News for September 15, 2014

Featured this week:

In state law news:

Featured this week:

Interracial relationship could support minority employee’s Title VII claim, but not here
An African-American hospital employee could not advance his claims for racial discrimination when comments made by coworkers regarding his interracial relationship had more to do with the relationship’s effect on his professionalism than his race, a federal district court in Maine held. The court rejected, however, the employer’s suggestion that his claim was really an associational discrimination claim based on his interracial relationship and that only non-members of a protected class can assert such claims. (Thompson v The Webber Hospital Association dba Southern Maine Medical Center, DMe, September 8, 2014, Levy, J)

Driving essential function of vision-impaired pharmaceutical rep’s job; request for third-party driver unreasonable
A pharmaceutical sales representative who was unable to drive due to her severe vision impairment, and who was denied her request for a third-party driver to transport her to physicians’ offices, failed to defeat summary judgment on her ADA claim of disability bias. A federal district court in North Carolina ruled that driving was an essential function of her job that she could not perform with or without a reasonable accommodation. Moreover, her request that her employer create a new position for her was unreasonable. (Stephenson v Pfizer Inc, MDNC, September 8, 2014, Schroeder, T)

Nursing home employee fired soon after reporting patient abuse, taking FMLA leave advances claims
A nursing home administrator who returned from maternity leave to learn that allegations of patient sexual abuse had gone uninvestigated and unreported in her absence may proceed with wrongful termination and FMLA claims arising from her discharge only 11 days after making the required report, a federal district court in Oklahoma ruled. The close temporal proximity of her termination, along with evidence that the employer had motivation to try to cover up the abuse, reflected genuine disputes of material fact regarding her wrongful termination claim and as to whether the employee was actually fired in retaliation for exercising her FMLA rights instead of her inability to fit within the employer’s “culture.” (Moss v University Village Retirement Community, NDOkla, September 2, 2014, Dowdell, J)

Reference to “age and health” on employee action form supported ADEA claim
Although there was no evidence that a McDonald’s employee was disabled or regarded as such after knee surgery, evidence of a “hit list” of older workers who no longer worked there; that a manager compared the employee to her grandmother and said she was older and should be home; and that an action form explaining the employee’s termination referenced her “age and health,” raised issues of fact precluding summary judgment on the employee’s age discrimination claims under the ADEA and state law, ruled a federal district court in Pennsylvania. (Baughman v Cheung Enterprises, LLC dba McDonalds, MDPa, September 9, 2014, Rambo, S)

Compensation programs falling short at U.S. employers, analysis of Towers Watson surveys shows
Despite the importance of pay when it comes to attracting and retaining employees, companies are falling short in the delivery of their base pay and annual incentive programs, according to research from Towers Watson. Further, while the competition for talent is heating up, companies are not differentiating pay for their best performers as much as in recent years, and some continue to provide annual bonuses to employees who don’t meet performance goals.



Mercer analysis shows public holiday entitlement varies greatly around the world
Employees in India and Colombia benefit from the greatest number of public holidays in the world while Mexicans have access to the least, according to data from Mercer’s Worldwide Benefit and Employment Guidelines. The report provides an overview of mandatory and private benefit practices, statutory regulations and employment conditions across 64 major economies.



In state law news:

Indiana and Wisconsin get in line on same-sex marriage question
On Tuesday, September 9, the Attorneys General of Indiana and Wisconsin got in line for Supreme Court review of the same-sex marriage question after the Seventh Circuit last week invalidated their respective man-woman marriage limitations. The separate petitions for cert were filed just in time to be considered during the Justices’ first conference on September 29, when they will be looking at similar petitions on same-sex marriage bans in Utah, Virginia, and Oklahoma.



State properties in Kentucky ordered to be tobacco free as of Nov. 4
Citing Kentucky’s continued worst state ranking in smoking and cancer deaths, Governor Steve Beshear signed an executive order on September 4 to require that all executive branch state property campuses be tobacco-free effective as of November 20, 2014—the day of the Great American Smokeout.



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Special Report

Driven by marijuana and amphetamines, workforce drug test positivity rate increases, annual Quest Diagnostics Drug Testing Index™ reveals


The percentage of positive drug tests among American workers has increased for the first time in more than a decade, fueled by a rise in marijuana and amphetamines, according to an analysis of 8.5 million urine, oral fluid and hair workplace drug test results released September 8 by Quest Diagnostics. The Quest Diagnostics Drug Testing Index (DTI) shows that the positivity rate for 7.6 million urine drug tests in the combined U.S. workforce increased to 3.7 percent in 2013, compared to 3.5 percent in 2012. The relative increase of 5.7 percent year-over-year is the first time the positivity rate for combined national workplace urine drug tests has increased since 2003. Quest Diagnostics has analyzed annual workplace drug testing data since 1988.

“After years of declines, the prevalence of positive workforce drug tests is increasing,” said Dr. Barry Sample, director, science and technology, Quest Diagnostics Employer Solutions, a business of Quest Diagnostics. “This increase indicates that employers should be aware of the potential for drug use by their workers and the risk that represents for the health and safety of their employees and the public.”


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