News for September 18, 2017

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

HR manager who refused to disclose romantic relationship with subordinate lawfully terminated
An employer did not violate Title VII or the FLSA by firing its HR manager for violating company policy when she helped hire a store manager without disclosing their romantic connection and then refused to answer questions about their relationship once employees complained. Affirming dismissal of her gender bias and retaliation claims on summary judgment, the Seventh Circuit found no evidence suggesting that she was treated less favorably than male supervisors who were romantically involved with a subordinate, that she reasonably believed questioning her about her relationship constituted sexual harassment, or that her previous FLSA reports played any role in her termination. (Owens v Old Wisconsin Sausage Co Inc, 7thCir, August 31, 2017, Rovner, I.)

Applicant's failure to communicate regarding testing difficulties dooms reasonable accommodation claim
Because a blind job applicant failed to communicate with her prospective employer regarding the difficulties presented by its required computer testing, she interrupted the ADA's interactive process, a federal magistrate judge in Colorado stated in finding the applicant was precluded from claiming the municipal employer failed to provide a reasonable accommodation. "To hold otherwise," wrote the magistrate "would allow per se liability against an employer each time the initial accommodation provided is ultimately unsuccessful, or ineffective, in enabling the employee to perform the requisite job functions. The ADA's interactive process does not contemplate such liability and the court declines to permit it here." (McFarland v City and County of Denver, DColo, September 5, 2017, Tafoya, K.)

Sex discrimination claim of male employee, fired after attending pregnant wife's appointment, fails
Agreeing with the consensus of the only two cases to squarely address whether a man can bring a discrimination claim under Title VII, as amended by the Pregnancy Discrimination Act, based solely on his wife's pregnancy—that the male must allege he was discriminated against because of his sex—a federal district court in Mississippi found that a male employee's estate failed to plausibly suggest he was treated less favorably than those outside his protected class. Thus, the estate's sex discrimination claim failed as a matter of law. (Estate of Pennington v Southern Motion, Inc, NDMiss, September 6, 2017, Brown, D.)

Accessing other employees' files to help employer defend EEOC charges was not protected activity
A manager in the university police department, who accessed the files of other employees without permission—allegedly in an effort to defend against allegations lodged by two of those employees in EEOC charges—had his Title VII retaliation claims tossed out on summary judgment because he had not engaged in protected activity. Granting the employer's motion, the federal district court further concluded that, even if he had engaged in a protected activity, the employee's breach of his employer's computer access policy provided a legitimate reason for termination and he failed to show that this was pretextual. (Knight v Slippery Rock University, WDPa, September 12, 2017, Bissoon, C.)

IRS issues guidance on leave donation to help hurricane victims
The IRS has stated that cash payments made by employers to Code Sec. 170(c) charitable organizations providing relief for victims of Hurricanes Harvey and Irma in exchange for vacation, sick, or personal leave donated by employees will generally not be included in gross income or wages. In addition, employers will be permitted to deduct the cash payments as business expenses.

Employers look to reduce work-from-home options, but job candidates not on board
While there is a trend among some larger companies of bringing remote workers back into corporate offices, candidates still expect work from home options, according to new data from the MRINetwork 2017 Recruiter Sentiment Study. Increased collaboration, creativity, mentoring and innovation are employers' intent, but they may be alienating top talent in the executive, managerial and professional labor market—a sector that is candidate-driven and challenged by talent shortages across many industries.

CPI for all items rises 0.4% in August as shelter and gasoline indexes increase
The Consumer Price Index for All Urban Consumers (CPI-U) rose 0.4 percent in August on a seasonally adjusted basis, the U.S. Bureau of Labor Statistics reported September 14. Over the last 12 months, the all items index rose 1.9 percent.

Real average hourly earnings decrease by 0.3 percent in August
Real average hourly earnings for all employees decreased 0.3 percent from July to August, seasonally adjusted, the U.S. Bureau of Labor Statistics reported September 14. This result stems from a 0.1-percent increase in average hourly earnings being more than offset by a 0.4-percent increase in the Consumer Price Index for All Urban Consumers (CPI-U).

In state law news:

New York expands unlimited paid sick leave benefits to cover public sector officers and employees who participated in 9/11 response efforts
New York Governor Andrew M. Cuomo signed legislation on September 11 to expand unlimited sick leave benefits for public sector officers and employees who developed a qualifying health condition as a result of their heroic response to 9/11 rescue, recovery, and clean-up efforts at World Trade Center sites.

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