Tag: Issues

Communicate, repeat and compensate – OfS issues principles over industrial action
University and College Union (UCU) staged a national marking and assessment boycott (MAB) – delaying graduations, job starts, and transitions to postgraduate study.

UCU members took the action to tackle disputes including headline pay, gender and minority ethnic pay gaps, staff workload and the casualisation across the sector.

Whenever there’s industrial action, the hope in Carlow St is that students will see the bigger picture – but this time around, at least for some students in some universities, the impact was significant. At the time, UCU estimated that 30,000 students were unable to graduate on time or were affected in some other way.

In the aftermath, the Commons Education Committee held a mini inquiry to investigate the impact – it wrote to the then Conservative government to raise concerns about the lack of data, the role of the Office for Students (OfS) and the lack of clarity over students’ rights, and the eventual (post election) reply was predictably weak.

Now, two years on, OfS has published research that was commissioned to develop an understanding of what the impacts were from a student perspective – along with guidance for institutions on protecting the interests of students during industrial action, and a webinar event planned for mid-May on the regulator’s expectations on how providers should support students before, during and after industrial action.

OfS first ran a text-based focus group via YouGov in July 2024 that discussed short- and long-term impacts, what information they got from their institutions, and how those institutions handled the situation. A quantitative survey followed that gathered 763 responses (279 undergrads, 284 postgrads, and 200 graduates) that had been studying at impacted institutions during the boycott. You’d not be diving into demographic splits on that sample size.

The polling drilled into how the industrial action affected their academic lives – immediately and over time – along with the comms they received from their universities, and how they viewed their rights as students.

On the top line

In a “topline” results report and associated student insights brief, we learn that the industrial action caused delayed or unmarked coursework (53 per cent) and exams (46 per cent), reduced lecture time (68 per cent), and decreased contact with staff.

Most impacted students reported negative effects on academic work quality (49 per cent) and grades (42 per cent). The MAB’s psychological impact was significant – with 41 per cent reporting increased stress, 32 per cent experiencing poorer mental health, and 15-18 per cent noting negative effects on their social lives.

One student is quoted as follows:

I was waiting for the result of a resit that the progression of my masters’ depended upon but it was delayed so much I had to pay for the next module and would not get the results until halfway through.

International students faced particular challenges, with visa uncertainties arising from delayed results and qualifications. Some students couldn’t attend graduation ceremonies because their results came too late:

I didn’t manage to get graduation tickets in time due to how late results were, so I didn’t have a graduation ceremony.

Communication varied considerably across institutions – with most updates coming through emails (65 per cent) rather than during lectures (22 per cent). Students rated information from individual lecturers (78 per cent satisfaction) more highly than university-wide communications (64 per cent satisfaction).

Many students in the focus group:

…were not told which of their modules would be affected, or when they would get their marks and feedback.

OfS says that the institutional response was inconsistent across the higher education sector. Students directly affected by the MAB expressed significantly higher dissatisfaction (54 per cent) with their university’s handling of the situation compared to unaffected students (18 per cent). Just 46 per cent of affected students received alternatives or compensation, primarily through “no detriment” policies adapted from those developed during the Covid era (26 per cent).

Financial compensation and rights awareness was low – with only 30 per cent knowing they could request it, and a mere 9 per cent successfully receiving any. The boycott also negatively impacted perceptions of education quality (38 per cent reporting a decrease) and value for money (41 per cent reporting a decrease), with one student noting:

I ended up with a [postgraduate diploma] instead of my MSc, and I came out with a merit instead of a distinction.

The brief does note that universities employed various mitigation strategies, including awarding interim degree classifications, guaranteeing minimum classifications, improving mental health support, reallocating marking responsibilities, and engaging with employers to request flexibility for affected graduates.

Were they OK? Some students felt their institutions responded well, others reported that the experience contributed to decisions not to pursue further studies or work in higher education, with 42 per cent reporting decreased trust in their universities.

Behind the screams

Much of that won’t come as a surprise – although the sheer scale of the suggested impacts, as well as their depth and breadth on individual students (esp rer mental health and international students) ought to invigorate debates about the morality of the tactic, and how universities handled it to limit legal or financial exposure.

Arguably of more interest is the letter and “regulatory statement” that accompanies the publication from John Blake, Director for Fair Access and Participation.

Re-stressing that it’s not OfS’ role to intervene in labour disputes, Blake expresses concern about how strikes and the MAB disrupted students’ academic experiences, notes inconsistencies in institutional responses, sets out an aim to establish clearer expectations for fair treatment for all students in any similar future scenarios.

And there’s a fascinating section on compensation:

We want to be clear that we don’t see compensation as a substitute for the holistic experience of intellectual, professional and personal development that a student should expect from their higher education. Institutions should continue to focus their efforts during industrial action on delivering the education that students expect. The inclusion of an expectation in relation to compensation does, though, reflect the rights students have under the Consumer Rights Act 2015.

Given that many students got neither, the clear implication is that a large number of students should have received both.

Six principles

The core of the guidance letter then manifests in six principles:
1. Providers must remove contractual terms that inappropriately limit liability to students during staff industrial action or other circumstances within the provider’s control, as these breach consumer protection law.
2. Effective contingency plans must be developed to minimise disruption to students during industrial action, ensuring plans are actionable, timely, and protect qualification integrity.
3. When implementing contingency plans, providers should prioritise education delivery by: first avoiding impacts on students; if not possible, making minimal changes; and if necessary, providing timely repeat performance of missed teaching or assessment.
4. Fair compensation must be paid when contingency plans fail to deliver promised aspects of student experience, particularly for missed teaching without timely replacement, delayed assessment marking, or delayed progression decisions affecting jobs or visa status.
5. Clear communication with students is essential, including transparent information about rescheduled activities or compensation, with proactive identification of eligible students rather than requiring them to submit claims.
6. Providers must submit reportable events about industrial action to the Office for Students (OfS) in accordance with established regulatory requirements.
It’s an interesting list. The first one on the inclusion of industrial action in so-called “force majeure” clauses in student contracts – which limit liability for events that are outside of the predictability or control of of providers – is a long-running passive-aggressive row between the Competition and Markets Authority (CMA) and OfS on one side, and providers on the other.

OfS has previously published a referral to National Trading Standards involving the University of Manchester’s contract – but my spreadsheet suggests that there’s a large number of providers that either haven’t seen that, or are digging in for a battle over it.

That may be partly because those sorts of clauses – and CMA’s advice on them (which OfS requires providers to pay “due regard to”) – are a key point of dispute in the ongoing Student Group Claim, the UCL portion of which won’t get to court until early 2026.

From a student point of view, if those clauses shouldn’t exist, the snail’s pace of enforcement on this is as baffling as it is frustrating.

There won’t be many providers that weren’t developing contingency plans, notwithstanding that they can always be improved – and the one-two-three-four punch of avoid, adjust, repeat or compensate reflects (and translates) the position under consumer law.

Of course some will argue that a legal duty to undertake any/all of those steps under consumer law depends on those force majeure clauses not existing or being unlawful – and as it stands there’s a major silent standoff that’s unhelpful.

Even if you just look at compensation, the survey fails to differentiate between compensation paid for breach of contract, and “goodwill” payments where no such breach has been accepted by providers. As far as I’m aware, the former was vanishingly rare.

The other issue, of course, is with punch three of four – where university managements satisfy themselves that once a dispute is over, teaching or support is rescheduled “because we told them to”, despite the fact that most heads of department find it hard to actually implement those instructions with UCU members.

The “proactive identification of eligible students” for “repeat performance” or compensation is interesting too – especially over the latter, providers have long relied on students having to make complaints in order to get redress. This not only depends on the breach of contract or not issue being resolved, it also raises questions for universities’ legal advisors and insurers about the relative risks of doing as John Blake says, or waiting for students to raise concerns.

But as well as all of that, there’s three things we ought to be surprised not to see.

What’s missing?

For a set of documents seeped in the translation of consumer protection to a higher education setting, there’s nothing on the extent to which any alternative arrangements in a MAB – especially alternative arrangements over marking – should still be carried out with reasonable skill and care. Academic judgement can’t be challenged, but only if that judgement has been carried out in the way we might expect it to be by people who know their onions. That was a major issue in the dispute for plenty of students, even if it wasn’t a big issue in the polling.

The second is the lack of answer to the questions raised both in the polling and by the Commons Education Committee – which concern students’ understanding of what their rights are. If OfS thinks that it can vaguely pressure providers into proactively identifying students entitled to wads of cash, it’s misunderstanding the countervailing pressures on providers in similar ways to those identified by Mills and Reeve over provider collapse. And as I often say on the site, good regulatory design considers how individuals come to understand (or access information) on their rights should they need to use them without having to access a regulator or complaints adjudicator – there’s nothing on any of that here.

But the third is the lack of a clear link to the regulatory framework, and the lack of any enforcement carried out over what must amount to failings. If the guidance is grounded in OfS’ rules, students might well say “well what action have you taken given that the problems were widespread?”

If it’s not grounded in OfS’ powers, providers might well say “well notwithstanding that we like to look nice, why would we magnify the efficacy of an industrial action tactic if we don’t really have to”.

It’s all very well for OfS to be “give them guidance” mode, but over this set of issues the financial impacts of compliance with something that sounds contested, and partly voluntary, could be huge both in an individual dispute and in the long-term. That all (still) needs bringing to a head.
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April 10, 2025
TEQSA can’t fix wage underpayment, VC pay issues: Governance inquiry
The National Tertiary Education Union (NTEU) has told the Education and Employment Senate Committee that the sector regulator doesn’t have the correct functions to address staff underpayments, amid calls it needs more power.

Union policy and research officer Kieran McCarron said there are two general issues with Tertiary Education Quality and Standards Agency (TEQSA) that impact staff.

“The threshold standards are too high-level and vague, especially when it comes to governance and staffing,” he told the Committee.

“The second issue is that either the enforcement powers are too weak, it’s too complicated for TEQSA to access them, or they’re just simply inappropriate. For example, deregistration is just inappropriate overkill to deal with the issues that our members face.

“Having everyone lose their jobs and the universities shut down doesn’t solve wage theft and it doesn’t help the community, so it’s not an appropriate power.”

He said there needs to be changes to TEQSA so it can “ensure compliance with appropriate penalties,” and better reflect current staff conditions.

TEQSA chief executive Mary Russell told the same Committee her body needs more powers to wrangle universities and help it to deal with staff-related issues, giving an example of a teaching issue that can’t currently be resolved by TEQSA under its existing powers.

“There’s actually already a legislative requirement that any person teaching in higher education needs to be engaged in continuing scholarship and research. That’s your traditional “40:40:20 academic.”

“How is it that at least half of the teaching performed in our universities is performed by casual staff who are hired on an hourly basis and who are only paid for the hours in which they are directly engaged with students?

“How is it being ensured that they’re performing scholarship and research – because they’re not paid to do that. There’s an assumption made that they’ll just do that in their own time, and that’s unpaid work. This is an example of an issue that TEQSA is aware of but doesn’t have any appropriate tools to deal with.”

Wage underpayment and financial management

Wage underpayments and high vice-chancellor pay are the two biggest money-related issues universities have.

The Fair Work Ombudsman Anna Booth later told the Committee her office has recovered $180.9m for 99,000 university employees as of February 28, 2025. The NTEU has estimated wage underpayments, paid or unpaid, are set to exceed $400m.

Fair Work Ombudsman Anna Booth said there are repeating factors as to why universities keep discovering underpaid staff. Picture: Martin Ollman

Ms Booth said the most common “trends” Fair Work sees when dealing with underpayments include: high numbers of casual staff; poor governance and management oversight practices; a lack of centralised human resources functions; pay related issues commonly dealt with by academic managers who lack appropriate expertise; and lack of investment in payroll and time-recording systems.

“Our investigations have largely concerned casual professional and academic staff and have largely included unpaid work – unpaid marking activities, lecture and tutorial attendance, and other student interactions – as well as the application of incorrect classifications, unpaid entitlements and the improper use of piece rates,” she told the Committee.

Universities Australia, which is the vice-chancellor’s membership group, in its submission said debate about VC salaries, which average $1m, are solely political and distract from issues of underfunding degrees and research.

“Debate over vice-chancellor salaries, for example, distracts from the conversation we need to have about funding our universities properly,” chief executive Luke Sheehy wrote.

“Their salaries are set by university councils. I don’t believe they should be the sole focus of parliamentarians, certainly not at the expense of the policies and funding needed to keep our universities strong.”

Related stories: La Trobe most recent uni to reveal it underpaid staff | Monash underpays $7.6m as ‘expert council’ on uni governance members announced

Greens senator Mehreen Faruqi, who disclosed she is an NTEU member, said she was “pretty outraged” when she read the UA submission.

“I think this debate is fundamental to how universities operate, especially given the exorbitant pay packets of executive staff and VCs on the one hand and the systemic wage theft, rampant casualisation and insecure work on the other,” she said.

Fear and secrecy

NTEU branch president at Federation University Dr Mathew Abbott said constant cuts and restructures throughout the sector has created a workplace culture that fears retribution.

“University staff fear for their livelihoods, and that creates a culture in which staff become more compliant and less likely to speak out,” he said.

“This is something I’ve tried to raise – the psychological toll it takes, the professional toll, and, of course, the impact of this on students.

“When staff are placed under this kind of pressure, along with other issues like workloads and so on, it has a flow-on effect to the quality of the education that we provide to our students.”

He said there is a “culture of secrecy” in university councils and senates, something NTEU member Professor Fiona Probyn-Rapsey from University of Wollongong also said is exacerbated by largely non-staff elected boards.

There were multiple calls made for university council meeting minutes to be available to all university staff.

“We have very little access to what university councils are discussing and how decisions are made. We don’t see minutes, and we barely get any interaction with university council members,” Professor Probyn-Rapsey said.

“They don’t operate in the same way that the rest of the university does – in a collegial manner – or in the way a university should be behaving.”

Management should also let staff have more say in teaching decisions, Professor Andrea Lamont-Mills, University of Southern Queensland NTEU branch president, added.

Professor Andrea Lamont-Mills is associate dean of research at UniSQ. Picture: Newswire

“Staff feel disempowered because they’re not using their expertise – it’s not valued, and their professionalism is not valued,” she said.

“It’s disempowering when you get excluded from decisions that actually impact you, or you have limited input into decisions that directly impact you.

“Our staff are highly skilled and highly knowledgeable, and they want to be part of developing decisions and coming up with solutions, yet they’re disempowered – they’re not able to do that.”
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March 17, 2025
Trump Issues Executive Order to Restrict Gender Ideology in the Federal Government

by CUPA-HR | January 22, 2025

On January 20, the Trump administration issued an executive order (EO) titled, “Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government.” The EO was one of several executive orders and actions published by the Trump administration on its first day in office.

The EO states that the United States government will recognize only two sexes — male and female — and defines sex as “an individual’s immutable biological classification as either male or female.” The definition continues to say that sex is “not a synonym for and does not include the concept of ‘gender identity.’” The executive order also defines “woman” and “girl” and “man” and “boy” to be adult and juvenile human females and males, respectively.

The EO orders the secretary of health and human services to provide guidance expanding on the definitions established in the EO. It also directs all federal agencies to use the definitions set forth in the order “when interpreting or applying statutes, regulations, or guidance and in all other official agency business, documents, and communications.” All federal agencies will also be directed to use the term “sex” and not “gender” when administering or enforcing sex-based distinctions in applicable federal policies and documents.

It also appears that the Trump administration hopes to codify these definitions into law through Congressional action. Specifically, the EO directs the assistant to the president for legislative affairs to provide the president proposed bill text to codify the definitions set in the order within 30 days.

The EO also discusses the Supreme Court’s decision in Bostock v. Clayton County, which held that Title VII of the Civil Rights Act of 1964 protects employees from discrimination on the basis of sexual orientation or gender identity. The EO states that the Biden administration argued that the Bostock decision “requires gender identity-based access to single-sex spaces under, for example, Title IX of the Educational Amendments Act,” which the Trump administration states is “legally untenable.” As such, the EO directs the U.S. attorney general to issue guidance to federal agencies to “correct the misapplication” of Bostock to “sex-based distinctions in agency activities.” The EO also directs the attorney general to issue guidance and assist federal agencies in protecting sex-based distinctions.

The EO directs all federal agencies to submit an update to the Trump administration on implementation of this order within 120 days. The update is required to include information on changes to agency documents and agency-imposed requirements on federally funded entities, including federal contractors, that were implemented to comply with the order. The head of each federal agency is also directed to rescind all guidance documents inconsistent with the requirements of the order, and the EO includes a partial list of documents that the administration deems as inconsistent, including several Department of Education guidance documents on Title IX and the Equal Employment Opportunity Commission’s 2024 Enforcement Guidance on Harassment in the Workplace.

Finally, the EO directs agencies to take “all necessary steps, as permitted by law, to end the federal funding of gender ideology” and to “assess grant conditions and grantee preferences” to “ensure grant funds do not promote gender ideology.”

Federal agencies will soon begin to take action and announce guidance to comply with the EO requirements. Institutions should therefore be aware of forthcoming guidance from the Department of Education on Title IX as a result of this EO. There could also be future ramifications for institutions that receive federal funds, including grants and contracts. CUPA-HR will continue to monitor for agency actions as well as any additional updates from the Trump administration as it relates to sex and gender-related policy.

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January 22, 2025
Biden Issues Historic Posthumous Pardon to Civil Rights Leader Marcus Garvey

In one of his final acts as president, Joe Biden granted a posthumous pardon to Marcus Mosiah Garvey Jr., the influential civil rights leader and founder of the UniversalMarcus Garvey Negro Improvement Association (UNIA), clearing his name of a 1923 mail fraud conviction that many have long viewed as unjust.

The pardon, announced just before the Martin Luther King Jr. holiday, came after years of advocacy from Howard University School of Law professors and students, led by Professor Justin Hansford, who worked closely with Garvey’s son, Dr. Julius Garvey.

“In the words of Dr. Martin Luther King, Marcus Garvey was ‘the first man of color in the history of the United States to lead and develop a mass movement,’” said Hansford, who published Jailing a Rainbow: The Unjust Trial and Conviction of Marcus Garvey last year. “He was convicted of mail fraud in a trial widely recognized as a miscarriage of justice.”

The pardon effort gained significant support from 21 members of Congress, primarily from the Congressional Black Caucus, who urged Biden to “honor his work for the Black community, remove the shadow of an unjust conviction, and further your administration’s promise to advance racial justice.” Last year, Diverse featured a podcast on the subject.

Garvey, Jamaica’s first national hero, was convicted in 1923 on one count of mail fraud related to his role as president of the Black Star Line shipping company. He received the maximum sentence of five years imprisonment and a $1,000 fine.

The UNIA founder was a pioneering advocate for human rights and Pan-Africanism, building a movement that reached 6 million members across 40 countries.

The presidential pardon marks the end of a century-long struggle to clear Garvey’s name. Previous attempts included congressional hearings in 1987 led by Representatives John Conyers and Charlie Rangel, who introduced resolutions to exonerate him.

The exoneration comes 84 years after Garvey’s death in 1940, affirming his innocence and recognizing his significant contributions to civil rights and human rights advocacy worldwide.

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January 19, 2025
Indiana governor issues executive order eliminating DEI

Indiana governor Mike Braun signed an executive order Wednesday eliminating diversity, equity and inclusion in all state agencies and replacing it with what he’s calling “MEI”—merit, excellence and innovation.

The order requires all executive branch state agencies to uphold the Supreme Court’s 2023 decision in Students for Fair Admissions vs. Harvard, which prohibited the consideration of race in college admissions, noting that “eliminating racial discrimination means eliminating all of it” and that equal protection applies “without regard to any differences of race, of color, or of nationality.”

Under the order, government offices cannot use state funds, property or resources to support DEI initiatives, require job candidates to issue DEI statements or “mandate any person to disclose their pronouns.” State agencies must review their individual programs and policies for compliance by April 30 and provide a written report to the governor by July 1.

The order also closes the government’s Office of the Chief Equity, Opportunity and Inclusion Officer, which was created in 2020 under Braun’s predecessor, Governor Eric Holcomb.

This makes Indiana the second state this year to eliminate DEI by executive order, following West Virginia.

Among the other executive orders Braun signed during his first week as governor was one requiring the state personnel office to review all job postings and eliminate degree requirements for positions where they’re not necessary.

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January 17, 2025
DHS Issues Final H-1B Modernization Rule

by CUPA-HR | December 18, 2024

On December 18, the Department of Homeland Security (DHS) published a final rule to modernize the H-1B visa program, finalizing changes first proposed in October 2023. The rule will take effect on January 17, 2025, introducing significant updates aimed at clarifying the requirements of the H-1B program and improving program efficiency, providing greater benefits and flexibility for petitioners and beneficiaries, and strengthening program integrity measures.

The final rule responds to comments from a variety of stakeholders, including concerns raised by CUPA-HR and others in a multi-sector joint comment letter signed by 74 organizations and a higher education-focused letter led by the American Council on Education (ACE). Both letters advocated for changes to the definition of a “specialty occupation” and other key areas to ensure the regulations better align with workforce needs. The final rule incorporates feedback from stakeholders and aims to provide clarity while maintaining program integrity.

Below are highlights of some noteworthy provisions in the final rule and next steps.

Revised Definition and Criteria for H-1B Specialty Occupations

The final rule modifies the definition of an H-1B specialty occupation in response to public comments, including those CUPA-HR signed onto in a multi-sector joint comment letter and a higher education-focused letter. DHS clarified that a degree or its equivalent must be “directly related” to the duties of the position, with “directly related” defined as having a logical connection between the degree and the job duties. This change addresses concerns raised in comments that the proposed language could have been misinterpreted to require adjudicators to focus solely on a beneficiary’s specialized studies.

The rule also permits a range of qualifying degree fields, provided that each field is directly related to the position’s duties. Additionally, DHS removed references to specific degree titles such as “business administration” and “liberal arts” to avoid undue reliance on degree titles. This recognizes that degree titles can vary between institutions and evolve over time, emphasizing the relevance of the degree’s content rather than its name. These changes align with the requests made in the joint comment letter, ensuring that the definition of a specialty occupation is practical and reflective of modern workforce realities.

Codification of the Deference Policy

The final rule codifies DHS’s current deference policy, providing greater clarity on how U.S. Citizenship and Immigration Services (USCIS) adjudicators should approach petitions involving the same parties and underlying facts. Under the codified policy, adjudicators are generally required to defer to a prior USCIS determination of eligibility when adjudicating a subsequent Form I-129, Petition for Nonimmigrant Worker. However, deference will not apply if a material error in the prior approval is discovered, or if new material information or a material change impacts the petitioner’s or beneficiary’s eligibility.

Elimination of the Itinerary Requirement

The final rule eliminates the itinerary requirement, which previously required petitioners to provide an itinerary detailing the dates and locations of services or training when filing Form I-129. This change addresses concerns that the requirement was largely duplicative of other information already provided in the petition. Eliminating this requirement simplifies the filing process, reducing administrative burdens for petitioners. The change is particularly beneficial for individuals in roles such as medical residencies under H-1B, where work may occur at multiple sites, as it removes unnecessary procedural hurdles without impacting USCIS’s ability to assess eligibility.

Expanded H-1B Cap Exemptions for Nonprofit and Governmental Research Organizations

The final rule modestly broadens the scope of H-1B cap exemptions for nonprofit and governmental research organizations, as well as nonprofits affiliated with institutions of higher education. The revised definitions recognize that qualifying organizations may have multiple fundamental activities or missions beyond just research or education. Under the updated regulations, organizations can qualify for a cap exemption if research or education is one of their fundamental activities, even if it is not their primary activity or mission. These changes better align the cap exemption criteria with the diverse roles and structures of modern nonprofit and governmental entities.

Enhanced Cap-Gap Protections for F-1 Students

The final rule extends cap-gap protections for F-1 students transitioning to H-1B status. Under the new provision, F-1 students who are beneficiaries of timely filed, nonfrivolous H-1B petitions will receive an automatic extension of their F-1 status and employment authorization through April 1 of the following calendar year. This extension provides up to six additional months of status and work authorization, reducing the risk of lapses in lawful status or employment eligibility while awaiting approval of the change to H-1B status.

Codification of Site Visit Authority

The final rule codifies and strengthens the USCIS site visit program, which is administered by the Fraud Detection and National Security (FDNS) unit. DHS clarifies that refusal to comply with a site visit may result in the denial or revocation of a petition. Additionally, the rule explicitly authorizes DHS to conduct site visits at various locations connected to the H-1B employment, including the primary worksite, third-party worksites, and any other locations where the employee works, has worked, or will work. This provision formalizes long-standing practices and enhances USCIS’s ability to monitor compliance with H-1B program requirements.

Next Steps

The rule takes effect on January 17, 2025, just days before the next presidential inauguration. While it is unclear if the incoming Trump administration will seek to modify or withdraw the regulation, the codification of key provisions, such as the deference policy, makes them more difficult to rescind without formal rulemaking.

Employers should also prepare for the required use of a new edition of Form I-129, Petition for a Nonimmigrant Worker, on the rule’s effective date. Because there will be no grace period for accepting prior editions of the form, employers should review the preview version, which will be published soon on uscis.gov, to prepare for the transition.

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December 18, 2024
DOL Issues Report on Coercive Contractual Provisions
by CUPA-HR | October 22, 2024

On October 17, the Department of Labor’s (DOL) Office of the Solicitor (SOL) issued a Special Enforcement Report on “coercive contractual provisions.” The report lists several provisions they have seen included in employment contracts that the department believes “may discourage workers from exercising their rights under worker protection laws.” The report demonstrates recent actions taken by SOL to combat such provisions, but it does not include new enforcement actions against employers that use these provisions.

In the report, SOL claims the provisions discussed are coercive, violate the law and have significant impacts on the most vulnerable workers. The report details seven types of contractual provisions they find especially concerning:

Contractual provisions requiring workers to waive statutory protections, including those requiring workers to waive their rights to bring claims and recover damages under the Fair Labor Standards Act

Contractual provisions that purport to require employees to agree that they are independent contractors

Indemnification-type provisions and related counterclaims purporting to shift liability for legal violations to workers or other entities

“Loser pays” provisions attempting to require employees to pay the employer’s attorney’s fees and costs if the employees do not prevail in litigation or arbitration

“Stay or pay” provisions, including some training repayment assistance provisions, that purport to require workers to pay damages to their employer for leaving a contract early

Confidentiality, non-disclosure and non-disparagement provisions

Company policies that purport to require workers to report safety concerns to their employer before contacting any government agencies

The report emphasizes that the Department of Labor is “not bound by private contracts or arbitration agreements between workers and employers” and thus “has a unique role to play in fighting the use of these ‘fine print’ or ‘coercive’ contractual provisions.” It provides examples of cases where the courts have found such agreements unenforceable or where DOL has pursued an injunction in federal court seeking an order blocking one or more contract provisions.

Importantly, the report is largely a restatement of current law and, for the most part, does not outline new enforcement actions against employers for using these provisions. Instead, the report outlines the work SOL has done recently to fight against the coercive contractual provisions, including cases and amicus briefs filed against employers using such business practices.

CUPA-HR will continue to monitor for additional resources from the Department of Labor that may impact contractual labor provisions.

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October 22, 2024
NLRB Issues Memo Outlining Higher Ed Institutions’ Disclosure Obligations under NLRA and FERPA – CUPA-HR
by CUPA-HR | August 7, 2024

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

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

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

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

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

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August 7, 2024
Department of Education Issues Guidance on Discrimination Policies Under Title VI – CUPA-HR

by CUPA-HR | May 13, 2024

On May 7, the Department of Education’s Office for Civil Rights (OCR) issued a “Dear Colleague” letter to offer guidance on schools’ responsibilities to prevent and rectify discrimination based on race, color, or national origin, including shared ancestry or ethnic characteristics, under Title VI of the Civil Rights Act of 1964 and its implementing regulations. The guidance aims to provide examples to institutions to help them carry out their Title VI requirements.

In its letter, OCR explains that it has received an increase in complaints alleging discrimination based on race, color, or national origin at colleges and universities, as well as public reports of such discrimination. While it does not explicitly state that the guidance is in response to reports of antisemitism on campuses and protests regarding the Israel-Hamas war, the department emphasizes in the letter that Title VI’s “protections extend to students and school community members who are or are perceived because of their shared ancestry or ethnic characteristics to be Jewish, Israeli, Muslim, Arab, Sikh, South Asian, Hindu, Palestinian or any other faith or ancestry,” and that “Title VI’s protections against discrimination based on race, color and national origin encompass antisemitism.”

Additionally, the letter addresses First Amendment considerations, as well as two legal frameworks used by OCR and courts to assess whether schools have violated Title VI through discrimination: hostile environment and different treatment. The guidance illustrates nine examples that may prompt OCR to investigate an institution for possible Title VI violations within these two frameworks. Of particular importance for higher ed HR are the instances outlined in the letter when educators and other faculty members might engage in actions constituting harassment under Title VI, as well as schools’ obligations to address such incidents.

As OCR notes, the guidance lacks the authority of law and does not impose obligations on the public or establish new legal standards. Instead, its purpose is to provide clarity to institutions receiving federal financial assistance regarding their requirements under Title VI. CUPA-HR will continue to share resources regarding institutions’ obligations to address discrimination under federal law.

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May 13, 2024
DOL Issues Guidance on AI in the Workplace – CUPA-HR

by CUPA-HR | May 8, 2024

On April 29, the Department of Labor Wage and Hour Division (WHD) issued a Field Assistance Bulletin on “Artificial Intelligence and Automated Systems in the Workplace Under the Fair Labor Standards Act and Other Federal Labor Standards.” The bulletin provides guidance on the applicability of the FLSA and other federal labor standards as they relate to employers’ increased use of artificial intelligence and automated systems in the workplace.

Background

In October 2023, President Biden released an Executive Order on the “Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence” and directed agencies across the federal government to take action to address the increased use of AI in all areas of life. With respect to AI in the workplace, the order directed the U.S. Secretary of Labor to “issue guidance to make clear that employers that deploy AI to monitor or augment employees’ work must continue to comply with protections to ensure that workers are compensated for their hours worked, as defined under the Fair Labor Standards Act (…) and other legal requirements.” The Field Assistance Bulletin is the first response from the DOL to the Executive Order’s directive, though additional guidance may be provided in the future.

Summary of Guidance

The bulletin discusses existing employer obligations to comply with and avoid penalties under relevant federal labor laws. It also clarifies that the use of AI and other technologies does not absolve employers of their responsibilities to comply with such laws. CUPA-HR’s government relations team has summarized the key points of the guidance below.

AI and the FLSA

The guidance highlights employers’ obligations to pay employees at least the federal minimum wage for all hours worked and at a rate of at least one and one-half times their regular rate of pay for every hour worked in excess of 40 in a single workweek. As such, WHD recognizes that employers have implemented AI and other automated systems to comply with these requirements, including implementing systems to help track work time, monitor break time, assign tasks to available workers, and monitor work locations. Additionally, WHD provides examples of AI and other technologies employers use to help calculate wages owed under the FLSA.

WHD also recognizes that AI has the potential to undercount hours worked or miscalculate wage rates owed to employees. Regardless of the use of AI, WHD states in its guidance that “employers are responsible for ensuring that they are paying employees for all hours worked” under the FLSA and that “employers are responsible for ensuring that the use of AI or other technologies to calculate and determine workers’ wage rates does not cause workers to be paid in violation of” the FLSA and other applicable federal wage standards. As such, WHD suggests that employers exercise human oversight over the technologies to ensure they are not violating the FLSA.

AI and the Family and Medical Leave Act

Similar to WHD’s discussion of employers’ obligations to adhere to the requirements of the FLSA, the bulletin provides guidance on employers’ responsibilities to adhere to the requirements of providing Family and Medical Leave Act leave when using AI and other automated systems. WHD once again recognizes that some employers use AI and other tools to process leave requests, determine whether an employee has provided proper certification that supports the need for FMLA leave, or track the use of FMLA leave. As a result, WHD states that employers should oversee the use of AI or automated systems used to implement FMLA leave “to avoid the risk of widespread violations of FMLA rights when eligibility, certification, and anti-retaliation and anti-interference requirements are not complied with.”

AI and Nursing Employee Protections

WHD also provides guidance for employers’ use of AI as it relates to nursing employees’ rights to reasonable break time and space to express breast milk while at work, as protected under the FLSA and the Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act). The bulletin states that, though employers may use AI to track employee work hours, set work schedules, and manage break time requests, any instance in which automated systems “limit the length, frequency, or timing of a nursing employee’s breaks to pump would violate the FLSA’s reasonable break time requirement.” The guidance also states that systems that score productivity and/or penalize workers for failing to meet productivity standards due to pump breaks would violate the FLSA. Finally, they clarify that automated systems that require nursing employees to work additional hours to make up for time spent during pump breaks or that reduce the hours scheduled in the future for workers because they took pump breaks would be considered “unlawful retaliation” under the FLSA. WHD therefore provides that “employers are responsible for ensuring that AI or other automated systems do not impose adverse actions on employees for exercising their rights to pump at work.”

AI and the Employee Polygraph Protection Act

The bulletin provides an overview of the Employee Polygraph Protection Act (EPPA) and most private employers’ prohibition from using lie detector tests on employees or for pre-employment screenings. In light of this law, WHD recognizes that AI technologies have been developed to “use eye measurements, voice analysis, micro-expressions, or other body movements to suggest if someone is lying or detect deception.” As such, WHD reaffirms that EPPA prohibits covered private employers from using AI technology as a lie detector test.

AI and Prohibited Retaliation

Finally, the bulletin covers protections against retaliatory conduct provided under the FLSA and other laws administered by WHD to employees who have filed complaints about potential violations of their rights. As a result of these protections, WHD states that “the use of AI and other technologies by employers to take adverse action against workers for engaging in protected activities under one or more laws enforced by WHD constitutes unlawful retaliation.” Additionally, WHD clarifies that the use of AI to surveil the workforce for protected activity and to take adverse actions could violate anti-retaliation protections under the FLSA and other laws. As such, WHD reminds employers in the guidance that they are responsible for compliance with anti-retaliation provisions regardless of whether they incorporate AI technology into their business practices.

CUPA-HR will continue to monitor for additional guidance from federal agencies as it relates to the use of AI in the workplace.

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May 8, 2024