August 9, 2018, the effective date of U.S. Citizenship and Immigration Services' (“USCIS”) policy memorandum that dramatically changes the way USCIS will calculate unlawful presence for students and exchange visitors in F, J and M nonimmigrant status and their dependents, is just around the corner. As such, it is essential for Designated School Officials (“DSO”) on college and university campuses to remind nonimmigrant students and exchange visitors of the upcoming policy change to ensure that they do not violate it and jeopardize their stay in the U.S.

Read More >> As the Fall Semester Gets Underway, Colleges and Universities Should Remind Nonimmigrant Students and Exchange Visitors of New Unlawful Presence Policy to be Implemented by USCIS Beginning August 9, 2018 - Higher Education Law Report

As described in our initial client alert (See: Is Your Institution in Control of “GDPR” Compliance?), effective May 25, 2018, the European Union’s General Data Protection Regulation (“GDPR”) imposes new obligations on entities that collect and/or process “personal data” from people in the European Union (“EU”).  U.S. higher education institutions (“HEIs”) that collect personal data from any person located within the EU (**regardless of the HEI’s location or the person’s citizenship or residency**), will likely need to comply with the GDPR.  Any HEI in violation of GDPR requirements may be subject to significant fines.

Read More >> U.S. Colleges and Universities - Are You Ready for the GDPR? Why You Should Be Taking Steps Toward GDPR Compliance Right Now!

As described in our initial client alert (See: Is Your Institution in Control of “GDPR” Compliance?), effective May 25, 2018, the European Union’s General Data Protection Regulation (“GDPR”) imposes new obligations on entities that collect and/or process “personal data” from people in the European Union (“EU”).  U.S. higher education institutions (“HEIs”) that collect personal data from any person located within the EU (**regardless of the HEI’s location or the person’s citizenship or residency**), will likely need to comply with the GDPR.  Any HEI in violation of GDPR requirements may be subject to significant fines.

Read More >> U.S. Colleges and Universities - Are You Ready for the GDPR? Why You Should Be Taking Steps Toward GDPR Compliance Right Now!

Join Joseph Vigorito, Director, Mobility & Security at Annese, and Lisa Christensen of Bond’s Cyber Security Practice on April 27 from 10 - 11 a.m. for an overview of the EU’s General Data Protection Regulation (GDPR), and discussion of how your organization can implement compliance measures before the GDPR’s May 25, 2018 effective date.

Please RSVP and send in any questions you would like covered in the webinar by April 20 to lchristensen@bsk.com.

Register today!

Read More >> Complimentary Webinar: Time to Get Educated on the GDPR: 30 Days Left to Cram for the Final (Effective Date)!

In the spirit of accentuating the positive, there are a few bits of good news for colleges and universities in the Tax Act…as Mary Poppins might say, a spoonful (or three) of sugar to help the medicine go down. Unfortunately, after those very small doses of sugar go down, what follows is more like a 50 gallon drum of cod liver oil for many colleges and universities (and their respective donors). 

One very welcome point to highlight at the outset, is that several of the more unpopular provisions in the House and Senate versions failed to make the final cut. For example, the Tax Act does not change the (i) exclusion for qualified tuition reductions, (ii) exclusion for employer-provided housing, (iii) American Opportunity tax credit or Lifetime Learning credit, (iv) deduction for student loan interest, (v) deduction for qualified tuition and related expenses, (vi) exclusion for educational assistance programs, or (vii) exclusion for interest on United States savings bonds used for higher education expenses.

Read More >> Let's BOND Over the Tax Act¹ Part II - The Higher Education Edition

Effective May 25, 2018, the European General Data Protection Regulation (“GDPR”) imposes new obligations on persons or entities that are “controllers” or “processors” of “personal data”1 about people in the European Union (“EU”). Unlike U.S. or even existing European privacy laws, the GDPR (i) can apply to entities that are located entirely outside of the EU, and (ii) applies to “personal data” about anyone in the EU, regardless of whether they are a citizen or permanent resident of a country in the EU (each country is a “Member”2).

Institutions in violation of the GDPR could face significant fines. Depending on the nature of the violation, an institution in violation of the GDPR could be fined up to €20,000,000 (which amounts to over US $24,000,000) or up to 4 percent of a company’s global revenue, whichever is higher. There is some uncertainty with regard to the methodology that will be used to calculate global revenue for U.S. colleges and universities, but it is unlikely that substantive further guidance will be available on the subject before the GDPR becomes effective in May 2018.

Read More >> Is Your Institution in Control of “GDPR” Compliance? - Higher Education Law Report

Two federal judges have blocked President Trump’s third try at implementing a nationwide travel ban.

The first ruling blocking the administration from enforcing the September 24^th Presidential Proclamation, which restricts travel into the U.S. by foreign nationals from eight countries, came from the U.S. District Court for the District of Hawaii on Tuesday, October 17, 2017, just hours before the travel ban was scheduled to go into effect. The Hawaii District Court issued a temporary restraining order (“TRO”), basing its decision on the same analysis used by the Ninth Circuit Court of Appeals when it set aside the earlier version of the travel ban – that is, that President Trump exceeded his authority under statutory federal immigration law. As a result of the TRO, nationals from Chad, Iran, Libya, Somalia, Syria and Yemen are exempt from the travel ban, but nationals from North Korea and Venezuela remain subject to the travel restrictions set forth in the Presidential Proclamation.

In his decision, Judge Watson noted that the latest travel ban is being challenged in part because the original travel ban, issued back in January of this year, was an attempt to create a “Muslim Ban”, and President Trump “has never renounced or repudiated his calls for a ban on Muslim immigration.” He wrote that the third iteration of the ban “suffers from precisely the same maladies as its predecessor”, and that it “plainly discriminates based on nationality” in a way that is opposed to federal law.

The second ruling, issuing a preliminary injunction blocking the ban from being enforced, came from the U.S. District Court for the District of Maryland on Wednesday, October 18, 2017. In a narrower decision, Judge Chuang blocked the administration only from enforcing the travel ban against travelers from Iran, Libya, Somalia, Syria, Yemen and Chad with a “bona fide relationship” with people or institutions in the U.S. Judge Chuang found that the Presidential Proclamation violated the First Amendment’s establishment clause since it is aimed at Muslims.

In response to the injunctions, the Justice Department has stated that it plans to appeal the Hawaii District Court’s ruling. We anticipate that the Maryland District Court ruling will also be appealed. In the meantime, the TRO and preliminary injunction are intended to maintain the status quo.

We will continue to apprise clients regarding any developments as they unfold.

In a move that was foreshadowed by statements from the new administration, by letter dated September 22, 2017, the U.S. Education Department, Office for Civil Rights (“OCR”) announced the withdrawal of the April 4, 2011 Dear Colleague Letter (“DCL”) on sexual misconduct as well as the April 29, 2014 Questions and Answers on Title IX and Sexual Violence. OCR will no longer rely on these documents in the enforcement of Title IX cases.  As reasons for this action, the Education Department cited concerns that the 2011 and 2014 guidance documents led to “deprivation of rights” for students and that the Department had not followed a formal public notice and comment process before issuing the 2011 and 2014 guidance documents.

New September 2017 Question & Answer Document Issued

In place of the April 4, 2011 Dear Colleague Letter (“DCL”) on sexual misconduct as well as the April 29, 2014 Questions and Answers on Title IX and Sexual Violence, the Department issued a new question and answer document – the September 2017 Q&A on Campus Sexual Misconduct  – to guide institutions while the Department conducts an official rulemaking process to promulgate new Title IX regulations. This new Q&A relies in large part on the 2001 Revised Sexual Harassment Guidance and the January 25, 2006 Dear Colleague Letter on Sexual Harassment.

The most notable changes reflected in the newly-issued 2017 Q&A on Campus Sexual Misconduct include:

• The Department has withdrawn its expectation that investigations will be completed within 60 days. Investigations must be “prompt,” but there is no specific expected timeframe for completion. See Question 5.
• The Department has retracted its position that only a “preponderance of evidence” standard may be used in sexual harassment and sexual violence cases. Instead, the standard of proof for finding a violation in sexual misconduct cases should be consistent with the standard the institution uses in other types of student misconduct cases, which may be either a “preponderance of evidence” standard or a “clear and convincing evidence” standard. See Question 8, fn. 19.
• The Department emphasizes the importance of impartiality, saying that “institutional interests” must not interfere with the impartiality of investigations.  Investigators are to be “trained” and “free of actual or reasonably perceived conflicts of interest and biases for or against any party.” See Question 6. If institutions do not already provide an opportunity for parties to raise objections to investigators or other decision-makers, it may be advisable to include such an opportunity.
• In withdrawing the 2014 Q&A, the Department has retracted its previous list of topics on which investigators and adjudicators must be trained. In its place, the Department cautions against “training materials or investigative techniques and approaches that apply sex stereotypes or generalizations.” See Question 6. Similarly, the Department announces that decision-makers must approach cases “objectively and impartially” and may not employ or rely on “sex stereotypes or generalizations.” See Question 8. Institutions should review training provided to investigators and adjudicators to ensure compliance with this aspect of the guidance.
• The Department retracted its prohibition on mediation in sexual violence cases. The Department’s newly announced position is that mediation and other forms of informal resolution may be used to resolve any Title IX complaint if both parties voluntarily agree to participate. See Question 7.
• The Department discourages any restriction on the ability of either party to discuss an investigation, stating that such a restriction is likely inequitable and may impede parties’ ability to gather and present evidence. See Question 6.
• The Department has announced that the investigation should result in a written report summarizing both “the relevant exculpatory and inculpatory evidence”, that the parties should be provided “equal access” to this information, and that they should have the opportunity to respond to the report in writing and/or at a hearing prior to a determination of responsibility.  See Question 6.
• In determining interim measures, a school “may not rely on fixed rules or operating assumptions that favor one party over another.” However, the Department also notes that, in cases of sexual assault, dating violence, domestic violence and stalking, colleges and universities continue to have obligations under the Clery Act to provide reasonably available interim measures to a reporting party who requests such measures. See Question 3.
• The Department has reversed its previous position that, if an opportunity for appeal is afforded to one party, it must be provided to both parties. Now, institutions may restrict the right to appeal to responding parties only. See Question 11.

What this Means for Institutions 

It is doubtful that the Department’s change of position will require institutions to wholly revamp their Title IX policies and procedures. For the most past, the new guidance does not disallow institutions from continuing  current practices if the institution wishes to do so, and in fact some of those practices and procedures continue to be required by the Violence Against Women’s Act amendments to the Clery Act.

One notable exception is the standard of evidence. If an institution uses the higher standard of clear and convincing evidence in other student misconduct cases, the institution will need to consider the need to either change the standard of evidence in those other cases to a preponderance of evidence standard or change the standard applicable to sexual harassment and sexual assault cases.  Also, if institutions do not currently allow parties access to the investigative file, they will need to ensure that this access is incorporated into their procedures going forward.  Relatedly, the requirement that the parties have an opportunity to respond to a written investigative report prior to a determination of responsibility may necessitate refinements to some processes that utilize an “investigator model” for determinations of responsibility, as well as processes that use a formal hearing to consider evidence other than in “report” form.

More generally, the new guidance places a renewed focus on impartiality. All institutions would do well to review their policies, procedures and personnel involved in the process with an eye on this issue. 

State Law Requirements

In addition to the federal requirements impacted by OCR’s new guidance, some states have enacted laws on the topic of response to sexual violence. For instance, New York State’s “Enough is Enough” Law imposes a fairly full panoply of institutional requirements with respect to sexual assault, dating violence, domestic violence and stalking, and New York colleges and universities must continue to comply with this state law despite the U.S. Department of Education’s lessening of its regulatory requirements.  Generally, New York State’s requirements are not in conflict with the Department’s newly-issued positions as articulated in the 2017 Q&A on Campus Sexual Misconduct.  Perhaps the most notable potential exception is with respect to interim measures.  New York State law seems to require a formulaic no-contact order that imposes on the responding party the obligation to “leave the area immediately” if in a public place with the reporting party, whereas the Department’s newly announced position is that interim measures “may not rely on fixed rules or operating assumptions that favor one party over another.” Whether and how these two directives can be reconciled will require further consideration and analysis.

The Department’s announcement makes clear that this is not necessarily the last change it will make with respect to schools and their Title IX obligations.

If you have questions about how the September 22, 2017 DCL or Q&A on Campus Sexual Misconduct impacts your current policies and procedures please reach out to our Higher Education Practice group.

In remarks today, United States Secretary of Education Betsy DeVos announced that the Department of Education plans to initiate a public comment period to begin the process of adopting new regulations on campus sexual violence and harassment prevention and response. The new regulations would supplant existing Department subregulatory guidance (most notably the April 4, 2011 “Dear Colleague Letter” and the 2014 “Questions and Answers on Title IX and Sexual Violence” issued by the Office for Civil Rights).  The timing of the Department’s rescission of the existing guidance is not entirely clear.  Initially it appeared that, contrary to expectations in some quarters, the existing guidance would remain in effect pending completion of the rulemaking process (and that institutions could and should continue to follow it in the interim). However, following Secretary DeVos’s remarks, the Department indicated that it would issue  new “information” about how institutions should comply with their Title IX obligations pending completion of the rulemaking process.

The content and significance of any regulations that might ultimately be issued is, of course, difficult to predict and will depend at least in part on the nature of public comments that the Department receives. However, based upon recent statements by Secretary DeVos and Acting Assistant Secretary for Civil Rights Candice Jackson, institutions can likely expect any new regulations to address, among other things, the rights of students accused under campus disciplinary processes (potentially in a manner akin to some of the respondents’ rights provisions of New York State’s so-called “Enough is Enough” legislation of 2015).

The new regulations will add to the existing patchwork quilt of legal and regulatory requirements to which institutions are subject in this area. Notably, certain federal requirements with respect to campus sexual violence policies and procedures (e.g., the requirement that students be permitted the assistance of an “advisor of choice” in connection with campus disciplinary proceedings) arise not from the Department’s subregulatory guidance, but from the 2014 Violence Against Women Act (VAWA) amendments to the Clery Act.  These requirements would be unaffected by any regulations the Department may adopt.  In addition, institutions in states such as New York, California and Illinois will also need to assess and resolve potential conflicts between the federal regulations and state law sexual violence statutes.

Needless to say, today’s announcement makes the future course of sexual violence prevention and response on college and university campuses an unpredictable proposition. One thing is certain, however: institutions can expect, yet again, the need to review and revise their policies and procedures as they have done so many times before based on a seemingly never-ending succession of legislative and regulatory pronouncements.

On September 5, 2017, Attorney General Jeff Sessions announced the Trump administration’s formal plan to end the Deferred Action for Childhood Arrivals (“DACA”) program. The rescission of DACA and the benefits afforded by the program will affect individuals employed by and enrolled in colleges and universities across the country.

DACA, implemented in 2012 through an executive order by former President Barack Obama, allows illegal immigrants who entered the U.S. as minors to receive a renewable two-year period of deferred action. In addition, DACA recipients are eligible to receive an employment authorization document (“EAD”), which allows them to work legally in the U.S., and advance parole, which allows them to re-enter the U.S. following a trip abroad.  Currently, about 800,000 individuals are participating in the DACA program.  The Trump administration’s decision to phase out the DACA program will end the work authorization and advance parole of DACA beneficiaries and potentially open the doors for their deportation.

The DACA program is scheduled to end in six months, on March 5, 2018. As of September 5, 2017, the Department of Homeland Security (“DHS”) no longer accepts new EAD or advance parole applications from DACA beneficiaries.  In addition, any pending advance parole applications are going to be closed by DHS and returned to the respective DACA applicants.  Individuals whose EADs expire prior to March 5, 2018 may apply for a two-year renewal, but their applications must be received by the DHS on or before October 5, 2017.

Institutions’ human resources offices may wish to identify those individuals who are employed pursuant to DACA by reviewing the I-9 forms and copies of the I-9 documents (if any) already on file. DACA beneficiaries will have EADs with a “C33” category and will remain employment authorized until the expiration date on their EADs. The employment authorization of these individuals must be reverified by completing Section 3 of Form I-9 no later than the expiration dates on the EADs.  Individuals who are unable to provide evidence of their continued employment authorization can no longer be employed at the college or university.  With respect to those DACA employees whose EADs expire prior to March 5, 2018, colleges and universities may choose to provide a gentle reminder that renewal applications for a two-year extension must be filed and received by the DHS on or before October 5, 2017.

With respect to DACA students, faculty or staff who were planning to study abroad or attend a conference or other event outside the U.S., colleges and universities may choose to advise these individuals to change their plans and remain in the U.S., even if they have advance parole that has not yet expired since USCIS retains the authority to revoke or terminate an advance parole document at any time.

As expected, the Trump administration’s decision to phase out the DACA program is already facing challenges in courts. On September 6, fifteen states and the District of Columbia filed a lawsuit in the federal court for the Eastern District of New York opposing DACA’s termination.  There also is the possibility that Congress will pass a bill to either reinstate the DACA program or replace it with a similar program. We will provide you with updates regarding the status of the DACA program as they become available.

Last week, a spokesperson for the U.S. Citizenship and Immigration Services (USCIS) confirmed that in-person interviews will now be required for employment-based nonimmigrant visa holders (e.g., H-1B, O-1, etc.) applying to adjust their status to permanent residents (“green card” holders).  Information currently available from the USCIS indicates that this interview requirement is expected to take effect on October 1, 2017.  This mandate appears to be a result of the Trump administration’s plan to apply “extreme vetting” to immigrants and visitors traveling to the U.S.

Traditionally, employment-based adjustment of status applicants have not been interviewed as part of the process, unless deemed necessary by the government. The interview mandate will most likely lengthen the processing times for green card applications as approximately 130,000 employment-based applications are filed annually with the USCIS.  Currently, the USCIS is taking more than 6 months to process employment-based green card applications at its various service centers throughout the United States.

There is no word on where the USCIS intends to conduct interviews pursuant to this mandate. We will provide updates as additional information becomes available.

On July 19, 2017, the New York State Workers’ Compensation Board (WCB) published its final regulations implementing the New York Paid Family Leave Law (PFL). For those that may be less familiar with the particulars of this new law, beginning on January 1, 2018, virtually every private employer in New York State will be obligated to provide eligible employees with paid leave for certain qualifying family circumstances:

(1) for the birth, adoption, or placement of a new child;
(2) to care for a family member with a serious health condition; or
(3) for a qualifying exigency arising from a family member’s military service.

PFL will be phased-in over the next four years and can be funded through employee payroll deductions. In 2018, for example, eligible employees will be entitled to take up to 8 weeks of paid leave for a qualifying reason.  Significantly, and unlike federal Family and Medical Leave and state disability benefits, PFL is not intended to cover an employee’s own serious health condition.  Instead, PFL is intended to complement New York’s existing state disability insurance program.  Some additional PFL fundamentals can be found on Bond’s Labor & Employment Law Blog – “New York Labor and Employment Law Report” at https://www.bsk.com/new-york-labor-and-employment-law-report.

Our focus today is on several frequently asked questions regarding PFL that we have received from our higher education clients.

Question:  Are private colleges and universities covered by PFL?

Answer:  Yes.  Private colleges and universities are deemed to be covered employers under PFL. However, as not-for-profit organizations, they may have some employees who are not covered by PFL.  Specifically, employees engaged in a “professional” or teaching capacity for nonprofit educational institutions are excluded from the definition of “employee” under the law.  Institutions can extend coverage to these exempt classes of individuals if they choose to do so, but this is not required.

Question:  Are public institutions covered by PFL?

Answer:  No, to the extent that such institutions fall within the definition of a “public employer”, which includes the state, a political subdivision of the state, a public authority, or any other governmental agency or instrumentality.

Question:  Can public institutions voluntarily choose to provide benefits under the PFL law?

Answer:  Yes.  Public employers are permitted to opt-in to PFL. The process for opting-in is slightly different for unionized and non-unionized employers.  If a public employer chooses to cover its non-unionized workers, it must provide 90 days’ advance notice of its decision to opt-in to not only the WCB, but to all employees who will be required to make PFL contributions. In order for a public employer to cover/opt-in its unionized employees, the public employer must engage in collective bargaining and reach consensus / agreement with the applicable union.  Once an agreement is reached, the employer must notify the WCB that an agreement has been reached and provide certain information to the WCB.

Question:  Are higher education institutions who currently provide voluntary state disability insurance coverage (DBL) to their employees also required to provide PFL?

Answer:  No.  However, if these institutions currently provide voluntary DBL coverage to their employees, they must notify both the employees and the WCB whether they will also provide voluntarily PFL coverage. Notification must be made by no later than December 1, 2017.

Question:  Are student employees entitled to PFL?

Answer:  Yes, provided they satisfy the requisite eligibility criteria. Student employees are treated in the same manner as any other employee.  If the student employee is regularly scheduled to work at least 20 hours per week, he/she is eligible to take PFL after he/she has been employed for 26 weeks.  If the student employee is regularly scheduled to work less than 20 hours per week, he/she is eligible to take PFL after working 175 days.

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For more information and continued updates on PFL, please visit the New York Labor and Employment Law Report at https://www.bsk.com/new-york-labor-and-employment-law-report.

If you have any questions about PFL, please contact the authors of this post, any of the attorneys in our Labor and Employment Law Practice, or the Bond attorney with whom you regularly work.