Higher Education Report

Higher Education Report

New York’s Minimum Wage and Hourly Student Employees

Posted in Higher Education, Student Employees

As colleges and universities in New York know, new Regulations were recently adopted, effective December 31, 2013, amending the state’s Minimum Wage Orders, including the Minimum Wage Order commonly applicable to not-for-profit higher education institutions.

These amendments reflect the statutory increase in New York’s minimum wage to $8.00 per hour, which is already in effect, as well as future scheduled raises in the state minimum wage to $8.75 per hour as of December 31, 2014, and to $9.00 per hour as of December 31, 2015.

The relevant provisions of the above-referenced Minimum Wage Order apply to colleges and universities deemed to be “nonprofitmaking institutions.” This term includes:  “any corporation, unincorporated association, community chest, fund or foundation organized and operated exclusively for religious, charitable or educational purposes, no part of the net earnings of which inures to the benefit of any private shareholder or individual.”

While this Minimum Wage Order generally applies the new $8.00 per hour minimum rate, it also continues to provide that bona-fide students working “in or for” such “nonprofitmaking institutions,” e.g., not-for-profit colleges and universities, are exempt from the definition of “employee.”  In other words, these students are exempt from the increased state minimum wage.

The term “student” is specifically defined in the applicable Minimum Wage Order as “an individual who is enrolled in and regularly attends during the daytime a course of instruction leading to a degree, certificate or diploma, offered at an institution of learning, or who is completing residence requirements for a degree.”  Further, under this definition, such an individual continues to be a “student” even when school is not in session, so long as she was a student during the preceding semester.

However, higher education institutions should remember that the Fair Labor Standards Act (“FLSA”) does not contain a comparable exemption and, at the present time, federal law independently imposes a minimum wage of $7.25 per hour for non-exempt employees.   Thus, hourly student employees must still generally be paid at this federal minimum wage rate for all hours worked, and at time-and-a-half of their “regular rate” for all hours worked over 40 in a workweek.

At the same time, not all student “work” at higher education institutions constitutes an employment relationship subject to the FLSA and its requirements, although this distinction is not always easy to make.  Additionally, certain full-time students may be paid sub-minimum wages under the FLSA, but higher education institutions must obtain prior approval from the federal Wage & Hour Division.

The bottom line is that colleges and universities should carefully examine their minimum wage practices, and practices with students who provide services to ensure compliance with both state and federal law.

Navigating the Uncertain Waters of Suicidal Students on Campus

Posted in Disability, Discrimination, Student Affairs

Inside Higher Ed recently reported a situation involving Western Michigan University (WMU).  According to published reports, WMU placed a suicidal student on involuntary medical leave.  The student appealed his dismissal and filed a complaint with the Office for Civil Rights (“OCR”).  The student was readmitted, but he later committed suicide in his apartment, where he was found by his roommate.

At present, a debate is raging around this situation.  Some hail the fact that the student won the right to return to campus as a victory for emotionally distressed students.  Others see this as an example of the tragedy that may flow from OCR’s push to require colleges and universities to allow students to remain on campus after they are no longer well enough to be there.  Administrators are caught in the unenviable middle. Continue Reading

New York Institutions: Time to Get a Head Start on the Decennial Article 129-A Filing Requirement for Campus Policies

Posted in Higher Education

010614_highered_postThe turn of the calendar to a new year provides an opportunity for New York colleges and universities to perform an early assessment of their compliance with Article 129-A of the New York State Education Law in anticipation of the need to furnish evidence of compliance to the New York State Education Department (NYSED) during the summer of 2014.

By way of background, Article 129-A requires public and private colleges and universities in New York State to maintain institutional policies on a variety of subjects, including campus security and the maintenance of public order on campus; sexual assault, domestic violence and stalking prevention; campus crime reporting and statistics; investigation of violent felony offenses; bias related crime prevention; the marketing of credit cards on campus; and disclosure of fire safety standards in institutionally-owned or operated housing facilities. On or before July 1 of each year, institutions are required to certify to NYSED their compliance with the requirements of Article 129-A (i.e., that they have policies meeting the statutory requirements). However, in 2004 institutions were required, and every ten years thereafter are required, to submit actual copies of their policies as evidence of compliance.  Thus, New York institutions will be required to submit their policies to NYSED on or before July 1, 2014.

In anticipation of this requirement, institutions may wish to perform a self-audit to confirm that the requisite policies are in place, and are suitable for filing.  Of course, institutions should be monitoring compliance in these areas on a continuous basis, but they may want to review the content of policies in greater detail (as opposed to confirming their mere existence) in anticipation of the public filing, so as not to be caught needing to make eleventh hour amendments to policies (or to adopt new policies) over the summer, when boards or others whose approval may be required are not readily available.

Sexual Assault Cases on Campus – The Rise of Claims from the Accused

Posted in Discrimination, Risk Management, Student Affairs, Title IX

In the past three years, there has been considerable activity on the Title IX/Sexual Assault legal front.  We have all read about the increase in claims  brought by victims against their institutions through the complaint procedures of the U.S. Department of Education’s Office for Civil Rights.  There have been well publicized resolution agreements reached between OCR and institutions.  And there has been the April 2011 “Dear Colleague” letter issued by OCR that has been the subject of much debate.

But institutions are also starting to see an increase in push back from students accused of sexual assault.  A recent Bloomberg report highlights a number of legal complaints filed by male students against their institutions as a result of disciplinary action taken against them arising out of sexual assault claims.

Institutions should not ignore these latest challenges.   At a minimum, they should review their existing investigation and hearing procedures not only to ensure that they provide appropriate protections for those accused, but to also make sure that they provide “equal” process for both the victim and the accused.  OCR has made it clear that the process needs to be the basically the same for both parties.  For example, if the victim has the right to have an advisor present throughout the proceeding, the accused must be afforded that same right; if the victim has the right to appeal a hearing decision, the accused must be afforded that same right.

In addition, it is critical that institutions “execute” in accordance with their own policies and procedures.  While institutions have a fair degree of leeway with respect to what goes into their policies, the surest way to create a legal issue is to then not follow those policies.  Do not put something in your policy that you are not prepared to live with, and once you put it in your policy you need to make sure you follow it.

Whether now, at the end of the calendar year, or in the Spring, at the end of the academic year, at least annually an institution should conduct a thorough review and audit of the past year’s sexual harassment/assault cases.  Determine what was done correctly and what could have been done better.  Based on those experiences, consider modifications to your policies and procedures, and/or to your implementation of them, to best position your institution, and the outcomes reached in your internal proceedings, against future legal attack.

Graduate Assistants At NYU Vote To Unionize — NLRB Request To Review Brown Decision Regarding Graduate Students Withdrawn

Posted in Higher Education

The status of graduate assistants under the National Labor Relations Act (“Act”) — are they employees eligible to organize or students without employee status under the Labor Law — has garnered considerable attention in recent years.  New York University (“NYU”) graduate assistants will, for the second time in recent years, be represented by a union and negotiate their terms and conditions of employment due to a neutrally supervised vote held under an agreement between NYU and the United Auto Workers (“UAW”).   Under that agreement, graduate, research, and teaching assistants at NYU have voted overwhelmingly (620 to 10) in favor of union representation by the UAW.  The election occurred after the UAW and NYU reached agreement in November under which NYU agreed to remain neutral, refrain from participating in the election, and bargain in good faith for a contract if a majority voted in favor of representation.  Under the same agreement, the UAW agreed to withdraw pending petitions for election before the National Labor Relations Board (“NLRB”).

A unit of graduate assistants at NYU had previously voted in favor of representation in 2002 and the UAW had bargained a contract with NYU.  During that first contract, the NLRB decided the Brown University case, 342 NLRB 42 (2004), holding that certain graduate assistants were primarily students, not employees and therefore were not legally entitled to organize under the Act.  NYU withdrew recognition of the Union in response to the Brown decision.  In 2010, the UAW filed several petitions seeking to represent graduate assistants and providing a vehicle for the NLRB to revisit the Brown ruling.  The NLRB sought briefing from the parties and interested organizations concerning the employee status of graduate assistants.  Many felt that Brown was likely to be overturned by the NLRB appointed by the Obama administration.

The agreement between NYU and the UAW resulted in the withdrawal of the NLRB proceeding.  The NLRB has issued an unpublished decision indicating that it is granting the Union’s request to withdraw and now considers the review of the Brown decision to be “moot.”

Thus, NYU will enter into bargaining with the UAW for its graduate students.  The broader issue of whether graduate students are employees from the NLRB’s perspective will have to wait for a new test case before the Board.  In the interim, Brown remains governing law.

When You Say You Are Going, You Are Going……….

Posted in Discrimination, Faculty Affairs

Institutions often make a “deal” with an individual faculty member that is memorialized in something less formal than a lawyer-drafted contract, and there is always that lingering question as to whether it will be “enforceable” if and when the time comes.  A recent decision involving Northwestern University is good news for institutions in this regard.

Here, a faculty member had requested from the Dean a year’s leave so that he could visit at another institution.  The Dean indicated that she would provide that leave, along with a second leave to take place three academic years into the future (with the faculty member teaching in the intervening years) provided the faculty member would then retire at the end of that second leave.  Ultimately a “deal” was struck and the Dean followed up with a letter to the faculty member that provided “…I will accept your resignation from the …faculty effective with your retirement on August 31, 2012….”  The letter went on to explain his leave and teaching responsibilities.

In 2011, the faculty member was reminded that the next year would be his last and then he would be retired.  He balked, indicating that he did not want to retire and insisting that he had never agreed to retire.  He filed an EEOC charge and upon receiving his right to sue letter, commenced an action in U.S. District Court in Chicago.  The District Court ruled against him and he appealed to the U.S. Court of Appeals for the Seventh Circuit, which also found for the University.

First, the faculty member argued that the University discriminated against him by offering retirement packages to older employees but not younger ones.  After recognizing that employers would have little reason to offer retirement/early retirement packages to new workers, the Seventh Circuit confirmed that the Age Discrimination in Employment Act (ADEA) simply “does not forbid offers that favor older workers over their younger colleagues.”

Next the faculty member argued that he construed his arrangement with the University as giving him an option to retire after the 2011-2012 year, but it was never his intent that he had to retire.  The Court had no trouble describing the arrangement reflected in the letter from the Dean a “contract.”  Nor did it have any trouble interpreting this agreement as committing the faculty member to retire no later than the end of the 2011-2012 year.  The faculty member’s non-sensical “understanding” – that it remained his option – would have had the University giving him two years worth of paid leave in exchange for only the possibility that he might retire after the 2011-2012 year (which of course was a possibility anyway).  As the Court observed:  “People pay to acquire options; they do not get options (and two years’ pay) handed to them for nothing.”  Thus the Court rejected the faculty member’s interpretation as unreasonable.  In a welcomed explanation of judicial reasoning, the Court observed: “judges understand written agreements to mean what reasonable people understand them to mean.”

When so much happens between an institution and its faculty through less formal arrangements, often reflected in simple letters, it is good to know that Courts will recognize them and, along the way, provide a common sense interpretation.

Nonprofit Revitalization Act of 2013 Signed by Governor Cuomo

Posted in Governance

On December 18, 2013, Governor Cuomo signed the Nonprofit Revitalization Act of 2013 (the “Act”) passed by the New York State Legislature this past July.  The Act will become effective July 1, 2014, and makes a number of significant changes to the law regarding nonprofit corporations.  These changes will affect virtually every nonprofit corporation in the State of New York, including colleges and universities. 

The Act also makes numerous changes regarding internal controls, conflicts of interest, audit requirements and other governance issues.  Some of the changes create greater restrictions, such as requiring all nonprofits to adopt written conflict of interest policies, and requiring nonprofits with 20 or more employees and annual revenue of more than $1 million to also adopt whistleblower policies.  Other changes remove antiquated provisions that have complicated simple governance issues like conducting board meetings.  For example, the Act specifically provides that facsimile and e-mail notices may be used for board and membership meeting notices and waivers, and confirms that they also may be used for votes that require unanimous written consent.  It also allows board members to participate in meetings by video conference, Skype and other forms of video communication.  By allowing the use of what has become readily available technology, the Act will help New York’s law conform with modern corporate realities of boards of directors that include members in far off locations who have difficulty attending regular meetings in person.

The Act creates both opportunities and responsibilities for nonprofit organizations to review, update and improve their operational processes based on the new statutory requirements. This will require, among other things, the adoption of new policies and possible changes to organizational documents.  Additional material regarding the significant changes made by the Act is available on our website by clicking here.


Florida Court Refuses to Allow University to Bar Guns from Student Vehicles

Posted in Campus Safety, Student Affairs

In the same week that we acknowledged the first anniversary of Sandy Hook, and read about yet another school shooting, in Colorado, the Florida District Court of Appeals, in a 12-3 decision, has ruled that the University of North Florida does not have the right to prohibit its students from carrying encased firearms in their vehicles even while on campus property.  While this decision has received a fair amount of attention, and it may be a significant ruling for other institutions within Florida, it should not have much bearing on institutional conduct in most other states. 

The legal issue in this case was actually fairly narrow.  Florida law provides that firearms may not be possessed on school property except when securely encased in a vehicle.  The rule adopted by the University of North Florida prohibited firearms, even when encased, in a vehicle while on University property.  The issue was whether Florida law recognized a right in the University to effectively make an exception to that Florida law.  Ultimately, the Court concluded that the University did not have that right – that the Florida Legislature had preempted the field of firearm regulation and the University had no authority to act in the manner it did. The Court reached this decision notwithstanding the fact that another Florida statute arguably provided the University with authority to more generally restrict the use of firearms on campus.  Indeed, the Court acknowledged that “[i]f the issue in this case involved the right of a student to carry a firearm in the classroom or at a sporting event, our analysis would be different.”  But here the Court found that in the face of an explicit statutory provision permitting firearms to be maintained in vehicles, the University simply had no authority to provide differently. 

This decision is the result of the unique nature of the Florida law.  Florida’s state constitution expressly recognizes the right to bear arms:   

The right of the people to keep and bear arms in defense of themselves and of the lawful authority of the state shall not be infringed, except that the manner of bearing arms may be regulated by law.   

In fact, Florida’s recognition of the right to bear arms is so strong, that its Legislature had previously passed the following statutory protection: 

This act is intended to codify the long-standing legislative policy of the state that individual citizens have a constitutional right to keep and bear arms, that they have a constitutional right to possess and keep legally owned firearms within their motor vehicles for self-defense and other lawful purposes, and that these rights are not abrogated by virtue of a citizen becoming a customer, employee, or invitee of a business entity. It is the finding of the Legislature that a citizen’s lawful possession, transportation, and secure keeping of firearms and ammunition within his or her motor vehicle is essential to the exercise of the fundamental constitutional right to keep and bear arms and the constitutional right of self-defense. The Legislature finds that protecting and preserving these rights is essential to the exercise of freedom and individual responsibility. The Legislature further finds that no citizen can or should be required to waive or abrogate his or her right to possess and securely keep firearms and ammunition locked within his or her motor vehicle by virtue of becoming a customer, employee, or invitee of any employer or business establishment within the state, unless specifically required by state or federal law. 

So while this recent decision is worthy of note, it is not likely to have any impact on the scope of permissible college and university regulations outside of Florida and other states that have adopted similar legislation.

Department of Education Interpretation Catches Up to the Law: Financial Aid Eligibility and Same-Sex Marriages

Posted in Financial Aid

Historically, the Department of Education had interpreted all provisions of Title IV of the Higher Education Act (which authorizes federal student aid programs) consistent with Section 3 of the Defense of Marriage Act (“DOMA”), which prohibited federal agencies from recognizing same-sex marriages.  As a result of United States v. Windsor, in which the U.S. Supreme Court invalidated portions of DOMA, the Department announced this past Friday that it will now recognize a student or parent in a same sex marriage as legally married provided they were married in a jurisdiction which recognizes that marriage, and regardless of where they now reside.

In a Dear Colleague letter  issued December 13, the Department indicated that this recognition applies to both a student and to the parents of a dependent student. It also applies to a student attending an institution located in a jurisdiction that recognizes same-sex marriage as well as in a jurisdiction that does not recognize same-sex marriage. However, this determination applies only to marriages and not other relationships, such as registered domestic partnerships, civil unions, or similar formal relationships recognized under state law.  This guidance will be relevant to all questions concerning marriage and marital status on the FAFSA.

Additional information regarding implementation of the Department’s interpretation, especially as it relates to the 2013-2104 FAFSA, is contained in the Dear Colleague letter.

Johns Hopkins Case Reaffirms the Importance of Careful Gift Drafting

Posted in Higher Education

From time to time, institutions will find themselves in a dispute with a donor, a donor’s descendants (in jurisdictions that allow standing for such actions), and or state attorneys general or other regulators, over the appropriate use of a prior gift.  A recent case involving The Johns Hopkins University is the latest to illustrate the importance of the language used in any gift, or other contractual, instrument.

In the late 1980’s, the University was the beneficiary of the purchase of an undeveloped piece of property for a price that was about one-third of the fair market value of the parcel.  The seller was a well recognized critic of development in Montgomery County, Maryland.  She sold the property at a reduced price to the University (recognizing the excess value of the transaction as a charitable contribution) rather than succumb to numerous offers for the property’s commercial development, and with the apparent expectation for the University to develop it as a pastoral-like University campus.  Accordingly, the contract and deed restricted the University’s use of the parcel to “agricultural, academic, research and development, delivery of health and medical care and services, or related purposes only, which uses may specifically include but not be limited to development of a research campus in affiliation with one or more divisions” of the University.  After plans were approved to allow for rezoning of the parcel to permit much higher density use of the property than, according to the donor’s surviving family, the donor would ever have considered acceptable, the family commenced litigation to prevent the University from moving forward.

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