Tag: Proposal

  • Texas A&M board to vote on sweeping classroom censorship proposal

    Texas A&M board to vote on sweeping classroom censorship proposal

    This Wednesday, the Texas A&M System Board of Regents will vote on whether to give university presidents sweeping veto power over what professors can teach. Hiring professors with PhDs is meaningless if administrators are the ones deciding what gets taught.

    Under the proposal, any course material or discussion related to “race or gender ideology” or “sexual orientation or gender identity” would need approval from the institution’s president. Faculty would need permission to teach students about not just modern controversies, but also civil rights, the Civil War, or even ancient Greek comedies.

    This is not just bad policy. It invites unlawful censorship, chills academic freedom, and undermines the core purpose of a university. Faculty will start asking not “Is this accurate?” but “Will this get me in trouble?”

    That’s not education, it’s risk management. 

    FIRE urges the board to reject this proposal. And we will be there to defend any professor punished for doing what scholars are hired to do: pursue the truth wherever it leads.

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  • FCC proposal would disconnect school bus Wi-Fi, hotspots from E-rate coverage

    FCC proposal would disconnect school bus Wi-Fi, hotspots from E-rate coverage

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    Dive Brief:

    • An E-rate expansion that allowed schools to use the program’s funds for school bus Wi-Fi and hotspots for students could soon be reversed, pending a vote called for by Federal Communications Commission Chairman Brendan Carr on Wednesday.
    • The vote on the proposal to reverse the Biden-era expansions is currently “on circulation” as of Friday, according to an FCC spokesperson. That means commissioners can vote on the matter outside of their open monthly meetings at their discretion. 
    • With a Republican majority among the three commissioners, it’s possible the E-rate expansion could be reversed.  

    Dive Insight:

    Carr’s proposal comes at a time of high demand among school districts to expand students’ internet access through school bus Wi-Fi and hotspots.

    Schools and districts have requested a total of $15.3 million in E-rate funds to pay for school bus Wi-Fi and $50.2 million for hotspots so far in fiscal year 2025, according to federal data. 

    E-rate, also known as the schools and libraries universal service support program, helps connect schools to affordable broadband. The federal program is administered by the nonprofit private corporation Universal Service Administrative Co., or USAC, under the FCC’s authority.

    If Carr’s proposal is approved, the FCC will direct USAC to deny the pending FY 25 requests to use E-rate funds for hotspots and school bus Wi-Fi services. 

    Millions of students and older adults rely on the expanded E-rate services for homework and telehealth services, said FCC Commissioner Anna Gomez, a Democrat, in a Wednesday statement. 

    “Now the FCC is moving to strip that connectivity away while doing nothing to make broadband more affordable,” Gomez said. “Their latest proposals will only widen the gap between those with access to modern-day tools and those left behind.”

    The commission approved the school bus Wi-Fi addition in 2023 and then voted to include hotspots the following year. Carr, a commissioner at the time, voted against both E-rate expansion measures.

    School bus Wi-Fi access is especially beneficial for students in rural areas with long commutes to school, said Andrew Jay Schwartzman, senior counselor at the Benton Institute for Broadband & Society, in a Wednesday statement. Carr’s push to reverse the use of E-rate funds for those services will “lock rural kids into dead zones,” he added.

    “Chairman Carr’s moves today are very unfortunate, as they further signal that the Commission is no longer prioritizing closing the digital divide,” Schwartzman said. 

    The Consortium for School Networking also released a statement Friday denouncing Carr’s plan. The expansion of the E-rate program has been “critical to closing the digital divide and ensuring every student can learn, both in school and where they live and learn.”

    In his announcement, Carr said the FCC violated Congress’ authority when it decided to broaden E-rate under the Biden administration. 

    “During COVID-19, Congress passed a law that expressly authorized the FCC to fund Wi-Fi hotpots for use outside of schools and libraries. When that program ended, so did the FCC’s authority to fund those initiatives,” Carr said. “Nonetheless, the Biden-era FCC chose to expand its E-Rate program to fund those initiatives long after the COVID-19 emergency ended.”

    Carr also praised Sen. Ted Cruz, R-Texas, for leading a Senate vote in May approving a repeal of the FCC’s decision to cover hotspots under E-rate. The bill is still awaiting action from the House.

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  • Proposal would remove federal data collection for special education racial disparities

    Proposal would remove federal data collection for special education racial disparities

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    The U.S. Department of Education is proposing to remove a requirement for states to collect and report on racial disparities in special education, according to a notice being published in the Federal Register on Friday.  

    The data collection is part of the annual state application under Part B of the Individuals with Disabilities Education Act. The application provides assurances that the state and its districts will comply with IDEA rules as a condition for receiving federal IDEA funding. 

    The data collection for racial overrepresentation or underrepresentation in special education — known as significant disproportionality — helps identify states and districts that have racial disparities among student special education identifications, placements and discipline. About 5% of school districts nationwide were identified with significant disproportionality in the 2020-21 school year, according to federal data.

    The Education Department said it wants to remove the data collection because the agency anticipates it will reduce paperwork burdens for the states. According to several state Part B applications filed earlier this year, the significant disproportionality data collection adds more hours in paperwork duties. 

    For example, Florida’s application said it records an average of 25 additional hours for responses reporting data related to significant disproportionality in any given year, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. Alabama’s and Oregon’s applications also cite an additional 25 hours each for the collections. 

    The department has not said it wants to rescind or pause the significant disproportionality regulation, a rule known as Equity in IDEA, which was last updated in 2016. 

    However, under the first Trump administration, the rule became a hot button issue when then-U.S. Education Secretary Betsy DeVos said its implementation would be delayed. 

    The Council of Parent Attorneys and Advocates, a nonprofit supportive of education rights for students with disabilities, sued the Education Department and won, and by April 2019, the rule was back in full effect. 

    Denise Marshall, CEO of COPAA said in a Thursday email to K-12 Dive that the proposal to remove the Equity in IDEA federal data collection was “yet another unlawful attempt by the Administration to shirk its obligations under the law to students of color.”

    Marshall added that the data collection fulfills a critical role in enforcing the significant disproportionality requirement in IDEA. The collection allows states and districts to examine the data, determine if there is racial disproportionality, and develop measures to address the problem. Marshall points out that IDEA does not declare significant disproportionality unlawful. Rather, the law and regulations provide a method for states and districts to address systemic racial disproportionality in special education.  

    Robyn Linscott, director of education and family policy at The Arc, an organization that advocates for people with intellectual and developmental disabilities, said that even if in the future there is no longer a data collection for significant disproportionality at the federal level, the information would still need to be collected by states and districts as required by IDEA.

    But the loss of the central repository of information on significant disproportionality in schools will make it more difficult for advocacy groups and technical assistance centers to support school and district efforts to reduce racial disparities in special education.

    In the absence of the data being available at the federal level, it will be “much more difficult” for people not within a state education agency to be able to access the data, Linscott said.

    Correction: A previous version of this article erred in spelling out the IDEA acronym. It stands for the Individuals with Disabilities Education Act. We have updated our story.

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  • Iowa board reworks anti-DEI course policy proposal following pushback

    Iowa board reworks anti-DEI course policy proposal following pushback

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    Dive Brief:

    • The Iowa Board of Regents has removed references to “critical race theory” and “diversity, equity and inclusion” from a controversial proposal to limit what courses the state’s three public universities can require. The regents plan to vote on the issue during a special meeting on Tuesday.
    • Under the original proposal, academic programs would not have been able to require students to take classes containing “substantial content that conveys DEI or CRT.” Universities that wanted an exemption would have had to gain board approval every other year.
    • Following public pushback, the board reworked the proposal to state that “faculty may teach controversial subjects” when relevant to course content, but they are expected to “present coursework in a way that reflects the range of scholarly views and ongoing debate in the field.” The revision also leaves the board the option to “periodically” review the universities’ compliance.

    Dive Insight:

    The Iowa Board of Regents — which oversees the University of Iowa, Iowa State University and the University of Northern Iowa — has so far delayed the vote on the proposal twice, last postponing the decision at its July 30 meeting. 

    The original language included extensive examples of DEI topics that would have been restricted, including anti-racism, “transgender ideology,” systemic oppression, and unconscious or implicit bias.

    “One of the primary reasons we are not taking up the DEI/CRT policy is that the discussions on how to best implement the ideas that were brought forward are still ongoing,” Board President Sherry Bates said in prepared remarks, citing responses from the community. “It has become clear that we would be better served by something more comprehensive.”

    Much of the local response has been negative.

    Five Iowa educator advocacy groups joined together to form the Iowa Higher Education Coalition to oppose the policy and launched a petition “to urge the Iowa Board of Regents to firmly reject efforts to restrict what students can learn.” The petition, which does not address the updated policy, had garnered 470 signatures as of Friday afternoon.

    The faculty union at the University of Northern Iowa, one of the members of the coalition, voiced opposition at the board’s June meeting, when it was first scheduled to vote on the proposal.

    “There is no middle position, no position of slight appeasement,” United Faculty President Christopher Martin told board members at the meeting. “Either you stand for free expression at Iowa’s universities or you don’t. And God help Iowa, its public universities and all the citizens of this state if you don’t.”

    Martin said that the proposal came from two out-of-state think tanks’  generic recommendations, and he alleged that it runs contrary to state law.

    Since that meeting, the board has reworked the language significantly.

    “University teachers shall be entitled to academic freedom in the classroom in discussing the teachers’ course subject, but shall not introduce into the teaching controversial matters that have no relation to the subject,” the updated version said.

    Regardless of how the board votes next week, the Iowa Legislature may step in.

    State Rep. Taylor Collins, chair of the Legislature’s newly created Higher Education Committee and an avid opponent of DEI efforts, voiced support for the board’s original policy proposal last month.

    “If this policy is not adopted, the House Committee on Higher Education stands ready to act,” he said on social media after the board delayed a vote on the policy for the second time.

    Iowa Gov. Kim Reynolds signed a bill in May 2024 that prohibits public universities from maintaining or funding DEI offices or from officially weighing in on a wide array of issues. The list includes allyship, cultural appropriation, systemic oppression, social justice, racial privilege or “any related formulation” of the listed topics. 

    The law prompted PEN America, a free expression advocacy group, to include Iowa on its yearly list of states that enacted “educational gag orders.”

    The board of regents has also moved to limit diversity work on campus. In 2023, it ordered the universities under its purview to cut all campuswide DEI efforts not required to comply with the law or accreditation standards.

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  • House Passes Reconciliation Bill With “No Tax on Overtime” Proposal – CUPA-HR

    House Passes Reconciliation Bill With “No Tax on Overtime” Proposal – CUPA-HR

    by CUPA-HR | June 17, 2025

    On May 22, the U.S. House of Representatives passed H.R. 1, titled the “One Big Beautiful Bill Act.” Notably, the reconciliation “megabill” includes a provision to implement President Trump’s campaign pledge on “no tax on overtime,” among various legislative priorities for Republicans.

    The “No Tax on Overtime” Proposal

    The overtime proposal creates a temporary above-the-line deduction from gross income for overtime pay required under the Fair labor Standards Act (FLSA). The bill does not set a cap on the amount of overtime pay that can be deducted, but it limits the application of the provision to employees who earn less than $160,000 per year, and it does not extend the deduction to independent contractors. If signed into law, the deduction will be available for tax years 2025 through 2028, and employers would be required to report overtime compensation on workers’ W-2 forms during this time.

    The proposed deduction only applies to workers’ federal income taxes and overtime pay as required by the FLSA, raising some compliance concerns for employers in states with different overtime pay requirements than those required under the FLSA and for employers whose overtime pay requirements are set by a collective bargaining agreement (CBA) with overtime pay that differs from the FLSA requirements. These employers will likely need to track both the FLSA-mandated overtime hours and pay to ensure workers’ W-2s are accurate and in compliance with the law while also ensuring they are tracking the overtime hours and pay in a manner that also complies with the more stringent state or CBA obligations.

    While CBA requirements vary case-by-case, there are five states with overtime pay requirements under their state wage and hour laws that differ from the requirements under the FLSA:

    • Alaska requires 1.5 times workers’ regular rate of pay for hours worked beyond 8 in a day or 40 in a workweek;
    • California requires 1.5 times an employee’s regular rate of pay for hours worked more than 8 in a day, 40 in a workweek, or the first 8 hours on a seventh consecutive day of work in a workweek. The state also requires double an employee’s regular rate of pay for any hours worked over 12 in a day or for all hours worked over 8 on a seventh consecutive day of work in a workweek;
    • Colorado requires overtime pay after 12 hours worked in a day or 40 hours in a workweek;
    • Nevada requires overtime pay for any hours worked beyond 8 in a day if the employee earns less than 1.5 times the state minimum wage; and
    • Oregon has industry-specific daily overtime rules that apply to hospitals, canneries and manufacturers.

    Looking Ahead

    The reconciliation bill is still early in the legislative process. For now, the “no tax on overtime” provision is only included in the House version of the bill. The Senate is currently drafting its version of the reconciliation bill, and they may choose to alter the no tax on overtime proposal — possibly including language of the Overtime Wages Tax Relief Act that was introduced earlier this year by Senator Roger Marshall (R-KS). CUPA-HR will continue to monitor for further developments on this issue.



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  • House Introduces Bipartisan Paid Leave Legislative Proposal – CUPA-HR

    House Introduces Bipartisan Paid Leave Legislative Proposal – CUPA-HR

    by CUPA-HR | May 13, 2025

    On April 30, Representatives Stephanie Bice (R-OK-5) and Chrissy Houlahan (D-PA-6) introduced the More Paid Leave for More Americans Act, the result of more than two years of work by the House Paid Family Leave Working Group, which Bice and Houlahan co-chair. The package consists of two parts: the Paid Family Leave Public-Private Partnerships Act and the Interstate Paid Leave Action Network (I-PLAN) Act.

    The Legislation

    The first bill of the package — the Interstate Paid Leave Action Network (I-PLAN) Act — would create a national framework “to provide support and incentives for the development and adoption of an interstate agreement that facilitates streamlined benefit delivery, reduced administrative burden, and coordination and harmonization of State paid family and medical leave programs.” It is intended to help resolve the confusion and inconsistencies across the state programs, in particular for the distribution of benefits to workers who work across state lines. The network will also work to identify best practices from existing state paid leave programs, help states harmonize their policies and resolve conflicts with other states’ programs, and help employees access their benefits.

    The second bill — the Paid Family Leave Public-Private Partnerships Act — would establish a three-year pilot program in which the Department of Labor would provide competitive grants to states that establish paid family leave programs that meet certain criteria. To qualify, states would be required to partner with private entities via Public-Private Partnerships (PPP) and participate in I-PLAN. The state programs would be required to offer at least six weeks of paid leave for the birth or adoption of a new child and provide a wage replacement rate between 50% and 67% depending on the income of the individual. Individuals at or below the poverty line for a family of four must receive 67% of their wages, while individuals earning more than double the poverty line for a family of four must receive 50% of their wages. The maximum benefit a worker can receive is 150% of a state’s average weekly wage.

    Looking Ahead

    Bice and Houlahan are optimistic about the package’s prospects, as both bills do maintain bipartisan support and President Trump has indicated an interest in pursuing a federal paid leave program. That said, it is uncertain if and when the House and Senate labor committees would take up these bills for a markup, which is the first step in getting the bill to a floor vote. CUPA-HR will continue to keep members apprised of updates related to this bill and other paid leave proposals that emerge from Congress.



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  • VICTORY: University of Wyoming administrators reject student government’s proposal to slash media funding

    VICTORY: University of Wyoming administrators reject student government’s proposal to slash media funding

    Administrators at the University of Wyoming have agreed to cut student media funding by only 8.5%, repudiating a censorial student government proposal to punish student media by cutting the funding by 75% because students “don’t like” student newspaper the Branding Iron’s editorial choices. The change came after FIRE wrote to the university, explaining that the proposed funding cut was based on the content of the student newspaper, flagrantly violating the First Amendment.

    On Nov. 19, the Associated Students of the University of Wyoming passed a resolution recommending a drastic 75% cut to the fee that funds student media, including the student newspaper Branding Iron. The resolution, drafted by the Tuition Allocation and Student Fee Review Committee, cited staffing challenges, the quantity of advertising, and supposed “errors” in content as reasons for the cut. During the debate, several senators made their true motivations plain, tying their votes to personal distaste for the Branding Iron’s editorial choices, writing quality, and student opinions.

    When they distribute student fee funding, student government members exercise state power. The First Amendment bars the government, and the students to whom it delegates its power, from taking away resources based on the content of a media outlet’s expression. For good reason.

    Student media often have to write critical stories about their peers, administrators, and student government officials. So it goes when serving as a check on power, but that work would be nigh impossible without the First Amendment’s guarantee that citizens cannot be retaliated against for what they say. Cutting funding based on content impairs student journalists’ ability to confidently report on the world around them, and FIRE has beat back similar efforts across the country.

    Student media is the microphone that makes sure all these voices are heard. And FIRE is here to make sure that mic is never cut off.

    Though several student senators argued they had no “vendetta” against the student paper, their reliance upon opinions about the content of student media was enough to render their decision content-based. And any content-based restriction, however innocuous the stated motivation, must be regarded with a jaundiced eye lest those in power go unchecked.

    Thanks to FIRE’s efforts, student journalists at UW are back to covering events in their community and beyond.

    Having such dedicated staff on the local beat is especially important in places like Wyoming, where there are fewer outlets to cover local issues.

    “When we look at the University of Wyoming, and we consider that it is the only four year university in our entire state, our student media’s impact is so much more important,” said Branding Iron editor-in-chief Ven Meester. “We are a college campus in one of the reddest states in the nation. From student organizations, to speakers, to community events, we have an exceptional amount of political diversity.”

    Student media is the microphone that makes sure all these voices are heard. And FIRE is here to make sure that mic is never cut off.

    FIRE defends the rights of students and faculty members — no matter their views — at public and private universities and colleges in the United States. If you are a student or a faculty member facing investigation or punishment for your speech, submit your case to FIRE today. If you’re a faculty member at a public college or university, call the Faculty Legal Defense Fund 24-hour hotline at 254-500-FLDF (3533). If you’re a college journalist facing censorship or a media law question, call the Student Press Freedom Initiative 24-hour hotline at 717-734-SPFI (7734).

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  • Proposal to Split the University of Wisconsin System into Winners and Losers (WLUX FOX11)

    Proposal to Split the University of Wisconsin System into Winners and Losers (WLUX FOX11)







    Higher Education Inquirer : Proposal to Split the University of Wisconsin System into Winners and Losers (WLUX FOX11)




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  • Fall 2022 Regulatory Agenda Targets Release Dates for DOL’s Overtime Proposal and Final Title IX Rule – CUPA-HR

    Fall 2022 Regulatory Agenda Targets Release Dates for DOL’s Overtime Proposal and Final Title IX Rule – CUPA-HR

    by CUPA-HR | January 10, 2023

    On January 4, 2023, the Biden administration released the anticipated Fall 2022 Unified Agenda of Regulatory and Deregulatory Actions (Regulatory Agenda), providing the public with a detailed glimpse into the regulatory and deregulatory activities under development across approximately 67 federal departments, agencies and commissions. Agendas are generally released in the fall and spring and set target dates for each agency and sub-agency’s regulatory actions for the coming year.

    After completing a thorough review of the items included in the Regulatory Agenda, CUPA-HR put together the following list of significant proposed actions for members.

    Department of Labor

    Wage and Hour Division — Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales and Computer Employees

    According to the Regulatory Agenda, the Department of Labor (DOL)’s Wage and Hour Division (WHD) is now planning to release a Notice of Proposed Rulemaking (NPRM) to address changes to the Fair Labor Standards Act (FLSA)’s overtime pay requirements in May 2023. The WHD first announced their intention to move forward with the NPRM in the Fall 2021 Regulatory Agenda, stating its goal “to update the salary level requirement of the section 13(a)(1) exemption [under the FLSA].”

    As a refresher, changes to overtime pay requirements have been implemented through regulations under both the Obama and Trump administrations. In May 2016, the Obama administration’s DOL issued a final rule increasing the salary threshold from $23,660 to $47,476 per year and imposed automatic updates to the threshold every three years. However, court challenges prevented the rule from taking effect and it was permanently enjoined in September 2017. After the Trump administration started the rulemaking process anew, the DOL issued a new final rule in September 2019 raising the minimum salary level required for exemption from $23,660 annually to $35,568 annually. This final rule went into effect January 1, 2020 and remains in effect today.

    Since the regulation’s reintroduction in the Fall 2021 Regulatory Agenda, CUPA-HR has participated in several DOL listening sessions and has sent letters to the DOL expressing concerns with the timing of the rulemaking. Specifically, our concerns highlight the ongoing challenges of the COVID-19 pandemic and the continued reliance on hybrid and remote work, a historically tight labor market in the U.S. and the effects of inflation on the workforce.

    Wage and Hour Division — Employee or Independent Contractor Classification Under the Fair Labor Standards Act

    In May 2023, the WHD anticipates issuing a final rule to amend the current method for determining independent contractor status for workers.

    On October 13, 2022, the DOL published an NPRM to rescind the current method for determining independent contractor status under the FLSA. 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.

    Employment and Training Administration — Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States 

    In September 2023, the DOL’s Employment and Training Administration (ETA) plans to issue an NPRM to establish “a new wage methodology for setting prevailing wage levels for H-1B/H-1B1/E-3 and PERM programs consistent with the requirements of the Immigration and Nationality Act.” The proposal will likely amend the Trump administration’s final rule that was scheduled to take effect on November 14, 2022, but was subsequently vacated by a federal court in June 2021. The new proposal will take into consideration the feedback it received in response to a Request for Information (RFI) on data and methods for determining prevailing wage levels “to ensure fair wages and strengthen protections for foreign and U.S. workers.”

    CUPA-HR filed comments in opposition to the Trump administration’s regulations on the issue and in response to the Biden administration’s RFI.

    National Labor Relations Board

    Joint Employer

    In August 2023, the National Labor Relations Board (NLRB) plans to release its anticipated final rule to amend “the standard for determining whether two employers, as defined under the National Labor Relations Act (NLRA), are a joint employer under the NLRA.”

    On September 7, 2022, the NLRB issued an NPRM on the joint employer standard. 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 and 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.”

    Department of Education

    Office for Civil Rights — Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance 

    In May 2023, the Department of Education’s Office for Civil Rights (OCR) plans to release its highly anticipated Title IX final rule. The rulemaking would finalize the June 2022 NPRM to rollback and replace the Trump administration’s 2020 regulations, specifically with respect to its grievance procedures, while simultaneously expanding protections against sex-based discrimination to cover sexual orientation, gender identity and pregnancy or related conditions.

    CUPA-HR filed comments in September 2022 in response to the NPRM. In our comments, we tried to bring attention to the possible impact the proposed regulations could have on how higher education institutions address employment discrimination. The Department of Education received over 200,000 comments in response to the NPRM, which they must review prior to issuing a final rule to implement their changes.

    In addition to the Title IX rulemaking, the OCR also announced its intention to issue an NPRM to address Title IX protections as it relates to athletics programs at educational institutions. The Department of Education announced its intention to pursue a separate rulemaking to address transgender students participation in athletic programs at institutions of higher education and such protections afforded to them under Title IX after the topic was frequently discussed in the media and in Congress in 2022. According to the Regulatory Agenda, the NPRM was set to be released in December 2022, but it has not yet been released.

    Department of Homeland Security

    U.S. Immigration and Customs Enforcement — Optional Alternative to the Physical Examination Associated With Employment Eligibility Verification (Form I-9) 

    According to the Regulatory Agenda, the Department of Homeland Security (DHS) plans to issue a final rule in May 2023 that would finalize the agency’s proposed rule aiming to “revise employment eligibility verification regulations to allow the Secretary to authorize alternative document examination procedures in certain circumstances or with respect to certain employers.”

    On August 18, 2022, the DHS published its NPRM on optional alternative examination practices for employers when reviewing an individual’s identity and employment authorization documents required by the Form I-9, Employment Eligibility Verification. If finalized, the proposed rulemaking would create a framework under which the Secretary of Homeland Security could allow alternative options for verifying those documents, such as reviewing the documents via video, fax, or email rather than directly allowing employers and agents to use such alternative examination options. According to the NPRM, the Secretary would be authorized to implement the alternative examination options in a pilot program if they determine such procedures would offer an equivalent level of security, as a temporary measure to address a public health emergency declared by the Secretary of Health and Human Services, or a national emergency declared by the President.

    CUPA-HR filed comments in response to the DHS NPRM in October 2022. The comments were supportive of the Department moving forward with the NPRM, but cautioned against requiring secondary, in-person review of I-9 documents after virtual inspection and once an employee is in-person on a regular and consistent basis; issuing training for document detection and/or anti-discrimination training that may be offered at a high cost without proper vetting, and requiring institutions to be enrolled in E-Verify to participate in the alternative options.

    U.S. Citizenship and Immigration Services — Modernizing H-1B Requirements and Oversight and Providing Flexibility in the F-1 Program

    In October 2023, the DHS’s United States Citizenship and Immigration Services (USCIS) plans to release an NPRM to “amend its regulations governing H-1B specialty occupation workers and F-1 students who are the beneficiaries of timely filed H-1B cap-subject petitions.” The NPRM will specifically propose to “revise the regulations relating to ‘employer-employee relationship’ and provide flexibility for start-up entrepreneurs; implement new requirements and guidelines for site visits including in connection with petitions filed by H-1B dependent employers whose basic business information cannot be validated through commercially available data; provide flexibility on the employment start date listed on the petition (in limited circumstances); address ‘cap-gap’ issues; bolster the H-1B registration process to reduce the possibility of misuse and fraud in the H-1B registration system, and clarify the requirement that an amended or new petition be filed where there are material changes, including by streamlining notification requirements relating to certain worksite changes, among other provisions.”

    Department of Agriculture

    Agriculture Acquisition Regulation: Internal Policy and Procedural Updates and Technical Changes

    In May 2023, the Department of Agriculture (USDA) plans to re-propose an NPRM that was previously issued in February 2022 and included controversial provisions that would require federal contractors on projects procured by the agency to certify their compliance with dozens of federal and state labor laws and executive orders.

    In the February NPRM, the USDA provided only 32 days for stakeholder comment submissions on the proposal. CUPA-HR filed an extension request with the department asking for an additional 90 days to “evaluate the NPRM’s impact on [members’] research missions and collect the information needed in order to provide thoughtful and accurate input to the USDA,” as well as official comments that were pulled from 2012 comments CUPA-HR submitted with the Society for Human Resource Management (SHRM).

    While it is unclear whether the May NPRM will include the blacklisting language again, the abstract of the re-proposal states that “the new proposed rule would be responsive to the comments received on our February 2022 proposal.”



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  • DOL Targets October 2022 for Release of a New Overtime Proposal – CUPA-HR

    DOL Targets October 2022 for Release of a New Overtime Proposal – CUPA-HR

    by CUPA-HR | June 29, 2022

    On June 21, the Biden administration released the anticipated Spring 2022 Unified Agenda of Regulatory and Deregulatory Actions (Regulatory Agenda), providing the public with a detailed glimpse into the regulatory and deregulatory activities under development across approximately 67 federal departments, agencies and commissions. Agendas are generally released in the fall and spring and set target dates for each agency and sub-agency’s regulatory actions for the coming year.

    Based on a thorough review of the Regulatory Agenda, CUPA-HR would like to highlight the following proposed actions for members, including an updated target date for the release of a new overtime proposal.

    Department of Labor

    Wage and Hour Division – Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales and Computer Employees

    According to the Regulatory Agenda, the Department of Labor (DOL)’s Wage and Hour Division (WHD) is now planning to release a Notice of Proposed Rulemaking (NPRM) to address changes to the Fair Labor Standards Act (FLSA)’s overtime pay requirements in October 2022. In the Fall 2021 Regulatory Agenda, WHD announced their intention to move forward with the NPRM with the goal “to update the salary level requirement of the section 13(a)(1) exemption [under the FLSA].”

    Changes to overtime pay requirements have been implemented through regulations under both the Obama and Trump administrations. In May 2016, the Obama administration’s DOL issued a final rule increasing the salary threshold from $23,660 to $47,476 per year and imposed automatic updates to the threshold every three years. However, court challenges prevented the rule from taking effect and it was permanently enjoined in September 2017. After the Trump administration started the rulemaking process anew, in September 2019, DOL issued a new final rule raising the minimum salary level required for exemption from $23,660 annually to $35,568 annually. This final rule went into effect January 1, 2020, and it remains in effect today.

    From April through June 2022, DOL held several listening sessions for interested stakeholders to discuss any support or concerns they may have with the anticipated rulemaking. CUPA-HR participated in all of the calls, expressing our concerns with the timing of the rulemaking as it relates to the ongoing challenges of the COVID-19 pandemic, a historically tight labor market, and increasing inflation.

    Employment and Training Administration – Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States

    In October 2022, DOL’s Employment and Training Administration (ETA) plans to issue an NPRM to establish “a new wage methodology for setting prevailing wage levels for H-1B/H-1B1/E-3 and PERM programs consistent with the requirements of the Immigration and Nationality Act.” The proposal will likely amend the Trump administration’s final rule that was scheduled to take effect on November 14, 2022, but was subsequently vacated by a federal court in June 2021. The new proposal, which is included in the Department’s Statement of Regulatory Priorities, will take into consideration the feedback it received in response to a Request for Information (RFI) on data and methods for determining prevailing wage levels “to ensure fair wages and strengthen protections for foreign and U.S. workers.”

    CUPA-HR filed comments in opposition to the Trump administration’s regulations on the issue and in response to the Biden administration’s RFI.

    National Labor Relations Board

    Joint Employer

    In July 2022, the National Labor Relations Board (NLRB) is planning to release an NPRM to potentially amend the standard determining when two employers may be considered joint employers under the National Labor Relations Act. The new standard will revise the 2020 Trump Administration’s final rule, which reversed the Obama-era NLRB decision in the 2015 Browning-Ferris Industries case and established that an entity can only be a joint employer if it actually exercises control over the essential terms and conditions of another employer’s employees. While details of the Democratic-majority NLRB’s NPRM on joint employer status are unknown, we would expect them to revise the current standard to reflect the Obama-era decision.

    Department of Homeland Security

    USCIS – Modernizing H-1B Requirements and Oversight and Providing Flexibility in the F-1 Program

    In May 2023, the Department of Homeland Security (DHS)’s United States Citizenship and Immigration Services (USCIS) plans to release an NPRM to “amend its regulations governing H-1B specialty occupation workers and F-1 students who are the beneficiaries of timely filed H-1B cap-subject petitions.” The NPRM will specifically propose to “revise the regulations relating to ‘employer-employee relationship’ and provide flexibility for start-up entrepreneurs; implement new requirements and guidelines for site visits including in connection with petitions filed by H-1B dependent employers whose basic business information cannot be validated through commercially available data; provide flexibility on the employment start date listed on the petition (in limited circumstances); address ‘cap-gap’ issues; bolster the H-1B registration process to reduce the possibility of misuse and fraud in the H-1B registration system; and clarify the requirement that an amended or new petition be filed where there are material changes, including by streamlining notification requirements relating to certain worksite changes, among other provisions.”

    ICE – Optional Alternative to the Physical Examination Associated With Employment Eligibility Verification (Form I-9)

    According to the Regulatory Agenda, DHS plans to issue an NPRM in July 2022 to “revise employment eligibility verification regulations to allow the Secretary to authorize alternative document examination procedures in certain circumstances or with respect to certain employers.”

    DHS has provided temporary flexibility in the Form I-9 verification process since the beginning of the COVID-19 pandemic. Specifically, the flexibility guidance allows for remote inspection of Form I-9 documents in situations where employees work exclusively in a remote setting due to COVID-19-related precautions. While that guidance is only temporary, DHS issued a Request for Public Input (RPI) on October 26, 2021, to determine whether those flexibilities should be kept in place permanently. It is possible that DHS will use that feedback to develop and implement this NPRM.

    CUPA-HR has engaged with DHS on the Form I-9 flexibilities through the pandemic. Most recently, DHS announced an additional extension of the Form I-9 flexibility guidance through October 31, 2022. CUPA-HR sent a letter to USCIS Director Ur M. Jaddou asking for this additional extension. Additionally, CUPA-HR submitted comments in response to the RPI based on a recent survey detailing members’ experiences with the Form I-9 verification process flexibilities.

    On June 7, ICE sent its proposal to the Office of Information and Regulatory Affairs (OIRA). OIRA is the White House office responsible for reviewing regulations and proposed regulations before they are publicly released and generally takes 30-90 days for this review, indicating ICE is on target to issue their proposal in July.

    Department of Agriculture

    Agriculture Acquisition Regulation: Internal Policy and Procedural Updates and Technical Changes

    In December 2022, the Department of Agriculture (USDA) plans to re-propose an NPRM that was previously issued in February 2022 and included controversial provisions that would require federal contractors on projects procured by the agency to certify their compliance with dozens of federal and state labor laws and executive orders.

    In the February NPRM, USDA provided only 32 days for stakeholder comment submissions on the proposal. CUPA-HR filed an extension request with the department asking for an additional 90 days to “evaluate the NPRM’s impact on [members’] research missions and collect the information needed in order to provide thoughtful and accurate input to the USDA,” as well as official comments that were pulled from 2012 comments CUPA-HR submitted with the Society for Human Resource Management (SHRM).

    While it is unclear whether the December NPRM will include the blacklisting language again, the abstract of the re-proposal states that “the new proposed rule would be responsive to the comments received on our February 2022 proposal.”

     



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