News for June 19, 2017

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

Whether HR director's FOIA request for employee's emails was retaliatory was jury question
A state employee demoted for using his work email for personal use, which was discovered because of an FOIA request by the head of Human Resources after an incident involving racial allegations, could proceed with his Title VII retaliation claims, but not his discrimination claims, a federal district court in Connecticut ruled. The court found triable questions on whether the disciplinary process resulting in the employee's demotion was manipulated by the HR head who made the FOIA request. However, summary judgment was granted against the discrimination claims for lack of evidence that the employee's discipline was related to his race or gender. The court also granted qualified immunity to several coworkers on the employee's Section 1983 Equal Protection claims, but did not do so for the HR head who launched the FOIA request. (Moore v Department of Correction, DConn, June 2, 2017, Meyer, J.)

Manager may have created retaliatory hostile work environment against postal carrier who filed EEO complaints
A jury will decide whether a postal office manager subjected a rural carrier to a hostile work environment in retaliation for her EEO complaints by subjecting her to increased antagonism and heightened scrutiny. Denying in part USPS's motion for summary judgment, a federal court in Kansas followed the McDonnell Douglas framework and required her only to show conduct that was sufficiently severe or pervasive enough to dissuade a reasonable person from filing a discrimination charge. However, her Title VII claims of gender bias and hostile work environment were dismissed. (Adcox v Brennan, DKans, June 2, 2017, Lungstrum, J.)

Demoting employee in a reorganization two months after maternity leave may have been pregnancy bias
An employer's decision to offer an employee a demotion following its reorganization two months after she returned from maternity leave, while offering her prior assistant the job that encompassed most of her previous duties, was not too temporally remote to show a causal connection to her pregnancy, particularly considering a superior's comment that her maternity leave had come at a bad time and the fact that she had been stripped of most of her duties upon her return from leave. Denying summary judgment in part, a federal district court in Pennsylvania allowed her pregnancy discrimination claims under Title VII and state law to proceed. However, her sex-plus gender bias claim failed because there was no showing that her status as a new mother played a role in the decision. (Graham v Hendrix-ISA, LLC, EDPa, June 13, 2017, Leeson, J., Jr.)

Claims of frequent sexualized language and conduct support firefighter's hostile work environment claim
Refusing to dismiss a female firefighter's Title VII sex-based hostile work claim, a federal court in Virginia found her complaint replete with allegations she did not welcome the treatment she received—including coworkers bragging about f***ing and screwing women, references to women as bitches and whores, and exposure to pornography and a coworker's penis—and that her employer failed to do anything in response to her numerous complaints. However, claims for retaliation, defamation, and age discrimination failed. (Phillips v Lynchburg Fire Department, WDVa, June 5, 2017, Moon, N.)

Trump signs bill to expand federal employee whistleblower protections
On June 14, the White House announced that President Trump has signed into law the Follow the Rules Act, which would address what proponents see as a misinterpretation of the Whistleblower Protection Act by the Federal Circuit Court of Appeals in Rainey v. Merit Systems Protection Board. The bipartisan legislation, H.R. 657, cleared the House on May 1 and the Senate on May 25 by unanimous votes in both chambers.

Respondents believe taxing insurance contributions will raise health care costs for employees
A majority of respondents to a new Society for Human Resource Management (SHRM) survey anticipate that employees will pay more for health insurance if Congress decides to tax insurance contributions. As the Trump administration and Congress negotiate elements of health care and tax reform, there likely could be changes to the tax treatment of employer-sponsored health benefits. Currently, premiums that employers pay for health insurance are exempt from federal and payroll taxes, and employee premiums are not considered taxable income.

CPI for all items falls 0.1% in May as energy index declines
The Consumer Price Index for All Urban Consumers (CPI-U) decreased 0.1 percent in May on a seasonally adjusted basis, the U.S. Bureau of Labor Statistics reported June 14. Over the last 12 months, the all items index rose 1.9 percent.

Real average hourly earnings increase 0.3% in May
Real average hourly earnings for all employees increased 0.3 percent from April to May, seasonally adjusted, the U.S. Bureau of Labor Statistics reported June 14. This result stems from a 0.2-percent increase in average hourly earnings combined with a 0.1-percent decrease in the Consumer Price Index for All Urban Consumers (CPI-U).

In state law news:

Nevada governor vetoes minimum wage bill
On June 8, while signing 70 bills into law at the end of the legislative session, Nevada Governor Brian Sandoval vetoed a minimum wage bill that would have increased the minimum wage by 75 cents each year for five years or until the minimum wage reached $12 or more ($11 if the employer offered health insurance).

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Special Report

Silence on societal racial tensions can be costly for employers, survey shows
When employees of color feel they cannot talk about race relations at work, the business suffers, according to a new report published by the Center for Talent Innovation (CTI). Race discrimination outside of the workplace affects the majority of minority employees: seventy-eight percent of black employees, 52 percent of Asian employees and 50 percent of Hispanic employees say they have experienced discrimination/bias outside of work and/or are fearful of it for themselves or their families, compared to 28 percent of white employees. Yet, while employees carry this pain to work, they cannot unburden themselves: more than two out of three are currently uncomfortable discussing race relations, and 29 percent feel it is never acceptable at their company to speak about experiences of race-based bias.

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