Tag: Rule

  • DHS Issues Final H-1B Modernization Rule

    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

    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.



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  • Title IX Rule Goes Into Effect in 24 States – CUPA-HR

    Title IX Rule Goes Into Effect in 24 States – CUPA-HR

    by CUPA-HR | August 1, 2024

    On August 1, the Biden administration’s Title IX final rule goes into effect, implementing new requirements for compliance with Title IX for institutions of higher education. However, ongoing legal challenges have blocked the rule from taking effect in 26 states, as well as at certain institutions in states that have not sued the Department of Education (ED).

    Background

    On April 19, ED released the text of the highly anticipated Title IX final rule. The final rule expands protections against sex-based discrimination to cover sexual orientation, gender identity, and pregnancy or related conditions, and it implements new training requirements for employees and grievance procedures for handling reported cases of sex-based discrimination, including sexual harassment. To provide members with an overview of the final rule, CUPA-HR held a webinar in April, which was recorded and can be accessed for free.

    Lawsuits

    Shortly after the rule was published, over 20 Republican-led states and advocacy groups filed lawsuits challenging the final rule. The lawsuits sought to block ED from implementing and enforcing the final rule, though most of them homed in on concerns with expanding Title IX protections to transgender individuals through the expanded protections against discrimination based on an individual’s gender identity.

    From mid-June through the end of July, federal judges across the country granted preliminary injunctions to the states and advocacy groups challenging the rule, meaning the Department of Education is blocked from enforcing the new Title IX rule on the August 1 effective date. All 26 states that sued ED for the Title IX rule were ultimately granted injunctive relief. Additionally, a decision from the U.S. District Court of Kansas expanded the preliminary injunction to include schools attended by members of the Young America’s Foundation, Female Athletes United, and Moms for Liberty. This means that ED cannot enforce the new Title IX rule at certain schools in the 24 states that didn’t challenge the rule, as well as Washington, D.C., and Puerto Rico.

    The Biden administration has appealed to the Supreme Court on the decisions granting the preliminary injunctions. In its emergency request, the administration is asking the court to limit the scope of the preliminary injunction to only block provisions related to gender identity. It argued that the lower court’s decisions to grant preliminary injunctions were based on concerns with the expanded protections for transgender students, and it hopes that other provisions like the new grievance procedures and training requirements can go into effect. A decision from the Supreme Court on the emergency request has not yet been issued.

    Looking Ahead

    Though ED is blocked from enforcing the new Title IX rule in 26 states, litigation continues in the lower courts where decisions have been issued on whether to strike down the rule. If the rule is struck down, the Biden administration is likely to appeal the decision, though it is unknown whether a decision will be released before the election and potential change in administration. CUPA-HR will keep members apprised of additional updates to the legal challenges against the Title IX final rule.

     



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  • Overtime Rule Blocked for Public Institutions in Texas; House Advances Legislation Aiming to Block Overtime Rule – CUPA-HR

    Overtime Rule Blocked for Public Institutions in Texas; House Advances Legislation Aiming to Block Overtime Rule – CUPA-HR

    by CUPA-HR | July 1, 2024

    Update: On November 8, the federal judge from the Eastern District of Texas is set to hold a hearing on summary judgement in the business community’s challenge to DOL’s overtime final rule. While it is unknown how soon after we could get a decision on the validity of the rule, the judge could rule from the bench or quickly after the hearing. CUPA-HR will send out updates on the rulings as soon as we know.

    On June 28, a federal judge in the Eastern District of Texas Court granted a narrowly scoped preliminary injunction for the overtime rule in the state of Texas, blocking the Department of Labor’s overtime final rule from taking effect on July 1, 2024. The judge only blocked enforcement for employees of the state of Texas (i.e., public institutions), so private institutions in Texas and all other institutions outside of Texas will still need to comply with the overtime rule beginning July 1, 2024.

    The motion for a preliminary injunction was filed by the state of Texas alongside a lawsuit challenging the validity of the final rule in its entirety. At least two other lawsuits are currently pending before the Eastern District Court of Texas. The preliminary injunction will block the final rule from taking effect on July 1 for public employers and employees in Texas until a later decision is issued on the lawsuits challenging the validity of the final rule.

    As a reminder, the final rule implemented a two-phase approach to increasing the minimum salary threshold under the Fair Labor Standards Act overtime regulations. The first increase was expected to take 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 is set to take effect on January 1, 2025, and it would increase 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.

    Given the judge’s narrow decision granting the preliminary injunction, private institutions in Texas and all institutions outside of Texas are still required to implement adjustments to comply with the July 1 minimum salary threshold until a later decision is made on the validity of the rule as a whole. CUPA-HR will be monitoring the pending cases closely.

    House Appropriations Subcommittee Bill

    On June 26, the House Appropriations Subcommittee on Labor, Health and Human Services, and Education released their fiscal year 2025 funding legislation for the Department of Labor (DOL) and other related agencies, which included a provision to prohibit any funding provided to DOL under the bill from administering, implementing or enforcing the overtime final rule. The Subcommittee passed the legislation out of Committee during a markup on June 27. It will now be sent to the floor for a vote, where House Republicans have a slim majority and could pass the bill along partisan lines. The fate of the overtime provision appears uncertain in the Senate, however, as the Democrat-controlled chamber is unlikely to include such language in their appropriations bill. CUPA-HR will continue to keep members apprised of any updates on the status of the overtime final rule.



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  • As Effective Date for Biden FLSA Overtime Rule Nears, Opposition Mounts – CUPA-HR

    As Effective Date for Biden FLSA Overtime Rule Nears, Opposition Mounts – CUPA-HR

    by CUPA-HR | June 18, 2024

    On July 1, the first phase of the U.S. Department of Labor (DOL)’s new overtime rule goes into effect. The initial phase of the rule will require employers to pay most white-collar employees a salary of at least $43,888. If employers fail to do so, those employees will be entitled to overtime pay under federal law. As the rule’s effective date approaches, opposition has mounted, with plaintiffs filing three lawsuits challenging the rule, including one filed by the state of Texas requesting that the court delay the July 1 effective date. Additionally, several Republican members of the U.S. House and Senate have introduced a Congressional Review Act (CRA) resolution aimed at blocking the rule.

    Background

    On April 23, 2024, DOL issued a final rule to amend the Fair Labor Standards Act (FLSA) overtime regulations. The FLSA requires employers to pay employees at least the minimum wage (currently $7.25) for each hour worked and 1.5 times the employee’s regular rate of pay for any hours worked over 40 in one week. However, the FLSA contains various exemptions to these overtime pay requirements, including one for white-collar employees. White-collar employees are considered “exempt” if they satisfy a three-part test: (1) the employee must be paid on a salary basis (that is, paid the same amount each week regardless of hours worked), (2) the employee’s salary must meet a minimum threshold (currently $35,568) established by DOL, and (3) the employee’s primary duties must be consistent with being an executive, administrative or professional employee. The final rule will increase the minimum salary threshold from $35,568 to $43,888 on July 1, 2024, and then to $58,656 on January 1, 2025. Thereafter, the rule requires automatic increases to the threshold every three years based on a set formula.

    Lawsuits

    On May 23, a group of 13 local and national associations and Texas businesses filed the first lawsuit in federal court in Texas challenging DOL’s rule. The suit claims that the salary threshold that goes into effect on January 1, 2025, is so high it will 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 violates both the statutory language of the FLSA and prior court decisions. The suit also challenges the automatic updates.

    On June 3, two additional lawsuits challenging the overtime final rule were filed by a software company in Texas, as well as the state of Texas itself. In both lawsuits, the plaintiffs make arguments similar to those in the lawsuit filed in May, stating that DOL lacks authority to implement the changes provided in the final rule. The state of Texas also filed a motion for a temporary restraining order (TRO) that seeks to block the final rule from going into effect on July 1.

    While it may take the courts several months to issue decisions on the validity of the rule, the judge could decide whether to grant the state of Texas’s motion for a TRO before the July 1 effective date. The TRO would block the rule from going into effect until the court decides whether or not the rule is valid. More updates will be provided via CUPA-HR Washington Insider Alert emails as decisions are released.

    Congressional Review Act Resolution

    On June 3, Rep. Tim Walberg (R-MI) and Sen. Mike Braun (R-IN) introduced CRA resolutions in the House and Senate to block the overtime final rule from going into effect. Unlike traditional legislation, CRAs require only a simple majority in both chambers to pass (as compared to the usual 60-vote threshold to bypass a filibuster needed in the Senate).

    Though House Republicans have the majority, it is unclear if and when the CRA will be brought to the floor for a vote, given the minimal concern with the July 1 effective date from the business community. In the Democrat-controlled Senate, the path for a floor vote seems even more uncertain as Senate Democrats do not appear to support the efforts to overturn the final rule. As such, it seems unlikely that Congress will pass the CRA to overturn the final rule this session.

    CUPA-HR continues to monitor for and keep members apprised of any major updates relating to the FLSA overtime regulations.



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  • Federal Judges Block Title IX Rule in 10 States – CUPA-HR

    Federal Judges Block Title IX Rule in 10 States – CUPA-HR

    by CUPA-HR | June 17, 2024

    Updates:
    On June 17, a federal judge in the Eastern District Court of Kentucky issued a second preliminary injunction against the Title IX rule, blocking the final rule from taking effect on August 1 in Virginia, Kentucky, Tennessee, Indiana, Ohio and West Virginia.

    On June 24, the Biden administration filed a notice of appeal for the preliminary injunction granted in the Western District Court of Louisiana to block the Title IX final rule from going into effect on August 1, 2024. The appeal will be filed in the 5th U.S. Circuit Court of Appeals. The preliminary injunction remains in effect until the 5th Circuit Court issues a decision. CUPA-HR will keep members apprised of any updates on this appeal as well as the status of the second preliminary injunction granted in the Eastern District Court of Kentucky.

    On July 2, a federal judge in the U.S. District Court of Kansas issued a third preliminary injunction to block the Biden administration’s Title IX rule from taking effect on August 1. The preliminary injunction applies to four states: Alaska, Kansas, Utah and Wyoming. The preliminary injunction also applies to schools where members of the Young America’s Foundation, Female Athletes United, and Moms for Liberty attend, even if the state in which the school is located is not challenging the rule or is not included in another preliminary injunction. The Title IX rule is now blocked from being enforced beginning on August 1 in a total of 14 states, as well as over 360 institutions in 24 states, Washington D.C., and Puerto Rico that are not suing the Biden administration over the Title IX rule.

    On July 11, Republicans in the U.S. House of Representatives passed a Congressional Review Act resolution to block the Department of Education from implementing and enforcing its Title IX final rule. The vote is largely symbolic as the Democrat-controlled Senate is unlikely to take up the measure and President Biden would veto the resolution if it ended up on his desk.

    On July 11, a federal judge in the Northern District Court of Texas granted a fourth preliminary injunction to block the Title IX final rule from taking effect on August 1 in the state of Texas. The Title IX final rule is now blocked from taking effect in 15 states.

    On July 24, a federal judge from the Eastern District Court of Missouri issued another preliminary injunction to block the Title IX rule from taking effect in six more states. The states included in this decision were Arkansas, Missouri, Iowa, Nebraska, North Dakota, and South Dakota. The Title IX final rule is now blocked from taking effect on August 1 in a total of 21 states.

    On July 31, a federal judge in the Western District Court of Oklahoma granted a preliminary injunction to block the Title IX final rule from taking effect on August 1. Additionally, the 11th U.S. Circuit Court of Appeals granted a preliminary injunction in Alabama, Florida, Georgia, and South Carolina, overturning a lower court’s previous decision to deny the preliminary injunction in those states. There are 26 states in which the Title IX rule is now blocked from taking effect on August 1.

    On June 13, a federal judge in the Western District Court of Louisiana issued a preliminary injunction on the Department of Education (ED)’s recent Title IX final rule. The order blocks the final rule from taking effect on August 1 in Louisiana, Mississippi, Montana and Idaho until a final decision has been issued by the judge on a lawsuit challenging the validity of the final rule.

    ED’s Final Rule and Subsequent Lawsuits

    In April, ED released its highly anticipated final rule to amend the Title IX regulations. Notably, the final rule expands protections against sex-based discrimination to cover sexual orientation, gender identity, and pregnancy or related conditions. Soon after it was published, several lawsuits were filed by states and advocacy groups challenging ED’s decision to expand Title IX protections to include gender identity and sexual orientation. 

    Judge’s Order

    In the order to grant a preliminary injunction, the federal judge asserted that the Title IX rulemaking is “contrary to law” and “exceeds statutory authority,” especially with the expanded protections for transgender students. Specifically, the judge explained that Congress intended to protect biological women from discrimination when enacting Title IX, and that “enacting the changes in the final rule would subvert the original purpose of Title IX.”

    As a result, ED is blocked from enforcing the final rule in the four states listed in the order, and the final rule will not take effect on August 1 in those four states until further orders are issued by the court.* The judge will now consider the lawsuit challenging the final rule and decide to either uphold or strike down the rule. A final decision may take months or a year or more to be released, as any decision is likely to be appealed to a higher court. In the meantime, CUPA-HR encourages HR leaders in the states impacted by this preliminary to work with their institution’s general counsel on best practices for navigating Title IX compliance.

    CUPA-HR will keep members apprised of additional updates on the legal challenges against the Title IX final rule.

    * Over two dozen states have joined lawsuits challenging the Title IX final rule. Though the order in this blog post applies only to Louisiana, Mississippi, Montana and Idaho, decisions for the additional lawsuits could result in similar injunctions for other states.



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  • Overtime Rule Challenged in Federal Court – CUPA-HR

    Overtime Rule Challenged in Federal Court – CUPA-HR

    by CUPA-HR | May 23, 2024

    On May 23, a group of 13 local and national associations and Texas businesses filed suit in federal court in Texas, challenging the U.S. Department of Labor’s rule setting new minimum salary thresholds for the white collar overtime pay exemptions under the Fair Labor Standards Act (FLSA).

    The final rule of April 23, 2024 increases the minimum salary threshold to $43,888 on July 1, 2024, and then to $58,656 on January 1, 2025. The rule also implements automatic updates to the threshold that will occur every three years. The suit claims that the salary threshold that goes into effect on January 1, 2025, is so high it will 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 violates both the statutory language of the FLSA and prior court decisions. The suit also challenges the automatic updates.

    The following are plaintiffs in the case: Plano Chamber of Commerce, American Hotel and Lodging Association, Associated Builders and Contractors, International Franchise Association, National Association of Convenience Stores, National Association of Home Builders, National Association of Wholesaler-Distributors, National Federation of Independent Business, National Retail Federation, Restaurant Law Center, Texas Restaurant Association, Cooper General Contractors and Dase Blinds.

    CUPA-HR will be following the case closely and provide you with regular updates.



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  • DOL Increases Overtime Minimum Salary Threshold to $58,656 in Final Rule, Implements Automatic Updates – CUPA-HR

    DOL Increases Overtime Minimum Salary Threshold to $58,656 in Final Rule, Implements Automatic Updates – CUPA-HR

    by CUPA-HR | April 23, 2024

    On April 23, the Department of Labor (DOL) issued the highly anticipated final rule to alter the overtime pay regulations under the Fair Labor Standards Act (FLSA). The rule increases the minimum salary threshold to $43,888 on July 1, 2024, and then to $58,656 on January 1, 2025. The rule also implements automatic updates to the threshold that will occur every three years. Institutions will need to make all necessary adjustments by July 1, 2024, in order to be in compliance with the final rule.

    The department clarified that the first increase updates the minimum salary threshold using the department’s current methodology, which was used in the 2019 Trump-era overtime rulemaking to set the current standard of $35,568. The second increase then implements the department’s new preferred methodology, which sets the minimum salary threshold to the 35th percentile of weekly earnings of full-time salaried workers in the lowest wage census region. This phased-in implementation will likely impact how litigation challenging the rule is both pursued and decided over the next six months.

    In September 2023, DOL issued its proposed rule to update the minimum salary threshold, which sought to increase the threshold from its current level of $35,568 annually to $60,209 — a nearly 70% increase. The proposed rule also sought to implement triennial automatic updates based on the 35th percentile.

    CUPA-HR submitted comments in response to the proposed rule and participated in a meeting with DOL and officials from the White House Office of Information and Regulatory Affairs (OIRA) to express our concerns with the proposal. In both the comments and OIRA meeting, CUPA-HR made the four following recommendations for DOL to consider before issuing their final rule:

    1. DOL should not update the salary threshold at this time.
    2. DOL should lower the proposed minimum salary threshold and account for room and board.
    3. DOL should not implement automatic updates to the salary threshold.
    4. DOL should extend the effective date of any final rule implementing a higher salary threshold.

    Lawsuits challenging the final rule are forthcoming. In the meantime, CUPA-HR will be hosting a webinar on May 8 covering the provisions of the final rule and its impact on higher education. Registration is open and free to all.



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  • ED Releases Final Title IX Rule – CUPA-HR

    ED Releases Final Title IX Rule – CUPA-HR

    by CUPA-HR | April 19, 2024

    On April 19, the Department of Education (ED) released the text of the highly anticipated Title IX final rule. The final rule expands protections against sex-based discrimination to cover sexual orientation, gender identity, and pregnancy or related conditions. The rule also revokes both the Trump administration’s ban on campuses using a single person to investigate and adjudicate Title IX complaints and the Trump mandate regarding cross-examination of complainants. Institutions will need to be in compliance with the final rule by August 1, 2024.

    Background

    The ED released the text of the proposed rule on June 23, 2022, though the Federal Register did not officially publish the proposal until several weeks later on July 12, 2022. The agency received over 240,000 comments in response, including CUPA-HR comments seeking clarification on the overlaps between the ED’s proposal with institutions’ existing obligations to address employment discrimination. CUPA-HR also joined comments led by the American Council on Education.

    Noteworthy Provisions of the Final Rule

    As discussed above, the final rule defines “sex-based harassment” as a form of sex discrimination that includes sexual harassment and harassment based on sex stereotypes, sex characteristics, sexual orientation, gender identity, or pregnancy or related conditions. The term “pregnancy or related conditions” is further defined in the final rule to include pregnancy, childbirth, termination of pregnancy, lactation, and all related medical conditions and recovery.

    Additionally, as first introduced in the proposed rule, the final rule establishes new grievance procedures for sex-based harassment complaints. Specifically, the final rule requires institutions to apply two separate grievance procedures for sex-based harassment complaints depending on whether or not students are involved. The first section (§106.45) applies to any complaint of sex discrimination on campus, including employee-to-employee sex-based harassment complaints. The second section (§ 106.46) only applies when a student is involved as either the complainant or respondent (or both), regardless of whether the matter also involves employees. Notably, the second set of procedures also applies where a student is also an employee. The new rules also allow for certain complaints to move through an informal resolution process separate from the grievance procedures listed above if both parties agree to choose to move forward with that process.

    The final rule also imposes several training requirements, which the ED also included in the proposed rule. Under the rule, institutions must train all employees on the institution’s obligation to address sex discrimination under Title IX, the scope of conduct that constitutes sex discrimination under the law, and the notification and information requirements that applicable employees must follow upon learning about instances of sex-based harassment. Additionally, institutions must train individuals who serve as investigators, decisionmakers, and others responsible for implementing an institution’s grievance procedures on the institution’s grievance procedures and how to serve impartially through the grievance procedures. Facilitators of the informal resolution process must be trained on the rules and practices of an institution’s informal resolution process, and the institution must train individuals serving as Title IX coordinators on the requirements of their specific responsibilities throughout the notification, information, and grievance procedure processes as required by Title IX.

    Finally, the rule clarifies that when responding to retaliation, institutions must undergo all procedures for notifying and informing involved parties of their obligations under Title IX and initiate the appropriate grievance procedures.

    Looking Forward

    CUPA-HR’s government relations team is going through the 1,577-page final rule and will provide more information on the rule as needed through CUPA-HR’s blog. Additionally, CUPA-HR will host a webinar to cover the final rule on April 30. Registration is now open and is free for all to attend.



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  • White House Approves Title IX Final Rule — Rule Release Imminent – CUPA-HR

    White House Approves Title IX Final Rule — Rule Release Imminent – CUPA-HR

    by CUPA-HR | April 12, 2024

    On April 10, the White House Office of Information and Regulatory Affairs (OIRA) announced it had concluded review of the Department of Education’s (ED) final rule to amend Title IX. OIRA review is the final step in the regulatory process, and we expect the ED will issue the final rule any day now. We will send another alert as soon as ED publishes the final rule.

    The ED released the text of the proposed rule on June 23, 2022, though the Federal Register did not officially publish the proposal until several weeks later on July 12, 2022. The agency received over 240,000 comments in response, including CUPA-HR comments seeking clarification on the overlaps between the ED’s proposal with institutions’ existing obligations to address employment discrimination. CUPA-HR also joined comments led by the American Council on Education.

    The Federal Government’s Fall 2022 Regulatory Agenda had set the target release date of the final rule for May 2023, but the Department had to further delay that timeline to review all comments submitted in response to the proposed rule and address them in the final rule. Most recently, the ED indicated a March 2024 release of the final rule in the Fall 2023 Regulatory Agenda.

    CUPA-HR plans to hold a timely webinar on the final rule after publication. In the meantime, CUPA-HR will keep members apprised of additional updates on the Title IX final rule, including completion of the review and publication of the rule.



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