News for January 3, 2017

Featured this week:

In state law news:

Featured this week:

Hostile work environment claim of employee who claimed coworker constantly stared at her with erection revived
A female employee’s hostile work environment claim was revived on appeal since erroneously excluded evidence suggested that her male coworker’s harassment—including constantly staring at her with an erection—was based on her sex. However, the Eleventh Circuit affirmed summary judgment against her on her retaliation claim since she failed to cast doubt on her employer’s assertion it fired her because, amongst other things, she violated the harassment policy by taking a picture of the coworker’s erection and showing it to others. (Furcron v Mail Centers Plus, LLC, 11thCir, December 16, 2016, Schlesinger, H.)

Deputy clerk fired for refusing to process same-sex marriage loses under Title VII
"Title VII is not a license for employees to perform only those duties that meet their private approval," wrote a federal district court in Indiana, granting summary judgment against a deputy clerk who was fired for refusing a direct order to process a marriage license application by a same-sex couple. The employee’s duties were "purely administrative"—she did not perform the marriage ceremony nor did she personally sign the license. She therefore failed to show that her religious practices were objectively in conflict with her duties. (Summers v Whitis, SDInd, December 15, 2016, Young, R.)

Salary disparities alone won’t support HR manager’s Title VII claims, but some EPA claims survive
Although dismissing the majority of her claims involving salary disparities, a federal court in New York allowed a female African-American HR employee to proceed with her claim that Xerox violated the Equal Pay Act by paying male HR employees more for substantially similar work. Despite the employer’s assertions that the cited comparators differed from the employee in terms of education, work experience and tenure, the employee presented factual issues as to whether the work they performed was substantially similar. But, her EPA claims involving a special program for "high potential" employees were dismissed because she failed to show that the comparators she identified in the program performed substantially similar work. Lacking evidence of discriminatory intent, her Title VII race and sex-based discrimination claims were also dismissed. (McCullough v Xerox Corp, WDNY, December 14, 2016, Larimer, D.)

Did supervisor deliberately mislead African-American employee into not applying for promotion?
If an African-American employee was deceived into not submitting an application for a promotion, she may establish a prima facie case of discriminatory failure to promote even though she never formally applied for the promotion, held a federal court in Pennsylvania, denying summary judgment on this claim. The employee alleged that her supervisor promised to "let you know" when a position as a team lead was officially posted online but then deliberately never told her, so that she would not apply. The employee survived summary judgment on her failure-to-promote claim but not on her discriminatory discharge claim. (Jackson v PNC Bank, WDPa, December 16, 2016, Fischer, N.)

New webpage focuses on employee misclassification
The Department of Labor, continuing its efforts to address the problem of employee misclassification, has unveiled a user-friendly webpage where workers, employers, and government agencies can find information and resources.

New EBSA guidance includes clarification of effect of CURES Act on HRAs
The EBSA has issued Frequently Asked Questions (FAQs) addressing special enrollment for group health plans, coverage of preventive services, and health reimbursement arrangements (HRAs), as impacted by the implementation of the ACA, HIPAA, and the recently-enacted 21st Century Cures Act (Cures Act; P.L. 114-255). The FAQs were prepared jointly by the Labor, Treasury, and Health and Human Services departments.

Fatal occupational injuries increased slightly in 2015 to reach highest level since 2008
The Bureau of Labor Statistics has released a summary of fatal occupational injuries in 2015. A total of 4,836 fatal work injuries were recorded in the United States—up slightly from the 4,821 fatal injuries reported in 2014, but also the highest number since 2008.

Employers optimistic about offering health care insurance, wellness programs despite increases in premiums
Despite significant increases in healthcare insurance premiums (9 percent in 2016 vs. 6 percent in 2015), a recent study from Transamerica Center for Health Studies (TCHS) conducted by Harris Poll found that employers are optimistic about the ability to provide robust benefit packages to employees. In fact, the number of midsize employers offering health benefits to part-time employees has nearly doubled since 2013 (26 percent in 2016 vs. 13 percent in 2013). Plus, more than half of employers expect wages (57 percent) and profitability (65 percent) to increase in the next one to two years.

In state law news:

Employees taking a rest period break can’t be required to remain ‘on call,’ California Supreme Court rules
During employee rest period breaks, employers must relinquish any control over how employees spend their break time, and relieve them of all duties—including the obligation that an employee remain "on call," ruled the California Supreme Court. The state high court found no support for an employer’s argument that the Industrial Welfare Commission (IWC) created through its wage orders a default presumption that employers could impose duties on employees during their rest periods (Augustus v. ABM Security Services, Inc., December 22, 2016, Cuellar, M.).

North Carolina’s controversial transgender bathroom law survives
While the Charlotte City Council upheld its end of a bargain that would guarantee repeal of a controversial state law that had rendered unenforceable Charlotte’s own controversial ordinance extending antidiscrimination protections to LGBTQ individuals and permitted use of public restrooms consistent with an individual’s gender identity, the North Carolina Legislature could not pull off their end of the deal. In a reactionary move in March 2016, Governor Pat McCrory approved H.B. 2, same-day legislation that barred and negated any state or local law extending antidiscrimination protections in employment and public accommodations to transgender individuals. The state law rolled back the newly minted Charlotte ordinance.

District of Columbia council approves generous paid family and medical leave measure
On December 21, by a 9-4 vote, the Council of the District of Columbia approved a generous paid family and medical leave bill that clearly will not be signed by Mayor Muriel Bowser. The measure would provide private-sector employees, and self-employed individuals who opt in, with up to six weeks of family medical leave, eight weeks of parental leave, and two weeks of qualifying personal medical leave within a 52-work-week period.

About this Newsletter

Employment NetNews is a broader look at labor and employment law issues, with both attorneys and HR professionals in mind. Employment NetNews offers timely coverage of breaking legislative developments, regulatory activity, state law changes, key case law and expert commentary by wkl&b editors.

Contact Us

For general questions, contact

If you have comments or suggestions concerning the information provided or the format used, please feel free to contact the Employment editors at

Special Report

Failure to notify employee that proper medical release needed to return to work constituted FMLA interference

A hospital interfered with a nurse’s FMLA rights as a matter of law by failing to notify him that he wouldn’t be restored to his position without a doctor’s return-to-work release, and triable issues existed as to when he was entitled to restoration and if his subsequent discharge for purported performance issues was pretextual, a divided Sixth Circuit panel ruled in an unpublished opinion, reviving his FMLA interference and retaliation claims, which had been dismissed on summary judgment.

New Email/Online Service:
Employment Law Daily

CCH Employment Law Daily is a premium labor and employment law update service that offers daily e-mails, access to an online searchable database, and the option of receiving breaking news alerts throughout the day.

Learn More »