News for January 7, 2019

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

Fired after reporting 'harassment,' employee failed to show hostile work environment
A female sales representative fired for performance issues after reporting a coworker's sexually suggestive behavior during a business trip was unable to convince the Seventh Circuit to reverse the grant of summary judgment against her Title VII sexual harassment, discrimination, and retaliation claims. The complained-of conduct did not rise to the level of a hostile work environment—the offensive nicknames and discussions lacked the requisite severity and frequency, were not physically threatening or humiliating to the employee, and did not affect her job performance. The employee also failed to rebut the performance-based reasons provided by the employer to support her termination, which included numerous instances of tardiness or failure to follow routes. Nor could the employee convince the Seventh Circuit to revive her breach of contract claim. (Swyear v Fare Foods Corp, 7thCir, December 26, 2018, Bauer, A.)

Trainman raised questions on reasonableness of process that disqualified him due to Parkinson's
Reversing summary judgment on a trainman's claim that BNSF violated the ADA by refusing to let him return to work due to his Parkinson's diagnosis, a divided Fifth Circuit found triable issues on whether BNSF's decisionmaking process in concluding he could not safely perform his essential functions was manipulated to achieve the desired result of disqualifying him. The evidence included that BNSF changed the employee's required duties after his doctors recommended a full release, that he passed his initial field test, and that BNSF managers made comments that he was "never coming back to work" and "people with Parkinson's don't get better," there is a genuine dispute. Judge Ho dissented, opining that there should only be liability if an employer's determination of a direct threat was objectively unreasonable, and Judge Ho found no evidence of that here. (Nall v BNSF Railway Co, 5thCir, December 27, 2018, Elrod, J.)

Permanent injunction aims to stop recurrence of 'Onionhead' religious practices at work
Following a $5.1 million jury verdict, a federal court in New York issued a permanent injunction against an employer found to have maintained, for five years, a hostile work environment based on religion. The record suggested likely recurrence of Title VII violations absent an injunction, given lackluster anti-discrimination policies and the continued presence of those who were instrumental in imposing mandatory religious practices like chanting, praying, and burning incense at work. The defendants were ordered to refrain from future discrimination, to update policies, to train employees, and to end professional association with the individual who was the central figure in creating the hostile environment. As to compensatory and punitive damages, three employees brought claims under both Title VII and the NYSHRL, so their awards were not capped, but the other seven claimants sued only under Title VII, so their combined compensatory and punitive damages were capped at $50,000 each. The court awarded intervening plaintiffs' counsel $186,600 in attorneys' fees and $400 in costs, and awarded the EEOC $44,991 in costs. (EEOC v United Health Programs of America, Inc, EDNY, December 28, 2018, Matsumoto, K.)

Employee who complained of different treatment after announcing pregnancy advances reprisal claim
A federal district court in North Carolina held that an employee's Title VII retaliation claim could advance because although she did not explicitly complain that she was being discriminated against "because of" her pregnancy, she did complain that she was treated differently "after she announced" her pregnancy. This statement gave rise to an inference that she was complaining of pregnancy discrimination before she was terminated. However, her pregnancy discrimination claim failed because she could not identify any similarly situated male employees who were treated differently; none of her named comparators had workplace performance issues that were comparable. Her Rehab Act disability discrimination and retaliation claims also failed. Negative comments in her evaluation related to her inability to handle tasks on her own and were not made in reference to her anxiety disorder. And her complaints about the negative evaluation were not protected activity because her supervisors' comments in the performance evaluation on how the disability affected her performance were not actually unlawful. The employer's motion to dismiss was granted in part and denied in part. (Randa v Whitaker, EDNC, January 2, 2019, Flanigan, L.)

New report shows influence of leadership support on workplace well-being outcomes
A new report from the Health Enhancement Research Organization (HERO) and Mercer offers fresh insights into the influence of leadership and organizational support on workplace well-being outcomes. In particular, companies reported better outcomes when leaders recognize employees who have achieved success and when leaders actively participate in health and well-being initiatives themselves.

Survey reveals nearly half of CFOs don't have a succession plan
Change management is always a major concern for organizations, but few challenges are more disruptive than an executive departure. In a new survey from Robert Half Management Resources, only 52 percent of CFOs said they have identified a successor for their position.

Unemployment rate rises to 3.9% in December
Total nonfarm payroll employment increased by 312,000 in December, and the unemployment rate rose by 0.2 percentage point to 3.9 percent, the U.S. Bureau of Labor Statistics reported January 4. The number of unemployed persons increased by 276,000 to 6.3 million.

In state law news:

California truck driver meal and rest break rules preempted by federal law
The Department of Transportation's Federal Motor Carrier Safety Administration (FMCSA) has granted petitions to preempt California's meal and rest break rules, which differ from current federal hours-of-service regulations for commercial truck drivers. The petitions were submitted by the American Trucking Associations and the Specialized Carriers and Rigging Association, according to a notice published in the Federal Register December 28.

How the start of a new year impacted the minimum wage in 20 states
Twenty states saw increases in the minimum wage in the new year—one, New York, actually beginning on December 31.

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Special Report

Despite Texas ruling, ACA remains law of the land, HHS says

According to a statement from the Department of Health and Human Services (HHS), the recent decision from the U.S. District Court for the Northern District of Texas, in Texas v. U.S., on the constitutionality of the Patient Protection and Affordable Care Act (ACA) "is not an injunction that halts the enforcement of the law and not a final judgement. Therefore, HHS will continue administering and enforcing all aspects of the ACA as it had before the court issued its decision."

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