Tag: Policy

  • A new mission for higher education policy reviews

    A new mission for higher education policy reviews

    by Ellen Hazelkorn, Hamish Coates, Hans de Wit & Tessa Delaquil

    Making research relevant to policy

    In recent years there has been heightened attention being given to the importance of scholarly endeavour making a real impact on and for society. Yet, despite a five-fold increase in journal articles published on higher education in the last twenty years, the OECD warns of a serious “disconnect between education policy, research and practice”.

    As higher education systems have grown and diversified, it appears with ever increasing frequency that policy is made on the slow, on the run, or not at all. Even in the most regulated systems, gone is the decades-long approach of lifetime civil servants advancing copperplate notes on papyrus through governmental machines designed to sustain flow and augment harmony. In the era of 24-hour deliberation, reporting and muddling through, it may seem that conceptually rooted analysis of policy and policymaking is on the nose or has been replaced by political expediency.

    Nothing could be further from the truth. There has never been a more important time to analyse, design, evaluate, critique, integrate, compare and innovate higher education policy. Fast policy invokes a swift need for imaginative reflection. Light policy demands counterbalancing shovel loads of intellectual backfilling. Comparative analysis is solvent for parochial policy. Policy stasis, when it stalks, must be cured by ingenious, ironic, and incisive admonition.

    Governments worldwide expect research to provide leaders and policymakers with evidence that will improve the quality of teaching and education, learning outcomes and skills development, regional innovation and knowledge diffusion, and help solve society’s problems. Yet, efforts to enhance the research-policy-practice nexus fall far short of this ambition.

    Policy influencers are more likely to be ministerial advisory boards and commissioned reports than journal articles and monographs, exactly opposite to what incentivizes academics. Rankings haven’t helped, measuring ‘impact’ in terms of discredited citation scores despite lots of research and efforts to the contrary.

    Academics continue to argue the purpose of academic research is to produce ‘pure’ fundamental research, rather than undertake public-funded research. And despite universities promoting impactful research of public value, scholars complain of many barriers to entry.

    The policy reviews solution

    Policy Reviews in Higher Education (PRiHE) aims to push out the boundaries and encourage scholars to explore a wide range of policy themes. Despite higher education sitting within a complex knowledge-research-innovation ecosystem, touching on all elements from macro-economic to foreign policy to environmental policy, our research lens and interests are far too narrow. We seem to be asking the same questions. But the policy and public lens is changing.

    Concerns are less about elites and building ‘world-class universities’ for a tiny minority, and much more about pressing social issues such as: regional disparities and ‘left-behind communities’, technical and vocational education and training, non-university pathways, skills and skills mismatch, flexible learning opportunities given new demographies, sustainable regional development, funding and efficiency, and technological capability and artificial intelligence. Of course, all of this carries implications for governance and system design, an area in which much more evidence-based research is required.

    As joint editors we are especially keen to encourage submissions which can help address such issues, and to draw on research to produce solutions rather than simply critique. We encourage potential authors to ask questions outside the box, and explore how these different issues play out in different countries, and accordingly discuss the experiences, the lessons, and the implications from which others can learn.

    Solutions for policy reviews

    Coming into its ninth year, PRiHE is platform for people in and around government to learn about the sector they govern, for professionals in the sector to keep abreast of genuinely relevant developments, and for interested people around the world to learn about what is often (including for insiders!) a genuinely opaque and complex and certainly sui generis environment.

    As our above remarks contend, the nature of contemporary higher education politics, policy and practice cannot be simplified or taken for granted. Journal topics, contributions, and interlocutors must also change and keep pace. Indeed, the very idea of an ‘academic journal’ must itself be reconsidered within a truly global and fully online education and research environment. Rightly, therefore, PRiHE keeps moving.

    With renewed vim and vigour, the Society for Research into Higher Education (SRHE) has refreshed the Editorial Office and Editorial Board, and charged PRiHE to grow even more into a world-leading journal of mark and impact. Many further improvements have been made. For instance, the Editorial Office has worked with SRHE and the publisher Taylor and Francis to make several enhancements to editorial and journal processes and content.

    We encourage people to submit research articles or proposals for an article – which will be reviewed by the Editors and feedback provided in return. We also encourage people to submit commentary and book reviews – where the authors have sought to interrogate and discuss a key issue through a policy-oriented lens. See the ‘instructions for authors’ for details.

    Read, engage, and contribute

    This second bumper 2024 issue provides six intellectual slices into ideas, data and practices relevant to higher education policy. We smartly and optimistically advise that you download and perhaps even print out all papers, power off computers and phones, and spend a few hours reading these wonderful contributions. We particularly recommend this to aspiring policy researchers, researchers and consultants in the midst of their careers, and perhaps most especially to civil servants and related experts embedded in the world of policy itself.

    SRHE and the Editorial Office are looking ahead to a vibrant and strong future period of growth for PRiHE. A raft of direct and public promotion activities are planned. PRiHE is a journal designed to make a difference to policy and practice. The most important forms of academic engagement, of course, include reading, writing and reviewing. We welcome your contribution in these and other ways to the global PRiHE community.

    This blog is based on the editorial published in Policy Reviews in Higher Education (online 16 November 2024) A new mission for higher education policy reviews

    Professor Ellen Hazelkorn is Joint Managing Partner, BH Associates. She is Professor Emeritus, Technological University Dublin.

    Hamish Coates is professor of public policy, director of the Higher Education Futures Lab, and global tertiary education expert.

    Hans de Wit is Professor Emeritus and Distinguished Fellow of the Boston College Center for International Higher Education, Senior Fellow of the international Association of Universities.

    Tessa DeLaquil is postdoctoral research fellow at the School of Education at University College Dublin.

    Author: SRHE News Blog

    An international learned society, concerned with supporting research and researchers into Higher Education

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  • 2024 Election Results and Analysis of Future Policy Impacts

    2024 Election Results and Analysis of Future Policy Impacts

    by CUPA-HR | November 14, 2024

    The results of the 2024 election are in: Donald Trump will serve as the 47th president of the United States, while both the Senate and House of Representatives will be controlled by Republicans. With the Republican trifecta in the White House and Congress, Republicans can focus on passing their policy priorities through legislation in Congress and regulatory action at the federal agencies. CUPA-HR’s government relations team provides the following analysis to offer insight into possible leadership, policies and regulations we expect starting in January 2025.

    Federal Agencies and Congressional Committees

    Department of Labor

    The Department of Labor (DOL), overseen by the secretary of labor, directs policy and regulations for employers, workers, and retirees in the U.S. Throughout the election season, news organizations have speculated President-elect Trump’s potential picks for the secretary position, though who will be nominated will be unknown until Trump announces it. According to Politico, two possible candidates are Patrick Pizzella and Bryan Slater. Under the first Trump administration, Pizzella served as deputy secretary of labor and acting secretary of labor between former secretaries Alex Acosta and Eugene Scalia. Slater, who currently serves as Virginia’s secretary of labor, had also previously served as assistant secretary at DOL under the previous Trump administration.

    In addition to the secretary of labor, Trump will pick people to head the subagencies at DOL, including the Employee Benefits Security Administration, Occupational Safety and Health Administration, and Wage and Hour Division, among others. These agencies draft and implement regulations governing retirement and health benefits plans, workplace safety and health, and minimum wage and overtime pay requirements. Leaders of the DOL subagencies are typically selected later in the Cabinet-appointment process.

    National Labor Relations Board

    The party control of the National Labor Relations Board (NLRB) depends on actions taken by the Senate during the lame-duck session between the election and President-elect Trump’s inauguration. Current chair of the NLRB Lauren McFerran’s term is set to expire in December 2024, but she has been renominated to serve on the board for another five years by President Biden. Senate Democrats, who are likely to push for her confirmation now that the Senate and White House will be Republican-controlled in 2025, will need to vote to confirm her position, only needing a simple majority. If confirmed, NLRB would be under Democratic control until at least August 2026, more than a year and a half into the Trump administration, leaving President Trump unable to obtain a Republican majority on the board — and thereby control the policy at the NLRB — for nearly half of his second term.

    Despite possibly not having control of the NLRB, President Trump may choose to fire the NLRB General Counsel Jennifer Abruzzo (Democrat), whose term is not set to expire until July 2025. In 2021, President Biden terminated then-General Counsel Peter Robb (Republican) within hours of his inauguration, despite Robb’s term not ending until November of that same year. This was the first time any sitting president had fired a sitting general counsel at an independent agency for policy differences. Federal courts upheld Robb’s termination, so President Trump is highly likely to terminate Abruzzo immediately upon taking office. As a reminder, Abruzzo issued several memos stating her position regarding employment status for student-athletes, severance agreements, and disclosure obligations under the National Labor Relations Act and Family Educational Rights and Privacy Act, all of which would likely be rescinded by Trump’s NLRB general counsel appointee.

    Equal Employment Opportunity Commission

    Unless a commissioner leaves their post before their term expires, the Equal Employment Opportunity Commission (EEOC) will maintain a Democrat majority (currently 3-1, with one Republican seat vacant) until July 2026. Despite this, President-elect Trump is likely to appoint Commissioner Andrea Lucas to serve as chair of the EEOC. Lucas and the EEOC would be limited in their ability to adopt new policies or reverse actions taken by the Democrat-controlled commission prior to July 2026. At that time, we expect the Republican-controlled EEOC to issue revised guidance that narrows the scope of the agency’s interpretation of Title VII protections in light of Bostock v. Clayton County and the legality of diversity, equity, and inclusion (DEI) initiatives in employment practices, possibly extending legal principles established under the Students for Fair Admission v. Harvard case.

    Similar to the NLRB, we expect that President-elect Trump will replace the current EEOC General Counsel Karla Gilbride (Democrat). In her role, Gilbride has litigated on behalf of the EEOC in federal court, but the position typically does not provide policy recommendations to the full commission like the NLRB general counsel does.

    Department of Education

    The Department of Education (ED) oversees and implements policy and regulations governing federal assistance to education. With respect to higher education, ED governs issues like federal financial aid, Title IX compliance, and other laws aimed at promoting student success. Under the incoming Trump administration, Politico has speculated that there are a few possible contenders who could ultimately lead the agency.

    One possible candidate for ED’s secretary is Betsy DeVos, who served as secretary of education during Trump’s first term. During DeVos’ first term as ED secretary, she led the agency to implement the 2020 Title IX regulations that are still currently in place in 26 states and hundreds of schools around the country, pending legal challenges to the Biden administration’s rule. However, DeVos resigned from her position as secretary of education after the January 6, 2021, riots at the U.S. Capitol, which may lead the incoming Trump administration to search for new candidates. Despite her resignation, DeVos has indicated that she is open to discussions about potentially serving in the role again.

    As we also discuss below, Rep. Virginia Foxx (R-NC) will be stepping down from her role as chair of the House Education and the Workforce Committee, where she most recently led an investigation into antisemitism on campus in higher education. This, along with her previous experience serving as an English instructor and president of a community college, may set her up for a bid for the secretary position.

    Some additional names that have been discussed by Politico are Virginia Governor Glenn Youngkin, Oklahoma State Superintendent of Public Instruction Ryan Walters, and Moms for Liberty founder Tiffany Justice.

    House Education and the Workforce Committee

    Republicans held control of the House in the 2024 election, but there will still be some shakeup in leadership for the Education and Workforce Committee. Chair of the committee Virginia Foxx will be stepping down from her role, leaving open the Republican leader position of the Committee. The two front-runners to chair the committee are Reps. Tim Walberg (R-MI) and Burgess Owens (R-UT), both currently serving on the committee. Notably, Walberg has served on the committee for 16 years, and Owens currently serves as the chair of the Higher Education and Workforce Development Subcommittee. For Democrats, current ranking member of the committee Bobby Scott (D-VA) is expected to maintain his position as leader of the Committee Democrats.

    Walberg and Owens have both publicized their policy priorities. Walberg has stated that, under his leadership, the committee would focus on legislation to make college more affordable, boost apprenticeships, implement a short-term Pell grant for workforce training programs, and reauthorize the Workforce Innovation and Opportunity Act. Owens hopes to steer the committee with a more education-centric focus, stating that top priorities for him are school choice and oversight into how ED uses its funding.

    Senate Health, Education, Labor, and Pensions Committee

    Republicans in the Senate gained control during the 2024 election, flipping the previously Democrat-controlled chamber. As a result, Senator Bill Cassidy (R-LA) will likely rise to the role of chair on the Health, Education, Labor, and Pensions (HELP) Committee. Senator Bernie Sanders (I-VT) will shift into the ranking member position after serving as the chair of the full committee in the 118th Congress. Before his political career, Cassidy was a physician, meaning he could pivot the committee to focus more on health policy. Despite this, Cassidy has also advocated for the HELP committee to advance a Workforce Innovation and Opportunity Act reauthorization bill, and he has advocated for the committee to focus on other education issues as well.

    Policy Implications of the Election

    FLSA Overtime

    As you already know, the Biden administration is in the process of implementing their FLSA overtime regulations. The final rule took a two-phased approach to increasing the minimum salary threshold. The first increase raised the salary threshold to $43,888 per year and took effect on July 1, 2024. The second increase would raise the salary threshold to $58,656 per year and is set to take effect on January 1, 2025. The regulations are currently being challenged in a federal district court in Texas, where a preliminary injunction to block the rule from taking effect has been placed only for public employers in the state of Texas. It remains to be seen how the federal judge will rule on the lawsuits, though a hearing for the cases was held on November 8 and a ruling is imminent.

    As the Trump administration will not take office until after the January 1 threshold, the regulation will take effect, pending further appeals, if the final rule is upheld in federal court. If the rule is struck down, we expect the Trump administration will let the court’s decision remain and make no further effort to appeal the decision. If the Trump administration decides to increase the minimum salary threshold during this upcoming term, they will likely use the methodology from the 2019 rule to increase the threshold.

    Title IX

    Similar to the overtime final rule, the Biden administration issued Title IX regulations in 2024 that are also facing legal challenges. The Biden administration’s Title IX rule took effect on August 1, 2024, but several lawsuits challenging the rule have resulted in preliminary injunctions blocking ED from enforcing it in 26 states and hundreds of other schools in states that did not challenge the final rule.

    The Biden administration’s regulations replaced the previous Trump administration’s 2020 Title IX regulations. If the regulations are upheld in federal court, we expect that the incoming secretary of education will repeal the Biden administration’s regulations in favor of keeping the 2020 regulations in effect across the country.

    Immigration

    There are several policies and regulations that CUPA-HR has been tracking on the immigration front that face uncertain futures under the incoming Trump administration. During the first term, the Trump administration placed a proposed rule on the regulatory agenda aiming to restrict the Optional Practical Training  program, which allows international students who graduate from U.S. institutions to work in their degree-related field for at least 12 months after graduating. The Trump administration also finalized a couple of final rules that would have increased wage obligations for H-1B visas and narrowed eligibility for H-1B visas to positions that qualified as “specialty occupations.” These rules were struck down in court, so while Trump is unlikely to implement the same rules, we could see similar attempts to increase H-1B wage obligations and narrow the H-1B program.

    Additionally, the incoming Trump administration will likely look to reverse policies implemented by the Department of Homeland Security under the Biden administration, including dropping any appeal of the recent court ruling against the “Keeping Families Together” program for undocumented spouses and children of U.S. citizens, as well as rescinding the guidance to streamline the H-1B visa waiver process for Deferred Action for Childhood Arrivals (DACA) recipients. Similarly, if the Biden administration does not finalize the H-1B modernization rule before the end of his term, a new Trump administration may seek to implement a more restrictive version, reshaping the rule to reflect its own priorities rather than those outlined in the Biden administration’s October 2023 proposal.

    Legislative Priorities

    With Republicans controlling both the House and the Senate, legislative priorities should be mostly aligned between the two chambers and the White House. However, their ability to pass legislation will still depend on bipartisan support, as Republicans hold a narrow majority in the House and do not have a large enough majority in the Senate to bypass the 60-vote filibuster. Despite these challenges, we expect Republicans to focus on issues like paid leave, workforce development, and affordable college and workforce training.

    Though paid leave is a priority for both parties, Republicans and Democrats have previously not agreed on the best approach to establish it through federal legislation. In his first term, Trump and other Republicans backed paid leave legislation that allowed parents to collect a portion of their future child tax credits early to use for leave and receive smaller credits in the following years. This proposal ran counter to the Democrat-supported Family and Medical Insurance Leave (FAMILY) Act, which would establish a payroll tax to fund a paid family and medical leave program that can be used to pay workers who are new parents or who are caring for their own health issues or those of their family. Republicans and Democrats will need to find a compromise if they are to pass any paid leave legislation in the upcoming Congress, as they will need 60 votes in the Senate to bypass a filibuster.

    Despite their differences on paid leave, Republicans and Democrats have made bipartisan efforts to pass legislation to improve workforce development and create a short-term Pell grant. During this Congress, both the House and Senate have worked to pass legislation to reauthorize the Workforce Innovation and Opportunity Act, which serves as the nation’s primary federal workforce development legislation designed to help Americans receive training and support to obtain skills necessary for high-quality jobs and careers. Additionally, there has been bipartisan support to pass legislation that would expand the Pell grant program to cover short-term workforce development and training programs that are outside the traditional higher education path. Again, Republicans and Democrats will need to find consensus on these issues in order to bypass the Senate’s 60-vote filibuster, but bipartisan issues like workforce development and short-term Pell grants appear to have a possible path to becoming law.

    CUPA-HR is hosting a 2024 election analysis webinar on November 21 at 12 PM ET. Registration is free for CUPA-HR members. Additional updates will be provided through future blogs and Washington Insider alerts.



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  • Federal Judge Blocks NCAA Name, Image and Likeness Policy for Recruits Nationwide – CUPA-HR

    Federal Judge Blocks NCAA Name, Image and Likeness Policy for Recruits Nationwide – CUPA-HR

    by CUPA-HR | February 27, 2024

    On February 23, a federal judge with the District Court for the Eastern District of Tennessee issued a preliminary injunction barring the NCAA from enforcing its rules prohibiting name, image and likeness compensation for recruits. The injunction applies nationwide.

    The policy in question prohibited student-athletes from negotiating and signing NIL contracts prior to enrolling at a college or university. This meant NIL compensation could not be used to “induce” a recruit to a specific school. This policy stood in contrast to the NCAA’s policy for student-athletes already enrolled at a college or university, who, as of 2021, have been allowed to seek NIL compensation.

    In his decision, U.S. District Judge Clifton Corker explained, “The NCAA’s prohibition likely violates federal antitrust law and harms student-athletes.” He clarified, “Without the give and take of a free market, student-athletes simply have no knowledge of their true NIL value. It is this suppression of negotiating leverage and the consequential lack of knowledge that harms student-athletes.” He further argued that the NCAA “fails to show how the timing of when a student-athlete enters such an agreement would destroy the goal of preserving amateurism,” thereby not establishing rationale for treating recruits differently than enrolled student-athletes.

    The lawsuit was filed by the attorneys general of Tennessee and Virginia after the NCAA investigated the University of Tennessee for potential violations of the policy. The NCAA will likely appeal the case to the 6th U.S. Circuit Court of Appeals overseeing Tennessee, Kentucky, Ohio and Michigan, but in the meantime, reports indicate the organization is already considering potential policy changes.

    This case is only one of the lawsuits targeting the NCAA and its policies towards student-athletes. Several lawsuits are currently pending before various federal courts, alleging the NCAA in its current form violates federal antitrust law. Additionally, the National Labor Relations Board recently ruled that the Dartmouth men’s basketball team are employees of the university, allowing them to organize and schedule a union representation election for early March. The NLRB has also issued a complaint against the University of Southern California, the PAC-12 Conference and the NCAA, alleging the three have misclassified USC’s football and men’s and women’s basketball players as student-athletes rather than employees and that the three organizations are joint employers of the athletes.

    CUPA-HR will continue to monitor for and keep members apprised of any updates on these cases.



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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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  • Labor and Employment Policy Updates — October 2022 – CUPA-HR

    Labor and Employment Policy Updates — October 2022 – CUPA-HR

    by CUPA-HR | October 22, 2022

    As the 2022 midterm election nears, Congress has turned its focus to campaigning and essentially halted legislative action until after the election. Despite the lack of activity from Congress, federal agencies have continued to push forward with anticipated regulatory actions in the labor and employment policy area. This blog post details some of the regulatory activity CUPA-HR is currently monitoring, as well as a stalled nomination for a top position at the Department of Labor (DOL).

    NLRB Joint Employer Rule

    On September 7, the National Labor Relations Board (NLRB) issued a notice of proposed rulemaking (NPRM) on the joint employer standard. Generally speaking, the NPRM proposes to expand joint employer status to entities with indirect or reserved control over essential terms and conditions of employment.

    The NPRM establishes joint employer status of two or more employers if they “share or co-determine those matters governing employees’ essential terms and conditions of employment,” such as wages, benefits and other compensation, work and scheduling, hiring and discharge, discipline, workplace health and safety, supervision, assignment and work rules. According to the NLRB’s press release, the Board “proposes to consider both direct evidence of control and evidence of reserved and/or indirect control over these essential terms and conditions of employment when analyzing joint-employer status.”

    Comments in response to the proposal were originally due November 7, but after stakeholders requested an extension to the filing deadline the Board extended the comment period to December 7.

    Independent Contractor Rule

    On October 13, the DOL published an NPRM to rescind the current method for determining independent contractor status under the Fair Labor Standards Act. The current test finalized by the Trump administration in 2021 has two core factors of control and investment with three additional factors (integration, skill and permanency) that are relevant only if those core factors are in disagreement. The Biden rule proposes a return to a “totality-of-the-circumstances analysis” of multiple factors in an economic reality test, including the following six factors, which are equally weighted with no core provisions:

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

    Comments in response to the NPRM are due November 28.

    Jessica Looman Nomination

    On September 13, the Senate Health, Education, Labor and Pensions (HELP) Committee held a hearing on the nomination of Jessica Looman to serve as Administrator of the DOL’s Wage and Hour Division (WHD). Looman was officially nominated for the position in July 2022, months after Biden’s previous nominee David Weil failed to receive 50 votes to clear the Senate floor and become the WHD Administrator.

    Looman has not yet had a committee vote to move her nomination to a full Senate floor vote. It is unclear when a Senate HELP vote will take place, but is likely to come after the election in November. Regardless of the timing on a vote, Looman continues to carry out the WHD’s rulemaking agenda in her current role as the Principal Deputy Administrator.

    CUPA-HR will keep members apprised of any updates relating to the rulemakings and nomination discussed above.



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