News for July 20, 2015

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In state law news:

Featured this week:

Failure to follow application process doomed retaliatory failure-to-promote claim
Refusing to reverse summary judgment against the claim of two railroad employees who alleged they were twice denied opportunities for promotion in retaliation for their prior complaints of race discrimination, the Seventh Circuit explained that the first employee did not actually use the application procedures in the first instance and that he failed to show there was an open position in the second instance of alleged retaliation. The second employee’s claims failed for similar reasons (Burks v Union Pacific Railroad Co, 7thCir, July 13, 2015, Kanne, M.).

Denying female director an assistant, requiring witnesses confirm her complaints suggests bias
Allegations that a female director was treated differently than her predecessor and other male directors in that she was denied an assistant for catering events, was required to provide witness statements to support her complaints of misconduct by a male subordinate, and was assigned different duties, sufficiently stated a Title VII sex discrimination claim, determined a federal district court in Maine. The court also refused to dismiss her Title VII retaliation claim. However, her Title VII sex stereotyping claim failed because being told to “play nice in the sandbox” was gender neutral and her state law sexual orientation discrimination and other claims were untimely (Adkins v Atria Senior Living, Inc, DME, July 1, 2015, Woodcock, J., Jr.).

Law firm will answer for treatment of “foreigner” employee
Claims by a former law firm attorney that the partner who hired her repeatedly mocked her accent, treated her “like a foreigner” and never took her “seriously,” and admitted that “we should be ashamed of ourselves” for the firm’s treatment of the employee were sufficient to survive dismissal under New York state and city human rights law for hostile work environment based on national origin and race. The firm will also have to answer to the employee’s breach of contract and implied covenant claims based on its alleged efforts to “squeeze” her out. However, the defendants’ motion to dismiss was granted in part (Grewal v Cuneo, SDNY, July 7, 2015, Abrams, R.).

Transgender professor was in protected class, sufficiently stated HWE claim
Denying a university’s motion to dismiss a hostile work environment claim by a female professor, a federal district court rejected the university’s argument that her Title VII claim failed because transgender employees are not in a protected class. The argument was inapposite because she alleged that the discriminatory actions were based on the employer’s dislike of her presented gender, and gender stereotyping falls within Title VII’s purview. The university’s challenges on the grounds of failure to exhaust and laches were also rejected (United States of America v Southeastern Oklahoma State University, WDOkla, July 10, 2015, Cauthron, R.).

Indeterminate leave is not ‘reasonable’ accommodation required by ADA
Finding that regular attendance was an essential function of an AT&T employee’s job and that a request for extended indeterminate leave—assuming she made such a request—would not be a request for a “reasonable” accommodation, a federal district court in Texas granted summary judgment for AT&T on an ADA failure-to-accommodate claim asserted by an employee whose ongoing, erratic absences led to her discharge. The employee’s retaliation claim also failed as a matter of law (Solis v AT&T, WDTex, July 9, 2015, Guaderrama, D.).

DOL’s proposed white-collar rule open for comments
The Department of Labor’s proposed rule amending the FLSA’s white-collar exemption regulations was officially published in the Monday, July 6, Federal Register, thereby kicking off a 60-day comment period that will close September 4.

Performance recognition, flex-time and paid time-off policies are total rewards programs most favored by employers
Total rewards strategies that empower organizations to attract, motivate, retain and engage employees remain a popular business model in today’s workplace, according to a new survey, "Total Rewards Programs and Practices" by WorldatWork. The idea of total rewards emerged in the 1990s and has accelerated as companies realize they must take a much broader look at external forces such as economics, the labor market, cultural norms and regulatory changes reshaping the workplace.

Employers are considering modifying domestic partner benefits after Supreme Court decision
The June 26, 2015, U.S. Supreme Court decision in Obergefell v. Hodges means that all states must now license same-sex marriages or recognize those performed in other states. A recent International Foundation of Employee Benefit Plans (IFEBP) survey found that slightly half of employers believe the decision will have an impact on their organization.

In state law news:

Kansas governor issues religious freedom EO in wake of Supreme Court’s same-sex marriage ruling
Citing the First Amendment to the U.S. Constitution, the Bill of Rights of the Kansas Constitution, and the Kansas Preservation of Religious Freedom Act, Kansas Governor Sam Brownback has issued an Executive Order to protect religious officials and organizations who refuse to participate in same-sex marriage ceremonies. The question is whether the measure would also permit discrimination based on sexual orientation. Louisiana Governor Bobby Jindal entered a similar EO in May that has drawn an ACLU lawsuit.

‘Fixes’ to California paid leave law now in place
California Governor Edmond G. Brown, Jr., has approved the so-called “fix” to the state’s Healthy Workplaces, Healthy Families Act of 2014, which adds clarification about exactly which workers are covered, how paid time off accrues, and protections for employers that already provide paid sick live to their employees. The governor approved the bill, AB 304, the same day it cleared the state legislature with an urgency provision.

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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.

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Special Report

National Safety Council calls for workplace policies around opioid painkiller use

The National Safety Council is calling on employers to develop workplace policies around the use of opioid prescription painkillers after reviewing research and court cases showing the negative impacts of these medicines on employee safety and worker's compensation costs. Many workers who have taken opioid painkillers following on-the-job injuries have become addicted, suffered additional injuries or fatally overdosed. As a result, courts have ordered employers and worker's compensation insurance carriers to pay for detoxification, medication-assisted treatment and death benefits to surviving family members.

"Employers have a moral and legal responsibility to protect their employees," said Deborah A.P. Hersman, president and CEO of the National Safety Council. "Addressing the use and abuse of prescription painkillers is as important as identifying drug and alcohol abuse in the workplace."

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