News for March 4, 2019

Featured this week: In state law news:
Featured this week:

Using monkey statuettes to depict directors could support Title VII claim
Though a dean of the learning university at the Department of Veterans Affairs (VA), claimed that four monkeys used in his goodbye video for an employee to depict four directors under him represented "see no evil," "hear no evil," "speak no evil," and "do no evil," an African-American director raised triable issues on whether this created a hostile work environment based on race. Given a history of racial stereotypes depicting African Americans as animals or monkeys, it could be reasonable to conclude the imagery was intended as a racial insult, but it was too early to say because the employee had not yet had a chance to obtain discovery on the dean's intent. The federal court in the District of Columbia therefore denied the employer's motion for summary judgment. (Vance v O'Rourke, DDC, February 22, 2019, Mehta, A.)

Manager's single sexual innuendo to server, who responded that he was gay, didn't create hostile environment
A male restaurant server who quit weeks after rebuffing his supervisor's comment that he would be the employee that she would choose to sleep with if given the choice, by telling her he was "gay" and she would have "a better chance of seeing a unicorn," failed to defeat summary judgment on his Title VII and state-law claims alleging hostile work environment and quid pro quo harassment, retaliation, and constructive discharge. The supervisor's isolated sexual remark was not sufficiently severe or pervasive, his suspension the next day was unrelated, and his "overall uncomfortable feeling" and alleged "ostracization" by management would not have compelled a reasonable person in his circumstances to resign, a federal court in Massachusetts ruled. (Martinelli v Bancroft Chophouse, LLC, DMass, February 22, 2019, Gorton, N.)

Fired Lowe's manager who never provided return-to-work clearance can't pursue FMLA claims
Despite Lowe's repeated requests, a manager failed to provide medical clearance to return to work by the time her FMLA leave expired, and even several months thereafter, so she couldn't claim that Lowe's interfered with her FMLA rights or retaliated against her for taking FMLA leave. Granting summary judgment for Lowe's, the federal court in Michigan also tossed her ADA claim because Lowe's took no adverse action against her because of her disability. Her ERISA claim also failed because Lowe's provided her with all her entitled insurance and disability coverage. (Shimko v Lowe's Home Centers, LLC, EDMich, February 26, 2019, Berg, T.)

Two incidents of harassment two years apart may be sufficiently severe and pervasive
Despite having worked with her alleged harasser only two times over a period of two years, an employee raised a triable fact issue as to whether the harassment was severe and pervasive, ruled a federal court in Virginia, noting the sexual nature of his comments, instances of unwelcome touching, and the fact that the conduct occurred while he was serving in a managerial capacity. And while it was a close question whether he was her supervisor for purposes of vicarious liability, a reasonable jury could find the employer had notice of the harassment and it did not respond with reasonable corrective action. Thus, the court denied summary judgment against her Title VII sexual harassment claim. Her retaliation claim, which was based on her discharge for a prior shoplifting conviction, failed however. (Wheeler v Commonwealth of Virginia, WDVa, February 20, 2019, Conrad, G.)

H-2B cap reached for FY 2019
USCIS has received enough petitions to meet the congressionally mandated H-2B cap for the second half of fiscal year (FY) 2019.



DOL is updating its H-2B application processing procedures
The Department of Labor is updating its procedures for processing H-2B applications. The move was prompted by the intense competition for H-2B visas in recent years, which has resulted in challenges to handle the increasingly large volume of H-2B applications filed on January 1 of each year.



Five actionable health care strategies that create a competitive edge
As 2019 takes hold, companies unsatisfied with their health care spend can look to five effective strategies embraced by 2018's best-performing companies to keep their employees healthy and costs low. The best performers eclipse others when it comes to using best-in-class, cost-effective health care benefit strategies.



WorldatWork survey reveals broad pay transparency remains uncommon
The "Compensation Programs & Practices Survey" conducted by WorldatWork reveals that broad pay transparency, a hallmark of pay equity, remains uncommon and has worsened since 2010 when the survey was first conducted. Other results indicate that while "internal equity adjustments" has been one of the top four factors in salary increases since 2010, its rate of use is consistent with 2010 results.



In state law news:

Illinois governor signs $15 minimum wage into law
Illinois Governor JB Pritzker signed S.B. 1 on February 19, making Illinois the first state in the Midwest to phase in a $15 minimum wage over the next six years and giving workers their first raise in nearly a decade.



New Jersey Governor Murphy signs legislation expanding paid family leave
New Jersey Governor Phil Murphy signed legislation on February 19 that expands the state's paid family leave program to provide additional job protections for those who miss work due to caring for a newborn or a sick loved one. New Jersey enacted its paid family leave program in 2008.



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Employment NetNews is a broader look at labor and employment law issues, with both attorneys and HR professionals in mind. 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

With more business disruption expected, making organizations "future-fit" is top of mind, new study finds

According to Mercer's 2019 Global Talent Trends study, nearly two-thirds (65 percent) of executives in the United States predict significant disruption in the next three years, compared to 35 percent in 2018. As executives focus on making their organizations "future-fit", significant human capital risks—including the ability to close the skills gap and overcome employee change fatigue—can impede transformation progress. Addressing these concerns is paramount, given that only 37 percent of executives rate their company's ability to mitigate human capital risks as very effective.



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