News for October 13, 2014

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Featured this week:

Failure to report manager’s “boorish” behavior suggested employee not offended
A female Costco employee who claimed that the store’s general manager touched her body four times (once on the hands, two on her shoulders, and once on her breasts), told her he “liked her,” and asked what type of wine she preferred and what her favorite color was, failed to defeat summary judgment on her HWE claim. A federal district court in Illinois held that the alleged conduct was neither objectively or subjectively hostile; the fact that she did not complain of the “boorish” conduct to anyone other than the alleged harasser indicated that she did not consider the environment hostile. (Reza v Costco Wholesale Corp, NDIll, September 30, 2014, Leinenweber, H)

HR ignored employee’s complaints about manager who said he wasn’t “girly enough” for fashion industry
A male employee who felt compelled to quit after his employer failed to respond to his complaints about his female supervisor’s harassing behavior — which included treating him less favorably than his female counterparts, placing him on a performance improvement plan and suggesting that he did not belong in the fashion business and would be better suited in a more male-appropriate career — stated plausible gender bias, HWE and reprisal claims under Title VII and state law. Accordingly, a federal magistrate judge in Massachusetts allowed the employee to file his first amended complaint and recommended that the employer’s motion to dismiss be denied. (Whitney v The TJX Companies, Inc, DMass, September 19, 2014, Kelley, M)

No national origin bias claim for fired employee who wore gun at work
A West Indies employee who alleged that he was fired from his auto parts store job because of his national origin in violation of Title VII and state law after he wore a hip holster containing a visible handgun at work cannot proceed on his claims, a federal district court in New Hampshire ruled. His belief that company policy allowed him to carry his gun on company property did not preclude the decisionmaker from reasonably believing that the employee’s conduct was prohibited. Moreover, the decisionmaker’s comment months earlier about customers having difficulty understanding the employee because of his accent, which a reasonable jury could not find demonstrated animus, was also separated from the termination decision by two pay raises, a promotion, and a positive performance review. The employer’s motion for summary judgment was granted. (Dipigney v AutoZoners, LLC, DNH, October 2, 2014, McCafferty, L)

Delivery driver called a terrorist by contract workers can’t advance discrimination claims
A linehaul driver employed by a FedEx contractor could not advance his discrimination claims against the courier under Title VII, Section 1981, or state law, a federal district court in Oregon held. The driver, a practicing Muslim born in Kosovo who identified his national origin as Albanian, was repeatedly called a terrorist by employees of other FedEx contractors. He sued FedEx for allowing the employees of its various contractors to discriminate and subject him to a hostile work environment on the basis of race, religion, and national origin. However, the court granted FedEx’ motion for summary judgment, finding the complained-of conduct wasn’t sufficiently severe or pervasive, and declining to reach the issue of whether FedEx was liable as a statutory employer. (Arifi v FedEx Ground Package System, Inc, DOre, September 30, 2014, Haggerty, A)

IRS issues 2015 per diem rates for travel expense reimbursements
The IRS has provided the 2014-2015 special per diem rates for taxpayers to use to substantiate ordinary and necessary business expenses incurred while traveling away from home. The guidance provides the special transportation industry meal and incidental expenses rates (M&IE), the rate for the incidental expenses only deduction, and the rates and list of high-cost localities for purposes of the high-low substantiation method. Taxpayers using the rates and list of high-cost localities provided must comply with Rev. Proc. 2011-47, I.R.B. 2011-42, 520.



Bersin by Deloitte announces most disruptive HR technology-related trends poised to reshape the workplace, drive organizational success
New human resource (HR) practices that are embedded into employee workflows and easy-to-use mobile applications are poised to dramatically reshape where and how people work, according to the most recent observations from Josh Bersin, principal, Bersin by Deloitte, Deloitte Consulting LLP. These are among the 10 top disruptive HR technology-related trends that appear in the new report: HR Technology for 2015: Ten Big Disruptions Ahead. Such workflow-embedded HR practices and mobile applications will allow employees to learn on demand, share work experiences in real-time, update goals on-the-go, and provide real-time data that ultimately can help leaders make better management decisions, according to Bersin.



Annual survey shows Americans want to work for CEOs committed to corporate responsibility
Corporate Responsibility (CR) Magazine, in conjunction with Alexander Mann Solutions, has announced findings of the publication's annual corporate reputation survey, which found that when making decisions about their future employment, the majority of Americans (71 percent) want to work for a company whose CEO is actively involved in corporate responsibility and/or environmental issues.



WorldatWork survey shows workplace flexibility is top motivator for employers implementing a paid time off bank program
Workplace flexibility ranked as the primary motivator cited by employers for implementing a paid time off (PTO) bank leave system for employees, according to a 2014 WorldatWork survey. Forty-nine percent of the respondents who indicated they use a PTO bank system cited granting employees more flexibility as the primary motivator for implementing a PTO bank system.



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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

Same-sex marriage bans and the U.S. Supreme Court: What’s happening?


The Supreme Court began the official start of its October 2014 Term by declining several invitations to take up the lawfulness of same-sex marriage bans in five states. The order, issued on Monday, October 6, denied cert in each case without elaboration. As a result, same-sex marriages that were placed in legal limbo in Utah may now receive the full accord of benefits extended to married couples. In Indiana, Oklahoma, Virginia and Wisconsin, stays that prevented same-sex marriages from taking place despite court decisions invalidating the laws that barred them will no longer serve as a barrier to those who wish to wed.

While several jurisdictions were left reeling in the wake of the Supreme Court’s decision to decline review, Justice Kennedy, on Wednesday, October 8, pushed the pause button with an order staying a Ninth Circuit mandate affirming a lower court order invalidating and enjoining enforcement of Idaho’s marriage laws to the extent they limit marriage to man-woman unions. In their petition for the stay, Idaho officials claim their case differs from earlier ones in ways that merit Supreme Court attention.


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