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Tag: Regulatory
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A new regulatory framework is more than Medr by numbers
Medr, the new-ish regulator of tertiary education in Wales, is consulting on its new regulatory system (including conditions of registration and funding, and a quality framework).
You have until 5pm 18 July 2025 to offer comments on any of the many ideas or potential requirements contained within – there’s also two consultation events to look forward to in early June.
Regulatory approach
As we are already aware from the strategy, Medr intends to be a principles-based regulator (learning, collaboration, inclusion, excellence) but this has been finessed into a regulatory philosophy that:
integrates the strengths of both rules-based (compliance) and outcome-based regulation (continuous improvement)
As such we also get (in Annex A) a set of regulatory principles that can support this best-of-both-worlds position. The new regulator commits to providing clear guidance and resources, transparent communication, minimising burden, the collaborative development of regulations and processes, regular engagement, proactive monitoring, legal and directive enforcement action, the promotion of best practice, innovation and “responsiveness”, and resilience.
That’s what the sector gets, but this is a two way thing. In return Medr expects you to offer a commitment to compliance and integrity, to engage with the guidance, act in a transparent way (regarding self-reporting of issues – a “no alarms and no surprises” approach), practice proactive risk management and continuous improvement, collaborate with stakeholders, and respect the authority of Medr and its interventions.
It’s all nicely aspirational, and (with half an eye on a similar regulator just over Offa’s Dyke) one appropriately based on communication and collaboration. Whatever Medr ends up being, it clearly does not want an antagonistic or suspicious relationship with the sector it regulates.
Getting stuck in
The majority of the rest of Annex A deals directly with when and where Medr will intervene. Are you even a regulator if you can’t step in to sort out non-compliance and other outbreaks of outright foolishness? Medr will have conditions of registration and conditions of funding, both of which have statutory scope for intervention – plus other powers to deal with providers it neither registers nor funds (“external providers”, which include those involved in franchise and partnership activities, and are not limited to those in Wales).
Some of these powers are hangovers from the Higher Education (Wales) 2015 Act, which are already in force – the intention is that the remaining (Tertiary Education and Research Act 2022) powers will largely kick off from 1 August 2026, alongside the new conditions of funding. At this point the TERA 22 powers will supersede the relevant remaining HEW 2015 provision.
The spurs to intervention are familiar from TERA. The decision to intervene will be primarily based on six factors: seriousness, persistence, provider actions, context, risk, and statutory duties – there’s no set weight accorded to any of them, and the regulator reserves the right to use others as required.
A range of actions is open in the event of an infraction – ranging from low-level intervention (advice and assistance) to removal from the register and withdrawal of funding. In between these you may see enhanced monitoring, action plans, commissioned reports and other examples of what is euphemistically termed “engagement”. A decision to intervene will be communicated “clearly” to a provider, and Medr “may decide” to publish details of interventions – balancing the potential risks to the provider against the need to promote compliance.
Specific ongoing registration conditions are also a thing – for registered providers only, obviously – and all of these will be published, as will any variation to conditions. The consultation document bristles with flowcharts and diagrams, setting out clearly the scope for review and appeal for each type of appeal.
One novelty for those familiar with the English system is the ability of the regulator to refer compliance issues to Welsh Ministers – this specifically applies to governance issues or where a provider is performing “significantly less well than it might in all the circumstances be reasonably expected to perform, or is failing or likely to fail to give an acceptable standard of education or training”. That’s a masterpiece of drafting which offers a lot of scope for government intervention.
Regulatory framework
Where would a regulator be without a regulatory framework? Despite a lot of other important aspects in this collection of documents, the statement of conditions of registration in Annex B will likely attract the most attention.
Financial sustainability is front and centre, with governance and management following close behind. These two also attract supplemental guidance on financial management, financial commitment thresholds, estates management, and charity regulation. Other conditions include quality and continuous improvement, regard to advice and guidance, information provided to prospective students, fee limits, notifications of changes, and charitable status – and there’s further supplemental guidance on reportable events.
Medr intends to be a risk-based regulator too – and we get an overview of the kinds of monitoring activity that might be in place to support these determinations of risk. There will be an annual assurance return for registered providers, which essentially assures the regulator that the provider’s governing body has done its own assurance of compliance. The rest of the returns are listed as options, but we can feel confident in seeing a financial assurance return, and various data returns, as core – with various other documentation requested on a more adhoc basis.
And – yes – there will be reportable events: serious incidents that must be reported within five working days, notifiable (less serious) stuff on a “regular basis”. There’s a table in annex B (table 1) but this is broad and non-exhaustive.
There’s honestly not much in the conditions of registration that is surprising. It is notable that Medr will still need to be told about new financial commitments, either based on a threshold or while in “increased engagement”, and a need to report when it uses assets acquired using public funds as security on financial commitments (it’s comforting to know that exchequer interest is still a thing, in Wales at least).
The quality and continuous improvement condition is admirably broad – covering the involvement of students in quality assurance processes, with their views taken into account (including a requirement for representation on governing bodies). Responsibility for quality is expected to go all the way up to board level, and the provider is expected to actively engage with external quality assurance. Add in continuous improvement and an expectation of professional development for all staff involved in supporting students and you have an impressively robust framework.
We need also to discuss the meaning of “guidance” within the Medr expanded universe – providers need to be clear about how they have responded to regulatory guidance and justify any deviation. There’s a specific condition of registration just for that.
Quality framework
Annex C provides a quality framework, which underpins and expands on the condition of registration. Medr has a duty to monitor and promote improvement in the quality and standards of quality in tertiary education, and the option in TERA 2022 to publish a framework like this one. It covers the design and delivery of the curriculum, the quality of support offered to learners, arrangements to promote active learner engagement (there’s a learner engagement code out for consultation in the autumn), and the promotion of wellbeing and welfare among learners.
For now, existing monitoring and engagement plans (Estyn and the QAA) will continue, although Medr has indicated to both that it would like to see methodologies and approaches move closer together across the full regulatory ambit. But:
In due course we will need to determine whether or not we should formally designate a quality body to assess higher education. Work on this will be carried out to inform the next cycle of external quality assessments. We will also consider whether to adopt a common cycle length for the assessment of all tertiary education.
There is clarity that the UK Quality Code applies to higher education in Wales, and that internal quality assurance processes need to align to the European Standards and Guidelines for Quality Assurance (ESG) – external quality assurance arrangements currently do, and will continue to, align with ESG as well.
To follow
Phase two of this series of consultations will come in October 2025 – followed by registrations opening in the spring of 2026 with the register launched in August of that year. As we’ve seen, bits of the conditions of registration kick in from 1 August 2027 – at which point everything pre-Medr fades into the storied history of Welsh tertiary education.
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Higher Education franchising is not the problem. Rogue providers and regulatory gaps are
- By Charlie Tennant, Vice Principal at the London School of Science & Technology.
Higher education franchising is once more in the limelight for the wrong reasons, as many in the sector again question its benefits, the risks it poses to public funds and the use of it by niche, emerging and/or for-profit higher education providers. However, the stories and discourse miss the key factors that have allowed for abuse of the franchise model. It is gaps in higher education regulation that have led to franchising being scapegoated for what is, at its core, abuse by rogue providers that do not represent the vast majority of those engaged in franchising.
Franchising is a model through which UK universities have delivered higher education for over two decades. Internationally, this forms part of many forms of Transnational Education (TNE), that as seen in Universities UK International (UUKi)’s Scale of UK Higher Education Transnational Education reports, continues to grow in scale. Locally, providers have adopted the franchise model since the mid-2000s, although since then, the market for many of those providers has changed from international students to local students. This change meant the number of students at these providers who were eligible for Student Loans Company (SLC) funding has grown. The model allows institutions that have found new approaches, differentiated courses, or cold spots of higher education to develop and expand their provision, with a significant portion of them hoping to one day gain their own Degree Awarding Powers (DAPs).
However, the regulation of domestic franchise provision has not been as robust as it could be. The onus has rightly been put on the universities that are franchising their courses to ensure academic quality and standards of the franchise delivery, although there is currently no direct regulation of higher education franchise providers. Therefore, while some blame can be apportioned to universities engaged in franchising, it can be argued that the Department for Education (DfE) and policymakers’ approach to regulating higher education franchises has led to gaps open to abuse by rogue providers. Furthermore, routes for franchise providers to gain DAPs have been prolonged and made complex by the pause in processing of registration applications by the Office for Students (OfS). Now, the abuse of SLC funding by particular providers of the franchise model, reported by the Sunday Times in an article on 22nd March 2025 and in several articles since then, has brought the reputation of all franchise providers into disrepute, and connected the abuse to use of recruitment agents and the settled Romanian population in the UK.
In a January 2025 press release for their consultation on franchise provision regulations, the Government outlined the benefits of franchising when done right, and its intention to crack down on rogue higher education providers. Professor Nick Braisby’s HEPI blog published in response to the consultation, rightly welcomes the Government’s new proposals, but asks for the sector to remain critical. This blog therefore proposes three ways in which to ensure the Government and the OfS achieve what they hope to through the crackdown.
Firstly, the DfE, policymakers and the OfS need to enable quicker routes for franchise providers to join the regulator’s Register. This will allow greater scrutiny at an earlier stage in the lifecycle of an emerging higher education provider (which make up the majority of providers delivering franchised courses) and introduce a focus on their governance structures. Since the set-up of the OfS Register, providers have experienced long lead times for joining the Register, and on top of this, from December 2024, the regulator paused applications for the Register, DAPs and changes of registration category, thus exacerbating the issue of missing opportunities to directly regulate more franchise providers. This is counterintuitive given the OfS’s remarks around the risks associated with an over-reliance by both universities and franchise providers on partnership provision in their Insight Brief regarding subcontractual arrangements in higher education published just two months prior to the pause. The OfS’ Register of providers has the potential to be a great tool for transparency, but the current lead times and design of the approach lead to gaps in regulation that can be exploited by rogue providers.
Secondly, instead of considering an outright ban, the DfE should implement a robust quality framework for domestic student recruitment agents. As a blueprint, they should draw from the established Agent Quality Framework (AQF) developed by the British Council, Universities UK International (UUKi), and the UK Council for International Student Affairs (UKCISA). As with international student recruitment, the unregulated use of agents for domestic recruitment presents significant risks. By adopting a structured quality framework, the DfE and OfS can mitigate these risks and foster greater transparency and accountability. Agents, when operating under clear ethical guidelines and quality standards, can play a crucial role in widening participation, particularly by reaching communities historically underserved by traditional university outreach, for example, the UK’s settled Romanian population. A tailored framework can help to ensure transparency, effective governance and the establishment of professional standards of agents.
Finally, the DfE, policymakers and the OfS need to engage more with franchise providers and their university partners jointly. So far, engagements have been disjointed, with either a university or one of their partner franchise providers engaged separately. This creates barriers to collaboration, which would otherwise aid in the pursuit of greater transparency, oversight and the maintenance of academic quality and standards. Bringing both universities and franchise providers together when engaging will enable the Government to find ways to both demonstrate the benefits of franchise provision, as well as develop regulatory approaches and guidance collaboratively with stakeholders. This joint engagement with universities and their partner franchise provider could pave the early steps towards a sector-wide code of practice, an idea discussed in HEPI and Buckinghamshire New University’s Debate Paper on franchising. This could then sit alongside collaboratively developed regulations that would ensure rogue providers cannot abuse regulatory gaps. It will also help to establish a more balanced burden of regulation between universities and their franchise provider partners, and safeguard the reputation of franchise provision.
Ultimately, effective regulation of the broader higher education student journey, streamlined registration, and collaborative engagement are crucial. By addressing these systemic gaps and promoting transparency, the policymakers, DfE, OfS, and the higher education sector can restore faith in franchising and ensure its legitimate benefits are realised.
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Education Department plans to propose regulatory changes to student aid programs
This audio is auto-generated. Please let us know if you have feedback.The U.S. Department of Education plans to propose changes to student aid regulations, including those governing the Public Service Loan Forgiveness Program and two income-driven repayment plans, it announced Thursday.
Under a process called negotiated rulemaking, the Education Department intends to bring together representatives from different factions of the higher education sector to hash out the details of new regulations.
If the representatives reach consensus on new policies, the negotiated rulemaking process requires the Education Department to adopt their regulatory language in its proposal, except in limited circumstances. If negotiators don’t reach agreement, however, the agency is free to write its own rules.
Before that process begins, the Education Department said it will seek public feedback on “deregulatory ideas” for Title IV student aid programs.
“This process will focus on how the Department can rightsize Title IV regulations that have driven up the cost of college and hindered innovation,” Acting Under Secretary James Bergeron said in a statement. “Not only will this rulemaking serve as an opportunity to identify and cut unnecessary red tape, but it will allow key stakeholders to offer suggestions to streamline and improve federal student aid programs.”
Part of the negotiated rulemaking process will focus on the Public Service Loan Forgiveness program. PSLF, enacted in 2007 by President George W. Bush, forgives the student loan balances of borrowers who make 10 years of payments and hold public service jobs, such as working for the government or a nonprofit.
The program has come under fire from President Donald Trump, who signed an executive order last month aiming to limit who is eligible.
The order alleges that the PSLF program has “misdirected tax dollars into activist organizations” and tells U.S. Education Secretary Linda McMahon to propose program revisions barring borrowers from receiving forgiveness if they work for organizations that “have a substantial illegal purpose.”
The directive also accused the program of providing premature debt relief to borrowers. The Biden administration temporarily relaxed PSLF rules to make it easier for borrowers to receive debt relief through the program, which had extremely high denial rates due to confusing eligibility requirements and chronic loan servicer issues.
Some groups have pushed back on the executive order, arguing that it’s an attempt to revoke student loan forgiveness eligibility for borrowers working for nonprofits with missions that the Trump administration doesn’t support.
In a statement, Mike Pierce, executive director of Student Borrower Protection Center, called the order “blatantly illegal and an all-out weaponization of debt intended to silence speech that does not align with President Trump’s MAGA agenda.”
The Education Department is also planning to review regulations for two income-driven repayment plans: Pay as You Earn and Income-Contingent Repayment.
The agency restored the ability for borrowers to enroll in these programs late last month after previously taking down the online application forms. The freeze on the programs came in response to an appeals court ruling blocking a Biden-era income-driven repayment plan — Saving on a Valuable Education.
The suspension of the plans drew a legal challenge from the American Federation of Teachers. The Education Department restored access to them less than a day after the union petitioned a judge for emergency intervention, according to a news release.
Plans for negotiated rulemaking come amid the Trump administration’s move to dismantle the Education Department and move its responsibilities to other agencies.
For example, Trump said he plans to move the department’s student loan portfolio to the newly-downsized Small Business Administration. Both conservatives and liberals have expressed concern that the SBA won’t have the staff or expertise to perform the job.
Fully eliminating the Education Department would require congressional approval.
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Five regulatory process points you may have missed from the University of Sussex decision
We’ve covered elsewhere the implications for policy related to academic freedom and freedom of speech stemming from the Office for Students’ decision to fine the University of Sussex for breaches of ongoing registration conditions E1 and E2.
The publication of a detailed regulatory report also allows us insight into the way in which OfS is likely to respond to future breaches of registration conditions. It is, effectively, case law on the way OfS deals with concerns about higher education providers in England – and while parts of your university will be digesting what the findings mean for academic freedom policies, others will be thinking more widely about the implications for regulation.
The University of Sussex, perhaps unsurprisingly, wishes to challenge the findings. It is able to challenge both the regulatory decisions and the amount of the fines at a first tier tribunal.
As always, appeals are supposed to be process based rather than just a general complaint, so the university would have to demonstrate that the application of the registration conditions was incorrect, or the calculation of the fine was incorrect, or both. As above, there is no meaningful defence of the way the fines were calculated or discounted within the judgement so that would feel like the most immediately fertile ground for argument.
Here’s some of the points that stood out:
How and why was the decision to investigate made?
We are told that, on 7 October 2021, the OfS identified reports about an incident at the University of Sussex. This followed the launch of a student campaign at the University of Sussex the previous day – which involved a poster campaign, a masked demonstrator holding a sign, and a hashtag on social media – calling for Kathleen Stock (a professor in the philosophy department) to lose her job.
This was widely covered in the media at the time, and sparked commentary from interest groups including the Safe Schools Alliance UK and the Free Speech Union. The OfS subsequently contacted the university seeking further information, before starting a full investigation on 22 October 2021. However, despite significant public interest, the decision to start an investigation was not made public until a statement by an education minister in the House of Lords on 16 November (when we were told that the Department for Education was notified on 11 November).
Kathleen Stock resigned from her role at the university on 28 October – six days after the start of the investigation, and substantially before the public announcement. She noted that “the leadership’s approach more recently had been admirable and decent”, while the university claimed to have “vigorously and unequivocally defended Prof Kathleen Stock’s right to exercise her academic freedom and lawful freedom of speech, free from bullying and harassment of any kind”.
What’s not clear from this timeline is the nature of the notification on which the Office for Students was acting: the regulatory framework in place at the time suggested OfS would take action on the basis of lead indicators, reportable events, and other intelligence and sources of information. There are no metrics involved in this decision, and we are told the provider did not notify the OfS so there was no reportable event notification.
We are left with the understanding that “other sources of information” were used – these could be “volunteered by providers and others, including whistleblowers”. Perhaps it was the same “source of information” that caused then Minister Michelle Donelan to shift from backing the university response on 8 October to calling for action on 10 October?
We also know that – despite OfS’ insistence that it “does not currently have a role to act on behalf of any individual” – it appears that the only person to submit a “witness statement” to OfS was Stock. If OfS was concerned generally about the potential for a chilling effect on academic speech, would it not want to speak to multiple academics to confirm these suspicions? Doesn’t speaking to just one affected individual feel a little like acting “on behalf” of that individual?
Finally – sorry to bang on – we don’t know who at OfS made the decision to conduct an investigation or on what basis. Can, say, the director of regulation just decide (based on a story in the press, or general vibes) to investigate a university – or is there a process involving sign-off by other senior staff, ideally involving some kind of assessment of the likelihood of a problem being identified within a reasonable period of time? If I were an internal auditor I would also want to be very clear that the decision was made using due process and free from political or ideological influence (for instance I’d be alarmed that someone was content for then-chair James Wharton to posit an absolutist definition of free speech in the Telegraph) shortly after the investigation started.
Why did it take so long to investigate and make a decision?
The only clue we are given in the regulatory report is that this is a “complex area”. OfS requested a substantial amount of documentation from Sussex – it even used a “compliance order” to make sure that no evidence was destroyed. However, it does not appear that OfS ever visited the provider to speak to staff and students – in other regulatory investigation reports, OfS has been assiduous in logging each visit and contact. There is none of that here – we don’t know how many interactions OfS had with Sussex, or on how many occasions information was requested. Indeed, OfS appears not to have visited Sussex at all. Arif Ahmed told us:
“There may have been occasions where the university wanted to meet in person and communication was done in writing instead
Various points of law are referred to in the regulatory report : it is notable that none of this is new law requiring additional interpretation or investigation (the new Higher Education (Freedom of Speech) Act had not even left the House of Commons committee stage at this point). It shouldn’t really take a competent lawyer that knows the sector more than a few weeks to summarise the law as it then stood and present options for action.
The investigation into the University of Sussex was mentioned in the Chief Executive’s report from the 2 December 2021 Board meeting, and it turned up (often just as an indication that the investigation was ongoing)
If OfS was able to fine a university for a breach of an ongoing registration relating to academic freedom, why do we need the Higher Education (Freedom of Speech) Act?
Well, quite. On our reckoning, the Act would have made no difference to the entire affair, save potentially for a slight chilling effect on students being empowered to exercise their own freedom of speech, and a requirement for both providers and OfS to promote free speech. The ability of the OfS to reach the conclusion it reached, and to instigate regulatory consequences, suggests that further powers were not necessary to uphold freedom of speech on campus – despite the arguments made by many at the time. There is nothing OfS could have done better, or quicker, or more effectively had the Act been in force. Sussex, in fact, had a freedom of speech policy at the time, something that the regulatory report fails to mention or take account of.
It is curious that the announcement of the investigation came at the start of a long pause in parliamentary activity on the Higher Education (Freedom of Speech) Act – at that time we were keenly anticipating a report from the House of Commons committee stage, but we got no action at all on the bill until it was carried forward into the next session of parliament.
How was the amount of the fine arrived at?
There is a detailed account of the process by which it was decided to fine Sussex £360,000 for a breach of registration condition E1, and £225,000 for a breach of registration condition E2. It appears thorough and convincing, right until the point that you read it.
OfS appears to be using a sliding scale (0.9 per cent of qualifying income for “failing to uphold the freedom of speech and academic freedom governance principle”, 0.5 per cent of qualifying income for “a failure to have adequate and effective management and governance arrangements in place”, an additional 0.2 per cent for not reporting the breach, a 0.2 per cent reduction for taking mitigating action…) and although Regulatory Notice 19 takes us through the process in broad terms we don’t get any rationale for why those proportions apply to those things.
It’s all a bit “vibes based regulation” in truth.
It is to be welcomed that OfS reduced its initial calculation of a £3.7m (1.6 per cent of qualifying income) fine to a more manageable £585,000 – but why reduce to that amount (by a hair under 85 per cent) purely because it is the first fine ever issued for this particular offence? What reduction will be applied to the next fines issued under registration conditions E1 and E2? If none, why not – surely “sufficient deterrence” is possible at that amount so why go higher?
The documentation covers none of this – it is very hard to shake the impression that OfS is pulling numbers out of the air. When you compare the £57,000 (0.1 per cent) fine issued to the University of Buckingham for not providing audited accounts for two years (something which would have yielded something altogether nastier from Companies House you do have to ask whether the Sussex infractions were 1.5 percentage points more severe at the initial reckoning?
Are the wider implications as the regulator intends?
There are so many questions raised that will now be hurriedly posed at universities and higher education all over England – and my colleague Jim Dickinson has raised many of them elsewhere on the site. He’s had enough material for four pieces and I’m sure there will be many more questions that could be explored. Why – for example – should the regulator have a problem with “prohibiting the harmful use of stereotypes”? Is there a plausible situation where we would want to encourage the harmful use of stereotypes?
It would also be worth noting the many changes to the policy that appears to have caused the initial concern (the Trans and Non-Binary Equality Policy Statement) between 2018 and 2024. Perhaps these changes demonstrated the university dealing with a rapidly shifting public debate (conducted, in part, by people with the political power to influence culture more generally) as seemed appropriate at each point? So why is OfS not able to sign off on the current iteration of this policy? Why is it hanging a hefty fine on a single iteration on what is clearly a living document?
There’s also a burden issue.Is it the position of the regulator that every policy of each university needs to be signed off by the academic council or governing bodies? Or are there any examples of policies where decisions can be delegated to a competent body or individual? A list would be helpful, if only to avoid a burdensome “gold plating” of provider-level decision making.
Beyond the freedom of speech arguments
There are 24 ongoing conditions of registration currently in force at the Office for Students – a regulatory report and a fine (or other sanctions) could come about through an inadvertent breach of any one of them. Many of these conditions don’t just apply to students studying on your campus – they have an applicability for students involved in franchised (and in some cases validated) provision around the world.
We should be in a position where the sector can be competently and reliably regulated, where providers can understand the basis, process, and outcomes of any investigation, and that these are communicated promptly and clearly to the wider public. On the evidence of this report, we are a long way off.
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Biden Administration Releases Final Regulatory Agenda of Their Term
by CUPA-HR | January 7, 2025
On December 13, the Biden administration issued their Fall 2024 Regulatory Agenda, which provides insights on regulatory and deregulatory activity under development across more than 60 federal departments, agencies and commissions. The Fall 2024 Regulatory Agenda is the second agenda published this year, following the Spring 2024 Regulatory Agenda released in July.
Given the upcoming change in administration, the Fall 2024 Regulatory Agenda is the last that will be released by the Biden administration. The Trump administration will seek to change many regulatory priorities after taking office, meaning that regulations intended to be released after the Biden administration leaves office will change or be withdrawn altogether. As such, the regulations and target dates highlighted below are not final and subject to change once the Trump administration takes office.
Department of Labor
Heat Illness Prevention in Outdoor and Indoor Work Settings
The Biden administration’s regulatory agenda reminds interested stakeholders of the Department of Labor (DOL) Occupational Safety and Health Administration (OSHA)’s notice of proposed rulemaking on heat injury and illness prevention measures for both indoor and outdoor work settings. The comment period is open through January 14, 2025.
If finalized, the rule would impact all workplace settings under OSHA’s jurisdiction where employees are exposed to heat indexes that equal or exceed 80 degrees, regardless of whether the work is performed in an indoor or outdoor setting. All covered employers would need to circulate heat injury and illness prevention plans (HIIPPs), implement measures for providing breaks and water to employees exposed to high heat, and train employees on heat-related risks and illness prevention, among other provisions.
Given the comment period’s closing date, the incoming Trump administration will be tasked with next steps for the heat rule upon taking office. Trump nominated Lori Chavez-DeRemer to serve as DOL secretary, where she will oversee future actions taken with respect to heat injury and illness regulations. While she has not publicly weighed in on the current proposal, she co-led a report during her time in Congress that recommended the creation of a federal heat standard for nonimmigrant agricultural workers. She is also from Oregon, which has already implemented its own state heat illness prevention standard. As such, she may be responsive to moving forward with a heat injury and illness rule if confirmed as DOL secretary, though what those regulations may include remains to be seen.
Equal Employment Opportunity Commission
Recordkeeping Requirements for PWFA Charge-Related Records
The regulatory agenda includes a reminder that the Equal Employment Opportunity Commission (EEOC) published a notice of proposed rulemaking to extend existing recordkeeping requirements under EEO law to include charges under the Pregnant Workers Fairness Act (PWFA). The NPRM was published on November 21, 2024, and the comment period runs through January 21, 2025.
The PWFA was signed into law in December 2022, and the EEOC subsequently finalized implementing regulations for the PWFA in April 2024. The lengthy regulations provide guidance to employers and workers on people covered under the law and regulations, the types of limitations and medical conditions covered, and how to request reasonable accommodations.
According to the regulatory agenda, the new notice of proposed rulemaking sets out recordkeeping requirements for institutions of higher education relating to PWFA charges. The regulations do not require the creation of any records, but they do require that all covered entities (including higher ed institutions) maintain all employment and personnel records they make or keep in the regular course of business for a period of one year and all records relevant to a PWFA charge. These requirements are identical to the recordkeeping requirements related to Title VII of the Civil Rights Act, Americans with Disabilities Act (ADA), and Genetic Information Nondiscrimination Act (GINA) charges.
Federal Acquisition Regulation
Pay Equity and Transparency in Federal Contracting
In January 2025, the Department of Defense (DOD), General Services Administration (GSA), and NASA anticipate releasing a final rule to amend the Federal Acquisition Regulation on pay equity and transparency in federal contracting.
The joint agencies published a pay equity and transparency notice of proposed rulemaking in January 2024, in which the agencies propose to amend the Federal Acquisition Regulation to implement a government-wide policy that would:
- prohibit contractors and subcontractors from seeking and considering job applicants’ previous compensation when making employment decisions about personnel working on or in connection with a government contract (“salary history ban”), and
- require these contractors and subcontractors to disclose the compensation to be offered on job announcements (“compensation disclosure” or “pay transparency”).
Although the agencies are targeting January 2025 for release, the final rule has not yet been sent to the Office of Information and Regulatory Affairs (OIRA) for review prior to publication. All regulations are required to be reviewed by OIRA before they are published for the public, and review typically lasts 30-60 days after the regulation is received. Given the short time left, it appears unlikely that the rule will be published before the end of the Biden administration’s term. It is unknown if the Trump administration will move forward with this rule or seek to withdraw it.
Department of Homeland Security
Modernizing H-1B Requirements and Oversight and Providing Flexibility in the F-1 Program
The Fall 2024 Regulatory Agenda shows that the Department of Homeland Security aimed for a December 2024 release of additional regulations to modernize the H-1B program. DHS met this timeline, publishing a final rule on December 18.
The final rule included several noteworthy provisions that addressed concerns raised by CUPA-HR in comments responding to the October 2023 proposed rule, including a modification of the definition and criteria for H-1B specialty occupations.
The rule also codifies DHS’s current policy to give deference to prior determinations when adjudicating petitions involving the same party and facts (known as the “deference policy”), eliminates the itinerary requirement in the Form I-129, expands the H-1B cap exemptions for nonprofit and governmental research organizations, enhances cap-gap protections for F-1 students transitioning to H-1B status, and strengthens the USCIS site-visit program.
The final rule takes effect on January 17, 2025, just days before the next presidential inauguration. While it is unclear if the incoming Trump administration will seek to modify or roll back the rule, the codification of key provisions, such as the deference policy, makes them more difficult to rescind without formal rulemaking.
Department of Education
Discrimination Based on Shared Ancestry or Ethnicity
Keeping with the date set in the Spring 2024 Regulatory Agenda, the Department of Education’s Office for Civil Rights (OCR) originally targeted December 2024 for the release of a notice of proposed rulemaking to amend Title VI of the Civil Rights Act of 1964 and OCR’s enforcement responsibilities for cases involving discrimination based on shared ancestry or ethnic characteristics. OCR is issuing this in response to a 2019 Trump executive order and a 2021 Biden executive order.
The proposed rulemaking has become a higher priority for OCR, given the recent political activity on campus related to the Israel-Hamas war and related scrutiny from Congressional Republicans of higher education’s response to protests on campus. OCR explains the need for this rulemaking by stating that they have “received complaints of harassment and assaults directed at Jewish, Muslim, Hindu and other students based on their shared ancestry or ethnicity.”
OCR missed the December target date, and the rule has not yet been sent to OIRA for review prior to publication. Given the short amount of time the Biden administration has before the end of its term, it seems unlikely that this rule will be published before the Trump administration takes office. It is unknown if and how the Trump administration would move forward with regulations on the same issue, though they may seek to publish a proposal given the first Trump administration’s 2019 executive order on combatting antisemitism.
In the Fall 2024 Regulatory Agenda, OCR kept its rule to finalize Title IX requirements related to transgender students’ participation in athletic programs to its “long-term actions” list, but the Biden administration subsequently withdrew it on December 20, 2024, halting all efforts to finalize the rule.
As a reminder, the April 2023 proposed rule recommended language that would prohibit schools receiving federal funding from adopting or applying a one-size-fits-all ban on transgender student participation on teams consistent with their gender identity.
The Trump administration is likely to reverse the Biden administration’s Title IX regulations that expand protections to individuals facing discrimination on the basis of sexual orientation and gender identity. Trump and Republicans also spoke of bans on transgender women’s participation in women’s sports during the 2024 election campaign. As such, the Trump administration could choose to issue a separate Title IX rule regarding transgender students’ participation in athletic programs, though it remains to be seen if they will do so.
Looking Ahead
As mentioned above, the target dates and regulations themselves are likely to change once the Trump administration takes office. The public will not have insight into the anticipated regulatory and deregulatory activity under the Trump administration until the Spring 2025 Regulatory Agenda is released, which will likely be sometime in late spring or early summer 2025. CUPA-HR will continue to keep members apprised of all relevant regulatory activity as it develops throughout the year.
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Biden Administration Releases Spring 2024 Regulatory Agenda – CUPA-HR
by CUPA-HR | July 11, 2024
On July 5, the Biden administration released the Spring 2024 Unified Agenda of Regulatory and Deregulatory Action (Regulatory Agenda), providing insights on regulatory and deregulatory activity under development across more than 60 federal departments, agencies and commissions. The Spring 2024 Regulatory Agenda is the first of two that will be released during the calendar year, and it sets target dates for regulatory actions in the coming months.
CUPA-HR’s government relations team reviews each Regulatory Agenda that is released and has put together the following list of noteworthy regulations included in the current edition.
Department of Education
The Department of Education’s Office for Civil Rights (OCR) is targeting December 2024 for the release of a Notice of Proposed Rulemaking (NPRM) to amend Title VI of the Civil Rights Act of 1964 and OCR’s enforcement responsibilities for cases involving discrimination based on shared ancestry or ethnic characteristics. OCR is issuing this NPRM in response to a 2019 Trump Executive Order (EO) and a 2021 Biden EO.
The NPRM has become a higher priority for OCR, given the recent political activity on campus related to the war in Gaza and related scrutiny from Congressional Republicans of higher education’s response to protests on campus. In the Regulatory Agenda announcement, OCR explains the need for this rulemaking by stating that they have “received complaints of harassment and assaults directed at Jewish, Muslim, Hindu and other students based on their shared ancestry or ethnicity.”
According to the Regulatory Agenda, the Biden administration has pushed its final rule on transgender students’ participation in athletic programs to its “long-term actions,” with an undetermined date for when the final rule will be published. In the Fall 2023 Regulatory Agenda, the final rule was previously targeted for March 2024.
OCR released an NPRM on this topic in April 2023. Under the NPRM, schools that receive federal funding would not be permitted to adopt or apply a one-size-fits-all ban on transgender students participating on teams consistent with their gender identity. Instead, the proposal allows schools the flexibility to develop team eligibility criteria that serves important educational objectives, such as fairness in competition and preventing sports-related injuries. The department further explained that the eligibility criteria must take into account the sport, level of competition, and grade or education level of students participating, and the criteria would have to minimize harm to students whose opportunity to participate on a team consistent with their gender identity would be limited or denied.
The move to push the final rule to “long-term actions” with an undetermined publication date is likely a result of recent challenges to the Biden administration’s Title IX final rule and the upcoming election. Shortly after the Title IX rule was published, over two dozen states joined lawsuits challenging the regulations, with many citing the inclusion of protections for gender identity and sexual orientation as top concerns with the final rule. Since then, the Title IX final rule has been blocked from going into effect on August 1 in 14 states.
Federal Acquisition Regulation (FAR)
Pay Equity and Transparency in Federal Contracting
In December 2024, the Department of Defense (DOD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA) anticipate releasing a final rule to amend the Federal Acquisition Regulation (FAR) on pay equity and transparency in federal contracting.
The joint agencies published a pay equity and transparency NPRM in January 2024. In the NPRM, the agencies propose to amend the FAR to implement a government-wide policy that would:
- prohibit contractors and subcontractors from seeking and considering job applicants’ previous compensation when making employment decisions about personnel working on or in connection with a government contract (“salary history ban”), and
- require these contractors and subcontractors to disclose on job announcements the compensation to be offered (“compensation disclosure” or “pay transparency”).
As part of its justification for publishing the NPRM, the proposal noted that 21 states, 22 localities, and Washington, D.C., have put bans into place that prohibit employers from asking job applicants for their salary, and 10 states have pay transparency laws in place, with several other states working toward implementing such laws.
Department of Homeland Security
According to the Regulatory Agenda, the Department of Homeland Security’s U.S. Citizenship and Immigration Services (USCIS) anticipates releasing at least one more final rule to modernize the H-1B and F-1 visa programs in December 2024.
In October 2023, USCIS issued an NPRM to simplify the application process for H-1B visas, increase the program’s efficiency, and strengthen the program’s integrity measures. In February 2024, USCIS issued a final rule to implement a new beneficiary-centric selection process for H-1B registrations, but it did not finalize all of the provisions that were originally included in the NPRM. When publishing the February 2024 final rule, DHS indicated that it planned to publish a separate final rule to address the remaining aspects from October’s proposed rule. The separate final action listed in the Spring Regulatory Agenda will likely be the remainder of the provisions from the NPRM.
CUPA-HR will keep members apprised of updates to these regulations and additional policies as they are introduced.
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Overtime and Title IX Final Rules Targeted for Early 2024 Release in Fall Regulatory Agenda – CUPA-HR
by CUPA-HR | December 12, 2023
On December 6, the Biden administration released the Fall 2023 Unified Agenda of Regulatory and Deregulatory Actions, providing the public with an update on the regulatory and deregulatory activities under development across approximately 67 federal departments, agencies and commissions. This release is the second and final regulatory agenda for 2023, and it sets target dates for upcoming regulatory actions mainly for the first half of 2024.
CUPA-HR has highlighted the following items from the Fall 2023 Regulatory Agenda for members to be aware of as we enter the new year. As a reminder, these target dates are not a guarantee, but they provide insight into when we can possibly expect the regulations to be published. CUPA-HR’s government relations team will continue to monitor for any updates on the following regulations and others that may impact the higher education space.
Department of Labor
According to the Fall 2023 Regulatory Agenda, the Department of Labor (DOL)’s Wage and Hour Division (WHD) has targeted April 2024 for release of the final rule to update the Fair Labor Standards Act’s overtime pay regulations. The final rule seeks to increase the minimum salary threshold required for white-collar professionals to maintain exempt status under the FLSA.
On September 8, WHD released a Notice of Proposed Rulemaking (NPRM) to update the salary threshold. The NPRM increases the minimum salary threshold from its current level of $35,568 per year ($684 per week) to $60,209 annually ($1,158 per week), which amounts to a nearly 70% increase.* Additionally, WHD proposes to automatically increase the salary level every three years by tying the threshold to the 35th percentile of full-time salaried wages in the lowest wage census region. DOL indicated in the proposed rule that it is considering implementing an effective date in the final rule that could come as soon as 60 days after the final rule is published to the public.
CUPA-HR was joined by 49 other higher education associations in submitting comments in response to the NPRM. In our comments, we raised concerns with the timing of this increase, the size of the proposed increase, the implementation of automatic updates, and the timeline for regulatory compliance that WHD anticipates. Our comments were informed by a CUPA-HR member survey, in which over 300 members provided feedback on their concerns with and thoughts about the proposal. For ongoing updates, visit CUPA-HR’s FLSA Overtime page.
The Fall 2023 Regulatory Agenda indicates that WHD anticipated releasing the FLSA independent contractor rule in November 2023. The final rule has been at the White House Office of Information and Regulatory Affairs (OIRA) for review since September 28, 2023, and once the agency finishes its review, the rule will be published.
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.
- The degree of control exercised or retained by the employer.
The regulatory agenda indicates that DOL’s Employment and Training Administration (ETA) aimed to issue a Request for Information (RFI) in November 2023. According to the notice in the agenda, ETA is seeking input from the public “on whether Schedule A serves as an effective tool for addressing current labor shortages, and how the Department may create a timely, coherent and transparent methodology for identifying STEM occupations that are experiencing labor shortages in keeping with its requirements under the Immigration and Nationality Act … to ensure the employment of foreign nationals does not displace U.S. workers or adversely affect their wages and working conditions.”
The RFI was sent to OIRA for review before publication on November 11, 2023, and will likely be released to the public soon.
Equal Employment Opportunity Commission
Regulations to Implement the Pregnant Workers Fairness Act
In December 2023, the Equal Employment Opportunity Commission (EEOC) plans to issue a final rule to implement the Pregnant Workers Fairness Act (PWFA). The rule will create a framework for the EEOC on how to enforce protections granted to pregnant workers under the PWFA. For a detailed analysis of the proposed rule on implementing the PWFA, please see CUPA-HR’s blog post.
In December 2022, 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.
Unlike the other regulations with target dates, the PWFA final rule has a statutory deadline for publication, which is December 29, 2023. Given this upcoming deadline, we will likely see the EEOC publish this rule soon.
Department of Education
According to the regulatory agenda, the Department of Education (ED) anticipates releasing the highly anticipated Title IX final rule in March 2024. The rulemaking would finalize the June 2022 NPRM to roll back and replace the Trump administration’s 2020 regulations 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 brought attention to the possible impact the proposed regulations could have on how higher education institutions address employment discrimination.
The new March target deadline marks the third time ED has delayed the issuance of the Title IX final rule. The rule was originally targeted for release in May 2023, but ED subsequently pushed the target date back to October 2023 via a blog post, when it became clear that the department would not meet the May timeline. Since ED missed the October timeline, they have faced increased pressure from Congressional Democrats and other advocacy groups to publish the final rule as soon as possible. While it’s not a guarantee ED will be able to publish the final rule in March 2024, the increased pressure will certainly motivate the department to move quickly.
CUPA-HR plans to hold a webinar to inform members of the final rule’s new requirements once the final rule has been published. Details to come.
Similar to the Title IX final rule above, ED plans to issue a final rule on student eligibility in athletic programs under Title IX in March 2024. The rule would finalize the NPRM that was released by the department in April 2023.
Under the NPRM, schools that receive federal funding would not be permitted to adopt or apply a “one-size-fits-all” ban on transgender students participating on teams consistent with their gender identity. Instead, the proposal allows schools the flexibility to develop team eligibility criteria that serve important educational objectives, such as fairness in competition and preventing sports-related injuries. The department further explains that the eligibility criteria must take into account the sport, level of competition, and grade or education level of students participating, and the criteria would have to minimize harm to students whose opportunity to participate on a team consistent with their gender identity would be limited or denied.
The NPRM received over 150,000 comments addressing support for and concerns with the proposal. ED must review all comments before issuing a final rule to implement these regulations, which is the likely cause of delay for both this rulemaking and the broader Title IX final rule.
Department of Homeland Security
On October 23, the Department of Homeland Security’s U.S. Citizenship and Immigration Services (USCIS) issued a proposed rule that aims to improve the H-1B program by simplifying the application process, increasing the program’s efficiency, offering more advantages and flexibilities to both petitioners and beneficiaries, and strengthening the program’s integrity measures.
Prompted by challenges with the H-1B visa lottery, USCIS has prioritized a proposed rule to address the system’s integrity. The proposed rule is aimed at strengthening the lottery registration process and preventing fraud, and it makes critical revisions to underlying H-1B regulations. For a detailed summary of what the H-1B proposal includes, see CUPA-HR’s blog post.
The NPRM is open for public comment until December 22, 2023. The Fall 2023 Regulatory Agenda included the regulations, but it did not provide a timeline for issuing the final rule, likely because the comment period is still open for the NPRM.
In April 2024, USCIS anticipates issuing a final rule to adjust the fees charged by the agency for immigration and naturalization benefit requests.
USCIS published an NPRM on this issue in January 2023. The comprehensive proposal has implications for both employment-based and family-based filings, but certain provisions would have significant impacts for higher education employers. Specifically, the proposed rule includes a provision to fund the Asylum Program with employer petition fees, which would be a $600 fee paid by any employers who file either a Form I-129, Petition for a Nonimmigrant Worker, or Form I-140, Immigrant Petition for Alien Worker. Additionally, the proposed rule seeks to increase almost all employment-based and employment-based “adjacent” filing fees. For more information on the details of this proposed rule, see CUPA-HR’s blog post.
On March 13, 2023, CUPA-HR joined the American Council on Education’s comments in response to the NPRM. The comments address higher ed-specific concerns with the proposal to increase fees for immigration and naturalization benefit requests, including concerns about the impact the increased fees will have on international scholars and institutions’ ability to hire nonimmigrant workers, including H-1B workers.
U.S. Citizenship and Immigration Services — Petition for Immigrant Worker Reforms
The regulatory agenda shows that USCIS plans to issue an NPRM in August 2024 that will “amend its regulations governing employment-based immigrant petitions in the first, second and third preference classifications.” According to the posting, the proposed rule would “codify current policy guidance and implement administrative decisions regarding successorship-in-interest and ability to pay; update provisions governing extraordinary ability and outstanding professors and researchers; modernize outdated provisions for individuals of extraordinary ability and outstanding professors and researchers; … implement reforms to ensure the integrity of the I-140 program; and correct errors and omissions.”
U.S. Citizenship and Immigration Services — Modernizing Regulations Governing Nonimmigrant Workers
In October 2024, USCIS plans to issue an NPRM to update employment authorization rules for dependent spouses of certain nonimmigrants and to increase flexibilities for nonimmigrant workers. CUPA-HR plans to monitor for any updates to this rule as it may apply to H-1B or other relevant nonimmigrant visas used by institutions.
Department of State
In February 2024, the Department of State plans to begin a pilot program to “resume domestic visa renewal for qualified H-1B nonimmigrant visa applicants who meet certain requirements.” The department will issue a notice in the Federal Register that will describe pilot program participation requirements and will provide “information on how those falling within the bounds of the pilot program may apply for domestic visa renewal.” The pilot program has been at OIRA since October 17, meaning the pilot notice could be published sooner than anticipated.
* The discrepancy between our figure of $60,209 and the DOL’s preamble figure of $55,068 arises from DOL’s own projections based on anticipated wage growth. The DOL’s proposed rule is rooted in 2022 data (yielding the $55,068 figure), but a footnote in the NPRM confirms that the salary threshold will definitely change by the time the final rule is issued to reflect the most recent data. Our comments, aiming to respond to the most probable salary threshold at the time a final rule is released, references the DOL’s projected figure for Q1 2024, which is $60,209. We do not believe DOL will be able to issue a final rule before Q1 2024, so we are incorporating this projected figure into our response to the NPRM. In essence, our goal is to provide members with a clearer picture of the likely salary figure when the final rule comes into play.
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DOL Accelerates Regulatory Actions – CUPA-HR
by CUPA-HR | July 25, 2023
The Department of Labor (DOL) has accelerated release of proposed and final regulations as the agency strives to meet the self-imposed deadlines in the Biden administration’s Spring 2023 Unified Agenda of Regulatory and Deregulatory Actions (Regulatory Agenda). Multiple DOL sub-agencies are issuing rules and proposed rules in July and August on independent contractor classification, overtime pay exemptions, workplace inspections, and workplace injuries.
Overtime Pay Exemptions
As previously reported, on July 12, DOL’s Wage and Hour Division (WHD) sent to the White House Office of Information and Regulatory Affairs (OIRA) a proposed rule on “Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales and Computer Employees” (1235-AA39) for review. OIRA is part of the Office of Management and Budget (OMB) and is charged with reviewing the costs and benefits of regulatory actions. In the Regulatory Agenda, DOL targeted August for release of a Notice of Proposed Rulemaking (NPRM) on overtime exemptions. OIRA review signals DOL is trying to publish the NPRM at or close to that deadline.
While the content of the proposed rule has not yet been released to the public, we expect that the proposal will increase the minimum salary an individual must be paid to qualify as a bona fide executive, administrative, and professional employee exempt from the Fair Labor Standards Act (FLSA)’s minimum wage and overtime pay requirements.
WHD first announced that it planned to “update the salary level requirement of the section 13(a)(1) exemption” to overtime pay requirements within the FLSA in the Fall 2021 Regulatory Agenda (125-AA39). In early 2022, CUPA-HR and other employer groups requested that DOL hold stakeholder meetings before issuing any regulations. DOL held these meetings, and employer groups urged DOL to delay moving forward with changes to the overtime rule, which DOL did until July 12 when it sent the proposal to OIRA.
While OIRA may take up to 90 days to conduct a review, the agency generally completes review within 30 to 60 days. In the meantime, as with any proposed rule under review, OIRA is accepting input from stakeholders who would like to voice their potential concerns with the rulemaking. CUPA-HR will be requesting a meeting to reiterate the objections made to the rule in letters that CUPA-HR and other associations have sent to DOL since the introduction of the proposal in the Fall 2021 Regulatory Agenda. Most recently, CUPA-HR and 103 other signatories sent a letter to DOL in May 2023, requesting the abandonment or, at minimum, postponement of the anticipated overtime regulation due to the supply chain disruptions, workforce shortages, inflationary pressures, and shifting workforce dynamics that are already prevalent and could be exacerbated by the rulemaking. CUPA-HR has also participated in several DOL listening sessions on the matter.
Independent Contractor Classification
WHD announced in the Spring 2023 Regulatory Agenda that it plans to release the final rule for “Employee or Independent Contractor Classification Under the Fair Labor Standards Act” (1235-AA43) in August. While DOL has not sent the rule to OIRA yet, we expect it will do so any day now. WHD published the original NPRM on October 13, 2022, and allowed the public to provide comments on the proposal until December 13, 2022. Although DOL has not released the text of the final rule, we expect it will be substantially similar to the NPRM and will replace the existing Trump-era rule (1235-AA34) issued on January 7, 2021.
In evaluating whether a worker is an employee or independent contractor under the FLSA, the courts and DOL have long considered the following five factors: the opportunity for profit or loss; investment and permanency; the degree of control held by the employer over the worker; whether the work is an integral part of the employer’s business; and skill and initiative. In the Trump-era 2021 rule, DOL concluded two of the five identified factors — the nature and degree of control over the worker and the worker’s opportunity for profit or loss — are most probative in the analysis and should be considered “core factors” given additional weight. DOL asserted that this streamlined approach was consistent with how courts had historically applied the five-factor test. The 2021 rule also explained that whether the work is “integral to the employer’s business” depends on whether the work is part of an integrated unit of production and not whether the work is critical, necessary or central to the employer’s business, as the latter is subjective, confusing and difficult to apply.
DOL now asserts that the 2021 rule does not fully adhere to the text and purpose of the FLSA and thus intends to replace it with the new method outlined in the NPRM. This new method would shift away from the core factors test to a test in which the factors are all weighted equally and given full consideration. In addition, the DOL is reversing its position on the interpretations and clarifications of factors in the 2021 rule, including the aforementioned clarification on the integral factor.
Many in the business community filed comments opposing the NPRM and supporting the 2021 rule, and we expect that some of those same groups will challenge DOL’s final rule in court if it is substantially similar to the proposal.
Workplace Walkarounds
On July 17, the Occupational Safety and Health Administration (OSHA) sent the “Worker Walkaround Representative Designation Process” (1218-AD45) rule to OIRA for review. As mentioned above, this is an initial step in releasing the proposed rule, the target date for which was June. Again, we are not certain how long the OIRA review process will take, and OIRA is allowing for meetings with individuals and organizations interested in this NPRM.
Under current rules, a union may designate an employee to accompany an OSHA inspector during their facility walkaround. According to the Regulatory Agenda, this NPRM would allow an employee representative to accompany the OSHA inspector, regardless of whether that representative is a direct employee of the company subject to inspection.
Workplace Injuries and Illnesses
On July 17, OSHA released the text of the “Improve Tracking of Workplace Injuries and Illnesses” (1218-AD40) final rule, which was published in the Federal Register on July 21. DOL had projected in the Regulatory Agenda that it would release the rule in June 2023.
The rule amends OSHA’s occupational injury and illness recordkeeping requirements to mandate that certain employers electronically submit specified workplace injury and illness reports to OSHA on an annual basis. More specifically, the new rule will require employers with 100 or more employees in certain industries to electronically submit content from their OSHA Forms 300 and 301 once a year. To be included in the requirements, industries must meet certain criteria that establish them as high hazard. Meanwhile, employers with 20 or more employees in designated industries will continue to be required to electronically submit content from their OSHA Form 300A annually. Finally, employers with 250 or more employees in any industry will need to continue submitting content from their Form 300A on an annual basis.
OSHA plans to publicize the data from the annual electronic submissions. The data would be inputted to a searchable database after removing anything that could help identify the individuals in the reports. Employers will not be required to submit to OSHA details from Forms 300 and 301 related to employees’ names or addresses, the healthcare professionals involved, or the facilities where treatments were provided. In addition to these reporting requirements, the rule also updates the NAICS codes used by OSHA to select which industries should be included in these reporting obligations.
CUPA-HR will continue to keep members apprised of further details concerning the DOL’s advancement of its Spring 2023 Regulatory Agenda, along with opportunities for advocacy.
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Biden Administration Releases Spring 2023 Regulatory Agenda – CUPA-HR
by CUPA-HR | June 26, 2023
On June 14, the Biden administration released its Spring 2023 Unified Agenda of Regulatory and Deregulatory Actions (Regulatory Agenda), providing the public with an update on the regulatory and deregulatory activities under development across approximately 67 federal departments, agencies and commissions. This release serves as the first Regulatory Agenda for the 2023 year, setting target dates for regulatory actions in the coming year.
CUPA-HR’s government relations team has completed a thorough review of the Spring 2023 Regulatory Agenda and put together the following list of noteworthy proposed actions for members.
Department of Labor
According to the Regulatory Agenda, the Department of Labor (DOL)’s Wage and Hour Division (WHD) has again delayed the Notice of Proposed Rulemaking (NPRM) to address changes to the Fair Labor Standards Act (FLSA)’s overtime pay requirements to August 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 reminder, 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. In a recent letter, CUPA-HR joined other associations in calling for the Department to postpone or abandon the anticipated overtime rulemaking, citing concerns with supply chain disruptions, workforce shortages, inflation, and shifting workplace dynamics.
In August 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.
The DOL’s Employment and Training Administration (ETA) has moved the “Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States” proposed rule to the list of long-term actions to be taken by the agency, anticipating a release of the NPRM in June 2024. According to the listing in the regulatory agenda, the NPRM will seek 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 upcoming NPRM 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.
Department of Education
In October 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 roll back and replace the Trump administration’s 2020 regulations 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 brought attention to the possible impact the proposed regulations could have on how higher education institutions address employment discrimination.
On May 26, the Department of Education published a blog post stating that the release of the anticipated Title IX final rule will be delayed until at least October 2023. The final rule was previously targeted in the Fall 2022 Regulatory Agenda for May 2023. The department stated that they need additional time to review the 240,000 comments they received in response to the Title IX proposed rule.
The Department of Education also plans to release the Title IX final rule for student eligibility in athletic programs in October 2023. The rule would finalize the NPRM that was released by the Department in April 2023.
Under the NPRM, schools that receive federal funding would not be permitted to adopt or apply a “one-size-fits-all” ban on transgender students participating on teams consistent with their gender identity. Instead, the proposal allows schools the flexibility to develop team eligibility criteria that serves important educational objectives, such as fairness in competition and preventing sports-related injuries. The Department further explains that the eligibility criteria must take into account the sport, level of competition, and grade or education level of students participating, and the criteria would have to minimize harm to students whose opportunity to participate on a team consistent with their gender identity would be limited or denied.
The NPRM received over 150,000 comments addressing support for and concerns with the NPRM. Again, the Department must review all comments before issuing a final rule to implement these regulations, which may lead to a further delay.
National Labor Relations Board
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 Homeland Security
According to the Regulatory Agenda, the Department of Homeland Security (DHS) plans to issue a final rule in August 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.
On a related noted, on May 4, 2023, the U.S. Immigration and Customs Enforcement (ICE) announced it will provide employers with 30 days to reach compliance with in-person Form I-9 requirements after the COVID-19 flexibilities sunset on July 31, 2023. ICE previously introduced temporary flexibilities in response to the COVID-19 pandemic in March 2020, allowing employers to review employees’ identity and employment authorization documents remotely, rather than in person. This virtual inspection was to be followed by a physical examination within three business days after normal operations resumed. With the new final rule set for earliest release in August 2023, employers will likely have to resume traditional Form I-9 examination practices until the new final rule goes into effect.
In December 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.”
CUPA-HR continues to monitor these regulations and will keep members apprised of any significant updates.
