Tag: CUPAHR

HR and the Courts — August 2024 – CUPA-HR

by CUPA-HR | August 14, 2024

Each month, CUPA-HR General Counsel Ira Shepard provides an overview of several labor and employment law cases and regulatory actions with implications for the higher ed workplace. Here’s the latest from Ira.

Student-Athletes and NCAA Propose a $2.8 Billion Settlement in Antitrust and Name, Image and Likeness Case

Attorneys representing student-athletes have filed for court approval of a $2.8 billion settlement reached with the NCAA and the Power Five conferences. Bloomberg reports that the student-athletes were pursuing a $4.5 billion claim.

Under the proposed settlement, a men’s football or basketball player would receive roughly $135,000 and a female basketball player would receive roughly $35,000. Athletes in other Division I sports, including football and basketball players in non-Power Five conferences, would also recover under the proposed settlement, although the terms of that recovery are not yet clear.

Also under the proposed settlement, Division I schools will be able to provide student-athletes with direct payment up to a cap of 22% of the Power Five schools’ average athletic revenue per year. The payment pool will be more than $20 million per school in the 2025-26 academic year and will grow from there. The Power Five includes the Big Ten, Big 12, Atlantic Coast Conference, Southeastern Conference and Pac-12. (The Pac-12 lost its autonomy status for 2024-25 after 10 of 12 of its members departed for other conferences.) The proposed settlement was filed in the U.S. District Court for the Northern District of California (In Re College Athlete NIL Litigation (N.D. Cal., 4:20-cv-03919, 7/26/24)).

It is reported that the multibillion-dollar settlement would be paid out over 10 years. A preliminary approval hearing will take place in September to be followed by a comment period from class members. If approval is reached it will spare the NCAA and the Power Five from a trial scheduled to take place in January, 2025.

Employee Status of Student-Athletes Under the FLSA Still Undecided as Court Rejects NCAA’s Appeal

The 3rd U.S. Circuit Court of Appeals (covering Delaware, New Jersey, Pennsylvania and the Virgin Islands) rejected the appeal of the NCAA contesting the trial court decision that college athletes are entitled to a trial to decide whether they are employees under the FLSA.

The appeals court remanded the case back to the trial judge for more analysis on the applicable standard to be used in determining whether a student-athlete is an employee. The decision allows the college athletes to continue to pursue their claims, which allege that the NCAA and colleges are joint employers (Johnson V. NCAA (3rd Cir. No. 22-01223, 7/11/24)).

The decision contrasts with the former holdings of the 7th U.S. Circuit Court of Appeals and the 9th Circuit, which rejected claims that student-athletes were employees. In remanding the case back for further analysis, the 3rd Circuit left room for the court to hold that some college athletes maintain their amateur, non-employee status while others are employees subject to the minimum wage requirements of the FLSA.

The decision also rejected the term “student-athlete,” commenting that the term is an “NCAA marketing invention” designed to “conjure up the nobility of amateurism,” assert “the precedence of scholarship over athletics,” and “obfuscate the nature of the legal relationship at the heart of a growing commercial enterprise.” The decision stated that college athletes “cannot be barred as a matter of law from asserting FLSA claims simply by virtue of the revered tradition of amateurism.” Finally, the court remanded the case to the trial judge to use common-law factors, such as level of control and presence of payments, to determine the employee status of college athletes.

Unionization Petitions Filed With NLRB Increase by 30% in 2024 — Decertification Petitions Increase by 12%

Petitions filed with the National Labor Relations Board (NLRB) to both certify and decertify union representation are up dramatically so far this year.

The increase in certification petitions is partially attributed to the NLRB’s decision in the Cemex decision. That decision requires employers, in response to a certification petition, to either voluntarily recognize the union or file an RM, which is used by employers to dispute that the union has majority status. The increase in activity also comes after the NLRB altered its administrative procedures to shorten the time between petition filing and the election.

The NLRB also reports that its regional offices have conducted more representation elections so far in 2024 than in the entire 2023 fiscal year. Finally, the NLRB reports that unions have won 79% of union-filed petitions and 70% of employer-filed petitions.

EEOC Signals Second Attempt to Require Employers to Report Pay Data by Race, Sex and Job Category

The Equal Employment Opportunity Commission has indicated in its July regulatory playbook that it intends to make another attempt to require that employers annually report pay data by race, sex and job category. Its first attempt to do so was canceled by court intervention in 2016 during the Obama administration.

The EEOC indicated it will use the Administrative Procedure Act (APA) as opposed to the Paperwork Reduction Act (PRA) to issue the new regulations. Under the APA, advance notice, including a comment period, is required. Also under the APA, an individual or organization has the private right of action to block the regulation.

The recent Supreme Court decision in the Chevron case may make such APA challenges easier to manage for employers and employer organizations seeking to challenge the new attempt to collect pay data. In the Chevron case, the Supreme Court abandoned the rule of the presumption of legitimacy of federal agency decisions.

Court Concludes NLRB Failed to Explain Why It Rejected Employer Objections in Union Election

The U.S. Court of Appeals for the District of Columbia Circuit concluded that the NLRB failed to coherently explain its rejection of employer election objections when the NLRB certified a union in a one-vote victory in a mail ballot election.

The D.C. Circuit court concluded that the NLRB used different legal tests without explanation when it rejected an employer’s objections to the mail ballot election (GHG Mgmt LLC V. NLRB (DC Cir. No, 22-01312, 7/9/24)).

The court ruled in a unanimous, three-judge decision that the NLRB failed to adequately explain its rejection of employer objections and remanded the case back to the NLRB for determination over which test it used to reject the employer’s objections. The court stated it can only rule on whether the NLRB’s decision was correct if it knows which test the NLRB used in coming to its decision. This case is another criticism of the NLRB’s handling of mail-in ballot elections used during and after the COVID-19 pandemic.

Federal Judge Temporarily Rejects Texas AG’s Attempt to Block EEOC Guidance on LGBTQ+ Employees

A federal district trial judge has temporarily rejected the Texas attorney general’s attempt to block current EEOC guidance that covers LGBTQ+ employees. The guidance protects employees’ right to choose pronouns and bathrooms consistent with their gender identity.

The federal judge dismissed the case, holding that the Texas attorney general must file a new case and not rely on the past decision in which the federal judge vacated similar EEOC regulations protecting LGBTQ+ employees (State of Texas V. EEOC (N.D. Tex. No. 2-21-cv-00194, 7/17/24)).

The judge ruled that his prior decision in favor of the Texas attorney general vacating prior EEOC LGBTQ+ regulations can be used as a predicate for a new case. Nonetheless, the Texas attorney general must file a new case seeking new injunctive relief. The federal judge explained that his prior decision addressed the EEOC’s 2021 guidance alone and a new case must be filed to adjudicate the issues involved in the new EEOC guidance.

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August 14, 2024
NLRB Issues Memo Outlining Higher Ed Institutions’ Disclosure Obligations under NLRA and FERPA – CUPA-HR
by CUPA-HR | August 7, 2024

On August 6, National Labor Relations Board (NLRB) General Counsel Jennifer Abruzzo issued a memo, “Clarifying Universities’ and Colleges’ Disclosure Obligations under the National Labor Relations Act and the Family Educational Rights and Privacy Act.” The memo was issued to all NLRB regional offices and is meant to provide guidance to institutions of higher education clarifying their obligations “in cases involving the duty to furnish information where both statutes may be implicated.”

The memorandum outlines how institutions can comply with requests by unions representing their student workers for information that may be covered under FERPA, the federal law that protects students’ privacy in relation to their education records and applies to institutions that receive federal education funds. Under the NLRA, employers are required to provide certain information to unions that may be relevant to their representational and collective bargaining obligations, but this requirement can come into conflict with institutions’ obligations under FERPA.

In situations where the employer believes certain records requested by the union may be confidential and covered under FERPA, the memo outlines the steps institutions must take to comply with their disclosure obligations.
1. “The institution must determine whether the request seeks education records or personally identifiable information contained therein.”
Institutions must be prepared to “explain why and substantiate with documentary evidence, if available, that the student-employee is employed as a result of their status as a student to the union,” as opposed to a traditional employee whose records are not protected by FERPA. The memo specifies that, if the union’s request includes some documents not covered by FERPA, the employer must provide those documents to the union “without delay, even if FERPA applies to other parts of the request.”
1. “If a request seeks information protected by FERPA, the institution must offer a reasonable accommodation in a timely manner and bargain in good faith with the union toward a resolution of the matter.”
The memo puts the burden to offer an alternative on the employer. The employer cannot “simply refuse to furnish the requested information,” but it must offer a “reasonable accommodation and bargain in good faith toward an agreement that addresses both parties’ interests.”
1. “If the parties reach an agreement over an accommodation, the institution must abide by that agreement and furnish the records.”
If an agreement is not reached, the memo specifies that the union can file an unfair labor practice charge against the institution. The memo then gives the NLRB the authority to find an appropriate accommodation “in light of the parties’ bargaining proposals.”

Abruzzo also provided a “FERPA consent template” that she advocates institutions provide to student-employees during the onboarding process. The template, if signed by the student employee, “would permit an institution covered by FERPA to disclose to a union, consistent with FERPA, any employment-related records of a student that are relevant and reasonably necessary for each stage of the representation process.” Abruzzo argues the template would help “reduce delay and obviate the need to seek students’ consent at the time a union seeks to represent employees or submits an information request to carry out its representative functions.”

CUPA-HR will keep members apprised of updates following this guidance and other updates from the NLRB.

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August 7, 2024
Neurodiversity at Work: Focus on ADHD in Women – CUPA-HR

by Julie Burrell | August 5, 2024

A full picture of neurodiversity in the workplace includes understanding how gender shapes employees’ experiences of neurodevelopmental disorders. Although they’re diagnosed at roughly the same rates as men, women with ADHD may be overlooked in conversations about attention-deficit/hyperactivity disorder. Until fairly recently, ADHD was seen as primarily affecting children, with the typical view of someone with the disorder as a restless or hyperactive boy.

Awareness about how ADHD can manifest differently in women — and how gender stereotypes play a significant role in diagnosis and treatment — can help foster a culture that uplifts neurodiversity and the skills that neurodiverse employees can offer an organization. Employees with ADHD bring unique strengths and perspective to their work, such as creativity, courage and hyperfocus.

Here’s what HR needs to know about ADHD and how it can be different for women.

Misconceptions About ADHD

Rather than a set of behaviors, ADHD is a neurodevelopmental condition affecting about 2% to 5% of adults, and falls under the same broad umbrella as autism spectrum disorder and dyslexia. A stereotypical picture of someone with ADHD is “a boy who can’t sit still and is disruptive in class,” according to Dr. Deepti Anbarasan, a clinical associate professor of psychiatry at New York University.

Women who receive ADHD diagnoses in adulthood may have struggled with inattention and executive functioning for much of their lives. Because girls and women with ADHD often present as inattentive rather than hyperactive, and because women often develop coping skills that mask ADHD, women often receive late-in-life diagnoses. By the time women reach adulthood, however, the rates of diagnosis are close to those seen in men.

ADHD in women often presents as challenges with executive functioning, which can include difficulties with attention and focus, as well as emotional dysregulation, trouble with finishing tasks or juggling multiple tasks, and absentmindedness. Women with ADHD might also suffer from anxiety and depression, and even suicide attempts and self-harm. Some people with ADHD compensate by working extra hours during their personal time to keep up with their day-to-day work, causing added stress.

A Strengths-Based Approach

Though ADHD can pose real challenges at work, a strengths-based approach highlights the advantages that employees with ADHD bring to their jobs. In a recent study, for example, 50 adults with ADHD identified the positive aspects of living with the condition, including energy and drive, a high degree of creativity, an ability to hyperfocus, and traits such as resilience, curiosity, and empathy. The same study emphasizes that experiencing ADHD as challenging or beneficial depends on the context and sociocultural environment that a person is in.

HR as a Leader in Neurodiversity

Given how much context and sociocultural environment matters, creating a campus climate that supports neurodiversity is critical. HR can champion neurodiversity through awareness and well-being programs. Because ADHD often occurs alongside depression and anxiety, a holistic approach to well-being is recommended. (Learn how the University of Texas Health Science Center at San Antonio gained traction with their mental health awareness campaign.)

HR can also advocate for accommodations to support neurodivergent employees. For example, task separation is a common management strategy to help employees set their work priorities. In emails and written communication this might look like establishing clear parameters, breaking requests down into bulleted lists, and clearly spelling out instructions like “two-minute ask” or “response requested.” (For many more suggestions on how to uplift neurodiversity on campus, including practical tips for accommodations, read Neurodiversity in the Higher Ed Workplace.)

There’s a business case to be made for a robust attention to neurodiversity: increased retention and productivity, reduced absenteeism, and developing employees’ strengths. Supporting neurodiversity also builds an appealing workplace culture, one that signals to employees that their whole person is valued.

More Resources on Women With ADHD

ADHD Is Different for Women, a podcast by the Harvard Business Review

Duke Center for Girls and Women with ADHD

Women and Girls with ADHD from the organization Children and Adults with Attention-Deficit/Hyperactivity Disorder (CHADD)

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August 5, 2024
Title IX Rule Goes Into Effect in 24 States – CUPA-HR

by CUPA-HR | August 1, 2024

On August 1, the Biden administration’s Title IX final rule goes into effect, implementing new requirements for compliance with Title IX for institutions of higher education. However, ongoing legal challenges have blocked the rule from taking effect in 26 states, as well as at certain institutions in states that have not sued the Department of Education (ED).

Background

On April 19, ED released the text of the highly anticipated Title IX final rule. The final rule expands protections against sex-based discrimination to cover sexual orientation, gender identity, and pregnancy or related conditions, and it implements new training requirements for employees and grievance procedures for handling reported cases of sex-based discrimination, including sexual harassment. To provide members with an overview of the final rule, CUPA-HR held a webinar in April, which was recorded and can be accessed for free.

Lawsuits

Shortly after the rule was published, over 20 Republican-led states and advocacy groups filed lawsuits challenging the final rule. The lawsuits sought to block ED from implementing and enforcing the final rule, though most of them homed in on concerns with expanding Title IX protections to transgender individuals through the expanded protections against discrimination based on an individual’s gender identity.

From mid-June through the end of July, federal judges across the country granted preliminary injunctions to the states and advocacy groups challenging the rule, meaning the Department of Education is blocked from enforcing the new Title IX rule on the August 1 effective date. All 26 states that sued ED for the Title IX rule were ultimately granted injunctive relief. Additionally, a decision from the U.S. District Court of Kansas expanded the preliminary injunction to include schools attended by members of the Young America’s Foundation, Female Athletes United, and Moms for Liberty. This means that ED cannot enforce the new Title IX rule at certain schools in the 24 states that didn’t challenge the rule, as well as Washington, D.C., and Puerto Rico.

The Biden administration has appealed to the Supreme Court on the decisions granting the preliminary injunctions. In its emergency request, the administration is asking the court to limit the scope of the preliminary injunction to only block provisions related to gender identity. It argued that the lower court’s decisions to grant preliminary injunctions were based on concerns with the expanded protections for transgender students, and it hopes that other provisions like the new grievance procedures and training requirements can go into effect. A decision from the Supreme Court on the emergency request has not yet been issued.

Looking Ahead

Though ED is blocked from enforcing the new Title IX rule in 26 states, litigation continues in the lower courts where decisions have been issued on whether to strike down the rule. If the rule is struck down, the Biden administration is likely to appeal the decision, though it is unknown whether a decision will be released before the election and potential change in administration. CUPA-HR will keep members apprised of additional updates to the legal challenges against the Title IX final rule.

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August 1, 2024
ALP 2024: Higher Ed Challenges, HR Opportunities, and a Side of Kansas City BBQ – CUPA-HR
by CUPA-HR | July 31, 2024

The road home may have been a bit bumpy (thanks, CrowdStrike), but the two days CUPA-HR leaders spent in Kansas City at the annual Association Leadership Program (ALP) were packed with opportunities to smooth the way for higher ed HR in the year ahead.

On July 18-19, leaders from CUPA-HR’s national, region and chapter boards; cohorts from the Ignite and Emerging CUPA-HR Leaders programs; team members from the CUPA-HR national office; and key corporate partners gathered to discuss higher ed HR challenges, share successes, learn from one another, and build relationships. Here are some of the takeaways from this year’s event:

To be relevant and effective, higher education HR leaders must partner with their presidents and other campus leaders to connect their work to the institution’s mission and priorities and to understand current and emerging challenges for higher education.

CUPA-HR chapters are knocking it out of the park when it comes to creating information-packed programs to support higher ed HR professionals at the local level.

The key to creating and sustaining inclusive campus communities is to focus on processes, policies, and learning opportunities that mitigate bias and promote belonging and civil discourse for all. CUPA-HR resources are available to support this work!

Gender gaps in leadership positions persist. To expand the pipeline for leadership positions to include more women, start by reviewing promotion processes and criteria to mitigate bias and by training decision makers to recognize bias.

CUPA-HR higher ed workforce data is second to none, and the Research Center is an excellent source of high-level data to support workforce planning.

To promote civility and build authentic relationships in the workplace, speaker Alonzo Kelly emphasized the importance of:

Entering conversations with humility

Keeping in mind that your information may not be wrong, but may be incomplete

Being direct and kind

“A mistake repeated is a decision.”

CUPA-HR leaders lead because they are drawn to service, they are lifelong learners, and they value the friendships they’ve formed and the support they receive from the CUPA-HR community.

You can take CUPA-HR with you wherever you go — especially if you have a Roamin’ Robyn to keep you company. Think “Flat Stanley,” but featuring CUPA-HR’s board chair, Robyn Salvo! (Thanks to Joanne Santarelli for the awesome photo!)

Interested in Taking Your Professional Development Further?

CUPA-HR’s volunteer leaders have committed to advancing the profession and the mission of CUPA-HR. They understand the complexities of higher ed HR, and they want to enhance the knowledge and skills they need to lead their institutions into the future.

Are you ready to take that next step in developing your leadership skills, shaping the profession, and gaining one-of-a-kind access to successful practices and HR professionals from across the country? Then CUPA-HR leadership — in a chapter, at the region level, or even on the national board of directors — might be right for you. Learn more about how you can get involved.

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July 31, 2024
Data Show Women and People of Color Have Lower Representation Among the Highest-Paying Higher Ed Professional Jobs – CUPA-HR

by CUPA-HR | July 17, 2024

New research from CUPA-HR on the state of the professional workforce in higher education shows that women and people of color are not only being paid less than White men in the same position, but also are less likely to hold higher-paying positions.

CUPA-HR’s research team analyzed data from the Professionals in Higher Education Survey, a comprehensive data source that collects salary and demographic data on more than 293,000 professionals in 409 positions from approximately 985 higher ed institutions, to evaluate representation and pay equity for women and professionals of color from 2016-17 to 2023-24.

The Findings

Women and people of color have lower representation among the highest-paying professional jobs. Women and people of color have lower representation among six-figure (i.e., paid more than $100,000) jobs in comparison to all other professional jobs. White men held 40% of six-figure jobs but held 28% of jobs paying less than $100,000.

Pay equity has improved slightly for women over the past eight years, but women of most races/ethnicities are still paid less than White men. Except for Asian women, women of all other examined races/ethnicities were paid less than White men in 2023-24.

Over the past eight years, the representation of people of color increased among higher ed professionals; the increase in the representation of women of color was more than double the increase in the representation of men of color. The representation of people of color increased from 22% of professionals in 2016-17 to 26% of professionals in 2023-24. During this time, women of color had more than two times the increase in their representation than did men of color (26% increase for women versus 10% increase for men).

Older women experience greater pay gaps than younger women. Women over age 42 had larger pay gaps relative to White men than did women age 42 or younger.

Explore the interactive graphics and read the full report, The Higher Ed Professional Workforce: Composition and Pay Equity by Gender and Race/Ethnicity From 2016-17 to 2023-24.

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July 17, 2024
Getting Organic Engagement in a Mental Health Awareness Program – CUPA-HR
by Julie Burrell | July 15, 2024

Employers have enormous sway over employee health. That’s one of the major takeaways from the CUPA-HR webinar An Integrated Approach to Fostering Workplace Well-Being, led by Mikel LaPorte and Laura Gottlieb of the University of Texas Health Science Center at San Antonio. They collected eye-opening data that helped them make the case to leadership for a mental health awareness campaign. In a Workforce Institute report they cited, employees say that managers have a greater impact on their mental health than their doctors or therapists — roughly the same impact as their spouse!

In the webinar, LaPorte and Gottlieb discussed how their robust, research-driven suite of content is helping to normalize discussions of mental health on campus. They’re even being asked to present their well-being trainings at meetings, a sign that their push for mental health awareness is resonating organically.

A One-Stop Shop for Mental Health

The awareness campaign centers on their wellness website, which acts as a one-stop shop for campus mental health. (Right now, the site is internal-facing only, but the recorded webinar has rich details and example slides.) There, they organize their podcast episodes, articles and curated content, as well as marshal all the mental health resources currently available to staff, students and faculty.

They’ve also found a way to make this initiative sustainable for HR in the long term by recruiting faculty subject matter experts to write on topics such as compassion fatigue. These experts are then interviewed on their quarterly podcast, Well-Being Wisdom. Tapping into faculty experts also ensures rigor in their sources, a significant step in getting buy-in from a population who requires well-vetted wellness practices.

Getting Organic Engagement Starts With Leaders

LaPorte and Gottlieb have faced the typical challenge when rolling out a new campaign: engagement. Email fatigue means that sending messages through this channel isn’t always effective. But they’ve started to look at ways of increasing engagement through different communication channels, often in person.

Direct outreach to team leaders is key. They regularly attend leadership meetings and ask different schools and departments to invite them in for facilitated mental health activities. (In the webinar, you can practice one of these, a brief guided meditation.) They’ve developed a leader guide and toolkit, including turnkey slides leaders can insert into decks to open or close discussions. Leaders are supplied with “can opener” discussion items, such as
- “I made a difference yesterday when I…”
- “Compassion is hardest when…”
- “I show up every day because…”
Not only does this provide opportunities to normalize conversations around mental health, but it also strengthens relationship-building — a key metric in workplace well-being. As CUPA-HR has found, job satisfaction and well-being is the strongest predictor of retention by far for higher ed employees.

Campus leaders are now reaching out to the learning and leadership development team to request mental health activities at meetings. Some of the workshops offered include living in the age of distraction, mindful breathing techniques, and the science of happiness. For more details on UT Health San Antonio’s well-being offerings, including ways they’re revamping their program this fiscal year (think: less is more), view the recorded webinar here.

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July 15, 2024
Biden Administration Releases Spring 2024 Regulatory Agenda – CUPA-HR
by CUPA-HR | July 11, 2024

On July 5, the Biden administration released the Spring 2024 Unified Agenda of Regulatory and Deregulatory Action (Regulatory Agenda), providing insights on regulatory and deregulatory activity under development across more than 60 federal departments, agencies and commissions. The Spring 2024 Regulatory Agenda is the first of two that will be released during the calendar year, and it sets target dates for regulatory actions in the coming months.

CUPA-HR’s government relations team reviews each Regulatory Agenda that is released and has put together the following list of noteworthy regulations included in the current edition.

Department of Education

Office for Civil Rights – Discrimination Based on Shared Ancestry or Ethnicity in Response to EO 13899 on Combating Anti-Semitism and EO 13985 on Advancing Racial Equity and Support for Underserved Communities

The Department of Education’s Office for Civil Rights (OCR) is targeting December 2024 for the release of a Notice of Proposed Rulemaking (NPRM) to amend Title VI of the Civil Rights Act of 1964 and OCR’s enforcement responsibilities for cases involving discrimination based on shared ancestry or ethnic characteristics. OCR is issuing this NPRM in response to a 2019 Trump Executive Order (EO) and a 2021 Biden EO.

The NPRM has become a higher priority for OCR, given the recent political activity on campus related to the war in Gaza and related scrutiny from Congressional Republicans of higher education’s response to protests on campus. In the Regulatory Agenda announcement, OCR explains the need for this rulemaking by stating that they have “received complaints of harassment and assaults directed at Jewish, Muslim, Hindu and other students based on their shared ancestry or ethnicity.”

Office for Civil Rights – Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance: Sex-Related Eligibility Criteria for Male and Female Athletic Teams

According to the Regulatory Agenda, the Biden administration has pushed its final rule on transgender students’ participation in athletic programs to its “long-term actions,” with an undetermined date for when the final rule will be published. In the Fall 2023 Regulatory Agenda, the final rule was previously targeted for March 2024.

OCR released an NPRM on this topic in April 2023. Under the NPRM, schools that receive federal funding would not be permitted to adopt or apply a one-size-fits-all ban on transgender students participating on teams consistent with their gender identity. Instead, the proposal allows schools the flexibility to develop team eligibility criteria that serves important educational objectives, such as fairness in competition and preventing sports-related injuries. The department further explained that the eligibility criteria must take into account the sport, level of competition, and grade or education level of students participating, and the criteria would have to minimize harm to students whose opportunity to participate on a team consistent with their gender identity would be limited or denied.

The move to push the final rule to “long-term actions” with an undetermined publication date is likely a result of recent challenges to the Biden administration’s Title IX final rule and the upcoming election. Shortly after the Title IX rule was published, over two dozen states joined lawsuits challenging the regulations, with many citing the inclusion of protections for gender identity and sexual orientation as top concerns with the final rule. Since then, the Title IX final rule has been blocked from going into effect on August 1 in 14 states.

Federal Acquisition Regulation (FAR)

Pay Equity and Transparency in Federal Contracting

In December 2024, the Department of Defense (DOD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA) anticipate releasing a final rule to amend the Federal Acquisition Regulation (FAR) on pay equity and transparency in federal contracting.

The joint agencies published a pay equity and transparency NPRM in January 2024. In the NPRM, the agencies propose to amend the FAR to implement a government-wide policy that would:
1. prohibit contractors and subcontractors from seeking and considering job applicants’ previous compensation when making employment decisions about personnel working on or in connection with a government contract (“salary history ban”), and
2. require these contractors and subcontractors to disclose on job announcements the compensation to be offered (“compensation disclosure” or “pay transparency”).
As part of its justification for publishing the NPRM, the proposal noted that 21 states, 22 localities, and Washington, D.C., have put bans into place that prohibit employers from asking job applicants for their salary, and 10 states have pay transparency laws in place, with several other states working toward implementing such laws.

Department of Homeland Security

U.S. Citizenship and Immigration Services – Modernizing H-1B Requirements and Oversight and Providing Flexibility in the F-1 Program, and Program Improvements Affecting Other Nonimmigrant Workers

According to the Regulatory Agenda, the Department of Homeland Security’s U.S. Citizenship and Immigration Services (USCIS) anticipates releasing at least one more final rule to modernize the H-1B and F-1 visa programs in December 2024.

In October 2023, USCIS issued an NPRM to simplify the application process for H-1B visas, increase the program’s efficiency, and strengthen the program’s integrity measures. In February 2024, USCIS issued a final rule to implement a new beneficiary-centric selection process for H-1B registrations, but it did not finalize all of the provisions that were originally included in the NPRM. When publishing the February 2024 final rule, DHS indicated that it planned to publish a separate final rule to address the remaining aspects from October’s proposed rule. The separate final action listed in the Spring Regulatory Agenda will likely be the remainder of the provisions from the NPRM.

CUPA-HR will keep members apprised of updates to these regulations and additional policies as they are introduced.

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July 11, 2024
HR and the Courts — July 2024 – CUPA-HR

by CUPA-HR | July 10, 2024

Each month, CUPA-HR General Counsel Ira Shepard provides an overview of several labor and employment law cases and regulatory actions with implications for the higher ed workplace. Here’s the latest from Ira.

University of California and UAW Agree to End Grad Student Strike

The rolling strike of University of California graduate students at several campuses, protesting the university’s handling of Israel-Hamas war protests is formally over as a result of the university and union agreement to extend the injunction granted by a California state court at the university’s request. The university successfully argued that the rolling strike violated the collective bargaining agreement’s no-strike provision. The UAW represents 38,000 grad students at several University of California campuses.

UC student workers walked off their jobs at six campuses in May and continued a rolling strike until the court enjoined the strike activity. The university breach-of-contract litigation continues, as there remain issues to be decided by the court as to the breadth of the no-strike provisions and the university’s claim for damages resulting from the breach of the no-strike provisions.

University Prevails in Title IX Lawsuit Alleging Student Sex Harassment at a Private Party Off Campus

A federal judge recent ruled that a plaintiff student failed to provide evidence that the university had substantial control over the context in which the assault or sex harassment occurred to make the university liable under Title IX. The judge concluded that even though the university had control over the alleged harasser because of an alleged student code violation, this was not enough to substantiate jurisdiction under Title IX (Roe V. Marshall University Board of Governors (2024 BL 215044, S.D. W. Va. No. 3:22-cv-00532, 6/24/24)).

When the harassment occurs off campus, the judge ruled that the court must find some nexus between the “out of school conduct and the school.” The court concluded that the incident in question took place at a private party at a private residence and the party was not sanctioned, hosted or sponsored by the university or an entity affiliated with the university. Moreover, permission for the party was not sought from the university, and the university was unaware of the party until it was over.

The university’s Title IX office determined, four days after the incident, that the matter should be handled by the university’s Office of Student Conduct, which the judge concluded was consistent with Title IX regulations at the time. The student conduct office immediately issued an no-contact order between the student and the alleged harasser and conducted a six-week investigation.

The male student (alleged harasser) was ultimately placed on probation and required to participate in an alcohol education program, do 20 hours of community service, and accept responsibility for violation of the student code. The plaintiff (alleged victim) was also put on probation and required to participate in an alcohol education program and complete 10 hours of community service, after admitting to underage drinking. In dismissing the case against the university, the judge also concluded that the male student (alleged harasser) also faced possible independent criminal penalties.

Two Conservative Groups Are Bringing Court Challenges to Large Employers’ Workplace DEI Programs

America First Legal, led by former Trump adviser Stephen Miller, has filed at least 15 lawsuits alleging that employer DEI programs are illegal under Title VII and has sent more than 30 letters asking the EEOC to probe employer DEI programs at large employers, including Morgan Stanley and IBM Corp. Academic institutions could be their next target.

The second organization, American Alliance for Equal Rights, led by conservative activist Edward Blum, has claimed that these DEI programs violate Section 1981 of the Civil Rights Act of 1866, which affirms that all citizens are equally protected by the law. The organization has used the 1866 statute in challenging DEI programs at law firms, including Winston and Strawn, Morrison Foerster, and Perkins Coe. The 1866 statute is broader than Title VII. Plaintiffs suing under the 1866 statute avoid the Title VII damage cap and the requirement that a charge be filed with the EEOC before filing suit.

Transgender Woman Reaches Settlement of Claim That She Was Wrongly Denied Medical Coverage

A transgender woman plaintiff sued her employer’s group insurance plan, alleging that she was wrongly denied medical coverage for facial hair removal, which she claimed is an extremely important part of gender-affirming care. The plaintiff alleged that the care is deemed medically necessary for treating gender dysphoria by the World Professional Association for Transgender Health. The lawsuit claimed that the denial, based on the conclusion that the surgery was cosmetic and unnecessary, was inconsistent with the evidence presented that the treatment was medically necessary (Cox V. WSP USA Inc. Group Insurance Plan (N.D. Cal. No. 3-24-cv-01312, 6/6/24)).

The plaintiff sought $5,000 in out-of-pocket expenses plus $20,000 for future services. The case was dismissed after the parties stipulated to the judge that they had reached an undisclosed settlement.

Supreme Court Raises the Bar for the NLRB to Obtain an Adverse Injunction Against an Employer for Unfair Labor Practices

The U.S. Supreme Court concluded that the federal courts should give no more weight to an NLRB request for injunctive relief against employers allegedly violating the NLRA unfair labor practice provisions than it would give other litigants in injunction cases (Starbucks Corp, V. McKinney (U.S. No. 23-367, 6/13/24)). The Supreme Court essentially held that a defending employer is entitled to discovery over the NLRB’s alleged evidence before the court can issue an injunction. In the past, the NLRB has been able to maintain secrecy over this information when seeking extraordinary relief (e.g. an injunction requiring reinstatement of employees allegedly terminated for supporting a union).

Supreme Court to Determine Employer Burden of Proof to Obtain an Exemption From FLSA Minimum Wage and Overtime Provisions

The Supreme Court has granted certiorari to resolve the split in appellate courts on the precise evidentiary burden applicable to employers attempting to justify an exemption to the application of the FLSA’s minimum wage and overtime provisions. Right now the circuits are split over whether an employer must prove an exemption by “clear and convincing evidence” rather than the lesser standard of “preponderance of the evidence.” The Supreme Court will resolve this split and decide which standard is applicable to employers going forward (E.M.D. Sales Inc. V. Carrera (U.S. No. 23-217, petition granted 6/17/24)).

The issue involves whether the defendant firm’s sales personnel fall inside the “outside sales exemption.” The company lost the case at trial, where the federal court held that it did not meet the “clear and convincing” standard, while numerous other appellate courts have applied the less stringent “preponderance of the evidence” standard.

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July 10, 2024
Five Resources to Level Up Supervisor Training and Leadership Development – CUPA-HR

by Julie Burrell | July 2, 2024

Supervisor training and leadership development are top priorities for HR — and it’s no wonder why. Skilled supervisors are critical to increasing employees’ job satisfaction. A solid leadership pipeline ensures that both institutional knowledge and talented employees remain at a college or university. And higher ed employees have a strong desire for professional and leadership development, which affects how they view their jobs.

How can institutions support supervisors and those who might move into that role? How can HR mitigate supervisor burnout? What about encouraging career development for employees who want a more fulfilling role, but not necessarily as a supervisor? Several higher ed HR practitioners have shared with CUPA-HR how they are tackling these common challenges.

10 Roadblocks to Supervision (and How to Surpass Them) (Watch Now) and Roadblocks to Supervision: Clearing a Path for Peer-To-Supervisors, New Supervisors and Hybrid Team Supervisors (Read Now)

While it might be evident that a supervisor is struggling, diagnosing the reason why is more complex. That’s exactly what this pair of valuable resources is designed to help with. Based on supervisor trainings at the University of North Carolina System, this webinar and companion article break down supervisor struggles into an adaptable list of roadblocks that prevent supervisors from flourishing. These range from interpersonal skills (such as misaligned communication styles), to systemic workload issues (supervisors being too busy), to communication across divisions (leaving HR out of the loop when a problem arises).

Building Leaders From Within: UT Rio Grande Valley Blends Leadership Development With a Master’s in Higher Ed Administration (Read Now)

The need for an internal talent pipeline at the University of Texas Rio Grande Valley was clear. So was the need to retain valuable employees, who sought career development opportunities. (The desire for promotion or more responsibility is the third most-cited reason for higher ed employees seeking new jobs.) To address both challenges, HR teamed up with administrative and academic leadership to create an innovative — and mostly free — Master of Arts in higher education administration program for current employees. Learn how they built and executed this initiative, which welcomed 100 employees over the past few years.

BRIGHT Leaders Program at UT Dallas (Watch Now)

Recipient of the 2023 CUPA-HR Innovation Award, the BRIGHT Leaders program at the University of Texas at Dallas speaks to the needs of today’s employees, who desire flexible professional development programs. This webinar explains how BRIGHT Leaders encourages everyone on campus to lead from where they are. UT Dallas’s “all-access pass” model means any employee can take any leadership training session at any time. No matter their position or leadership level, all staff and faculty (and even students) are welcome to attend, and there’s no selective process that limits participation.

Investing in People: How to Create a Coaching Culture on Your Campus (Read Now)

Gone are the days when coaching was either for executives only or a remedy for poor performance. In fact, coaching can increase employee engagement and job satisfaction as well as boost retention and job performance. But coaching looks different from campus to campus. This article delves into how three institutions — Vanderbilt University, the University of Tennessee, Knoxville and the University of California, Berkeley — created cultures of coaching on their campuses. This data-driven resource not only outlines these unique coaching programs, but also offers resources and tips to help you convince leadership that coaching is an essential element of creating future leaders.

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July 2, 2024