Tag: Department

  • Department of Labor Issues Independent Contractor Final Rule – CUPA-HR

    Department of Labor Issues Independent Contractor Final Rule – CUPA-HR

    by CUPA-HR | January 11, 2024

    On January 10, the Department of Labor’s (DOL) Wage and Hour Division (WHD) published the highly anticipated rule modifying the test for determining whether a worker is an employee or independent contractor under the Fair Labor Standards Act (FLSA). The final rule rescinds the current “core factors” method for determining independent contractor status under the FLSA and implements a return to a “totality-of-the-circumstance analysis.”

    Under the final rule, the method of determining worker classification will use a totality-of-the-circumstance analysis of multiple factors in an economic reality test, including the following six factors.

    • The extent to which the work is integral to the employer’s business.
    • The worker’s opportunity for profit or loss depending on managerial skill.
    • The investments made by the worker and the employer.
    • The worker’s use of skill and initiative.
    • The permanency of the work relationship.
    • The degree of control exercised or retained by the employer.

    Under the final rule, any particular factor could be determinative in establishing a worker’s classification, and additional undefined factors may be relevant in the analysis as well. The final rule is therefore a significant departure from the previous rule finalized in 2021, under which two core factors primarily guided worker classification determinations.

    The WHD has established March 11, 2024, as the effective date of this new rule, meaning institutions will need to be in compliance by then. The rule is likely to be challenged in federal court by business groups, and legislators in the U.S. House of Representatives and Senate have indicated they will introduce resolutions of disapproval under the Congressional Review Act in an attempt to nullify the final regulation. CUPA-HR will keep members apprised of any new updates as it relates to the status of this final rule.



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  • Department of Education Issues Report on Diversity and Opportunity in Higher Education – CUPA-HR

    Department of Education Issues Report on Diversity and Opportunity in Higher Education – CUPA-HR

    by CUPA-HR | October 18, 2023

    On September 28, 2023, the Department of Education released a report titled “Strategies for Increasing Diversity and Opportunity in Higher Education.” The report was issued in response to the Supreme Court’s June 2023 ruling against affirmative action in college admissions and it outlines ways institutions and states can adapt to prioritize improved accessibility to educational opportunities for underserved students.

    The Report

    In an introductory message for the report, Secretary of Education Matthew Cardona emphasized the enduring commitment to equal opportunity and student body diversity in higher education on behalf of his department and the president’s administration. While condemning the Supreme Court’s decision on affirmative action, Cardona pledged the Department of Education’s and the Biden administration’s support in promoting inclusivity and equity and stimulating long-term prosperity.

    The Department of Education’s report centers around four areas that the administration believes institutions should consider when working to promote diversity and opportunity on campus: student recruitment, admissions, financial aid and student retention. The report focuses mostly on promoting diversity, equity and inclusion (DEI) initiatives in these areas to ensure underserved students have an equitable opportunity to be admitted into and succeed in postsecondary programs.

    Relevant to higher education HR, the report discusses the need for improved training of admissions officers and other employees to ensure consistent, equitable evaluations of applicants.

    Moving Forward

    Prior to the release of the Supreme Court’s affirmative action decision, stakeholders also raised concerns regarding the impact such a decision could have on hiring and employment decisions as well as programs or initiatives focused on creating diverse and inclusive workplaces that align with institutional values. The decision to strike down race-based affirmative action in admissions practices could leave employers open to future legal challenges regarding their hiring decisions and other diversity programs.

    CUPA-HR endorses efforts to promote inclusive communities on campuses across the nation. The government relations team continues to track developments impacting these efforts and will inform members of updates as they become available.



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  • Department of Labor Proposes New Overtime Rule – CUPA-HR

    Department of Labor Proposes New Overtime Rule – CUPA-HR

    On August 30, the Department of Labor (DOL) announced a new proposed update to the salary threshold for the “white collar” exemptions to the Fair Labor Standards Act’s (FLSA) overtime pay requirements.

    DOL proposes raising the minimum salary threshold from its current level of $35,568 annually to $55,068 — a nearly 55% increase. It also raises the salary level for the Highly Compensated Exemption (HCE) to $143,988 from its current level of $107,432 (a 34% increase). The proposal does not make any changes to the duties requirements. DOL does, however, propose automatically updating the threshold every three years by tying the threshold to the 35th percentile of weekly earnings of full-time salaried workers in the lowest-wage Census Region. For more information, DOL issued a FAQ document addressing the changes in the proposed rule.

    DOL first announced their intention to move forward with the proposal in the Fall 2021 Regulatory Agenda and set a target date for its release in April 2022. However, CUPA-HR, along with other higher education organizations and hundreds of concerned stakeholders, expressed concerns with the timing of the rulemaking and encouraged DOL to hold stakeholder meetings prior to releasing the anticipated overtime Notice of Proposed Rulemaking (NPRM). In a recent letter, CUPA-HR joined other associations in calling for the department to postpone or abandon the anticipated overtime rulemaking, citing concerns with supply chain disruptions, workforce shortages, inflation, and shifting workplace dynamics.

    The proposed rule was published in the Federal Register on September 8, allowing the public 60 days to submit comments. CUPA-HR plans to file an extension request with the agency. We will also continue evaluating the current proposal and work with members to prepare comments to submit on behalf of the higher education community. Furthermore, an extended session of the CUPA-HR Washington Update on September 21 will delve into the nuances of these proposed changes and their ramifications on campus.

    Register for the Upcoming Webinar

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

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

    by CUPA-HR | July 13, 2023

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

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

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

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

     



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  • Department of Education Delays Target Release of Title IX Rulemaking to October – CUPA-HR

    Department of Education Delays Target Release of Title IX Rulemaking to October – CUPA-HR

    by CUPA-HR | May 30, 2023

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

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

    As a reminder, the Biden administration’s Title IX rulemaking rolls back the Trump administration’s 2020 regulations, specifically with respect to its grievance procedures, while simultaneously expanding protections against sex-based discrimination to cover sexual orientation, gender identity, and pregnancy or related conditions. CUPA-HR filed comments in September 2022 in response to the NPRM, in which we brought attention to the possible impact the proposed regulations could have on how higher education institutions address employment discrimination.

    In addition to the Title IX rulemaking, the blog post also states that the final rule on transgender student eligibility in athletic programs under Title IX will also be delayed until at least October 2023. Released on April 6, the proposed rule establishes that schools that receive federal funding would not be permitted to adopt or apply a one-size-fits-all ban on transgender students participating on teams consistent with their gender identity and would instead allow schools the flexibility to develop team eligibility criteria that serves important educational objectives, such as fairness in competition and preventing sports-related injuries.

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



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  • Department of Education Releases Title IX Rulemaking on Transgender Student Eligibility in School Athletics – CUPA-HR

    Department of Education Releases Title IX Rulemaking on Transgender Student Eligibility in School Athletics – CUPA-HR

    by CUPA-HR | April 12, 2023

    On April 6, the U.S. Department of Education released a Notice of Proposed Rulemaking (NPRM) on student eligibility for athletic teams under Title IX. The proposed rulemaking focuses on transgender students’ eligibility to participate on athletic teams as legislation and policies at the federal, state and local levels have been introduced to ban transgender student participation in athletic programs.

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

    The NPRM comes after the Biden administration announced its intention to release such a proposed rule after it excluded language on transgender student eligibility in athletics in its June 2022 Title IX proposed rule. The rule comes as policymakers at the federal, state and local levels have introduced and passed legislation that bans transgender participation on women’s athletic teams. Most recently, the House of Representatives passed H.R. 734, the Protection of Women and Girls in Sports Act, out of the Education and the Workforce Committee, where it now awaits a full floor vote. The bill would prohibit federally-funded education programs or activities to operate, sponsor or facilitate athletic programs or activities that allow individuals of the male sex to participate in programs or activities that are designated for women or girls, defining “sex” as an individual’s reproductive biology and genetics at birth.

    Public comments in response to the NPRM will be due 30 days from the date of publication in the Federal Register. CUPA-HR will work with other higher education associations to fully analyze the NPRM and respond accordingly.



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

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

    by CUPA-HR | March 1, 2023

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

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

    Supporting Equal Opportunity in School Athletic Programs

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

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

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

    Title IX and Athletic Opportunities in Colleges and Universities

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

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

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

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

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

    Athletic Scholarships and Financial Assistance

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

    Meeting Students’ Athletic Interests and Capabilities

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

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

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

    Options for Filing Complaints for Title IX Violations

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

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



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  • Federal Judge Blocks Department of Education’s Title IX Guidance – CUPA-HR

    Federal Judge Blocks Department of Education’s Title IX Guidance – CUPA-HR

    by CUPA-HR | July 27, 2022

    On July 15, a federal judge from the U.S. District Court of the Eastern District of Tennessee issued a preliminary injunction blocking enforcement of the Department of Education’s Title IX guidance that prohibits discrimination on the basis of gender identity and sexual orientation. Specifically, the ruling blocks enforcement of a June 2021 Notice of Interpretation issued by the department’s Office for Civil Rights (OCR) in light of the Supreme Court’s 2020 decision in Bostock v. Clayton County and President Biden’s Executive Order, “Guaranteeing an Educational Environment Free from Discrimination on the Basis of Sex, Including Sexual Orientation and Gender Identity.”

    Twenty Republican-controlled states, led by their attorneys general, were listed as plaintiffs on the case, arguing that the department’s guidance should not be enforced by the agency as it did not go through the notice-and-comment rulemaking process and is not codified law. They claimed that the department’s enforcement of the guidance also puts states at risk of losing significant federal funding if they do not comply with the guidance. The Eastern District of Tennessee judge ruled in favor of the plaintiffs, issuing the preliminary injunction while stating that the guidance interferes with states’ abilities to enforce their own laws that prohibit transgender students from participating on sports teams or using restrooms that align with their gender identity.

    As it currently stands, the injunction applies only to the 20 states listed as plaintiffs in the case, potentially impacting the policies of colleges and universities in those states. Notably, the injunction does not impact the recently issued Title IX proposed regulations that are currently undergoing a 60-day notice-and-comment period. If the Title IX regulations are codified into law, however, they may face similar legal challenges.

    CUPA-HR will continue to monitor this issue and keep members apprised of any developments related to Title IX.



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  • Department of Education Releases Title IX Proposed Rule – CUPA-HR

    Department of Education Releases Title IX Proposed Rule – CUPA-HR

    by CUPA-HR | June 23, 2022

    On June 23, the Department of Education released the highly anticipated Notice of Proposed Rulemaking (NPRM) to amend Title IX. The NPRM proposes to replace the Trump administration’s 2020 Title IX rule and establishes safeguards for transgender students by proposing a ban on “all forms of sex discrimination, including discrimination based on sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation and gender identity.” The proposal will be open for public comment for 60 days following publication in the Federal Register.

    In March 2021, President Biden issued an Executive Order (EO) titled, “Guaranteeing an Educational Environment Free from Discrimination on the Basis of Sex, Including Sexual Orientation and Gender Identity.” The EO directed the secretary of education to evaluate the Trump administration’s Title IX regulations and to “issue new guidance as needed on the implementation of the rule.”

    Of significance, the NPRM proposes to repeal the Trump administration’s requirement for live hearings for Title IX investigations. It also proposes to change the definition of sexual harassment back to “unwelcome sex-based conduct” that creates a hostile environment sufficiently severe or pervasive that it denies or limits a person’s ability to participate in a school’s education program or activity.

    CUPA-HR will be conducting a deeper analysis of the 700-page proposal in the days and weeks to come and will be partnering with other higher education associations to ensure the department receives meaningful feedback on its proposal.

    For additional information on the proposed rule, the department has provided a summary of the major provisions and a fact sheet.



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  • Joint Statement by the U.S. Department of State & the U.S. Department of Education of Principles in Support of International Education

    Joint Statement by the U.S. Department of State & the U.S. Department of Education of Principles in Support of International Education

    Joint Statement by the U.S. Department of State & the U.S. Department of Education of Principles in Support of International Education – Reengaging the World to Make the United States Stronger at Home, A Renewed U.S. Commitment to International Education. Issued July 26, 2021 at https://bit.ly/3y8nNmn

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