This is an update to our article, Back to School for ERISA Fiduciary Claims: How to Prepare for This Trend in University Litigation, which was published on August 22, 2017.
In January 2019, the Internal Revenue Service (IRS) issued Notice 2019-09, which provides interim guidance for Section 4960 of the Internal Revenue Code of 1986.
Section 4960 of the Internal Revenue Code of 1986 (IRC), as amended, imposes an excise tax on compensation of certain highly compensated employees of tax-exempt organizations.
Recent statistics show that approximately 70 percent of college graduates will leave college with an average of at least $30,000 in student loan debt. Cumulatively, the national student loan debt is approximately $1.5 trillion. This burden is causing millennials to wait longer than previous generations to buy houses, start families, and save for retirement. Although student loan indebtedness is not an issue employers can solve alone, a few are finding ways to recruit and retain talent by offering a helping hand to employees dealing with massive debt burdens.
The National Collegiate Athletic Association (NCAA) and 11 of its member conferences are on trial in In Re: National Collegiate Athletic Association Athletic Grant-in-Aid Cap Antitrust Litigation (4:14-md-2541) to defend against antitrust challenges to current rules limiting the amount members may pay to student-athletes for the cost of attendance.
July 26, 2018, is National Intern Day according to WayUp, the job site for college students and recent graduates. The organization’s campaign to acknowledge the role of interns in the workforce is intended to “encourage employers to celebrate, empower and recognize interns.” WayUp encourages employers to participate in the “holiday” by celebrating their interns (“anything from a mentorship session to a free pizza lunch or anything that feels right for your company”).
The extension of the Optional Practical Training (OPT) program for international students with degrees in science, technology, engineering, and mathematics (STEM) allows eligible students to apply to extend their post-completion OPT authorization. Under the 2008 interim final rule, an F-1 student with a STEM degree from a U.S. institution of higher education could apply for an additional 17 months of OPT (per the 17-month STEM OPT extension), provided that the employer from which the student sought employment was enrolled in and remained in good standing in the E-Verify electronic employment eligibility verification program, as determined by U.S. Citizenship and Immigration Services (USCIS).
On April 12, 2018, the U.S. Department of Labor’s (DOL) Wage and Hour Division (WHD) issued a new fact sheet concerning “the applicability of [the white collar] exemptions [of the Fair Labor Standards Act] to jobs that are common in higher education institutions.” In contrast to other recent DOL direction, Fact Sheet #17S largely echoes previous guidance from the Obama-era DOL.
The enactment of the Tax Cuts and Jobs Act of 2017 has raised a number of potential issues for institutions of higher education. Due to this significant impact, institutions need to study the Tax Act and plan appropriately.
Over the last few years, several federal courts—and, most recently last month, another appellate court—rejected the Obama administration’s mandatory six-prong test for whether someone can properly be classified as an unpaid intern under the Fair Labor Standards Act (FLSA). On January 5, 2018, the Trump administration issued an overhauled Fact Sheet #71, which formerly adopts a more flexible “primary beneficiary/economic reality” test.
Any privately held, for-profit company could potentially be exempt from the Affordable Care Act’s (ACA) requirement to provide comprehensive contraceptive coverage without cost-sharing based on the company’s “sincerely held moral convictions,” under interim final regulations published in the Federal Register on October 13, 2017.
On Friday, September 22, 2017, when the Trump administration announced that it was rescinding Obama-era Title IX sexual assault guidance and issuing a new question and answer document while undertaking a formal review, most assumed it meant the previous Questions and Answers on Title IX and Sexual Violence issued by the U.S. Department of Education on April 29, 2014, had been rescinded.
In the past 10 years, there have been an increasing number of lawsuits asserting Employee Retirement Income Security Act of 1974 (ERISA) fiduciary claims. These have been accompanied by an increased focus by the Department of Labor (DOL) on fiduciary matters. This trend began with lawsuits against 401(k) plan fiduciaries alleging poor investment options and has evolved into lawsuits challenging not only the performance of investments offered under the plan, but also the fees associated with those investments. In addition, almost all of the more recent lawsuits examine not only the expenses associated with the investments, but all of the fees that the plan pays. They also allege that plan participants suffered losses to the value of their retirement savings.
In keeping with his pledge to promote high-paying jobs, President Donald J. Trump signed an executive order, “Expanding Apprenticeships in America,” on June 15, 2017. With a goal to equip workers with the skills to fill existing and new jobs as well as jobs of the future in our rapidly changing economy, this executive order also acknowledges that our educational systems and our workforce development programs are not effective and in need of reform.
United States Citizenship and Immigration Services (USCIS) announced on May 3, 2017, that data entry for the FY2018 H-1B visa lottery has been completed and that petitions not accepted under the lottery selection process will be returned. For cases for which an official receipt has not been issued, the returned petition is considered the official notice that the case was not selected in the lottery. This official notice from USCIS is critical for many employers with employees relying on “Cap Gap” for work authorization because the notice will determine when an impacted employee will lose his or her work authorization.
On March 20, 2017, a federal district judge in Los Angeles granted Domino’s Pizza’s motion to dismiss a website accessibility lawsuit in a ruling that raises hopes for those battling the massive wave of web accessibility litigation and arguably makes it more difficult for businesses to decide between fight or flight.
The Third Circuit Court of Appeals has again created a circuit split by disagreeing with decisions from the Fifth and Seventh Circuit Courts of Appeals, which have held that Title VII of the Civil Rights Act of 1964 provides the exclusive remedy for employees alleging discrimination on the basis of sex in federally funded educational institutions.
In an official memorandum entitled “General Counsel’s Report on the Statutory Rights of University Faculty and Students in the Unfair Labor Practice Context,” the National Labor Relations Board (NLRB) General Counsel Richard F. Griffin, Jr., explains several NLRB enforcement positions on National Labor Relations Act (NLRA) employee status in the university setting. Most dramatically, the memorandum, which was issued on January 31, 2017 to all Regional Directors, Officers-in-Charge, and Resident Officers, declares National Collegiate Athletic Association (NCAA) football players are actually employees.
On December 5, 2016, the Seventh Circuit Court of Appeals issued its decision in Berger v. National Collegiate Athletic Association. The case was brought by former University of Pennsylvania (Penn) student athletes, Gillian Berger and Taylor Hennig, who filed suit against Penn, the National Collegiate Athletic Association (NCAA) and more than 120 other NCAA Division I member colleges and universities, claiming that as track and field student athletes, they were “employees” entitled to a minimum wage under the Fair Labor Standards Act (FLSA).
On October 24, 2016, the First Circuit Court of Appeals upheld a summary judgment decision in favor of a university in a case brought by a student who was disciplined for violating Harvard Law School’s plagiarism policy. In Walker v. President and Fellows of Harvard College, No. 15-1154 (1st Cir. 2016), the parties agreed that the law school’s student handbook constituted a contract between the law school and the student but disagreed on the meaning of the word “submit” as used in the plagiarism policy.
On October 3, 2016, the Supreme Court of the United States denied certiorari requested in O’Bannon, et al. v. NCAA, et al., by both the plaintiffs (No. 15-1167) and the National Collegiate Athletic Association (NCAA) (No. 15-1388).
With the increase in athletic competition often comes an increase in methods to find a competitive edge. Prior to this year’s Olympic games in Rio, several international athletes tested positive for performance enhancing drugs by doping. As a result, the International Olympic Committee, the U.S. Anti-Doping Agency (USADA), and numerous other international sports federations have called for more anti-doping action, including an increase in investigations to ensure the integrity of future Olympic games. The recent increase in testing and investigations of athletes on the international level has trickled down to the collegiate level. This makes sense given many Olympians hail from the collegiate ranks.
In a recent decision, the Ninth Circuit Court of Appeals affirmed a district court’s grant of summary judgment in favor of the defendants in a case involving the discharge of a union employee following his alleged whistleblowing on his union’s former president. The court found that Stanford adequately proffered legitimate, nondiscriminatory reasons for the plaintiff’s discharge, including his long history of inappropriate and harassing comments such as racist, sexist, and homophobic remarks about his colleagues.
In recent weeks, multiple class action lawsuits have been filed against private, nonprofit universities across the country alleging breaches of fiduciary duty and claiming millions of dollars in damages for retirement plan participants. Each action was filed by the same law firm that previously filed similar class actions against several large private companies and which now appears to be targeting higher educational institutions.
In a 3-1 decision, the National Labor Relations Board (NLRB) held that “student assistants who perform work at the direction of their university for which they are compensated are statutory employees.” In The Trustees of Columbia University in the City of New York and Graduate Workers of Columbia–GWC, UAW, 364 NLRB No. 90, the NLRB also rejected the argument that imposition of collective bargaining on such students would improperly intrude into the educational process and expressly overruled Brown University, 342 NLRB 483 (2004).
On June 30 and July 1, 2016, the U.S. Department of Homeland Security (DHS), the U.S. Department of Justice (DOJ), and the U.S. Department of Labor (DOL) each published separate interim final rules in the Federal Register to increase immigration-related penalties as an adjustment for inflation. The new penalties were calculated pursuant to the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015, which also requires the agencies to make subsequent annual adjustments for inflation based on the Consumer Price Index for All Urban Consumers. The penalty increases are significant and underscore the importance for employers of ensuring that their immigration programs are fully compliant with regulatory requirements.
On June 23, 2016, the Supreme Court of the United States ruled that the race-conscious admission program that a public university used for undergraduate admissions was lawful under the Equal Protection Clause of the Fourteenth Amendment of the U.S. Constitution. In a 4–3 ruling, the Court held that the university’s program withstood strict scrutiny analysis. The three dissenting justices argued that the university failed to meet its burden to show that the admissions plan was narrowly tailored to serve compelling interests.
On May 18, 2016, the Wage and Hour Division (WHD) of the U.S. Department of Labor (DOL) issued its final rule, “Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales and Computer Employees,” under the Fair Labor Standards Act (FLSA).
A recent district court opinion in Romero v. Allstate Insurance Company, et al., 2016 WL 2619853 (E.D. Pa. May 4, 2016), underscores that there is not a “one-size-fits-all” approach for employers seeking “knowing and voluntary” waivers of employee claims under the Age Discrimination in Employment Act of 1967 (ADEA), as required by the Older Workers Benefit Protection Act of 1990 (OWBPA). Employers must carefully consider the terms of severance agreements and the circumstances surrounding the procurement of ADEA waivers because, as Romero illustrates, the failure to give employees a meaningful choice could limit the enforceability of a release.
On March 9, 2016, U.S. Department of Homeland Security (DHS) released an advance copy of the final rule pertaining to optional practical training (OPT) for certain students with degrees in science, technology, engineering, or mathematics (STEM). The official version of the final rule is scheduled to be published in the Federal Register on March 11, 2016. The new rule will permit employers to retain the talents of certain individuals currently dependent on an F-1 nonimmigrant student visa for a longer period. USCIS will begin accepting applications under this provision on May 10, 2016. Prior to that date, USCIS will continue to accept applications per the existing 17-month STEM OPT procedures.