News for April 4, 2016

Featured this week:

In state law news:

Featured this week:

Walmart’s transfer of stocker with MS to overnight cashier job not adverse action
A Walmart stocker who suffered from Multiple Sclerosis did not experience an adverse employment action when, as a result of job restrictions, she was transferred to an overnight cashier position. While physically less strenuous, the new position had almost identical skill requirements and her acceptance of the job was accompanied by a $.20/hour raise. Because she failed to make out a prima facie case of discrimination, she could not prove that Walmart failed to accommodate her disability, ruled the Eighth Circuit, affirming summary judgment against her ADA and state-law disability bias claims. (Kelleher v Wal-Mart Stores, Inc, 8thCir, March 31, 2016, Kelly, J.)



Whether employee was telling truth about racist comments is jury's call
Whether or not the second-level supervisor who fired an African-American customer service representative (CSR) actually referred to African-American employees as “uppity n****rs” and bragged about how many African-American employees she had fired was a call to be made by a jury, a federal district court in Georgia ruled. Although the employer contended that the employee was fired for poor performance, she presented evidence of several racist statements allegedly made by the company officer as well as evidence of pretext. The employer's motion for summary judgment was granted in part. (Gray v Tri-County Electric Membership Corp dba Tri-County EMC, MDGa, March 25, 2016, Treadwell, M.)



Employee ‘downsized’ shortly after giving birth advances bias claim
An employer’s characterization of downsizing an employee who was on maternity leave—promoting her coworker, filling the coworker’s position with a new employee, and eliminating the employee’s position—could be considered pretext for its unlawful discriminatory intentions, found a federal district court in Illinois, denying summary judgment on her Title VII pregnancy discrimination claim. However, her claim that she was unlawfully discriminated against because she is Hispanic or a woman failed. (Camacho v Gynecologic Specialists of Northwestern, S.C., NDIll, March 25, 2106, Norgle, C.)

Protected activity evidenced by manager’s perception that employee had complained
Noting that the Third Circuit has recognized a perception theory for nearly identical anti-retaliation provisions under the ADA and the ADEA, a federal district court in Pennsylvania entertained a similar argument in a Title VII case brought by a fired transit employee who alleged he was fired because his manager perceived that he was engaging in protected activity. A genuine issue of material fact existed as to whether the manager had that perception. Summary judgment was denied in part. (Braddock v SEPTA, EDPa, March 28, 2016, O'Neill, T.)



USCIS allows another 30 days for comments on proposed Form I-9 revisions
Noting that it had received comments from 133 commenters in its initial 60-day notice on proposed changes to a downloadable "smart I-9 Form," USCIS has extended the public comment period for another 30 days, until April 27, 2016.



Global study finds employee engagement at critically low levels
A comprehensive global study released by the Hay Group division of Korn Ferry shows that there is a critical need to improve employee engagement. The survey found that across all leadership levels, an average of only 36 percent of employees are “highly engaged.”



Unemployment rate holds at 5.0% in March, BLS reports
Total nonfarm payroll employment rose by 215,000 in March, and the unemployment rate was little changed at 5.0 percent, the U.S. Bureau of Labor Statistics reported April 1. Also little changed was the number of unemployed persons (8.0 million).



In state law news:

California governor, legislators, and labor leaders reach agreement to raise minimum wage
California Governor Edmund G. Brown Jr. joined legislators and labor leaders on March 28 to announce a landmark agreement that makes California the first state in the nation to commit to raising the minimum wage to $15 per hour statewide.



Utah enacts law to restrict noncompete agreements
Utah Governor Gary Herbert has signed the Post-Employment Restrictions Act, which will take effect May 10, 2016.





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Special Report

Employees are increasingly dissatisfied with current mix of wages and benefits


While most employees report being satisfied with their current health benefits, there is a long-term trend toward wanting more cash and fewer benefits, according to recent research from the Employee Benefit Research Institute (EBRI). The 2015 Health and Voluntary Workplace Benefits Survey (WBS) found that fully a third would change the current mix of wages and health benefits, which may reflect an intensifying desire for real wage growth, EBRI noted.



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