Tag: Protections

  • Trump “Chipping Away” at DACA and Other Protections

    Trump “Chipping Away” at DACA and Other Protections

    Tricia McLaughlin, assistant press secretary at the Department of Homeland Security, recently told the undocumented immigrants brought to the U.S. as children known as Dreamers, who have for years participated in the Deferred Action for Childhood Arrivals program, to self-deport.

    She insisted that the Obama-era program, which protects these individuals from deportation and gives them work authorization, “does not confer any form of legal status in this country.”

    “We encourage every person here illegally to take advantage of this offer and reserve the chance to come back to the U.S. the right, legal way,” McLaughlin said in a statement to NPR.

    Her comments contradict those made by President-elect Donald Trump in a December interview with Meet the Press. He said then that he’d willingly work with Democrats on a plan to keep Dreamers in the country.

    “They were brought into this country many years ago,” he told Meet the Press. “Some of them are no longer young people, and in many cases they’ve become successful. They have great jobs … We’re going to have to do something with them.”

    This conflicting rhetoric is emblematic of the tenuous position Dreamers, including thousands of college students, have occupied for years, uncertain whether past protections and legal promises will hold. Today, most of the country’s roughly 400,800 undocumented students don’t have DACA status. But the Presidents’ Alliance on Higher Education and Immigration estimates about 119,000 are eligible for the program based on 2022 data.

    DACA has suffered—and survived—attacks before, including from Trump during his first term, but immigrant advocates say this administration is launching precision strikes against Dreamers; instead of moving to end the DACA program wholesale, they’re casting doubt on the program’s legal power, and, one by one, targeting other benefits historically extended to Dreamers.

    Gaby Pacheco, president and CEO of TheDream.US, a scholarship provider for undocumented students, said the federal government is “chipping away” at protections and public benefits for this population.

    The administration is “coming at it from different angles in different ways and creating a lot of chaos,” Pacheco said. “A lot of people are confused and are trying to figure out what’s next and how to protect themselves,” including students and higher ed leaders.

    A ‘Methodical, Surgical’ Attack

    Legal challenges to DACA go back more than a decade. The U.S. Supreme Court prevented the program from expanding in 2016. Then, during Trump’s first term, he ordered the end of DACA under pressure from Republican lawmakers. When the Supreme Court ruled against his plans to immediately end the program, Trump tried to curb DACA in 2020 by rejecting new applications and limiting the renewal period.

    Earlier this year, a three-judge panel for the U.S. Court of Appeals for the Fifth Circuit unanimously affirmed a 2023 district court order that deemed DACA unlawful, but the judges also issued a stay, leaving the status quo unchanged for now. No new DACA applications have been processed since the judge who made that order, U.S. District Judge Andrew S. Hanen, first ruled against the program in 2021. Hanen issued a new order in late July asking for additional written arguments from the parties in the case.

    Pacheco said that now the government is doing a “very methodical, surgical” unwinding of Dreamers’ rights.

    For example, the administration revoked DACA recipients’ eligibility for Affordable Care Act health insurance. Some Dreamers with DACA status, including students, have been detained by law enforcement.

    Meanwhile, the U.S. Department of Justice sued four states for allowing local undocumented students, with and without DACA, to pay in-state tuition, successfully ending these policies in Texas and Oklahoma with support from state lawmakers. The Department of Education is also investigating five universities—the University of Louisville, the University of Nebraska, the University of Miami, the University of Michigan and Western Michigan University—alleging scholarships they provide for undocumented and DACA students violate civil rights law.

    “There has been an escalating series of attacks and targeting of undocumented students, including those with DACA, and the institutions seeking to enroll and support them under this administration,” said Miriam Feldblum, president and CEO of the Presidents’ Alliance. “Over all, for students with and without DACA, this has become an increasingly anxious time” as well as for “campuses who are being targeted.”

    A DACA recipient, who gained DACA status in 2014 and graduated with a bachelor’s degree in 2022, said the slew of new policies is “really affecting” day-to-day life for undocumented immigrants, including those in the program.

    The recipient, who asked to remain anonymous, said the DACA program offered some sense of safety, but that protection now feels “very thin,” like a “Band-Aid on a wound.”

    “I can’t imagine what it must feel like to be, especially a younger student or somebody who is currently in college,” they said. “You’re probably in the middle of your academic career and your state has now rescinded in-state tuition … How do you finish your education? What are you supposed to do?”

    ‘Just the Beginning’

    Diego Sánchez, director of policy and strategy at the Presidents’ Alliance, said in a recent webinar that he worries the administration’s coordinated attack on DACA, and Dreamers over all, could signal a larger-scale war on the policy. He believes it’s a “very real concern right now” that the Trump administration could try to end DACA through the formal rule-making process—posting a proposed rule for public feedback, then issuing a regulation to phase out the program.

    “We haven’t seen a formal announcement, but the rhetoric coming out of DHS, along with the uptick in enforcement, the detention of Dreamers all over the country, some who’ve had DACA, some who have never benefited from DACA, suggests that this may be under serious consideration,” he said.

    Pacheco also fears life for Dreamers in college is going to get worse. She noted that the One Big Beautiful Bill Act poured about $170 billion into immigration enforcement. And while ICE doesn’t have access to the Free Application for Federal Student Aid database, a data-sharing agreement between the Internal Revenue Service and the Department of Homeland Security has students and their advocates worried about immigrant students’ data. Meanwhile, the federal government has plenty of data on DACA recipients, who have been dutifully filing their renewals every two years.

    “I always try to be very careful how I say this to our students and to folks when I’m speaking, but this is really just the beginning,” she said.

    Higher Ed as ‘Lines of Defense’

    Immigrant advocates say colleges and universities have a vital role to play in making DACA and undocumented students safer.

    Pacheco believes higher ed institutions over all are “one of the biggest lines of defense for students.” College officials can have plans in place for potential ICE visits and insist that law enforcement show warrants if they come looking for undocumented students, she said, and the fact of being a student, if they’re detained, can elicit public sympathy. And campuses have networks of alumni who can “rally around” them.

    “One of the safest places where they can be is in a classroom, in an institution of higher learning,” Pacheco said.

    Feldblum said higher ed institutions can also support Dreamers by not complying pre-emptively with the Trump administration’s legal challenges to benefits. For example, scholarships based on immigration status are “permissible,” she said, provided they don’t discriminate based on race, ethnicity, national origin or shared ancestry.

    “The key here is to be clear that these programs, this status, is lawful,” Feldblum said. “And while the federal government may be attempting to threaten different regulations or programs … states and colleges and universities need to make sure they are not pre-emptively changing policy or regulation when the law does not require them to do so.”

    Pacheco said she empathizes with higher ed leaders who are nervous to put their federal funds at risk by showing public support for their undocumented students. But she believes, at some point, higher ed is going to need to push back.

    “When is it going to be enough?” she said. “And when are we going to draw a line and fight back and stand up for academic freedom and stand up for what these institutions have pledged, which is to educate everyone and to ensure that everyone has access to an equitable education?”

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  • VICTORY: New York high school to strengthen First Amendment protections following FIRE lawsuit

    VICTORY: New York high school to strengthen First Amendment protections following FIRE lawsuit

    CHAPPAQUA, NY, June 25, 2025 — The Foundation for Individual Rights and Expression agreed to drop its First Amendment lawsuit against Chappaqua Central School District after the district’s board of education adopted a robust First Amendment regulation that will protect the constitutional free speech rights of its students.

    FIRE sued the district in 2024 on behalf of O.J., an LGBTQ+ student suspended for violating the district’s “hate speech” definition in its code of conduct because he used the words “faggot” and “twink” in a rap song recorded in his friend’s home after school. In the song, O.J. rapped the refrain, “faggot, fart, balls.” The song also included another person’s lyrics, which contained violent imagery. After O.J.’s friend uploaded the song to a music-sharing website, the school received three complaints and promptly suspended the student.

    “In the Supreme Court’s decision in Mahanoy Area School District v. B.L., the Court held that students’ off-campus, nondisruptive speech is protected by the First Amendment,” said FIRE attorney Colin McDonell. “That is true even when the speech receives criticism.”

    In communications with the district, O.J.’s father cited Mahanoy and argued the school could not punish his son for his off-campus speech because it did not disrupt the educational environment. When this proved unsuccessful, O.J.’s father reached out to FIRE for assistance. On April 15, 2024, FIRE sued the district on behalf of O.J. and his father in the federal district court for the Southern District of New York.

    After commencement of the lawsuit, FIRE and the district worked together to craft a First Amendment regulation that would protect its students’ rights to express themselves both on and off school campus, consistent with and reconciled with Mahanoy and the New York State Dignity for All Students Act and its regulations. The district’s insurer also agreed to pay $70,000 to FIRE, encompassing attorneys’ fees, and the district removed the disciplinary action based on the song from the student’s file.

    “With its adoption of a First Amendment regulation, the board of education has affirmed the rights of its students to engage in protected speech on and off campus,” said FIRE Senior Attorney Greg H. Greubel. “We’re pleased that we could work with the board to avoid further litigation and turn this situation into a positive outcome for our client and all students in the district.”

    The Foundation for Individual Rights and Expression (FIRE) is a nonpartisan, nonprofit organization dedicated to defending and sustaining the individual rights of all Americans to free speech and free thought — the most essential qualities of liberty. FIRE educates Americans about the importance of these inalienable rights, promotes a culture of respect for these rights, and provides the means to preserve them.

    CONTACT:

    Karl de Vries, Director of Media Relations, FIRE: 215-717-3473; [email protected]

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  • Ohio and Kentucky Ban DEI, Reduce Tenure Protections

    Ohio and Kentucky Ban DEI, Reduce Tenure Protections

    Republican-controlled legislatures in two bordering states, Ohio and Kentucky, have now passed laws requiring post-tenure review policies at public universities and banning diversity, equity and inclusion offices, along with other DEI activities.

    Many faculty and some Democratic leaders say the new laws threaten academic freedom and undermine tenure. In Ohio, lawmakers passed the sweeping higher education legislation, which has been in the works for a few years, over protests from faculty and students. The Ohio Student Association, for instance, said the bill would kill higher education in the state. Meanwhile, in Kentucky, Republican lawmakers rushed legislation through the process in order to successfully override their Democratic governor’s veto and put their higher education changes into law.

    Ohio and Kentucky join Arkansas, Utah and Wyoming this year as states where Republicans have passed laws targeting DEI and/or promoting alternative “intellectual diversity.” Even if the Trump administration’s ongoing nationwide attacks on DEI founder, these laws lock in restrictions on DEI in these states, preventing institutions from reversing course on diversity program rollbacks.

    Much of the new laws in Ohio and Kentucky echo the DEI bans that the other states have enacted, but Ohio’s legislation goes further than Kentucky’s, allowing immediate “for cause post-tenure reviews,” banning strikes for a large group of faculty and much more.

    Ohio governor Mike DeWine, a Republican, signed into law Friday a version of higher education legislation that’s been debated for the last two years but had failed to pass despite Republican majorities in the capitol. Senate Bill 1, the evolution of the failed legislation, combined numerous postsecondary changes that GOP legislators have sought to enact in other states.

    Among many other things, the new law bans full-time faculty from striking. It prohibits DEI offices, DEI in job descriptions and DEI in scholarships, without defining what DEI is. It requires institutions to “demonstrate intellectual diversity” in a range of areas, including course approval, general education requirements, common reading programs and faculty annual reviews. It also requires four-year institutions to publicly post online the syllabi for undergraduate courses, including the names of the instructors and “any required or recommended readings.” Community colleges must post more general syllabi.

    SB 1 also mandates a version of institutional neutrality, requiring colleges and universities to declare they “will not endorse or oppose, as an institution, any controversial belief or policy, except on matters that directly impact the institution’s funding or mission of discovery, improvement, and dissemination of knowledge.” The “controversial” beliefs and policies that institutions are required to stay silent on include any that are “the subject of political controversy, including issues such as climate policies, electoral politics, foreign policy, diversity, equity, and inclusion programs, immigration policy, marriage, or abortion.” (Ohio colleges and universities do retain the right to endorse Congress when it goes to war.)

    The law further requires all institutions to establish post-tenure review policies—which could lead to firing tenured faculty. The legislation bans unions from using their collective bargaining rights to negotiate over these policies. And SB 1 allows certain administrators to launch “an immediate and for cause post-tenure review at any time for a faculty member who has a documented and sustained record of significant underperformance” outside their regular annual performance evaluations.

    “This bill eliminates tenure,” said Sara Kilpatrick, executive director of the Ohio Conference of the American Association of University Professors. “If certain administrators can call for post-tenure review at any time and fire a faculty member without due process, that is not real tenure, that is tenure in name only.”

    Pointing to a provision for an appeals process, Republican state senator Jerry Cirino, who filed SB 1, said, “They’re lying about that” and “once again, the AAUP is misrepresenting the facts.”

    He added that the bill is “very pro–higher education.”

    “I’m not going to fall for these false narratives that the left is trying to put out there mischaracterizing this bill,” Cirino said.

    The Ohio governor’s office didn’t respond to Inside Higher Ed’s requests for comment Monday about why DeWine signed this bill into law.

    In Kentucky, the Democratic governor didn’t go along with the legislature, vetoing an anti-DEI bill. But Republicans overrode Gov. Andy Beshear.

    Bucking Beshear

    Kentucky’s House Bill 4 bans what that legislation defines as DEI offices, employees and training in public colleges and universities, as well as the use of affirmative action in hiring and in deciding scholarships and vendor selection. It also affects curricula by barring institutions from requiring courses whose “primary purpose is to indoctrinate participants with a discriminatory concept.”

    The new law generally defines a “discriminatory concept” as one that “justifies or promotes differential treatment or benefits” for people based on “religion, race, sex, color or national origin.” It broadly characterizes DEI as promoting a discriminatory concept. And it defines “indoctrinate” as imbuing or attempting to “imbue another individual with an opinion, point of view or principle without consideration of any alternative.”

    Additionally, under the new law, the Council on Postsecondary Education, which oversees Kentucky’s public colleges and universities, can’t approve new degrees or certificates that require courses or trainings primarily intended to “indoctrinate” with discriminatory concepts. And it encourages the council to eliminate current academic programs that contain such requirements.

    Beshear vetoed House Bill 4 on March 19 and defended diversity programs, adding that the legislation attempts to “control how universities and colleges meet the needs of their students and prepare them for their future.”

    “Acting like racism and discrimination no longer exist or that hundreds of years of inequality have been somehow overcome and there is a level playing field is disingenuous,” Beshear added. “History may look at this time and this bill as part of the anti–civil rights or pro-discrimination movement. Kentucky should not be a part of that movement.”

    On Thursday, the Kentucky House voted 79 to 19 to override this veto, and the Senate voted 32 to 6.

    Beshear also vetoed another bill, House Bill 424, which required institutions to evaluate president and faculty “productivity” at least once every four years using a board-approved process. Presidents or faculty who fail performance and productivity metrics could lose their jobs, under the bill. Beshear wrote in his veto message that the legislation “threatens academic freedom.”

    “In a time of increased federal encroachment into the public education, this bill will limit employment protections of our postsecondary institution teachers” and the state’s “ability to hire the best people,” he wrote. Lawmakers overrode him with an 80-to-20 House vote and a 29-to-9 Senate vote.

    Amy Reid, Freedom to Learn senior manager at PEN America, a free speech and academic freedom advocacy group, said in an email that the new Ohio and Kentucky laws “are not only significant blows to public higher education, but also reflect a galling disregard for the voters, educators and students in these states.”

    “Ohioans were massively organized in their opposition to SB 1, with hundreds of citizens coming to the capital to testify against the bill,” Reid said. “The legislature ignored them and so did Governor DeWine.” She said there was also “strong opposition across Kentucky” to the new laws there.

    But Tom Young, chairman of the Ohio House Workforce and Higher Education Committee, said he had heard support for the legislation from students and faculty who were concerned about speaking up. He said DEI had become “a tool for dividing people,” and most opposition to SB 1 that he heard regarded its anti-strike and post-tenure review provisions.

    “I don’t believe that any of these professors are concerned about the classroom,” Young said of faculty upset about the new law.

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

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

    by CUPA-HR | August 28, 2023

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

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

    Purpose and Definitions 

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

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

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

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

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

    Reasonable Accommodations 

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

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

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

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

    Supporting Documentation 

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

    Remedies and Enforcement 

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

    Next Steps 

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

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

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



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  • Congress and Federal Agencies Consider Paid-Leave Proposals and Protections for Pregnant and Nursing Workers – CUPA-HR

    Congress and Federal Agencies Consider Paid-Leave Proposals and Protections for Pregnant and Nursing Workers – CUPA-HR

    by CUPA-HR | May 24, 2023

    Over the past year, lawmakers have taken an increased interest in establishing and expanding upon benefits and protections for paid leave and pregnant workers. As a result, Congress passed two bills granting workplace protections to pregnant and nursing mothers at the end of 2022, while  considering new federal proposals for paid family and medical leave. This post details some of the recent actions taken by lawmakers toward a federal paid-leave policy, as well as updates from federal agencies on the enforcement of the Pregnant Workers Fairness Act (PWFA) and the Providing Urgent Maternal Protections (PUMP) for Nursing Mothers Act.

    Bipartisan Working Group on Paid Leave

    In April, a group of bipartisan lawmakers in the House of Representatives established the Bipartisan Paid Family Leave Working Group, the goal of which “is to create a bipartisan paid family leave policy that supports American families and businesses.” The group consists of three Republicans — Reps. Stephanie Bice (R-OK), Julia Letlow (R-LA) and Mariannette Miller-Meeks (R-IA) — and three Democrats — Reps. Chrissy Houlahan (D-PA), Colin Allred (D-TX) and Haley Stevens (D-MI).

    In a letter establishing the working group, the lawmakers expressed their intention to explore both state and federal policies that already exist with the goal of creating an established paid-leave policy. The letter discusses both the successes and areas to improve of the Family and Medical Leave Act, and it states that there is a bipartisan consensus that paid leave is an issue that needs to become law.

    FAMILY Act

    On May 17, Sen. Kirsten Gillibrand (D-NY) and Rep. Rosa DeLauro (D-CT) reintroduced the FAMILY Act, which would grant up to 12 weeks of paid leave for employees at companies of all sizes through funds collected by payroll taxes paid by both employees and employers. The FAMILY Act was first introduced in 2013, but the most recent bill expands upon previous text by creating a progressive scale for wage replacement during the time off. Under the bill, the lowest paid workers would be eligible to receive up to 85 percent of their wages during their time off, while the average full-time worker would receive approximately two-thirds of their wages. Additionally, the bill extends coverage to include time off taken to address personal incidents with domestic violence, stalking and/or sexual assault.

    While most Democrats have championed the FAMILY Act as their preferred proposal for paid leave, the bill is unlikely to gain Republican support and will therefore not pass the House during this Congress. Republicans have previously opposed the bill, arguing against the proposed tax increases as well as potential burdens employers may face as a result of a paid-leave mandate. Instead, Republicans who have shown interest in advancing paid-leave policies have considered programs allowing individuals to borrow from their Social Security funds, incentivizing the creation of a private insurance system for leave pay, and providing tax credits to pay for time off.

    PUMP for Nursing Mothers Act

    On May 18, the Department of Labor Wage and Hour Division (WHD) issued a Field Assistance Bulletin (FAB) with enforcement information and public guidance for the PUMP for Nursing Mothers Act. The law went into effect on April 28, after being included in the Consolidated Appropriations Act of 2023 year-end legislation to fund the federal government.

    As a reminder, the PUMP for Nursing Mothers Act amends the Fair Labor Standards Act (FLSA) to expand access to breastfeeding accommodations in the workplace for lactating employees and builds on existing protections in the 2010 Break Time for Nursing Mothers Provision by broadening breastfeeding accommodations and workplace protections. Specifically, the bill ensures reasonable time and space for working individuals to pump in their workplaces as well as remedies for employer violations of the act.

    The FAB provides details on the requirements for reasonable space and break time, compensation, and employer posting of FLSA requirements as provided under the PUMP for Nursing Mothers Act. Employers and field staff alike may use the FAB document as a resource to understand compliance with the act as enforced by WHD.

    Pregnant Workers Fairness Act

    Alongside the PUMP for Nursing Mothers Act, the PWFA was also signed into law under the Consolidated Appropriations Act of 2023. The effective date of the PWFA is June 27, and the Equal Employment Opportunity Commission (EEOC) was expected to issue proposed regulations on how best to govern and enforce the PWFA by then.

    As of May, however, the EEOC has yet to release any proposed regulations, and it seems likely that the agency will not be able to issue a proposed rule by the June 27 date. The commission currently has two Democratic and two Republican commissioners, and given the need for a majority of commissioners to vote to advance a rulemaking, the agency is unable to move proposed rules forward because commissioners are split along party lines. Through the legislation, Congress has allowed the EEOC through the end of 2023 to finalize a rulemaking on the PWFA, which may or may not be achieved,  depending on whether the Senate is able to confirm Kalpana Kotagal as the third Democratic appointee on the commission. In lieu of the proposed rulemaking, the EEOC has issued guidance on the law through an FAQ webpage addressing the protections granted under the law, which stakeholders may use as they wait for the official regulations.

    CUPA-HR continues to monitor any developments related to these proposals and laws and will keep members apprised of any policy updates related to paid leave and protections for pregnant and nursing workers.



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  • Retirement Plan Changes and Workplace Protections for Pregnant Workers Included in Fiscal Year 2023 Omnibus Bill – CUPA-HR

    Retirement Plan Changes and Workplace Protections for Pregnant Workers Included in Fiscal Year 2023 Omnibus Bill – CUPA-HR

    by CUPA-HR | January 10, 2023

    On December 29, 2022, President Biden signed the $1.7 trillion Consolidated Appropriations Act of 2023 (omnibus bill) to fund the federal government through fiscal year 2023 (FY 2023). Given the “must-pass” nature of the bill, the omnibus bill also served as a vehicle for policy unrelated to government funding that was unlikely to pass as a standalone bill in Congress. Below outlines some of the highlights that will impact higher education generally and human resources specifically.

    SECURE 2.0

    Notably, the new law includes changes to the access and use of individual retirement funds. Provisions from a package of retirement-related bills, referred to as SECURE 2.0, were ultimately included in the final omnibus package. Specifically, the new law included the following provisions, in addition to others not listed here:

    • Automatic 401(k) and 403(b) plan enrollment: The new law requires employers to automatically enroll employees into newly created 401(k) and 403(b) retirement plans at a rate between 3 to 10 percent of eligible wages. Employees will then have the option to opt out of the enrollment. Employers with 10 or fewer employees and companies in business for less than three years are excluded from this requirement.
    • Expanded eligibility for part-time employees: The law requires employers to provide the option to participate in employer retirement plans for part-time employees who work between 500 and 999 hours for at least two consecutive years (lowered from three consecutive years previously required).
    • Emergency expenses and savings accounts: Employees would be allowed to withdraw up to $1,000 from retirement accounts for qualified emergency expenses without facing early withdrawal penalties if the worker is under 59.5 years old. Additionally, the law allows employers to offer employees an emergency savings account through payroll deductions for amounts up to $2,500.
    • Matching employer contributions for student loan payments: Employers will be allowed to make contributions to their company retirement plan on behalf of employees who are paying student loans and are not contributing to a retirement account as a result.
    • Roth treatment of employer contributions: The new law grants employers the option to amend their retirement plans and allow employees to choose their employer’s matching and non-elective contributions to be made as Roth contributions.
    • Multiple Employer and Pooled Employer Plans for 403(b) plans: The new law allows employers to participate in Multiple Employer Plans (MEPs) and Pooled Employer Plans (PEPs) for 403(b) plans.

    The final law also included several changes to individual activity with respect to their retirement plans, including an increase to the “catch-up” contribution limits of up to $10,000 for older retirement savers and an increase to the age an individual is required to begin taking minimum distributions from their retirement accounts, which is now effective at age 73 and effective at age 75 effective in 2033.

    Workplace Protections for Pregnant Workers

    Additionally, Congress was able to agree on the inclusion of the Pregnant Workers Fairness Act (PWFA) and the Providing Urgent Maternal Protections (PUMP) for Nursing Mothers in the omnibus bill.

    Pregnant Workers Fairness Act

    Passed by the House in May 2021, the PWFA specifically declares that it is an unlawful employment practice for employers with 15 or more employees to do any of the following:

    • fail to make reasonable accommodations to known limitations of such employees unless the accommodation would impose an undue hardship on an entity’s business operation;
    • require a qualified employee affected by such condition to accept an accommodation other than any reasonable accommodation arrived at through an interactive process;
    • deny employment opportunities based on the need of the entity to make such reasonable accommodations to a qualified employee;
    • require such employees to take paid or unpaid leave if another reasonable accommodation can be provided; or
    • take adverse action in terms, conditions or privileges of employment against a qualified employee requesting or using such reasonable accommodations.

    Though the bill enjoyed bipartisan support in both the House and Senate, Republicans opposed bringing the bill to a Senate vote without the inclusion of a religious exemption for employers. Such exemptions were provided in the omnibus bill’s version of the PWFA, ultimately helping lead to its passage.

    PUMP for Nursing Mothers Act

    The PUMP for Nursing Mothers Act passed the House of Representatives in October 2021 with bipartisan support. The bill aims to amend the Fair Labor Standards Act (FLSA) to expand access to breastfeeding accommodations in the workplace for lactating employees and builds upon existing protections in the 2010 Breaktime for Nursing Mothers Act by broadening breastfeeding accommodations and workplace protections. In the new law, the PUMP for Nursing Mothers Act is expanded to include salaried employees exempt from overtime pay requirements under the FLSA as well as other categories of employees currently exempt from such protections, such as teachers, nurses and farmworkers. It also clarifies that break time provided under this bill is considered compensable hours worked so long as the worker is not completely relieved of duty during such breaks, and it ensures remedies for nursing mothers for employer violations of the bill.

    Similar to the PWFA, the PUMP for Nursing Mothers Act did not reach a Senate floor vote, leaving the omnibus bills as one of the last options for passage before the 117th Congress’s term expired.

    Immigration Provisions

    Due to the situation at the southern border, the new law excluded any major immigration overhauls, such as the Equal Access to Green cards for Legal Employment (EAGLE) Act, which would have addressed the immigration visa backlog and made changes to the H-1B visa program. Additionally, protections for the Deferred Action for Childhood Arrivals (DACA) program and Dreamers that have been threatened by recent court decisions were not included in the final bill enacted into law.

    Despite the exclusion of important reforms, the new law reauthorized several expiring immigration programs that are already utilized by institutions of higher education, including additional funds for the E-Verify program.

    Higher Education Funding

    Several provisions were included in the omnibus package that will increase funding for a variety of higher education programs. Notably, the bill includes a $500 increase to the maximum Pell Grant a recipient can receive, raising the total to $7,395 for the 2023-24 award year. Additionally, the bill included funding increases for Federal Work-Study grants, Title III and V programs, Postsecondary Student Success Grants, and the TRIO and GEAR UP programs.

    CUPA-HR will continue to analyze the provisions included in the FY 2023 funding bill and will keep members apprised of any additional noteworthy provisions included in the law.



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  • CUPA-HR Sends Letter to Congress Asking for DACA Protections – CUPA-HR

    CUPA-HR Sends Letter to Congress Asking for DACA Protections – CUPA-HR

    by CUPA-HR | November 22, 2022

    On November 17, CUPA-HR joined the American Council on Education (ACE) and over 60 other higher education associations in sending a letter to House of Representatives and Senate leadership urging Congress to pass permanent protections for the Deferred Action for Childhood Arrivals (DACA) program after recent court decisions have left the status of the program in limbo.

    On October 5, the U.S. Court of Appeals for the Fifth Circuit unanimously upheld a 2021 ruling by the lower Court in the Southern District of Texas that enjoined the DACA program and vacated the 2012 Department of Homeland Security (DHS) memorandum that originally established the program. The Fifth Circuit agreed with the lower court’s finding that the promulgation and enforcement of the DACA memorandum violated the Administrative Procedure Act but noted that the Biden administration had finalized a new DACA regulation in August, leading the Appeals Court to send the case back to the Texas District Court to consider the legality of the August rulemaking. On October 14, however, the Texas District Court ruled against the final rule, arguing that the existing injunction blocking the 2012 memorandum also covered the new final rule.

    As a result of these rulings, the DHS is blocked from accepting new applications for the DACA program, but the agency is permitted to continue renewing existing protections to current DACA beneficiaries. DHS Secretary Alejandro Mayorkas issued a statement in response to the Texas Court’s decision saying “It is clearer than ever that only the passage of legislation will give full protection and a well-deserved path to citizenship for DACA recipients. I urge Congress to swiftly pass legislation to provide permanent protection to the hundreds of thousands of Dreamers who call the United States home.”

    ACE’s letter states the urgency with which Congress needs to act to ensure protections are granted to DACA recipients. The letter specifically asks Congress to pass legislation to provide DACA protections to current and future beneficiaries before the 117th Congress ends January 3, 2023.

    CUPA-HR will keep members apprised of any updates on the status of the DACA program.



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  • House Passes Bill to Increase Workplace Protections for Nursing Mothers – CUPA-HR

    House Passes Bill to Increase Workplace Protections for Nursing Mothers – CUPA-HR

    by CUPA-HR | October 26, 2021

    On October 22, 2021, the House of Representatives passed H.R.3110, the Providing Urgent Maternal Protections (PUMP) for Nursing Mothers Act. The bill passed by a bipartisan vote of 276-149 and was supported by business groups such as the U.S. Chamber of Commerce and advocacy organizations, including the American Civil Liberties Union.

    As originally written, the PUMP for Nursing Mothers Act amends the Fair Labor Standards Act (FLSA) to expand access to breastfeeding accommodations in the workplace for lactating employees. The bill builds upon existing protections in the 2010 Breaktime for Nursing Mothers Act by broadening breastfeeding accommodations and workplace protections to include salaried employees exempt from overtime pay requirements under the FLSA as well as other categories of employees currently exempt from such protections, such as teachers, nurses and farmworkers. It also clarifies that break time provided under this bill is considered compensable hours worked so long as the worker is not completely relieved of duty during such breaks, and it ensures remedies for nursing mothers for employer violations of the bill.

    Before the final vote on the bill, the House also adopted two additional amendments to the PUMP for Nursing Mothers Act that would:

    • Direct the Government Accountability Office (GAO) to conduct a study on compliance among covered employers, including employee awareness of their rights and proposals to improve compliance; and
    • Direct the Comptroller General of GAO to conduct a study on what is known about the racial disparities that exist with respect to access to pumping breastmilk in the workplace and submit to Congress a report on the results of such study containing such recommendations as the Comptroller General determines appropriate to address those disparities.

    The House-passed bill now moves to the Senate where it is unknown whether or not the bill will garner enough support from Republicans to bypass the sixty-vote filibuster threshold needed to pass.

    CUPA-HR will keep members apprised of any actions or votes taken by the Senate on this bill.



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