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Federal Standard Per Diem Rates Increase for Fiscal Year 2017

XpertHR • August 24, 2016
The General Services Administration (GSA) has announced the per diem rates that apply to the lower 48 Continental United States (CONUS) for the federal government's fiscal year 2017, which begins October 1, 2016.

Ninth Circuit Holds Class Waivers Violate the NLRA, Joining Circuit Split

Jackson Lewis P.C. • August 24, 2016
Requiring class and collective action waivers as a condition of hire or continued employment violates the National Labor Relations Act, the U.S. Court of Appeals for the Ninth Circuit, in San Francisco, has ruled. Morris v. Ernst & Young, No. 13-16599 (9th Cir. Aug. 22, 2016).

NLRB: Failure to Bargain Over Non-Compete Agreement Violated NLRA, But Confidentiality Provision Lawful (Surprise!)

Jackson Lewis P.C. • August 24, 2016
A company’s requirement that new employees represented by a union sign a non-compete and confidentiality agreement (NCCA) as a condition of employment violated the National Labor Relations Act because the NCCA is a mandatory subject of bargaining that could not be unilaterally implemented, the NLRB has held. Minteq International, Inc., 364 NLRB No. 63 (July 29, 2016). However, contrary to its recent inclinations, the Board also found that an individual provisions of the NCCA – concerning confidential information – was lawful.

NLRB Rules Student Employees Can Unionize

Fisher Phillips • August 24, 2016
In a game-changing decision reversing clear legal precedent, the National Labor Relations Board (NLRB) ruled by a 3-1 margin today that university students who work as teaching and research assistants at private universities are “statutory employees” under the National Labor Relations Act (NLRA) and can organize to form unions (Columbia University). The ruling applies to both graduate and undergraduate students who perform work, at the direction of the university, for which they are compensated. It will require private universities to immediately conform their practices to adjust to this new era of labor law.

Federal Judge Blocks Obama Administration’s Transgender Bathroom Policy

Fisher Phillips • August 24, 2016
A federal judge in Texas has dealt a serious blow to the Obama administration’s transgender school bathroom directive, barring the federal order which required schools to allow transgender students to use bathrooms, locker rooms, and other facilities according to their gender identity. U.S. District Judge Reed O’Connor granted a preliminary injunction in an order published late Sunday, August 21, the night before most schools begin their school year in Texas. However, the ruling does not just apply in Texas; it prevents the administration from asserting its guidelines on school districts nationwide.

Key Arguments in Defending a Disability Claim Based on Subjective Complaints

Ogletree Deakins • August 24, 2016
Courts often do not clearly articulate what are key arguments in defending an action under the Employee Retirement Income Security Act of 1974 (ERISA) involving a claim for benefits based on subjective complaints. However, the stars recently aligned and U.S. District Judge Michael W. Fitzgerald of the Central District of California did just that in Haber v. Reliance Standard Life Insurance Company, No. 14-9566, 2016 WL 4154917 (August 4, 2016). He concluded that the plaintiff Orly Haber did not prove that her upper extremity pain complaints were severe enough to preclude her from performing an occupation normally performed in the national economy for which she was reasonably suited based upon her education, training, or experience (the “any occupation” standard). This article discusses the key points made by Judge Fitzgerald. The quotes in the subheadings below are taken from Judge Fitzgerald’s opinion.

NLRB Holds That Grad and Undergrad Teaching Assistants at Columbia University Are “Employees”

Ogletree Deakins • August 24, 2016
In a 3-1 decision, the National Labor Relations Board (NLRB) held that “student assistants who perform work at the direction of their university for which they are compensated are statutory employees.” In The Trustees of Columbia University in the City of New York and Graduate Workers of Columbia–GWC, UAW, 364 NLRB No. 90, the NLRB also rejected the argument that imposition of collective bargaining on such students would improperly intrude into the educational process and expressly overruled Brown University, 342 NLRB 483 (2004). Chairman Pearce, Member Hirozawa, and Member McFerran comprised the majority, and Member Miscimarra wrote a strenuous dissent.

White House Announces Release of Final Contractor Blacklisting Rules: Phased Implementation for Prime Contractors and Subcontractors

Ogletree Deakins • August 24, 2016
The long wait for the so-called “contractor blacklisting” rules is over. According to a fact sheet released by the White House, final regulations and guidance will be released on August 24, 2016 and published in the Federal Register on the following day. The final regulations and guidance (the final rules) are being issued by the Federal Acquisition Regulatory Council (FAR Council) and the U.S. Department of Labor (DOL) to implement Executive Order No. 13673, Fair Pay and Safe Workplaces (EO 13673), which President Obama signed in July 2014. In addition, the president also amended EO 13673, just before the White House’s blacklisting announcement, to add language that seems intended to better insulate the final rules against litigation challenging their constitutionality and their conflict with other federal statutes. Based on the White House’s summary and the amended executive order published on the White House’s website, here is what we know about the contours of the final rules:

EEO-1 Reports: Time for Employers to Get in Formation

Littler Mendelson, P.C. • August 24, 2016
This is the time of year when employers with 100 or more employees and federal contractors with 50 or more employees must prepare and file their annual EEO-1 reports – documents that provide the government with details regarding employee counts and demographics for every company location. In this article, we will explain why all employers should be careful to correctly answer the EEO-1 questions relating to federal contractor status, discuss how all employers should prepare for required compensation reporting beginning in 2018, and advise federal contractors how to prepare their EEO-1 reports so as to avoid future audit headaches.

Ninth Circuit Finds Arbitration Agreement That Required Employees to Bring Claims in “Separate Proceedings” Illegal Under the NLRA

Littler Mendelson, P.C. • August 24, 2016
On August 22, 2016, in Morris et al. v. Ernst & Young, LLP,1 a panel of the U.S. Court of Appeals for the Ninth Circuit followed the lead of the National Labor Relations Board (“NLRB”) and the U.S Court of Appeals for the Seventh Circuit in finding that an arbitration agreement that required employees to bring claims in “separate proceedings”, thereby prohibiting class and collective actions, violated the employees’ right to engage in concerted activity under the National Labor Relations Act (NLRA). Previously, the only appellate court to adopt the NLRB's position first announced in D.R. Horton2 was the Seventh Circuit in Lewis v. Epic-Systems Corp., while several other Circuits had decisively rejected it.3

Holding Class Waivers Violate the NLRA, Ninth Circuit Joins Circuit Split

Jackson Lewis P.C. • August 24, 2016
Requiring class and collective action waivers as a condition of hire or continued employment violates the National Labor Relations Act, the U.S. Court of Appeals for the Ninth Circuit, in San Francisco, has ruled. Morris v. Ernst & Young, No. 13-16599 (9th Cir. Aug. 22, 2016).

The NLRB Opens the Door to Union Organizing Among Teaching Assistants and Other Student Assistants at Private Colleges and Universities

Franczek Radelet P.C • August 24, 2016
In what will come as no surprise to even the most casual labor law observer, yesterday the National Labor Relations Board jettisoned established precedent and granted teaching assistants and other student assistants at private higher education institutions the right to organize.

Connecticut Public Policy Did Not Mandate Termination of Pot-Smoking Public Maintenance Worker

Jackson Lewis P.C. • August 24, 2016
According to Connecticut’s highest court, the public policy of the state did not require the termination of a state employee who was caught smoking marijuana during work hours. State of Connecticut v. Connecticut Employees Union Independent, (SC 19590) August 19, 2016 (official release date August 30, 2016). Gregory Linhoff, a skilled maintenance worker at the University of Connecticut Health Center, was terminated after a police officer observed him smoking marijuana from a glass pipe in a state van with the door open.
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