Tag: fairness

  • School facility governance standard aims to improve fairness, boost rental revenue

    School facility governance standard aims to improve fairness, boost rental revenue

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    Dive Brief:

    • Facilitron is rolling out what it says is the first U.S. governance standard for community use of public school facilities, the digital facilities rental platform said Sept. 10.
    • The California-based company will debut the framework in San Diego this November at Facilitron University, its annual conference for school district leaders and facility managers.
    • The standard aims to align school facility use with districts’ mission and strategy, reduce legal risk, improve consistency and transparency across district operations, and ensure equitable access for community members and groups, the company says.

    Dive Insight:

    Facilitron provides facility rental and management support for some of the largest school districts in the U.S., including Florida’s Broward County Public Schools, Nevada’s Clark County School District and California’s San Diego Unified School District.

    That broad reach helped the company design a governance framework that goes beyond school boards’ existing model policies to encompass administrative regulations, site manuals, renter terms and audit tools, the company says. It draws on data from more than 15,000 schools, many of which have outdated, inconsistent and unenforceable facility-use policies, “exposing where current systems fail,” according to the company. 

    “Every district on our platform has a data trail that tells a story,” Facilitron Chief Marketing Officer Trent Allen said in an email. “Even when data is missing — because poor policy and enforcement means a lot of facility use never gets documented — you can still see the problems, like a black hole bending light in its direction.”

    Allen said many of those problems have a financial dimension. For example, many districts offer automatic subsidies for registered nonprofits, regardless of the actual public benefit the organization provides — so a national nonprofit with high participation fees gets effectively the same treatment as a grassroots group with a much smaller budget, Allen said.

    Districts’ facility-use policies — and the state statutes enabling them — leave money on the table in other ways, like sweetheart deals for school employees, rates that remain static for years, and ambiguous language that discourages districts from tapping their facilities’ full value. 

    As an example, Allen said, some Tennessee districts interpret a vaguely worded state statute prohibiting “private profit” in school facility use to mean that only nonprofit organizations can rent them, creating a situation where “essentially every use becomes a subsidized use.” That leaves out the possibility that private companies could use the facilities for charitable or other purposes. 

    Additionally, many school boards give school administrators or facilities managers free rein to adjust or waive fees, or approve informal use outside the plain text of board policy, he said.

    The upshot of all this, Allen added, is that larger districts forgo millions in potential revenue annually from facility rentals while creating conditions ripe for favoritism and inequity.

    Once one group gets access under favorable terms, every similar group is usually given the same,” he said. “Suddenly the district is on the hook for hundreds of thousands of dollars. It quickly runs into the millions and it is never budgeted for.”

    Facilitron says its national governance standard pushes back on the status quo by laying out detailed model school board policies and administrative regulations; a “modular policy toolkit” and site-level operations manual; a national terms and conditions template; and a “facility use audit framework,” which the company describes as “a diagnostic tool that reveals cost, risk and underperformance.”

    The national governance standard also includes frequently asked questions, case studies and other resources for school boards.

    “We require annual reporting, including an estimate of total subsidization. We make cost recovery the governing philosophy [and] move away from ‘nonprofit’ as the trigger for discounts, because that’s the wrong proxy for public benefit. And we separate policy into layers — board-level rules, administrative regulations, and site-level guidance — so principals aren’t left to invent their own rules,” Allen said.

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  • OfS pushes ahead with two tier fairness for students

    OfS pushes ahead with two tier fairness for students

    Good news for students in England. Providers will soon be subject to tough new rules that ensure they’re treated fairly. But only if they’re in a new provider. Elsewhere, it seems, the unfairness can reign on!

    Just a few days before applications to join its register reopen, the Office for Students (OfS) has published consultation outcomes and final decisions on reforms to its registration requirements.

    It sets out the regulator’s decisions following its February 2025 consultation on changes to the entry conditions that higher education providers have to meet to register with OfS, and therefore access student loan funding. It covers:

    • A new initial condition C5 (treating students fairly), replacing the old consumer protection and student protection plan conditions (C1 and C3).
    • New governance conditions E7, E8 and E9, replacing the old governance requirements (E1 and E2).
    • Tighter application requirements, including more detailed financial planning, declarations about investigations, and restrictions on resubmitting applications after refusal.

    Conusingly, the changes interact closely with two separate consultations on subcontracting.

    First, in January 2025 the Department for Education consulted on requiring delivery providers in franchised or subcontractual arrangements to register directly with OfS for their students to be eligible for student support.

    Then, in June 2025 OfS ran its own consultation on the regulation of subcontracted provision, focusing on how such providers would be assessed, overseen, and held accountable if brought into the system.

    These reforms don’t themselves impose registration on subcontracted delivery providers, but they prepare the ground – the new conditions clarify how subcontracted applicants could meet C5 and related requirements, and OfS signals that it is ready to align with whatever the government decides on the January DfE proposals.

    Chin plasters

    We’re several months on now from the initial jaw on the floor moment, but by way of reminder – the main proposals on treating students fairly are justified as follows:

    Providers are facing increasing financial challenges. They must have effective management and governance to navigate those challenges in a way that delivers good student outcomes. Where providers are making tough financial decisions, they must continue to meet the commitments they have made to students. Our engagement with students shows that being treated fairly is very important to them and suggests that too often this does not happen.

    Against that backdrop, and repeated never-met promises to act to address student protection issues, you’d have thought that there would be progress on what is happening inside the 429 providers already on the register. Alas not – its centrepiece proposals on treating students fairly are only to apply to new providers, with a vague commitment to consult on what might be applied to everyone else (closing the stable door) at some point down the line (one the horse has bolted).

    But worse than that, in its infinite wisdom OfS has somehow managed to concoct a situation where for this tiny group of new providers, it will:

    • Remix lots of existing consumer protection law so that instead of talking about consumer rights, it talks about treating students fairly
    • In some areas go further than consumer protection law, because OfS can and has decided to in the student interest
    • In some areas not go as far as consumer protection law, because…. reasons?

    On the topline, what’s now being introduced is a new initial registration condition – C5, “treating students fairly” – that will replace the old consumer protection entry tests for providers seeking to join the OfS register.

    Instead of simply requiring a university or college to show that it has “had due regard” to CMA guidance, applicants will have to demonstrate that they treat students fairly in practice.

    To do that, OfS will review the policies and contracts they intend to use with students, and judge them against a new “prohibited behaviours” list, a detriment test, and any track record of adverse findings under consumer or company law. In effect, OfS is shifting from a box-ticking exercise about compliance to an upfront regulatory judgement about fairness.

    Providers will have to publish a suite of student-facing documents – terms and conditions, course change policies, refund and compensation policies, and complaints processes – which together will constitute their student protection plan.

    And the scope of the new condition is deliberately broad – it covers current, prospective, and former students, higher education and ancillary services like accommodation, libraries, or disability support, and information issued to attract or recruit students, including advertising and online material. In short, C5 sets a new standard of fairness at the point of entry to the system, at least for those providers trying to join it.

    Students aren’t consumers, but they are, or are they

    The problem is the relationship with consumer law. OfS is at pains to stress that new Condition C5 sits comfortably alongside consumer law, drawing on concepts that will be familiar to anyone who has worked with CMA guidance.

    It makes use of the same building blocks – unfair terms, misleading practices, clarity of information – and even names the same statutes.

    But we’re also reminded that C5 is not consumer law – it’s a regulatory condition of registration, judged and enforced by OfS as a matter of regulatory discretion. That means satisfying C5 doesn’t guarantee compliance with the Consumer Rights Act 2015 or the Digital Markets, Competition and Consumers Act 2024, and conversely, complying with the Act doesn’t automatically secure a pass on C5. The frameworks overlap, but they don’t align.

    In some respects C5 goes further. By creating its own “prohibited behaviours list”, OfS has declared that certain contractual terms – which the Consumer Rights Act 2015 would only treat as “grey list” risks – will always be unfair in the student context. Examples include terms that allow a provider to unilaterally withdraw an offer once it has been accepted, clauses that limit liability for disruptions within the university’s own control (like industrial action), or refund policies that impose unreasonable hurdles or delays.

    The list also bans misleading representations such as claiming “degree” or “university” status without proper authority, omitting key information about additional compulsory costs, or publishing fake or cherry-picked student reviews. It even extends to the legibility and clarity of terms and policies, requiring that documents be accessible and understandable to students.

    C5 also sweeps in documents that may not ordinarily have contractual force, like course change policies or compensation arrangements, and makes them part of the fairness test. In that sense, the regulator is demanding a higher standard than the law itself, rooted in its view of the student interest.

    But in other senses, C5 lags behind. Where DMCC now treats omissions of “material information” as unlawful if they’re likely to influence a student’s decision, C5 only bites when omissions cause demonstrable detriment, judged against whether the detriment was “reasonable.”

    DMCC introduces explicit protections for situational vulnerability, and a statutory duty of professional diligence in overseeing agents and subcontractors – neither concept is reflected in C5. DMCC makes universities liable for what their agents say on TikTok about visas or jobs – C5 says providers are accountable too, but stops short of importing the full professional diligence duty that the law now demands. DMCC makes clear that the full price of a degree needs to be set out in advance – including anything you have to buy on an optional module. C5 not so much.

    We will protect you

    The problem with all of that from a student point of view is that the Competition and Markets Authority is going to take one look at all of this and think “that means we don’t have to busy ourselves with universities” – despite the rights being different, and despite no such regulation kicking in in the rest of the UK.

    And worse, it makes the chances of students understanding their rights even thinner than they are now. On that, some respondents asked for wider duties to ensure students actively understand their rights – but OfS’ response is that its focus is on whether documents are fair, clear, and not misleading, and that if issues arise in practice (like if notifications flag that students aren’t being given fair or accurate information), OfS can require further information from the provider and take action.

    How on earth students would know that their rights had been breached, and that they can email an obscure OfS inbox is never explained. Even if students find the webpage, students are told that OfS “will not be able to update you on the progress or outcome of the issue that you have raised”.

    They’d likely make a complaint instead – but even if they got as far as the OIA, unless I’ve missed it I’ve never seen a single instance of OfS taking action (either at strategic/collective level or individual) off the back of the information I’m sure it gets regularly from its friends in Reading.

    I suspect this all means that OfS will now not publish two lots of information for students on their rights, depending on whether they’re new or existing members of the register – because like pretty much every other OfS strategy on the student interest, students are framed as people to be protected by a stretched mothership rather than by giving them some actual power themselves.

    I can make an argument, by the way, that sending complaints to lawyers to be assessed for legal risk to the provider, routinely ignoring the OIA Good Practice Framework, refusing to implement an OIA recommendation, not compensating a group when an individual’s complaint obviously applies to others who didn’t complain, using NDAs on complaints that don’t concern harassment and sexual misconduct, deploying “academic judgment” excuses on any appeal where the student is let down, or the practice of dragging out resolutions and making “deal or no deal” “goodwill” offers to coax exhausted students into settling are all pretty important fairness issues – but the relationship with the OIA in a whole document on fairness is barely mentioned.

    As usual, almost nothing has changed between proposals and outcome – but there’s a few nuggets in there. “Information for students” has been replaced with “information about the provider” – to make clear the duty extends beyond enrolled students and covers all marketing/info materials. The problem is that under DMCC stuff like, for example, misleading information on the cost of living in a given city is material, but under OfS “treating students fairly” doesn’t appear to be “about” the provider.

    OfS has clarified that its concerns about “ancillary services” only applies where there is a contract between student and provider (not with third parties), but has added that providers are responsible for information they publish about third-party services and expects universities to exercise “due diligence” on them and their contracts.

    Some language has been more closely aligned with the DMCCA on things like omissions and fake reviews), and in its “detriment” test providers now must do “everything reasonable” rather than “everything possible” to limit it.

    Banned practices

    In some ways, it would have been helpful to translate consumer law and then go further if necessary. But looking at the overlap between the CMA’s unfair commercial practices regime and OfS’s prohibited behaviours list reveals some odd gaps.

    OfS has borrowed much of the language around misleading marketing, fake reviews, false urgency, and misused endorsements, but it has not imported the full consumer protection arsenal. The result is that students don’t seem to be guaranteed the same protections they would enjoy if they were buying a car, a washing machine, or even a mobile phone contract.

    General CMA guidance prevents companies from mimicking the look of competitors to confuse buyers – but the practice is not explicitly barred by OfS. The CMA bans direct appeals to children – no mention of the vulnerable consumer / due diligence duties in OfS’ stuff. Under DMCC, a practice that requires a consumer to take onerous or disproportionate action in order to exercise rights that they have in relation to a product or service is banned – but there’s little on that from OfS.

    Fee increases

    One note on fees and increases – in the response, OfS points to a “statement” that anyone with an Access and Participation Plan has to submit on whether it will increase fees. It supposedly has to specify the “objective verifiable index” that would be used (for example, the Retail Price Index or the Consumer Price Index), in all cases the amount must not exceed the maximum amount prescribed by the Secretary of State for Education, and under consumer protection law, all students must have a right to cancel a contract in the event of a price increase, even where that price increase is provided for in the contact.

    Here’s the first five I found in approved Access and Participation Plans on Google:

    • “Our intention is to charge the maximum fee, subject to the fee limits set out in Regulations” (the doesn’t seem compliant to me)
    • “We will not raise fees annually for 2024-25 new entrants” (that one from a provider that has announced that it will after all)
    • “We will not raise fees annually for 2024-25 new entrants” (that from a provider who now says that for those who started before 1 August 2025, the continuing fee will be £9,535)
    • “We will not raise fees annually for new entrants” (that from a provider that now says “the fee information and inflation statement provided on page 69 of our 2025/26 to 2028/29 Access and Participation Plan are no longer current)
    • “Subject to the maximum fee limits set out in Regulations we will increase fees each year using RPI-X” (what it’s actually doing is increasing its fees by RPI-X as projected by the OBR, which is a very different figure, and no way would pass muster as an “objective verifiable index”

    I’d add here to this utterly laughable situation that the CMA is very clear that the right to cancel in the event of a material change or price increase has to be exercisable in practice:

    In the HE sector, switching course or, in some cases, withdrawing and switching HE provider, is likely to be difficult or impractical in practice, bearing in mind that in many cases the student will not be able simply to transfer their credits to another HE provider, and so saying the student can switch may not improve matters for them, or alleviate the potential unfairness of a variation.

    I’m not sure there’s a provider in the country that’s compliant with that.

    Wider changes

    On its reforms to registration requirements, the exciting news is that rather than introduce one new Condition of Registration, there’s going to be three – E7 (governing documents and business plan), E8 (fraud and inappropriate use of public funds) and E9 (on fit and proper persons, knowledge and expertise).

    In the future, providers will have to submit a defined set of governing documents at registration – replacing the previous reliance on self-assessment against public interest governance principles. Providers will also have to submit a clear and comprehensive five-year business plan showing objectives, risks, compliance with ongoing conditions, and consideration of students’ interests.

    Specific senior roles (chair of governing body, accountable officer, finance lead, and an independent governor) will have to demonstrate sufficient knowledge and expertise, usually tested through interviews. And a new fit and proper persons test will mean that those in senior governance and management roles will be subject to checks on past conduct (e.g. fraud, misconduct, behaviour undermining public trust).

    Providers will also have to have comprehensive and effective arrangements to prevent, detect, and stop fraud and the inappropriate use of public funds. A “track record” test also applies, the upshot of which is that relevant convictions or regulatory sanctions within the past 60 months could bar registration unless exceptional circumstances apply.

    You’ll not be surprised to learn that in the consultation, some worried that the changes would increase bureaucracy, slow down registration, and impose disproportionate burdens on smaller providers. Others objected to the removal of self-assessment against the Public Interest Governance Principles (PIGPs) at the point of registration, fearing this would dilute student protection or cause confusion given that PIGPs still apply on an ongoing basis.

    Concerns were also raised about creating a two-tier system where new entrants face tougher entry requirements than established providers, and about the practicality of requiring a five-year business plan when forecasting beyond two or three years is often unrealistic. Many also questioned a new interview requirement for key individuals, seeing it as costly, stressful, open to coaching, and potentially inconsistent. Just like student assessment!

    OfS was right all along, of course – arguing that the new conditions give stronger protection for students and taxpayers, that the five-year planning horizon is essential to test medium-term sustainability, and maintains that fit and proper person interviews are the most effective way to test leadership capacity.

    If you were one of the handful of respondents, it wasn’t all in vain – the phrase “policies and procedures” is now “policies and processes”, OfS has clarified the level of knowledge required (the chair and independent governor only need “sufficient awareness” of student cohorts rather than detailed operational knowledge) and a minimum requirement for fraud prevention arrangements is now in the actual condition (rather than just in guidance).

    Registering with OfS

    Much of that is now reflected in a tightening of the registration process itself. Applicants will now be required to submit a defined set of final, governing-body-approved documents at the point of application – including governing documents, financial forecasts, business plans, and information on ownership and corporate structure.

    The idea is to eliminate the previous piecemeal approach, under which providers often submitted partial or draft materials, and to ensure that applications arrive complete, coherent, and capable of demonstrating that a provider has the resources and arrangements necessary to comply with the ongoing conditions of registration.

    Some argued that the shift makes the process more rigid and burdensome, particularly for smaller or specialist providers, and warned that requiring fully approved documents could create practical difficulties or delay applications. Others were worried about duplication with other regulators and barriers to entry for innovative providers.

    Again, OfS is pressing on regardless, arguing that a standardised approach will improve efficiency and consistency, while promising proportionate application of the rules, detailed guidance on the required documents, and limited flexibility where a final document cannot yet exist.

    To the extent to which some might argue that a heavy and complex burden is a tough ask for small new providers – and runs counter to the original Jo Johnson “Byron Burgers” vision, the message seems to be that it turns out that scale and complexity is required to protect public money and the student interest. It would arguably be a lot easier (on both OfS and Independent HE’s members) if DfE was to just say so.

    Defeat from the jaws of victory

    Sometimes, OfS gets close to getting it – finally, an education regulator properly thinking through the ways in which students are treated unfairly – only to go and spoil it and say something stupid like “this will only apply to new providers”.

    As I noted when the consultation came out, what we now have is one set of rights for students in a new(ly registering) provider that they’ll never be proactively told about, and another set of much weaker ones for everyone else that they’re not told about either, all in the name of “fairness”, at exactly the point that the regulator itself admits is one where providers are under pressure to not deliver on some of the promises they made to students.

    The lack of justification or explanation for that remains alarming – and while cock up is often a better explanation than conspiracy, it’s hard to conclude anything other than OfS has proactively decided to turn a blind eye (while blindfolding students) to existing unfairness while everyone gets their cuts done. What a time to be a student.

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  • The Contest Over Fairness in Higher Ed (opinion)

    The Contest Over Fairness in Higher Ed (opinion)

    My 5-year-old recently told me it was unfair that her teacher makes her write from left to right “like everyone else.” She’s left-handed, and for her, it smudges the ink and feels awkward—while her right-handed friends have no problem. I affirmed her frustration. It is harder. But I also knew that was discomfort, not injustice.

    If she told me her school never included stories with Black or Indian characters—her own identities—or skipped over Black history and Diwali while celebrating Halloween and Christmas, I’d respond differently. That’s not just about feelings. That’s curricular erasure—structural invisibility embedded in education.

    Higher education is now facing a similar test of discernment. In recent weeks, the American Bar Association, under pressure from the Trump administration, suspended its DEI accreditation requirement for law schools. The University of Michigan shuttered its DEI programs. And Harvard University received a sweeping federal demand to dismantle its DEI programs, reorient admissions and hiring, and submit to ideological audits.

    Harvard’s decision to reject the federal ultimatum—even at the cost of more than $2 billion in research funding—offers a rare but vital example of institutional clarity. Harvard said no to the false equivalence now dominating our public discourse: the notion that discomfort is the same as discrimination.

    Critics claim that DEI efforts create an exclusionary climate and reflect a lack of “viewpoint diversity,” framing a commitment to racial equity as an ideological litmus test. But that framing ignores history, context and the actual purpose of DEI work, which at its best corrects for the unfairness of cumulative white advantages built into college admissions, curriculum and culture in higher education. It treats the discomfort that arises when racism is named as equivalent to structural exclusion. And then, under that pretense, the federal government now imposes its own litmus test—seeking to dismantle the very practices aimed at addressing structural harm.

    Now that federal litmus test is extending into faculty hiring. The Equal Employment Opportunity Commission, under the Trump administration, has launched an investigation into whether Harvard’s hiring practices discriminate against white men and other traditionally overrepresented groups. Cloaked in the language of civil rights enforcement, the inquiry reflects a disturbing reversal: Efforts to address long-standing exclusion are being reframed as exclusion themselves. Rather than confronting the structural realities that have kept academia disproportionately white and male, this investigation uses claims of “reverse discrimination” to undermine the very mechanisms created to correct inequity. It’s a strategic misreading of fairness—one that turns tools of justice into instruments of suppression.

    Similar to my daughter calling left-handed writing “unfair” because it invokes feelings of discomfort and victimization—despite the absence of structural exclusion—DEI’s powerful opponents manipulate the language of fairness to justify conformity and suppress interventions that respond to actual harm. “Race neutrality” is the legal fiction of our time, much like “separate but equal” was in another era. Both erase history in favor of surface-level parity and use the language of justice to obscure harm. We saw this logic in the Students for Fair Admissions ruling, which restricted race-conscious admissions. But as Justice Ketanji Brown Jackson wrote in her dissent, the deep racial disparities we see today were “created in the distant past, but have indisputably been passed down to the present day.” The issue isn’t too much talk about race—it’s our refusal to hear it.

    Now, under the guise of neutrality, institutions are being pressured to abandon DEI work, censor curricula and silence student voices. And many institutions are acting as if this call is guided by law. But the SFFA decision didn’t ban DEI programming or prohibit race-based affinity spaces, racial climate assessments or the consideration of lived racial experiences in admissions essays.

    This is interpretive overreach: stretching legal decisions out of fear. In doing so, institutions compromise not only their policies, but their principles. But there’s another path—what I call interpretive reimagination. It’s the ethical clarity to meet ambiguity with purpose, not retreat. To respond not only as a matter of compliance, but of mission. And this discernment—the ability to differentiate between discomfort and structural harm—is at the heart of racial literacy. It means recognizing that not every claim of unfairness is equal and that treating them as such can perpetuate injustice. That discernment is essential for educators and institutions.

    What we’re witnessing is not just a policy shift. It’s a redefinition of fairness—one that casts efforts to name inequality as divisive, while branding ideological control as “viewpoint diversity.” That redefinition is being enforced not just through rhetoric, but through decrees, audits and intimidation. Harvard’s refusal matters—not because the institution is perfect, but because it disrupted the pattern. It reminded us that higher education still has choices. The contrast with Michigan and the ABA is instructive. When institutions comply pre-emptively, they legitimize coercion. They don’t just narrow the space for justice—they help close it.

    Fairness, equity and justice are not settled ideas. They are contested. And higher education is not outside that contest—it is a primary site of it. To meet this moment with integrity, we must refuse the fantasy of neutrality, name systems of advantage and commit to teaching truth, even when that truth is inconvenient. The difference—between choosing caution or courage—will depend on whether we, as educators, can practice the kind of discernment that parents are called to every day. Because, ultimately, this isn’t just about legal compliance or institutional risk. It’s about whether the stories we tell about fairness will include all of us—or only those already at the center.

    Uma Mazyck Jayakumar is an associate professor of higher education and policy at the University of California, Riverside. She served as an expert witness in SFFA v. UNC, and her research was cited in Justice Sonia Sotomayor’s dissenting opinion to the Supreme Court’s landmark affirmative action case.

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  • Portability within REF remains key to fairness

    Portability within REF remains key to fairness

    When a researcher produces an output and moves between HEIs, portability determines which institution can submit the output for assessment and receive the resulting long-term quality-related funding.

    However, a joint letter by the English Association, the Institute of English Studies, and University English, and subsequent interventions from other subject associations, demonstrate that unaddressed concerns over the portability of research outputs are coming to a head.

    In REF 2014, if a researcher moved HEI prior to a census date, then only the destination HEI submitted the output. In 2021, to mitigate the potential perceived inflationary transfer market of researchers, the rules were changed so that if researchers transferred, both the original and destination HEIs could return the output. This rightfully recognised the role of both HEIs, having supported the underpinning research and investing in the research of the future respectively.

    The initial decisions published in 2023 had research outputs decoupled from the authors with outputs needing to have a “substantive connection” to the submitting institution. Two years on we still don’t know the impact of this decision on portability. One of the unintended consequences of decoupling the outputs from the researchers who authored them and removing the notion of a staff list, is that only the address line of the author affiliation remains. This decoupling means that any notion of portability of outputs with a specific researcher is problematic.

    The portability of research outputs is a crucial element of the assessment process. It supports key values such as career security and development, equality, diversity, and inclusion, as well as the financial sustainability of HEIs. More importantly, linking outputs to individual researchers rather than institutions is necessary, particularly in the current Higher Education landscape, to ensure the integrity of both research and the assessment exercise itself. This approach ensures that researchers receive due credit for their work, prevents institutions from unfairly benefiting from outputs produced elsewhere or from structural changes such as departmental closures, and upholds a fairer, more transparent system that reflects actual research contributions.

    The sector is in a different place than it was even a few years ago. Many HEIs are financially challenged, with wide-spread redundancies an ongoing reality. Careers are now precarious at every career stage. Making new, or even maintaining, academic appointments is subject to strict financial scrutiny. Across all facets of research – from the medical and engineering sciences to the arts and humanities – the income derived from the REF is essential to the agility of the research landscape.

    Whether we like it or not, the decision to hire someone is in part financial. That an early career researcher could be recruited to improve a unit’s (subject) REF submission and hence income is a reality of a financially pressured system. At a different career stage, many distinguished researchers are facing financially imposed redundancy. The agility of the sector to respond is aided by the portability of the researcher’s outputs to allow them to continue their career and their contributions to the sector at a new HEI. The REF derived income is an important aspect of this agility.

    Setting aside financial considerations, separating research outputs from the researchers who created them sends a damaging message. It downplays the fundamental role of individuals in driving research and undermines the sense of agency that is crucial to its integrity and rigor.

    Auditing the future

    As researchers, we recognise the privilege of being supported in pursuing what is often both a passion and a vocation. Decoupling outputs from their creators disregards the individual researcher, their collaborations, and their stakeholders. It also oversimplifies the complex research ecosystem, where researchers work in partnership with their employing institutions, sector bodies, archives, charities, funders, and other key stakeholders.

    REF-derived income should not be seen just as a retrospective reward for an HEI’s past support of research, but rather as the nation’s forward-looking investment in the discoveries of tomorrow. To treat it merely as an audit is to overlook its transformative potential. Hence the outputs on which the assessment is based should be both the researchers who contributed to the unit while employed by the university and the researchers who are currently in the unit to contribute to the research that is ongoing, indelibly linking and interweaving past, present and future research.

    In addition to concerns over portability, decoupling outputs from the researchers that authored them risks undermining a central premise of the assessment that many of us working to improve our research culture want to see. Decoupling means there is no auditable limit to the number of outputs written by any one individual that can be submitted for assessment. Within the REF, we wish to see outputs authored by a diversity of staff within the unit, staff at different career stages and staff working in different sub areas. By decoupling the author from outputs, a future REF risks undermining the very fairness that the rule change was introduced to ensure.

    Not fair not right

    Sometimes the unintended consequences of an idea outweigh the benefits it was hoping to achieve. The decoupling of outputs from the researchers that made them possible and the knock-on consequences through restrictions to portability and reduced diversity is one of these occasions.

    There has never been a more critical time to uphold fairness in research policy.

    If the four funding bodies are to remain agile they must recognise that decoupling research outputs from the individuals who created them is not only harming those facing redundancy but also undermining HEIs’ ability to support the next generation of researchers upon whom our future depends. By the same count, ensuring the portability of outputs is essential for maintaining integrity, protecting careers, and sustaining a dynamic and equitable research environment. The need for change is both urgent and imperative.

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  • Fairness and protection for students is coming – but not for those that need it now

    Fairness and protection for students is coming – but not for those that need it now

    As well as a new condition of registration on governance (covered elsewhere on the site by my colleague David Kernohan), the Office for Students (OfS) has announced a new approach focussed on providers “treating students fairly”.

    There will be a new condition of registration – replacing existing ones on consumer protection guidance and student protection plans – aimed at institutions providing students with clear, easy to access information about what will happen if changes are made to their course, and fair processes for refunds and compensation and complaints.

    Broadly, OfS will shift from expecting providers to pay “due regard” to guidance from the Competition and Markets Authority towards itself making judgements – both about compliance with consumer law, and some of its own higher standards for fairness.

    It says that students have told the regulator that they want to receive a high quality education that reflects their financial investment and the experience they were promised, and that they want to be treated fairly – but that while many students do not explicitly refer to their experiences as consumers, words such as “fairness” and “honesty” are often used when they describe specific experiences and promises that have not been met.

    As cuts continue across the sector, a heavy focus on financial sustainability both inside providers and the regulator almost certainly means an enhanced risk that students will feel unfairly treated when their courses or wider experiences shoulder the burden of savings reductions. Often those feelings will be legally justified.

    But the jaw-to-the-floor astonishing thing – given OfS’ positioning as a risk-based regulator – is that none of the new proposals in this area will apply to currently regulated providers:

    We recognise that proposing to strengthen protections and ensure consistency of information for students of providers registered under [new] proposed initial condition C5 would mean that different arrangements would be in place for different groups of students, depending on when their provider was registered.

    Changes to ongoing regulatory requirements for registered providers are not within the scope of the current consultation. However our ultimate aim is to strengthen protections and ensure consistency of information for all students at all OfS-registered providers. In doing so, we would aim to align ongoing requirements for all registered providers, and we therefore envisage that having different requirements for different providers would be an interim position.

    Proposals to achieve this alignment, and to ensure that all students are treated fairly on an ongoing basis, would form part of a future consultation on ongoing requirements for currently registered providers.

    That’s right – well over five years since the bones of its new approach were set out in a paper to its board, in a context where the risks to students in this space have intensified significantly, better protecting students inside providers already on the register is parked as an “ultimate aim” with an unspecified date. And so for some, what follows below shifts from “need to get across” to “of mild passing interest for the time being”.

    Doing so much harm, doing so much damage

    The main thrust of the new approach to “fairness” – telegraphed by Director for Fair Access and Participation John Blake last summer – has a couple of key components.

    First, rather than relying on the Competition and Markets Authority, or the courts, or National Trading Standards to take action or make a judgement over an issue, it’s taking that in-house.

    And to go alongside that, it’s taking existing legislation – mainly consumer protection law, but there’s other bits too – and adding to it to form a new mega-definition of what it considers to represent “fairness”, partly to address the cat-nip nature of the “consumer” nomenclature.

    As well as the engagement feedback it’s had from students, it’s doing this based on experience. Examples it has seen include omitting material information, like additional course costs or registration fees, leading students to make uninformed decisions.

    It says it’s come across providers withdrawing offers after acceptance due to over- or under-subscription, leaving students unable to secure alternative options and stuck with financial commitments like accommodation. It has also come across – and referred to trading standards – like contractual terms that limit providers’ obligations during staff industrial disputes that may prevent students from receiving adequate teaching or compensation.

    It’s also seen issues involving complaints processes that impose unreasonable barriers, like short submission windows, which hinder students from seeking redress and compensation.

    And it’s picked up on false or misleading advertising, including claims about financial aid, course accreditation, or a provider’s status as a university, that may mislead students into pursuing programs that fail to deliver expected outcomes – where as a result, students may complete courses only to find that their certificates lack the value or recognition they anticipated.

    One might ask, if it’s seen all of that in its current crop of registered providers, why it’s consulting on souping up its regulation only in newly registered providers for the time being.

    But you don’t wanna get involved

    But on the assumption (which, from experience, is a dangerous one) it gets there in the end, it’s worth looking at what it’s proposing in detail.

    First thing on fairness. Currently, providers have to demonstrate compliance with consumer protection law when they apply to be on the register – but are not required to show how they more broadly ensure “fair treatment” of students.

    This, it says, can result in situations where providers meet regulatory conditions but still have unfair policies or terms affecting students. So the proposed changes aim to better protect students by ensuring that providers’ policies and practices are fair and safeguard consumer interests consistently – avoiding a situation where students end up having to legally challenge unfair terms, and moving towards an approach of requiring providers to act fairly from the outset.

    In that lovely OfS way, it will then assess whether a provider treats students fairly through a requirement that identifies when a provider does not treat students fairly. The old “I don’t know what a seminar is, but a 100 people in a room isn’t one” is the vibe here.

    A bunch of negative behaviours will be set out, and assessments will evaluate whether providers meet the condition by identifying the presence or absence of those negative behaviours – a “streamlined process” that it says will result in a clear “satisfied” or “not satisfied” outcome.

    The specifics of that run like this. If actions (or omissions) either fall within one or more descriptions, which it proposes to set out in a separate “OfS prohibited behaviours list”, or give rise to a likelihood of detriment or actual detriment to the student (except where reasonable in all the relevant circumstances), then the application gets the big red “unfair” stamp.

    The definition of unfair treatment it’s proposing draws on consumer protection law and CMA guidance, which it says are already familiar to higher education providers (notwithstanding that a whole chunk of it is changing, which I looked at earlier on the site here). The key bit is that OfS is aiming to offer an additional layer of protection beyond editing legal requirements – the proposed list of negative behaviours is not confined to those explicitly prohibited by law.

    And for consumer law fans, contract terms that may be regarded as unfair according to the Consumer Rights Act 2015 (the so-called “grey list”) will always be unfair in OfS-world – particularly over changes to courses, refund and compensation policies and contract terms and conditions:

    We are proposing to consider documents beyond those that may ordinarily have contractual effect and the condition therefore has a wider scope than consumer protection law. Our initial view is that this is appropriate because students may rely on a wider range of documents in practice.

    Some will regard that as overreach – others will feel reassured that the square peg/round hold of applying consumer law to the relationship between student and university will be properly addressed.

    The other thing in here for consumer law detail fans is that the draft condition proposes that a provider would not be regarded as treating a student fairly if, in OfS’s reasonable opinion, its actions or omissions (including those that are proposed or likely) give rise to a likelihood of detriment or actual detriment to the student.

    That’s odd because, as I explained on the site a few days ago, consumer law and the way the CMA is proposing to apply it is moving away from a “detriment test” and towards banning some behaviours regardless.

    And excuses will be available – whether it is reasonable to argue that the course of action proposed or taken is, or was, necessary in the circumstances; whether those circumstances are, or were, in the control of the provider; and whether the provider is doing, or has done, everything possible to limit the extent of any detriment. That opens up all sorts of “what ifs” – including those on “but we were about to collapse and you told us not to collapse” – that OfS officials will doubtless be fielding on webinars in the coming weeks.

    One curious aspect of the proposal – at least as it’s set out here – concerns the difference between an “initial” condition and an “ongoing” condition of registration. OfS is proposing new C5 on fairness explicitly here as an “initial” condition – so it’s principally proposing to look at a bunch of documents and policies before it lets a provider onto the register.

    Of course not only can those policies change, it’s often the way they’re implemented (or not) and interpreter that matters more – the consultation is oddly silent on whether new C5 will also become an ongoing condition of registration that OfS could intervene on later.

    In fact it feels like OfS is under pressure to get registrations going again, isn’t quite ready on this fairness stuff, and so has half slipped it into an announcement on new registrations for the time being.

    I know you wanna live yourself

    This being OfS, you actually have to fish your way to page 72 of the consultation document at Annex D to see what it’s proposing as prohibited behaviours – and it’s in seven sections, covering key documents, descriptions relating to conduct and omissions, the clarity and legibility of key documents and other information for students, policies on changes to courses, complaints processes, refund and compensation policies and fake reviews.

    The first of those picks up much of the casework that it’s been referring to National Trading Standards – clauses that deny students the ability to offset payments due to provider failures, clauses that allow providers to withdraw offers at their discretion, particularly due to oversubscription, penalties for withdrawing or unmet obligations, and those that give universities the ability to terminate contracts or define terms at will.

    There’s also stuff on contracts that limit students’ access to legal recourse or impose restrictive dispute resolution processes, those that allow providers to transfer their obligations to other entities without student consent, and ones that allow a provider to determine whether the services supplied conform with the contract.

    In the actions and omissions bit, there’s claiming OfS registration or the right to use the term “university” without permission; offering degrees without appropriate authority or contracts; falsely asserting validation, accreditation, or endorsement by another body; displaying unauthorised logos, trust marks, or quality marks; and making definitive claims about future registration, university status, or authorisations that have not been granted.

    Pleasing to these eyes at least is also advertising or promoting courses, services, or facilities without disclosing reasonable doubts about the provider’s ability to deliver them; intending not to deliver what was advertised and/or planning to provide an alternative, and applying pressure to force immediate decisions, such as falsely claiming that an offer or its terms are available for a limited time only, depriving students of the opportunity to make an informed choice.

    There’s also communicating with prospective students in a non-English language without disclosing that services will be provided in English (!), presenting legal rights as unique features of the provider (!!) and using paid media content to promote services without clearly identifying it as advertising (!!!). It all goes on.

    In fact this list gets better as you move down it. Publishing false or inaccurate information about market conditions or competitors to induce students to sign contracts, offering prizes or rewards without delivering them or without disclosing associated costs, and falsely describing services as free when hidden costs exist are in there too – as well as making persistent, unwanted contact with applicants or students through various communication channels – defined partly in reference to harassment legislation.

    Maybe you work in a provider where you assume that the further down that list you get, the less likely it is that any of that happens. If you’re paying agents – either domestically or internationally – I can pretty much assure you that there’s a real iceberg below that tip.

    Clarity and legibility covers off documents that are hard to read or use unclear language, or fail to specify how they apply to different time periods or categories of students. Complaints unfairness includes strict time limits, no clear contact point, a lack of clear and reasonable timescales, and the one derisory mention of the Office of the Independent Adjudicator’s complaints scheme.

    And the section on changes hedges its bets a bit – there has to be clear stuff on the circumstances where changes may occur (like alterations to course content, qualifications, mode of study, teaching location, and fees), measures to address the needs of specific student groups, such as those with accessibility needs, and those policies must ensure that all students are treated fairly if such changes are implemented. Examples of where providers reserve too much of a right to make changes after the fact (“but all of those optional modules that you chose here for were not material”, and so on) are missing in action.

    Oh – and refund and compensation policies have to clearly outline the circumstances under which students are entitled to refunds or compensation (along with the methods used to calculate both!), and picking up some of that DMCC 2024 stuff, fake reviews are called out too – which include falsely claiming authorship by a student, concealing incentives provided for reviews, manipulating reviews by hiding or removing negative ones, and not taking reasonable steps to prevent or remove fake reviews.

    But could you forgive yourself

    Some other aspects of note. OfS expects all providers to comply with the law and as a starter any provider found not to have done so gets that “not fair” stamp. That includes consumer protection law, the Education Reform Act 1988 (unrecognised degrees), the Companies Act 2006 (failure to comply with a Secretary of State direction to change a company name, or a name giving misleading indication of activities).

    It’s also chucking in the Protection from Harassment Act 1997 to address circumstances where a provider imposes academic sanctions for non-payment of non-tuition fee debts, the thing that originally led the then Office for Fair Trading to start thinking about the way consumer law applied to students in the first place in the last decade.

    Of particular interest is scope. It covers relationships with current, prospective, and former students – the first and third of that list theoretically pick up rights that they often don’t have now. It obviously applies to all modes and levels of study, including online, face-to-face, or hybrid delivery. It naturally extends to providers operating through partnerships or intending to do so. But it also includes ancillary services and the provision of student information – including marketing and advertising.

    Ancillary services are defined here as services provided between a provider and a student as part of their higher education experience, including library services, disability support, scholarships, accommodation, and sports facilities:

    These services can influence a student’s decision on where to study and their overall higher education experience. Unclear or inaccurate information about these services may affect a student’s choice of provider or course, while unclear or unfair terms of service may negatively impact their experience.

    This is very good news for students who, from experience, are often told that stuff on or adjacent to that list can be cut because it’s not “part of the contract” or “on the CMA material information list” (it’s in the footnotes, actually). It should make it much harder to slash that intercampus bus, or cut 24 hour libraries down to 12.

    I stand in front of you

    What’s that you say? What happens to student protection plans? I’ve written extensively on the failure of that regime on the site before, suffice to say that the Higher Education and Research Act still mentions them, and OfS’ way around that is to argue that Condition C4, introduced in 2021, allows it to issue student protection directions if there is a material risk of a provider ceasing higher education provision – so C3 (have an SPP) is being deleted, and instead the suite of documents it will look at in pursuit of all of the above will, in effect, constitute a provider’s student protection plan.

    This makes lots of sense – SPPs were inconsistent, protections were assessed on OfS’ judgement of provider risk rather than the granularity pockets of students face in a large provider, and in theory means consistency from their point of view.

    So the silly SPP “risk assessment” goes – the one that right now probably says your university is swimming in cash as it announces a round of redundancies – and instead all of the above will have to appear on a single webpage to allow a “one stop shop” for students.

    You might also wonder where that strategy proposal has gone – the one that Jo Johnson proposed before OfS was born, and the one that Gavin Williamson proposed too – a “model contract” that sets out students’ rights and obligations, alongside the obligations of providers. It’s being parked for now as a potential addition:

    We may therefore explore development work in this area through further discussion and engagement with the sector, outside the current consultation process and alongside, rather than instead of, the introduction of a new initial condition of registration.

    On reflection, one glaring omission in here concerns what a provider can and can’t do when it comes to fee increases for continuing students – a cynic might argue that that’s controversial enough right now without OfS wading in and… protecting students. But given Ofcom has now banned in-contract price increases altogether, it does look like a huge hole.

    The other thing I’m surprised to see missing is the protection aspects of progression. There are plenty of providers that advertise a “BA in Wonkhe studies with an integrated foundation year” which technically and internally consists of an FY and a degree course – where the closure of the degree course seems to not trigger the same protections for those left high and dry as a second or third year disappearing. See also students who were “sold” a UG on the basis of progression to a vital PGT qualification.

    It’s also disappointing to see little mention of the sort of pressure that students can be under to make what the CMA, in its draft guidance on the DMCC, would call a “transactional decision” like agreeing to a (contract) variation. CMA’s definition of consumer vulnerability and its insistence than in practice, offering students the chance to exit a contract if they’re not happy with changes is not one most can make is a huge issue across the sector right now – and both is and will be a big driver of those “dishonesty” and “unfairness” perceptions that OfS leads the consultation off with. The lack of mention of the issues in the ongoing Student Group Claim – especially when OfS was pontificating about those issues during Covid – is wild.

    The single mention of the Office of the Independent Adjudicator (OIA) is also one to ponder on – partly because it’s the OIA that has tended to take the lead on judging (conceptually at least) fairness for students. Even if we set aside the politics, it won’t help for two sets of guidance to be floating around on what “fairness” means in practice – and students surely deserve these two grown-ups getting in a room to reconcile their advice on rights.

    One other thing that continues to vex me about the proposals and the approach is the obsession with OfS’ powers over student power. Some of this sort of stuff is about providers doing the right thing – but so much of it is about students understanding their rights, so that when someone says “well all those optional modules aren’t contractual”, they can put up a fight.

    It really wouldn’t be hard for OfS to write in something similar to that which we saw in Poland recently – where it’s the law that SUs are given the support to tell students about their rights (and responsibilities) in a way that barely goes near the catnip of consumerism. Beyond the wording of policies, some students are going to be treated unfairly sometimes – steps that ensure they know it beyond a feeling are surely a precursor to effective regulation. It’s hard to ever accept OfS announcements about student focus or student empowerment without that shift in approach that other regulators seem to understand.

    As such, the framing of it all is a bit odd given, as I say, this is being proposed as an initial rather than an ongoing condition of registration at this stage – sat within this need to announce what it’s doing about a growing backlog of applications. Some of the wording only really makes sense in terms of what providers do in practice, not what some PDF says on a website. We’re left assuming that what’s in here will, at some later date, apply beyond the day OfS says yes or no to a new provider – but even critiquing that appears to be outside of the scope of the consultation.

    It’s certainly interesting for OfS to be consulting providers, SUs and students and students on stuff that won’t apply to most of them, but might, in a slightly different way, apply them at an unspecified future time.

    Overall, this looks like great news for students – finally, an education regulator properly thinking through the ways in which students are treated unfairly. But to return to the astonishing aspect of all of this – what is being proposed here is one set of rights for students in a new(ly registering) provider, and another set of much weaker ones for everyone else, all in the name of “fairness”, at just the point that providers are under pressure to not deliver on some of the promises they made to students.

    The lack of justification or explanation for that is alarming – and while I often do my best to not speculate or attribute motive, it would be hard for students braving a read of this to conclude anything other than OfS has resolved that the financial sustainability horse needs to have fully bolted before the regulatory framework stable door is closed in their interests.

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  • EEOC Issues Long-Awaited Regulations on Implementation of the Pregnant Workers Fairness Act – CUPA-HR

    EEOC Issues Long-Awaited Regulations on Implementation of the Pregnant Workers Fairness Act – CUPA-HR

    by CUPA-HR | April 17, 2024

    On April 15, 2024, the Equal Employment Opportunity Commission issued its long-awaited final regulations and interpretative guidance on the implementation of the Pregnant Workers Fairness Act (PWFA). The EEOC states in its press release that the final rule is intended to offer “important clarity that will allow pregnant workers the ability to work and maintain a healthy pregnancy and help employers understand their duties under the law.” It provides guidance to employers and workers “about who is covered, the types of limitations and medical conditions covered, and how individuals can request reasonable accommodations.” The regulations will be published in the Federal Register on April 19 and go into effect 60 days later.

    The PWFA, which was signed into law in December 2022, requires most employers with 15 or more employees “to provide reasonable accommodations to a qualified employee’s or applicant’s known limitations related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions, absent undue hardship on the operation of the business of the covered entity.” It passed Congress with strong bipartisan support.

    Known Limitations

    Under the regulation, “limitations” include both physical and mental conditions related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions. The regulations specify that the definition of a limitation “shall be construed broadly to the maximum extent permitted by the PWFA.” A limitation “may be a modest, minor, and/or episodic impediment or problem” and can be related to current or past pregnancies, potential or intended pregnancies, and labor and childbirth.

    The examples of limitations provided in the rule include miscarriage or stillbirth, migraines, lactation, postpartum depression, and pregnancy-related episodic conditions, such as morning sickness, but the list is not intended to be exhaustive. The limitation may be “a need or a problem related to maintaining [the worker’s] health or the health of the pregnancy,” and it “need not be caused solely, originally, or substantially by pregnancy or childbirth.” Related medical conditions can include conditions that existed before pregnancy or childbirth but are exacerbated by the pregnancy or childbirth.

    The employee or their representative must communicate the limitation to the employer to receive a reasonable accommodation. The employee and employer should engage in an interactive process to determine if a worker’s limitation qualifies for a reasonable accommodation and the appropriate accommodation.

    Reasonable Accommodations

    Under the final rule, “reasonable accommodations” have the same definition as under the Americans with Disabilities Act. They include modifications or adjustments to the application process, to the work environment or how the work is performed, and that allow the employee to enjoy equal benefits and privileges of employment as are enjoyed by similarly situated employees without known limitations. It also includes modifications or adjustments to allow a covered employee to temporarily suspend one or more essential functions of the job.

    The rule provides several examples of reasonable accommodations that may be appropriate under the act. These include but are not limited to additional breaks, allowing the worker to sit while they work, temporary reassignment or suspension of certain job duties, telework, or time off to recover. Leave can be requested even if the employer does not offer leave as an employee benefit, the employee is not eligible for the employer’s leave policy, or the employee has used up their allotted leave under the employer’s policy.

    Reasonable accommodations are limited to the individual who has a PWFA-covered limitation; it does not extend to an individual who is associated with someone with a qualifying limitation or someone with a limitation related to, affected by, or arising out of someone else’s pregnancy, childbirth, or related medical condition. The regulations specifically clarify that “time for bonding or time for childcare” are not covered by the PWFA.

    Undue Hardship

    The rule explains that an employer does not have to provide a reasonable accommodation if it would cause an “undue hardship,” or a significant difficulty or expense. The rule includes a variety of factors that should be considered when determining if a reasonable accommodation would impose an undue hardship, including the nature and net cost of the accommodation; the overall financial resources of the facility or covered entity; the type of operations of the covered entity; and the impact of the accommodation on operations, including on the ability of other employees to perform their duties or the facility’s ability to conduct business.

    The rule provides several factors to consider when analyzing whether an accommodation involving the temporary suspension of essential functions of the position qualifies as an undue hardship. These include the length of time the employee will not be able to perform the essential function; whether there is work for the employee to accomplish; the nature of the essential function; the employer’s history of providing temporary suspensions to other, similarly situated employees; whether other employees can perform the functions; and whether the essential functions can be postponed.

    Other Provisions

    The rule also encourages “early and frequent communication between employers and workers” in order “to raise and resolve requests for reasonable accommodation in a timely manner.” Employers are also instructed that they are not required to request supporting documentation when an employee asks for a reasonable accommodation; they should only do so when it is reasonable under the circumstances.

    Controversies Surrounding the Regulations

    While the PWFA was passed by Congress with strong bipartisan support, the EEOC has faced significant pushback about the implementing regulations.

    The EEOC’s delay in issuing these regulations caused considerable frustration from employers. The PWFA went into effect in June 2023, which was when employers were required to comply with the law and the EEOC began accepting claims of discrimination under the act. Without the implementing regulations, however, employers had no certainty as to how to comply, leaving them exposed to potential liability.

    The most significant criticism stemmed from the regulation’s implications around abortion. In fact, of the nearly 100,000 comments the EEOC received in response to its notice of proposed rulemaking on the regulations, over 96,000 discussed the regulation’s inclusion of abortion. The final rule clarifies that “having or choosing not to have an abortion” qualifies as a medical condition under the regulations. Several Republican members of Congress accused the EEOC of using the regulations to further the Biden administration’s pro-choice agenda. EEOC Chair Charlotte Burrows, however, defended the language, saying it is consistent with legal precedent and the agency’s interpretations of other civil rights statutes under their jurisdiction. The regulation clarifies that employers will not be required to pay for abortions or travel-related expenses for an employee to obtain an abortion. The EEOC specifies they expect the most likely accommodation related to abortion will be leave to attend a medical appointment or recover from a procedure. Several conservative organizations are threatening legal action against the final rule.

    Litigation Challenging the PWFA

    On February 27, 2024, a federal district court in Texas ruled that the House of Representatives lacked a quorum when it passed the PWFA, because over 200 representatives voted by proxy. The Constitution required that a quorum be present for the House to conduct business, but in response to the COVID-19 pandemic, the House allowed for proxy voting. The court found Congress violated the Constitution when it passed the law and blocked enforcement of the act against the state of Texas and its agencies. The law is in effect elsewhere in the United States, but other legal challenges may follow Texas’s approach.



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  • December Policy Roundup: Paid Leave Policy, Pregnant Workers Fairness Act Regulations, and Workforce Development Initiatives – CUPA-HR

    December Policy Roundup: Paid Leave Policy, Pregnant Workers Fairness Act Regulations, and Workforce Development Initiatives – CUPA-HR

    by CUPA-HR | January 10, 2024

    Through December and into the new calendar year, federal government leaders kept busy with Congressional hearings and markups, new legislation, and proposed and final rules focusing on issues that may be of significance to higher education HR professionals. CUPA-HR tracked several actions from both Congress and federal agencies on issues including paid family leave, short-term Pell Grants, the Pregnant Workers Fairness Act, and workforce development.

    House Education and Workforce Committee Markup

    On December 12, 2023, the House Committee on Education and the Workforce held a full committee markup on H.R. 6585, the Bipartisan Workforce Pell Act, and H.R. 6655, A Stronger Workforce for America Act.

    The Bipartisan Workforce Pell Act aims to amend the Higher Education Act of 1965, allowing students to use Pell Grants for eight-week or longer educational programs. This bill also establishes quality control measures for Pell initiatives, enabling higher education institutions to participate if they meet specific criteria. The committee voted to move the legislation out of committee with 37 members voting in favor and 8 members voting against the bill.

    The next bill, A Stronger Workforce for America Act, seeks to renew and enhance the Workforce Innovation and Opportunity Act (WIOA). Originally established in 2014, WIOA has been extended through yearly appropriations since fiscal year 2021. The bill incorporates multiple measures to modernize WIOA, bolstering the country’s workforce development to better equip and retain workers. The bill passed through the committee with bipartisan support; 44 members voted in favor of and only one member voted against it.

    Paid Leave Request for Information

    On December 13, the Congressional Bipartisan Paid Family Leave Working Group published a Request for Information (RFI) for diverse stakeholder input to aid in the expansion of access to paid parental, caregiving, and personal medical leave nationwide. The members encouraged interested stakeholders to submit letters that answer these ten questions on the role the federal government can play in creating a national paid leave program.

    Responses must be submitted by January 31, 2024, and can be directed to [email protected], [email protected], [email protected], and [email protected]. CUPA-HR will continue to track developments and intends to collaborate with associate organizations to submit feedback on an as-needed basis.

    National Apprenticeship System Enhancement Proposed Rule

    On December 14, the Department of Labor (DOL) unveiled a proposed rule to modernize the regulations for Registered Apprenticeship programs. The 779-page proposal focuses on provisions to create “safeguards for apprentices to ensure that they have healthy and safe working and learning environments as well as just and equitable opportunities throughout their participation in a registered apprenticeship program,” while also creating baseline requirements for career and technical education apprenticeships, which would target high school and postsecondary students to programs that align more closely with programs found at institutions of higher education.

    DOL is providing a 60-day comment period for the proposed rule, which will commence once the regulation is posted in the Federal Register. CUPA-HR is analyzing the rule and will coordinate with other higher education associations as needed to file comments.

    Federal Transit Authority General Directive on Assaults on Transit Workers

    On December 20, the Department of Transportation (DOT)’s Federal Transit Administration (FTA) proposed a General Directive to address the ongoing national safety risk concerning assaults on transit workers. Transit agencies falling under FTA’s Public Transportation Agency Safety Plans directive would be instructed to conduct safety risk assessments, identify mitigation strategies, and report discoveries to FTA. Per the Bipartisan Infrastructure Law, transit agencies operating in urban areas must collaborate with the joint labor-management safety committees to reduce safety hazards.

    The deadline for submitting comments in the Federal Register is February 20, 2024, but late submissions may be considered. CUPA-HR is working with members and other higher education associations to determine the impact that this directive may have on transportation and HR services at institutions of higher education.

    Regulations to Implement the Pregnant Workers Fairness Act

    On December 27, the Equal Employment Opportunity Commission (EEOC) sent its final rule to implement the Pregnant Workers Fairness Act (PWFA) to the Office of Information and Regulatory Affairs (OIRA) for review prior to its publication in the Federal Register. The final rule will likely look very similar to the proposed rule that was issued in August 2023, which provides a framework for how the EEOC plans to enforce protections granted to pregnant workers under the PWFA.

    The EEOC was tasked by law with finalizing regulations to implement the PWFA by December 29, 2023. Given the missed deadline, OIRA may move quickly on its review of the regulations, and we could see the final rule published sometime between late January and late February. CUPA-HR is continuing to monitor for any updates and will keep members apprised of any new details that may arise in the final rule.



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  • EEOC Issues Proposed Rule to Implement Pregnant Workers Fairness Act Protections – CUPA-HR

    EEOC Issues Proposed Rule to Implement Pregnant Workers Fairness Act Protections – CUPA-HR

    by CUPA-HR | August 28, 2023

    On August 7, the Equal Employment Opportunity Commission (EEOC) issued a proposed rule to implement the Pregnant Workers Fairness Act (PWFA). The proposed rule provides a framework for how the EEOC plans to enforce protections granted to pregnant workers under the PWFA.

    In December, the PWFA was signed into law through the Consolidated Appropriations Act of 2023. The law establishes employer obligations to provide reasonable accommodations to pregnant employees so long as such accommodations do not cause an undue hardship on the business, and makes it unlawful to take adverse action against a qualified employee requesting or using such reasonable accommodations. The requirements of the law apply only to businesses with 15 or more employees. 

    Purpose and Definitions 

    Under the proposed rule, the EEOC states that employers are required to “provide reasonable accommodations to a qualified employee’s or applicant’s known limitation related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions, unless the accommodation will cause an undue hardship on the operation of the business of the covered entity.” 

    Most definitions included in the EEOC’s proposed regulations follow the definitions provided under the Americans with Disabilities Act (ADA). The proposed rule, however, expands upon the definition of a “qualified employee or applicant” to include an employee or applicant who cannot perform an essential function of the job so long as they meet the following criteria: 

    • Any inability to perform an essential function is for a temporary period 
    • The essential function could be performed in the near future 
    • The inability to perform the essential function can be reasonably accommodated 

    The rule continues by defining “temporary” as the need to suspend one or more essential functions if “lasting for a limited time, not permanent, and may extend beyond ‘in the near future.’” Accordingly, “in the near future” is defined to extend to 40 weeks from the start of the temporary suspension of an essential function.  

    Additionally, the terms “pregnancy, childbirth, or related medical conditions” include a non-exhaustive list of examples of conditions that fall within the statute, including current or past pregnancy, potential pregnancy, lactation, use of birth control, menstruation, infertility and fertility treatments, endometriosis, miscarriage, stillbirth, and having or choosing not to have an abortion. The proposed rule specifies that employees and applicants do not have to specify the condition on the list or use medical terms to describe a condition to receive an accommodation.  

    Reasonable Accommodations 

    The proposed rule states that requests for an accommodation should both identify the limitation and indicate the need for an adjustment or change at work. The rule adopts the interactive process for approving and adopting reasonable accommodations for employees or applicants as implemented under the ADA, meaning employers and the qualified employee or applicant can work together to reach an agreement on an appropriate accommodation. 

    The proposed rule also offers a non-exhaustive list of examples of reasonable accommodations that may be agreed upon during the interactive process. These include frequent breaks, schedule changes, paid and unpaid leave, parking accommodations, modifying the work environment to make existing facilities accessible, job restructuring and other examples.  

    Additionally, the proposed rule introduces “simple modifications,” which are presumed to be reasonable accommodations that do not impose an undue burden in almost all cases. The four simple modifications proposed are: 

    • Allowing employees to carry water and drink, as needed, in the work area 
    • Allowing employees additional restroom breaks 
    • Allowing employees to sit or stand when needed 
    • Allowing employees breaks, as needed, to eat and drink 

    Supporting Documentation 

    The proposed rule states that covered employers are not required to seek documentation to prove the medical condition or approve an accommodation, further stating that the employer can only request documentation if it is reasonable in order to determine whether to grant an accommodation for the employee or applicant in question. Under the regulations, “reasonable documentation” is that which describes or confirms the physical condition; that it is related to, affected by, or arising out of pregnancy, childbirth or related medical conditions; and that a change or adjustment at work is needed for that reason. Examples of situations where requesting documentation may be determined to be unreasonable include when the limitation and need for an accommodation are obvious; when the employee has already provided sufficient documentation; when the accommodation is one of the four “simple modifications”; and when the accommodation is needed for lactation. 

    Remedies and Enforcement 

    The proposed rule establishes the applicable enforcement mechanisms and remedies available to employees and others covered by Title VII of the Civil Rights Act of 1964 for qualified employees and applicants covered under the PWFA. The rule also proposes several anti-retaliation and anti-coercion provisions to the list of protections granted to those covered by the PWFA. 

    Next Steps 

    The EEOC’s proposed rule marks the agency’s first step toward finalizing PWFA regulations. Although the timing is uncertain, the EEOC will likely aim to issue the final regulations by December 29 — the deadline Congress gave the agency to finalize a rulemaking to implement the law. Notably, however, the PWFA went into effect on June 27, meaning the EEOC is now accepting violation charges stemming from PWFA violations without having a final rule implemented. 

    The EEOC invites interested stakeholders to submit comments in response to the proposed rule by October 11. Comments will be considered by the agency before issuing its final rule for the PWFA.  

    CUPA-HR will keep members apprised of any activity relating to the PWFA regulations.



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  • Senate Holds Markup of the Paycheck Fairness Act, Healthy Families Act and PRO Act – CUPA-HR

    Senate Holds Markup of the Paycheck Fairness Act, Healthy Families Act and PRO Act – CUPA-HR

    by CUPA-HR | June 28, 2023

    On June 21, the Senate Health, Education, Labor, and Pensions (HELP) Committee held a markup of three labor bills championed by Democrats: the Paycheck Fairness Act (S. 728), the Healthy Families Act (S. 1664), and the Protecting the Right to Organize (PRO) Act (S. 567). The three bills passed out of the committee by a vote of 11-10 along party lines, demonstrating the challenge these bills will face to be passed into law.

    Paycheck Fairness Act

    The Paycheck Fairness Act aims to address wage discrimination on the basis of sex. More specifically, the bill limits an employer’s defense that a pay differential is based on a factor other than sex, enhances non-retaliation prohibitions, prohibits employee contracts or waivers banning them from disclosing wage information, and increases civil penalties for violations of equal-pay provisions.

    Ranking Member Bill Cassidy (R-LA) introduced several amendments to the proposed Paycheck Fairness Act, including an amendment to substitute the text with the Wage Equity Act. ​​The Wage Equity Act would protect employers’ ability to use bona fide business-related factors other than sex to set workers’ compensation and allow workers to voluntarily disclose their prior salary histories when they choose to do so. The amendment was ultimately defeated by a vote of 9-12, with Sen. Rand Paul (R-KY) joining Democrats in voting against the amendment.

    Healthy Families Act

    The Healthy Families Act permits employees of businesses with 15 or more workers to accrue up to seven job-protected paid sick days each year to recover from an illness and provide care to a sick family member, among other health-related activities. For employers with 15 or fewer employees, the bill would allow employees to earn up to seven job-protected unpaid sick days each year to be used for the same purposes. Under the bill, workers would accrue one hour of sick leave for every 30 hours worked, with a cap of 56 hours that may be raised by the employer.

    Cassidy offered two amendments to the bill that would exempt employers from the requirements of the bill if they already offer paid sick leave that is at least as comprehensive as the seven-day requirement or if they are religious employers denying sick leave taken for reasons that violate their religious beliefs. Both amendments were struck down by Democrats.

    PRO Act

    The PRO Act is a massive labor reform bill designed to increase union density. The bill includes several provisions that would overhaul existing labor laws — including the National Labor Relations Act (NLRA), the Taft-Hartley Act, and the Labor-Management Reporting and Disclosure Act — and may impose burdens on both employers and employees. Such provisions include:

    • codifying the National Labor Relation Board (NLRB)’s Browning-Ferris Industries joint-employer standard;
    • imposing the “ABC test” into the NLRA for classifying employees, making it more difficult for workers to operate as independent contractors;
    • preempting state right-to-work laws that prevent forced unionization;
    • prohibiting arbitration agreements in employment contracts;
    • revoking attorney-client confidentiality for employers; and
    • facilitating secondary boycotts by barring claims against unions that conduct them.

    The PRO Act has been strongly criticized by congressional Republicans over the past several congressional sessions, and committee Republicans offered 35 amendments to modify the current text of the PRO Act. All 35 amendments were ultimately defeated when brought to a vote.

    Looking Ahead

    Despite the passage of these bills through the Senate HELP Committee, they are unlikely to be signed into law. Due to their partisan support, the bills are unlikely to garner enough support to bypass the 60-vote filibuster on the Senate floor and to be considered in the Republican-controlled House.

    CUPA-HR will keep members apprised of future developments on these bills.



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  • Some thoughts on fairness and student loans

    Some thoughts on fairness and student loans

    With the Comprehensive Spending Review due next Wednesday, I thought it might be worth making some general points about student loans (in anticipation of potential changes to repayment thresholds and other parameters).

    I do not think student loans are a good vehicle for redistributive measures.

    As I told a couple of parliamentary committees in 2017, the current redistributive aspects are an accidental function of the decision to lower the financial reporting discount rate for student loans from RPI plus 2.2 percent to RPI plus 0.7. Such a downwards revision elevates the value of future cash repayments and in this case it meant that the payments projected to be received from higher earners began to exceed the value of the initial cash outlay.

    The caveat here: in the eyes of government. That is the government’s discount rate, not necessarily yours. One of the reasons I favour zero real interest rates over other options is that it simplifies considerations of the future value of payments made from the individual borrower’s perspective.

    Originally, student loans were proposed as a way to eliminate a middle class subsidy – free tuition – and have now become embedded as a way to fund mass, but not universal, provision.

    I believe that if you are concerned about redistribution, then it is best to concentrate on the broader tax system, rather than focusing solely on the progressivity or otherwise of student loans. You can see from the original designs for the 2012 changes that the idea of the higher interest rates were meant to make the loan scheme mimic a proportionate graduate tax and eliminate the interest rate subsidy enjoyed by higher earners on older loans. The original choice of “post-2012” student loan interest rates of RPI + 0 to 3 percentage points was meant to match roughly the old discount rate of RPI plus 2.2%. Again, see my submission to the Treasury select committee for more detail.

    I will just set out a few illustrative examples here as to why some of the debates about fairness in relation to repayment terms need a broader lens.

    It is often observed that two graduates on the same salaries are left with different disposable incomes, if one has benefited from their parents, say, paying their tuition fees and costs of living during study so that they don’t lose 9 per cent of their salary over the repayment threshold (just under £20,000 per year for pre-2012 loans; just over £27,000 for post-2012 loans).

    That’s clearly the case.

    But the parents had to pay c. £50,000 upfront to gain that benefit for their child. And it is by no means certain that option is the best use of such available money. Only a minority of borrowers go on to repay the equivalent of what they borrowed using the government’s discount rate, and as an individual you should probably have a higher discount rate than the government. You also forego the built-in death and disability insurance in student loans.

    Payment upfront is therefore a gamble, one where the odds differ markedly for men and women. (See analyses by London Economics and Institute for Fiscal Affairs for the breakdowns on the different percentages of men and women who do pay the equivalent of more than they borrowed.)

    If a family has the £50,000 spare (certainly don’t borrow it from elsewhere), then the following options are likely more sensible:

    • pledge to cover your child’s rent until the £50,000 runs out: this allows student to avoid taking on excessive paid work during study and will boost their disposable income afterwards;
    • provide the £50,000 as a deposit towards a house purchase;
    • even put the £50,000 in a pot to cover the student loan repayments as they arise;
    • etc.

    In two of those cases, you’ll have a useful contingency fund too.

    All strike me as better options than eschewing the government-subsidised loan scheme.

    Moreover, those three options remain in the event of a graduate tax or the abolition of tuition fees.

    That fundamental unfairness – family wealth – isn’t addressed by changing the HE funding system. (I write as someone who helped craft the HE pledges in Labour’s 2015 and 2017 manifestos).

    In many ways, the government prefers people to pay upfront because it reduces the immediate cash demand.  From that perspective, upfront payment works as a form of voluntary wealth taxation (at least in the short-run). Arguably, those who pay upfront have been taxed at the beginning and are gambling on outcomes that mean that future “rebates” exceed the original payment for their children.

    Perhaps this line of reasoning opens up debates about means-testing fees and emphasises the need to restore maintenance grants … but really it points to harder problems regarding the taxation of intergenerational transfers and disposable wealth.

    I am not a certified financial advisor so comments above are simply my opinions. You should not base investment decisions on them.

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