Tag: Rule

  • White House Approves DOL Overtime Rule – Rule Release Imminent – CUPA-HR

    White House Approves DOL Overtime Rule – Rule Release Imminent – CUPA-HR

    by CUPA-HR | April 11, 2024

    On April 11, 2024, the White House Office of Information and Regulatory Affairs (OIRA) announced it had concluded review of the U.S. Department of Labor’s (DOL) final overtime pay rule. The rule is expected to increase the minimum salary threshold for the executive, administrative and professional (EAP or white collar) employee exemptions to overtime pay requirements under the Fair Labor Standards Act (FLSA) regulations. OIRA review is the final step in the regulatory process, and we expect DOL will release the final rule any day now. We will send another alert as soon as the final rule is released.

    On April 4, 2024, CUPA-HR’s president and CEO, government relations team and board members met with officials from DOL and OIRA to express our concerns with the September 2023 proposed rule. The proposal sought to increase the threshold from its current level of $35,568 annually to $60,209 — a nearly 70% increase. DOL also proposed increasing the salary threshold automatically every three years to the 35th percentile of weekly earnings of full-time salaried workers. Finally, DOL proposed that all employers would need to implement these changes within 60 days of the final rule’s release.

    During our OIRA meeting, CUPA-HR reiterated the concerns that were addressed in our comments submitted in November 2023. The comments made the following four recommendations for DOL to consider prior to issuing a final rule:

    1. DOL should not update the salary threshold at this time.
    2. If DOL implements an increase, it 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.

    We expect lawsuits challenging the final rule are forthcoming. CUPA-HR will keep members apprised of all updates related to the overtime regulations. Once the new regulations are released, we will plan and share registration information for a webinar. We will also provide an update for members who attend the spring conference in Minneapolis next week.



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  • CUPA-HR Participates in OIRA Meeting on FLSA Overtime Rule – CUPA-HR

    CUPA-HR Participates in OIRA Meeting on FLSA Overtime Rule – CUPA-HR

    by CUPA-HR | April 9, 2024

    On April 4, CUPA-HR’s government relations team, President and CEO Andy Brantley, and four national board members met with officials at the Department of Labor (DOL) and the Office of Information and Regulatory Affairs (OIRA) to discuss the upcoming overtime regulations to increase the minimum salary threshold. During the call, the group expressed CUPA-HR’s broad concerns with the rule, as well as the specific challenges implementation of the new rule could create for different types of institutions in various areas of the country.

    On March 1, DOL sent the final rule to update the Fair Labor Standards Act overtime regulations to OIRA for review. As previously noted, the OIRA review marks one of the last steps required before DOL can publish the final rule for public viewing. While the rule is at OIRA, the text and details of the final rule are not public, but interested stakeholders are able to request meetings with the administrator to discuss the proposed changes.

    During the meeting, Andy Brantley and Bailey Graves from the CUPA-HR government relations team reiterated the concerns that were addressed in CUPA-HR’s comments submitted in November 2023. The comments made the following four recommendations for DOL to consider prior to issuing a 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.

    Brantley and Graves were joined by CUPA-HR Board Chair Jami Painter, Chair-Elect Robyn Salvo, and board members El pagnier Hudson and Kristi Yowell, who discussed the impact of these potential changes on employee exempt/nonexempt status and employee morale and benefits. They also discussed the impact of the rule on higher education’s efforts to offer competitive wages to employees, the difficulties of having employees in areas with different costs of living, and the impact this rule could have on an institution’s ability to provide student services.

    Looking Forward

    It is unknown when the final rule will clear OIRA review and be published for public viewing. OIRA review typically lasts 30-60 days, and OIRA meetings are currently set through April 11. However, the Biden administration has incentive to move quickly to publish the final rule in order to avoid the rule being overturned via legislation if Republicans win Congress and the White House in the November election.

    The final rule will also likely face legal action once it is published, which could delay the effective date or stop the rule from going into effect in its entirety. CUPA-HR will keep members apprised of when the final rule clears OIRA review and is published, as well as any legal challenges that may arise.



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  • OSHA Issues Worker Walkaround Rule – CUPA-HR

    OSHA Issues Worker Walkaround Rule – CUPA-HR

    by CUPA-HR | April 4, 2024

    On April 1, the Occupational Safety and Health Administration issued a final rule on the Worker Walkaround Representative Designation Process. The rule allows third-party representatives to accompany OSHA inspectors during physical workplace inspections.

    Under the Occupational Safety and Health Act and existing regulations to implement the law, employer representatives and authorized representatives of employees are allowed the opportunity to accompany OSHA inspectors during workplace inspections. The existing regulations state that authorized representatives of the employee are limited to employees of the employer, though OSHA inspectors may allow accompaniment by a third party that is not an employee if it is “reasonably necessary to the conduct of an effective and thorough physical inspection.”

    The new rule broadens the category of who may serve as an authorized representative of the employee by explicitly including third parties as potential authorized representatives. The rule clarifies that third-party employee representatives may accompany the OSHA inspector when “good cause has been shown why accompaniment by a third party is reasonably necessary to the conduct of an effective and thorough physical inspection of the workplace (including but not limited to because of their relevant knowledge, skills, or experience with hazards or conditions in the workplace or similar workplaces, or language or communication skills).” This new language makes it easier for non-employees, such as union officials, to potentially be involved in the inspection process.

    The final rule largely mirrors the proposed rule that was published in October 2023. Nearly 11,000 comments were submitted in response to the proposal, and employers across several industries have expressed concern with the rule, including concerns with the lack of mechanisms for employers to object to the selection of non-employee third-party representatives. Additionally, employers were concerned about the increased liability that they could face from non-employees walking around their worksite and the possible costs of providing personal protective equipment to non-employee third-party representatives when needed for inspections.

    The rule goes into effect on May 31, 2024, but it is expected to face legal challenges that could delay the effective date. CUPA-HR will keep members apprised of any updates on the status of this rule.

     



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  • District Court Invalidates NLRB’s Joint-Employer Rule – CUPA-HR

    District Court Invalidates NLRB’s Joint-Employer Rule – CUPA-HR

    by CUPA-HR | March 13, 2024

    On March 8, 2024, the U.S. District Court for the Eastern District of Texas invalidated the National Labor Relations Board’s joint-employer final rule, meaning the rule did not go into effect on March 11, as was anticipated. The NLRB will likely appeal the ruling to the 5th U.S. Circuit Court of Appeals.

    The final rule expanded the joint-employer standard under the National Labor Relations Act, which is used to determine when two or more entities are jointly responsible for setting the terms and conditions of employment over a shared group of employees. Joint-employer status comes with significant responsibilities and liabilities under the law, including bargaining with any union representing the shared employees and being liable for any NLRA violations either employer commits against those employees.

    Traditionally, joint-employer status was only triggered if the potential joint employer exercised direct and immediate control over the shared workers’ terms and conditions of employment, including hiring, firing, disciplining, supervising, and directing the employees. The final rule, however, would have expanded joint-employer status to entities that have indirect or unexercised, reserved control over the terms and conditions of employment.

    The decision from the district court invalidates the ruling, halting implementation and reinstating the traditional joint-employer standard. As the judge in the case explained, the rule was too broad and violated the NLRA. Specifically, the judge stated it “would treat virtually every entity that contracts for labor as a joint employer because virtually every contract for third-party labor has terms that impact, at least indirectly … essential terms and conditions of employment.”

    Details of the appeal and subsequent decision from the the 5th U.S. Circuit Court of Appeals will be shared in the coming months. If the NLRB wins on appeal and the rule is eventually implemented, it will apply to private-sector higher education institutions. It will impact colleges’ and universities’ relationships with many of their contractors whose employees perform work on campus, including food service, security and landscaping services.

    CUPA-HR will continue to keep members apprised of updates regarding the status of the NLRB’s joint-employer rule.



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  • New Instructions Clarify USCIS Fee Rule Reductions and Exemptions for Higher Ed – CUPA-HR

    New Instructions Clarify USCIS Fee Rule Reductions and Exemptions for Higher Ed – CUPA-HR

    by CUPA-HR | March 6, 2024

    On March 1, 2024, U.S. Citizenship and Immigration Services published updated forms and filing instructions for the I-129, Petition for a Nonimmigrant Worker and the I-140, Immigrant Petition for Alien Workers. These updates incorporate new fee calculations as outlined in the USCIS fee rule. Notably, the filing instructions state that institutions “of higher education, as defined in section 101(a) of the Higher Education Act of 1965” are eligible for the reduced fees and exemption from the Asylum Program fee.

    This clarification follows the issuance of a final rule by USCIS on January 31, 2024, which adjusted the fees for most immigration applications and petitions, resulting in significantly higher fees for most employment-based petitioners. However, due to concerns raised by stakeholders, including CUPA-HR and other higher education institutions, the final rule provided relief for nonprofit organizations in the form of fee reductions as well as an exemption from a newly introduced fee intended to fund the Asylum Program.

    In a previous blog post, CUPA-HR addressed the confusion stemming from the final rule’s reliance on the Internal Revenue Code’s definition of a nonprofit organization, particularly 26 U.S.C. 501(c)(3). This definition caused uncertainty among public universities and colleges, which, while tax-exempt, are not classified as 501(c)(3) entities. The preamble to the final rule suggested that the agency’s approach to defining “nonprofit” was designed to ensure that the primary types of organizations eligible for the American Competitiveness and Workforce Improvement Act’s fee reduction — specifically, educational institutions, nonprofit research organizations, and governmental research organizations — would also qualify for fee reductions and exemptions under this rule. However, the possibility of a strict interpretation of “nonprofit” might have left public universities and colleges facing increased fees.

    The updated filing instructions offer much-needed clarity on the fee reductions and exemptions, ensuring that institutions of higher education as defined by the Higher Education Act of 1965 will not be overly burdened by petitioner fees.



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  • Department of Labor Sends Overtime Rule to OIRA for Review – CUPA-HR

    Department of Labor Sends Overtime Rule to OIRA for Review – CUPA-HR

    by CUPA-HR | March 4, 2024

    On March 1, the Department of Labor (DOL)’s Wage and Hour Division (WHD) sent the highly anticipated final rule to update Fair Labor Standards Act (FLSA) overtime regulations to the Office of Information and Regulatory Affairs (OIRA) for review. This is a required step in the regulatory process and acts as one of the last steps prior to releasing the text of the regulation to the public.

    OIRA, as part of the president’s Office of Management and Budget, is required to review all proposed and final rules, as well as all regulatory actions, before implementation. While OIRA has 90 days to conduct its review, in most cases, the review takes 30 to 60 days. This means the final rule could be released as early as the end of March or in April, which would meet WHD’s April 2024 target date for release as indicated in the Fall 2023 Regulatory Agenda.

    WHD issued the proposed rule to increase the minimum salary threshold under the FLSA overtime regulations in September 2023. In the proposed rule, WHD sought to increase the salary threshold from its current level of $35,568 annually to $60,209 — a nearly 70% increase.* The proposed rule also sought to implement automatic updates to the salary threshold that would occur every three years and would tie the updated salary threshold to the 35th percentile of weekly earnings of full-time salaried workers in the lowest-wage census region. Notably, the proposed rule did not include any changes to the duties requirements of the FLSA overtime regulations.

    Comments in response to the proposed rule were due in November 2023. WHD received over 33,000 comments in response to the proposed rule. CUPA-HR, joined by 49 other higher education associations, submitted comments, which made the following recommendations:

    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.

    The text of the final rule is not public until the rule is published in the Federal Register, so details of the finalized salary threshold and the timeframe for compliance are unknown at this time. While the rule is at OIRA, however, interested stakeholders can request a meeting with the administrator to discuss the proposed changes. CUPA-HR will request a meeting with OIRA to discuss our concerns with the proposed rule.

    CUPA-HR will continue to keep members apprised of all updates as it relates to the FLSA overtime final rule.

     

    * 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 Notice of Proposed Rulemaking 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, reference 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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  • Federal Agencies Issue Proposed Rule on Pay Equity and Transparency for Federal Contractors – CUPA-HR

    Federal Agencies Issue Proposed Rule on Pay Equity and Transparency for Federal Contractors – CUPA-HR

    by CUPA-HR | February 14, 2024

    On January 30, the Department of Defense, General Services Administration, and NASA issued a proposed rule to amend the Federal Acquisition Regulation (FAR) to create a salary history ban and require pay transparency during the hiring process for federal contractors and subcontractors. The proposed rule aligns with the Biden administration’s 2022 Executive Order, “Advancing Economy, Efficiency, and Effectiveness in Federal Contracting by Promoting Pay Equity and Transparency.”

    According to the proposed rule, the FAR would be amended to implement a government-wide policy that would:

    1. 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
    2. require these contractors and subcontractors to disclose on job announcements the compensation to be offered (“compensation disclosure” or “pay transparency”).

    The proposed rule comes as many states and localities have recently implemented salary history bans and pay transparency laws. As the Notice of Proposed Rulemaking notes, 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.

    The agencies have provided a 70-day comment period for the proposed rule, closing on April 1. Stakeholders are invited to submit comments on their support for or opposition to the provisions of the proposed rule. CUPA-HR will monitor for additional updates on this proposed rule and other policy initiatives at the federal level as they relate to pay transparency and salary history bans.



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  • Department of Education Moves Forward With Title IX Final Rule – CUPA-HR

    Department of Education Moves Forward With Title IX Final Rule – CUPA-HR

    by CUPA-HR | February 5, 2024

    On February 2, 2024, the Department of Education (ED) sent its highly anticipated Title IX final rule to the White House Office of Information and Regulatory Affairs (OIRA) for review. OIRA review is the final step before the Title IX rule is published. While ED’s final rule is being reviewed, the public is not provided with any specific details on changes to the proposed rule. However, interested stakeholders can request a meeting with the administrator while a rule is under review.

    The Department of Education introduced a Title IX proposed rule in June 2022, under which the department proposed to replace the Trump administration’s 2020 Title IX rule and establish expanded protections against sex-based discrimination to cover sexual orientation, gender identity, and pregnancy or related conditions. CUPA-HR submitted comments in response to the proposed rule, in which we brought attention to the possible impact the proposed regulations could have on how higher education institutions address employment discrimination.

    The Department of Education has been reviewing the 240,000 submitted comments in response to the Title IX proposed rule since the comment period closed in September 2022. The final rule was initially included in the Fall 2022 Regulatory Agenda with a target release date in May 2023, but the department had to further delay that timeline to ensure all comments submitted in response to the proposed rule were reviewed and addressed in the final rule. Most recently, ED indicated a March 2024 release of the final rule in the Fall 2023 Regulatory Agenda.

    OIRA reviews typically last between 30-60 days, though the agency has up to 90 days to review the rule before it is released to the public. As such, the final rule could be released as soon as early March, possibly meeting the Fall 2023 Regulatory Agenda’s target date.

    Once the final rule is published, CUPA-HR will hold a webinar presented by Title IX experts. In the meantime, CUPA-HR will keep members apprised of additional updates on the Title IX final rule, including when the review is completed and the rule is published.



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  • DHS Announces First Phase of Final H-1B Modernization Rule – CUPA-HR

    DHS Announces First Phase of Final H-1B Modernization Rule – CUPA-HR

    by CUPA-HR | February 1, 2024

    On January 30, 2024, the Department of Homeland Security (DHS) announced a final rule to implement a new beneficiary-centric selection process for H-1B registrations. This rule, which also introduces start date flexibility for certain H-1B cap-subject petitions and additional integrity measures, is scheduled for publication in the Federal Register on February 2, 2024, and will become effective 30 days later.

    The rule does not finalize all the provisions in the H-1B Modernization Proposal from last October. Notably absent are changes to the definitions of H-1B specialty occupation, policies of deference to prior adjudications, and modifications to cap-gap protection, among others. DHS has indicated plans to publish a separate final rule to address these remaining aspects from October’s proposed rule.

    Summary of Key Changes

    • Beneficiary-Centric Selection Process. The final rule introduces a change in the H-1B registration selection process. Instead of a registration-based lottery system, DHS will now implement a beneficiary-centric approach. This means that each foreign worker (beneficiary) will be entered into the selection process once, irrespective of the number of registrations submitted on their behalf. This change is designed to offer a fairer, more equitable system and reduce the potential for manipulation.
    • Start Date Flexibility. The final rule provides more flexibility for the employment start dates in H-1B cap-subject petitions. Employers will now be allowed to file petitions with start dates that are after October 1 of the relevant fiscal year. This aligns with current DHS policy and removes previous restrictions, offering more convenience for employers and beneficiaries.
    • Enhanced Integrity Measures. Under the final rule, DHS codifies its ability to deny or revoke H-1B petitions in cases where the underlying registration contains a false attestation or is otherwise invalid. Additionally, the rule stipulates that DHS may deny or revoke the approval of an H-1B petition if issues arise with the H-1B cap registration fee, such as if the fee is declined, not reconciled, disputed, or deemed invalid after submission.

    With the final rule, DHS not only introduces key adjustments to the H-1B visa process but also sets the stage for efficiency enhancements. Starting February 28, 2024, USCIS will launch an online filing option for Forms I-129, Petition for a Nonimmigrant Worker, and Form I-907, Request for Premium Processing Service.

    In addition, USCIS will launch new organizational accounts in its online platform on February 28. These accounts are designed to enable collaboration within organizations and their legal representatives on H-1B registrations, petitions, and associated premium processing requests. While some details about this new account system and the e-filing function have been provided, USCIS is expected to release more comprehensive information in the coming weeks.



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  • USCIS Issues Final Immigration and Naturalization Fee Rule Effective April 1 – CUPA-HR

    USCIS Issues Final Immigration and Naturalization Fee Rule Effective April 1 – CUPA-HR

    by CUPA-HR | February 1, 2024

    Important Update: We wish to clarify an important aspect regarding the USCIS final fee rule’s exemptions/reduced fees for nonprofit organizations. The rule specifies that the exemption/reduced fees apply to entities classified under the 501(c)(3) category, as per the Internal Revenue Code. This classification may not encompass many public universities and colleges, which, while tax-exempt, are generally not designated as 501(c)(3) organizations. We are aware of the confusion this may cause within the higher education community and are working with other higher education associations to seek clarification from USCIS.

    On January 31, 2024, U.S. Citizenship and Immigration Services (USCIS) issued a final rule to adjust certain immigration and naturalization benefit request fees, resulting in significantly higher fees for employment-based petitioners, with notable reductions and exemptions for certain higher education employers. USCIS claims that the increased fees, which will apply to any benefit request postmarked on or after April 1, 2024, will “allow USCIS to recover a greater share of its operating costs and support more timely processing of new applications.”

    Background

    Unlike other government agencies that receive the majority of their funding through congressional appropriations, USCIS receives approximately 96 percent of its funding from filing fees. The agency, after its last fee adjustment in 2016, conducted a fee review that revealed these fees were inadequate to meet the agency’s operating costs. This assessment led USCIS to issue a notice of proposed rulemaking (NPRM) in January 2023, which included substantial increases to various employment-based filing fees, including up to 200 percent increases for some petitions. In response to the proposal, CUPA-HR joined comments which addressed higher ed-specific concerns with the proposal including the impact the increased fees would have had on international scholars and institutions’ ability to hire nonimmigrant workers, including H-1B workers.

    Final Rule Details

    While the final rule is nearly 330 pages long and has significant implications for both employment-based and family-based filings, this blog post focuses on the notable changes from the proposed rule to the final rule that have the most significant implications for higher ed employers.

    The proposed rule introduced a new fee to fund the Asylum Program with employer petition fees. The fee is $600 to be paid by any employer who files either a Form I-129, Petition for a Nonimmigrant Worker, or Form I-140, Immigrant Petition for Alien Workers. In the latest rule, USCIS finalized this fee but exempted the Asylum Program Fee for nonprofit petitioners that meet the Internal Revenue Code’s specific 501(c)(3) classification, resulting in a $0 fee for those entities. While the comments CUPA-HR signed onto requested that higher ed be exempt from the fee, based on precedents like the American Competitiveness and Workforce Improvement Act of 1988, which exempted certain fees for colleges and universities, there is confusion regarding this exemption’s applicability to some public universities and colleges, as many do not fall under the 501(c)(3) classification.

    In addition to the new Asylum Program Fee, USCIS is implementing the following changes to employment-based and employment-based “adjacent” filing fees:

    • Fee changes for visa classifications on Form I-129 and Form I-140: USCIS is imposing different fees for each visa classification sought on the Form I-129 nonimmigrant worker petition, replacing the uniform $460 Form I-129 filing fee across all classifications.
    • Fees for I-129 Petitions for H-1B workers: USCIS had proposed a 70 percent increase in the filing fee, from $460 to $780. In the final rule DHS did not increase the filing fee for nonprofits so it is still $460 (0 percent increase).
    • Fees for I-129 Petitions for L-1 workers: USCIS had proposed a 201 percent increase from $460 to $1,385. In the final rule USCIS set the fee for nonprofits at $695 (51 percent increase).
    • Fees for I-129 Petitions for O-1 workers: USCIS had proposed a 129 percent increase, from $460 to $1,055. In the final rule USCIS set the fee for nonprofits at $530 (15 percent increase).
    • A full fee schedule can be found in Table 1 of the preamble to the final rule.

    In addition to the aforementioned changes, USCIS finalized its proposal to revise the premium processing timeframe interpretation from calendar days to business days. Currently, premium processing allows petitioners to receive an adjudicative action on their case within 15 calendar days. Changing the interpretation to business days will add nearly a week to the existing adjudication time.

    Update on Clarification Efforts by Higher Education

    In response to the USCIS final fee rule’s reliance on the Internal Revenue Code’s definition of a nonprofit organization, specifically 26 U.S.C. 501(c)(3), higher education associations are actively seeking clarification from USCIS. These efforts aim to understand how the fee adjustments will impact public universities and colleges that do not fall under the 501(c)(3) classification. The goal is to ensure that the unique status of higher education institutions is recognized and adequately addressed in the implementation of the fee rule.



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