Category: General

Posted on by Kathryn R. Brown

DOL Raises the Threshold Salary for Exempt Status Under the FLSA: What the Overtime Expansion Means for the Education Sector

The U.S. Department of Labor (DOL) announced on April 23, 2024 a significant expansion to overtime eligibility via the Final Rule: Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales, and Computer Employees. The Final Rule increases the minimum salary level applicable to the overtime exemptions for executive, administrative and professional (EAP) employees for federal law purposes under the Fair Labor Standards Act (FLSA), but does not change the salary basis or duties components of exempt status.

The Final Rule largely tracks the changes announced in the DOL’s Notice of Proposed Rulemaking (NPRM) on September 8, 2023. This post focuses on the impact of the Final Rule to the education sector.  For a more comprehensive analysis of the Final Rule as applicable to employers in all sectors, including assessment of the potential for legal challenges to the Final Rule, see the Alert Duane Morris published. Continue reading “DOL Raises the Threshold Salary for Exempt Status Under the FLSA: What the Overtime Expansion Means for the Education Sector”

Posted on by Jessica S. High

Title IX Final Rule Released

Today, after more than a year of anticipation, the U.S. Department of Education published the Title IX Final Rule, which prohibits discrimination on the basis of sex in education programs or activities receiving Federal financial assistance. This Final Rule takes effect on August 1, 2024, amending the current regulations which went into effect in August 2020. The robust 1577 page Final Rule clarifies the scope and application of Title IX and the obligations of institutions that receive Federal financial assistance from the Department.

The Final Rule will have significant compliance implications for Title IV institutions. Schools will be required to change policies and procedures implementing the regulations. Schools will also need to train all employees in their new reporting obligations under the rule. Of particular note, the Final Rule changes how and when school employees must take action when they learn of conduct that may constitute sex discrimination under the law.  Currently, the law allows schools to designate specific employees who must take action.  This Final Rule significantly broadens this to a larger group of employees. Continue reading “Title IX Final Rule Released”

Posted on by Lisa T. Scruggs

Supreme Court Declines to Hear Challenge to Race-Conscious Secondary School Admissions Policy

On February 20, 2024, the Supreme Court denied the Petitioners’ request for a writ of certiorari in Coalition for TJ v. Fairfax County School Board.  This denial followed the Court’s recent decisions striking down race-conscious admissions programs at Harvard University, in Students for Fair Admissions, Inc. v. Harvard SFFA, and a similar case from the University of North Carolina.  Some expected the Court to seize this opportunity to prohibit similar admissions criteria in secondary schooling.  Such a determination, however, is reserved for now.  Because its model has escaped scrutiny from the Supreme Court, the policy at Thomas Jefferson High School for Science and Technology (“Thomas Jefferson HS”) may very well become a model for K-12 institutions that want to diversify their student body without protracted legal challenges or drawing the ire of the Supreme Court. Continue reading “Supreme Court Declines to Hear Challenge to Race-Conscious Secondary School Admissions Policy”

Posted on by Duane Morris

Webinar: Compliance and Best Practices for Catalogs, Publications and Student-Facing Materials

Duane Morris is hosting Compliance and Best Practices for Catalogs, Publications and Student-Facing Materials, the second session in its Boot Camp for Education Legal Leadership series. The webinar takes place  Wednesday, February 28, 2024, at 2:00 p.m. Eastern | 11:00 a.m. Pacific.

REGISTER

About the Program

The start of the year is an excellent time for institutions to review their policies and establish a review cycle for all of their student-facing publications. In this session, Duane Morris Education attorneys will discuss strategies and best practices for institutions conducting policy, catalog and handbook reviews for the 2023-24 academic year with a focus on the value these materials have in mitigating institutional risk in the current active regulatory climate.

Posted on by Duane Morris

FCC Order Closes TCPA Lead Generator Loophole – Requires One-to-One Consent and Applies Do-Not-Call Requirements to Texts

On December 18, 2023, the Federal Communications Commission (“FCC”) released a Second Report and Order, Further Notice of Proposed Rulemaking, and Waiver Order (“Report and Order”) outlining new rules and regulations under the Telephone Consumer Protection Act (“TCPA”) to limit unwanted and unlawful texting. The FCC Order explicitly seeks to close the “lead generator loophole” by which lead generators rely on a single consent granted by the consumer to apply to multiple businesses at once.

Key rules in the Report and Order likely to apply to educational institutions include:

  • One-to-One Consent. The Order amends the “prior express written consent” requirement to state that consent must clearly and conspicuously authorize communications using an auto dialer or prerecorded message from a single seller at a time (i.e. “one-to-one consent”) and that such calls and texts must be logically and topically related to the interaction the prompted consent.
  • Codifying DNC Rule for Texts. The Order codifies prior FCC and court precedent that the application of the TCPA’s Do-Not-Call (“DNC”) Registry provisions apply to text messages, making it illegal for marketing texts to be sent to numbers on the Registry without an exception.

The FCC included a reminder to companies that burden of proof is on the texter or caller (not the lead generator) to prove that they have obtained valid consent. Businesses that use lead generators should review their contracts with these service providers to ensure compliance with these new rules and audit all lead generation sites for compliance. Any schools that use text marketing should also review their texting and Do-Not-Call policies to ensure they are compliance with these new rules.

Read the full Alert on the Duane Morris LLP website.

Posted on by Jessica S. High

New California Laws Regarding Non-Compete Agreements

Non-compete agreements are unenforceable in California unless given in connection with the sale of a business, sale of equity in a business or dissolution of a partnership or LLC.  Effective January 1, 2024, Business and Professions Code 16600 has been amended (and section 16600.1 has been added) to make clear that these provisions are unenforceable and require businesses to notify current and former employees.

Business and Professions Code 16600 has been amended to make clear that it is impermissible to include non-compete provisions in any employment agreement or to attempt to enforce them. Business and Professions Code section 16600.1 has been added requiring an employer that has included these restrictions in employment agreements in the past to notify the employees or former employees in writing that these restrictive covenants will not be enforced.  This is an affirmative obligation, and the notification must be individually addressed and sent by February 14, 2024.

Persons who need to be notified are current and former employees who have or had an agreement with the company that contained impermissible noncompete or nonsolicit restrictions, and who worked for the company for any period of time after January 1, 2022.

A failure to send the notice is declared in 16600.1 to be an act of unfair competition.

Please see the Duane Morris Client Alert for additional details.

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The opinions expressed on this blog are those of the author and are not to be construed as legal advice.

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