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Legislative Update

    • EEO:   The U.S. Attorney General Jeff Sessions reversed an Obama-era federal government policy of protecting transgender workers from discrimination in a Memo released earlier today.  In this Memo dated October 4, 2017, the Attorney General stated “the sole issue addressed in this Memorandum is what conduct Title VII prohibits by its terms, not what conduct should be prohibited by statute, regulation, or employer action.  As a law enforcement agency, the Department of Justice must interpret Title VII as written by Congress.”  The Memo further provides, “Accordingly, Title VII’s prohibition on sex discrimination encompasses discrimination between men and women but does not encompass discrimination based on gender identity per se, including transgender status.  Therefore, as of the date of this Memorandum, which hereby withdraws the December 15, 2014 memorandum, the Department of Justice will take that position in all pending and future matters (Except where controlling lower-court precedent dictates otherwise, in which event the issue should be preserved for potential further review).  Please let me know if you would like a copy of this Memo.   
    • NLRB:    William Emanuel was sworn in on September 26, 2017 as a National Labor Relations Board Member for a term ending on August 27, 2021.  Currently, the NLRB has a full 5 Member Board. 
    • DOL:  Bryan Jarrett (management side labor and employment attorney) is now serving as Acting Administrator of the Wage and Hour Division.  This is an acting position as the President’s nominee for the post, Cheryl Stanton, awaits confirmation. 
    • ADA:   In a significant ruling for employers, the U.S. Court of Appeals for the Seventh Circuit has held that a request for a two to three month leave of absence is not a reasonable accommodation pursuant to the ADA.  In this case, the employee exhausted 12 weeks of leave under the FMLA and requested at least 2 or more months of leave to recover from surgery and, after learning that the employee would need a continued multi-month non-FMLA leave, the employer terminated his employment.  The Seventh Circuit rejected the employee’s argument and held the company was not obligated to provide ADA leave to this employee.  You can read more here:  http://www.jacksonlewis.com/publication/ada-does-not-provide-medical-leave-entitlement-worker-seeking-post-fmla-leave-seventh-circuit-holds
    • Supreme Court:  The U.S. Supreme Court heard a one hour consolidated oral argument in three arbitration cases involving the intersection of the NLRA and the FAA on October 2, 2017.  In the three cases heard, the court is asked to resolve a split among the U.S. Courts of Appeals over whether arbitration agreements violate the employees’ rights under the NLRA to engage in concerted activities.  A decision is expected in early 2018.  You can read more here:  http://www.jacksonlewis.com/publication/supreme-court-hears-argument-validity-class-action-waivers-employment-arbitration-agreements
    • DACA:  The Homeland Security Department will stop accepting DACA renewals after midnight tonight. 
    • Joint Employment:  The House HELP Committee voted 23 to 17 to approve the Republican sponsored “Save Local Business Act” which would amend the FLSA and the NLRA to require that a company exert “direct, actual and immediate” control of workers to be their employer.  The bill is designed to reverse several interpretations expanding the definition of “joint employment.”