News for January 4, 2016

Featured this week:

In state law news:

Featured this week:

No monetary loss, no actionable FMLA claim
A registered nurse at a group nursing home facility was unable to revive her suit alleging that her employer interfered with her FMLA rights, discriminated against her for taking FMLA-protected leave, or discharged her in violation of public policy. Affirming summary judgment in the employer’s favor, the Eighth Circuit concluded, for one, that the employee had no actionable claim of discrimination based on a month-long paid suspension because she suffered no monetary loss, and the FMLA limits damages to actual monetary loss. (Hasenwinkel v Mosaic, 8thCir, December 29, 2015, Colloton, S.)



Employee not 'qualified individual' after extended absence and certification of total disability
Finding it indisputable that a medical examiner was not a “qualified individual” after an absence of over three months and a doctor's certification that she was totally disabled, the D.C. Circuit affirmed summary judgment in favor of her employer in a lawsuit under the ADA and the D.C. Human Rights Act alleging failure to accommodate. The court also affirmed judgment for the employer on her retaliation claim, finding it provided a legitimate nondiscriminatory reason for terminating her employment and that she would be unable to prove the “actual reason” was retaliation (Minter v District of Columbia, DCCir, December 29, 2015, Garland, M.)



‘Mannish’ behavior, workplace attire support housekeeper’s sex stereotyping claims
Where a hotel housekeeper’s supervisor testified that the housekeeper’s “demeanor” was “a little more mannish,” and a coworker said the supervisor told her she did not want to work with the housekeeper because she “acted too manly,” a federal district court in Michigan found a genuine issue of fact as to whether the housekeeper’s termination was motivated by her failure to conform to traditional gender stereotypes. Denying summary judgment to the hotel, the court expressly did not rely on the housekeeper’s allegations that she was a lesbian and married to another woman because her Title VII claim required gender-nonconforming behavior “observed at work or affecting ... job performance.” The court would not “bootstrap protection for sexual orientation into Title VII” under the guise of a sex-stereotyping claim. (Reed v South Bend Nights, Inc dba Best Western Hospitality Hotel, EDMich, December 22, 2015, Edmunds, N.)



Jury to dissect whether cardiac tech ousted because she was ‘strong woman’
A female certified clinical perfusionist will take her claims of gender discrimination and retaliation to a jury based on the nonrenewal of her contract after she levied substantiated complaints against a favored male perfusionist, a federal district court in Oregon ruled. Evidence that an influential supervisor disliked “strong women” and gave her negative evaluations because she wanted to do things “her way” was sufficient to raise a fact issue on pretext. The employer's motion for summary judgment was granted in part. (Tornabene v Northwest Permanente, P.C., DOr, December 28, 2015, Simon, M.)



NLRB: Whole Foods’ rule prohibiting recordings in the workplace unlawful
An employer’s maintenance of rules in its General Information Guide (GIG) prohibiting recording in the workplace without prior management approval was unlawful, ruled a divided three-member panel of the NLRB. Contrary to an administrative law judge, the Board concluded that the employer’s no recording rules would reasonably be construed by employees to prohibit Section 7 activity. Accordingly, the Board found that the rules would reasonably chill employees in the exercise of their Section 7 rights (Whole Foods Market, Inc., December 24, 2015).



Q&As target discrimination against Muslim and Middle Eastern employees
In the wake of tragic events at home and abroad, the EEOC has issued a call to employers and employees alike to be particularly mindful of workplace harassment, intimidation, or discrimination against vulnerable communities. At the same time, the Commission released two question-and-answer documents explaining federal laws that prohibit employment discrimination against individuals who are, or are perceived to be, Muslim or Middle Eastern.



2016 standard mileage rates released
The IRS has released the 2016 optional standard mileage rates that employees, self-employed individuals, and other taxpayers can use to compute deductible costs of operating automobiles (including vans, pickups and panel trucks) for business, medical, moving and charitable purposes.



Census Bureau releases 2014 annual survey of public employment and payroll data
The U.S. Census Bureau has released statistics from the 2014 Annual Survey of Public Employment & Payroll, which provides a comprehensive look at the number of state and local government civilian employees and their gross payrolls.



In state law news:

Ohio expands “ban-the-box” provisions for public employment
Governor John R. Kasich has signed a “ban-the-box” bill into law. House Bill 56 prohibits public employers from including on an employment application any question concerning the criminal background of the applicant, while also prohibiting a felony conviction from being used against an officer or employee when a public employer is undertaking certain employment practices.





About this Newsletter

Employment NetNews is a broader look at labor and employment law issues, with both attorneys and HR professionals in mind. Delivered to you every Monday, Employment NetNews offers timely coverage of breaking legislative developments, regulatory activity, state law changes, key case law and expert commentary by wkl&b editors.


Contact Us

For general questions, contact http://support.cch.com/contact/.

If you have comments or suggestions concerning the information provided or the format used, please feel free to contact the Employment editors at eld@wolterskluwer.com.

Special Report

Ten employment challenges to pay particular attention to in 2016


Same-sex marriage, lesbian, gay, bisexual and transgender (LGBT) protections, accommodating a diverse workforce, paid sick leave, workplace wearables, and independent contractor rights are among the biggest challenges facing employers in 2016, says XpertHR’s annual report on the “scariest employment issues.” Court cases, legislation and regulatory actions have called into question the very nature of who is considered an employer and who is considered an employee as well as what rights and benefits employees should be entitled to in the workplace.



New Email/Online Service:
Employment Law Daily



CCH Employment Law Daily is a premium labor and employment law update service that offers daily e-mails, access to an online searchable database, and the option of receiving breaking news alerts throughout the day.

Learn More »