Tag: Rule
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Trump doesn’t rule out recession as tariffs roil market (ABC News)
Higher Education Inquirer : Trump doesn’t rule out recession as tariffs roil market (ABC News)
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DOL files fresh appeal of a Texas decision vacating its new overtime rule
This audio is auto-generated. Please let us know if you have feedback.Dive Brief:
- The U.S. Department of Labor has appealed a Texas federal judge’s 2024 decision blocking its Biden-era final rule which sought to expand overtime pay protections under the Fair Labor Standards Act, according to a Feb. 28 court filing.
- Last December, Judge Sam Cummings of the U.S. District Court for the Northern District of Texas ruled against DOL in Flint Avenue, LLC v. U.S. Department of Labor, vacating and setting aside the final rule. Cummings’ decision came just over one month after another Texas judge similarly vacated and set aside the rule in a separate lawsuit filed by the state of Texas and parties including the Plano Chamber of Commerce.
- The appeal takes Flint Avenue to the 5th U.S. Circuit Court of Appeals, the same court in which DOL filed an appeal of the decision in the State of Texas case last year. DOL’s public affairs staff did not immediately respond to a request for comment. The U.S. Department of Justice, which represents the DOL, did not respond to a request for comment submitted via its online form.
Dive Insight:
The Feb. 28 notice of appeal may come as a surprise to employers who expected the Trump administration to abandon the final rule; attorneys who previously spoke to HR Dive said that the rule was effectively “dead” despite DOL’s State of Texas appeal because of the Trump administration’s conservative policy stance on overtime.
In fact, the new administration had already filed motions in the 5th Circuit pertinent to overtime rule litigation. On Jan. 22, two days after President Donald Trump’s inauguration, DOJ attorneys sent a letter to the 5th Circuit requesting a 30-day extension on the deadline set by the court to file an opening brief in the State of Texas appeal. The court granted the request and the agency’s filing deadline is currently set to March 7.
The April 2024 final rule proposed a two-step process that would have eventually raised the minimum annual salary threshold for overtime pay eligibility under the FLSA from $35,568 to $58,656 by Jan. 1, 2025. The rule would then have implemented a mechanism for automatically adjusting the threshold every three years using current wage data beginning in July 2027.
But a series of Texas court decisions froze the rule. The judge in State of Texas held that the rule exceeded DOL’s authority and was unlawful. Likewise, Cummings said in his decision that he found the State of Texas judge’s reasoning “persuasive,” and he adopted the same reasoning in ruling for the plaintiffs.
There is some intrigue in how the 5th Circuit might rule on the two appealed judgments given that the court signed off on DOL’s overall use of a salary basis test for determining overtime pay eligibility in last year’s Mayfield v. U.S. Department of Labor. The Mayfield plaintiffs alleged that the salary basis test had no basis in the FLSA’s text, but the 5th Circuit disagreed. The court did hold, however, that DOL “cannot enact rules that replace or swallow the meaning” of the FLSA’s text, adding that particular salary threshold may raise legal issues because of their size.
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Higher ed must resist authoritarian rule. It’s the mission.
Together, we should be clear on what President Donald Trump is trying to do to higher education.
Destroy it. Whatever public rationales he or his administration release, the intent of his actions is clear, so if we’re going to discuss responses to those actions, we must remember, always, that Donald Trump is trying to destroy higher education.
Michelle Goldberg at The New York Times gets it; the rest of us should, too.
This goal is not new. In 2021 in a speech at the National Conservatism Conference, future vice president JD Vance declared, “We have to honestly and aggressively attack the universities in this country.” Vance (and Trump) are open admirers of Hungarian authoritarian leader Viktor Orbán, who has subjugated the once-free higher education institutions of his country to his own needs.
This is the Trump/Vance playbook. The unannounced, unilateral (now paused thanks to court intervention) cuts to NIH grants, and the Dear Colleague letter that goes well beyond, and even actively distorts current law to threaten institutions with punishment for failing to obey, are just the latest attacks in a war that has been going on for quite some time, and not just at the federal level, but in the states as well, as exemplified by Ron DeSantis’s wanton destruction of Florida’s New College.
Sadly, as callous, counterproductive and wasteful of taxpayer money as it was, DeSantis taking a wrecking ball to New College in order to install his cronies while recruiting enough athletes for three baseball teams—despite New College not being in an athletic conference—was within the power of the state’s chief executive.
What Trump is doing to higher education institutions is not. It should be unthinkable for institutions to obey diktats that are not only unlawful, but in direct conflict with the purported mission of the institution.
If any institutional leaders are thinking that if they do just enough compliance with Trump’s demands, he will stop the war, they are kidding themselves.
How is the rush to declare institutional neutrality to not just words but actions, as enacted by Vanderbilt chancellor Daniel Diermeier last year, working out? Surely they are feeling secure knowing that they got ahead of the abuse.
What’s that? That isn’t happening? Turns out Vanderbilt has had to pause graduate student admissions because of concerns about funding. I guess surrendering in advance wasn’t the way to go.
I used Vanderbilt only because it was a recent, handy example, not the only one. The silence from major, well-resourced higher education institutions is truly deafening.
Writing at her personal website, Jackie Gharapour Wernz, an education and civil rights attorney, calls the Dear Colleague letter “regulation by intimidation,” which is exactly right. Bending the knee at this moment only demonstrates the effectiveness of intimidation.
Wernz walks through a number of ways the advisories in the letter go well beyond well-established law, while also making an additional important point: Trump is busy gutting the very agencies that would be able to do the investigation and enforcement of institutions they believe are in violation of legal regulations. This reality, plus the various procedural steps involved in these investigations, suggests that it may be far more advantageous to dig in and run out the clock of this initial flurry, particularly when existing law is clearly on your side.
But this doesn’t seem to be the strategy for most institutions. They are going to hope this goes away. Trying to make yourself a smaller target doesn’t mean the people intent on destroying you are going to stop attacking.
Interestingly, the group of higher ed leaders who are … uh … leading belong to the Education for All coalition, primarily consisting of community college administrators. Under the “freedom’s just another world for nothing left to lose” theory, this should not be surprising. Giving in to the Trump administration’s demands to give up on providing educational opportunities to diverse cohorts of students with different desires and needs would be to abandon their work entirely. Their defiance is both principled and practical.
To me, this suggests that the more prestigious institutions that are cowering in the face of the intimidation perhaps do not see their mission in terms of providing access to all. In a lot of ways, the present situation is primarily revealing that which we already knew—that the interests in diversity, equity and inclusion in elite spaces were a virtue-signaling scrim over the much less savory reality of wealth and exclusion.
Look, I’m getting worked up here. The truth is, I don’t wish any harm on any higher education institution, but the institutions with the most resources, most power and most influence must step up.
The present threat goes well beyond an attack on the institutional coffers. These attacks on higher education are part of a much broader push toward authoritarianism as a federal executive (and his minions) direct the actions of formerly free institutions and people.
The good news is that should institutions stand up for themselves, I think they will find many people standing up with them, including, most importantly, the students. Unfortunately, the longer institutions hesitate to stand for the values they claim to hold, the more distrust they’re sowing with the very constituencies who could save them, who do not want to destroy them, but the opposite, who want to see them thrive.
The stakes are almost impossibly high. Shouldn’t we act like it?
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Education Department will enforce 2020 Title IX rule
This audio is auto-generated. Please let us know if you have feedback.Dive Brief:
- The U.S. Department of Education has told colleges and school districts they should follow the 2020 Title IX rule for investigating sex discrimination in schools, closing the chapter on a Biden administration rule that faced much legal turmoil.
- In a Friday “Dear Colleague” letter, Craig Trainor, acting assistant secretary for civil rights, said that under the 2020 rule, the interpretation of “sex” means being born male or female.
- The letter also clarified that any open Title IX investigations initiated under the 2024 Title IX Rule should be immediately reevaluated to comply with the requirements of the 2020 rule.
Dive Insight:
Trainor said the change is based on a federal judge’s decision in early January that struck down the 2024 rule as unconstitutional across the country. That Biden administration rule for the first time extended Title IX civil rights protections to LGBTQI+ students and employees at federally funded schools and colleges — including by prohibiting discrimination based on gender identity and sexual orientation.
Released in April 2024, the rule drew legal challenges, and courts blocked the regulations in at least 26 states.
Trainor also stated that the 2024 rule conflicts with a Jan. 20 executive order from President Donald Trump that requires all federal agencies and departments to recognize just two sexes — male and female — when it comes to “sex-protective” laws.
“As a constitutional matter, the President’s interpretation of the law governs because he alone controls and supervises subordinate officers who exercise discretionary executive power on his behalf,” Trainor’s letter said.
Supporters of the 2020 rule, developed under the first Trump administration, praised the letter.
Chad Wolf, executive vice president of the America First Policy Institute, said that under the 2020 rule, women and girls were “unjustly and illegally” denied access to sex-segregated athletic opportunities and intimate spaces. Linda McMahon, President Trump’s nominee for U.S. education secretary, is chair of the board at AFPI.
“Female athletes were seriously injured competing against males, and many were forced to undress in front of males,” Wolf said in a statement. “It was a misguided policy that did real harm, and this new guidance puts an end to it.”
But opponents to the 2020 rule voiced concern, saying it puts students at greater risk of harassment and discrimination.
“This is an incredibly disappointing decision that will leave many survivors of sexual violence, LGBTQ+ students, and pregnant and parenting students without the accommodations critical to their ability to learn and attend class safely,” said Emma Grasso Levine, senior manager of Title IX policy and programs at Know Your IX, in a statement. “Schools must step up to protect students in the absence of adequate federal guidance.”
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Education Department will enforce 2020 Title IX rule
This audio is auto-generated. Please let us know if you have feedback.Dive Brief:
- The U.S. Department of Education has told school districts and colleges they should follow the 2020 Title IX rule for investigating sex discrimination in schools, closing the chapter on a Biden administration rule that faced much legal turmoil.
- In a Friday “Dear Colleague” letter, Craig Trainor, acting assistant secretary for civil rights, said that under the 2020 rule, the interpretation of “sex” means being born male or female.
- The letter also clarified that any open Title IX investigations initiated under the 2024 Title IX Rule should be immediately reevaluated to comply with the requirements of the 2020 rule.
Dive Insight:
Trainor said the change is based on a federal judge’s decision in early January that struck down the 2024 rule as unconstitutional across the country. That Biden administration rule for the first time extended Title IX civil rights protections to LGBTQI+ students and employees at federally funded schools and colleges — including by prohibiting discrimination based on gender identity and sexual orientation.
Released in April 2024, the rule drew legal challenges, and courts blocked the regulations in at least 26 states.
Trainor also stated that the 2024 rule conflicts with a Jan. 20 executive order from President Donald Trump that requires all federal agencies and departments to recognize just two sexes — male and female — when it comes to “sex-protective” laws.
“As a constitutional matter, the President’s interpretation of the law governs because he alone controls and supervises subordinate officers who exercise discretionary executive power on his behalf,” Trainor’s letter said.
Supporters of the 2020 rule, developed under the first Trump administration, praised the letter.
Chad Wolf, executive vice president of the America First Policy Institute, said that under the 2020 rule, women and girls were “unjustly and illegally” denied access to sex-segregated athletic opportunities and intimate spaces. Linda McMahon, President Trump’s nominee for U.S. education secretary, is chair of the board at AFPI.
“Female athletes were seriously injured competing against males, and many were forced to undress in front of males,” Wolf said in a statement. “It was a misguided policy that did real harm, and this new guidance puts an end to it.”
But opponents to the 2020 rule voiced concern, saying it puts students at greater risk of harassment and discrimination.
“This is an incredibly disappointing decision that will leave many survivors of sexual violence, LGBTQ+ students, and pregnant and parenting students without the accommodations critical to their ability to learn and attend class safely,” said Emma Grasso Levine, senior manager of Title IX policy and programs at Know Your IX, in a statement. “Schools must step up to protect students in the absence of adequate federal guidance.”
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Federal Judge Strikes Down Biden Administration’s Title IX Rule
by CUPA-HR | January 9, 2025
On January 9, a federal judge in the Eastern District of Kentucky Court vacated the Biden administration’s Title IX regulations. The order strikes down the regulations nationwide, reverting enforcement back to the 2019 Title IX regulations set by the Trump administration.
Background
The Biden administration’s Title IX final rule was released in April 2024 and was set to take effect on August 1, 2024. Soon after the rule was published, several states filed legal challenges against it, resulting in preliminary injunctions that blocked the rule from taking effect in 26 states and hundreds of schools in other states that did not challenge the regulations.
The Biden administration appealed the preliminary injunctions to the Supreme Court, requesting that the court limit the scope of the preliminary injunctions placed by the lower courts to block only those provisions that related to gender identity. They argued that the lower courts’ decisions to grant the preliminary injunctions were based on concerns with the expanded protections for transgender students and that other provisions like the new grievance procedures and training requirements set forth by the final rule should be able to take effect. The Supreme Court ultimately rejected the Biden administration’s request, arguing that the gender identity provisions were “intertwined with and affect other provisions of the rule.”
District Court Judge’s Ruling
In the ruling that vacates the rule nationwide, the federal judge stated that the Biden administration’s Title IX rule is unlawful because Title IX’s prohibition on sex discrimination does not include the scope laid out in the regulations, which include expanded protections for pregnancy or related conditions, gender identity and sexual orientation. The order also states that the rule violates the First Amendment and that it is “arbitrary and capricious.”
Looking Ahead
The judge’s order almost certainly ends any hopes for the Biden administration’s Title IX regulations to take effect nationwide. The Biden administration may decide to appeal the decision to a higher court, but efforts to reinstate the rule will likely be unsuccessful given the few days they have left in office and the incoming Trump administration’s unwillingness to defend the rule in court. Alternatively, the Trump administration may seek to update their 2019 Title IX regulations, though any urgency to do so may be diminished now that the 2019 regulations are back in place.
CUPA-HR will continue to monitor for Title IX updates and keep members apprised via Washington Insider Alert emails and the blog.
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DHS Issues Final H-1B Modernization Rule
by CUPA-HR | December 18, 2024
On December 18, the Department of Homeland Security (DHS) published a final rule to modernize the H-1B visa program, finalizing changes first proposed in October 2023. The rule will take effect on January 17, 2025, introducing significant updates aimed at clarifying the requirements of the H-1B program and improving program efficiency, providing greater benefits and flexibility for petitioners and beneficiaries, and strengthening program integrity measures.
The final rule responds to comments from a variety of stakeholders, including concerns raised by CUPA-HR and others in a multi-sector joint comment letter signed by 74 organizations and a higher education-focused letter led by the American Council on Education (ACE). Both letters advocated for changes to the definition of a “specialty occupation” and other key areas to ensure the regulations better align with workforce needs. The final rule incorporates feedback from stakeholders and aims to provide clarity while maintaining program integrity.
Below are highlights of some noteworthy provisions in the final rule and next steps.
Revised Definition and Criteria for H-1B Specialty Occupations
The final rule modifies the definition of an H-1B specialty occupation in response to public comments, including those CUPA-HR signed onto in a multi-sector joint comment letter and a higher education-focused letter. DHS clarified that a degree or its equivalent must be “directly related” to the duties of the position, with “directly related” defined as having a logical connection between the degree and the job duties. This change addresses concerns raised in comments that the proposed language could have been misinterpreted to require adjudicators to focus solely on a beneficiary’s specialized studies.
The rule also permits a range of qualifying degree fields, provided that each field is directly related to the position’s duties. Additionally, DHS removed references to specific degree titles such as “business administration” and “liberal arts” to avoid undue reliance on degree titles. This recognizes that degree titles can vary between institutions and evolve over time, emphasizing the relevance of the degree’s content rather than its name. These changes align with the requests made in the joint comment letter, ensuring that the definition of a specialty occupation is practical and reflective of modern workforce realities.
Codification of the Deference Policy
The final rule codifies DHS’s current deference policy, providing greater clarity on how U.S. Citizenship and Immigration Services (USCIS) adjudicators should approach petitions involving the same parties and underlying facts. Under the codified policy, adjudicators are generally required to defer to a prior USCIS determination of eligibility when adjudicating a subsequent Form I-129, Petition for Nonimmigrant Worker. However, deference will not apply if a material error in the prior approval is discovered, or if new material information or a material change impacts the petitioner’s or beneficiary’s eligibility.
Elimination of the Itinerary Requirement
The final rule eliminates the itinerary requirement, which previously required petitioners to provide an itinerary detailing the dates and locations of services or training when filing Form I-129. This change addresses concerns that the requirement was largely duplicative of other information already provided in the petition. Eliminating this requirement simplifies the filing process, reducing administrative burdens for petitioners. The change is particularly beneficial for individuals in roles such as medical residencies under H-1B, where work may occur at multiple sites, as it removes unnecessary procedural hurdles without impacting USCIS’s ability to assess eligibility.
Expanded H-1B Cap Exemptions for Nonprofit and Governmental Research Organizations
The final rule modestly broadens the scope of H-1B cap exemptions for nonprofit and governmental research organizations, as well as nonprofits affiliated with institutions of higher education. The revised definitions recognize that qualifying organizations may have multiple fundamental activities or missions beyond just research or education. Under the updated regulations, organizations can qualify for a cap exemption if research or education is one of their fundamental activities, even if it is not their primary activity or mission. These changes better align the cap exemption criteria with the diverse roles and structures of modern nonprofit and governmental entities.
Enhanced Cap-Gap Protections for F-1 Students
The final rule extends cap-gap protections for F-1 students transitioning to H-1B status. Under the new provision, F-1 students who are beneficiaries of timely filed, nonfrivolous H-1B petitions will receive an automatic extension of their F-1 status and employment authorization through April 1 of the following calendar year. This extension provides up to six additional months of status and work authorization, reducing the risk of lapses in lawful status or employment eligibility while awaiting approval of the change to H-1B status.
Codification of Site Visit Authority
The final rule codifies and strengthens the USCIS site visit program, which is administered by the Fraud Detection and National Security (FDNS) unit. DHS clarifies that refusal to comply with a site visit may result in the denial or revocation of a petition. Additionally, the rule explicitly authorizes DHS to conduct site visits at various locations connected to the H-1B employment, including the primary worksite, third-party worksites, and any other locations where the employee works, has worked, or will work. This provision formalizes long-standing practices and enhances USCIS’s ability to monitor compliance with H-1B program requirements.
Next Steps
The 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 withdraw the regulation, the codification of key provisions, such as the deference policy, makes them more difficult to rescind without formal rulemaking.
Employers should also prepare for the required use of a new edition of Form I-129, Petition for a Nonimmigrant Worker, on the rule’s effective date. Because there will be no grace period for accepting prior editions of the form, employers should review the preview version, which will be published soon on uscis.gov, to prepare for the transition.
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Federal Judge Vacates Overtime Final Rule
by CUPA-HR | November 15, 2024
On November 15, a federal judge in the Eastern District Court of Texas ruled to strike down the Biden administration’s Fair Labor Standards Act (FLSA) overtime final rule. The ruling strikes down all components of the rule, meaning both the July and January salary thresholds are no longer in effect, and the triennial automatic updates will not take place. The decision applies to all covered employers and employees under the FLSA nationwide.
The Eastern District Court of Texas held a hearing on the business groups’ lawsuits challenging the overtime regulations on November 8. During the hearing, the judge suggested that it would be problematic if DOL’s salary basis replaced the duties test established under the FLSA regulations. He also noted that the Biden administration’s regulations were projected to have a larger number of workers impacted by the salary threshold increase than the Trump administration’s 2019 rule. The judge did not rule from the bench, but his remarks showed skepticism about the Biden administration’s rule.
Background
As a reminder, the final rule implemented a two-phase approach to increasing the minimum salary threshold under the FLSA overtime regulations. The first increase took effect on July 1, increasing the minimum salary threshold from the current level of $684 per week ($35,568 per year) to $844 per week ($43,888 per year). The second increase was set to take effect on January 1, 2025, and it would have increased the minimum salary threshold again to $1,128 per week ($58,656 per year). The final rule also adopted automatic updates to the minimum salary threshold that would occur every three years.
Soon after the final rule was published, several lawsuits were filed challenging the final rule. The suit claimed that the salary threshold that was supposed to go into effect on January 1, 2025, was so high it would result in more than 4 million individuals being denied exempt status, even though these individuals could be reasonably classified as exempt based on their duties, and in doing so, the rule violated both the statutory language of the FLSA and prior court decisions. The suits also challenged the automatic updates. The Eastern District Court of Texas granted a preliminary injunction for public employers in Texas prior to the July 1 effective date, stopping the rule from taking effect for those employers only. For private employers in Texas and all other employers in the country, the rule went into effect on July 1, and the January 1 effective date was still in play.
Looking Ahead
With the decision, the salary threshold set in the 2019 regulations ($35,568 per year or $683 per week) will be the salary threshold employers should adhere to. Whether President-elect Trump decides to increase the minimum salary threshold during his second term remains to be seen, but there will be no effort from his incoming administration to appeal the decision in favor of the Biden administration’s threshold. CUPA-HR will continue to keep members apprised of any updates related to the FLSA overtime regulations.
