News for May 21, 2018

Featured this week: In state law news:
Featured this week:

Divided en banc court delivers fatal blow to ADA suit brought by UPS driver who couldn't work overtime
As a matter of law, a UPS employee could not perform the essential functions of his delivery driver job, or another less strenuous job (that would have required training and was not vacant at the time), since both positions required working overtime as an essential function and his doctor had unambiguously restricted him to eight-hour shifts. In a divided en banc decision, the Eighth Circuit reversed in part the decision of a divided panel, thereby affirming the district court's dismissal of his ADA and state-law claims on summary judgment. The full appeals court agreed that he was undisputedly unqualified for the delivery driver position, and that UPS did not unlawfully deny his temporary request to work only four-hour shifts in another job and it had engaged in the interactive process in good faith. However, three partially dissenting judges would have let a jury decide whether he could have performed the less strenuous job—a position the EEOC also supported in an amicus brief. (Faidley v United Parcel Service of America, Inc, 8thCir, May 11, 2018, Loken, J.)

Events allegedly relegating EPA employee to 'professional purgatory' weren't adverse actions
Rejecting an EPA employee's assertion that he was relegated to "professional purgatory" when his supervisors undermined his authority and placed barriers in his way by excluding him from a meeting where one of his projects was discussed, assigning a briefing paper to his subordinate rather than to him, and allowing one of his agents to work on a project without his consent, the District of Columbia Circuit found these events did not amount to adverse employment actions for purposes of supporting his ADEA claim. Nor could he convince the court to revive his retaliation claim as the 15 months between his filing of a complaint with the EPA's Office of Civil Rights and the alleged retaliatory reassignment of his agents was insufficient to defeat summary judgment, said the court, affirming the decision of the court below. (Drielak v Pruitt, DCCir, May 15, 2018, Randolph, R.)

Ignorance of employee's actual national origin is not free pass for discrimination
A federal district court in Maryland, faced with a claim of national origin discrimination based on a nation of origin that for some employees was only "perceived" and not actual, explained that a perpetrator's ignorance could not be used as a basis "to allow discrimination to go unchecked" by the courts. Thus, where those employees were allegedly discriminated against based on the belief that they were of African origin, even where they were not, they could pursue a national origin discrimination claim under Title VII. The court denied, in part, the employer's motion to dismiss. It also granted a motion to stay filed by the EEOC to allow it to correct an alleged defect in its letter of decision. (EEOC v MVM, Inc, DMd, May 14, 2018, Chuang, T.)

Transgender employees can sue benefits administrator under Title VII
Transgender employees' Title VII claims against the state entities administering health plans and deciding coverage may go forward, held a federal district court in Wisconsin. The employees sued their employer as well as the state entities responsible for administering benefits and deciding on coverage, alleging discrimination because the state employee health plan did not cover gender reassignment surgery. The court found that the employees had standing because although the agency deciding coverage was autonomous from the agency administering benefits, they were related entities. In addition, the administering agency could provide relief that would redress the employees' injuries. And though the entities were not the direct employer of the employees, they were agents for purposes of Title VII by virtue of their role in providing benefits. (Boyden v Conlin, WDWis, May 11, 2018, Conley, W.)

Trump moves to give military spouses a leg up for federal jobs
On May 9, President Trump issued an Executive Order designed to help military families through a boost on the employment front. Under the new EO, titled "Executive Order Enhancing Noncompetitive Civil Service Appointments of Military Spouses," federal agencies will make certain efforts to increase hiring of military spouses.

Apprenticeship task force pushes 'more flexible apprenticeship model'
On May 10, 2018, members of the President's Task Force on Apprenticeship Expansion submitted their report proposing a strategy to create more apprenticeships in the United States through an Industry-Recognized Apprenticeship model—different from the existing Registered Apprenticeship system, about which the Task Force recommended that the Department of Labor should "vet concerns" and take action to make improvements.

SHRM research identifies value of considering people with criminal records for employment
With employers facing recruiting challenges not seen in almost two decades, new research from the Society for Human Resource Management (SHRM) identifies a potentially significant pool of untapped workers. In a research collaboration between SHRM and the Charles Koch Institute, two surveys found that a majority of workers in all roles said they were willing to hire and work with those who have a criminal record.

Real average hourly earnings are unchanged in April
Real average hourly earnings for all employees were unchanged from March to April, seasonally adjusted, the U.S. Bureau of Labor Statistics reported. This result stems from a 0.1-percent increase in average hourly earnings being offset by a 0.2-percent increase in the Consumer Price Index for All Urban Consumers (CPI-U).

CPI for all items rises 0.2% in April as gasoline and shelter indexes increase
The Consumer Price Index for All Urban Consumers (CPI-U) increased 0.2 percent in April on a seasonally adjusted basis after falling 0.1 percent in March, the U.S. Bureau of Labor Statistics reported. Over the last 12 months, the all items index rose 2.5 percent before seasonal adjustment.

In state law news:

NYC Mayor signs 11 bills to combat workplace sexual harassment
On May 11, New York City Mayor Bill de Blasio signed a package of legislation to combat workplace sexual harassment. The Mayor signed 11 bills that will mandate anti-sexual harassment trainings in the public and private sectors; make information about sexual harassment available so more New Yorkers know their rights; require sexual harassment data reporting from city agencies; and expand sexual harassment protections under the New York City Human Rights Law.

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Special Report

Report identifies best practices for I-9 compliance

The US Immigration and Customs Enforcement (ICE) is stepping up enforcement efforts of unauthorized workers by tripling its number of officers and quintupling the number of enforcement actions in 2018. As a result, employers need to be proactive and ensure that they are hiring authorized workers and that their Form I-9 practices are in compliance, says a new XpertHR report. Otherwise, employers may be ICE's next target.

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