Tag: Response

  • CUPA-HR Submits Comments in Response to DOL’s Overtime Rulemaking – CUPA-HR

    CUPA-HR Submits Comments in Response to DOL’s Overtime Rulemaking – CUPA-HR

    by CUPA-HR | November 8, 2023

    On November 7, CUPA-HR, joined by 49 other higher education associations, submitted comments in response to the Department of Labor (DOL) Notice of Proposed Rulemaking (NPRM) to update the Fair Labor Standards Act (FLSA) overtime regulations. In the NPRM, the DOL proposes to update the salary threshold for the “white collar” exemptions to the FLSA overtime pay requirements from its current level of $35,568 annually to $60,209 per year — a nearly 70% increase.* Additionally, the department proposes to automatically increase the salary level every three years.

    CUPA-HR’s comments highlight the concerns from institutions across the country and ask that the DOL consider four recommendations:

    1) The DOL Should Not Update the Salary Threshold at This Time

    The DOL most recently updated the minimum salary threshold in 2020. CUPA-HR welcomed updates at the time, given the minimum threshold had not been successfully updated since 2004 and the level proposed in 2019 was appropriate at the time. With the most recent update becoming effective in 2020, we believe it is too soon for the DOL to move forward with another update to the minimum salary threshold.

    2) The DOL Should Lower the Proposed Minimum Salary Threshold and Account for Room and Board

    If the DOL does choose to move forward with an increase to the threshold, we believe that the proposed minimum salary threshold is too high. Updating the salary level from $684 per week ($35,568 per year) to $1,158 per week ($60,209 per year) leads to a nearly 70% increase, which will result in a large number of employees being reclassified to nonexempt status. To avoid having to reclassify certain employees to nonexempt status, we ask that the DOL consider room and board as part of an employee’s total salary when considering if such employees meet the minimum salary threshold.

    3) The DOL Should Not Implement Automatic Updates to the Salary Threshold

    In the NPRM, the DOL proposes to implement automatic updates to the salary threshold that would occur every three years. CUPA-HR believes that the DOL does not have the authority to implement automatic updates under the FLSA and that automatic increases will negatively impact institutions’ budgets, their ability to provide merit-based increases, and employee morale.

    4) The DOL Should Extend the Effective Date of Any Final Rule Implementing a Higher Salary Threshold

    According to the NPRM, the DOL anticipates providing 60 days for compliance with a final rule once it is published by the agency. CUPA-HR believes 60 days is too short a timeframe to assess the impact, plan, and implement appropriate changes on campus. Instead, we ask for an effective date that is at least 180 days after any final rule is published.

    CUPA-HR’s president and chief executive officer, Andy Brantley, shared the following: “To say campuses are extremely concerned with the Department of Labor’s proposed rule increasing the minimum salary threshold to the FLSA overtime pay requirements by almost 70% would be an understatement. Employees in positions that clearly meet the three criteria to qualify as white-collar employees who are exempt from the federal overtime pay requirement will be forced into nonexempt positions.”

    In addition to submitting these comments, CUPA-HR also joined the Partnership to Protect Workplace Opportunity’s comment letter addressing concerns with the proposed rule. CUPA-HR will keep members apprised of any updates relating to this proposed rule and our advocacy efforts as the department moves toward finalizing these regulations.

    * 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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  • CUPA-HR Submits Comments in Response to Title IX NPRM – CUPA-HR

    CUPA-HR Submits Comments in Response to Title IX NPRM – CUPA-HR

    by CUPA-HR | September 13, 2022

    On September 12, CUPA-HR submitted comments in response to the Department of Education (DOE)’s Notice of Proposed Rulemaking (NPRM) to amend Title IX. The NPRM seeks to rollback and replace the Trump administration’s 2020 Title IX rule, specifically with respect to its grievance procedures, and establish expanded protections against sex-based discrimination to cover sexual orientation, gender identity and pregnancy or related conditions.

    CUPA-HR filed comments to bring attention to the possible impact the proposed regulations could have on how higher education institutions address employment discrimination. In our comments, we highlight the two sets of grievance procedures promulgated by the proposal: procedures used for cases involving employee-on-employee sex-based harassment (section 106.45) and procedures used for sex-based harassment involving an employee and student, regardless of whether the employee involved is the complainant or respondent (section 106.46). Our comments argue that such procedures in cases where the employee is a respondent may be unnecessarily prescriptive and will interfere with existing obligations, policies and procedures already utilized by institutions that are required to handle such incidents of sex-based employment discrimination under Title VII of the Civil Rights Act of 1964 (Title VII) and state and local employment laws.

    In light of our concerns, our comments ask the DOE to exempt any sex-based harassment of employee respondents against a student complainant from the section 106.46 requirements, and to exempt all sex-based harassment claims where an employee is the respondent, regardless of whether the complainant is a student or an employee, from the section 106.45 requirements. These comments directly align with the concerns and requests written in the American Council on Education’s comments, which CUPA-HR also signed on to.

    Finally, our comments suggest that the DOE consult with other federal agencies with jurisdiction over discrimination law, including the Equal Employment Opportunity Commission to rationalize the requirements instituted by the Title IX regulations and Title VII, and to issue joint guidance on how to minimize potential conflicts between the obligations to claimants under Title VII and respondents under Title IX.

    The DOE received over 200,000 comments in response to the NPRM, which they must now review prior to issuing a final rule to implement their changes. It is therefore unclear when we can expect the final rule and effective date of the new regulations. CUPA-HR will keep members apprised of any updates on the Title IX regulations.



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  • Elements of an Initial Response – GlobalHigherEd

    Elements of an Initial Response – GlobalHigherEd

    Editor’s note: this guest entry, also posted on Inside Higher Ed, has been kindly developed by Sejal Parmar, Assistant Professor at the Department of Legal Studies and a core faculty member of the Center for Media, Data and Society at the School of Public Policy at the Central European University (CEU) in Budapest. The photographs are (c) Daniel Vegel, Zoltan Tuba / CEU. Dr. Parmar was previously Senior Legal Officer at ARTICLE 19. She has also been a postdoctoral fellow at New York University Law School and a visiting scholar at the University of Wisconsin-Madison Law School. Her main field of expertise and research is international and European human rights law, particularly on freedom of expression. Dr. Parmar’s entry provides us with a number of important insights on how and why CEU is defending itself after being dragged into an ideological struggle not of the university’s making, as well as reminding us that what happens to CEU should matter to everyone concerned about the future of higher education, knowledge production, and human rights. Kris Olds

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    Defending Central European University and Academic Freedom: Elements of an Initial Response

    Sejal Parmar, Central European University

    CEU’s new “N15” building in Nádros street.

    The Central European University (“CEU”) “in a single week has become the most important global symbol of academic freedom in the world.” So observed CEU’s President and Rector Michael Ignatieff on 4 April, the day amendments to Hungary’s Act on National Higher Education (“Lex CEU”), which were only tabled on 28 March, were adopted by the Hungarian Parliament. Signed into law by Hungary’s President just a week later, on 10 April, these amendments “make it impossible for the University to continue its operations as an institution of higher education in Budapest, CEU’s home for 25 years.” CEU’s fight to remain “at home” has prompted a tsunami of statements from across the world and a spectacular popular movement, mobilising some of the largest demonstrations the country has seen since the fall of communism; as many as 80,000 people marched in Budapest on 9 April. CEU has been propelled into the global limelight through numerous opinion pieces, editorials, academic blogs, papers, social media posts and the hashtag #IstandwithCEU. Ironically, the university, which hosted the “Frontiers of Democracy” initiative in recent years and has long offered courses on international human rights advocacy, has necessarily been galvanised into taking on the forces of “illiberal democracy” for the sake of its own freedom.

    An emblem and catalyst

    Under the terms of Lex CEU, CEU is required to offer academic programmes in New York at pointless and unbearable financial cost. CEU currently awards both Hungarian and American accredited degrees, without having a campus in the US, thanks to its dual legal identity and accreditation in New York as “CEU”, and in Hungary as “Közép-európai Egyetem” (“KEE”). Contesting the legislation as an attack on its academic freedom and institutional autonomy, CEU is currently pursuing “all legal remedies” whilst calling on the government to show “mutual good will” by initiating negotiations towards finding a “lawful and long-term solution that would ensure [the university’s] academic freedom and institutional integrity.”

    The attack on CEU’s freedom as a university may be unprecedented in the history of the EU, but it is not unique. Just in the past year, Russian authorities have revoked the license of the European University in St Petersburg, the Turkish government has forced the shutdown of fifteen institutions after the failed July 2016 coup attempt, and campuses in Pakistan and Afghanistan have been subjected to violent attacks, resulting in scores of deaths. As a legislative assault on a Hungarian institution of critical inquiry and “public watchdog”, it is also not unique and may have even been predicted. It is part of a broader political offensive on democratic institutions by Hungary’s Fidesz government, led by Prime Minister Viktor Orbán, which has over the years targeted independent media, the Constitutional Court and foreign-funded NGOs, whilst treating “the very concept [of] human rights as a sort of public enemy”. Little wonder that Timothy Garton Ash has urged that Europe’s “appeasement [of Hungary] has to stop”.

    CEU’s case exposes both the erosion of academic freedom around the world, and deepening challenges to democracy, human rights and the rule of law in Hungary and in the EU generally. It should, accordingly, catalyse a deeper interest in threats to academic freedom – which is protected by Article 19 ICCPR, Articles 15 and 13 ICESCR, Article 10 ECHR and Article 13 EU Charter of Fundamental Rights – both intrinsically and as manifestations of the shrinking of civic space. Until now, this fundamental freedom has been neglected by most intergovernmental bodies, NGOs and scholars, for whom it might have seemed a marginal or esoteric subject.

    Elements of an evolving response

    CEU’s “open society” mission and its “densely international” community make it distinctive. A private and independent institution, CEU derives its funding from a founding endowment, philanthropic gifts, research grants and tuition income. Nonetheless, its response to Lex CEU may be instructive on how a university can defend its own academic freedom today. The strength of CEU’s response so far, led by the Rector and the specially constituted “Response Team”, has rested on four simple elements.

    Leadership and rhetoric

    First and foremost, CEU’s leadership has been calm, resolute and tireless throughout this episode, inspiring great institutional unity, as well as pride and gratitude, across the CEU community. Firmly and eloquently, the Rector has reiterated: “Under all circumstances, CEU will continue its operations,” and, “Budapest is our home … [we] belong here.” Leon Botstein, the wizardlike Chairman of the Board of Trustees and President of Bard College, has promised: “Whatever it takes will be done … we will prevail.” Such words have instilled confidence within CEU, whilst simultaneously reinforcing the university’s ties to Budapest.

    Communications

    CEU’s position has been consistent and clear, and effectively communicated in various ways. In the spirit of transparency, CEU’s senior administration have held regular community forums and press conferences, which have been broadcast live and uploaded onto the university’s You Tube channel. The Rector has given high-profile interviews to international and Hungarian media, and the dedicated CEU site has been regularly updated with detailed information in both English and Hungarian. An official Twitter handle, @StandwithCEU, has been established and a Thunderclap is planned. The Response Team has also quickly refuted false statements concerning the legislation and CEU, including misleading references to CEU as “the Soros university” or “George Soros’s university” by the government and the media. CEU’s position has been conveyed “in a highly sophisticated, professional, and honest way,” setting “the crisis ‘comms’ standard universities worldwide should strive to match,” as Kris Olds, an expert on global higher education put it.

    Constitutional challenge

    tiered classroom, CEU Business School classCEU has quickly set forth a strong legal case contesting the constitutional validity of Lex CEU on both substantive and procedural grounds. The most important claim is that the legislation violates the freedom of academic activities, the freedom of scientific research, learning and teaching, the right to education and the autonomy of higher education institutions, as protected by Hungary’s Fundamental Law. CEU also argues that Lex CEU targets and discriminates against foreign higher education institutions in general, by requiring them to provide programmes in their state of origin, and CEU in particular, by making it impossible for KEE to take over the programmes of CEU and by requiring CEU to change its name; and that it also provides insufficient time for compliance by requiring a binding international agreement between Hungary and the US to be completed within six months of the publication of the law and an agreement between Hungary and the State of New York to be concluded by 1 January 2018.

    Political and public support

    CEU has gathered and been heartened by support from an astonishing array of individuals and organisations – a testament to the networks and energy of its community, and its reputation. In Hungary, this has included backing from the Hungarian Academy of Sciences; Eötvös Loránd, Corvinus and Andrássy universities; the Ombudsman for educational rights; and former President Solyom. Pledges of solidarity have come from international academia, including: the heads of leading universities in North America and Europe; the International Association of Universities; and many Nobel laureates. Key strategic players have expressed their support and concern about Lex CEU, notably: two senior State Department officials, twelve members of Congress and a former New York governor; European Commission Vice President Frans Timmermans, and European Commissioners Moedas and Navracsics; as well as President Steinmeier of Germany, and France’s Secretary of State for European Affairs, Harlem Desir. Statements urging Hungary to reconsider the legislation have been issued by: former UN Secretary-General Kofi Annan; the UN Special Rapporteur on freedom of opinion and expression, David Kaye, endorsed by two other Special Procedures; the Directors of the OSCE Office for Democratic Institutions and Human Rights (ODIHR) and the EU Fundamental Rights Agency; and leading NGOs, including Human Rights Watch, Freedom House and Scholars at Risk. Hundreds of writers and thousands of private individuals have sent messages of support, while tens of thousands have signed an online petition to “save” CEU.

    Significance

    CEU's new This episode has already been defining moment for CEU as a community and institution, for it has laid bare its resilience and adeptness, its rootedness in Hungarian society, and its global clout. It may also be a turning point in the fortunes of the Fidesz government, whose attempt to attract votes in advance of the 2018 elections by targeting CEU appear to be grossly misjudged. The university has proven itself to be the government’s most formidable, albeit reluctant, adversary within Hungary yet, thanks to the above-mentioned elements and mass demonstrations. CEU’s case clearly presents an critical test for the EU in showing whether it can meaningfully address the flouting of its common values within an existing Member State: a legal assessment is being carried out by the European Commission; the European Parliament debates the situation on 26 April; and the European Council, under Article 7 TEU, wields the ultimate power to sanction Hungary. The European Peoples’ Party can also expel Fidesz from its ranks, as commentators have argued it should. Given the problems of the Constitutional Court, powerful players in Brussels and Washington DC are now being counted upon. On what terms CEU “prevails” – as it will eventually, I have no doubt – is vitally important for the university. Yet it will also matter enormously as an example and precedent for others, above all academic institutions under the spectre of intimidation and closure around the world.

     



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