Tag: CUPAHR

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

    HR and the Courts — March 2023 – CUPA-HR

    by CUPA-HR | March 15, 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.

    Court of Appeals May Narrow LBGTQ Rights Under Title VII

    The 5th U.S. Circuit Court of Appeals (covering Texas, Louisiana and Mississippi) recently heard oral argument over a U.S. District Court judge’s ruling that private businesses may assert a religious exemption to bias claims brought by LBGTQ workers under federal anti-discrimination statutes. The trial court had granted summary judgment that religious employers objecting to dress codes, bathroom policies or hiring of LBGTQ employees are protected by the First Amendment (Braidwood Management v. EEOC (5th Cir. No 22-10145, oral ARG 2/7/23).

    If the trial court decision is upheld, it would blunt the reach of the recent Supreme Court decision in Bostock v. Clayton County, which held that LBGTQ workers can sue employers for job discrimination under Title VII based on gender identity or sexual orientation. The plaintiffs in the case are a Texas based healthcare provider and a Church. We will follow developments in this case.  

    Qualifying Temporary Workers Granted Pay-Parity Rights Equal to Full-Time Employees Under New Jersey State Statute

    New Jersey-based employers will have to grant certain temporary employees hired in the state pay and benefits equal to what the employer pays full-time direct-hire employees. The new law, recently signed by the governor (effective 180 days after the 2/7/23 signing), creates a “bill of rights” for many temporary employees and applies to specific New Jersey employers. The law applies only to the manufacturing, warehousing and logistics, food service, construction, building security and maintenance, cleaning, and landscaping industries. The statute does not cover healthcare workers, business and finance professionals, salespeople, and information security and technology staff. The statute does apply to temporary staffing agencies.

    New Jersey is joining California, Illinois and Massachusetts in adopting a statute protecting temporary employees. However, the New Jersey statute goes a step further than the other states in requiring pay and benefits equivalent to similarly situated full time employees in the industries and areas described above.   

    Offensive Music in Workplace Brings Sex Harassment/Hostile Environment Litigation  

    Bloomberg reports multiple filings of sex harassment, hostile work environment lawsuits based on claims that offensive music being played in the workplace creates a sexually hostile work environment. The multiple litigation filings involve manufacturing and warehouse employees. The employees are complaining that obscene and misogynistic rap music was continually played in the workplace over the objection of the complaining employees. The complaints allege that managers and other employees regularly played vulgar music and ignored the complaints and objections of offended employees. The allegations state that allowing the music to continue created a sexually hostile work environment, which is actionable under Title VII.

    Employers can avoid such litigation by establishing and enforcing policies that forbid sexually or racially offensive content in the workplace.  

    Tenured Public School Teacher’s Termination for Unprofessional Social Media Posts Reversed — Court Holds Tenure Entitled Her to a Warning and Opportunity to Remedy 

    A tenured Illinois public school history teacher who was terminated after posting publicly available “unprofessional” and “disrespectful” social media posts had her termination reversed by an Illinois appellate court. The termination had been affirmed by the trial court. The teacher claimed not to realize that her posts were public as opposed to being distributed only to “friends” on Facebook.

    Among other posts, the teacher shared a Facebook post from a group called Bored Teachers which stated, “I can think of no better form of birth control than to have people observe my class for a day.” In another post she described a student’s parents as “clearly crazy” and “nuts.” The teacher was terminated for making unprofessional remarks about students on Facebook. The head of HR testified that the plaintiff was not remorseful and thought the posts were therapeutic.

    The Illinois appellate court concluded that the plaintiff’s posts were “clearly foolish” and “unprofessional.” Nonetheless the appellate court concluded that the Illinois state statute afforded tenured teachers the right to warning and a chance to remedy their transgressions (Kelleher v. Illinois State Board of Education (Ill App. Ct. 1st Dist. No. 1-22-0058, Order 2/14/23)). 

    EEOC Commissioner Charges at Record High 

    EEOC commissioner charges for fiscal 2022 jumped to a record high of 22, up from just 3 in the previous year and the highest number since records have been kept on annual commissioner charges. A commissioner charge is one filed by an EEOC commissioner raising a potential legal issue. The vast majority of EEOC charges are filed by alleged victims.

    Commentators point out that the commissioner charge increase is likely due to a partisan block of action at the EEOC. Under the Biden administration, the EEOC had a Democrat chair and a Republican majority of members (three Republicans, two Democrats) until November 2022. Currently, the commission has a Democrat chair and a vacant seat, leaving it with two Democrat members and two Republican members. The filling of the open commission seat is still on hold due to blockage of the nomination process in Congress. 

    OFCCP Rescinds Trump Administration Religious Carve-Out Allowing Federal Contractors to Ignore Anti-Discrimination Obligations Based on Faith 

    The OFCCP announced new regulations on February 28, 2023, rescinding the Trump administration regulations allowing government contractors to ignore certain anti-discrimination obligations based on their faith. The new regulations bring back the prior standard, which had been in place for nearly two decades, and do not allow the defense. The new regulations will be published shortly and effective 30 days after publication. The Trump administration rule, which will be revoked, faced continued opposition from civil rights groups and LBGTQ advocates. This rule applies to the OFCCP enforcement of antidiscrimination rules under Executive Order 11246, applicable to all federal government contractors. 

     



    Source link

  • DOL to Host Webinar on the PUMP for Nursing Mothers Act – CUPA-HR

    DOL to Host Webinar on the PUMP for Nursing Mothers Act – CUPA-HR

    by CUPA-HR | March 8, 2023

    On March 16, the Department of Labor’s Wage and Hour Division (WHD) will present a webinar titled “The PUMP for Nursing Mothers Act: What Advocates and Employers Need to Know.” The free webinar is intended to provide resources and tools to assist employees who wish to continue breastfeeding after returning to work and to help employers understand their responsibilities under the law.

    In December 2022, the PUMP for Nursing Mothers Act was enacted into law through the Consolidated Appropriations Act of 2023. The bill 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. In the new law, protections are expanded to include salaried employees exempt from overtime pay requirements under the FLSA as well as other categories of employees currently exempt from such protections, such as teachers, nurses and farmworkers. It also clarifies that break time provided under this bill is considered compensable hours worked so long as the worker is not completely relieved of duty during such breaks, and it ensures remedies for nursing mothers for employer violations of the bill.

    Following the passage of the Act, on February 9, WHD issued Field Assistance Bulletin No. 2023-1, “Telework Under the Fair Labor Standards Act and Family and Medical Leave Act.” This bulletin provides guidance for WHD field staff on how to apply protections under the FLSA that provide reasonable break time for nursing employees to express milk while teleworking, among other clarifications. The bulletin explicitly refers to the passage of the PUMP for Nursing Mothers Act and its expanded coverage to more employees, and it may be discussed during the upcoming webinar.

    The webinar will be held on Thursday, March 16 at 2:00 p.m. ET. The webinar is free to the public, and participants can register to attend online. CUPA-HR’s government relations team will attend the webinar and keep members apprised of any significant updates related to the PUMP for Nursing Mothers Act.

     



    Source link

  • CUPA-HR Data Highlights Trends in Representation and Pay Equity in the Higher Education Workforce, and the News Is Mixed – CUPA-HR

    CUPA-HR Data Highlights Trends in Representation and Pay Equity in the Higher Education Workforce, and the News Is Mixed – CUPA-HR

    by CUPA-HR | March 1, 2023

    When it comes to representation and pay equity for women and people of color in the higher education workforce, colleges and universities have frequently struggled to make meaningful progress. Through several new interactive graphics representing years of research, CUPA-HR shines a light on the progress that has been made and the disparities that persist. These graphics represent data from CUPA-HR’s four signature higher ed workforce surveys — Administrators, Faculty, Professionals, and Staff — through 2022.

    Administrators

    While the proportion of people of color in higher ed administrator positions has grown steadily over the last 10 years, these increases have not kept pace with the rate at which minorities are obtaining graduate degrees. In 2022, people of color made up 18.2 percent of administrators, up from 12.9 percent in 2012.

    The data also show that pay gaps for women administrators of all races/ethnicities are consistent across the past 10 years and notably wide. Pay inequity is particularly egregious for women administrators of color (with the exception of Asian women). Men of color, on the other hand, have been paid salaries equitable to or greater than those of White men in recent years.

    The Administrators in Higher Education Survey collects data on administrator positions that manage a higher ed institution or a division within it.

    See the Administrators Composition and Pay Equity by Gender and Race/Ethnicity interactive graphics, as well as data broken out by CEO, provost and chief HR officer.

    Faculty

    There are two notable findings in faculty composition. First, more women are represented in non-tenure-track than in tenure-track faculty. Second, for each tenure status and with each increase in rank, the proportions of women and faculty of color decrease. This means that women are over-represented in the lowest-paying and lowest-ranking positions. This remains the case despite the fact that the proportion of women and faculty of color have increased slightly at each rank over the past five years.

    Pay gaps for women faculty, regardless of tenure status or rank, continue to persist, particularly at the rank of professor. These gaps are most notable for women of color. Pay gaps at other ranks have narrowed over time, particularly for tenure-track faculty. Importantly, the factor that most impacts faculty pay is promotion to a higher rank. Often, the only significant increases in salary happen with these promotions. These data show that the only group that has greater representation with each increase in rank is that of White male faculty, and this pattern has persisted over time.

    The Faculty in Higher Education Survey collects data on tenure-track faculty positions and non-tenure-track teaching faculty positions.

    See the Faculty Composition and Pay Equity by Gender and Race/Ethnicity interactive graphics.

    Professionals

    Women’s representation has increased across all professionals’ positions since 2017, and in 2022, women represented more than 60 percent of higher ed professionals. This change is due to slight increases in representation of women of color since 2017. In 2022, representation of people of color was 24 percent overall, with the highest percentage among human resources professionals (34 percent) and diversity and equal opportunity professionals (33 percent).

    In 2022, women were consistently paid less than White men, a pattern that has worsened since 2017. However, men of color were paid more equitably in 2022 compared to previous years.

    The Professionals in Higher Education Survey collects data on positions in specific functional areas in higher ed institutions, such as academic or student services, that usually require a baccalaureate degree.

    See the Professionals Composition and Pay Equity by Gender and Race/Ethnicity interactive graphics.

    Staff

    Staff employees have a higher representation of people of color than any other higher ed employee group. This is notable in that these are the lowest-paying positions in higher ed. In 2022, women of color represented about 19 percent of all higher ed staff, and men of color represented about 13 percent of all higher ed staff. These numbers have increased since 2017, though modestly. Skilled craft employees were the least racially diverse group, as 80 percent were White men, a finding that has persisted across the past six years. Notably, skilled craft staff are among the highest-paid staff positions.

    Since 2017, women in staff positions have been paid consistently and considerably less than White men in staff positions, a pattern that has worsened over time, particularly for women in office and clerical positions. Men of color were paid more equitably in 2022 when compared to 2017.

    The Staff in Higher Education Survey collects data on positions that are generally non-exempt and do not require a college degree.

    See the Staff Composition and Pay Equity by Gender and Race/Ethnicity interactive graphics.

    CUPA-HR Research

    CUPA-HR is the recognized authority on compensation surveys for higher education, with its workforce surveys designed by higher ed HR professionals for higher ed HR professionals and other campus leaders. CUPA-HR has been collecting data on the higher ed workforce for more than 50 years, and we maintain one of the largest workforce databases in existence. CUPA-HR also publishes numerous research publications and interactive graphics highlighting trends and issues around higher ed workforce planning, pay equity, representation of women and racial/ethnic minorities and more. Learn more about CUPA-HR research.



    Source link

  • Department of Education’s OCR Issues Resource Documents on Title IX Compliance for Athletic Programs – CUPA-HR

    Department of Education’s OCR Issues Resource Documents on Title IX Compliance for Athletic Programs – CUPA-HR

    by CUPA-HR | March 1, 2023

    On February 17, the Department of Education’s Office for Civil Rights (OCR) issued three resource documents on Title IX compliance for school athletic programs. The first resource document covers support for equal opportunity in school athletic programs generally, while the other two cover Title IX and athletic opportunities at K-12 schools and colleges and universities separately.

    According to the OCR, these documents were designed “to help students, parents, coaches, athletic directors and school officials evaluate whether a school is meeting its legal duty to provide equal athletic opportunity regardless of sex,” and they provide examples of situations that may mean a school is not complying with Title IX requirements. The guidance does not make any changes to existing enforcement procedures for the OCR, rather, it is intended to be used by institutions to ensure that their existing protocols and programs are compliant with Title IX.

    Supporting Equal Opportunity in School Athletic Programs

    The first resource document reiterates Title IX’s prohibition of discrimination on the basis of sex in education programs and activities, including athletic programs, that receive federal funds. It states that Title IX requires schools to effectively accommodate the athletic interests and abilities of their students regardless of sex, and provide equal opportunity in the benefits, opportunities and treatment provided for their athletic teams. It also clarifies that Title IX requires colleges and universities to not discriminate on the basis of sex in the provision of any athletic scholarships or financial assistance to students.

    The resource document included four examples of situations that may surface Title IX concerns at colleges and universities, which are listed below:

    • The men’s teams at a college receives new athletic apparel and gear each year, while the women’s teams must use old apparel and purchase some of their own equipment.
    • Across its entire athletic program, a college awards disproportionately more athletic financial assistance to men than women.
    • A university provides funds for its coaches to recruit athletes for its men’s football and basketball teams because it considers those teams to be “flagship sports.” It provides no funds for coaches to recruit women athletes. As a result, the school has difficulty attracting women to participate in its athletic program.
    • Women are underrepresented in a university’s athletic program compared to their representation in the student body. The university would have to offer 54 additional spots for its women students on existing or new teams for women to have substantially proportionate athletic participation opportunities. Women have expressed an interest in having more teams, and there are women students participating in club sports for which there are no varsity teams. Those club sports include lacrosse, water polo, ice hockey and bowling — all of which have intercollegiate competitions available and are sanctioned by the athletic governing body the university belongs to. Yet, the university has not added a women’s team for many years.

    Title IX and Athletic Opportunities in Colleges and Universities

    The resource document designed specifically for institutions of higher education dives deeper into background information on Title IX, as well as ways that students, coaches, athletic directors and school officials can evaluate a school’s athletic program and whether it’s meeting its legal requirements to provide equal athletic opportunity. With respect to the evaluation, the document guides readers with questions and examples of Title IX compliance with respect to the benefits, opportunities and treatment for men’s and women’s teams; athletic scholarships and financial assistance, and meeting students’ athletics interests and abilities.

    Benefits, Opportunities and Treatment for Men’s and Women’s Teams

    With respect to equivalent benefits, opportunities and treatment for men’s and women’s teams, the resource document lists several questions about an institution’s attempts to provide equal opportunities to both men and women student-athletes. These questions surround the following topics:

    • Equipment and supplies
    • Scheduling games and practice time
    • Travel and daily allowances
    • Coaching
    • Academic tutors
    • Locker rooms, fields, courts and other facilities for practice and competition
    • Medical and training facilities and services
    • Housing and dining services
    • Publicity
    • Recruitment

    The resource document explicitly states that if any of the questions listed under these topics is answered as a “no,” it may indicate a possible Title IX violation.

    Athletic Scholarships and Financial Assistance

    The document also creates questions that may be used to assess a school’s provision of scholarships and athletic financial assistance. The questions help guide users to measure the percentage of women and men participants at their institution and the percentage of scholarship awards provided to women and men, and it lists questions and examples to help compare these percentages. These questions may again point to disparities among programs that could be potential violations of Title IX, but the OCR states that it “will take into account all legitimate, non-discriminatory reasons for disparities provided by the school” if there are disparities present between percentages awarded to men’s and women’s programs.

    Meeting Students’ Athletic Interests and Capabilities

    The resource document refers to the “three-part test” that institutions may use to demonstrate that all Title IX legal requirements are being fulfilled. Schools are only required to use one of three options to show compliance with Title IX, which are detailed in the document and briefly listed below:

    • Option 1: Substantial Proportionality — This option looks to whether the percentage of women and men participants on athletic teams are about the same as, or “substantially proportionate” to, the percentage of women and men enrolled as full-time undergraduates at your school.
    • Option 2: History and Continuing Practice — This option looks to whether your school can show it has a history and continuing (i.e. present) practice of expanding its athletic program to respond to the interests and abilities of women, if women have been underrepresented, or if men have been underrepresented.
    • Option 3: Interests and Abilities of Students — This option asks whether your school can show that — despite the disproportionality — it is otherwise meeting the interests and abilities of the underrepresented sex.

    The resource document states that following longstanding practice for showing Title IX compliance — if an institution is unable to use any of the three options to show compliance with Title IX — may not be meeting legal requirements to provide equal opportunity to participate in athletics based on sex under Title IX.

    Options for Filing Complaints for Title IX Violations

    Both the general support and higher education-specific documents end their guidance with ways in which students, parents, employees and others in the school community may file Title IX complaints through their school’s grievance procedures if they believe their institution is not providing equal athletic opportunity based on sex. The documents first turn readers to their institution’s Title IX coordinator, but also provides the option to file a complaint online with the OCR. It also clarifies that anyone is able to file complaints with the OCR, which may include individuals outside of the school community.

    CUPA-HR will continue to monitor for any updates to Title IX compliance and will keep members apprised of any updates with respect to Title IX law and regulations.



    Source link

  • President Biden Nominates Deputy Secretary Julie Su to Head the DOL – CUPA-HR

    President Biden Nominates Deputy Secretary Julie Su to Head the DOL – CUPA-HR

    by CUPA-HR | February 28, 2023

    On February 28, President Biden announced he would nominate Julie Su to lead the Department of Labor (DOL). Su is currently the deputy secretary of labor under Marty Walsh, who announced he would leave the agency mid-March to head the National Hockey League Players’ Association.

    Given previous opposition during her nomination to become deputy secretary, Su will likely face a difficult nomination process. In 2021, Su was confirmed into her current position by a 50-47 vote with no Republican support. Republican criticism during her nomination process arose from her prior role as secretary of the California Labor and Workforce Development Agency. During her tenure in California, the agency handled oversight and enforcement of the state-passed bill, Assembly Bill 5 — a controversial law regarding independent contractor status and misclassification. Additionally, the agency oversaw COVID-19 pandemic relief and dealt with subsequent issues, including unemployment insurance fraud.

    President Biden said in his statement “It is my honor to nominate Julie Su to be our country’s next secretary of labor. Julie has spent her life fighting to make sure that everyone has a fair shot, that no community is overlooked and that no worker is left behind. Over several decades, Julie has led the largest state labor department in the nation, cracked down on wage theft, fought to protect trafficked workers, increased the minimum wage, created good-paying, high-quality jobs, and established and enforced workplace safety standards.”

    Su is backed by many Democrats and Asian American members of Congress as well as several labor unions, including the Service Employees International Union.

    Regardless of how her nomination goes, Su is in line to become the acting secretary of labor once Walsh leaves office. There are no limitations on what an acting secretary can do leading the agency, leaving Su with full authority over the DOL while her nomination is pending. Regulations anticipated in the near future, including the Wage and Hour Division’s overtime exemption rulemaking, will likely not be delayed as a result of this nomination.

    CUPA-HR will keep members apprised of major updates at the Department of Labor and any significant guidance or regulations released by the agency.



    Source link

  • Supreme Court: Highly Compensated Employee Entitled to Overtime Because Employer Did Not Pay on a Salary Basis – CUPA-HR

    Supreme Court: Highly Compensated Employee Entitled to Overtime Because Employer Did Not Pay on a Salary Basis – CUPA-HR

    by CUPA-HR | February 23, 2023

    On February 22, the U.S. Supreme Court issued its decision in Helix Energy Solutions, Inc. v. Hewitt, finding that an employee making over $200,000 per year was entitled to overtime pay under the Fair Labor Standards Act (FLSA) because he was not paid on a salary basis. The case is a reminder that exempt status depends not only on how much the employee is paid, but also on how they are paid. Employers may want to be particularly careful when providing exempt employees — including part-time exempt employees — with different weekly pay based on hours worked.

    Under U.S. Department of Labor (DOL) regulations, an employee must meet the following three requirements to be considered an executive, administrative or professional employee exempt from the FLSA’s overtime pay mandates: (1) perform duties consistent with those exempt categories as set forth by the DOL, (2) be paid a minimum salary (currently set at $684 per week), and (3) be paid on a salary basis. The employer in the case argued that the employee was exempt because he was paid $963 per day, therefore making at least the minimum salary of $684 per week, and he met the duties test for an executive.

    The court found, however, that the employee was not paid on a salary basis as set forth in Section 541.602 of DOL regulations and was therefore not exempt. Section 541.602 requires exempt employees to receive the full pre-determined salary for any week in which they perform any work without regard to the number of days or hours worked. Specifically, the court said the employee “did not get a salary (of $963 or any other amount) because his weekly take-home pay could be as little as $963 or as much as $13,482, depending on how many days he worked.” The court did say, however, that daily-rate workers could qualify as paid on a salary basis if the pay met the conditions set out in DOL regulations §541.604(b).

    In a dissenting opinion, Justice Brett Kavanaugh contended that the salary threshold and salary basis test — both of which DOL created through regulations — may not be consistent with the FLSA itself. Specifically, Kavanaugh said:

    “The Act focuses on whether the employee performs executive duties, not how much an employee is paid or how an employee is paid. So it is questionable whether the Department’s regulations — which look not only at an employee’s duties but also at how much an employee is paid and how an employee is paid — will survive if and when the regulations are challenged as inconsistent with the Act. It is especially dubious for the regulations to focus on how an employee is paid (for example, by salary, wage, commission, or bonus) to determine whether the employee is a bona fide executive. An executive employee’s duties (and perhaps his total compensation) may be relevant to assessing whether the employee is a bona fide executive. But I am hard pressed to understand why it would matter for assessing executive status whether an employee is paid by salary, wage, commission, bonus, or some combination thereof.”

    Since the employer in this case failed to raise the challenge to the regulations properly, the issue was not considered before the court.  As such, it remains unclear how many justices agree with Kavanaugh and whether the majority of the court would overturn the DOL’s salary basis and threshold tests.

    CUPA-HR continues to monitor all updates relating to the FLSA and its implementing regulations and will keep members apprised of significant news with respect to the overtime issue.



    Source link

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

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

    by CUPA-HR | February 21, 2023

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

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

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

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

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

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

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



    Source link

  • Workforce Innovation and Opportunity Act Reauthorization Prospects for the 118th Congress – CUPA-HR

    Workforce Innovation and Opportunity Act Reauthorization Prospects for the 118th Congress – CUPA-HR

    by CUPA-HR | February 15, 2023

    In the 118th Congress, bills will likely be introduced to reauthorize the Workforce Innovation and Opportunity Act (WIOA), which includes programs used by community colleges and other higher education institutions pursuing their own workforce development agendas. Passed in July 2014, the WIOA is the primary federal law to increase access to and coordination between workforce development and other related programs. This blog post provides context on what the WIOA accomplishes and highlights recent attempts to reauthorize the law.

    Background

    There are four major components to the WIOA:

    • Title I includes programs related to workforce development activities and authorizes three formula grants through federally-funded, state- and locally-administered delivery systems that are administered by the Department of Labor.
    • Title II enacts the Adult Education and Family Literacy Act (AEFLA), which authorizes programs for adult education up to the secondary level, as well as English training, and is administered by the Department of Education.
    • Title III amends the Wagner-Peyser Act, which authorizes the Employment Service formula grant program that is essential to the WIOA for planning and accountability purposes.
    • Title IV amends the Rehabilitation Act of 1973 and provides funding to state agencies to support employment-related services to individuals with disabilities, among other smaller programs.

    The WIOA originally funded its programs from fiscal year 2015 to fiscal year 2020 after most WIOA programs went into effect July 2015. Appropriations authorization for the WIOA was set to expire after fiscal year 2020, but Congress has extended authorization through the annual appropriations process since fiscal year 2021. Despite the extended authorization, Congress has tasked itself with producing a reauthorization of the WIOA that will extend appropriations for another five or more years and help modernize its workforce development programs. We will likely see reauthorization legislation in the House and/or Senate before the current term ends in 2025.

    WIOA Reauthorization Attempt in the 117th Congress

    In the 117th Congress, House Education and Labor Committee Chair Bobby Scott (D-VA) and 17 committee Democrats introduced the Workforce Innovation and Opportunity Act of 2022 (H.R. 7309, “WIOA reauthorization bill”) and sent it to the House floor for a vote. According to a Congressional Research Service (CRS) report on H.R. 7309, the bill “would retain the general structure and systems established by the WIOA” and would “authorize appropriations for fiscal years 2023 through 2028, increasing funding for existing systems and establishing several new programs.” The CRS report specifies that the WIOA reauthorization bill focused mostly on amending Title I of the law.

    On May 17, 2022, the House passed the WIOA reauthorization bill and sent it to the Senate where the bill stalled in the Senate Help, Education, Labor and Pensions (HELP) Committee until the 117th Congress adjourned. The WIOA reauthorization bill passed the House among mostly partisan lines with 216 Democrats and four Republicans voting in favor of the bill and 196 Republicans voting against it.

    House Republicans criticized Scott and other Democrats on the Education and Labor Committee for failing to collaborate with Republicans to create a bipartisan bill prior to its introduction and during the committee markup. Prior to its final House vote, Education and Labor Committee Ranking Member Virginia Foxx (R-NC) spoke out against the bill on the House floor stating that the Democrats’ bill did not create a workforce development system that prepares workers for in-demand skills.

    Potential for WIOA Reauthorization Attempts in the 118th Congress

    Given a divided House and Senate, both chambers will have to work together to pass any meaningful legislation for a WIOA reauthorization. Democrats and Republicans may be incentivized to produce a consensus WIOA reauthorization bill to address the record labor shortages and resulting open positions that employers are struggling to fill across the country. With Foxx now serving as the chair of the House Education and the Workforce Committee and her interest in WIOA reauthorization during the last Congress, we believe she and other House Republicans will introduce a new bill, though it’s unknown whether they’ll be able to come to an agreement with Democrats in both the House and Senate to finalize and pass a new reauthorization bill.

    Without knowing how or when Congress will consider WIOA reauthorization, we are more certain of members who may be House champions of such a bill. In addition to Full Committee Chair Foxx and Ranking Member Scott, House Higher Education and Workforce Development Subcommittee leaders Burgess Owens (R-UT) and Frederica Wilson (D-FL) will be involved in WIOA reauthorization bills that are introduced in this Congress. Less certain is where new Senate HELP leaders Bernie Sanders (I-VT) and Bill Cassidy (R-LA) will stand on this particular issue given the Senate’s lack of action in the last Congress and each senator’s new ascension to top leadership positions of the HELP Committee.

    CUPA-HR will monitor WIOA reauthorization bills this Congress and keep members apprised of any new developments.



    Source link

  • House Education and Workforce Committee and Senate HELP Committee Set for 118th Congress – CUPA-HR

    House Education and Workforce Committee and Senate HELP Committee Set for 118th Congress – CUPA-HR

    by CUPA-HR | February 7, 2023

    After a month in session, the U.S. House of Representatives and Senate are finalizing their committee and subcommittee membership rosters. Of particular significance are the House Education and the Workforce Committee and Senate Health, Education, Labor and Pensions (HELP) Committee, which have jurisdiction over higher education and many labor and employment issues, including overtime, paid leave, occupational safety and health and employment-based discrimination.

    House Education and the Workforce Committee and Subcommittees

    The House Education and the Workforce Committee will be comprised of 25 Republicans and 20 Democrats with Rep. Virginia Foxx (R-NC) serving as chairwoman and Rep. Bobby Scott (D-VA) serving as ranking member of the full committee. Both Foxx and Scott served as their party’s committee leader in the previous Congress when Democrats held the majority, but Foxx was notably able to secure a waiver granting her exemption from House Republican-imposed committee leadership term limits that would have prohibited her from serving a fourth consecutive term as Republican leader on the committee.

    Foxx has publicly stated her priorities for the committee, citing oversight of the Biden administration, Department of Labor and Department of Education as a top concern for the committee. Having previously taught at two institutions of higher education and served as president at Mayland Community College, Foxx also has a particular interest in higher education. With divided control of Congress and Democrat control of the Senate, however, it is unlikely that Foxx will be able to pass any meaningful legislation that would garner support from the Senate and the president.

    In addition to the full committee roster, the Education and the Workforce Committee has also finalized their subcommittee rosters.

    Subcommittee on Workforce Protections

    The Subcommittee on Workforce Protections has jurisdiction over issues relating to wages, hours of workers and overtime, including the Fair Labor Standards Act (FLSA); workers’ compensation, including the Family and Medical Leave Act (FMLA); issues relating to immigration and employment; and occupational safety and health, including the Occupational Safety and Health Administration (OSHA).

    Freshman Rep. Kevin Kiley (R-CA) will serve as chairman of the subcommittee and Rep. Alma Adams (D-NC) will serve as ranking member after serving as chair of the subcommittee last Congress. The subcommittee will made be up of six Republicans, including Glenn Grothman (R-WI), James Comer (R-KY), Mary Miller (R-IL) and Eric Burlison (R-MO), all who did not serve on the subcommittee in the previous Congress; and four Democrats, all who served on the subcommittee in the last Congress.

    Subcommittee on Higher Education and Workforce Development

    The Subcommittee on Higher Education and Workforce Development has jurisdiction over the following areas: postsecondary student assistance and employment services, and the Higher Education Act; postsecondary career and technical education, apprenticeship programs, and workforce development; and science and technology programs.

    Rep. Owen Burgess (R-UT) will serve as chairman of the Subcommittee on Higher Education and Workforce Development, while Rep. Frederica S. Wilson (D-FL) will serve as ranking member of the subcommittee after serving as chair of the subcommittee in the 117th Congress. The makeup of the subcommittee will include 13 Republicans, including Reps. Glenn Thompson (R-PA), Lloyd Smucker (R-PA), Nathaniel Moran (R-TX), John James (R-MI), Lori Chavez-DeRemer (R-OR), Erin Houchin (R-IN) and Brandon Williams (R-NY) as new members; and 11 Democrats, including Reps. Lucy McBath (D-GA), Gregorio Kilili Camacho Sablan (D-Northern Marina Islands) and Alma Adams (D-NC) as new members.

    Subcommittee on Health, Employment, Labor and Pensions

    The Subcommittee on Health, Employment, Labor and Pensions’ jurisdiction involves “matters dealing with relations between employers and employees,” including to the National Labor Relations Act (NLRA) and employment-related health and retirement security, such as pension, health and other employee benefits and the Employee Retirement Income Security Act (ERISA).

    The subcommittee will see Rep. Bob Good (R-VA) serve as chairman and Rep. Mark DeSaulnier (D-CA) serve as ranking member after previously serving as chair in the 117th Congress. The subcommittee will be composed of 12 Republicans, including Reps. James Comer (R-KY), Lloyd Smucker (R-PA), Michelle Steele (R-C), Aaron Bean (R-FL), Eric Burlison (R-MO), Lori Chavez-DeRemer (R-OR) and Erin Houchin (R-IN) serving as new members; and 10 Democrats, including Reps. Pramila Jayapal (D-WA), Jahana Hayes (D-CT), Ilhan Omar (D-MN) and Kathy Manning (D-NC) serving as new members.

    Senate Health, Education, Labor and Pensions Committee

    The Senate HELP Committee is the Senate counterpart to the House Education and the Workforce Committee. Chair Bernie Sanders (I-VT) will be replacing former Chair Patty Murray (D-WA), who is now the chair of the Senate Appropriations Committee, and Ranking Member Bill Cassidy (R-LA) will be replacing former Ranking Member Richard Burr (R-NC), who retired at the end of the 117th Congress. Democrats will have 11 members and Republicans will have 10 members on the committee. Subcommittees have not yet been finalized, though we expect to see membership lists soon.

    Sanders staffers have stated that, as chair, he will “focus on universal healthcare, lowering the cost of prescription drugs, increasing access to higher education and protecting workers’ rights on the job.” As previously mentioned, however, the divided Congress and Republican control of the House will likely prevent meaningful legislation from moving to President Biden’s desk for his signature.

    CUPA-HR will be monitoring committee activity and will keep members apprised of any major hearings or updates that come out of the committees.



    Source link

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

    HR and the Courts — February 2023 – CUPA-HR

    by CUPA-HR | February 2, 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 May Consider the Propriety of the Court-Created “Adverse Employment Action” Rule, Limiting Title VII Complaints

    The Supreme Court has asked the U.S. government (the Department of Justice and the Equal Employment Opportunity Commission) to weigh in on whether it should hear two cases challenging the court-created “adverse employment action” rule, which limits consideration of Title VII complaints to those involving an “adverse employment action.”

    The first case involves a female police officer who alleged that she was transferred out of her department because of her sex. The 8th U.S. Circuit Court of Appeals (covering Minnesota, Iowa, Missouri, Arkansas, North Dakota, South Dakota and Nebraska) affirmed the dismissal of the case because it found no adverse employment action where the transfer did not involve a loss of pay and rank or level of responsibilities. 

    The second case involves a former head of an Alabama legal services group who challenged the decision of the 11th U.S. Circuit Court of Appeals (covering Alabama, Georgia and Florida), which affirmed the dismissal of his case on “adverse employment action” grounds where the suspension challenged because of his race was a suspension with pay, and did not involve the loss of any wages or benefits.  

    Both plaintiffs claim that the “adverse employment action” requirement was court-created and not part of the actual Title VII statute. They both claim that the change in job status, which was the subject of their complaint, was involuntary, not to their liking, and based on their protected-class status. Therefore, they claim it should be actionable under terms of the Title VII statute. Both defendants oppose, claiming there is no conflict between the circuits.  

    Professor’s Bias Case Dismissed for Failure to Establish “Pervasive” Harassment, and HR Warning Not a “Substantial Adverse Employment Action”

    A Texas Court of Appeals recently overruled a trial court and dismissed a professor of Indian descent’s bias claims filed under the Texas state anti-discrimination statute. The appellate court concluded that the professor’s complaints of coworker comments reflecting negatively on his national origin did not rise to the level of “pervasive” harassment. Additionally, his complaint that he received a warning from HR about a complaint, which was previously closed, did not rise to the level of a “substantial adverse employment action,” and therefore was not actionable (Texas Southern University v. Nayer (Tex. App. 1st Dist. No. 01-21-00497-CV, 1/10/23)).

    The plaintiff, who is originally from India, was hired by the university in 2009 as an assistant professor in the administration of justice department. He was promoted to associate professor, received tenure and was appointed interim department chair in 2016. The professor alleged that coworkers used the term “you people” as a racial epithet to address him in emails and that he had received a warning from HR relating to a complaint which had been closed. While the trial court ruled he was entitled to a jury trial over his discrimination claims, the appellate court reversed the ruling and dismissed the case for failure to establish “pervasive” harassment and failure to raise a “substantial adverse employment action.   

    In 2022, U.S. Labor Unions Engaged in the Most Strikes Since 2007, With Education Service Employees the Majority of Employees Engaged in Strike Activity 

    More than 225,000 employees engaged in 314 strikes last year, more strikes than in any year since 2007. Education service employees accounted for three out of every five of those workers, according to an analysis report by Bloomberg News. The largest strike of the year was at the University of California, where approximately 48,000 graduate student workers were on strike for six weeks demanding increased wages and changes to working conditions. This strike was the largest strike occurring at any college or university since 1990, according to the Bloomberg database. The graduate student workers were represented by the United Auto Workers Union.  

    The American Federation of Teachers and the National Education Association engaged in the second highest number of work stoppages during 2022, surpassed only by the Service Employees Union. Collectively, these two unions had the largest share of union members involved in strike activity in 2022. Analysts conclude that dual economic factors in 2022 led to the increase in strike activity. The factors noted were a very tight labor market and rising inflation. Union leaders also claim that many other contract negotiations narrowly avoided strike situations as a result of diligent negotiation activity on both sides of the table.  

    Nonetheless, overall union membership dropped to a historic low percentage of the U.S. workforce in 2023. The unionized percentage of the American workforce dropped to 10.1 percent, lower than the previous low of 10.3 percent, recorded in 2019. While union membership actually increased in 2022 by some 273,000 employees, it was not enough to keep pace with the even larger growth on non-union jobs in 2022. These numbers are a continuation of the long-term slide in union membership in America. In 1983, the first year the government began collecting these numbers, the percentage of overall union membership in the U.S. was over 20 percent of the total American workforce.  

    Professor’s Race Discrimination Claim Based on Disparate Treatment of Student Complaints Moves Forward

    A former medical professor’s lawsuit survived a motion for summary judgement filed by her former university employer following allegations that non-minority professors were not terminated following student complaints. In allowing the case to proceed to discovery, the federal court judge concluded that the plaintiff “barely” raised enough facts to allow the case to proceed (Miller-Sethi v. City University of New York et al (S.D.N.Y. No. 21- cv- 08591, I/26/23)).

    The medical school professor’s contract was not renewed following a complaint from a student that the professor criticized her following the student’s refusal to continue working at a site which she was not comfortable working in because of the racial makeup of the area. The university argued that the comparators had received complaints regarding course evaluation or teaching techniques, which were not comparable to plaintiff’s situation. The judge ordered further discovery on the issue. 



    Source link