjoined in September 2017. After the Trump administration started the rulemaking process anew, the DOL issued a new final rule in September 2019 raising the minimum salary level required for exemption from $23,660 annually to $35,568 annually. This final rule went into effect January 1, 2020, and remains in effect today.

Since the regulation’s reintroduction in the Fall 2021 Regulatory Agenda, CUPA-HR has participated in several DOL listening sessions and has sent letters to the DOL expressing concerns with the timing of the rulemaking. In a recent letter, CUPA-HR joined other associations in calling for the Department to postpone or abandon the anticipated overtime rulemaking, citing concerns with supply chain disruptions, workforce shortages, inflation, and shifting workplace dynamics.

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

In August 2023, the WHD anticipates issuing a final rule to amend the current method for determining independent contractor status for workers.

On October 13, 2022, the DOL published an NPRM to rescind the current method for determining independent contractor status under the FLSA. The current test, finalized by the Trump administration in 2021, has two core factors of control and investment with three additional factors (integration, skill and permanency) that are relevant only if those core factors are in disagreement. The Biden rule proposes a return to a “totality-of-the-circumstances analysis” of multiple factors in an economic reality test, including the following six factors, which are equally weighted with no core provisions:
- the extent to which the work is integral to the employer’s business;
- the worker’s opportunity for profit or loss depending on managerial skill;
- the investments made by the worker and the employer;
- the worker’s use of skill and initiative;
- the permanency of the work relationship; and
- the degree of control exercised or retained by the employer control.
Employment and Training Administration — Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States

The DOL’s Employment and Training Administration (ETA) has moved the “Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States” proposed rule to the list of long-term actions to be taken by the agency, anticipating a release of the NPRM in June 2024. According to the listing in the regulatory agenda, the NPRM will seek to establish “a new wage methodology for setting prevailing wage levels for H-1B/H-1B1/E-3 and PERM programs consistent with the requirements of the Immigration and Nationality Act.”

The upcoming NPRM will likely amend the Trump administration’s final rule that was scheduled to take effect on November 14, 2022, but was subsequently vacated by a federal court in June 2021. The new proposal will take into consideration the feedback it received in response to a Request for Information (RFI) on data and methods for determining prevailing wage levels “to ensure fair wages and strengthen protections for foreign and U.S. workers.”

CUPA-HR filed comments in opposition to the Trump administration’s regulations on the issue and in response to the Biden administration’s RFI.

Department of Education

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

In October 2023, the Department of Education’s Office for Civil Rights (OCR) plans to release its highly anticipated Title IX final rule. The rulemaking would finalize the June 2022 NPRM to roll back and replace the Trump administration’s 2020 regulations while simultaneously expanding protections against sex-based discrimination to cover sexual orientation, gender identity, and pregnancy or related conditions.

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

On May 26, the Department of Education published a blog post stating that the release of the anticipated Title IX final rule will be delayed until at least October 2023. The final rule was previously targeted in the Fall 2022 Regulatory Agenda for May 2023. The department stated that they need additional time to review the 240,000 comments they received in response to the Title IX proposed rule.

Nondiscrimination on the Basis of Sex in Athletics Education Programs or Activities Receiving Federal Financial Assistance

The Department of Education also plans to release the Title IX final rule for student eligibility in athletic programs in October 2023. The rule would finalize the NPRM that was released by the Department in April 2023.

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

The NPRM received over 150,000 comments addressing support for and concerns with the NPRM. Again, the Department must review all comments before issuing a final rule to implement these regulations, which may lead to a further delay.

National Labor Relations Board

Joint Employer

In August 2023, the National Labor Relations Board (NLRB) plans to release its anticipated final rule to amend “the standard for determining whether two employers, as defined under the National Labor Relations Act (NLRA), are a joint employer under the NLRA.”

On September 7, 2022, the NLRB issued an NPRM on the joint employer standard. The NPRM establishes joint employer status of two or more employers if they “share or co-determine those matters governing employees’ essential terms and conditions of employment,” such as wages, benefits and other compensation; work and scheduling; hiring and discharge; discipline; workplace health and safety; supervision; and assignment and work rules. According to the NLRB’s press release, the board “proposes to consider both direct evidence of control and evidence of reserved and/or indirect control over these essential terms and conditions of employment when analyzing joint-employer status.”

Department of Homeland Security

U.S. Immigration and Customs Enforcement — Optional Alternative to the Physical Examination Associated With Employment Eligibility Verification (Form I-9)

According to the Regulatory Agenda, the Department of Homeland Security (DHS) plans to issue a final rule in August 2023 that would finalize the agency’s proposed rule aiming to “revise employment eligibility verification regulations to allow the secretary to authorize alternative document examination procedures in certain circumstances or with respect to certain employers.”

On August 18, 2022, the DHS published its NPRM on optional alternative examination practices for employers when reviewing an individual’s identity and employment authorization documents required by the Form I-9, Employment Eligibility Verification. If finalized, the proposed rulemaking would create a framework under which the secretary of Homeland Security could allow alternative options for verifying those documents, such as reviewing the documents via video, fax, or email rather than directly allowing employers and agents to use such alternative examination options. According to the NPRM, the secretary would be authorized to implement the alternative examination options in a pilot program if they determine such procedures would offer an equivalent level of security, as a temporary measure to address a public health emergency declared by the secretary of Health and Human Services, or a national emergency declared by the president.

CUPA-HR filed comments in response to the DHS NPRM in October 2022. The comments were supportive of the Department moving forward with the NPRM, but cautioned against requiring secondary, in-person review of I-9 documents after virtual inspection and once an employee is in-person on a regular and consistent basis; issuing training for document detection and/or anti-discrimination training that may be offered at a high cost without proper vetting, and requiring institutions to be enrolled in E-Verify to participate in the alternative options.

On a related noted, on May 4, 2023, the U.S. Immigration and Customs Enforcement (ICE) announced it will provide employers with 30 days to reach compliance with in-person Form I-9 requirements after the COVID-19 flexibilities sunset on July 31, 2023. ICE previously introduced temporary flexibilities in response to the COVID-19 pandemic in March 2020, allowing employers to review employees’ identity and employment authorization documents remotely, rather than in person. This virtual inspection was to be followed by a physical examination within three business days after normal operations resumed. With the new final rule set for earliest release in August 2023, employers will likely have to resume traditional Form I-9 examination practices until the new final rule goes into effect.

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

In December 2023, the DHS’s United States Citizenship and Immigration Services (USCIS) plans to release an NPRM to “amend its regulations governing H-1B specialty occupation workers and F-1 students who are the beneficiaries of timely filed H-1B cap-subject petitions.” The NPRM will specifically propose to “revise the regulations relating to ‘employer-employee relationship’ and provide flexibility for start-up entrepreneurs; implement new requirements and guidelines for site visits including in connection with petitions filed by H-1B dependent employers whose basic business information cannot be validated through commercially available data; provide flexibility on the employment start date listed on the petition (in limited circumstances); address ‘cap-gap’ issues; bolster the H-1B registration process to reduce the possibility of misuse and fraud in the H-1B registration system, and clarify the requirement that an amended or new petition be filed where there are material changes, including by streamlining notification requirements relating to certain worksite changes, among other provisions.”

CUPA-HR continues to monitor these regulations and will keep members apprised of any significant updates.

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June 26, 2023
HR and the Courts — June 2023 – CUPA-HR

by CUPA-HR | June 7, 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.

NLRB Issues a Formal Complaint Alleging College Football and Basketball Players Are Employees and Can Petition to Unionize

The NLRB regional director in Los Angeles issued a long-awaited formal complaint alleging that the NCAA, Pac-12, and The University of Southern California all violated the National Labor Relations Act (NLRA) when they refused to treat college basketball and football players as employees under the NLRA. The regional director agreed with the legal conclusion the NLRB general counsel made last December and issued a formal complaint against the three parties. The NLRB regional director is alleging that all three entities are joint employers of these athletes and violated the NLRA by misclassifying them as “non-employee student athletes” (Univ. of Southern California (NLRB Reg Dir Case No. 31-CA-290326, complaint issued 5/18/23)).

If the NLRB ultimately prevails on all counts, the outcome could lead to unionization of college basketball and football players at both public and private college and universities in the U.S. While the NLRB has no jurisdiction over public institutions, it does have jurisdiction over the private NCAA and various private athletic conferences it alleges are joint employers of these athletes. Needless to say, this will be a heavily contested and lengthy litigation event.

U.S. Supreme Court Holds That Unions Can Be Held Liable in State Court for Intentional Destruction of Employer Property During a Strike

In an 8-1 decision, the U.S. Supreme Court held that the Teamsters Union could be held liable for intentional destruction of employer property during a strike and that the victimized employer could sue the union in state court alleging such intentional infliction of damages (Glacier Northwest Inc. v. Teamsters Local 174 (U.S. No. 21-1449, 6/1/23)). The case had been dismissed under the long-held Supreme Court decision in the Garmon case, holding that the National Labor Relations Act (NLRA) preempted state court litigation against labor unions.

The Supreme Court created a narrow exception to Garmon’s federal preemption, holding that, “far from taking reasonable precautions to mitigate foreseeable danger to employer property … the union executed the strike designed to compromise the safety of the employer’s trucks and product.” The court concluded that such union conduct is not even arguably protected by the NLRA.

Here the union called a strike of concrete truck drivers and intentionally instructed the drivers to return their trucks, loaded with concrete, to the employer rather than complete the delivery. This resulted in the concrete hardening in the trucks, leading to the destruction of trucks and concrete product.”

EEOC Publishes Updated Guidance on the End of the COVID-19 Public Health Emergency

On May 15, the EEOC updated its technical assistance entitled “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.” The updated guidance covers a variety of issues related to the end of the public health emergency. While the publication notes that some pandemic-related reasonable accommodations may cease, accommodations for employees with long COVID may continue to be necessary. The guidance contains tips to help employers avoid COVID-related harassment of applicants or employees who need to take precautions because of a disability.

University Prevails on First Amendment Grounds in Defamation Action Brought by Former Professor

A Louisiana state appeals court dismissed a defamation action brought by a former professor against the university as a result of the student newspaper publishing allegedly defamatory statements concerning the professor. The student newspaper articles concerned racism allegations. The court of appeals dismissed the case, holding that the newspaper articles constituted speech on matters of public interest protected by the First Amendment. The court also noted that the articles concerned “a high profile individual” (Duhe v. Loyola University of New Orleans (La. Ct. App. 5th Cir. No. 22-C-292, 5/30/23)).

State-Based Initiatives Restricting or Banning DEI Policies Have Passed or Are in the Legislative Pipeline in More Than 12 States — State-Based Legal Challenges Likely to Ensue

Florida and North Dakota have become the first states to restrict DEI programs and/or training at public higher ed institutions. Arizona, Tennessee and more than 12 other states are considering such measures. It is likely that these initiatives will be subject to continuing litigation in multiple states. Faculty unions at some public, state-based systems may argue that these restrictions violate existing collective-bargaining provisions. The state of the law in this area is rapidly changing and subject to different turns depending on how different state courts deal with these issues prospectively. We will continue to follow state law developments and will keep CUPA-HR members apprised in this monthly column.

University Defeats Transgender Detective’s Sex Bias, Promotion Lawsuit — Failure to Identify a Similarly Situated Non-Protected-Class Employee

A judge in the U.S. District Court for the Southern District of Florida recently dismissed a Title VII claim filed by a transgender detective alleging sex discrimination under Title VII for failure of the university to promote. The federal judge dismissed the case, concluding that the plaintiff failed to identify a similarly situated non-protected-class employee who was treated more favorably (Ponce v. Florida Atlantic University Board of Trustees (2023 BL 162924, S.D. Fla. No. 9:22-cv-81546, 5/12/23)).

The judge dismissed the lawsuit without prejudice to the plaintiff refiling the lawsuit to appropriately allege a similarly situated non-protected-class employee who was treated more favorably.

State Laws Requiring Pay Ranges to be Part of Job Postings and Ads Are Growing

New York, California, Washington and Colorado have already enacted laws requiring pay ranges to be listed in job postings and ads. Specifics should be discussed with local counsel in those jurisdictions.

Illinois, Michigan, Oregon, New Jersey, Connecticut, Rhode Island, Massachusetts and Hawaii have bills either pending in the state legislature or before the governor awaiting signature. Specifics vary by state, but the trend is to force employers to be more transparent in job postings and ads.

Public University Registered to Do Business Out of State Is Subject to Out-of-State Sex-Harassment Litigation — Sovereign Immunity Defense Rejected

The U.S. Supreme Court has denied the petition by a public university located in Alabama to appeal the divided decision of the North Carolina Supreme Court which allowed the university to be subject to a sex-harassment suit filed in North Carolina (Troy University V. Farmer (U.S. No. 22-787, cert denied, 5/30/23)).

The Supreme Court denied the university’s appeal of the adverse decision of the North Carolina Supreme Court, which held that the university’s registration to do business in North Carolina and its operation of an office for commercial activities in Fayetteville, North Carolina, was enough to subject it to the jurisdiction of the North Carolina courts. Specifically, the North Carolina court held that the agreement that the university signed, which allowed it to do business in the state, contained an agreement to sue and be sued in the state. The North Carolina court held that this waived the university’s sovereign immunity.

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June 7, 2023
Department of Education Delays Target Release of Title IX Rulemaking to October – CUPA-HR

by CUPA-HR | May 30, 2023

On May 26, the Department of Education published a blog post stating that the release of the anticipated Title IX final rule will be delayed until at least October 2023. The final rule was previously targeted in the Fall 2022 Regulatory Agenda for May 2023.

In the blog post, the department states that they need additional time to review the 240,000 comments they received in response to the Title IX proposed rule that was issued in July 2022. The department said that the 240,000 comments are nearly twice the number of comments the department received during the Trump administration’s Title IX rulemaking process, which included the release of a proposed rule in November 2018 and the subsequent final rule in May 2020. The department added that the new target date of October 2023 will be reflected in the upcoming Spring 2023 Regulatory Agenda, which will likely be released in the next month.

As a reminder, the Biden administration’s Title IX rulemaking rolls back the Trump administration’s 2020 regulations, specifically with respect to its grievance procedures, 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 which we brought attention to the possible impact the proposed regulations could have on how higher education institutions address employment discrimination.

In addition to the Title IX rulemaking, the blog post also states that the final rule on transgender student eligibility in athletic programs under Title IX will also be delayed until at least October 2023. Released on April 6, the proposed rule establishes that 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 and would instead allow schools the flexibility to develop team eligibility criteria that serves important educational objectives, such as fairness in competition and preventing sports-related injuries.

CUPA-HR will continue to monitor for updates on the Title IX final rule.

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May 30, 2023
Congress and Federal Agencies Consider Paid-Leave Proposals and Protections for Pregnant and Nursing Workers – CUPA-HR

by CUPA-HR | May 24, 2023

Over the past year, lawmakers have taken an increased interest in establishing and expanding upon benefits and protections for paid leave and pregnant workers. As a result, Congress passed two bills granting workplace protections to pregnant and nursing mothers at the end of 2022, while considering new federal proposals for paid family and medical leave. This post details some of the recent actions taken by lawmakers toward a federal paid-leave policy, as well as updates from federal agencies on the enforcement of the Pregnant Workers Fairness Act (PWFA) and the Providing Urgent Maternal Protections (PUMP) for Nursing Mothers Act.

Bipartisan Working Group on Paid Leave

In April, a group of bipartisan lawmakers in the House of Representatives established the Bipartisan Paid Family Leave Working Group, the goal of which “is to create a bipartisan paid family leave policy that supports American families and businesses.” The group consists of three Republicans — Reps. Stephanie Bice (R-OK), Julia Letlow (R-LA) and Mariannette Miller-Meeks (R-IA) — and three Democrats — Reps. Chrissy Houlahan (D-PA), Colin Allred (D-TX) and Haley Stevens (D-MI).

In a letter establishing the working group, the lawmakers expressed their intention to explore both state and federal policies that already exist with the goal of creating an established paid-leave policy. The letter discusses both the successes and areas to improve of the Family and Medical Leave Act, and it states that there is a bipartisan consensus that paid leave is an issue that needs to become law.

FAMILY Act

On May 17, Sen. Kirsten Gillibrand (D-NY) and Rep. Rosa DeLauro (D-CT) reintroduced the FAMILY Act, which would grant up to 12 weeks of paid leave for employees at companies of all sizes through funds collected by payroll taxes paid by both employees and employers. The FAMILY Act was first introduced in 2013, but the most recent bill expands upon previous text by creating a progressive scale for wage replacement during the time off. Under the bill, the lowest paid workers would be eligible to receive up to 85 percent of their wages during their time off, while the average full-time worker would receive approximately two-thirds of their wages. Additionally, the bill extends coverage to include time off taken to address personal incidents with domestic violence, stalking and/or sexual assault.

While most Democrats have championed the FAMILY Act as their preferred proposal for paid leave, the bill is unlikely to gain Republican support and will therefore not pass the House during this Congress. Republicans have previously opposed the bill, arguing against the proposed tax increases as well as potential burdens employers may face as a result of a paid-leave mandate. Instead, Republicans who have shown interest in advancing paid-leave policies have considered programs allowing individuals to borrow from their Social Security funds, incentivizing the creation of a private insurance system for leave pay, and providing tax credits to pay for time off.

PUMP for Nursing Mothers Act

On May 18, the Department of Labor Wage and Hour Division (WHD) issued a Field Assistance Bulletin (FAB) with enforcement information and public guidance for the PUMP for Nursing Mothers Act. The law went into effect on April 28, after being included in the Consolidated Appropriations Act of 2023 year-end legislation to fund the federal government.

As a reminder, the PUMP for Nursing Mothers Act amends the Fair Labor Standards Act (FLSA) to expand access to breastfeeding accommodations in the workplace for lactating employees and builds on existing protections in the 2010 Break Time for Nursing Mothers Provision by broadening breastfeeding accommodations and workplace protections. Specifically, the bill ensures reasonable time and space for working individuals to pump in their workplaces as well as remedies for employer violations of the act.

The FAB provides details on the requirements for reasonable space and break time, compensation, and employer posting of FLSA requirements as provided under the PUMP for Nursing Mothers Act. Employers and field staff alike may use the FAB document as a resource to understand compliance with the act as enforced by WHD.

Pregnant Workers Fairness Act

Alongside the PUMP for Nursing Mothers Act, the PWFA was also signed into law under the Consolidated Appropriations Act of 2023. The effective date of the PWFA is June 27, and the Equal Employment Opportunity Commission (EEOC) was expected to issue proposed regulations on how best to govern and enforce the PWFA by then.

As of May, however, the EEOC has yet to release any proposed regulations, and it seems likely that the agency will not be able to issue a proposed rule by the June 27 date. The commission currently has two Democratic and two Republican commissioners, and given the need for a majority of commissioners to vote to advance a rulemaking, the agency is unable to move proposed rules forward because commissioners are split along party lines. Through the legislation, Congress has allowed the EEOC through the end of 2023 to finalize a rulemaking on the PWFA, which may or may not be achieved, depending on whether the Senate is able to confirm Kalpana Kotagal as the third Democratic appointee on the commission. In lieu of the proposed rulemaking, the EEOC has issued guidance on the law through an FAQ webpage addressing the protections granted under the law, which stakeholders may use as they wait for the official regulations.

CUPA-HR continues to monitor any developments related to these proposals and laws and will keep members apprised of any policy updates related to paid leave and protections for pregnant and nursing workers.

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May 24, 2023
Award-Winning Work in Higher Ed HR – 2023 Regional Awards – CUPA-HR
by CUPA-HR | May 23, 2023

From developing supervisor competencies to transforming HR operations, human resources teams and HR practitioners across the country are doing great work every day.

CUPA-HR’s regional Higher Education HR Awards program recognizes some of the best and brightest in higher ed HR and honors HR professionals who have given their time and talents to the association.

Here are this year’s regional award recipients:

HR Excellence Award

This award honors transformative HR work in higher education and recognizes a team that has provided HR leadership resulting in significant and ongoing organizational change within its institution.

Office of Human Resources, Towson University (Eastern Region)

Towson University has had a partnership with Humanim, a nonprofit community workforce-development program, for many years. However, the pandemic created challenges that threatened to derail the partnership and the program. TU’s office of human resources, along with other anchor institutions, worked with Humanim to move parts of the program online, including virtual mock interviews, information sessions and panel discussions. Despite turnover created by the pandemic, the TU HR team was determined to maintain its relationship with Humanim and continue to provide employment opportunities to Baltimore residents. As TU’s top provider of quality temporary candidates for the university’s administrative functions, Humanim was also essential to the university during pandemic. For their outstanding work, CUPA-HR has contributed $1,000 to Towson University.

Human Resources, Grand Valley State University (Midwest Region)

In February 2022, Grand Valley State University’s HR team began implementing a total transformation of their operations, shifting from a 60-year-old compliance-driven approach to HR to an HR business partner approach. This change resulted in the creation of a “one-stop shop,” where HR services could be delivered more efficiently and consistently across all campus departments. The team also moved to improve efficiency by merging payroll, HR administration and technology, and benefits into a total rewards unit. And in the fall of 2022, HR established a formal talent management unit to organize and advance talent efforts. With these changes, HR is well positioned to unify and transform the university’s organizational culture. For their outstanding work, CUPA-HR has contributed $1,000 to Grand Valley State University.

Culture Team, Utah Valley University (Western Region)

Recognizing a need for a better leadership experience for supervisors on their campus, Utah Valley University’s culture team set out to create a set of standardized leadership competencies that would help ensure that they were hiring the right people, communicating clear expectations during onboarding, providing leadership resources through training, and allowing supervisors to receive feedback. The Leadership Competency Experience, based on six leadership competencies and the university’s core values, established a standardized method of hiring, onboarding, training and feedback processing intended to cultivate effective leadership at all levels. Two years in, the program has made a significant impact on the quality of supervisors being hired and the training and support they receive, and the number of employee relations cases and volume of turnover due to bad supervision have decreased sharply. In fact, it has been so successful that in July 2022 the team released the Staff Competency Experience. For this impressive achievement, CUPA-HR has contributed $1,000 to Utah Valley University.

Higher Ed HR Rock Star Award

This award recognizes an individual who is serving in the first five years of a higher education HR career who has already made a significant impact.

Miranda Arjona, Rollins College (Southern Region)

From day one, Miranda Arjona, assistant director of human resources at Rollins College, has impressed colleagues with her positive outlook, creativity, willingness to learn and helpful attitude. Whether she’s building relationships within the HR team or leading a service excellence subcommittee, Miranda is focused on strengthening connections and making a difference. When she was asked to temporarily assist in student affairs to help manage contact tracing and consulting during the pandemic, she did so with her typical positivity and commitment to the task. Just as seamlessly, she transitioned back to her talent management role with the same mindset and tenacity. Her commitment to being a relationship-builder has not only served Rollins but also the higher ed HR community. She has been a speaker at two local HR events, and she is currently serving as president-elect of the CUPA-HR Florida Chapter.

Lyndon Huling, University of California-Davis (Western Region)

Lyndon Huling, manager of leadership recruitment, temporary staffing and diversity services at UC Davis, routinely taps his broad intergenerational and cross-cultural campus connections in his work, making him an exceptionally effective leader. His commitment to reimagining HR and recruitment best practices through a DEI lens shows in the strategies he’s developed and the innovative programs he’s been instrumental in establishing. Among other projects, he has co-sponsored and delivered transformative Race Matters workshops that create a safe space to learn and discuss race at work, which he has shared through presentations at regional and national CUPA-HR conferences. Through his work to create and share resources, Lyndon has demonstrated himself to be a passionate, progressive leader in higher ed HR.

Chapter Excellence Awards

These regional awards recognize chapters that are making a significant impact through their commitment to CUPA-HR and to the higher ed HR community. They work to achieve this through financial responsibility, commitment to CUPA-HR chapter guiding principles, cultivation of strong leadership, and development of creative networking and professional development opportunities.

This year’s Chapter Excellence regional recipients are:
- The CUPA-HR Michigan Chapter (Midwest Region)
- The CUPA-HR Kentucky Chapter (Southern Region)
- The CUPA-HR Northern and Central California Chapter (Western Region)
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May 23, 2023