Introduction

This annual Legal Compliance Guide provides CUA faculty and instructional staff (tenured and tenure-track faculty, contract faculty, adjunct professors, lecturers, and teaching assistants) with a summary of selected legal issues faced by faculty in higher education today.  The topics included in this year’s Guide are student records, immigration, copyright, independent contractors, disability and sexual harassment.

In addition, this Legal Compliance Guide provides references to related CUA policies and other resources intended to help ensure CUA compliance with the law.  CUA encourages faculty and staff to report violations of any law or policy. Copies of the referenced information may be obtained by contacting the Office of General Counsel (OGC)(ext. 5142), and/or by accessing the Internet links provided. 

Confidentiality of Student Records and Financial information

Federal and District of Columbia regulations are gradually requiring everyone at CUA, including faculty, to be more aware of how we handle confidential personal information, whether for students, their parents or for employees.

FERPA student records law. All persons hired to work at the university, whether as an employee or an adjunct faculty or in any other capacity, are required to understand the law of student educational records, known as the Family Educational Rights and Privacy Act of 1974, or FERPA. At CUA, this law is implemented as the CUA Student Records Policy. There is no substitute for actually sitting down and reading this policy before you begin your interaction with students and their educational records. At the college level, the privacy and access rights to the record belong to the student rather than the student’s parents. Disclosure of information to parents of dependent students is allowed, but only with the approval of the Registrar or after consultation with OGC.

Training through OGC on FERPA is held on a monthly basis for all employees who will have access to Cardinal Student. If you have access to student records through Cardinal Student and have not received this training, please contact the Office of General Counsel at #202-319-5142. (FERPA for Cardinal Student Users is online at http://counsel.cua.edu/ferpa/publications/ and gives a brief overview of the law in a power point presentation, but is not a substitute for reading the CUA student record policy. See also http://counsel.cua.edu/ferpa/questions/ for answers to basic FERPA questions.)

The Gramm Leach Bliley Act (GLB) -- the same one that requires banks and credit card companies to send everyone lengthy notices about privacy policies – also requires colleges and universities to provide special training for all employees who deal with student or parent financial information.  All financial institutions (including CUA and other schools that offer student loans) must also have in place a "safeguarding program" to protect confidential financial information of customers, whether such data is in paper or electronic format.

The CUA Information Security Plan sets out the University's response to this law in detail. Faculty should be especially mindful about assisting CUA in maintaining the security of student social security numbers, which are considered covered data under the Information Security Plan.  An online informational brochure discusses this legal requirement in detail.  Keep in mind that nonpublic, personal information should not be given out by phone or even email to outside vendors or other persons.  If you suspect fraud or an attempt to fraudulently obtain any financial customer information please inform the Office of General Counsel. 

Employee Background Checks. Finally, within the past year, there have been several new legal developments regarding criminal background checks for student. For example, a new D.C. law requires all student volunteers working at any D.C. agency or any agency receiving funds from D.C. to have a background check. More disciplines are beginning to require such checks for students at clinical or internship placements, such as nursing, social work, education and psychology. Students or supervisors at such external placements may contact faculty about these matters. CUA is in the process of developing a written policy and process on student and employee background checks and faculty are encouraged to bring questions or concerns to OGC.

Immigration Law

International students and scholars are an important part of Catholic University’s academic mission, providing a global perspective to the Catholic experience. CUA is fortunate to have a well staffed Office of International Students and Scholars Services (ISSS), with Helene Robertson as the Director and Deirdre Hollingshed as the Assistant Director.

The ISSS determines the visa and employment options for international students, scholars, visitors, and employees that will permit the greatest benefit and flexibility to CUA and to the individual. They work with federal and state government agencies, international organizations, U.S. and foreign consular posts, and public and private entities to obtain appropriate visa documentation for admission to the U.S., authorization for employment, and maintenance of legal status for our international population.

Key points for faculty

• Academic deans and faculty advisors work closely with ISSS to ensure that students maintain a full course of study as proscribed under current immigration regulations. Under federal regulations, ISSS staff on behalf of CUA must report any changes in enrollment, course or level of study, or address within 21 days of the change. A student’s failure to maintain status may result in the immediate cancellation of their legal status in the U.S., canceling any underlying work authorization and rendering them subject to deportation. Institutional failure to comply with reporting requirements may result in the termination of CUA's F or J visa programs and limit the University's ability to sponsor international students and scholars in the future.
• Faculty interested in employing a CUA-sponsored student or scholar in their own consulting business should be aware that such employment may not be possible as this is not considered on campus employment for the purpose of immigration law and could constitute a violation of the foreign national’s immigration status. Faculty are encouraged to discuss their plans with the immigration specialists in the Office of International Student and Scholar Services in advance. For the protection of both faculty and "off campus" research staff, please be sure to strictly follow immigration law requirements. With the heightened scrutiny of non-immigrant visitors by U.S. officials, failure to do so can result in harsh consequences for the university.

Questions about immigration issues can be addressed to ISSS at ext. 5618. See also http://international.cua.edu/.

Fair Use and Copyright in the Year 2005

Has the doctrine of fair use changed over the past ten years? What can professors post on a web page for students? Can someone post a full copy of a newspaper article to a listserv? What about blogs? Is it true that a professor can use no more than 250 words from a longer poem without seeking permission from the publisher?

Copyright questions usually do not have simple answers. For example:

Has the doctrine of fair use changed over the past ten years?

Yes and no. Many are worried that fair use will disappear because of digital rights management and licensing because fair use is a "use it or lose it" proposition. Of equal concern, courts have become more restrictive in interpreting fair use.

Users of information probably have not noticed, however. While a quick glance at what is available online would suggest that perhaps fair use has expanded, that is actually not the case. What has actually occurred is that the content owners such as The New York Times and the Washington Post are licensing use of their materials online even though they may not be charging fees.

See the New York Times Member Center Web Page on Frequently Asked Questions About Rights and Permissions for an example.

Here is a quote from the New York Times Web Page:

Most educators would raise the obvious question: Could I not post the article for one week on my password protected web page for my students under the fair use doctrine, without seeking permission? Does the fact that the New York Times now offers me permission to do the same thing mean that I must always seek permission? In fact, wouldn’t fair use or the TEACH Act cover use of this article for two weeks, if that were the amount of time I needed it for a class discussion? As usual, fair use depends on facts and some important facts in this scenario are that permission is easily available for a limited time, at no cost, and that the reply from the content owner is likely to be instantaneous. The content owner’s effort to make the article available to educators through a reasonably functional market mechanism would likely weigh in favor of the Times in any court case involving failure to seek permission.

This is where "use it or lose it" comes in. Educators may wish to exercise their fair use rights, but until the federal courts issue a decision that strongly supports fair use in the digital environment, users must make a calculated risk assessment before they do so.

What has not changed are the statutory four factors, the purpose of the use, nature of the work used, amount of the work used, and effect on the market for the work. For more on this see Your Copying Rights under Copyright Law on the Office of General Counsel web page. Fair use depends on the balance among these four statutory factors and the OGC is happy to discuss these factors with all faculty members.

What can a professor post on a web page for students?

Professors have two options for providing electronic access to students in their classrooms: they can create their own web pages, either with internet or intranet only access, or go to the Mullen Library and ask that information be made available through the e-reserve system. The Mullen Library Copyright Information web page provides information about e-reserves. Professors can also link to articles that are already up on the web without incurring copyright liability.

Examples

Do you want to ask your students to read the 1956 New York Times book review by W.H. Auden of Tolkien’s Return of the King? It is freely available on the web for all to see, courtesy of the New York Times, and you can link to it from your web page. If this article was not freely available on the web, could you have retrieved this article from the LEXIS NEXIS database in ALADIN and posted it on a publicly available web page? No, not without permission, because CUA’s license to use materials in ALADIN does not permit us to post articles on publicly available websites.

Thankfully, book reviews and scores of other materials are available in licensed databases available to students and staff where the terms of the licensing agreement determine what we may do with the contents. The LEXIS NEXIS contract referred to above requires students to use their password to access the materials, rather than permitting the professor to post the article on an intranet web page. For articles that are available through one of the libraries’ databases, the e-reserve system links users into ALADIN through Blackboard, where students enter their authorization code.

For an example of faculty web pages that contain course readings online see

the following:

Fall 2004: Advanced Problems in Copyright and IP Policy: University of Texas-Austin: Instructor: Georgia Harper.

Spring 2004: Copyright Law: Professor Susanna Frederick Fischer: The Catholic University of America

Is it true that professors can use no more than 250 words from a longer poem without seeking permission from the publisher?

Copyright law contains no numerical limits. Most such numerical limits come from a 1976 agreement between the publishing industry, educators, and librarians about what they thought would qualify as nonprofit educational fair uses. Their agreement was quoted in the Congressional Record as part of the legislative history of the 1976 Copyright Act. Known as the "Classroom Guidelines" they are best understood as a "safe harbor" created quite a long time ago for users who were confused about what amount of copying was permissible under the statute’s four factors, and who were "risk averse."

While the Classroom Guidelines appear to provide bright line certainty with their crisp numbers and have been widely used and quoted (that was the idea), the numbers are unrealistically small and their use is a poor substitute for understanding and engaging in the ongoing debate about copyright law. In addition, the content industry did not actually agree not to sue people who rely on the Guidelines, so they are not even the "safe harbor" they were supposed to be.

Widespread licensing of digital databases will likely undermine use of the Guidelines just as it will likely undermine reliance on fair use.

Making Copies, a guide on the Office of General Counsel web page, provides faculty a simple guide to the process of deciding whether a proposed use is fair. The Office of General Counsel web page also provides a number of articles on copyright law. The class readings listed on Professor Fischer’s and Attorney Harper’s web pages offer in depth material on the topic.

Independent Contractors

The university's policy on contracting requires that all contracts binding the university be reviewed by the Office of General Counsel.  One type of contract that has repeatedly caused confusion on campus is the Independent Contractor Agreement.  There are important legal distinctions between a worker hired by CUA as an "employee" and one hired as an "independent contractor."  In addition to having implications for immigration compliance, safety training, workers compensation insurance, benefits and other issues, there are important tax consequences under Internal Revenue Service (IRS) regulations.  Accordingly, the IRS has strict rules about the circumstances under which anyone can be hired as an independent contractor.  Under any circumstance, no one can even begin any work on behalf of the university unless they are hired as an employee by completing the Employee Data Form or applicable academic appointment process, or unless they have a fully executed and approved Independent Contractor Agreement in hand. 

If supervisors and Principal Investigators authorize persons to do work for the university, and then process the worker's invoice for payment through the Accounts Payable and Business Services offices once the work is underway or has even been completed, this exposes the university to serious legal liability under immigration, tax, OSHA and other federal regulations. 

Independent Contractor hiring process

• For workers who are to be hired as employees, either on an Employee Data Form or on an Appointment to Research Staff form, follow the procedures already in place for those forms.  Whether a person should be hired on one form or the other and the basis on which they can be paid (e.g., as an hourly employee or on a monthly basis) can be decided by the Office of Sponsored Programs and Research Services or the Office of Human Resources.
• For workers who are proposed to be hired as Independent Contractors (that is, not on an Employee Data Form, Appointment to Research Staff form but rather individuals who will have invoices for hours worked processed through the Business Services/Accounts Payable area), the proposal must first be reviewed by the Office of General Counsel. 
• No person should be allowed to begin any work on behalf of the university, whether on campus or off, as an employee until they have been approved for work by either the Office of Human Resources or the Office of the Provost and have completed an I-9 immigration form.  In the case of Independent Contractors, a worker should not begin work until an agreement approved by the Office of the General Counsel has been properly executed.

The goal of the Office of General Counsel in all contract review is always to provide timely service while assuring all agreements meet reasonable university requirements for legal compliance, good business practices and necessary insurance coverage. 

To facilitate the contract review process, we recommend that you first contact the General Counsel to determine whether the proposed hiring arrangement is permissible under federal tax law and university policy.  Once a proposed arrangement has been approved, the General Counsel has form contracts online at http://counsel.cua.edu/cuaspecific/contractreview/

Disability Law

New this year for CUA faculty is a resource page which can be found at http://disabilityservices.cua.edu. A comprehensive guide for faculty on accommodating students with disabilities can be found in a brochure entitled Services and Accommodations for Students with Disabilities. Emily Singer, the Director of the Office of Disability Support Services at 5211 is available to answer questions.

Note that letters may be coming to many faculty from the Office of Disability Support Services if the faculty member has a student in his/her class who will need an accommodation. Faculty are asked to turn in both book lists and syllabi by requested deadlines to the bookstore. This helps ODSS in their task of preparing accessible materials in alternative formats should a student with a disability register for your class.

Disability Awareness Month is October, and CUA will celebrate with a special program

for faculty. Invitations to this event will be sent sometime in early fall.  The Office of Disability Support Services is located in Suite 207 of the Pryzbyla Center. 

Sexual Harassment policy

Finally, just a brief reminder to all instructional staff about the university's policies on sexual harassment.  Our policy has been summarized in a new brochure this year titled Information About Sexual Harassment and Sexual Assault.  The full policy applicable to faculty is found in the Faculty Handbook.  Any supervisor, department chair, dean or administrator who receives or becomes aware of a complaint of sexual harassment should report the complaint to the Director of Equal Opportunity or the Office of the General Counsel as soon as possible and normally within three workdays. 

Any other instructional staff member of the university, including a faculty member, who receives a complaint from a student about sexual harassment, is encouraged to bring it to the attention of his/her supervisor.