Tag: CUPAHR

  • 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.



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  • 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.



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  • 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.



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  • 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.



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  • 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.



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  • 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. 



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  • Trends in Higher Ed Employee Learning and Development – CUPA-HR

    Trends in Higher Ed Employee Learning and Development – CUPA-HR

    by CUPA-HR | February 1, 2023

    Employee learning and development (L&D) offerings at higher ed institutions have changed significantly over the last three years. To find out what other institutions are doing in this area, Krista Vaught, assistant director of employee learning and engagement at Vanderbilt University, conducted a survey in the summer of 2022. Survey responses from L&D professionals at 115 institutions reveal the following trends in program delivery, attendance, topics and outcomes.

    Program Delivery

    Since 2020, synchronous online sessions have been offered by most (89) institutions, followed by self-paced modules (85). Some institutions indicated that at certain points, employees were limited to online learning and self-paced only, as they did not host live workshops.

    Prior to the pandemic, synchronous, in-person workshops were the primary delivery method at most institutions. Now, synchronous online is the primary method at 35 percent of institutions surveyed, asynchronous online at 30 percent of institutions, synchronous in-person at 18 percent of institutions and hybrid at 17 percent of institutions.

    Attendance

    Attendance and participation have fluctuated. In the early 2020 shift to remote work, there was a sense that employees had newfound time to pursue L&D, at least initially. From March 2020 to December 2021, 31 percent of institutions surveyed saw increased participation, while 27 percent said it was mixed or hard to tell. Eighteen percent said it increased then decreased, and 17 percent said it decreased.

    What did institutions see in 2022? Results were mixed again. Twenty five percent said attendance and participation were about the same as prior to 2022, 23 percent said it decreased, 21 percent said it increased and 27 percent said it was mixed or hard to tell.

    What’s causing the fluctuations and challenges in attendance and participation?

    • Time and availability
    • Burnout
    • Increased workload as employees transition back to more on-campus work or take on additional responsibilities because of turnover, leaving less time to pursue learning
    • Unsupportive supervisors who see learning as taking away time from work rather than part of work
    • Employee preference for different delivery methods (in-person versus virtual)
    • Learning opportunities are not always prioritized, resulting in last-minute no-shows

    Topics

    According to respondents, the most popular workshop topics fall under management and leadership, and wellness and communication.

    Assessing Outcomes

    Follow-up surveys are the most popular tool for assessing outcomes of workshops, followed by attendance and participation numbers.

    Prioritizing Learning and Development 

    In the ongoing competition for talent, L&D can be a game changer, both in attracting new talent and retaining the talent you already have. By investing in and prioritizing programs to support managers, develop leaders and promote better communication, institutions can create a workplace that’s hard to leave.

    Interested in more data and insights HR pros can use when brainstorming L&D initiatives, making a case for those initiatives, and designing them and assessing them? Head over to the full article, Higher Education Learning and Development Trends in 2022 – Where We Are now and Where We’re Headed (members-only) in the winter issue of Higher Ed HR Magazine.

    To learn how one institution launched a multi-faceted retention initiative, including manager and leadership development opportunities, watch the recording of the recent CUPA-HR webinar Solving the Retention Puzzle.

    Related Resources:

    CUPA-HR Learning Framework and Resources

    Management and Supervisor Training Toolkit (CUPA-HR Knowledge Center)

    Creating Your Individual Development Plan (E-Learning Course)

    Understanding Higher Education (E-Learning Course)



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  • USCIS Proposes Fee Rule With Significant Increases for Employers – CUPA-HR

    USCIS Proposes Fee Rule With Significant Increases for Employers – CUPA-HR

    by CUPA-HR | January 19, 2023

    On January 4, 2023, U.S. Citizenship and Immigration Services (USCIS) issued a proposed rule to adjust certain immigration and naturalization benefit request fees, which would result in significantly higher fees for employment-based petitioners. USCIS last adjusted fees in 2016, but the most recent fee review conducted by the agency determined that the 2016 fees are insufficient to cover the agency’s operating costs. Unlike other government agencies that receive the majority of their funding through congressional appropriations, USCIS receives approximately 96 percent of its funding from filing fees. USCIS claims that the increased fees will “allow USCIS to more fully recover its operating costs, reestablish and maintain timely case processing, and prevent the accumulation of future case backlogs.”

    While the proposal is nearly 500 pages long and has significant implications for both employment-based and family-based filings, this blog post focuses on the most significant implications for higher ed employers. Of significance for higher ed employers is a new proposal to fund the Asylum Program with employer petitions fees. Specifically, USCIS “proposes a new Asylum Program Fee of $600 be paid by any employers who file either a Form I-129, Petition for a Non-immigrant Worker, or Form I-140, Immigrant Petition for Alien Worker.”

    In addition to the new Asylum Program Fee, USCIS is proposing to increase almost all employment-based and employment-based “adjacent” filing fees. A full fee schedule can be found in Table 1 of the preamble to the proposal and includes the following highlights:

    • Fees for I-129 Petitions for H-1B workers rose 70 percent, from $460 to $780;
    • Fees for I-129 Petitions for L-1 workers rose 201 percent, from $460 to $1,385;
    • Fees for I-129 Petitions for O-1 workers rose 129 percent, from $460 to $1,055;
    • I-765 Employment Authorization (EAD) application fees were structured in a way to encourage online applications by providing a discount for online filings. Online applications will be priced at $555, regardless of whether the individual needs their biometrics, whereas paper-based filings will be $650.
    • Changes made to the I-539 fees for applications to extend/change non-immigrant status were similarly structured to the I-765 changes. Online applications will be priced at $525, whereas paper-based applications are rising to $620.
    • I-485 Adjustment of Status applications uniformly rose to $1,540. For those interested in applying for adjustment of status and a travel document (I-131), those fees will be $2,170 for electronic applications and $2,190 for paper-based applications. Lastly, for those looking to concurrently file for a status adjustment, a travel document and an EAD (I-765), that will cost $2,820.

    In addition to the aforementioned changes, USCIS is also proposing to revise the premium processing timeframe interpretation from calendar days to business days. Currently, premium processing allows petitioners to receive an adjudicative action on their case within 15 calendar days. Changing the interpretation to business days would add nearly a week to the existing adjudication time.

    As mentioned earlier, the fee proposal is nearly 500 pages long and as such includes numerous changes not covered in this blog post. CUPA-HR will continue to evaluate the proposal, which is open for public feedback through March 6, 2023, and plans to join with other higher education associations to submit comments identifying the proposals impact to the higher education community.



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  • HR and the Courts – January 2023 – CUPA-HR

    HR and the Courts – January 2023 – CUPA-HR

    by CUPA-HR | January 18, 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.

    Divided Court of Appeals Rules That Separating Bathrooms By Biological Sex Does Not Violate the Constitution or Title IX — Transgender Student’s Discrimination Claim Denied

    The full 11th U.S. Circuit Court of Appeals (covering Florida, Alabama and Georgia) recently held in a sharply divided 7 to 4 decision that separating school bathrooms by biological sex is constitutional and does not violate Title IX. The majority decision is subject to multiple dissents (Adams v. School Board of St. Johns County, Florida (11th Cir. No. 18-13592, 12/30/22)). The case involved a St. Johns County, Florida, school board, which restricted bathroom use by biological sex, not allowing students who identified with a sex different from their biological sex to use the bathroom of their choice.   

    The majority decision rejected the transgender plaintiff’s reliance on the Supreme Court decision in Bostock v. Clayton County, which held that under federal job discrimination law, sex discrimination includes bias based on gender identity or sexual orientation. The majority decision pointed out that a school setting “is not the workplace,” and Bostock expressly decided not to tackle the issue of sex-segregated locker rooms or bathrooms. The majority concluded that the U.S. has a long history of separating sexes when it comes to the use of public bathrooms, and such sex-based classifications have never necessarily violated the Equal Protection Clause. It is likely that other circuits may decide this issue differently, setting up an ultimate decision on this issue by the Supreme Court.  

    NLRB Expands Damage Remedies Against Employers Who Commit Unfair Labor Practices

    The National Labor Relations Board (NLRB), in a decision applicable to all private colleges and universities in America, recently ruled that it will award damages in addition to back pay and reinstatement to employees who are subject to unfair labor practices (Thryv Inc. (N.L.R.B. Case No. 20-CA-250250, 12/13/22)). The case was brought by the NLRB against Thryv Inc., a software and marketing company, which the NLRB alleged violated the National Labor Relations Act (NLRA) by laying off employees without first bargaining with the union.  

    The NLRB ruled 3 to 2 (with two Republican member dissenters) that its “make-whole” remedies for employees affected by unfair labor practices will include damages that are the “direct and foreseeable pecuniary harm” resulting from an employer’s unfair labor practice, in addition to back pay and reinstatement. For example, this would include out of pocket costs for medical payments that would have been covered by an employer’s health insurance had the employee continued to be employed but for the unlawful termination. 

    Firefighter Loses First Amendment Religious Objection to Being Photographed for ID and Accountability Card

    A Christian firefighter from Bourne, Massachusetts, lost his First Amendment religious claim against his fire department after he was disciplined (suspended for 24 hours and ineligible for pay increases for at least six months) for refusing to be photographed for his ID card and accountability tag that would be attached to his firefighting gear and used at fire scenes (Swartz v. Sylvester (2022 BL 416412, 1st Cir., No. 2101568, 11/21/22)). The firefighter claimed that his religious beliefs precluded him from engaging in acts of self-promotion and that the photos might be used for promotional purposes. 

    The fire chief’s directive came after he became aware that some firefighters had worn ties and others wore t-shirts for their ID and authentication tag photos. The fire chief issued a directive that all firefighters would sit for their photos wearing their dress uniform for consistency. The photos would also be used in a display at the firehouse, be submitted to the media when a firefighter died in the line of duty and might be submitted to the media following a firefighter’s promotion.  

    In rejecting the plaintiff’s claim, the court concluded that the directive was applied uniformly, without exception, was facially neutral and was rationally related to the legitimate government purpose of publicizing the fire department and promoting the integrity of governmental institutions. 

    NLRB General Counsel Concludes That the NCAA Violated the NLRA By Failing to Treat Student-Athlete Basketball and Football Players as Employees

    The NLRB general counsel has concluded that the NCAA is violating the NLRA by failing to treat student-athlete basketball and football players as employees. The decision could eventually lead to the ability of these student-athletes to form labor unions. Absent settlement of the case, the NLRB Los Angeles Regional Office will issue a complaint against the NCAA and likely the Pac-12 Conference and the University of Southern California for failure to treat these student-athletes as employees. The case was brought to the NLRB by the National College Players Association, an advocacy group seeking to organize student-athletes. The final decision as to whether student-athletes are employees rests with the full NLRB, which will eventually address this matter. 

    New York Temporarily Abandons Statute of Limitations on State Law Sex Harassment Claims

    New York state has temporally done away with the statute of limitations on sex abuse claims, giving adult victims of sex abuse one year to file a claim against employers and offenders seeking financial compensation. The Adult Survivors Act, which became effective November 24, 2022, gives victims of alleged sex abuse a one year period to file a claim in New York no matter when the alleged abuse occurred. The new statute is intended to fill the gap left by 2019 legislation, which expanded New York’s statute of limitations on sex abuse cases from one year to 20 years, but did not do so retroactively.  

    Jury Awards Former Softball Coach $800,000 in Damages for Emotional Pain and Mental Anguish in Sex Discrimination Case

    A federal court jury has awarded a former university baseball coach $800,000 in damages for alleged emotional pain and mental anguish in a sex discrimination case in which the former coach alleged she was paid less than male comparators and was suspended from her position because of her sex. She had been suspended from her position following parental complaints about her coaching style. She alleged that a male coach who was the subject of similar parental complaints was treated less severely. The court dismissed her complaint with regard to salary discrimination, but allowed her discriminatory suspension allegations to proceed to a jury trial. The $800,000 jury award is subject to the university’s Motion for Judgment, not on the verdict likely to be filed after a final award is formalized by the federal district court judge (Hall v. Alabama State University (M.D. Ala. No. 16-cv-00593, 12/19/22)).  

    The jury trial proceeded for two days, and the jury concluded that the plaintiff’s gender was a motivating factor in the decision to suspend her.   

    Boston College Trustees Sued in Class-Action Lawsuit Claiming ERISA Violations in Allegedly Allowing “Above Market” Administrative Fees to Be Paid to Investment Adviser Without Competitive Bidding

    A federal district court judge recently denied the motion for summary judgement filed by defendants and allowed a class-action lawsuit to proceed against the trustees at Boston College who were sued for allegedly allowing “above market” record-keeping fees and “excessive” investment-management fees, which plaintiff’s claimed were not properly monitored or assessed through a competitive bidding process. In ruling the motion a “close call,” the judge allowed the lawsuit to proceed to discovery into the institution’s and trustees’ conduct (Sellers v. Trustees of Boston College (2022 BL 461759, D. Mass. No. 1:22-cv-10912, 12/27/22)).

    The plaintiffs also challenged the alleged inadequate performance of certain plan investments. The retirement plans in question cover approximately 3,000 employees and contain over $1.1 billion in assets. In allowing the case to proceed, the judge concluded that the plaintiffs are alleging more than poor performance during a limited time. The plaintiffs are alleging that the institution and trustees were not aware of the historical imprudence of certain investments or recent published court decisions regarding questionable fees and investments in this area.  



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  • New Research Finds Higher Ed Institutions Are at Risk of Losing Supervisors to Other Employers – CUPA-HR

    New Research Finds Higher Ed Institutions Are at Risk of Losing Supervisors to Other Employers – CUPA-HR

    by CUPA-HR | January 11, 2023

    As previous research from CUPA-HR has shown, America’s colleges and universities are in the midst of a talent crisis, as many employees are considering other employment opportunities due to a number of factors. As a follow-up to the initial findings of CUPA-HR’s 2022 Higher Education Employee Retention Survey, CUPA-HR has released new findings focused specifically on those in supervisory roles, and the data show that many supervisors are overwhelmed, under-resourced, and struggling to fill positions and maintain morale.

    The newly published report, The CUPA-HR 2022 Higher Education Employee Retention Survey: Focus on Supervisors, explores supervisors’ likelihood of looking for new employment, their current challenges and working environments, and which job aspects specific to supervisors are associated with their retention. The report analyzes data from the 3,815 higher ed administrators, professionals and non-exempt staff, most (57 percent) of whom were supervisors, who responded to CUPA-HR’s 2022 Higher Education Employee Retention Survey.

    Findings

    Higher ed supervisors are looking for other employment opportunities, and less than half would seek new opportunities at their current institution. Nearly two in five (36 percent) supervisors indicate they are likely to look for other employment in the next 12 months, and only 40 percent say they would seek job opportunities at their current institution. The most common cited reason for seeking other employment is pay.

    Most higher ed supervisors work long hours and have absorbed more duties since the onset of the COVID-19 pandemic. Data show that supervisors are more likely than non-supervisors to work additional hours. Fewer than half (47 percent) of non-supervisors work more hours than what is considered full-time. However, 89 percent of area supervisors and 76 percent of other supervisors work more hours per week than what is considered full-time at their institution. Additionally, supervisors are more likely than non-supervisors to agree that they have absorbed additional responsibilities of other staff who have left the institution since the onset of COVID-19. Supervisors are also more likely than non-supervisors to report that they experienced an increase in job expectations since the start of the pandemic.

    Filling positions and maintaining morale are supervisors’ top challenges. As shown in the figure below, almost two-thirds (63 percent) of supervisors indicated they find filling positions very challenging and over half (54 percent) found maintaining staff morale very challenging.

    Higher ed supervisors report a lack of adequate training and support. Only three in five supervisors agree that they have resources and support in their supervisory role. Less than half (46 percent) agree that they have been provided with adequate management training for their supervisory role. However, when supervisors have more resources and support in their supervisory roles, more power to advocate for their staff, more power to allow flexible schedules, and more power to allow their staff to work remotely, they are less likely to seek other employment.

    Implications of Supervisor Turnover and How to Combat It

    Turnover in any role can impact an institution due to loss of talent, institutional knowledge and team or interdepartmental rapport. However, turnover in a supervisor role has more far-reaching implications. Supervisor turnover also impacts direct reports, who must adjust to a new supervisor and may need to adapt to new team priorities and vision. Loss of supervisors also equates to a loss of leaders who are key to succession plans.

    In light of what the data show, there are several actions higher ed institutions can take to keep their supervisors:

    • Provide supervisors with resources and support in their capacity as supervisors, particularly around filling empty positions and managing staff morale.
    • Ensure supervisors have the ability, knowledge and resources to advocate for their staff.
    • Give supervisors more autonomy to determine their staff’s working arrangements, as the data show that supervisors who have more power to allow their staff to work remotely and have flexible schedules are less likely to seek other employment.
    • Commit to reducing supervisor workload.
    • If possible, raise salaries for supervisors (but not at the expense of non-supervisors).

    For a deeper look into the data, read the full report.

    Note: In the findings, “area supervisors” refer to those supervisors who are the top-most leaders in their department, units or areas (self-identified in the survey; 26 percent of respondents). “Other supervisors” are those who self-identified as having at least one direct report but were not the top-most leader in their department (31 percent of respondents). “Non-supervisors” are those employees who have no direct reports (43 percent of respondents).

    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.



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