Higher Education Law Report

We previously reported that on January 27, 2017, the Trump administration issued Executive Order 13769 entitled, “Protecting the Nation from Foreign Terrorist Entry into the United States”. EO 13769 suspends: the entire US refugee admission system for 120 days; the Syrian refugee program indefinitely; and the entry of immigrants and non-immigrants from seven designated countries of concern for an initial period of 90 days. Exactly one week later, on February 3, 2017, the United States District Court for the Western District of Washington issued a temporary restraining order that prohibits the federal government from enforcing Executive Order (“EO”) on a nationwide basis. On February 4, 2017, the Department of Homeland Security (“DHS”) issued a statement announcing that “…in accordance with the judge's ruling, DHS has suspended any and all actions implementing the affected sections of the Executive Order…” and that “…DHS personnel will resume inspection of travelers in accordance with standard policy and procedure.” In addition, all airlines and terminal operators have been notified to permit the boarding of all passengers without regard to nationality. Similarly, the Department of State (“DOS”) confirmed that all visas that had been provisionally revoked pursuant to EO 13769 have now been reinstated and are valid once again. In response to these developments, the Trump administration announced that it would file an emergency stay of the order “at the earliest possible time.” Late in the day on February 4th, the Department of Justice (“DOJ”) filed a formal notice of appeal with the United States Court of Appeals for the Ninth Circuit.  The appeal sought to resume the travel ban by requesting an emergency stay of the decision issued by the Western District of Washington.  Early Sunday morning, the Ninth Circuit Court of Appeals issued an initial decision denying the DOJ's emergency request.  However, the federal appeals court has also asked both parties to brief their respective legal arguments before rendering its final decision.  For now, the travel ban remains suspended. Developments from this past week have demonstrated that the interpretations and implementation of EO 13769 continue to fluctuate and evolve.  Accordingly, individuals from the seven designated countries of concern who are currently in the United States would be well-advised not to travel outside of the United States until the issues surrounding EO 13769 have been clearly settled by the judicial system.

On January 27, 2017 President Trump signed an Executive Order (“EO”) titled "Protecting the Nation from Foreign Terrorist Entry into the United States".  Given the diverse composition of colleges and universities, which includes faculty, staff and students, this EO significantly impacts the higher education community.  Specifically, the EO suspends the entire US refugee admission system for 120 days and the Syrian refugee program indefinitely.  In addition, the EO suspends the entry of immigrants and non-immigrants from certain designated countries of concern for an initial period of 90 days.  It should be noted that after 90 days, travel is not automatically reinstated for foreign nationals from these countries of concern.  Instead, the EO has mandated that the United States Department of Homeland Security (“DHS”) be required to report whether countries have provided information "needed…for the adjudication of any…benefit under the INA…to determine that the individual seeking the benefit is who the individual claims to be and is not a security or public-safety threat."  If a country refuses to provide the requested information regarding its nationals to enable the United States to adjudicate visas, admissions or other benefits provided under the INA, the EO states that foreign nationals from that country will be prohibited from entering the United States until compliance has been achieved.  The EO currently applies to individuals from seven designated countries: Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen. There has been significant confusion regarding the scope and implementation of the EO’s travel ban. Currently, the travel ban appears to include and apply to the following groups of individuals: non-immigrant visa holders, immigrant visa holders, refugees, derivative asylees, Special Immigrant Visas (SIVs), etc.  Moreover, any foreign national holding a passport from one of the seven designated countries is considered to be from the designated country.  Accordingly, dual citizens who hold passports issued by both a designated country and non-designated country may also be subject to the travel ban.  Further adding to the confusion regarding the scope of this EO, the DHS Secretary John Kelly issued a clarification statement on January 29, 2017 which noted that status as a lawful U.S. permanent resident (a.k.a. “green card holder”) “will be a dispositive factor” used in the case-by-case analysis for determining re-entry and/or admission into the United States. Based on the information set forth in the EO, colleges and universities would be well-served to advise students, faculty and staff who are from any of these seven designated countries to refrain from traveling outside of the United States until further notice. While the EO has specifically identified seven countries of concern, there is speculation that this list may evolve and expand in the future.  Therefore, foreign nationals that hold immigrant and/or non-immigrant visas and who are presently in the United States from other Middle Eastern countries should strongly consider avoiding any international travel, where possible, until additional administrative and judicial guidance has been released. To date, legal challenges have been filed in federal courts throughout the United States on constitutional grounds. We anticipate that additional lawsuits by various stakeholders will be pursued in the coming days and weeks. Thus far, courts in New York, Massachusetts, Virginia and Washington have granted stays of removal and/or temporary orders restraining the enforcement of the EO.  While each court decision is slightly different, and does not overrule or invalidate the EO on its face, they do send two messages: (i) the subject matter contained in the EO will be subject to legal challenges; and (ii) given the gravity of the situation, the courts will likely address any such legal challenges in an expeditious manner.  As suggested above, until more practical guidance is issued from the courts, the DHS and/or the White House, colleges and universities should advise faculty, staff and students that could potentially be impacted by this EO not to travel abroad.

On November 14, 2016, the United States Citizenship and Immigration Services (“USCIS”) released a new Form I-9 (Rev. 11/14/2016 N) to replace the prior form which expired on March 31, 2016.  Beginning January 22, 2017, colleges and universities must use this updated form for the initial employment verification of all new hires (including student employees) moving forward.  Use of the updated Form I-9 also applies to the reverification of an individual’s employment eligibility, as appropriate.  Institutions should be aware that: (i) the new Form I-9 has an expiration date of August 31, 2019; and (ii) prior versions of the Form I-9 are no longer valid and should not be used in the future. By way of background, the Immigration Reform and Control Act (“IRCA”) requires all employers – including colleges and universities – to verify the identity and legal work authorization of individuals hired after November 6, 1986, including U.S. citizens and legal permanent residents,. Specifically, the I-9 verification process requires individuals to present facially valid documentation to enable higher education institutions to verify an individual’s identity and to further confirm that the individual is authorized to work in the United States.  For record-keeping purposes, colleges and universities must retain completed Form I-9s for either three (3) years after an individual’s date of hire or one (1) year after the employment relationship ends – whichever is later. According to the USCIS, the new Form I-9 is “designed to reduce errors and enhance form completion using a computer”.  Dubbed a “smart form”, the online version of this updated form now includes various enhancements intended to minimize technical errors commonly made by institutions and employees.  For example, some of the new I-9 smart form features include the following:

• Embedded prompts in the online Form I-9 which provide instructions on how to properly complete that particular question.
• Drop down lists for certain questions (e.g., citizenship/immigration status, number of preparers/translators, state, document title, issuing authority, etc.) and calendar entries for requested dates (e.g., date of birth, document expiration dates, etc.).
• The opportunity to list / enter information for more than one preparer and/or translator (if applicable).
• Auto-population of “N/A” in certain blank fields (where applicable).
• Auto-population of the employee’s name and citizenship/immigration status into Section 2 based upon responses provided in Section 1. A mechanism which prompts an individual about missing information and/or incomplete fields – highlighted in red – before moving from one section to another within the form.
• An “error-checking mechanism” which provides prompts and error messages where there may be potential response inconsistencies between citizenship/immigration status and proffered I-9 supporting documentation.
• A “Start Over” option that enables an individual to clear the Form I-9 and start anew, if necessary.
• A “Print” option that enables an individual to print the Form I-9 once data has been entered.
• An “Instructions” option which automatically links an online user to a separate copy of the Form I-9 instructions.
• Automatic generation of a quick response (QR) code.

Higher education institutions are reminded that even if they opt to use the enhanced online version of the Form I-9, they must still print the document, gather the necessary handwritten signatures and store the completed form pursuant to the applicable I-9 recordkeeping requirements. In addition to the electronic enhancements mentioned above, the USCIS has made several other notable revisions to the new Form I-9. A summary of the main changes within each section of the form appears below. Improved Instructions: In this latest round of revisions, the USCIS has separated the instructions from the actual Form I-9. In addition, the USCIS has amended the instructions to provide more detail and guidance in an effort to reduce errors during the verification process. The Form I-9 instructions are now 15 pages in length. Colleges and universities should note that they are still required to make either an electronic or hard-copy of these instructions available to employees when they complete the Form I-9. Section 1: Employee Information and Attestation

• The “Other Names Used” field has been renamed to “Other Last Names Used (if any)”. This field has changed to require only last name changes in an effort to protect the privacy of individuals (transgendered and others) who have changed their first names, as well as to avoid potential discrimination issues.
• Foreign national employees are no longer required to provide both their Form I-94 number and foreign passport information in Section 1. Instead, the updated form requires foreign national workers to supply one response from the following three (3) options: (i) an Alien Registration Number; or (ii) a Form I-94 Admission Number; or (iii) a foreign passport number.
• Higher education institutions must now affirmatively answer whether a preparer/translator has been used for completion of Section 1 of the Form I-9. If a preparer/translator has been used, the updated form now provides additional spaces to enter multiple preparers/translators.

Section 2: Employer or Authorized Representative Review and Verification 

• Addition of the employee’s “Citizenship/Immigration” status at the beginning of Section 2. (This information should be consistent with what the employee has listed in Section 1.)
• A new dedicated box / blank section where institution representatives may enter additional information/notes previously written in the margins (e.g., annotations for OPT extensions, receipts, Temporary Protected Status, etc.).

****** As noted above, the new Form I-9 includes new electronic features to facilitate fewer errors during the completion process. Reducing the number of technical/paperwork violations on the Form I-9 has become increasingly important since the federal government implemented higher civil fines against institutions who commit immigration-related offenses, which includes, among other things, Form I-9 and E-Verify violations.  With respect to I-9 paperwork errors (e.g., errors or omissions on the Form I-9), the federal government raised the civil penalty range from $110-$1,110 (per relevant individual) to $216-$2,156 (per relevant individual) – an increase of approximately ninety-six percent (96%).  The new penalties took effect on August 1, 2016.

Given the anticipation of heightened immigration enforcement by the new administration, colleges and universities may be well-served to review their I-9 procedures and records to ensure compliance with IRCA. If you have questions about the new Form I-9 or general I-9 compliance issues, contact Caroline M. Westover, any of the attorneys in our Immigration Law Practice or Higher Education Law Practice, or the attorney in the firm with whom you are regularly in contact.

Following a public comment period, the New York State Department of Financial Services (“DFS”) has published a modified version of new regulations, previously issued on September 13, 2016, aimed at creating higher cybersecurity standards within the banking, insurance and financial services industries.  The regulations go into effect on March 1, 2017 with phased implementation thereafter, and will likely require significant capital expenditures and operational changes by colleges and universities covered by the regulations.  The public comment period for the proposed modified regulations will be open until January 27, 2017. Colleges and universities must already comply with a panoply of laws, regulations and standards relating to data security:  the Gramm-Leach-Bliley Act, the United States Department of Education guidance applicable to student loan information, the Red Flags Rule, PCI standards for credit card information, and, for some institutions, the Health Insurance Portability and Accountability Act.  The DFS proposed cybersecurity regulations would impose operational requirements and expenditures that are far more burdensome than these existing obligations in many respects, including but not limited to standards for: penetration testing and vulnerability assessments, audit trails, cybersecurity personnel, due diligence, risk assessment, and contracting with third parties, use of multi-factor authentication and annual certification of compliance by the board of directors.  For information on the specific requirements of the proposed cybersecurity regulations, please review our Client Information Memoranda dated September 16, 2016 and January 5, 2017. The new cybersecurity regulations apply to “Covered Entities”, which are defined broadly as “any Person operating under or required to operate under a license, registration, charter, certificate, permit, accreditation or similar authorization under the banking law, the insurance law or the financial services law.”  Among the 3,800 entities regulated by DFS is a subset of institutions and organizations that are engaged in bona fide charitable, religious, missionary, educational or philanthropic activities and are permitted under N.Y. Insurance Law § 1110 to issue charitable gift annuities to donors.  Therefore, unless the new regulations are further modified, such entities (including many colleges and universities) will be required to comply. (To determine if your entity is supervised by DFS, you can perform a search here.) Certain covered entities are exempt from a subset of the new cybersecurity regulations.  Exempt entities include those with fewer than 10 employees, less than $5 million gross annual revenue for three years, or less than $10 million in year-end total assets.  Additional exemptions exist for covered entities that do not operate, maintain, utilize or control any Information Systems and do not control, own, access, generate, receive or possess Nonpublic Information as those terms are defined by the regulations.  Covered entities that qualify for exemptions must file a “Notice of Exemption” with DFS affirming the basis for the exemption.  Unfortunately, due to their size, few colleges and universities will qualify for exemption. It is not immediately clear that DFS intended to include entities regulated solely under Insurance Law § 1110 as covered entities alongside traditional insurance companies.  In fact, according to the Report on Cyber Security in the Insurance Sector, which was conducted as part of the regulation drafting process, DFS surveyed 21 health insurers, 12 property and casualty insurance providers, and 10 life insurance providers, but no colleges, universities, or charitable or religious organizations.  Statements made by the Superintendent of Department of Financial Services, Maria T. Vullo, and Governor Andrew Cuomo in connection with the announcement of the regulations make no mention of not-for-profit organizations or higher education institutions as targets of the regulations. Notwithstanding the apparent primary focus of the regulations, in connection with its reissuance of the regulations on December 28, DFS acknowledged that many of the comments it received concerned the broad definition of “Covered Entity”, but that it opted not to amend that definition at this time.  Institutions issued permits under N.Y. Insurance Law § 1110 to issue charitable gift annuities may wish to submit public comments about the impact of the regulations during the current public comment period, but should proceed on the assumption that the regulations will apply unless and until DFS provides definitive guidance to the contrary.

On November 28, 2016, New York State Governor Andrew Cuomo signed legislation enacting another round of amendments to the Nonprofit Revitalization Act of 2013.  The amendments should ease compliance with the NPRA’s related party transaction rules by incorporating express exceptions, allowing for committee approval, authorizing ratification of past transactions, and narrowing the universe of persons subject to the rules. Private colleges and universities in New York State would be well advised to update their governance documents to incorporate these changes so that their governance documents do not prevent them from taking advantage of these provisions.  In addition, New York institutions should review their governing documents for compliance with other changes made by the amendments, including changes relating to (1) the definition of interested directors (trustees); (2) the formation, composition and authority of Board committees; (3) the role of audit committees; and (4) certain procedural aspects of conflict of interest.

Yesterday, the U.S. District Court for the Eastern District of Texas issued a nationwide injunction preventing the U.S. Department of Labor from implementing its regulations revising the white collar exemptions.  Therefore, the increase in the minimum salary level to $913.00 per week that was expected to go into effect on December 1 will not occur on that date. In granting the injunction, the Court held that Congress intended the executive, administrative, and professional exemptions to be based on an employee’s duties — not on an employee’s salary level.  Specifically, the Court stated:  “After reading the plain meanings together with the statute, it is clear Congress intended the EAP [executive, administrative, professional] exemption to apply to employees doing actual executive, administrative, and professional duties.  In other words, Congress defined the EAP exemption with regard to duties, which does not include a minimum salary level.”  Although the USDOL has imposed a minimum salary level requirement to qualify for the white collar exemptions since the 1940s, the Court nevertheless determined that the increase in the minimum salary level from $455.00 per week to $913.00 per week was so large that “it supplants the duties test.”  The Court stated:  “If Congress intended the salary requirement to supplant the duties test, then Congress, and not the Department, should make that change.” So, what does this mean for the future of these regulations?  Although this is only a preliminary injunction that prevents the implementation of the regulations until a final determination is made, this could very well be a permanent end to the regulations.  A final determination is unlikely to be issued before the inauguration of President Trump, and it seems less likely that the USDOL under the Trump administration will be inclined to continue to vigorously defend the regulations in this litigation.  A more likely outcome is that the USDOL may rescind and reissue the regulations with a less drastic salary increase, or perhaps even not reissue the regulations at all. This development leaves many employers wondering what to do about the employees who have already been told that they will be reclassified from exempt status to non-exempt status beginning next week and the employees who have been told that they will receive salary increases beginning next week in order to maintain their exempt status.  The employees who have been told that they will be reclassified from exempt to non-exempt status can certainly be told at this point that they will remain exempt employees (assuming, of course, that their duties continue to qualify them for one of the white collar exemptions).  In addition, from a legal standpoint, nothing would preclude an employer from rescinding the salary increases that were scheduled to go into effect next week for employees who were told that they would receive a salary increase to maintain their exempt status (unless the employer has entered into an employment contract that binds the employer to providing the salary increase).  Obviously, from a human resources standpoint, this will require clear and prompt communication regarding the reason why the salary increase is being rescinded. Employers in New York should also keep in mind that the New York State Department of Labor has proposed a gradual increase to the minimum salary levels to qualify for the executive and administrative exemptions.  If these proposed regulations are adopted, the first salary increase will occur on December 31, 2016.  Employers outside of New York City, Nassau, Suffolk, and Westchester Counties will be required to pay a minimum salary of $727.50 per week to executive and administrative employees.  Employers in New York City who employ 11 or more employees will be required to pay a minimum salary of $825.00 per week to executive and administrative employees.  Employers in New York City who employ 10 or fewer employees will be required to pay a minimum salary of $787.50 per week to executive and administrative employees.  Employers in Nassau, Suffolk, and Westchester Counties will be required to pay a minimum salary of $750.00 per week to executive and administrative employees.  These amounts will increase each year.  There is still no minimum salary under New York law to qualify for the professional exemption even under the new proposed regulations.  We will provide an update regarding whether these proposed regulations become final regulations.

On October 28, 2016 the United States Supreme Court agreed to review the Fourth Circuit’s decision in Gloucester County School Board v. G.G. This case is about whether a Virginia School Board’s policy limiting students’ bathroom access to facilities that correspond to students’ biological gender is discriminatory. The case was brought by the ACLU, on behalf of transgender student G.G., alleging the School Board’s policy violates G.G.’s rights under the Constitution’s Equal Protection Clause and Title IX of the Education Amendments of 1972, and is inconsistent with U.S. Department of Education Office for Civil Rights (OCR) guidance stating that school districts should treat students consistent with their gender identities. While the Fourth Circuit held that OCR guidance, while not law, deserved deference on this issue it stopped short of holding that the School Board’s policy violates Title IX’s protections against sex discrimination.  On August 29, 2016, the School Board petitioned the Supreme Court for review. In response the Supreme Court stayed the Fourth Circuit’s decision, thus keeping the School Board’s policy in place while it considered whether it would review the case. A decision by the Supreme Court here will not just determine whether this Virginia school board’s policy violates federal civil rights laws. A decision will impact similar transgender policies, laws, and cases under scrutiny in North Carolina, Texas, and elsewhere. This case is further meaningful for the education community as it may provide clarity on the scope of Title IX’s sex discrimination protections and the appropriate weight to afford OCR interpretation of Title IX and other statutes. For more background on Gloucester County School Board v. G.G. see our previous post here.

The Internal Revenue Service ("IRS") recently notified a major university that it is being audited, and as part of that audit requested copies of the employment agreements of the president of the university, the provost of the university, and the head coaches of the University’s football team, men’s basketball team, and women’s basketball team. This audit is a reminder to higher education institutions of the importance of making sure that all of their employment agreements and appointment letters fully comply with all of the tax and benefit requirements that apply to such agreements and letters. A failure to comply with these requirements could result in serious adverse tax and benefit consequences for the higher education institution, and for the employees covered by such agreements and letters.

What Are Some of the More Important Tax and Benefit Issues That Should Be Reviewed in the Employment Agreements and Appointment Letters of Higher Education Institutions?

Among the more important tax and benefit issues that should be reviewed in the employment agreements and appointment letters of higher education institutions are the following:

• Compliance With the Deferred Compensation Requirements – The deferred compensation requirements in Sections 409A and 457(f) of the Internal Revenue Code ("Deferred Compensation Requirements") have a very broad scope, and affect numerous provisions in employment agreements and appointment letters that often are not considered to be deferred compensation. If an employment agreement or an appointment letter provides for any taxable payment to be made or any taxable benefit to be provided in a future calendar year, that taxable payment or benefit generally should be structured to be exempt from the Deferred Compensation Requirements when reasonably possible (if that is not reasonably possible, it should then be structured to comply with the Deferred Compensation Requirements). A failure to satisfy the Deferred Compensation Requirements could result in serious adverse tax consequences, including (1) possible taxation in the year an employment agreement or appointment letter is signed, including income that is scheduled to be paid or provided in a later calendar year, (2) a possible 20 percent tax on the applicable employee, (3) interest penalties in certain circumstances, and (4) corrected IRS Forms W-2 and Forms 990 in certain circumstances.
• Benefit Issues – If an employment agreement or an appointment letter provides any benefit that is in addition to, or exceeds, the benefits that generally are available to other eligible employees on campus, it is important to verify if (1) such benefit is allowed by the terms of the applicable benefit plan, and (2) whether offering such benefit will violate any nondiscrimination requirements under the Internal Revenue Code ("Code"). A violation of a plan’s terms or a Code nondiscrimination requirement could, in certain circumstances, result in coverage issues for the applicable employee, serious adverse tax consequences for the employee, and/or loss of a plan’s tax-favored status.
• Compliance With the "Reasonable Compensation" Requirements – The Code has excess benefit transaction provisions that require that no more than "reasonable compensation" be paid to certain persons who are in a position to exercise substantial influence over a covered tax-exempt organization. A failure to satisfy these requirements could result in excise taxes on the persons receiving "unreasonable" compensation, and on any officer, trustee or director who knowingly and willfully approved the "unreasonable" compensation. In egregious circumstances, the tax-exempt status of an organization could be revoked. Some states also have separate "reasonable compensation" requirements.

What Are Examples of Provisions In Employment Agreements and Appointment Letters That Are Subject To the Deferred Compensation Requirements?

Examples of provisions in employment agreements and appointment letters that potentially could be subject to the Deferred Compensation Requirements, and that generally should be structured to be exempt from the Deferred Compensation Requirements when reasonably possible (such structuring often will require additional language to be added to an employment agreement or appointment letter), include the following:

• Salary Provisions – a salary provision that provides for salary payments to be made in a future calendar year;
• Bonus or Incentive Compensation Provisions – a bonus or incentive compensation provision that could result in a bonus or an incentive compensation payment being paid in a future calendar year;
• Non-Exempt Benefits That Are Taxable – any non-exempt benefit that could result in a taxable benefit or payment being provided in a future calendar year, such as personal use of an automobile or personal use of a club membership (certain types of benefits are exempt from the Deferred Compensation Requirements, and nontaxable benefits are also exempt from the Deferred Compensation Requirements);
• Sabbatical Leaves – sabbatical leaves that result in taxable payments being made in a future calendar year;
• Certain Housing Benefits – any housing benefit that is taxable in a future calendar year (even though some housing can be provided on a tax-free basis if certain requirements are satisfied, the IRS has taken the position that some of the expenses that often are incurred with respect to such housing are personal expenses that are taxable);
• Expense Reimbursements That Are Taxable – any reimbursement of a business expense or other expense that is taxable and that could be paid in a future calendar year, such as a taxable reimbursement of spousal travel expenses (nontaxable expense reimbursements are exempt from the Deferred Compensation Requirements);
• Termination or Severance Payments – any termination or severance payments made in a future calendar year, such as payments owed after a termination without cause that are scheduled to be paid in a future calendar year (if a release agreement is required, the Deferred Compensation Requirements could also apply to the timing of payments made pursuant to that release agreement in certain circumstances);
• Other Provisions Providing Taxable Payments After Employment Ends – other provisions that provide taxable payments after employment ends and in a future calendar year (e.g., payments in a future calendar year for consulting services or for moving expenses); and
• Indemnification Provisions – indemnification provisions that provide for the possible reimbursement of certain expenses in a future calendar year.

Consideration should be given to adding a construction clause in each employment agreement (and in certain appointment letters when it would be helpful) that provides that the agreement or letter is intended to comply with any applicable Deferred Compensation Requirements, and should be construed in a manner that is consistent with the intent that the agreement or letter not be subject to the premature income recognition or adverse tax provisions of the Deferred Compensation Requirements. The IRS has indicated that it will give deference to such a construction clause in certain circumstances.

Each employment agreement and appointment letter should have language reserving the right of the university or college to withhold any required taxes with respect to any taxable payment or benefit described in the agreement or letter.

What Are Some of the More Important Benefit Issues That Should Be Addressed In Employment Agreements and Appointment Letters?

Among the more important issues that could arise when a benefit is being provided in in an employment agreement or an appointment letter is the extent to which the benefit is: (1) taxable; and (2) different than what is generally available to other employees on campus.

If a benefit is taxable and payable in a future calendar year, it generally should be structured to be exempt from the Deferred Compensation Requirements whenever reasonably possible. If it is not reasonably possible to structure the benefit to be exempt from the Deferred Compensation Requirements, it should be structured to comply with the Deferred Compensation Requirements.

If an employment agreement or appointment letter is providing a benefit that is different than what is generally available to other employees on campus, it is important to first check the terms of the applicable benefit plan, program, or policy to make sure the university or college has the authority to provide such a benefit (e.g., if an employment agreement or appointment letter is providing health or retirement benefits during a period when the applicable employee is not rendering any services, the terms of the applicable health or retirement plan should be reviewed to verify that benefits can be provided at a time when no services are being rendered). Such verification is especially important if the applicable benefit is being provided pursuant to a tax-favored retirement plan (a failure to follow the terms of a tax-favored retirement plan could jeopardize the tax-favored status of that plan) or an insured plan (e.g., a failure to comply with the terms of an insured health plan could result in an insurer refusing to provide coverage). It also is important to determine whether any different benefit that is being offered is subject to nondiscrimination requirements under the Code. Such nondiscrimination requirements generally preclude the applicable benefit being provided in a way that discriminates in favor of highly compensated employees, highly compensated individuals, or key employees (depending upon the applicable benefit). Examples of benefits that are subject to such nondiscrimination requirements include:

• tax-favored retirement plans (e.g., tax-sheltered annuity plans under Section 403(b) of the Code, and qualified retirement plans under Section 401(a) of the Code);
• self-insured health benefits (the Affordable Care Act imposed similar nondiscrimination requirements on insured health plans, but the IRS has issued a moratorium on those requirements until such time as it specifies otherwise);
• qualified tuition reduction benefits that provide free or discounted tuition benefits to employees, spouses of employees, eligible dependents of employees, and certain other persons if the requirements of the Code are satisfied;
• group-term life insurance benefits;
• pre-tax benefits under a cafeteria plan (including separate nondiscrimination requirements for dependent care assistance benefits and health flexible spending account benefits);
• educational assistance plans (under Section 127 of the Code);
• no-additional-cost service benefits and qualified discount benefits; and
• adoption assistance benefits.

What Are Some of the More Important Steps Covered Universities and Colleges Should Take To Comply With the "Reasonable Compensation" Requirements?

To the extent a university or college is subject to the "reasonable compensation" requirements under the Code, it will want to take the following steps, among others, to comply with those "reasonable compensation" requirements:

• identify which employees and other persons have the type of substantial influence necessary to be subject to the "reasonable compensation" requirements (such employees and persons are referred to in the statute as "Disqualified Persons");
• assemble appropriate comparability data regarding the total compensation and benefits being paid to similar persons at comparable organizations;
• arrange to have a properly authorized body of the university or college review the appropriate comparability data for each Disqualified Person, and, after confirming that no member of the authorized body has a conflict of interest, make a decision as to whether the total compensation and benefits being provided to each Disqualified Person are reasonable; and
• document, in a timely and proper manner, any decision made regarding the reasonableness of compensation paid to a Disqualified Person.

Any university or college subject to these "reasonable compensation" requirements generally should have written procedures in place that will help ensure that the required "reasonable compensation" analysis is done whenever there is an increase in compensation or benefits for a Disqualified Person. Certain state universities and colleges are exempt from these "reasonable compensation" requirements.

Some states have implemented reasonable compensation requirements, and to the extent those requirements are applicable they also will need to be taken into account.

The Supreme Court of the United States has denied both the NCAA’s and plaintiffs’ petitions for certiorari in the O’Bannon case.  The parties had petitioned for review of the United States Court of Appeals for the Ninth Circuit’s decision issued in September 2015. In that decision, the Ninth Circuit sided with the NCAA by vacating that portion of the District Court’s decision that would have required the NCAA to allow member institutions to pay limited deferred compensation to student-athletes for the use of their names, images and likenesses. At the same time, the Ninth Circuit also partly favored plaintiffs by upholding that part of the District Court’s ruling that enjoined the NCAA from enforcing its rules precluding member institutions from providing athletic scholarships up to the full cost of attendance. The Supreme Court’s denial, which signifies only that it declined to review the case and not that it agreed with the Ninth Circuit’s decision, means that the Ninth Circuit’s decision will stand unchanged.

Citing the ongoing nationwide dialogue on law enforcement-community relations, racial justice and officer and public safety, on September 8 the U.S. Department of Education (in coordination with the Justice Department) released a Dear Colleague  Letter providing guidance to colleges and universities with respect to its expectations for campus policing.   In the main, the guidance encourages institutions to adopt and implement “applicable” recommendations from the Final Report of the President's Task Force on 21st Century Policing .   As noted by the Department, the Task Force Report covers topics including  “changing the culture of policing, embracing community policing concepts, ensuring fair and impartial policing, focusing on officer wellness and safety, implementing new technologies, and building community capital.” The Department encourages institutions to use the Task Force Report as a “template for self-assessment and organizational change,” with adjustments appropriate to context (for example, suggesting that in the campus environment, community engagement efforts should include diverse members of an institution’s campus community such as students, faculty, staff, and administrators, as well as community advocacy groups with relevant expertise). The Department’s guidance also reiterates institutions’ security-oriented obligations under the Clery Act and applicable federal civil rights statutes.

The National Labor Relations Board (Board), in Columbia University , has issued a 3-1 decision holding that graduate, and undergraduate, student assistants are common law employees within the meaning of the National Labor Relations Act and therefore are eligible to organize and bargain collectively under federal labor law.  In so doing, the Board overruled its 2004 determination in Brown University.    Board Member Miscimarra wrote a lengthy dissent, arguing that the educational nature of the relationship between student and educational institution should dictate that student assistants are not employees and therefore they should not be eligible to organize and bargain collectively. After much speculation, and following an invitation for briefing in December 2015, the NLRB rejected the Brown holding that graduate assistants cannot be statutory employees because they are “primarily students and have a primarily educational, not economic, relationship with their university.”  The Board first noted that it has the statutory authority to treat student assistants as statutory employees.  The Board applied a common law test and indicated that when student assistants perform “work,” at the direction of a college or university, for which they are compensated, a common law employment relationship will be deemed to exist and the students will be eligible to organize and bargain collectively. The Board indicated that the new test will apply to all student assistants, including graduate assistants engaged in research funded by external grants (and subject to the conditions of those grants). The Board also determined that the petitioned for bargaining unit at Columbia -- which included graduate students, terminal Master’s degree students, and undergraduate students -- constituted an appropriate unit and that none of the petitioned for classifications consisted of temporary employees who should be excluded from the unit.  Finally, the Board remanded the case to the Regional Director for consideration of whether student assistants not currently performing their assistant duties should be eligible to vote based upon a continuing expectation of future common law employment. The Board’s decision was long the subject of speculation and has been anticipated by many commentators. In the wake of the decision, colleges and universities should anticipate increased organizing activity on their campuses and will have the obligation to bargain with units comprised of student assistants if they are recognized after an NLRB election.  Given the breadth of the Board’s decision, and the potential units that could be petitioned for by unions, this decision has the potential to represent a significant challenge if broad units of student assistants are voted in and certified under NLRB procedures.

On August 21, 2016, in a case entitled State of Texas et al. v. United States of America et al ., Judge Reed O’Connor of the United States District Court for the Northern District of Texas issued a nationwide preliminary injunction prohibiting the United States government (specifically, the Office for Civil Rights of the Department of Education (“OCR”), the Department of Justice (“DOJ”), the Department of Labor and the Equal Employment Opportunity Commission) from enforcing the terms of the May 13, 2016 Dear Colleague Letter issued by OCR and DOJ. As institutions are aware , the Dear Colleague Letter articulated OCR’s and DOJ’s interpretation of Title IX and its implementing regulations as requiring K-12 schools, colleges and universities to treat a student’s gender identity as the student’s “sex” for purposes of Title IX’s prohibition against discrimination based on sex, and described several areas where schools and institutions must provide transgender students with equal access to education programs and activities “even in circumstances in which other students, parents and community members raise objections or concerns.” In reaching its decision, the Court found that there was a likelihood that the plaintiffs (13 states and two school districts) would prevail on their claim that the Departments’ interpretation of Title IX is contrary to the plain language of the statute and its implementing regulations, and is therefore incorrect as a matter of law. Specifically, the Court determined that the term “sex,” as understood at the time that the statute and regulations were initially adopted, was understood to refer to an individual’s biological sex, rather than the individual’s gender identity. Perhaps more significantly, in an aspect of the decision that could impact OCR’s enforcement strategy in other areas, the Court also determined that OCR and DOJ were required to comply with the federal Administrative Procedure Act (the “APA”) prior to issuing the Dear Colleague Letter, and that their failure to do so rendered the Dear Colleague Letter invalid. By way of background, the APA requires federal agencies to publish proposed rules in the Federal Register, and to provide the public a period of time to comment on them (this is commonly referred to as the “notice and comment” process). The purpose of this requirement is to enable an agency to consider the perspectives of persons or entities that would be impacted by proposed rules before they are finalized.  However, not every action an agency takes is required to go through the notice and comment process, and the APA specifically excludes from its ambit agency pronouncements that amount merely to interpretations of existing rules (rather than the imposition of new substantive requirements). In concluding that OCR and DOJ were required (and failed) to comply with the APA prior to issuing the Dear Colleague Letter, the Court noted that OCR and DOJ have applied the guidance contained in the Dear Colleague Letter as if it were binding law in a manner different than the underlying regulation had previously been applied, and that the guidance is “compulsory in nature” in that schools must comply with the guidance or be deemed in breach of their Title IX obligations. This decision is obviously significant insofar as it impacts the enforceability of the May 13, 2016 Dear Colleague Letter. However, colleges and universities that have voluntarily implemented measures consistent with the Dear Colleague Letter may certainly continue to do so, unless they are located in states that have adopted legislation prohibiting such action.   Where the decision (or, at a minimum, the reasoning underlying the decision) may have a greater impact is in its potential effect on OCR’s subregulatory guidance with respect to institutions’ obligations to prevent and address sexual violence (e.g., OCR’s April 3, 2011 Dear Colleague Letter  and its April 29, 2014 Questions and Answers on Title IX and Sexual Violence). Although the arguments for and against the validity of OCR’s substantive interpretation of Title IX are different as between these two subject areas, there are certainly parallels between OCR’s use of purported subregulatory guidance on both issues.  Indeed, the District Court noted the impact of the May 13, 2016 Dear Colleague Letter on institutions, as evidenced by the government’s efforts to enforce its requirements, as a significant factor in characterizing it as legislative (and thus subject to the APA) rather than interpretive in nature, and OCR’s enforcement of its guidance on sexual violence is undeniable, with over 250 active investigations at more than 200 institutions currently pending. It is certainly possible, and perhaps even likely, that the federal government will appeal the Court’s decision in State of Texas, and in any event OCR can be expected to assert that the Court’s rationale does not apply to its guidance on sexual violence.  However, the Court’s decision will certainly be used in support of pending litigation challenging the validity of OCR’s guidance on sexual violence, and in connection with congressional efforts to overturn that guidance.  Needless to say, the situation merits further watching.