Employment Law This Week® – Episode 91 – Week of October 16, 2017

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(1) Sessions Reverses DOJ Stance on Title VII

Our top story: Attorney General Sessions has reversed the Department of Justice’s (DOJ’s) stance on transgender employees. In a letter to all U.S. Attorneys and the heads of all federal agencies, Sessions said that Title VII of the Civil Rights Act (Title VII) does not prohibit discrimination based on gender identity. This reverses previous guidance under the Obama administration and conflicts with the position of the Equal Employment Opportunity Commission (EEOC) and some federal court decisions on the matter. Kate Rhodes, from Epstein Becker Green, has more:

“The reversal of this policy statement has an effect on any pending cases where the issue is whether Title VII encompasses protections for transgender individuals. The Department of Justice is not a party to many of these cases but, based on its prior actions earlier this year, has shown a willingness to file amicus briefs asserting its position on the federal employment laws even if it is in contradiction to the EEOC’s position. So, I think we can anticipate going forward, the Department of Justice will continue to show willingness to intervene in cases which it’s not a party, to really hammer this point home.”

(2) Trump Administration Narrows ACA Contraception Mandate

The Trump administration broadened exceptions to the Affordable Care Act (ACA) contraception mandate. The Health and Human Services Department has issued new interim rules aimed at expanding employers’ ability to exempt themselves from the ACA’s requirement that employer health insurance programs provide coverage for birth control. Effective immediately, employers subject to the ACA’s mandate, both nonprofits and for-profit companies, can exclude birth control from their plans where they have “sincerely held religious beliefs or moral convictions” against contraception. The move immediately prompted two lawsuits, both in a California district court. Other groups have announced plans to take action as well.

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(3) High Court Hears Class-Action Waiver Arguments

It looks like the U.S. Supreme Court is divided on class-action waivers. The High Court kicked off its new session with oral arguments on a key employment issue: class-action waivers in employee arbitration agreements. The justices seemed to focus on whether class-action waivers in arbitration agreements deprive employees of their right under the National Labor Relations Act (NLRA) to act collectively by requiring them to arbitrate their claims on an individualized basis and barring class claims. For the second time this term, government lawyers argued both sides of the case, with National Labor Relations Board General Counsel Richard Griffin, an Obama appointee, arguing that such waivers violate the NLRA and Deputy Solicitor General Jeffrey Wall arguing that the Federal Arbitration Act trumps the NLRA.

(4) Rhode Island Adopts Paid Sick Leave Policy

Statewide paid sick leave is coming to Rhode Island. Starting July 2018, Rhode Island employers with 18 or more employees must offer paid sick and family leave to workers. According to a new law, employers will need to provide at least three paid sick days per year in 2018, rising to five days in 2020. Rhode Island is the eighth U.S. state to guarantee paid sick leave for workers. There are now 39 cities, counties, or states that have passed paid sick leave laws.

(5) Tip of the Week

Danielle Holley-Walker, Dean of Howard University School of Law, provides some advice on best practices in mentoring for leadership:

“Offering mentorship programming focused on leadership can help increase the development of diverse employees. Have the mentees in your program identify their strengths and weaknesses, which will help prepare them for the mentorship program. Next, teach mentees to be proactive in communicating and asking for feedback. Help them to understand that the relationship is a two-way street—they have to do their part. Finally, encourage your senior mentors to use their network. Help provide connections for the mentees outside of your organization. This will help younger employees further develop their skills to become future leaders.”

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These materials have been provided for informational purposes only and are not intended and should not be construed to constitute legal advice. The “Tip of the Week” offers one perspective on possible human resource ideas or business practices. It presents the perspective of an individual not affiliated with Epstein Becker Green and should not be considered legal advice. The content of these materials is copyrighted to Epstein Becker & Green, P.C. EMPLOYMENT LAW THIS WEEK® is a registered trademark of Epstein Becker & Green, P.C. ATTORNEY ADVERTISING.

Signature HealthCARE: Graham-Cassidy Opposition

When Congress proposed a bill to repeal and replace the Affordable Healthcare Act, the proposed bill contained cuts to Medicaid funding. Signature HealthCARE knows how important Medicaid assistance is for a vast majority of it’s residents. In opposition of the bill, the started a petition drive to let the leaders on Capitol Hill know just what they thought of the new legislation. After acquiring 10,000 signatures, they sent a team to Washington D.C. to deliver the petitions.

Repeal & Whatever

You can see more cartoons and go behind-the-scenes here: https://www.patreon.com/markfiore
After trying varying degrees of cruelty with their replacement for the Affordable Care Act, it looks like Congressional Republicans may be throwing in the towel. Or not. They may try another last ditch effort that will satisfy a cold-hearted Senator Ted Cruz while at the same time appeasing a senator like Susan Collins of Maine. Balancing cruelty and extremism with more traditional conservative values sure is a difficult thing to do.

Meanwhile, Donald Trump continues to exhibit all the legislative finesse of a MOAB. One day he wants to let Obamacare die while unleashing a tweet storm denying any personal responsibility, the next day he orders senators back to the negotiating table. (This, just one year after his “I alone can fix it” speech at the Republican National Convention.)

My guess is that Republicans in Congress won’t get their act together to pass their beloved “repeal & replace” bill and will instead try to kill the Affordable Care Act in thousands of smaller ways. Death by a thousand cuts because, you know, taxes. Enjoy the cartoon and be sure to visit me: https://www.patreon.com/markfiore