News for April 17, 2017

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Allegations that delivery driver was ‘sporadically’ granted accommodations support bias claims
A delivery truck driver who claimed he was injured at work after being granted his request for certain accommodations for his known disability only "on occasion," and then suffered adverse job consequences after complaining to HR, plausibly alleged claims of disability bias and retaliation under the ADA. Declining to dismiss his claims, a federal court in Hawaii rejected the employer’s assertion that it only needed to accommodate him on an incident-by-incident basis. Rather, his pleadings indicated that he sought an accommodation whenever necessary, not whenever expressly requested, and he also clearly asserted that the company failed to engage in the interactive process. (Jamile v Island Movers, Inc, DHaw, April 7, 2017, Mollway, S.)

Walmart employee advances bias claim based on disparate pay during management training
A Walmart employee presented evidence that the retail giant paid her less than a male trainee while both were in a management training program, a federal district court in Illinois found, denying Walmart’s motion for summary judgment on her Title VII claim in part. The court granted the motion as to the assistant manager’s claims that the company discriminated against her by denying her requests for promotion and transfer. (Reid v Wal-Mart Stores, Inc, NDIll, April 7, 2017, Kennelly, M.)

Pregnant Chipotle employee denied training, fired after complaining, advances Title VII claims
Denying summary judgment on a former Chipotle employee’s claim that she was unlawfully removed from manager training because of pregnancy, a federal court in Illinois found that, if believed, her testimony that the decisionmaker said he didn’t want to "stress [her] out" during pregnancy would be direct evidence. On her retaliation claim, Chipotle’s justification for firing her (bad attitude) was called into question by the timing of her discharge soon after she reported discrimination and the fact that she was nominated for manager training three times, among other evidence. (Satterfield v Chipotle Mexican Grill, Inc, NDIll, April 6, 2017, Kennelly, M.)

67-year-old selected for RIF over much younger Spanish-speaking peer advances bias claim
A 67-year-old branch coordinator who was selected for lay-off over her 32-year-old peer, purportedly because the younger coworker could speak Spanish to customers, made out her prima facie case under both the modified McDonnell Douglas analysis for mini-RIFs as well as the traditional RIF standard. She also provided sufficient evidence of pretext since it was disputed whether speaking Spanish was actually a requirement of the job. Denying the employer’s motion for summary judgment in part, a federal court in Illinois also tossed her state and federal overtime claims, as well as her claim under the Illinois Personnel Records Act. (Brown v DS Services of America, Inc dba Hinckley Springs, NDIll, March 30, 2017, Kendall, V.)

NLRB reminds employers updated ‘Guide to Board Procedures’ now available
On April 6, the NLRB reminded stakeholders that on February 24, 2017, it had made procedural amendments to Part 102 of the Rules and Regulations. These changes, the NLRB reminded, became effective March 6, 2017.

More well-being programs include employee financial security features
As more employers recognize the impact of financial wellness on employee health, a growing percentage of companies are expanding their well-being programs to include employee financial security, according to the 8th annual survey on corporate Health and Well-being from Fidelity Investments® and the National Business Group on Health®. The survey reveals 84 percent of companies now have financial security programs, such as access to debt management tools or student loan counseling, in their well-being strategies, an increase from 76 percent last year.

CPI for all items falls 0.3% in March, BLS reports
The Consumer Price Index for All Urban Consumers (CPI-U) decreased 0.3 percent in March on a seasonally adjusted basis, the U.S. Bureau of Labor Statistics reported April 14. Over the last 12 months, the all items index rose 2.4 percent before seasonal adjustment.

Real average hourly earnings increase 0.5% in March
Real average hourly earnings for all employees increased 0.5 percent from February to March, seasonally adjusted, the U.S. Bureau of Labor Statistics reported April 14. This result stems from a 0.2-percent increase in average hourly earnings combined with a 0.3-percent decrease in the Consumer Price Index for All Urban Consumers (CPI-U).

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Special Report

Gorsuch confirmed to U.S. Supreme Court after ‘nuclear option’ deployed

After changing the Senate rules to implement the so-called "nuclear option" to make his confirmation subject to a simple majority vote, rather than the 60-vote supermajority that has been preserved for Supreme Court Justices, Neil Gorsuch on April 7 was confirmed to fill the vacancy left by the iconic Antonin Scalia’s passing early last year. Despite deep divides about what many perceive as Gorsuch’s outside the mainstream, conservative bent, the nominee was confirmed by a 54-45 vote on April 7, 2017, the morning after the "nuclear option" was deployed. The mostly party-line vote saw three Democratic lawmakers crossing the aisle to side with Republicans who favored the nominee, while the remaining Democrats and Independents voted against him.

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