News for November 17, 2014

Featured this week:

In state law news:

Featured this week:

Hugging sheriff can kiss HWE claim goodbye
Not only is hugging and kissing on the cheek a common physical workplace interaction that is often insufficient to sustain a hostile work environment claim, it overextends the intended scope of Title VII, a federal district court in California explained in dismissing on summary judgment a correctional officer’s claim that a county sheriff created a HWE when he hugged her at least 100 times in “awkward, unsolicited, and unwelcome” encounters. Observing that she was never the only person he hugged and he never hugged her alone, his hugs were not exclusively directed toward women, and she also hugged other deputies, corrections officers, and supervisors, the court found it clear that his hugs and kisses fell within the definition of ordinary workplace socializing and not within the purview of Title VII (Zetwick v County of Yolo, EDCal, November 5, 2014, Nunley, T.).

Longtime employee’s high salary, non-essential job perfect for RIF
Rather than age or disability, it was the employee’s high salary, which perfectly fit the required payroll reduction amount and the desire to eliminate only one position, and his less-than-essential job, which did not directly create revenue and was not customer-facing, that led to elimination of his position, a federal district court in California ruled, granting the employer’s motion for summary judgment on his age and disability discrimination claims. In fact, although the employer could have achieved the same payroll reduction by eliminating the position of an employee older than the plaintiff, it did not do so. Moreover, although a younger employee took over some of his duties, the record established that he did not take over all of the plaintiff’s responsibilities (Merrick v Hilton Worldwide, Inc, SDCal, November 5, 2014, Burns, L.).

Shifting justifications, hiring younger teacher, support age bias claim
Although the decision to not renew a teacher’s contract was purportedly based on the need to reduce the third-grade teaching staff by one position, a fact issued existed as to whether her position was truly eliminated; thus, the teacher did not need to meet the heightened standard for a reduction in force in order to prove her prima facie case of age discrimination, a federal district court in Kentucky ruled. As to the school board’s argument that the employee was not replaced by a younger male teacher hired for a third grade position because a second grade teacher retired and a third grade teacher transitioned to second grade, the court observed that because the employee was licensed to teach first through eighth grade, a reasonable trier of fact could find that her position was better described as a non-grade-specific teacher and view a document listing her as the “teacher being replaced” by the younger male as “accurately describing what took place.” Accordingly, the court denied the employer’s motion for summary judgment on her ADEA claim (Kersten v Loudon County Board of Education, EDKy, November 7, 2014, Varlan, T.).

Comments about Asian professor’s familiarity with English of little value in showing bias
In a lawsuit brought by a history professor of Chinese origin under Title VII and Section 1981, a federal district court in Mississippi explained that although remarks about an employee’s language and accent could qualify as circumstantial evidence of national origin discrimination, in the context of a professor whose “speaking ability is directly related to job performance,” comments about her familiarity with the English language were of little evidentiary value in demonstrating bias. The court also explained that expert testimony proposed by the employee was unnecessary to help the jury determine whether her intelligibility qualified her for the position. The employer’s motion for summary judgment was denied in part and granted in part and its motion to exclude the testimony of certain experts was granted (Wu v Mississippi State University, NDMiss, November 7, 2014, Brown, D.).

President picks career DOJ attorney Loretta Lynch to succeed Eric Holder
On Friday, November 7, President Obama revealed his choice of career Department of Justice attorney Loretta Lynch to succeed Eric Holder as the nation’s top lawyer. Obama characterized the nominee as “a strong, independent prosecutor who has twice led one of the most important U.S. Attorney’s Offices in the country.”



Study shows employees offered financial incentives were 33 times more likely to participate in wellness programs
New research shows that when employers offered financial incentives, employees were 33 times more likely to participate in telephone health coaching, and did so sooner, than employees without incentives. With all that goes on in the workplace, employee wellness programs can sometimes go unnoticed; however this new research shows that adding an incentive can drastically change participation numbers, thus leading to a potential increase in overall health and a decrease in costs for health plans.



Survey reveals major impact of depression on the workplace
According to a survey conducted by Employers Health, nearly a quarter (23 percent) of U.S. respondents have been diagnosed with depression in their lifetime and two in five (nearly 40 percent) of those patients report taking time off of work – an average of 10 days a year – as a result of their diagnosis. The survey, The Impact of Depression at Work Audit (IDeA), evaluates the societal and economic burden of depression in the workplace.



Workers looking forward to office party this holiday season, survey shows
A new survey from OfficeTeam shows the traditional office party tops most employees' wish lists with 52 percent of workers interviewed saying their favorite work-related holiday celebration is a company party.



In state law news:

The minimum wage in Missouri will increase to $7.65 per hour on January 1
The Missouri Department of Labor announced on November 7 that the minimum wage rate in Missouri will increase to $7.65 per hour effective January 1, 2015.



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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

Indiana state supreme court upholds Indiana Right to Work law


Dealing a considerable blow to organized labor in Indiana, the state’s high court has upheld the Right to Work Act, reversing a trial court’s finding that the legislation violated the Indiana Constitution.

Rejecting the notion that the statute was an impermissible “demand” by the state that unions provide free services to nonmembers (as it must, pursuant to its federal duty of fair representation), the high court reasoned that “[a]ny compulsion to provide services does not constitute a demand made by the State of Indiana.” The International Union of Operating Engineers Local 150 had mounted a two-pronged legal challenge to the statute in federal and state court. Both efforts have proved unavailing (Zoeller v Sweeney, November 6, 2014, Dickson, B).


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