Tag: CUPAHR

  • Overtime Rule Blocked for Public Institutions in Texas; House Advances Legislation Aiming to Block Overtime Rule – CUPA-HR

    Overtime Rule Blocked for Public Institutions in Texas; House Advances Legislation Aiming to Block Overtime Rule – CUPA-HR

    by CUPA-HR | July 1, 2024

    Update: On November 8, the federal judge from the Eastern District of Texas is set to hold a hearing on summary judgement in the business community’s challenge to DOL’s overtime final rule. While it is unknown how soon after we could get a decision on the validity of the rule, the judge could rule from the bench or quickly after the hearing. CUPA-HR will send out updates on the rulings as soon as we know.

    On June 28, a federal judge in the Eastern District of Texas Court granted a narrowly scoped preliminary injunction for the overtime rule in the state of Texas, blocking the Department of Labor’s overtime final rule from taking effect on July 1, 2024. The judge only blocked enforcement for employees of the state of Texas (i.e., public institutions), so private institutions in Texas and all other institutions outside of Texas will still need to comply with the overtime rule beginning July 1, 2024.

    The motion for a preliminary injunction was filed by the state of Texas alongside a lawsuit challenging the validity of the final rule in its entirety. At least two other lawsuits are currently pending before the Eastern District Court of Texas. The preliminary injunction will block the final rule from taking effect on July 1 for public employers and employees in Texas until a later decision is issued on the lawsuits challenging the validity of the final rule.

    As a reminder, the final rule implemented a two-phase approach to increasing the minimum salary threshold under the Fair Labor Standards Act overtime regulations. The first increase was expected to take effect on July 1, increasing the minimum salary threshold from the current level of $684 per week ($35,568 per year) to $844 per week ($43,888 per year). The second increase is set to take effect on January 1, 2025, and it would increase the minimum salary threshold again to $1,128 per week ($58,656 per year). The final rule also adopted automatic updates to the minimum salary threshold that would occur every three years.

    Given the judge’s narrow decision granting the preliminary injunction, private institutions in Texas and all institutions outside of Texas are still required to implement adjustments to comply with the July 1 minimum salary threshold until a later decision is made on the validity of the rule as a whole. CUPA-HR will be monitoring the pending cases closely.

    House Appropriations Subcommittee Bill

    On June 26, the House Appropriations Subcommittee on Labor, Health and Human Services, and Education released their fiscal year 2025 funding legislation for the Department of Labor (DOL) and other related agencies, which included a provision to prohibit any funding provided to DOL under the bill from administering, implementing or enforcing the overtime final rule. The Subcommittee passed the legislation out of Committee during a markup on June 27. It will now be sent to the floor for a vote, where House Republicans have a slim majority and could pass the bill along partisan lines. The fate of the overtime provision appears uncertain in the Senate, however, as the Democrat-controlled chamber is unlikely to include such language in their appropriations bill. CUPA-HR will continue to keep members apprised of any updates on the status of the overtime final rule.



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  • CUPA-HR Welcomes a New Board of Directors for 2024-25 – CUPA-HR

    CUPA-HR Welcomes a New Board of Directors for 2024-25 – CUPA-HR

    by CUPA-HR | June 26, 2024

    As we prepare for a new year at CUPA-HR, we want to take a moment to introduce our board of directors for 2024-25 and to thank those who have served on the board over the past year. The board, which guides the association’s strategic priorities, is an incredible team of higher ed HR leaders who are dedicated to supporting and advancing the higher ed HR profession.

    2024-25 Board Members

    The chair of CUPA-HR’s board of directors for 2024-25 is Robyn Salvo, associate vice president for human resources at Monmouth University. Robyn has worked in HR for over 20 years, with the last 18 in higher ed at Monmouth University. In her current role, she leads an HR team in providing advice and guidance to the university covering all aspects of human resources, from talent management and compensation to benefits and compliance. Robyn has been a member of the CUPA-HR national board since 2020 and previously served as president of the CUPA-HR New Jersey Chapter.

    Also serving on this year’s board are:

    Executive Committee Members

    • Amanda Bailey, Chair-elect – Vice President for Human Resources at Boston University
    • Jami Painter, Past Chair – Senior Associate Vice President and Chief Human Resources Officer at the University of Illinois System
    • Kelli Shuman, Treasurer – Associate Vice President for Human Resources and Chief Human Resources Officer at Elon University
    • Andy Brantley, Ex-Officio – President and Chief Executive Officer at CUPA-HR

    Regional Directors

    • Melanie DeSantis, Eastern Region – Associate Vice President for Human Resources and Chief Human Resources Officer at Franklin & Marshall College
    • Connie Putland, Midwest Region – Chief Human Resources Officer at the University of Wisconsin-Whitewater
    • Ale Kennedy, Southern Region – Associate Vice President for Human Resources and Chief Human Resources Officer at Clemson University
    • Clarity White, Western Region – Human Resources Supervisor at the University of California, Berkeley

    At-Large Directors

    • Jazzmine N. Clarke-Glover – Vice President of Workplace Culture and Inclusion (Chief Human Resources Officer, Chief Diversity Officer, Title IX Coordinator) at Wagner College
    • Christine Lovely – Vice President and Chief Human Resources Officer at Cornell University
    • Josh Mackey – Vice President of Human Resources at Northern Arizona University
    • Helena A. Rodrigues – Senior Vice President and Chief Human Resources Officer at the University of Arizona
    • Eugene Whitlock – Chief People and Culture Officer and Associate Vice Chancellor for Human Resources at the University of California, Berkeley
    • Lynne Adams – Chief Human Resources Officer and Associate Vice President, Human Resources at the University of Maryland, Baltimore County
    • Maureen Binder – Associate Vice President and Chief Human Resources Officer at the University of Central Florida
    • Clint Eury – Program Director, Human Resources Strategic Partnerships and Communications at the University of Maryland, College Park
    • David Zajchowski – Human Resources Director at Rollins College

    Thank you!

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

    • Jay Stephens, Past Chair – Vice President of People and Culture at the University of Montana
    • Kristi Yowell – Chief People and Culture Officer and Associate Vice President for Human Resources at Loyola University Maryland
    • Heather Hart – Vice Chancellor of Human Resources and Strategic Operations at Ivy Tech Community College of Indiana-Lafayette
    • El pagnier Kay (EK) Hudson – Senior Vice President, Human Resources at Florida International University

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

    CUPA-HR’s 2023-24 Board of Directors



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  • Taking Steps Toward Equity on Juneteenth – CUPA-HR

    Taking Steps Toward Equity on Juneteenth – CUPA-HR

    by Julie Burrell | June 18, 2024

    Juneteenth commemorates the end of slavery in the United States and is now recognized as a federal holiday — Juneteenth National Independence Day. Observing Juneteenth’s historical significance is a meaningful step in understanding American history. But for its history to mean something in our present moment, its lessons must be translated into tangible action. CUPA-HR offers the following resources, tools and research data to help confront and change racial inequities in the higher ed workforce.

    Racial Composition and Compensation  

    Lingering historical inequities remain in higher ed’s current-day compensation, hiring and promotion practices. Juneteenth is a reminder that we need urgent solutions to these persistent inequities. Here’s a snapshot of the composition and pay for people of color in the higher ed workforce:

    • Progress in both representation and pay has been sluggish for people of color, according to our data on administrators, faculty, professionals and staff collected in CUPA-HR’s signature surveys. Our interactive graphics track gender and racial composition as well as pay of administrators, faculty, professional and staff roles. (Read the executive summary.)
    • Women of color have consistently been paid inequitably, with Black women paid 76 cents on the dollar in our most recent data.

    CUPA-HR research also digs down into sectors of the higher ed workforce in terms of composition and pay. Recent research reports include:

    • The Higher Education Financial Aid Workforce: Pay, Representation, Pay Equity, and Retention (read now)
    • Representation and Pay Equity in Higher Education Faculty: A Review and Call to Action (read now)
    • Higher Ed Administrators: Trends in Diversity and Pay Equity From 2002 to 2022 (read now)
    • The Higher Ed Admissions Workforce: Pay, Diversity, Equity, and Years in Position (read now)

    Fostering Inclusion

    Long-term solutions to a more representative and equitably compensated workforce include adopting inclusive hiring and retention strategies, analyzing and auditing both compensation and promotion practices, and enacting policies that support your employees’ well-being. In these resources, we offer best practices and data-driven recommendations for a more equitable future.



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  • As Effective Date for Biden FLSA Overtime Rule Nears, Opposition Mounts – CUPA-HR

    As Effective Date for Biden FLSA Overtime Rule Nears, Opposition Mounts – CUPA-HR

    by CUPA-HR | June 18, 2024

    On July 1, the first phase of the U.S. Department of Labor (DOL)’s new overtime rule goes into effect. The initial phase of the rule will require employers to pay most white-collar employees a salary of at least $43,888. If employers fail to do so, those employees will be entitled to overtime pay under federal law. As the rule’s effective date approaches, opposition has mounted, with plaintiffs filing three lawsuits challenging the rule, including one filed by the state of Texas requesting that the court delay the July 1 effective date. Additionally, several Republican members of the U.S. House and Senate have introduced a Congressional Review Act (CRA) resolution aimed at blocking the rule.

    Background

    On April 23, 2024, DOL issued a final rule to amend the Fair Labor Standards Act (FLSA) overtime regulations. The FLSA requires employers to pay employees at least the minimum wage (currently $7.25) for each hour worked and 1.5 times the employee’s regular rate of pay for any hours worked over 40 in one week. However, the FLSA contains various exemptions to these overtime pay requirements, including one for white-collar employees. White-collar employees are considered “exempt” if they satisfy a three-part test: (1) the employee must be paid on a salary basis (that is, paid the same amount each week regardless of hours worked), (2) the employee’s salary must meet a minimum threshold (currently $35,568) established by DOL, and (3) the employee’s primary duties must be consistent with being an executive, administrative or professional employee. The final rule will increase the minimum salary threshold from $35,568 to $43,888 on July 1, 2024, and then to $58,656 on January 1, 2025. Thereafter, the rule requires automatic increases to the threshold every three years based on a set formula.

    Lawsuits

    On May 23, a group of 13 local and national associations and Texas businesses filed the first lawsuit in federal court in Texas challenging DOL’s rule. The suit claims that the salary threshold that goes into effect on January 1, 2025, is so high it will result in more than 4 million individuals being denied exempt status, even though these individuals could be reasonably classified as exempt based on their duties, and in doing so, the rule violates both the statutory language of the FLSA and prior court decisions. The suit also challenges the automatic updates.

    On June 3, two additional lawsuits challenging the overtime final rule were filed by a software company in Texas, as well as the state of Texas itself. In both lawsuits, the plaintiffs make arguments similar to those in the lawsuit filed in May, stating that DOL lacks authority to implement the changes provided in the final rule. The state of Texas also filed a motion for a temporary restraining order (TRO) that seeks to block the final rule from going into effect on July 1.

    While it may take the courts several months to issue decisions on the validity of the rule, the judge could decide whether to grant the state of Texas’s motion for a TRO before the July 1 effective date. The TRO would block the rule from going into effect until the court decides whether or not the rule is valid. More updates will be provided via CUPA-HR Washington Insider Alert emails as decisions are released.

    Congressional Review Act Resolution

    On June 3, Rep. Tim Walberg (R-MI) and Sen. Mike Braun (R-IN) introduced CRA resolutions in the House and Senate to block the overtime final rule from going into effect. Unlike traditional legislation, CRAs require only a simple majority in both chambers to pass (as compared to the usual 60-vote threshold to bypass a filibuster needed in the Senate).

    Though House Republicans have the majority, it is unclear if and when the CRA will be brought to the floor for a vote, given the minimal concern with the July 1 effective date from the business community. In the Democrat-controlled Senate, the path for a floor vote seems even more uncertain as Senate Democrats do not appear to support the efforts to overturn the final rule. As such, it seems unlikely that Congress will pass the CRA to overturn the final rule this session.

    CUPA-HR continues to monitor for and keep members apprised of any major updates relating to the FLSA overtime regulations.



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  • Congress Introduces Legislation on Employee Classification of Student-Athletes – CUPA-HR

    Congress Introduces Legislation on Employee Classification of Student-Athletes – CUPA-HR

    by CUPA-HR | June 18, 2024

    On June 13, the House Education and Workforce Committee voted to advance H.R. 8534, the Protecting Student Athletes’ Economic Freedom Act. The bill would prohibit student-athletes from being classified as employees under federal and state labor laws and regulations due to their participation in intercollegiate athletics.

    The bill was introduced on May 23 by Rep. Bob Good (R-VA) and 10 House Republicans. If enacted, the bill would prohibit student-athletes from being classified as employees at institutions of higher education, athletic conferences or athletic associations (such as the NCAA). In effect, the legislation would prohibit student-athletes from being classified as employees under federal labor laws, such as the Fair Labor Standards Act (FLSA) and National Labor Relations Act (NLRA), as well as state laws and regulations determining employment classification.

    Throughout the Biden administration’s first term, the National Labor Relations Board (NLRB) has issued significant guidance and decisions with respect to the classification of student-athletes as employees. In September 2021, the NLRB’s general counsel issued a memorandum asserting the agency’s position that student-athletes are considered employees under the NLRA. The memorandum was followed by an NLRB complaint filed against the University of Southern California, the Pac-12 Conference and the NCAA for allegedly misclassifying USC’s men’s football and men’s and women’s basketball players as student-athletes rather than employees. Additionally, in March 2024, the Dartmouth College men’s basketball team voted in favor of joining the Service Employees International Union, after a regional NLRB director determined that players on the team are employees under the NLRA using the board’s general counsel memorandum.

    The bill passed out of committee by a partisan vote of 23-16, only gaining support from Republicans on the committee. The bill now awaits a full House vote, where Republicans can pass the bill with a simple majority. The fate of the bill is more uncertain in the Senate, as it is unlikely that it will gain enough support from Democrats to bypass the 60-vote filibuster. CUPA-HR will keep members apprised of any updates relating to this bill and employee classification of student-athletes generally.



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  • Federal Judges Block Title IX Rule in 10 States – CUPA-HR

    Federal Judges Block Title IX Rule in 10 States – CUPA-HR

    by CUPA-HR | June 17, 2024

    Updates:
    On June 17, a federal judge in the Eastern District Court of Kentucky issued a second preliminary injunction against the Title IX rule, blocking the final rule from taking effect on August 1 in Virginia, Kentucky, Tennessee, Indiana, Ohio and West Virginia.

    On June 24, the Biden administration filed a notice of appeal for the preliminary injunction granted in the Western District Court of Louisiana to block the Title IX final rule from going into effect on August 1, 2024. The appeal will be filed in the 5th U.S. Circuit Court of Appeals. The preliminary injunction remains in effect until the 5th Circuit Court issues a decision. CUPA-HR will keep members apprised of any updates on this appeal as well as the status of the second preliminary injunction granted in the Eastern District Court of Kentucky.

    On July 2, a federal judge in the U.S. District Court of Kansas issued a third preliminary injunction to block the Biden administration’s Title IX rule from taking effect on August 1. The preliminary injunction applies to four states: Alaska, Kansas, Utah and Wyoming. The preliminary injunction also applies to schools where members of the Young America’s Foundation, Female Athletes United, and Moms for Liberty attend, even if the state in which the school is located is not challenging the rule or is not included in another preliminary injunction. The Title IX rule is now blocked from being enforced beginning on August 1 in a total of 14 states, as well as over 360 institutions in 24 states, Washington D.C., and Puerto Rico that are not suing the Biden administration over the Title IX rule.

    On July 11, Republicans in the U.S. House of Representatives passed a Congressional Review Act resolution to block the Department of Education from implementing and enforcing its Title IX final rule. The vote is largely symbolic as the Democrat-controlled Senate is unlikely to take up the measure and President Biden would veto the resolution if it ended up on his desk.

    On July 11, a federal judge in the Northern District Court of Texas granted a fourth preliminary injunction to block the Title IX final rule from taking effect on August 1 in the state of Texas. The Title IX final rule is now blocked from taking effect in 15 states.

    On July 24, a federal judge from the Eastern District Court of Missouri issued another preliminary injunction to block the Title IX rule from taking effect in six more states. The states included in this decision were Arkansas, Missouri, Iowa, Nebraska, North Dakota, and South Dakota. The Title IX final rule is now blocked from taking effect on August 1 in a total of 21 states.

    On July 31, a federal judge in the Western District Court of Oklahoma granted a preliminary injunction to block the Title IX final rule from taking effect on August 1. Additionally, the 11th U.S. Circuit Court of Appeals granted a preliminary injunction in Alabama, Florida, Georgia, and South Carolina, overturning a lower court’s previous decision to deny the preliminary injunction in those states. There are 26 states in which the Title IX rule is now blocked from taking effect on August 1.


    On June 13, a federal judge in the Western District Court of Louisiana issued a preliminary injunction on the Department of Education (ED)’s recent Title IX final rule. The order blocks the final rule from taking effect on August 1 in Louisiana, Mississippi, Montana and Idaho until a final decision has been issued by the judge on a lawsuit challenging the validity of the final rule.

    ED’s Final Rule and Subsequent Lawsuits

    In April, ED released its highly anticipated final rule to amend the Title IX regulations. Notably, the final rule expands protections against sex-based discrimination to cover sexual orientation, gender identity, and pregnancy or related conditions. Soon after it was published, several lawsuits were filed by states and advocacy groups challenging ED’s decision to expand Title IX protections to include gender identity and sexual orientation. 

    Judge’s Order

    In the order to grant a preliminary injunction, the federal judge asserted that the Title IX rulemaking is “contrary to law” and “exceeds statutory authority,” especially with the expanded protections for transgender students. Specifically, the judge explained that Congress intended to protect biological women from discrimination when enacting Title IX, and that “enacting the changes in the final rule would subvert the original purpose of Title IX.”

    As a result, ED is blocked from enforcing the final rule in the four states listed in the order, and the final rule will not take effect on August 1 in those four states until further orders are issued by the court.* The judge will now consider the lawsuit challenging the final rule and decide to either uphold or strike down the rule. A final decision may take months or a year or more to be released, as any decision is likely to be appealed to a higher court. In the meantime, CUPA-HR encourages HR leaders in the states impacted by this preliminary to work with their institution’s general counsel on best practices for navigating Title IX compliance.

    CUPA-HR will keep members apprised of additional updates on the legal challenges against the Title IX final rule.


    * Over two dozen states have joined lawsuits challenging the Title IX final rule. Though the order in this blog post applies only to Louisiana, Mississippi, Montana and Idaho, decisions for the additional lawsuits could result in similar injunctions for other states.



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  • HR and the Courts — June 2024 – CUPA-HR

    HR and the Courts — June 2024 – CUPA-HR

    by CUPA-HR | June 12, 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.

    Judge Halts Academic Workers’ Strike at Several University of California Campuses

    The University of California has taken legal action against United Auto Workers Local 4811, which represents some 48,000 academic workers and graduate students across UC’s multiple campuses. The lawsuit requested an injunction to end the rolling strike at six campuses, which the university contended is in violation of the applicable no-strike contractual provisions. The judge granted the university’s request for a temporary restraining order on June 7, 2024. The order will halt the strike until the judge conducts a hearing over whether to grant a permanent injunction enforcing the no-strike provisions of the applicable labor contract (Regents of the University of California v. UAW Local 4811 (Cal Sup Court, No. 30-2024-01403666-CU-MC-CXC, 6/7/24)).

    This case followed the university’s complaint to the California Public Employment Relations Board alleging that the union had violated the applicable no-strike provisions. The board filed a complaint against the union, arguing it failed to give the university “adequate advance notice” and “failed and refused to meet and confer in good faith,” but declined the university’s request to seek a court order halting the strike.

    Following its exhaustion of all remedies at the state board, the university filed its own state court complaint, seeking to end the strike. The complaint accused picketers of blocking entrances to university property, including hospitals, and illegally occupying buildings. The university argued that the breach of contract endangers lifesaving research at hundreds of laboratories across many campuses. The UAW claimed that the no-strike clause is inapplicable because the university violated state law by calling in police to break up pro-Palestinian encampments on several campuses and allegedly changed workplace rules in response to the protests. The proceedings will continue with a full hearing over whether to convert the restraining order into a permanent injunction further barring the strike activity.

    University of Florida Recruit Sues Over Claimed $13.85 Million NIL Deal — NCAA Proposes Settlement of NIL Class Action

    A former football recruit has sued the University of Florida’s football coach and boosters, alleging they recruited him with the promise of $13.85 million in name, image and likeness payments and then reneged. The complaint, filed in federal district court in Florida, alleges fraud, tortious interference and other claims. The plaintiff alleges that, after the NIL offer, he rejected other lucrative offers only to have the Florida offer “decrease drastically” (Rashada v. Hathcock (N.D. Fla., 3:24-cv-00219, complaint 5/21/24)).

    The plaintiff alleges that, as a 19-year-old college-bound athlete, he was persuaded by a network of university officials and donors to flip on his commitment to the University of Miami, but they never came through on the NIL promises. After the deal never materialized, the plaintiff went to the University of Arizona instead and ultimately transferred to the University of Georgia.

    Separately, the NCAA and the Power Five conferences have proposed a nearly $2.8 billion settlement of the class action claim against them relating to their former ban on NIL payments to student-athletes. If the settlement is approved, the NCAA also agrees that it would no longer attempt to regulate NIL payments, which would be solely up to each college and university to determine and administer (In Re College Athlete NIL Litigation (N.D. Cal., No., 4:20-cv-03919)).

    Court of Appeals to Review Whether Discharge for Refusal to Take Anti-Discrimination Training Is Itself Discriminatory

    The 7th U.S. Circuit Court of Appeals (covering Illinois, Indiana and Wisconsin) will decide whether to affirm a federal trial court’s dismissal of a discrimination claim brought by a White employee. The employee claimed he was discharged in violation of federal and state anti-discrimination laws for his refusal to take the employer’s mandatory anti-discrimination training, which he claimed was discriminatory. The plaintiff claimed the training was inherently biased against White employees, after admitting he had no knowledge of the contents of the training (Vavra v. Honeywell International Inc. (Case No. 23-02823, oral arg sched 5/21/24)).

    The trial court concluded that the plaintiff’s internal emails to the company’s president, which accused the company of “race baiting,” were protected communications. The court further concluded that the plaintiff was not terminated for the communications, but rather because of his refusal to take mandatory anti-discrimination training that was not itself discriminatory. The employer’s diversity, equity and inclusion and law departments had properly vetted the training and concluded it was intended to foster an inclusive work environment.

    U.S. Supreme Court Rejects White Professor’s Claims of Race and Sex Discrimination Filed Against HBCU

    The Supreme Court turned down a request for certiorari and declined to hear a White law school professor’s claim that the 5th U.S. Circuit Court of Appeals had erroneously dismissed her claim of race and sex discrimination and retaliation under Title VII and the Equal Pay Act. The law professor had claimed that the appeals court erroneously dismissed her claims that she and other female professors were treated poorly in violation of Title VII and the Equal Pay Act and that she was forced to resign from Texas Southern University, a historically Black institution. The court denied the professor’s two petitions for it to hear her case without issuing an opinion (Sacks v. Texas Southern University (Case Nos. 23-891 & 23-1031, Cert denied 5/13/24)).

    The plaintiff asked the Supreme Court to adopt a “totality of circumstances” standard in determining whether her claims of years of “alleged” harassment and continuing violations justified her conclusion that she felt compelled to resign. The plaintiff also complained that the lower court had denied her the right to receive female wage data while requiring her to identify male comparators to make her Equal Pay Act claims. The Supreme Court denied the professor’s request to be heard in the absence of a response from the university, which had waived its right to respond to the professor’s petitions.

    In Employment Law Matter, U.S. Supreme Court Rules Federal Courts Can No Longer Dismiss Federal Lawsuits Subject to Mandatory Arbitration

    The U.S. Supreme Court resolved a split among federal appellate courts on whether, under the Federal Arbitration Act, federal trial courts can dismiss rather than stay a lawsuit that is covered by the terms of a mandatory arbitration agreement pending the outcome of arbitration. The 1st, 5th, 8th and 9th U.S. Circuit Courts of Appeals have previously allowed dismissal while the 2nd, 3rd, 6th, 7th, 10th and 11th have ruled that the case must be stayed pending the outcome of the arbitration.

    The case involved a group of drivers who claimed they were misclassified as independent contractors rather than employees entitled to minimum wage, overtime and paid sick leave under federal and state laws. Both sides agreed that the dispute was subject to a mandatory arbitration agreement. The 9th Circuit ruled the case should be dismissed. The Supreme Court reversed, concluding that the specific provisions of the Federal Arbitration Act require the courts to stay the action while it is referred to arbitration, pending the outcome of the arbitration (Smith v. Spizzirri (US No, 22-1218, 5/16/24)).

    Texas Sues EEOC Over Guidance Protecting LGBTQIA+ Employees From Sex Harassment Relating to Their Choice of Pronouns and Bathrooms Consistent With Gender Identity

    The Texas attorney general has filed suit in federal court seeking to block enforcement of the Equal Employment Opportunity Commission’s recent guidance aimed at shielding LGBTQIA+ employees who seek to use pronouns and bathrooms consistent with their gender identity. The Texas suit alleges that the most recent EEOC guidance goes beyond the statutory limits of Title VII just as the prior EEOC workplace guidance, which was vacated in Texas federal court, did (The State of Texas v. EEOC (N/D. Tex., 2:21-CV-194-Z, Complaint, filed 5/21/24)).

    Separately, a coalition of 18 Republican attorneys general have also filed suit, seeking to block this EEOC guidance and alleging the same legal overreach by the EEOC.



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  • Celebrating Pride Month: Spotlight on Transgender and Nonbinary Employees – CUPA-HR

    Celebrating Pride Month: Spotlight on Transgender and Nonbinary Employees – CUPA-HR

    by Julie Burrell | June 4, 2024

    June is Pride Month, dedicated to celebrating the richness and history of the LGBTQIA+ community. In addition to ensuring regulatory compliance, higher ed HR has an important role to play in creating a truly inclusive campus. A fundamental part of celebrating Pride is actively learning from and listening to this community, especially as the population of LGBTQIA+ employees continues to grow.

    This Pride, CUPA-HR is spotlighting the voices of transgender and nonbinary employees by offering resources to empower HR in improving culture, policies and procedures for this group. Even if significant institutional change is not something you’re in a position to initiate, individual actions can add up. In addition to learning from the below resources, you can network with your colleagues at other institutions to provide support, personally recognize national days of awareness or remembrance, and encourage allyship.

    Inclusion of Transgender and Nonbinary Employees in the Workplace: A Critical Conversation (Watch Now)

    In this webinar, recorded in May, Jon Humiston of Central Michigan University and Aaric Guerriero of the Froedtert Health System explore ways to celebrate and embrace transgender and nonbinary employees.

    They address frequently asked questions about transgender and nonbinary issues, including what terms are commonly used within the LGBTQIA+ community and what happens if you accidentally misgender someone. They also recommend best practices for inclusion, including:

    • Using gender-neutral language. For example, instead of “ladies and gentleman,” Jon suggests “amazing humans,” “everyone,” or “y’all.”
    • Changing paperwork and job descriptions if they mention just two gender pronouns — for example, he or she — to inclusive language like “they.”
    • Sharing your pronouns in your email signature and Zoom profile, so others feel comfortable doing the same.

    Gender-Inclusive HR Strategies: Are You on the Right Track? (Read Now)

    This blog post proposes a framework for higher ed HR practitioners to address their gender inclusion strategies. A checklist of questions will help you audit your efforts on campus, covering: policies and procedures (for example, do you have a name-in-use policy or chosen-name policy that is easy to access and navigate?); programmatic support (e.g., do you have LGBTQIA+ safe-zone training available for all employees?); and visibility (e.g., does your institution have a presence at local LGBTQIA+ pride events?). Reviewing these questions will help you identify gaps in your inclusion efforts.

    Gender Identity and Sexual Orientation in the Workplace (Explore the Toolkit)

    This Knowledge Center toolkit, while not specifically about trans and nonbinary employees, covers legal obligations under Title VII and Title IX and supplies applicable guidelines from the Equal Opportunity and Employment Commission and Office for Civil Rights. Best practices and example policies are also included — for example, on name changes in official forms.



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  • Frequently Asked Questions From CUPA-HR’s FLSA Overtime Webinar – CUPA-HR

    Frequently Asked Questions From CUPA-HR’s FLSA Overtime Webinar – CUPA-HR

    by CUPA-HR | May 29, 2024

    Reminder for the July 1 threshold update: Lawsuits challenging the final rule are underway. Though such challenges are ongoing, we expect the July 1 salary threshold to withstand legal challenges and to go into effect on that date. Institutions should therefore prepare to implement changes to comply with the July 1 threshold. We will continue to keep members apprised of any new legal updates on the final rule.

    On May 8, CUPA-HR hosted the webinar “How the DOL’s Changes to Overtime Rules Will Impact Campus.” The webinar — presented by Josh Ulman, CUPA-HR’s chief government relations officer, and Laurie Bishop, partner at Hirsch Roberts Weinstein LLP — provided an overview of the upcoming changes to the Fair Labor Standards Act (FLSA) overtime regulations, including the new minimum salary thresholds and automatic updates that are included in the department’s final rule. Nearly 3,000 people attended.

    During the webinar, CUPA-HR received several questions about the applicability of the final rule’s changes to institutions. To answer these questions, CUPA-HR’s government relations team has put together the following FAQ. We also encourage members to visit CUPA-HR’s FLSA Overtime News and Resources page for more guidance and to discuss potential changes with legal counsel and leadership at their respective institutions.

    Background

    On April 23, the Department of Labor (DOL) issued its final rule to alter the overtime pay regulations under the FLSA. The rule increases the minimum salary threshold to $43,888 on July 1, 2024, and then to $58,656 on January 1, 2025. The rule also implements automatic updates to the threshold that will occur every three years. Institutions will need to make all necessary adjustments by July 1, 2024, in order to be in compliance with the first increase under the final rule.

    FAQs

    1. Do all exempt workers need to meet the minimum salary threshold requirement?

    Not necessarily. Generally speaking, an employee must satisfy a three-part test to qualify as an executive, administrative and professional (EAP) employee and therefore be exempt from the FLSA’s overtime pay requirements: (1) the employee must be paid on a salary basis and paid the same amount each week regardless how many hours they work (unless the employee does not work at all that week), (2) the employee must receive a salary not less than the minimum salary threshold established by DOL, and (3) the employee’s primary duties must involve the kind of work associated with executive, administrative or professional positions.

    Some workers, however, may be “exempt” even though they are paid below the minimum salary threshold. In 2019, DOL issued Fact Sheet #17S, which states that teachers, coaches and “academic administrative employees” that meet certain requirements can be exempt even though they are paid below the minimum salary threshold.

    According to the guidance, teachers need not meet the minimum salary threshold if their primary duty is teaching, tutoring, instructing, or lecturing to impart knowledge, and if they are performing that duty as an employee of an educational establishment. This teaching exemption would include higher ed positions such as faculty, part-time faculty, adjunct faculty and others who primarily engage in teaching while working. Additionally, graduate students and postdoctoral employees whose primary duties are teaching, tutoring, instructing or lecturing may also qualify for the teacher exemption.

    Coaches may also fall under the teacher exemption. As DOL explains, coaches whose primary duty is to “teach” student-athletes how to perform in their sport can qualify for the teacher exemption. The guidance clarifies, however, that coaches whose primary duties are recruiting students would not qualify for the teacher exemption, as their primary duty is not teaching, and are therefore subject to the three-part test used for most other employees.

    DOL also explains that “academic administrative employees” need not be paid the minimum salary threshold if they meet the requirements of a separate exemption test. According to the guidance, “academic administrative employees” are administrative employees whose primary duty is “performing administrative functions directly related to academic instruction or training in an educational establishment.” DOL states that, in order for such employees to be exempt, they must:

    • Satisfy the salary basis and salary threshold tests OR receive a salary of at least the entrance salary for teachers in the same educational establishment, and
    • Have primary duties to perform administrative functions directly related to academic instruction or training in an educational establishment.

    DOL explains that academic administrative employees at institutions of higher education generally include department heads; intervention specialists who respond to student academic issues; and academic counselors that may administer school testing programs, assist students with academic problems, and advise students on degree requirements. As with all exemptions, however, DOL clarifies that exemptions are granted based on the employee’s duties rather than their titles.

    1. Are students/graduate students exempt from overtime pay requirements?

    In Fact Sheet #17S, DOL states that most students that work for their institution are hourly nonexempt workers who typically do not work more than 40 hours per week. However, DOL provides guidance on three types of student workers who may receive salaries or other non-hourly pay. These include graduate teaching assistants, who can fall under the teacher exemption if their primary duty is teaching; research assistants, who DOL says typically have educational relationships when performing research under faculty supervision and do not have employment relationships; and student residential assistants, who DOL states are not generally considered employees under the FLSA, as they are often students enrolled in educational programs and receive reduced room or board charges or tuition credits.

    1. How do the overtime pay requirements apply to part-time workers?

    Part-time workers are required to meet all three tests (the duties test, salary basis test and salary level test) to be exempt from overtime pay requirements. Regardless of full- or part-time status, employees must be paid at least the minimum salary threshold on a weekly basis in order to be exempt from overtime pay requirements. That means that, beginning July 1, 2024, full- and part-time employees must be paid at least $833 per week in order to maintain exempt status, so long as the salary basis and duties tests are also met. The same will be true beginning January 1, 2025, when full- and part-time employees must be paid $1,128 per week per week to maintain their exempt status. It is important to note that the minimum salary threshold cannot be prorated for part-time employees.

    1. How do you determine nonexempt/exempt status for partial-year employment? For example, how do you determine exemption status for employees who work for less than 12 months per year but are paid their salary over a 12-month period?

    According to the Wage and Hour Division (WHD) Field Operations Handbook, institutions “may prorate the salary of an otherwise-exempt employee who has a duty period of less than a full year.” For example, an employee who works a nine-month schedule but receives paychecks over a 12-month period may have their checks prorated over the actual period of work (nine months) to determine whether the employee is paid at least the salary threshold.

    Example: An employee who works for nine months (39 weeks) of a year but is paid over a 12-month period receives a salary of $40,000 ($769.23 per week), which would fall below the new July 1 salary threshold of $43,888 per year ($844 per week). Without prorating the salary, it would appear that the employee would need to be classified as nonexempt for failing to meet the minimum salary threshold. However, because DOL allows for employers to prorate the salary of the partial-year employee, the nine-month employee would actually meet the salary level requirement because the prorated weekly salary is $1,025.64 ($40,000/39 weeks), which is well over the July 1 level of $844 per week. As such, the nine-month employee could be classified as exempt, so long as they also meet the salary basis and duties tests. It is important to note, however, that the nine-month employee cannot perform any work outside of the nine-month period if employers choose to prorate their salary to meet the minimum salary threshold.

    1. Can room and board be included in total compensation to meet the salary threshold?

    No. In the existing overtime regulations, DOL specifies that “an [exempt] employee must be compensated on a salary basis at a rate of not less than $684 per week … exclusive of board, lodging or other facilities.”*

    CUPA-HR has historically advocated for the inclusion of room and board in the total compensation considered when determining whether an employee meets the salary level test, and we most recently included this request in our comments responding to the 2023 proposed rule. Despite these efforts, DOL has declined to update the regulations to allow for this. In the 2024 final rule, DOL states that they received comments about granting employers the ability to credit the value of board and lodging towards the salary level, but they declined to address the issue as they view it as outside of the scope of the rulemaking.

    *Note that the $684 per week refers to the current salary threshold. Beginning on July 1, 2024, the new minimum salary threshold will be $844 per week, and beginning January 1, 2025, the new minimum salary threshold will be $1,128 per week.

    1. Can other benefits, such as health insurance, dental insurance and tuition reimbursement, be counted toward an employee’s salary to meet the salary threshold?

    No. Similar to room and board, benefits provided to an employee such as health and dental insurance or tuition reimbursement cannot be counted toward an employee’s salary to meet the salary threshold. These would fall under “other facilities” as included in the regulatory language.

    1. Can institutions provide compensatory time to nonexempt employees in lieu of overtime pay?

    Under the FLSA and its implementing regulations, nonexempt employees at a “public agency” may be compensated with compensatory time off in lieu of overtime pay. Fact Sheet #17S explains that a public institution may be considered “a public agency under the FLSA if it is a political subdivision of a state.” To determine whether a public institution falls under the definition of a “political subdivision,” DOL considers “whether the state created the [institution]” or “if individuals administering the [institution] are responsible to public officials or the general electorate.”

    At qualifying public institutions, nonexempt employees may be compensated with compensatory time off at a rate of not less than one and one-half hours for each hour worked over 40 hours in a given workweek. Most nonexempt employees are not allowed to accrue more than 240 hours of compensatory time off, but nonexempt employees who work in public safety, emergency response or seasonal activity may accrue up to 480 hours of compensatory time off.

    1. My institution is in a state where the minimum salary threshold for overtime pay exemptions is higher than that of the federal standards. Does the federal level take precedence over my state’s salary threshold?

    No. The minimum wage and overtime requirements under the FLSA are meant to establish a floor for pay requirements. This means that institutions in states that have minimum salary requirements for overtime exemptions that are higher than the federal FLSA requirements must adhere to the state levels. For example, in 2024, California mandates that employees must earn an annual salary of at least $66,560 to be exempt from overtime pay requirements. This is significantly higher than the July 1, 2024, level established in DOL’s recent final rule ($43,888 per year). In this case, institutions in California must adhere to the state’s level for overtime exemptions.

    1. Will the final rule be challenged in court?

    Yes. On May 23, a group of 13 local and national associations and Texas businesses filed suit in federal court in Texas, challenging the U.S. Department of Labor’s rule setting new minimum salary thresholds for the white collar overtime pay exemptions under the FLSA. The suit claims that the salary threshold that goes into effect on January 1, 2025, is so high it will result in more than 4 million individuals being denied exempt status, even though these individuals could be reasonably classified as exempt based on their duties, and in doing so, the rule violates both the statutory language of the FLSA and prior court decisions. The suit also challenges the automatic updates.

    CUPA-HR will continue to provide regular updates on DOL’s overtime final rule and the court case underway.


    Disclaimer: The purpose of this blog post is to provide additional information from existing guidance, regulations and laws from the federal government on the FLSA overtime regulations. Content included in this blog post does not constitute legal advice. We encourage members to speak with their institution’s legal counsel about appropriate ways to implement changes on their respective campuses.



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  • Overtime Rule Challenged in Federal Court – CUPA-HR

    Overtime Rule Challenged in Federal Court – CUPA-HR

    by CUPA-HR | May 23, 2024

    On May 23, a group of 13 local and national associations and Texas businesses filed suit in federal court in Texas, challenging the U.S. Department of Labor’s rule setting new minimum salary thresholds for the white collar overtime pay exemptions under the Fair Labor Standards Act (FLSA).

    The final rule of April 23, 2024 increases the minimum salary threshold to $43,888 on July 1, 2024, and then to $58,656 on January 1, 2025. The rule also implements automatic updates to the threshold that will occur every three years. The suit claims that the salary threshold that goes into effect on January 1, 2025, is so high it will result in more than 4 million individuals being denied exempt status, even though these individuals could be reasonably classified as exempt based on their duties, and in doing so, the rule violates both the statutory language of the FLSA and prior court decisions. The suit also challenges the automatic updates.

    The following are plaintiffs in the case: Plano Chamber of Commerce, American Hotel and Lodging Association, Associated Builders and Contractors, International Franchise Association, National Association of Convenience Stores, National Association of Home Builders, National Association of Wholesaler-Distributors, National Federation of Independent Business, National Retail Federation, Restaurant Law Center, Texas Restaurant Association, Cooper General Contractors and Dase Blinds.

    CUPA-HR will be following the case closely and provide you with regular updates.



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