News for May 18, 2015

Featured this week:

In state law news:

Featured this week:

Doctor's note plus knowledge of workplace incident may have been sufficient notice under FMLA
Disagreeing with a district court's determination that a police officer failed to provide sufficient notice of a serious condition qualifying him for intermittent FMLA leave, the Sixth Circuit, in an unpublished opinion, found that a doctor's note limiting his workday to eight hours together with the employer's knowledge of a serious health-related incident at work (chest pains) provided evidence that his superiors were aware of his potential FMLA-qualifying condition. Further, because he provided sufficient evidence of the elements for a constructive discharge, the appeals court found that he established a fact issue as to whether he was denied a benefit under the FMLA. The grant of summary judgment on his FMLA retaliation claim was reversed as well because a reasonable jury could conclude he was targeted in such a way as to compel him to resign. (Festerman v County of Wayne, 6thCir, May 8, 2015, McCalla, J.)

Female-to-female comments not motivated by sexual desire, hostility toward women
Because they did not show a female supervisor was acting out of sexual desire or motivated by hostility towards women, her comments about her female employee's undergarments and breasts were insufficient to show sexual harassment, the Sixth Circuit ruled in an unpublished decision. Nor did the supervisor's use of nicknames from The Help, comments about Mexicans, and alleged racist screening of staff constitute severe and pervasive conduct. Even taken together, the conduct did not support a "cumulative" hostile work environment claim or rise to the level of a constructive discharge. Accordingly, the court affirmed summary judgment against the employee's multiple federal and state law claims. (Wade v Automation Personnel Services, Inc, 6thCir, May 11, 2015, McKeague, D.)

Older gay pilot didn't bash gays, brag about women; gender stereotype claims stay aloft
Allegations that other pilots frequently and regularly made negative comments about gay flight attendants in particular (and gays in general) and bragged about their sexual exploits with women, while a gay male pilot openly used flight privileges to travel with his male domestic partner, were sufficient to state how he failed to conform to gender stereotypes, a federal magistrate in Colorado found. Refusing to dismiss his complaint, the magistrate also ruled that by submitting allegedly false and derogatory employment reference to prospective employers, his employer took an adverse action under Title VII's discrimination provisions. (Deneffe v SkyWest, Inc, DColo, May 11, 2015, Hegarty, M.)

Jury to sort out whether EMT was fired for poor performance or pregnancy
An EMT who alleged her hours were cut, she was passed over for full-time employment, and was ultimately terminated after she told her employer she was pregnant pointed to "plenty of record evidence" from which a rational jury could find that her employer's stated reason for firing her (poor performance) was pretextual, said a federal district court in Pennsylvania, in denying summary judgment on her Title VII and Pennsylvania Human Relations Act claims. This evidence included a purported comment from the chief that they were considering hiring a full-time EMT because she was pregnant as well as a comment from the assistant chief that she should not be working so many hours. (Hall v Seneca Area Emergency Services, Inc, WDPa, May 13, 2015, Hornak, M.)

Off-duty Facebook post against promoting inexperienced officers had 1st Amendment protection
Two police officers were disciplined for their off-duty Facebook conversation that addressed rookie cops in leadership positions, including "officer safety and questions of liability," but only one officer's comments were speech on a matter of public concern protected by the First Amendment. A federal district court in Virginia found that officer's speech not only protected but its First Amendment interest outweighed his employer's interest because there was no showing his comments either harmed or created a "reasonable prediction of harm" to police operations. However, the police chief was protected by qualified immunity, as the court did not believe that reasonable officials in his position would have known that disciplining the officer for his Facebook post under department policy would violate his constitutional rights, and the city was not liable because it had never ratified the police department's social networking policy. (Liverman v City of Petersburg, EDVa, May 6, 2015, Spencer, J.)

Compliance and protection top employers' list of concerns in annual background screening trends survey
Employers say the single most important employment screening-related challenge they face in 2015 is compliance with ever-changing laws, and the primary reason they conduct background checks is to protect their clients and customers. These are just two of the dozens of findings provided by EmployeeScreenIQ's new report, Employment Screening 2015: Background Screening Trends & Practices, which summarizes the results of the company's sixth annual survey of U.S.-based employers.

Companies don't have pipeline of "ready now" leaders, global Korn Ferry study shows
Korn Ferry has released the third report in its "Succession Matters" series, which shows that a full half of respondents do not feel their organizations have a solid pipeline of "ready now" leadership candidates. The study further showed that less than one-third (32 percent) of business leaders surveyed believe their organizations are doing a good enough job of cultivating "ready now" leaders.

Payroll employment rises by 223,000 in April; jobless rate essentially unchanged at 5.4%
Total nonfarm payroll employment increased by 223,000 in April, while the number of unemployed persons (8.5 million) and the unemployment rate (5.4 percent) were essentially unchanged, the U.S. Bureau of Labor Statistics reported May 8. Job gains occurred in professional and business services (+62,000), health care (+45,000), construction (+45,000), and transportation and warehousing (+15,000).

In state law news:

New NYC law protects against discrimination based on credit history
New York Mayor Bill de Blasio has signed into law legislation that extends protections against discrimination based on consumer credit history to applicants and employees within the city. Effective 120 days after enactment, Int. No. 261-A makes it "an unlawful discriminatory practice for an employer, labor organization, employment agency, or agent thereof to request or to use for employment purposes the consumer credit history of an applicant for employment or employee, or otherwise discriminate against an applicant or employee with regard to hiring, compensation, or the terms, conditions or privileges of employment based on the consumer credit history of the applicant or employee."

New law in Indiana adds protections to prevent termination based on order of protection
On Tuesday, May 5, Indiana Governor Mike Pence approved legislation that amends the Indiana Code concerning labor and safety to protect employees from termination based on an order of protection. The state legislature approved the measure on April 28.

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Special Report

More than one third of employers less likely to interview applicants they can't find online

More than one third of employers (35 percent) say they are less likely to interview job candidates if they are unable to find information about that person online, according to CareerBuilder's annual social media recruitment survey. The national survey was conducted on behalf of CareerBuilder by Harris Poll between February 11 and March 6, 2015 and included a representative sample of more than 2,000 full-time, U.S. hiring and human resources managers across industries and company sizes. Currently, 52 percent of employers use social networking sites to research job candidates, up significantly from 43 percent last year and 39 percent in 2013.

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