News for August 18, 2014

Featured this week:

In state law news:

Featured this week:

Employee’s resignation short-circuited reasonable accommodation opportunity
A disabled worker was the author of her own misfortune where she prematurely resigned her employment without giving her employer the opportunity to fully consider her “work-from-home” accommodation request, ruled a divided D.C. Circuit. Here, the appeals court concluded that the employee abandoned the interactive process before the employer had the information it needed to determine the appropriate accommodation. As a consequence, the appeals court affirmed the district court’s grant of summary judgment in favor of the employer on her failure to accommodate and constructive discharge claims. Judge Millett filed a dissenting opinion (Ward v McDonald, DCCir, August 12, 2014, Henderson, K).

Denying paid breaks beyond normal break time to express breast milk not adverse action
A female corrections officer who claimed that she was not permitted to take compensated breaks in excess of her normal break time to express breast milk, and that she was treated harshly by her supervisor and transferred to a less desirable location after complaining to her union, failed to state plausible claims of pregnancy bias, hostile work environment, and reprisal, a federal district court in New York ruled. She failed to sufficiently assert that she suffered an adverse employment action, that she was subjected to severe or pervasive conduct, or that she engaged in protected activity that was known by the county. Thus, the court granted the employer’s motion to dismiss her Title VII and Sec. 1983 claims and denied her cross-motion for leave to amend (Wilson v Ontario County Sheriff’s Department, WDNY, August 8, 2014, Wolford, E).

Nurse fired three days after on-the-job injury can proceed with ADA claims
A nurse at an assisted living community who was fired three days after breaking three ribs and pinching a nerve in her elbow at work may proceed with her ADA claims, a federal magistrate judge in Oregon ruled. Not only was there sufficient evidence to raise a genuine issue of fact regarding whether her injuries constituted an actual disability, but there was also a dispute about whether her employer perceived her to be suffering from an impairment substantially limiting a major life activity, thus allowing an alternative regarded-as claim to proceed. The employer knew she was having trouble breathing and was restricted in her work. Therefore, the employer’s motion for summary judgment was denied in part (McDonald v Care Center (Linda Vista), Inc, DOre, August 7, 2014, Clarke, M).

Criticism of military duties raises fact questions about reservist’s firing
An employee who was in the United States Army Reserves while working as a sales manager advanced his claim for wrongful termination under USERRA and state law where his supervisor made repeated comments about his military duties, which she called his “second job,” a district court in Pennsylvania held, denying summary judgment. The employee’s claims for retaliation and for severance pay, however, did not go forward (Junguzza v Gemalto, Inc, EDPa, August 6, 2014, Baylson, M).

Annual WorldatWork survey shows salary budgets at U.S. companies improve slightly to 3.0 percent in 2014
Pay increase budgets at U.S. employers have improved slightly up to 3.0 percent in 2014 from 2.9 percent in 2013 according to the 41st annual "WorldatWork 2014-2015 Salary Budget Survey." Forecasts show that the average raise in base pay for 2015 in the United States is projected to be 3.1 percent. This continues a trend of mildly increasing budgets since the 2009 recession when the average salary budget increase reached an all-time low of 2.2 percent (mean). Last year, respondents projected that the 2014 average total salary budget increase across all organizations, employee categories, regions and industries in the United States would reach 3.1 percent (median: 3.0 percent), but actual numbers fell just short.

Use of performance awards continues to rise, new Mercer study finds
Mercer’s latest analysis of compensation and benefits for CEOs at 240 companies in the S&P 500 reveals CEOs earned, a median total compensation package of $9,656,000 with approximately two-thirds of the value coming from long-term incentive grants. Pay in the form of long-term incentives climbed to a median $6,457,000, a median year-over-year change of 4 percent.

In state law news:

Applicants with criminal records get a second chance in New Jersey
New Jersey Governor Chris Christie has put his mark of approval on the Opportunity to Compete Act, a so-called “ban-the-box” law that bars employers in the state from asking about an applicant’s criminal records during the initial employment application process. The stated purpose of the legislative measure, A1999, is “to improve the economic viability, health, and security of New Jersey communities and to assist people with criminal records to reintegrate into the community, become productive members of the workforce, and to provide for their families and themselves” – in other words, to give folks with criminal records a second chance in New Jersey.

About this Newsletter

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.

Contact Us

For general questions, contact

If you have comments or suggestions concerning the information provided or the format used, please feel free to contact the Employment editors at

Special Report

Employers worldwide step up investments in workers’ wellness, survey shows

Seventy-eight percent of the world’s employers are strongly committed to creating a workplace culture of health, to boost individual engagement and organizational performance. A new survey of employers worldwide illustrates their investments in wellness: 43 percent say they created a brand identity for their employee wellness programs, 52 percent offer health insurance premium reductions, and 65 percent believe wellness programs are extremely or very important to attract and retain workers.

According to “Working Well: A Global Survey of Health Promotion and Workplace Wellness Strategies,” employers’ views of wellness have evolved over the last seven years. This latest report was conducted by Buck Consultants at Xerox. “When we began this survey in 2007, employers were focused on basic health promotion activities,” said Dave Ratcliffe, principal, Buck Consultants at Xerox. “Today, our sixth survey shows an evolution in employer thinking to a much more holistic and measurable approach. Workers’ wellness is now viewed as a state of well-being across the spectrum of health, wealth, and career. Wellness is part of the employee value proposition. Social media, gamification, mobile technology, automated coaching, and personalized communication are all part of the mix.”

New Email/Online Service:
Employment Law Daily

CCH Employment Law Daily is a premium labor and employment law update service that offers daily e-mails, access to an online searchable database, and the option of receiving breaking news alerts throughout the day.

Learn More »