News for January 15, 2018

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

Car salesmen who worked Sundays but refused to call and disturb customers' day of rest advance Title VII claims
In two separate cases against the same car dealership by Baptist salesmen who worked on Sundays in order to make a living but refused to make phone calls that would disturb potential customers' day of rest, a federal district court in Arizona denied summary judgment on their Title VII claims that the employer refused to accommodate their bona fide religious beliefs and retaliated when they complained to HR by denying commissions, making derogatory comments, and allowing coworker harassment, among other actions. (Perticone v Bell Motors, LLC and Langford v Bell Motors, LLC, DAriz, January 9, 2018, Campbell, D.)

Airline worker fired for tardiness caused by medically-related TSA-screening delays advances ADA claim
An American Airlines customer services employee who had a medical condition which required her to use a "colostomy apparatus" plausibly alleged that the airline violated the ADA by disciplining and ultimately firing her after she was repeatedly late for work due to medically-related delays at TSA security screening. Denying in part the airline's motion to dismiss, a federal court in Arizona allowed her post-ADAAA disability discrimination claim to advance to discovery, but tossed her breach of contract claim based on her collective bargaining agreement since it was preempted by the Railway Labor Act. (Mitchell v American Airlines, Inc, DAriz, January 8, 2018, Campbell, D.)

Court won't reconsider denial of SJ to employer who arguably fired worker based on FMLA-qualifying absences
An employer who fired a worker after he received three disciplinary notices, two of which may have been issued based on FMLA-qualifying absences, failed to persuade a Kentucky federal court to reconsider its prior decision denying summary judgment on the employee's FMLA interference and retaliation claims. The court rejected the employee's assertion that the employer had access to medical records of his "chronic" back condition through the third-party benefits administrator, but found that triable issues still existed as to whether the employer had notice of his potential need for FMLA leave based on the fact that he called in sick every day, provided other medical records, and was instructed by a manager to return to the doctor to obtain further documentation. (West v Pella Corp, WDKy, January 9, 2018, Russell, T.)

Safeway store director's comments about employee's race, sexual orientation support bias claims
A store director's comments about an African-American and self-identified lesbian employee's race and sexual orientation, including among other things that she was a "lazy black bitch," "I thought dykes, gays were a lot stronger," and "it must be a black thing," were direct evidence of discriminatory animus sufficient to survive summary judgment on her Title VII and state-law discrimination claims, a federal district court in Oregon ruled. Those same comments, combined with other statements made outside the employee's presence and evidence of the director's "special dislike" for her, also helped support her hostile work environment claim. And while her retaliation claim failed in large part, her FMLA interference and retaliation claims also survived summary judgment. (Goldsby v Safeway, Inc dba Safeway #1269, DOr, January 4, 2018, Hernandez, M.)

Trump signs bill making it easier for veterans to obtain CDL
On January 8, 2018, President Trump signed into law legislation aimed at streamlining the process through which active duty military, reservists, and veterans may obtain a commercial driver's license (CDL).



Survey shows 66 percent of companies offering more health and wellness programs than 5 years ago
In a recent survey from staffing firm OfficeTeam, two-thirds of HR managers reported their organization has expanded their health and wellness offerings in the past five years. And these efforts haven't gone unnoticed: 89 percent of workers said their company is supportive of their wellness goals.



CPI for all items increases 0.1% in December
The Consumer Price Index for All Urban Consumers (CPI-U) increased 0.1 percent in December on a seasonally adjusted basis, the U.S. Bureau of Labor Statistics reported January 12. Over the last 12 months, the all items index rose 2.1 percent before seasonal adjustment.



Real average hourly earnings increase 0.2% in December
Real average hourly earnings for all employees increased 0.2 percent from November to December, seasonally adjusted, the U.S. Bureau of Labor Statistics reported January 12. This result stems from a 0.3-percent increase in average hourly earnings combined with a 0.1-percent increase in the Consumer Price Index for All Urban Consumers (CPI-U).



In state law news:

New York governor vows to take on sexual harassment in the workplace
Governor Andrew M. Cuomo has announced a plan for the multi-pronged targeting of sexual harassment in the workplace—it is the 18th proposal in his 2018 State of the State agenda. The governor intends to propose legislation that would prevent public dollars from being used to settle sexual harassment claims against individuals, void forced arbitration policies in employee contracts, and mandate that any company doing business with the State of New York disclose the number of sexual harassment adjudications and nondisclosure agreements they have executed.



New Jersey employers must accommodate breast feeding employees
New Jersey has enacted A.B. 2294 to expand civil rights protections under the state's Law Against Discrimination to include breastfeeding and expressing milk or related medical conditions.



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Special Report

Seyfarth Shaw class action report suggests wage-hour settlements top exposure for companies in 2018

Seyfarth Shaw LLP has released its 14th annual edition of the Workplace Class Action Litigation Report, a complete guide to workplace-related complex litigation, which reveals wage and hour litigation to be the area of greatest exposure for corporations as we move into 2018. In this year's report, Seyfarth analyzed a record number of 1,408 class action rulings on a circuit-by-circuit and state-by-state basis to capture key themes from 2017 and emerging litigation trends facing U.S. companies in 2018. This is the largest edition to date, coming in at 885 pages.



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