News for October 16, 2017

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Given context, term 'boy' and 'you' people suggested racial hostility; HWE claim revived
Use of the terms "boy" and "you people" by supervisors and a coworker known as the "grand wizard" suggested racial animus toward an African-American employee, who also claimed that supervisors used the "N-word" to gauge his reaction and forced him to become overheated in a hot shed while a white coworker sat in an air-conditioned truck. However, though he presented sufficient evidence suggesting he was subjected to an actionable hostile work environment, he failed to show that his disciplinary termination was discriminatory or retaliatory. In an unpublished decision, the Eleventh Circuit affirmed summary judgment against him on his Title VII and Sec. 1981 claims of race bias and retaliation, but reversed and remanded as to his HWE claim. (Cooler v Layne Christensen Co, 11thCir, October 10, 2017, per curiam)

Harm from employer's failure to give injured worker FMLA notice sufficiently alleged
Even though an employer argued that a fired former employee's FMLA claims against it amount to mere technical violations of the statute's notice requirements and should be dismissed, a federal district court in Florida would not dismiss her claims. Failure to provide notice may qualify as actionable interference, restraint, or denial of an employee's rights as long as she demonstrated she was "prejudiced" in some way, such as "some harm remediable by either 'damages' or 'equitable relief.'" The employee pleaded she was damaged by the failure to notify her of her FMLA rights after she was injured from a fall down the stairs at work and required continuing medical treatment, and she sought "actual damages suffered, including back pay, front pay, loss of benefits, future pecuniary loss, and lost future earnings capacity." At the motion to dismiss stage, her allegations were sufficient. (Canigiani v Banc of America Merchant Services, LLC, SDFla, October 3, 2017, Bloom, B.)

Jury to decide Title VII claims by TV station employee fired after refusing to marry CEO
Denying a TV station's motion for summary judgment on a Title VII hostile work environment claim by a former employee, the court found sufficient evidence that the alleged harassment she experienced at the hands of a board member (who was the mother of the CEO) was based on her gender, including demands that the employee marry the CEO and public reprimands when she refused. The employee's retaliation claim based on her termination shortly after she complained to human resources also survived. (Allen v TV One, LLC, DMd, October 4, 2017, Chasanow, D.)

USPS's reliance on letter from employee's wife questioning his mental stability not discriminatory
Prevented from returning to work after a depression-related leave of absence, a postal service worker failed to show his employer's stated reason for its action—concern about his safety based on a letter from his wife questioning his stability—was unlawful disability discrimination. Granting summary judgment against his Rehab Act claim, the court observed that while the employee might question the postal service's decision to elevate his wife's letter above a letter from his psychologist clearing him to return to work without restriction, the question was not whether the decision was wise or correct but rather whether it was discriminatory. (Mitchell v U.S. Postal Service, EDMich, October 4, 2017, Michelson, L.)

Tips for updating handbooks to account for new laws affecting employees in 2018
One of the most common employee handbook mistakes is not updating it each year, says Beth Zoller, JD, XpertHR Legal Editor. This year, lawmakers, particularly those on the state and local level, have been busy enacting laws that directly affect workplace policies and employee handbooks.

Employee reaction is U.S. employers' biggest challenge to pay ratio disclosure rule
One half of U.S. companies say their biggest challenge in complying with the forthcoming pay ratio disclosure rule is forecasting how their employees will react, according to a poll by Willis Towers Watson. The poll also found nearly half of respondents haven't considered how, or if, they will communicate the pay ratio even though employees' reaction to the disclosure is their greatest concern.

Annual Aflac study shows employees continue to lack understanding when it comes to benefits enrollment
Aflac has released the 2017 Aflac WorkForces Report (AWR), which shows that American workers may feel more confident about benefits choices, while admitting a lack of understanding regarding the choices being made. A separate Aflac study found younger workers who may be making benefits decisions for the first time also lack knowledge of health insurance coverage but want to branch out and make independent benefits decisions.

Unemployment rate falls to 4.2% in September, BLS reports
The unemployment rate declined to 4.2 percent in September, and total nonfarm payroll employment changed little (-33,000), the U.S. Bureau of Labor Statistics reported October 6. The number of unemployed persons declined by 331,000 to 6.8 million. A sharp employment decline in food services and drinking places and below-trend growth in some other industries likely reflected the impact of Hurricanes Irma and Harvey.

CPI for all items increases 0.5% in September as gasoline index rises sharply
The Consumer Price Index for All Urban Consumers (CPI-U) rose 0.5 percent in September on a seasonally adjusted basis, the U.S. Bureau of Labor Statistics reported October 13. Over the last 12 months, the all items index rose 2.2 percent.

Real average hourly earnings decrease 0.1% in September, BLS reports
Real average hourly earnings for all employees decreased 0.1 percent from August to September, seasonally adjusted, the U.S. Bureau of Labor Statistics reported October 13. This result stems from a 0.5-percent increase in average hourly earnings being offset by a 0.5-percent increase in the Consumer Price Index for All Urban Consumers (CPI-U).

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Special Report

Three out of four Americans concerned about potential healthcare policy changes

A new survey from the national non-profit Transamerica Center for Health Studies (TCHS) shows that 81 percent of Americans are aware of the healthcare debates in Washington, D.C. and of those, 92 percent are concerned about those changes and 59 percent are very or extremely concerned. Healthcare Consumers in a Time of Uncertainty is an online survey of more than 4,600 Americans, ages 18-64, that was conducted by Harris Poll on behalf of TCHS.

According to the survey, the three biggest fears among Americans are loss of coverage for those with pre-existing conditions; reduction in Medicare coverage for seniors; and no employer mandate to offer healthcare coverage.

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