News for January 16, 2017

Featured this week:

In state law news:

Featured this week:

Third Circuit finds ‘subgroup’ disparate impact claims cognizable under ADEA, creates circuit split
Citing the Supreme Court and emphasizing that the ADEA prohibits discrimination based on age and not status of being age 40 or older, and creating a split among the circuit courts, the Third Circuit concluded that "subgroup" disparate impact claims are cognizable under the ADEA. Accordingly, a lower court erred in granting summary judgment against ADEA claims by a group of plaintiffs who filed a putative collective action alleging that their employer’s reduction in force (RIF) had a disparate impact on individuals age 50 and over. Reversing in part, the appeals court also found that the district court erred in applying too high of a reliability standard and excluding testimony by the plaintiffs’ statistical expert, though its other evidentiary rulings were affirmed. (Karlo v Pittsburgh Glass Works, LLC, 3rdCir, January 10, 2017, Smith, D.)

Employee proved retaliation for seeking leave to care for autistic child
An employee proved she suffered retaliation for seeking FMLA leave to care for her autistic child, held the Seventh Circuit, upholding a jury verdict. A reasonable jury could find that the company orchestrated her firing because she asked to telecommute two days per week so she could spend some non-work hours taking care of her child, who had been expelled from day care. The FMLA entitled her to take leave necessary "to take care of a very difficult (at times violent) sick child," and evidence at trial supported the jury’s verdict that she was retaliated against for exercising her FMLA rights. On a separate issue, the district court erred in reducing her attorneys’ fee award 20 percent. (Wink v Miller Compressing Co, 7thCir, January 9, 2017, Posner, R.)

Denying remote work and granting paid leave instead may violate FEHA, but not ADA
Dismissing an employee’s ADA discrimination and failure-to-accommodate claims, a federal district court in California noted that an employer is not required to give a disabled employee her preferred accommodation and the employer here had already done more than was required by providing paid medical leave so she could recover from her back problems. However, the motion to dismiss was denied on her disability-related claims under California’s Fair Employment and Housing Act because implementing regulations don’t allow employers to require leave if other reasonable accommodations would allow an employee to work, and here it was plausible the employee could work from home because she had done so in the past. (Ravel v Hewlett-Packard Enterprise, Inc, EDCal, January 11, 2017, Shubb, W.)

Employee fired for taking pictures of intoxicated CEO, not reporting sexual harassment
Although an employer had difficulty explaining exactly how an employee’s conduct violated any of its policies cited in her termination letter, this was not sufficient to show pretext, a federal court in Illinois stated, observing that "it is not absurd that taking photos of an intoxicated CEO in her hotel room at a work event will not fit neatly into a violation of corporate policy." Granting summary judgment against the employee’s Title VII retaliation claim, in which she alleged she was terminated for reporting the sexual harassment of another employee, the court found it undisputed she was fired for engaging in unacceptable and inappropriate behavior. (Donley v Stryker Corp, NDIll, January 6, 2017, Kocoras, C.)

New standard on the way for workplace violence in healthcare, social assistance
On January 10, OSHA held a public meeting on the need for a standard to prevent workplace violence in healthcare and social assistance. The meeting was aimed at supplementing written comments submitted in response to its December 7, 2016, request for information by permitting workers to recount their personal experiences with workplace violence, as well as to provide a forum for a discussion among stakeholders. The agency has also indicated that it will commence rulemaking on a new standard.

Cyber risks to intensify in 2017 with increased cyber espionage, data integrity attacks, according to report
Stroz Friedberg predicts that 2017 will usher in intensified cyber attacks, new regulations and a shift in how businesses approach cyber risk management. Top threats this year include nation state cyber espionage, a rise in data integrity attacks and an increase in attacks harnessing Internet of Things (IoT) devices.

Aon says boosting workers’ retirement savings rates to be primary focus for U.S. employers in 2017
Despite strong participation in employer-sponsored 401(k) plans, few employers (15 percent) are satisfied with their workers’ current savings rates, according to a new report from Aon Hewitt, the talent, retirement and health solutions business of Aon plc (NYSE: AON). In response, employers are focused on increasing savings rates and will continue to expand financial wellbeing programs this year.

Positive online reviews seem to create recruiting advantage, study shows
A recently published academic study finds that companies with positive online employee reviews may hold a recruiting advantage with job seekers as opposed to companies with neutral or negative reviews.

Unemployment rate of 4.7% shows little change in December, BLS reports
Total nonfarm payroll employment rose by 156,000 in December, and the unemployment rate was little changed at 4.7 percent, the U.S. Bureau of Labor Statistics reported January 6. The number of unemployed persons, at 7.5 million, was also little changed. However, both measures edged down in the fourth quarter, after showing little net change earlier in the year.

In state law news:

NY Gov. Cuomo signs executive orders to ensure pay equity in state employment and on state contracts
New York Governor Andrew M Cuomo signed two executive orders on January 9 to ensure pay equity in state employment and on state contracts.

DC Council approves ban on credit information inquiries in employment
The District of Columbia Council has approved a measure that amends the employment discrimination provisions of the D.C. Human Rights Act of 1977 to bar employers, employment agencies, and labor organizations from taking discriminatory employment actions based on an applicant or employee’s credit information, or from even inquiring into, requesting, or using credit information.

Kentucky “right to work” laws enacted, prevailing wage requirements repealed
In a Saturday session, the Republican-controlled Kentucky Legislature on January 7 passed a so-called "right-to-work" measure that, according to Governor Matt Bevin, will bring the state into line with the rest of the southern states in the manufacturing belt. Lawmakers also approved measures requiring written or electronic authorization for labor organization membership and dues deductions, and repealing prevailing wage rates on public works contracts.

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Current accommodation for employers objecting to contraception coverage will remain unchanged

In FAQs about Affordable Care Act Implementation Part 36, the Departments of Labor, Health and Human Services, and the Treasury (the Departments) have decided not to modify the current accommodation for employers that object to contraceptive coverage on religious grounds. No feasible approach was identified that would resolve the concerns of religious objectors, while still ensuring that women enrolled in the organizations’ health plans have access to coverage of the full range of FDA-approved contraceptives without cost sharing.

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