News for October 27, 2014

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Stomach pinching, unwelcome comments support Walmart employee’s HWE claims
Rejecting Walmart’s contention that an employee who received an excellent performance evaluation during the period in which she alleged she was being sexually harassed, together with her continued employment for several years after the alleged harasser’s termination, established that the “handful of incidents” about which she complained did not interfere with her ability to work, a federal district court in Massachusetts denied the retailer’s motion for summary judgment on her state law hostile work environment claim. Not only could a jury conclude that the alleged incidents were frequent and that the unwelcome touching — two incidents of stomach pinching and an apparent third incident in which the harasser allegedly touched his stomach to her buttocks while she was standing on a step stool — was physically threatening, it could also find that Walmart’s investigation was deficient and that it failed to take appropriate remedial action (Lightbody v Wal-Mart Stores East, LP, DMass, October 17, 2014, Casper, D).

Firefighter’s USERRA claims advance; six write-ups in five days, and fired after active duty
Because the record did not clearly support a city’s argument that it would have fired a firefighter for his history of employment violations, a federal district court in Mississippi denied the city’s motion for summary judgment against the employee’s USERRA claims. In view of negative comments by the fire chief regarding the employee’s military service, and the timing of disciplinary write-ups and recommendations for his termination soon after he returned from active military duty, the court concluded that a reasonable jury could find that the employee’s military service was a factor in the city’s decision to terminate his employment. On the other hand, the court granted the employer’s motion for summary judgment with respect to state law interference with employment claims after they were withdrawn by the employee (Wright v City of Horn Lake, Mississippi, NDMiss, October 21, 2014, Brown, D).

Demoted female manager advances gender discrimination and retaliation claims
Alleging that she complained for four years that male subordinates were being paid thousands of dollars more than her, and that a month after she finally filed an EEOC charge she was demoted, a female employee stated plausible claims of gender bias and retaliation, ruled a federal district court in New York. On the other hand, the court determined that her allegations that coworkers inferred she should retire, that someone regularly called her phone at midday to indicate that she would be caught if she were at lunch to long, and that her employer refused to fix her broken computer, did not rise to the level of a hostile work environment (Satina v New York City Human Resources Administration, SDNY, October 21, 2014, Crotty, P).

Mere recommendation of black candidate no evidence of bias but lawsuit could be retaliatory
An HR manager’s recommendation of an African-American candidate and a warehouseman’s endorsement on his behalf were not enough to infer that a discriminatory motive caused their respective termination and constructive discharge. However, there was sufficient evidence suggesting the company retaliated against the HR manager for her pre-litigation activity when it filed a lawsuit against her under the state’s Wiretap Act and also retaliated against the warehouseman by telling his subsequent employer (who was a subcontractor) to remove him from its projects. Accordingly, a federal district court in Tennessee granted summary judgment on their Title VII and state law discrimination claims but allowed their retaliation claims to proceed to trial (Patterson v North Central Telephone Cooperative Corp, MDTenn, October 17, 2014, Sharp, K).

Effectiveness of performance appraisals gets mixed reviews from HR professionals in new SHRM survey
More than one-half (53 percent) of surveyed human resources professionals gave their organizations a grade between B to C+ for effectively managing performance reviews, according to a Society for Human Resource Management (SHRM) survey of 391 SHRM members released October 21. Another one-fifth (21 percent) gave their organizations a C in performance management, while only 2 percent gave their organizations an A.

CareerBuilder releases this year’s most unbelievable reasons for calling in sick
From claiming they need the day to fix some botched plastic surgery to saying they accidentally got on a plane, America’s workers have either had some sitcom-worthy misadventures this year, or they’ve simply gotten more creative with their sick day excuses. A new CareerBuilder survey looks at how many workers have faked being sick this year, as well as some of the strangest excuses they’ve used while doing so.

CPI for all items rises 0.1% in September; shelter and food rise, energy falls
The Consumer Price Index for All Urban Consumers (CPI-U) increased 0.1 percent in September on a seasonally adjusted basis, the U.S. Bureau of Labor Statistics reported October 22. Over the last 12 months, the all items index increased 1.7 percent before seasonal adjustment.

Real average hourly earnings fall 0.2% in September, BLS reports
Real average hourly earnings for all employees fell 0.2 percent from August to September, seasonally adjusted, the U.S. Bureau of Labor Statistics reported October 22. This result stems from unchanged average hourly earnings combined with a 0.1 percent increase in the Consumer Price Index for All Urban Consumers (CPI-U).

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Special Report

OSHA guidance helps employers deal with Ebola in the workplace

OSHA has released new guidance on how employers and employees in non-healthcare and non-laboratory workplaces should clean and decontaminate for Ebola on workplace surfaces. Employers are responsible making sure that workers are protected from exposure to Ebola and that they are also not exposed to harmful levels of chemicals used for cleaning and disinfection, according to the agency’s fact sheet. The agency also has offered a host of other information regarding how employers should be dealing with Ebola in the workplace.

The agency has a dedicated webpage for the Ebola virus, which explains that the U.S. Centers for Disease Control and Prevention has labeled the deadly virus a Category A select agent. This category includes high-priority agents that pose a risk to national security because they can be easily disseminated or transmitted from person to person; result in high mortality rates and potentially have a major public health impact; could cause public panic and social disruption; and require special action to ensure public health preparedness.

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