News for June 15, 2015

Featured this week:

In state law news:

Featured this week:

Applicant's religious practice, confirmed or otherwise, can't be factor in employment decisions
Rejecting the argument that an applicant cannot show disparate treatment under Title VII without first showing that an employer has "actual knowledge" of her need for a religious accommodation, the U.S. Supreme Court reversed the Tenth Circuit's grant of summary judgment to Abercrombie & Fitch on the EEOC's claim that the retailer's refusal to hire a Muslim applicant, because her headscarf conflicted with the store's "Look Policy," violated Title VII. Justice Scalia, writing for Court, stressed that an applicant need only show that her need for an accommodation was a motivating factor in the employer's decision. Justice Alito filed a separate opinion concurring in the judgment and Justice Thomas filed an opinion concurring in part and dissenting in part. (EEOC v Abercrombie & Fitch Stores, Inc, USSCt, June 1, 2015, Scalia, A.)

Speech about city's use of temp employees - like the speaker - not a matter of `public concern'
Statements made by an employee to his supervisor, in which he expressed concerns regarding the alleged illegal hiring of temporary exempt employees in contravention of city charter, did not involve matter of "public concern" protected by the First Amendment, ruled the Ninth Circuit. Noting that the employee voiced his grievances internally, at union meetings, to his supervisor, and to human resources, the appeals court found he was primarily concerned about his own professional advancement and his dissatisfaction with his own status as a temporary employee. (Turner v City and County of San Francisco, 9thCir, June 11, 2015, Smith, M., Jr.)

Failure to engage in interactive process immaterial; psychologist with memory loss not qualified
Although troubled by a health center's failure to meaningfully engage in the interactive process with its chief psychologist - who suffered from short-term memory deficiencies - prior to terminating him, the Seventh Circuit nonetheless affirmed the grant of summary judgment against his disability discrimination claim because he failed to point to any evidence that would allow a trier of fact to determine he was a qualified individual under the ADA. While the court "did not mean to suggest that concern for patient safety or fear of malpractice liability relieves" an employer of the obligation to seriously engage in the interactive process, it found it "entirely proper for an employer assessing the reasonableness of a proposed accommodation to consider the sensitive nature of the employee's position and the potential safety and liability risks involved." (Stern v St. Anthony's Health Center, 7thCir, June 4, 2015, Tinder, J.)

Accommodating religion with Sundays off, contrary to CBA, would be undue hardship
An ordained minister who worked as a janitor at a stamping facility will not present his religious discrimination claim to a jury, a federal district court in Indiana ruled. The employee, whose request for an accommodation allowing him to have every Sunday off was denied, was fired after missing three scheduled Sunday shifts in a row. Considering the hardship for the employer in the context of the collective bargaining agreement (CBA) that was in place, which provided for seniority rights, the court concluded that there was no accommodation that would allow the employee to have every Sunday off. The employer's motion for summary judgment was granted. (Bolden v Caravan Facilities Management, LLC, NDInd, June 8, 2015, Miller, R., Jr.)

Seventh Day Adventist told he `wouldn't advance' if didn't work Saturdays awarded $150,000
A Seventh Day Adventist employee persuaded a federal district court in Virginia that he was discharged in retaliation for making three complaints about his manager's reaction to his religious accommodation of not working on Saturday to observe the Sabbath, and after a two-day bench trial was awarded over $150,000 in backpay plus reasonable attorneys' fees and costs. Although he failed to establish that his reassignment to a floater position constituted an adverse action, evidence of his manager's fluctuating excuses for firing him (performance vs lack of work) as well as her inconsistent following of policy convinced the court that her proffered explanation was unworthy of credence and that her discriminatory motive was the determining factor in his termination. (Mohammed v Central Driving Mini Storage, Inc dba Mini Price Storage, EDVa, June 5, 2015, Jackson, R.)

• New guide on restroom access for transgender employees discusses best practices
OSHA has published a guide intended to help employers deal with the sometimes tricky issue of providing appropriate restroom access to transgender workers. Among the practical information it includes is a link to a model employer policy. OSHA made clear in a disclaimer that the guide “is not a standard or regulation, and it creates no new legal obligations.”

Salaries are key factor in health crisis preparedness, insurance literacy, benefits enrollment
With the implementation of the Affordable Care Act, more Americans now have access to major medical insurance. However, results from the 2015 Aflac WorkForces Report reveal wide disparities between higher- and lower-income households in terms of financial preparedness, knowledge about health insurance and benefits enrollment.

Unemployment rate unchanged in May, BLS reports
Total nonfarm payroll employment increased by 280,000 in May, and the unemployment rate was essentially unchanged at 5.5 percent, the U.S. Bureau of Labor Statistics reported June 5. In May, both the unemployment rate and the number of unemployed persons (8.7 million) were essentially unchanged. Both measures have shown little movement since February.

In state law news:

California DIR launches new public works contractor registration program
The California Department of Industrial Relations (DIR) announced on June 1 that is has improved key features of the online Public Works Contractor Registration (PWCR) system. Contractors can now print out proof of registration filing, and verify the renewal or application is complete by running a search on the database of qualified public works contractors. A user guide with instructions has also been posted online.

Missouri governor vetoes right-to-work bill
Missouri Governor Jay Nixon has vetoed a right-to-work bill that he claims would lower wages, squeeze middle-class families, and subject businesses to criminal and unlimited civil liability.

Ohio implements ban-the-box for civil service jobs
Under a new policy directive, applicants for civil service jobs in Ohio are no longer required to disclose felony and other criminal convictions on job applications. Said differently, the ban-the-box movement has reached Ohio.

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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

FY 2015 H-2B cap reopened

On Friday, June 5, 2015, U.S. Citizenship and Immigration Services (USCIS) reopened the fiscal year 2015 cap to accept Form I-129, Petition for a Nonimmigrant Worker, requesting new H-2B workers with an employment start date between April 1 and September 30, 2015. The Department of State (DOS) received substantially fewer H-2B visa requests than anticipated. As a result, USCIS has determined that there are still available H-2B visa numbers remaining for the second half of the FY 2015 cap.

The H-2B program permits U.S. employers to bring foreign nationals to the United States to fill temporary nonagricultural jobs for which there is a shortage of available U.S. workers.

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