A replay of Post-Election Analysis – Federal Regulatory and Legislative Impacts on College and University Operations is now available for viewing.
Webinar: Post-Election Analysis: Federal Regulatory and Legislative Impacts on College and University Operations
Duane Morris will present the next entry in its webinar series, Boot Camp for Education Legal Leadership: Higher Education at the Political and Legal Crossroads: Protecting Your Institution’s Mission During a Time of Uncertainty, Post-Election Analysis – Federal Regulatory and Legislative Impacts on College and University Operations, to be held on Tuesday, November 12, 2024, at 2:00 p.m. Eastern | 11:00 a.m. Pacific.
Continue reading “Webinar: Post-Election Analysis: Federal Regulatory and Legislative Impacts on College and University Operations”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”
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.
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.
Webinar Replay: The Regulatory Landscape ‒ A Dynamic and Disruptive 12 Month
EdUp Legal Podcast: The Latest on DOE Regulations
Tony Guida, Duane Morris partner and Team Lead of the Education Industry Group, is featured in the EdUp Legal podcast.
In the episode, Tony discussed the Department of Education’s most recent suite of regulations impacting institutions’ participation in the Title IV program, specifically with respect to certification, financial responsibility and administrative capability.
How the FTC’s Updated Safeguards Rule Affects Higher Education Institutions
The Federal Trade Commission (FTC) has approved an amendment to the Safeguards Rule that would require institutions of higher education, as well as other nonbanking financial institutions, to report any notification events to the agency.
Read the full Alert on the Duane Morris LLP website.
U.S. Department of Education Updates Third Party Servicer Guidance
On May 16, 2023, the United States Department of Education (the “Department”) updated its Third Party Servicer Guidance issued in GEN-23-03. The new Dear Colleague Letter (“DCL”) officially delays indefinitely the previously issued guidance. It also removes the prohibition on contracts between institutions of higher education and foreign owned or operated third party servicers.
This DCL replaces the prior update posted in a blog by Undersecretary Kvaal, in which he commented that the department was effectively delaying the prior DCL. This formalizes that announcement.
The DCL indicates that institutions will be provided with at least six (6) months advance notice before the effective date of any future formal guidance. The deadlines for audit and contractual requirements in any new guidance will be delayed until the institution’s first fiscal year beginning after the effective date for the reporting requirements. We read this to mean that institutions and Third Party Servicers will not be required to retroactively implement the new guidance.
Finally, the Department also clarified that institutions may contract with foreign owned Third Party Servicers. It rescinded earlier guidance on this issue. The Department did note, however, that this issue may be subject to rulemaking in the future.
Institutions and potential Third Party Servicers should continue to evaluate how they may be impacted by new regulation or guidance in this area. It is clear that the Department is intent on increasing its oversight of Third Party Servicers by expanding the scope of services that fall into the Third Party Servicer bucket in the Higher Education Act. In addition, the Department has identified Third-Party Servicers and Related Issues for rulemaking in the fall of 2023. Concerned parties should continue to monitor developments from the Department as they arise over the next several months.
Webinar Replay: What Does It All Mean? The U.S. Department of Education’s Regulatory Reach Over Service Providers for Institutions of Higher Education
A video replay of the webinar “What Does It All Mean? The U.S. Department of Education’s Regulatory Reach Over Service Providers for Institutions of Higher Education” is available to view.
Do College Athletes Have the Right to Join a Union? The Answer is Still “Maybe”
Overview: Back in September 2021, the National Labor Relations Board general counsel issued GC Memorandum 21-08, formally taking the prosecutorial position that certain college and university athletes are employees entitled to all of the rights guaranteed by the National Labor Relations Act. This would include the right to engage in certain protected concerted activities, such as strikes, and to organize to join a union. For private colleges and universities, formal, legal recognition of student-athletes as “employees” would significantly change the relationship between schools and athletes.
Discussion: Back in September 2021, General Counsel Jennifer Abruzzo of the National Labor Relations Board (the “Board”), who leads the enforcement arm of the Board, issued GC Memorandum 21-08, formally taking the prosecutorial position that certain college and university athletes are employees entitled to all of the rights guaranteed by the National Labor Relations Act (the “Act”). This would include the right to engage in certain protected concerted activities, such as strikes, and to organize to join a union.
This is not the first time a Board general counsel has taken this position; Richard Griffin, appointed by President Barack Obama, issued a similar memorandum in 2017 that was later rescinded by his Republican successor, Peter Robb, appointed by President Donald Trump. Abruzzo, however, has taken this legal analysis a step further, arguing that “misclassifying” collegiate athletes as mere “student-athletes,” and leading athletes to believe that they do not have statutory protections, violates the Act in and of itself.
For private colleges and universities (the Act does not apply to public institutions of higher education), formal, legal recognition of student-athletes as “employees” would significantly change the relationship between schools and athletes. To start, schools would have to guess whether an athlete qualifies as an employee in the first place. Guessing incorrectly could have expensive consequences, as merely mislabeling the student could risk violating the Act and require defending against the ensuing charge.
As employees, athletes would have the right to engage in collective action, which could clash with school codes of conduct or campus rules. And, should student-athletes choose to organize and vote to join a union, the school would be required to engage in good faith collective bargaining over wages, hours and other terms and conditions of the athletes’ “employment.” The implications of such an arrangement could be significant: Would this require negotiations over the costs of meal plans and housing? What about school-sponsored health insurance plans? Would student-athletes gain the right to have union representation in disciplinary proceedings? Classifying a school’s athletes as employees would undoubtedly unleash a Pandora’s box of issues and questions.
Since publishing the memorandum over a year ago, Abruzzo’s office has yet to prosecute a test case that would give the Board (currently a 3-2 Democrat majority) the opportunity to formally adopt the position that certain student-athletes are employees under the Act. However, private colleges and universities should not assume that this agenda item has been forgotten.
There are a couple of pending cases against the National Collegiate Athletic Association alleging that it has misclassified student-athletes. And, on December 15, 2022, Abruzzo announced that her office found merit in at least one pending unfair labor practice charge case, which could result in a formal charge (giving her a pathway to litigate the issue up to the Board). Meanwhile, there are other legal efforts to classify collegiate athletes as employees through legislative or judicial action.
In short, private colleges and universities should stay alert to this classification issue and keep an eye out for signs of union organizing among college athletes, particularly football players at Division I Football Bowl Subdivision private colleges and universities. Though it is impossible to predict how this battle over collegiate athletes will unfold, one thing is certain: It is not going away any time soon.
For More Information
If you have any questions about this Alert, please contact Elizabeth Mincer, Zev Grumet-Morris, Katherine Brodie, or any of the attorneys in our Education Industry Group or the attorney in the firm with whom you are regularly in contact.