News for March 16, 2015

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In state law news:

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Bipolar disorder not obvious from erratic, rude behavior, so ADA claims fail
Because a long-time employee admitted that people skills were essential to her job and she did not disclose to her employer that her recent rudeness was due to her bipolar disorder, let alone suggest accommodations that would allow her to do her job, she failed to show that she was a "qualified" individual under the ADA. Summary judgment was properly granted on her discriminatory termination claim, ruled the Eighth Circuit, which also affirmed summary judgment on her failure-to-accommodate claim because an employer is not required to guess an employee's disability (Walz v Ameriprise Financial, Inc, 8thCir, March 9, 2015, Gruender, R.).

Taxi driver's discrimination claims due to supervisor's inappropriate comments delivered to jury
A discharged taxi cab driver who claimed his supervisor admonished him for praying in his cab; yelled "he's going to blow us all up" while pointing to his fanny pack; and ordered him to "speak English," defeated summary judgment on his Title VII claims of race, religious, and national origin discrimination, a federal district court in Nevada ruled. However, because the employer presented evidence that he was fired, at least in part, because he turned in inaccurate and illegible trip sheets, he could not advance his tortious interference claim asserting he was fired because he filed a workers' compensation claim. He was legally unable to proceed under a "mixed motive" theory but was required instead to demonstrate that his protected conduct was the proximate cause of his firing, which he could not do (Khan v Ace Cab, Inc, DNev, March 9, 2015, Gordon, A.).

$40K award on male employee's quid pro quo, HWE claims upheld
Denying an employer's motion for judgment as a matter of law, or in the alternative for a new trial, following a jury verdict in favor of a male employee on his quid pro quo sexual harassment claim, a federal district court in New York cited evidence that, despite his repeated attempts to break up with the company's president, she kept attempting to get back together with him, told him she would provide for him, and when he refused to continue having sex with her, told him "you should just quit, it is not going to be nice." While the company's motion was also denied as to his hostile work environment sexual harassment claim, the court set aside the jury's verdict on his retaliation claim. After finding that a new trial on damages was unnecessary, the court upheld the jury's award of $10,000 in compensatory damages and $30,000 in punitive damages against the company and its president (Lashley v New Life Business Institute, Inc, EDNY, March 9, 2015, Cogan, B.).

`Your job or your child' comment propels association discrimination claim to trial
A supervisor's remarks to an employee that he was "letting her go" because he needed someone without children to work at the front desk and asking her how she could "guarantee me that [] two weeks from now your daughter is not going to be sick again ... So, what is it, your job or your daughter?" could easily be viewed as a smoking gun admission that he believed her daughter was disabled and would be frequently ill and that her termination was directly motivated by his hostility toward her association with her child, a federal district court in New York ruled in denying summary judgment on her association discrimination claims. Further, the court found that the employee’s evidence in support of her ADA claim was sufficient to meet the higher "but for" standard articulated in Gross (Manon v 878 Education, LLC, SDNY, March 4, 2015, Sullivan, R.).

USCIS accepting H-1B petitions April 1, expects more than cap permits
USCIS has announced that on April 1, 2014, it will begin accepting H-1B petitions subject to the fiscal year (FY) 2016 cap - and the agency expects more petitions than the cap allows. The H-1B program permits U.S. businesses to employ foreign workers in occupations that require highly specialized knowledge in fields such as science, engineering, and computer programming.

Global organizations face looming crisis in engagement and retention of employees, Deloitte survey shows
Lack of employee engagement is the top issue currently facing 87 percent of HR and business leaders (up from 79 percent last year), according to a Deloitte report released March 4. Yet, the majority of organizations are still failing to take action to improve their culture, potentially jeopardizing future growth.

Challenger Gray says this year's March Madness could cost $1.9B in lost productivity, but that doesn’t mean it should be banned
The main action for the 2015 NCAA men's basketball tournament gets underway Thursday, March 19, but the viral phenomenon known as March Madness officially sets in on Monday, March 16. That is when workers across the country begin clogging the company internet with efforts to craft a winning bracket for their workplace and non-workplace betting pools. The cost of the tournament in terms of lost wages paid to distracted and unproductive workers could reach as high as $1.9 billion, according to calculations by Challenger, Gray & Christmas, Inc.

Payroll employment increases in February; unemployment rate edges down to 5.5%, BLS reports
Total nonfarm payroll employment increased by 295,000 in February, and the unemployment rate edged down to 5.5 percent, the U.S. Bureau of Labor Statistics reported March 6.

In state law news:

Wisconsin Governor Walker signs "Freedom to Work" law; unions immediately file suit
Wisconsin Governor Scott Walker signed Special Session Senate Bill 44, or "Freedom to Work," on March 9, 2015. The legislation eliminates any requirement that employees pay union dues as a condition of employment, while maintaining the option to choose union membership.

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Special Report

Proof of retaliation against whistleblowers soars

Although there was no significant increase in employee reports of retaliation in 2014, the substantiation rate for those reports increased a hefty 125 percent over 2013 - from 12 percent in 2013 to 27 percent in 2014, according to the 2015 Ethics and Compliance Hotline Benchmark Report, released by ethics and compliance software and services provider NAVEX Global®. This significant increase may signal that ethics and compliance program leaders are taking a more serious approach to managing and investigating allegations of retaliation, NAVEX said. And it's a statistic worth tracking, given the focus that external regulatory bodies are placing on retaliation.

"Retaliation is perhaps the one compliance violation most likely to do irreparable damage to a company's culture and employee morale," according to Carrie Penman, chief compliance officer and senior vice president, Advisory Services, NAVEX Global. "Retaliation is personal and strikes at the heart of an employee's well-being: job assignments, pay, and their sense of `belonging' in the workplace community. It stifles transparency, erodes trust in leadership, eliminates future reports and, at its worst, it drives the disenfranchised employee outside the organization and into the arms of regulators."

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