New York Labor and Employment Law Report

On June 29, 2023, the U.S. Supreme Court issued its long-awaited decision in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College.[1] The Court considered the admissions practices of Harvard College and University of North Carolina (UNC) and found that neither could withstand the “strict scrutiny” demanded for race-based admissions decisions. Although nominally about these two particular admissions programs, the Court’s rationale for its ruling leaves virtually no possibility that race-based admissions practices will withstand judicial challenge.

Read More >> Race in Admissions after Students for Fair Admissions, Inc. v. Harvard

BREAKING: U.S. Supreme Court ruled that Harvard’s and UNC’s admissions programs, which factor an applicant’s race into account during the admissions process, are unconstitutional based on Equal Pro-tection Clause/Fourteenth Amendment grounds. A link to the decision can be found here. The decision will have resounding impacts on institutions’ admissions processes. Our higher education attorneys are studying the decision and its implications, and we will be providing commentary and guidance soon. 

Read More >> BREAKING: U.S. Supreme Court Rules on Affirmative Action in Admissions 

The National Labor Relations Board (NLRB) General Counsel has issued a complaint against the University of Southern California (USC), the Pac-12 Conference and the NCAA claiming that certain USC student-athletes are employees under the National Labor Relations Act (NLRA), and that the conference and the NCAA, along with the university, can be held jointly responsible employers for the treatment of those students under the law. This NLRB litigation portends fundamental consequences for private college and university athletic programs.

Read More >> NLRB Asserts Employment Protections for Student-Athletes and Seeks to Hold the University of Southern California, Pac-12 Conference and NCAA Liable

On June 10, 2020, the National Labor Relations Board (the NLRB or the Board) issued a decision that reversed a 2014 Board decision regarding the test for exercising jurisdiction over faculty members at religious institutions.  In Bethany College, the Board held that the test for exercising such jurisdiction that was established by the Board in Pacific Lutheran University was inconsistent with U.S. Supreme Court and D.C. Circuit Court of Appeals precedent, and restored the test established by the D.C. Circuit Court of Appeals in University of Great Falls v. NLRB.

Read More >> National Labor Relations Board Reverses Obama-Era Decision Regarding Standard for Asserting Jurisdiction Over Faculty Members at Religious Institutions

U.S. Immigration and Customs Enforcement’s (“ICE”) latest compliance activity involves site visits of those employers who employ F-1 nonimmigrant students under STEM Optional Practical Training (“STEM OPT”) work authorization.  With STEM OPT, F-1 students who have earned STEM (e.g., science, technology, engineering and mathematics) degrees from U.S. institutions of higher education can apply for and obtain an additional 24 months of OPT work authorization in addition to the 1 year of post-graduation OPT granted to all eligible F-1 students.

Read More >> STEM OPT Site Visits – Why ICE Is Knocking On Your Door Now

On September 23, 2019, the National Labor Relations Board (NLRB) published a Notice of Proposed Rulemaking that addresses the long-standing issue of whether undergraduate and graduate students who perform services for compensation (including teaching or research) at private colleges and universities can form a union under the National Labor Relations Act (NLRA).  Under the proposed rule, student workers would not be able to organize based on the Board’s position that such individuals do not meet the definition of “employee” under Section 2(3) of the NLRA because their relationships with their colleges and universities are predominantly educational, not economic.

Read More >> Proposed Rule Would Preclude Undergraduate and Graduate Students from Union Organizing

On October 9, 2018, the State University of New York (“SUNY”) Board of Trustees adopted a new resolution imposing new policy requirements with regard to consensual or amorous relationships among faculty, staff, and students.  The new SUNY policy requirements come in light of the recent New York State sexual harassment prevention policy and training requirements and guidelines.  This system-wide policy now requires that all SUNY campuses develop and disseminate a “Sexual and Romantic Relationship Policy” to their respective campus communities on or before March 1, 2019.  The new policy requirements apply to all SUNY campuses, including all state-operated campuses, statutory colleges, and community colleges.

Read More >> System-Wide SUNY Policy Will Require All SUNY Campuses to Develop a Sexual and Romantic Relationship Policy by March 1, 2019

As you know from the August 2, 2018 Higher Education Law Report, the U.S. Citizenship and Immigration Services’ (“USCIS”) policy memorandum dramatically changing the way USCIS calculates unlawful presence for students and exchange visitors in F, J and M nonimmigrant status and their dependents took effect on August 9, 2018. Very late in the evening of August 9, 2018, USCIS released a revised final policy memorandum which supersedes the prior one and addresses unlawful presence for F and M nonimmigrants with timely filed or approved reinstatement applications and J nonimmigrants who are reinstated by the U.S. Department of State, the agency that administers the J-1 exchange visitor program.

Read More >> VERY LATE BREAKING NEWS: USCIS Issues Revised Final Guidance on Unlawful Presence for Nonimmigrant Students and Exchange Visitors

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

The U.S. Department of Labor just released a new “Fact Sheet,” targeted specifically at higher education institutions and their compliance with the Fair Labor Standards Act.

Read More >> USDOL Releases New FLSA Guidance for Higher Education Institutions

On August 29, 2017, the Office of Management and Budget (“OMB”) suspended the implementation of the new EEO-1 form, pending a review of the effectiveness of those aspects of the EEO-1 form that were revised on September 29, 2016.  The revisions to the EEO-1 form, which were scheduled to take effect in March 2018, included:

• A modification of the “snapshot” data collection period for reporting to October 1 through December 31;
• A requirement that employers who have a reporting obligation (employers with 100 or more employees and federal contractors with 50 or more employees) submit detailed information on compensation and hours worked; and
• A change in the EEO-1 filing deadline for 2017 to March 31, 2018.

In the memorandum issued by OMB’s Office of Information and Regulatory Affairs (“OIRA”) to the Acting Chair of the Equal Employment Opportunity Commission (“EEOC”) regarding the suspension of the new wage data reporting requirements, OIRA stated that it was “initiating a review and immediate stay of the effectiveness of the new aspects of the EEO-1 form.”  OIRA provided three reasons for its decision:

1. After OMB approved the revised EEO-1 form in September of 2016, the EEOC released data file specifications for employers to use when submitting EEO-1 data, which were not contained in the Federal Register notices as part of the public comment process or outlined in the supporting statement for the collection of information, so the public was denied an opportunity to comment on the method of data submission to the EEOC;
2. The EEOC’s estimates of the burden the new form would place on employers did not account for the use of the newly released data file specifications, which may have changed the initial burden estimates; and
3. Some aspects of the revised collection of information are contrary to the standards of the Paperwork Reduction Act, lack practical utility, are unnecessarily burdensome, and do not adequately address privacy and confidentiality issues.

In response to OIRA’s memorandum, the EEOC announced that employers should plan to file the earlier approved version of the EEO-1 form, without the compensation and hours worked data, by the filing date of March 31, 2018.  Employers should still use the new “snapshot” period of October 1 through December 31, 2017, for the submission of the 2017 EEO-1 form.

The Q&As for this week focus on the application of PFL to higher education institutions.

Question:  Are private colleges and universities covered by PFL?

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

Question:  Are state colleges and universities covered by PFL?

Answer:  No, to the extent that such institutions fall within the definition of a “public employer.”  PFL does not apply to public employers, which includes the following entities:  the state, a political subdivision of the state, a public authority, or any other governmental agency or instrumentality.

Question:  Can state colleges and universities 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 higher education 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 updates on PFL, please continue to visit our blog.

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.