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At the recent CUPA-HR Association Leadership Program in Tempe, Arizona, 12 early-career higher ed HR professionals began their year with CUPA-HR’s Wildfire program, and 10 recent graduates of the program shared project outcomes as they wrapped up their year with the program:

  • William Budding of Harvard University and Abby King of the University of Kansas joined forces to explore going beyond the ADA to think about accessibility as part of an inclusive culture.
  • Mollie Blanchard of Cochise College asked how part-time staff were being engaged and made changes to improve the experience of that employee population on her campus.
  • Deborah Lee of The Catholic University of America explored how best to weave diversity, equity and inclusion into the values of her religiously affiliated university.
  • Maria Wingenbach of Concordia College launched a paid family leave policy on her campus.
  • Rachel Williams of Ivy Tech Community College System developed e-learning training for adjunct faculty, which had been underserved in the training and development area.
  • Latasha Gause of Coastal Carolina University developed a workshop to help employees on her campus understand how to find and prepare for internal career advancement at the institution.
  • Chris Dominiak of The University of Arizona researched options for on-site childcare as an employee benefit.
  • Tammi Stuebe of Williams College and Tyler Mayo of University of Florida looked toward supporting the higher ed HR community by connecting early-career and other professionals with experienced higher education HR professionals through a pilot podcast, “Time-Out With Tammi and Tyler.”

While CUPA-HR’s Wildfire program was the genesis of these projects, your HR team could benefit from similar experiences on campus that stretch their abilities. As you consider giving your early-career employees stretch projects to support their development, here are a few things to keep in mind:

1) Connect the project with development goals. Each CUPA-HR Wildfire participant prepares an individual development plan to identify the competencies to be developed throughout the year. As part of that plan, participants brainstorm project ideas that will contribute to the development of one or more of those competencies.

To help your early-career team members focus on development in this way, consider inviting them to take the free CUPA-HR e-learning course Creating Your Individual Development Plan and use the CUPA-HR Learning Framework to explore and understand their competencies. After having a conversation about the areas that could be developed, encourage your team members to brainstorm ideas for projects on campus that would help them work on specific areas of development and contribute to the success of your institution.

2) First make space for big dreams, then coach toward reality. One of the common themes among CUPA-HR’s Wildfire participants and other early-career professionals is the ability to think broadly and positively about what’s possible. While it may be tempting to dismiss this enthusiasm as naivety, consider the value of having your early-career staff members bring fresh eyes to an existing problem.

After creating space for big thinking during the brainstorming process and identifying a project focus, ask your employees to consider if elements of the plan seem unrealistic and coach them through planning and implementing the project. This process will help them fine tune their approach without stifling their enthusiasm and creativity.

3) Encourage paying it forward. Working on a stretch project generates a wealth of new knowledge for any professional. Just as the Wildfire participants shared with ALP attendees the outcomes and insights gained while working on their projects, your entire HR team and others on campus could benefit from the experience gained by your early-career team members.

After you’ve coached them through their stretch projects, ask them to share their successes, challenges, starts and restarts with your colleagues to broaden the impact of the project. By doing so, not only will you add value as your early-career professional learns how to effectively report on outcomes, but you’ll also encourage others to stretch themselves through development.

For more resources related to the development of early-career professionals, visit the Early-Career Professionals toolkit in CUPA-HR’s Knowledge Center.

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This blog post was contributed by Sean Woodroffe, senior executive vice president and chief HR officer at TIAA.

Today’s employers face a tricky task. How do you manage a workforce that contains members of three or four generations, each with unique expectations and goals for their careers and retirements?

Chances are, your workforce has 60-year-olds thinking about retirement after a lifetime with your organization; 40-year-olds planning for their own retirement while saving for their children’s education; 30-year-olds stressed about student debt and wondering whether they’ll ever be able to meet their financial and professional goals; and fresh-faced 22-year-olds full of motivation and eager for direction.

It’s essential to understand the realities facing workers in different generations and to develop strategies that respond to each. This can seem daunting, but the good news is that as different as the generations are, many of their goals and aspirations overlap: a meaningful career, financial security and a retirement that will allow them to continue contributing to society on their own terms.

A survey TIAA fielded among employees and managers in not-for-profit organizations, including many higher education institutions, revealed several similarities in outlook among the generations that employers can leverage to provide a better work experience for everyone.

For instance, it’s clear that people who work for nonprofit organizations choose their employers with a purpose. Our survey showed that 75 percent of employees and 82 percent of managers at nonprofits continue to work at their organizations because they want to make a difference in other people’s lives. This holds true across generations — 78 percent of baby boomer employees say the values and mission of the organization are important in choosing to work for a nonprofit, while 76 percent of millennial managers who choose to work at nonprofits do so because they want to create real change in their communities.

The survey also found that only one-third of nonprofit employees and managers feel that success is defined by compensation, while more than 70 percent define success as helping others, their community or society.

This is not to say that nonprofit employees and managers are immune to financial concerns. Nearly seven in 10 millennial (66 percent) and Generation X (68 percent) managers are concerned they are not saving enough for retirement. They worry about retirement healthcare costs (nearly 80 percent), changes to Social Security (70 percent) and lack of guaranteed income in retirement (nearly 70 percent).

Higher education is a retirement savings bright spot, however, as more than three-quarters (77 percent) of higher ed managers and more than half (57 percent) of higher ed employees are confident they are saving enough for retirement.

As for how they plan to spend time in retirement, 56 percent of nonprofit managers plan to volunteer their time to an important cause, and 42 percent plan to contribute to the work that their current employer is focused on. These figures far exceed the general volunteer rate for people 65 and older, suggesting that the motivation to engage in meaningful nonprofit work doesn’t end when retirement starts.

So how can employee benefit programs and engagement strategies be used to meet the needs of workers from different generations as well as the needs of your organization? Here are four generation-based suggestions to help recruit the right employees, retain high performers, and give employees confidence to retire on a time frame and under terms that work for everyone:

  • Look for ways to innovate. Leverage technology, data analysis and best practices to understand how demographic shifts and the multigenerational nature of today’s workforce may impact your employee benefits offerings. Data show that employees are eager to improve their financial well-being and retirement readiness. Offering consultations with financial advisors can demonstrate that you’re attuned to employee concerns and want to help them take action to plan a financially secure future. It’s important to engage with employees on the topics that are most relevant to them. For example, employers can help improve financial wellness for younger workers by sharing budgeting or student debt management suggestions or help individuals in their 40s and 50s with how to pay for their kids’ college while continuing to save for retirement. For today’s tech-savvy and mobile workers, find out how they want to manage their retirement finances, and adopt solutions that keep them engaged.
  • Consider multigenerational cross-mentoring programs so that generations can learn from each other and transfer knowledge. Your long-time employees have a lot to offer those who are new to the organization and new to the workforce. Matching seasoned employees with newcomers can benefit both generations. Experienced workers, such as baby boomers, will be able to advance the mission of the organization they’ve served for many years while building bonds with the generation that will carry on their work. New workers, such as millennials and the newest hires in generations Y and Z, will deepen their understanding of how the organization approaches its mission and have a mentor ready to assist as they take responsibility in the workplace and manage their own careers. The younger generations can also help the experienced workers approach things differently or leverage new technologies.
  • Consider phased retirement or partner relationships with retirees to help employees transition to retirement and ensure your organization doesn’t suffer from knowledge and experience gaps. Many baby boomers approaching retirement don’t want to hear the door slam behind them. They want to keep contributing in some fashion, just not at the full-time tempo they’ve kept up for decades. Allowing them to transition out of the workforce will allow you to harness their passion and expertise and also help to alleviate any financial stress they may be feeling by providing a source of income as they get accustomed to their new lifestyle.
  • Communicate benefits in ways that reach the right people with the right messages at the right time through the right media. Use employee survey results to understand what will resonate with different groups and drive knowledge and awareness. Stay on top of how different employee groups like to receive information and what will motivate them to act on it. This will show employees that you genuinely value their feedback and participation and will enable you to respond to emerging concerns in real time.

Your employees, no matter their generation, have been drawn to your organization by a desire to serve a greater good. By offering employee benefits and engagement strategies that respond to the financial and purpose-driven needs of each generation, you can empower employees to have impact throughout their careers and equip them with the financial confidence to continue contributing to your mission in retirement.

For more on employee engagement, visit the Employee Engagement toolkit in CUPA-HR’s Knowledge Center. 

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Each month, CUPA-HR General Counsel Ira Shepard provides an overview of some labor and employment law cases and regulatory actions with implications for the higher ed workplace. Here’s the latest from Ira:

Three Separate Title VII Cases Have Three Different Outcomes

One case was dismissed by a federal district court judge, one was reinstated by an appeals court after a trial court dismissal, and one can continue not as a Title VII claim, but as a violation of the Constitution’s Equal Protection clause. The three cases are outlined below:

Campus Police Officer at Georgetown University Loses Title VII Racial Discrimination, Retaliation and Hostile Work Environment Claims

A campus police officer at Georgetown University recently had his claims of race discrimination, retaliation and hostile work environment dismissed by the federal district court for the District of Columbia as without merit (Ross v. Georgetown University (2019 BL 216328, D.C. No. 18-0671, 6/17/19)).

The officer claimed that the university began to emphasize “racial profiling” against African Americans, and he refused to comply with such directives as part of his job. He claimed that he was criticized and received negative performance reviews and reprimands. He also claimed that he was wrongly cited for poor driving during a snowstorm which resulted in an accident, although he admitted that the “citation” involved no discipline or any specific adverse consequences.

The court dismissed the officer’s complaint, holding that many of the allegations were beyond the applicable statute of limitations. The court also held that those allegations that were timely either did not involve an adverse employment action or were too few to constitute a hostile work environment over the alleged four-year period. In dismissing the officer’s Title VII claims, the federal district court remanded all of the officer’s “state law” claims under the D.C. Human Rights Act to the Superior Court for the District of Columbia for its review.

Appeals Court Reinstates Croatian Professor’s Title VII National Origin/Ethnicity Discrimination Claim

The U.S. Court of Appeals for the Third Circuit (covering Pennsylvania, New Jersey and Delaware) reversed a trial court’s dismissal of an national origin/ethnicity-based discrimination claim by a Croatian dental professor at the University of Pittsburgh who had been terminated as a result of an investigator’s mistaken conclusion that she had threatened to kill a colleague (Bagic v. University of Pittsburgh (3rd Cir. No. 18-2951, non-precedential 6/11/19)).

Ten years into her tenure, the plaintiff professor became embroiled in a controversy with another professor she had reported as abusing faculty privileges. The colleague falsely accused her of threatening to kill him.

An investigator’s notes referred to the plaintiff’s ethnicity and erroneously concluded that the plaintiff may have threatened to kill the colleague. The appeals court reversed the trial court’s dismissal of the complaint, concluding that the propagation of a false threat throughout the university’s investigation and subsequent procedures raises a question of discriminatory intent which should go to trial.

Judge Recommends Dismissal of Transgender Professor’s Title VII Discrimination Charges, But Allegations of Denial of Equal Protection May Proceed

A federal magistrate judge recently recommended dismissal of a transgender male professor’s claim of Title VII sex discrimination as a result of the university’s denial of medical coverage for his hysterectomy, which was recommended by his doctor to treat his condition of gender dysphoria. The judge concluded that while Title VII could apply to certain transgender discrimination allegations, it did not apply here (Toomey v. Arizona (D Az. No. 19-cv-35, report and recommendation, 6/24/19)).

The judge did rule, however, that the professor’s case could continue under the Constitutionally-based theory of violation of the Constitution’s Equal Protection clause. The judge concluded that the plaintiff was a member of a discrete class of individuals characterized by “immutable characteristics determined at birth,” and that while no sex discrimination covered by Title VII occurred, other discrimination based on his unique characteristics may have occurred.

Court Rejects Jane Does’ Request for Anonymity in a Public Records Request for Disclosure of a Sexual Harassment Investigation of a Former Community College President

A Washington State appeals court overturned a trial court’s protection of the names of 10 Jane Does who accused a former community college president of sexual harassment. The local newspaper in Spokane, Washington, requested the information under the Washington State public records act, which applied to Spokane Falls Community College. The trial court rejected the request and ruled that the names could remain redacted.

However, the appeals court decided that none of the information was taken from a personnel file and therefore the public records statute, which is broad with few exceptions, requires that the public be provided the information (Cowles v. Jane Doe #1 (Wash. Ct. App., Div. 3 No. 36030-0-11, unpublished, 6/18/19)).

The appeals court stated that the public records statute does not allow public employees themselves to decide what is good and what is not good for the public to know, even if such disclosure “causes inconvenience or embarrassment.”

NLRB Reverses Decades-Old Precedent, Holding That an Employer May Ban Union Solicitation by Non-Employees in the Employer’s Public Areas

The National Labor Relations Board (NLRB) recently ruled that an employer could ban non-employees from soliciting employees regarding union membership in the employer’s public areas, a decision which could have a major impact on private colleges and universities that are subject to the NLRB’s jurisdiction.

The NLRB ruled that the employer could enforce the rule banning such union solicitation so long as it applies the rule in a non-discriminatory manner and bans all non-employees from the similar activity of soliciting employees in public areas regarding any cause or promotion (UPMC 368 N.L.R.B. No. 2 Opinion 6/14/19).

The NLRB made the ruling by a 3-to-1 decision, reversing longstanding precedent allowing union organizers into public areas of employers’ operations. The lone Democratic member of the NLRB dissented.

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Editor’s note: You may have missed this article when we published it in 2017. It’s been updated here with additional resources and related content.

What does it take to be successful as a leader in higher education human resources? Mary Lucal and Ron Tredway from the University of Tennessee shared their formula with attendees at the 2017 CUPA-HR Annual Conference in San Diego.

By following a simple four-step process, Lucal and Tredway say, you can greatly increase your leadership capability and earn the trust and respect of those on your team as well as others on campus.

Step 1: LEAD with vision and direction.
In order to lead effectively, you must have a clear vision and direction. Your vision must be compelling (so that others will want to get on board), and your direction must be feasible and meaningful. When Lucal was interviewing for the associate vice chancellor for HR position at the University of Tennessee-Knoxville (UTK), she laid out her vision for the HR organization during the interview process. “I had no idea if that was the direction in which the university was looking for HR to go, but I felt I needed to be clear about what I was hoping to do and how I was hoping to lead,” she says.

Step 2: ENGAGE stakeholders.
After Lucal was hired at UTK, her first order of business was to hold one-on-one meetings with all the deans, vice chancellors, academic department heads, budget officers and various employee groups across campus. She posed the same set of questions to every individual with which she met to get a sense of how the HR organization was viewed by others, where it could deliver at a higher level, what it was doing right and what it could do better.

After these meetings, Lucal engaged her senior HR leadership team, asking them the same questions and sharing the feedback she had received from her campus-wide meetings. Then she did the same with the remainder of the HR staff. “By engaging all of these stakeholders, I was able to get a clear picture of where we needed to make changes and how we needed to recalibrate,” she says.

Step 3: AFFIRM strengths and opportunities.
By taking the time to engage stakeholders and her team to understand what challenges the HR organization was facing, Lucal was able to affirm what was going right and what opportunities there were to improve. She then created a strategic plan to get HR “from there to here.” Cross-functional teams were created within the department (staff self-selected which teams they wanted to join) to focus on the new priorities, which also helped to break down silos within the department and facilitate collaboration.

Step 4: DEVELOP the talent.
Once Lucal developed the strategy for HR moving forward, she needed to identify team member strengths that would enable optimal solutions and develop that talent where appropriate. In looking at talent, she discovered that it was necessary to restructure the HR organization in order to accomplish its goals. Says Tredway, “Developing your talent can be enhanced by having a clear vision of your overarching goals and strategy.”

By following this four-step process, says Lucal, she was able to hone her leadership skills, make an impact, lead with confidence and get others on board.

Read more about how University of Tennessee is developing an internal talent pipeline to fill leadership and other roles on campus.

To learn more about leadership development and other timely HR topics, plan to attend this year’s CUPA-HR Annual Conference, to be held October 20-22 in Denver, Colorado. Register by July 12 and save!

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For the first time since 2005, the number of colleges and universities offering healthcare benefits for employees’ domestic partners has decreased.

According to CUPA-HR’s 2019 Healthcare Benefits for Higher Education Employees Survey, in just the past two years, the number of higher education institutions offering healthcare benefits for same-sex domestic partners has fallen 10 percentage points, and the number offering these benefits for opposite-sex domestic partners has fallen 6 percentage points.

The survey also found that the gap between healthcare offerings for same- and opposite-sex partners has shrunk from 22 percentage points in 2017 to 18 percentage points in 2019.

Says Jackie Bichsel, lead author of the survey report and director of research for CUPA-HR, “The 2015 Supreme Court ruling allowing same-sex couples to marry is likely one of the reasons for the decrease in the percentage of institutions offering benefits to domestic partners and to the narrowing of the gap between healthcare offerings for same- and opposite-sex partners.”

Other findings from the survey include:

  • The most popular plan type, Preferred Provider Organization (PPO) plans, are offered by 83 percent of institutions. Point of Service (POS) plans remain the least popular, offered by only 12 percent of institutions.
  • More than half of institutions offer two types of healthcare plans. Of the 55 percent that offer two plans, two-thirds (67 percent) offer both PPO and High Deductible Health (HDH) plans.
  • Offerings of stand-alone dental, vision and long-term care plans have decreased slightly over the past two years.
  • Also over the past two years, there has been a decline in the percentage of institutions offering healthcare benefits to retirees over the age of 65, retirees under the age of 65 and part-time employees.
  • Although the percentage of institutions with wellness programs has not changed much since 2017, resources for wellness programs (in the form of both budgets and dedicated staff) have declined.
  • Nearly all wellness programs have physical wellness education and activities as components. Fewer (around three-fourths) have financial wellness components. More than four in five institutions provide at least one incentive (financial or non-financial) for participating in their wellness program.

A total of 365 higher education institutions responded to this year’s survey. Data collected on wellness programs included budget amounts, staffing, components and incentives. CUPA-HR collects data on healthcare benefits biennially. In alternate years, data on time off, tuition reimbursement and retirement are collected.

For a list of participating institutions, an overview of the results, information on data collected and options for purchasing the survey report and DataOnDemand, visit the Healthcare Benefits for Higher Education Employees web page.

For more on benefits in higher education, browse the benefits-related toolkits in CUPA-HR’s Knowledge Center. 

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On June 20, the House Science Committee passed Chairwoman Eddie Bernice Johnson’s (D-TX) bill, H.R. 36, the Combating Sexual Harassment in Science Act of 2019, out of committee.

This comes after a June 12 hearing which evaluated higher ed’s response to sexual harassment in STEM jobs on and off campuses, offered feedback on the bill, and gave an early look at an upcoming Government Accountability Office (GAO) study commissioned by the committee on this topic.

Chairwoman Johnson began the hearing by sharing her concerns about the historical tolerance of sexual harassment that she says is “deeply rooted in higher education, especially when the loss of research money has been an incentive to ignore bad behavior.” She said that we must ensure that all researchers have a safe work environment and cited data from a 2018 National Academy of Science report on this topic that found that only 6 percent of graduate students and faculty who are sexually harassed formally report it to their institution.

Rep. Johnson lauded the National Science Foundation (NSF) on its new reporting requirements and asked the panel of college leaders testifying before the committee to share any improvements that could be made to her bill, H.R. 36, before she moves it through her committee for a vote.

H.R. 36 would direct grantee institutions to alert federal scientific agencies when anyone who has received funding has been found to have harassed someone. The bill also directs the NSF to fund research into harassment in STEM fields and how to curb it. The bill has some bipartisan support, including House Science Committee Ranking Member Frank Lucas (R-OK).

In his opening statement, Rep. Lucas discussed his concern about institutions being more interested in checking the box of compliance than doing the right thing and commended the NSF for already making changes to increase accountability. He expressed frustration with inconsistency in how agencies deal with complaints and shared his support for H.R. 36. Lucas said that women make up half of the workforce but less than 25 percent of the STEM workforce and that to address this imbalance, we must make sure women feel safe in their jobs.

The panel of witnesses included John Neumann, managing director of science, technology assessment and analytics with the GAO; Paula A. Johnson, president of Wellesley College; Dr. Jean Morrison, provost and chief academic officer of Boston University; and Dr. Philip H. Kass, vice provost for academic affairs and professor of analytic epidemiology of the University of California, Davis.

Neumann summarized some preliminary observations from GAO’s ongoing review of selected agency efforts to prevent sexual harassment by federally funded research grantees. The full study requested by committee leaders isn’t expected until later this year, but GAO released an early analysis for the hearing.  He noted that NASA is soon expected to issue its own changes, similar to NSF.

Johnson testified in her role as co-chair of a National Academy of Sciences, Engineering and Medicine committee that issued a report last year titled Sexual Harassment of Women: Climate, Culture and Consequences in Academic Sciences, Engineering and Medicine. She discussed several kinds of harassment addressed in the study, with a focus on the most common, gender harassment, being often the most damaging. She offered her support for H.R. 36 and the many provisions in the bill that were also included in the report. She also raised concerns with confidentially agreements and the role they play in silencing those that have been harassed.

Morrison discussed the ways Boston University is working to combat sexual harassment, beginning with how the university is prioritizing diversity, equity and inclusion and the importance of DEI in its hiring and promotions. Morrison said these steps are essential to creating a community that rejects harassment. She suggested a government-wide approach to handling sexual misconduct by federal grantees, stating that it is better for everyone to have one clear set of rules at the federal level rather than differing approaches within each scientific agency. She also urged the committee to authorize the NSF to fund research on gender-based harassment and urged that H.R. 36 address the inconsistencies across federal laws in this area.

Kass shared the efforts UC Davis is undertaking to prevent sexual harassment in science and its commitment to create a place where all can work and learn together in a safe and secure environment free of harassment and discrimination with a culture of respect and accountability. In 2016, Forbes listed UC Davis as the number one college for women in STEM. He shared the strong opposition UC Davis voiced to portions of the Department of Education’s proposed Title IX rule that it believes would narrow the definition of sexual harassment and lower the standards to which schools are held.

CUPA-HR has weighed in on both the referenced new NSF reporting requirements and the Department of Education’s proposed Title IX rule. It is unclear when the full House might take up H.R. 36, but we will continue to monitor the bill and provide updates as necessary.

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On June 7, CUPA-HR and seven other higher education associations, led by the American Council on Education (ACE), filed an amicus brief to the Third Circuit Court of Appeals in the University of Pennsylvania’s 403(b) retirement plan case.

The case, Jennifer Sweda et al. v. The University of Pennsylvania, which deals with the issue of 403(b) retirement plans, was originally filed in district court in August 2016 along with a dozen other lawsuits that have targeted universities and individuals who work for them, alleging breaches of fiduciary duties in connection with the structure and administration of institutionally-sponsored faculty and staff retirement plans.

Those lawsuits alleged that university 403(b) plans should look just like corporate 401(k) plans — and that the universities have violated the Employee Retirement Income Security Act of 1974 (ERISA) by failing to offer plans following corporate norms. Specifically, Sweda alleged breaches of fiduciary duty and prohibited transactions.

In September 2017, a U.S. District Court judge in Philadelphia dismissed the suit against University of Pennsylvania in its entirety, determining that Sweda failed to state a claim for fiduciary breach because her factual allegations could also indicate rational conduct.

As for the prohibited transaction claims, the court held that the service agreements could not constitute prohibited transactions without an allegation that Penn had the subjective intent to benefit a party in interest. The case against the Penn was (and remains) the only one to have been dismissed in its entirety by the federal district court.

However, in October 2017, the plaintiffs appealed that ruling to the Third Circuit Court of Appeals. On April 12, 2018, ACE led a brief of the same higher ed associations, including CUPA-HR, which argued that the district court’s judgment to dismiss the case should be affirmed.

On May 2 of this year, a three-judge Third Circuit panel affirmed the dismissal of some, but not all, of the claims in the case — specifically reversing the district court’s dismissal of claims about excessive fees and improper investments.

Following that decision, on May 30, the University of Pennsylvania urged the Third Circuit U.S. Court of Appeals to undertake an en banc (full panel) review of the case. The June 7 brief submitted on behalf of the aforementioned higher education associations supports Penn’s petition for rehearing and underscores “the importance of determining the correct pleading standard in breach of fiduciary duty class actions under ERISA,” stating “If generic allegations that could be asserted against any plan fiduciary — like the allegations here — are sufficient to survive a motion to dismiss, then defendant universities will bear substantial litigation costs, qualified individuals will be deterred from agreeing to serve as fiduciaries, and plan participants will be made worse off.”

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Each month, CUPA-HR General Counsel Ira Shepard provides an overview of some labor and employment law cases and regulatory actions with implications for the higher ed workplace. Here’s the latest from Ira:

New Supreme Court Decision Will Make It More Difficult for Employers to Dismiss Title VII Court Cases Where Plaintiff Does Not File a Charge With the EEOC or Applicable State Agency

The U.S. Supreme Court in a unanimous decision written by Justice Ruth Bader Ginsburg recently ruled that the filing of a charge with the Equal Employment Opportunity Commission (EEOC) or applicable state agency is not a “jurisdictional” prerequisite of going to court to pursue a Title VII discrimination claim (Fort Bend County v. Davis (Case #US 18-525, 6/3/19)).

The decision will make it slightly more difficult for employers to dismiss court cases where the plaintiff does not file a charge with the EEOC or applicable state agency. In the past, it was widely accepted that filing a charge with the EEOC or applicable state agency was a “jurisdictional” requirement of filing a case in court under Title VII of the Civil Rights Act. This allowed an employer to file a motion to dismiss the lawsuit at any time during the litigation, as “jurisdictional” requirements are never waived by failing to raise them at the outset of the litigation.

That’s what the defendant did in the case before the Supreme Court. The employer litigated the matter for some time and then raised the defense in a motion to dismiss for failure to file a charge with the EEOC. The Supreme Court ruled the EEOC filing requirement was not jurisdictional and denied the employer’s motion to dismiss for failure to raise it in a timely fashion at the outset of the litigation.

In the future, an employer can still raise the defense of “failure to exhaust administrative remedies” when a plaintiff goes to court without filing a charge with the EEOC or applicable state agency. However, the employer must do so in a timely fashion when required at the outset of the litigation.

NLRB to Issue Regulations on Whether Private College and University Grad Student Teaching and Research Assistants Are “Employees” and Can Unionize

The National Labor Relations Board (NLRB) is planning to unveil regulations for public comment on whether private college and university graduate teaching and research assistants are employees and therefore entitled to unionize under the National Labor Relations Act (NLRA). The NLRA has jurisdiction over only private U.S. colleges and universities.

Public colleges and universities are subject to state law and state board jurisdiction. However, NLRB rulings and regulations are often followed by some state boards. The NLRB has most often in the past issued decisions on matters like this on a case-by-case basis and has rarely issued regulations.

The NLRB’s current standard on teaching and graduate assistants was adopted in 2016 in the Columbia University case in which the NLRB ruled that teaching and research assistants at Columbia University were employees and therefore could unionize. However, over the years, the NLRB has vacillated on this issue and has issued opinions on both sides of the issue depending on the political composition of the NLRB. We will follow this development and report on the NLRB’s proposed regulations in this area when they are issued.

Court of Appeals Holds a Public School Teacher/Football Coach, Fired After Nude Photos of Him Appeared on Social Media, May Be Entitled to a First Amendment Due Process Hearing Over His Termination

A Mississippi public school district fired a teacher/football coach because of “immoral conduct” after a nude photo of himself appeared on a social media website. The teacher/coach demanded a hearing within the five-day period allowed him for such a demand, and the school district delayed and then cancelled the hearing. The teacher/coach claimed that the picture was posted by his ex-wife and her boyfriend, who had access to the picture and distributed it elsewhere, all without his consent.

The Fifth Circuit Court of Appeals (covering Texas, Louisiana and Mississippi) recently ruled that the teacher/coach may have been denied his First Amendment due process rights as he had a protected property interest in his teaching job and should have been given a hearing (Wallace v. DeSoto County School District (5th Cir., No. 18-60306, unpublished, 4/17/19)).

The county had denied the hearing, claiming that the teacher/coach did not have a license required for his teaching job, thus he had no property interest in the job. The court rejected the argument because under state rules he had until October 15 that school year to get the license, and he took the test for the license on August 2. He was fired on August 15, before the results of the test were available. The court ruled that he has the right to a trial over the issue of his property interest in the job.

EEOC Claims of Athletic Department Preferential Treatment of a Male Staffer Regarding Promotional Opportunities and Pay Bias to Move Forward in Federal Court as University’s Motion to Dismiss Is Denied

The EEOC recently filed suit against George Washington University in federal court in Washington, D.C., and the judge assigned the case denied the university’s motion to dismiss the allegations, holding that the EEOC’s allegations at this point in the procedures must be assumed to be true (EEOC v. George Washington University (2019 BL 166686, D.D.C., No. 17-cv-01978, motion to dismiss, denied 5/8/19)).

In rejecting the university’s motion to dismiss, the judge ruled that the EEOC stated plausible allegations that a female athletic department staffer, who was an executive assistant, suffered Equal Pay Act and Title VII violations when the university hired a male staffer for a “special assistant” job at higher pay than her and refused to consider her for the special assistant job.

Third Prominent University Reaches Multimillion-Dollar Settlement of ERISA Class Action Litigation

A third prominent university has reached a multimillion-dollar settlement of pending Employee Retirement Income Security Act class action litigation that has now been filed against almost two dozen universities. Each class action is a little different, but they all generally allege that the specific university targeted has violated ERISA’s strict fiduciary standards to participants by offering so many investment alternatives that it is confusing to participants. Most of the class actions also allege that the plans are paying too much for recordkeeping to the financial harm of all participants.

The most recent settlement was reached by Vanderbilt University, which has asked for court approval of its mediated settlement of $14.5 million to a class of approximately 40,000, workers. Earlier this year, Duke University and the University of Chicago reached class actions settlements of $10.56 million and $6.5 million respectively.

Most of the other class action lawsuits are pending in federal trial and appellate courts throughout the country.

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Fifteen states and the District of Columbia have passed legislation raising the minimum wage to a specific amount over the next several years, and many workers at the staff level in higher education institutions in those states will be impacted.

According to just-released findings from CUPA-HR’s Staff in Higher Education Survey, around one in four higher ed staff employees currently earn less than $15 per hour — a key threshold since at least six states and D.C. have targeted a $15 minimum wage.

Across all the 15 states and D.C. that have legislated future increases, a combined 11 percent of staff are paid less than the new minimum wage passed in their state. This means that hourly rates for these individuals would need to be at or above the new minimum wage when those laws go into effect.

However, the survey found that institutions are impacted differently by these impending increases depending on their affiliation, with private institutions paying a much higher percentage of their staff (17 percent at private religious institutions and 14 percent at private independent institutions) less than the future minimum in their state, compared to only 8 percent at public institutions.

Likewise, institutions classified as master’s and baccalaureate pay a much higher percentage of their staff (17 percent and 16 percent, respectively) less than their state’s future minimum wage than do doctoral (9 percent) or associate’s (5 percent) institutions.

“It’s important to note that the new minimum wage doesn’t just impact the lowest-paid employees,” says Andy Brantley, president and CEO of CUPA-HR. “Colleges and universities will need to review their pay structures to determine how the hourly rates of multiple levels of positions will need to be adjusted to avoid wage compression.”

Other findings from the 2019 CUPA-HR Staff in Higher Education Annual Report include:

  • Salary increases. The median salary increase for higher ed staff over the past year was 1.88 percent. The median salary increase was highest at baccalaureate institutions (1.99 percent) and lowest at associate’s institutions (1.52 percent).
  • Most common staff positions. Most higher ed staff work in either office/clerical positions (41 percent) or service/maintenance positions (34 percent). The two most common positions are custodian/housekeeper and administrative assistant, each making up around 14 percent of the staff workforce.
  • Job growth. The position of graphic design paraprofessional experienced the most job growth this year (26 percent increase), whereas building control systems technician saw the largest decline (24 percent decrease).
  • Demographics. Women make up 61 percent of higher ed staff overall, and minorities make up 31 percent of staff.
  • Pay equity. Women are paid less than equitably compared to men in all staff areas except for office/clerical positions. Minorities (except Asians) are paid less in the same position than are White staff across all areas.

A total of 857 higher education institutions provided incumbent-level data for 205,949 staff in 153 positions for this year’s survey. The survey collects data on salaries and demographics for each individual incumbent, allowing for more in-depth analysis and comprehensive benchmarking. Data collected include salary, sex, race/ethnicity, age and years in position.

For a list of participating institutions, an overview of the results, information on data collected and options for purchasing the survey report and DataOnDemand, visit the Staff in Higher Education web page.

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Congress has acted twice to delay the 40 percent excise tax on high-value employer-provided healthcare coverage, known as the “Cadillac tax,” yet the latest effective date of 2022 looms.

The Cadillac tax was signed into law as part of the Affordable Care Act (ACA) and was originally scheduled to take effect in 2018, but was delayed until 2020, and then again to 2022. Since passage of the ACA, delays and even full repeal of the Cadillac tax have been supported by members of both political parties.

CUPA-HR has long been supportive of a full repeal of the tax and has joined efforts over the years to repeal and delay the provision from taking effect. In the latest effort, CUPA-HR joined a June 4 letter signed by 665 organizations including businesses, nonprofits, chambers of commerce, insurers, brokers, unions and patient advocacy groups urging the Senate to repeal the Cadillac tax and to co-sponsor S. 684, the Middle Class Health Benefits Tax Repeal Act of 2019.

The letter highlights 2018 Kaiser Family Foundation data that has found that since 2010, deductibles have risen 89 percent while wage growth has remained comparatively flat. The tax was intended to only hit the most expensive “gold-plated” healthcare plans, but the reality is that very modest plans that cover low- and middle-income Americans are expected to trigger the tax.

Over 300 representatives and 30 senators cosponsored repeal legislation last Congress, and we are hoping to see even greater bipartisan support this Congress that will finally remove the threat of this major tax.

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