News for January 19, 2015

Featured this week:

In state law news:

Featured this week:

Despite 15-month gap, refusing to rehire employee after ADEA complaint suggests retaliation
Explaining that a district court should not have granted summary judgment based solely on a 15-month gap between an employee’s demand letter—which attached secretly recorded comments about why the company was laying off the employee but retaining a younger coworker—and the employee’s application for rehire, the Sixth Circuit in an unpublished opinion explained that all the circumstances should be considered, including the fact that the refusal to rehire was the first opportunity the employer had to retaliate for the employee’s ADEA suit and that it did not discipline other workers who engaged in the same conduct upon which it denied the employee’s application. Summary judgment was reversed and the case remanded for trial (Sharp v Aker Plant Services Group, Inc, 6thCir, January 13, 2015, Cook, D.).

Delayed reinstatement, HR’s mockery support vet tech’s ADA, FMLA claims
An animal autopsy technician, who alleged that her employer delayed in reinstating her and providing her with certain accommodations after three surgeries and who was given a negative evaluation at the instruction of HR employees who mocked her disability, may proceed with her ADA discrimination claims, a federal district court in Connecticut ruled. She could also proceed with a claim based on required retraining after her return, as well as an FMLA interference claim based on one of the reinstatement delays. The employer’s motion for summary judgment was denied in part (Lewis v Boehringer Ingelheim Pharmaceuticals, Inc, DConn, January 7, 2015, Arterton, J.).

‘Arab mentality’ comment, failure to train support resident’s bias claim
Although an Arabic medical resident failed to establish that he was replaced by a person outside of his protected class or to identify a similarly-situated non-Arabic individual who engaged in similar alleged misconduct but who was not terminated, evidence that his supervisor treated him less favorably than his non-Arabic counterparts and made anti-Arabic comments to him was sufficient to support an inference of discriminatory animus, a federal district court in Michigan ruled in denying summary judgment on his federal and state law national origin bias claims. While his breach of contract claim, based on an anti-discrimination provision in his residency agreement also survived, his retaliation claim failed (Jamaleddin v Oakland Physicians Medical Center, LLC, EDMich, January 12, 2015, Leitman, M.).

Military deployment not motivating factor in adverse actions against officer
A former police officer who was treated as having voluntarily resigned his employment when he failed to report to work at the end of his military leave failed to show that his military service was a motivating factor in the adverse employment actions taken against him, ruled a federal district court in Michigan. Moreover, the officer failed to show that his employer’s continuation of his health insurance while he was deployed violated USERRA. Accordingly, the municipal employer’s motion for summary judgment was granted (Eichaker v Village of Vicksburg, WDMich, January 8, 2015, Bell, R.).

‘I’m scared’ and ‘wanna kill someone’ not necessarily threat of violence
Disability discrimination claims by an employee who was fired after sending his supervisor a note stating he was scared, wanted to kill someone, and she should call the police, survived an employer’s motion to dismiss because, as noted by a federal district court in Pennsylvania, he had no history of violence and his instinct during the mental health crisis was to seek help and protect others. It was significant that three weeks passed before his termination, during which time he repeatedly gave notice of his disability and sought treatment, suggesting that any threat of violence had passed before he was fired. Also, while the court was mindful of an employer’s duty to provide a safe work environment, it pointed out that “termination of an employee is hardly a guarantee of safety” (Walton v Spherion Staffing, LLC, EDPa, January 13, 2015, McHugh, G.).

SHRM survey finds organizations unprepared for aging workforce
A new survey from the Society for Human Resource Management (SHRM) shows a lack of preparedness for the anticipated increase in older workers in the labor force, with just over one-third of organizations examining policies and practices to address the demographic change. SHRM’s The Aging Workforce Survey found that an additional 20 percent of organizations had examined their workforce and determined that no changes in policies and practices were necessary.



2014 lowest job-cutting year since 1997
As the last of the numbers came in, 2014 proved to be the lowest job-cutting year since 1997, according to a report by Challenger, Gray & Christmas, Inc. Job cuts declined for a second consecutive month in December, as U.S.-based employers announced plans to reduce payrolls by 32,640. It was the third lowest monthly total of 2014.



In state law news:

More developments on the same-sex marriage front
A federal court in South Dakota has struck down the state’s same-sex marriage ban, granting summary judgment in favor of six same-sex couples on their equal protection and due process challenges to South Dakota’s marriage restrictions. SDCL 25-1-38 declares marriage to be “a personal relation, between a man and a woman.” A voter-approved amendment to the state constitution, enacted in 2006, provides that “Only marriage between a man and a woman shall be valid or recognized in South Dakota.” Both provisions “impermissibly deny plaintiffs their fundamental right to marry” in violation of the U.S. Constitution’s due process and equal protection clauses, the court held.



Michigan law excludes student athletes from unions
According to a January 7, 2015, blog post on Jackson Lewis’ Collegiate and Professional Sports Law Blog, Michigan has become the first state to exclude college athletes at public universities from being defined as “public employees,” preventing such student athletes from a right to form a union, collectively bargain or strike.



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Special Report

A dozen states and D.C. back executive action on immigration


Washington Attorney General Bob Ferguson, joined by his counterparts in 11 other states and the District of Columbia, has filed an amicus brief supporting President Obama’s executive action on immigration policy and arguing against a preliminary injunction to curb that action. A complaint filed last month by a coalition of 17 states challenged the president’s authority to take the actions on immigration policy he announced on November 20, 2014. Both sides have already attracted the support of amici in the controversial case.

The challenged executive action would impact about five million individuals by expanding the population eligible for the Deferred Action for Childhood Arrivals (DACA) program to young people who came to this country before turning 16 years old and have been present since January 1, 2010, and extending the period of DACA and work authorization from two years to three years, according to New York Attorney General T. Eric Schneiderman, who joined in the amicus brief. The president’s action would also allow parents of U.S. citizens and lawful permanent residents who have been in the country since January 1, 2010, to request deferred action and employment authorization for three years in a new Deferred Action for Parental Accountability program, provided they pass required background checks. In addition, the executive action will expand the use of provisional waivers of unlawful presence to include the spouses and sons and daughters of lawful permanent residents and the sons and daughters of U.S. Citizens.



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