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News for December 15, 2014

Featured this week:

In state law news:

Featured this week:

EEOC’s claim that nurse was fired due to seizures revived on appeal
Finding triable questions of fact on whether a home health care nurse was promoted to a team leader position, whether driving was an essential function for that position, and whether the employee’s inability to drive due to a seizure disorder could have been accommodated in that role, the Fifth Circuit reversed summary judgment for an employer on the EEOC’s claim that it violated the ADA by firing her because of her disability. The conclusion that the employee could not perform the essential functions of a field nurse position, which did require significant driving, was affirmed. (EEOC v LHC Group, Inc dba Gulf Coast Homecare, 5thCir, December 11, 2014, Prado, E.)

Failure to report boorish behavior dooms same-sex/religious harassment claims
A discharged Christian employee’s hostile work environment and retaliation claims were doomed by his admitted failure to report his male coworker’s gender and religious harassment (which included allegedly hitting him on the head with his penis and constantly making fun of his religious beliefs), as well as his inability to establish that any of the alleged conduct was because of his sex. He was also unable to advance his bias claims since he could not refute the employer’s assertion that his two supervisors decided to discharge him based on multiple performance deficiencies. Accordingly, a federal district court in Indiana dismissed his Title VII claims on summary judgment. (Merryman v Sarah Fisher/Hartman Racing, LLC, SDInd, December 3, 2014, Pratt, T.)

EEOC’s conciliation efforts, employee’s case-building may be defenses in HWE case
An employer was denied summary judgment on the EEOC’s claim that an African-American employee was subject to a hostile environment, including a hanging noose and racist remarks. Although the employee never complained of race-based harassment, there was evidence that the employer should have known and failed to act. However, the federal court in Nevada granted the motion on the constructive discharge claim because the employee quit before giving the employer a chance to address the issue. The court reserved judgment on the sufficiency of the EEOC’s conciliation efforts pending the Supreme Court’s decision in Mach Mining. Also denied in part was the EEOC’s motion for summary judgment on the employer’s affirmative defenses. Among other issues, its conciliation efforts and the employee’s focus on case-building rather than reporting harassment could be defenses. (EEOC v Wedco, Inc, DNev, December 4, 2014, Jones, R.)

Nurse tech accused of using pregnancy to avoid work states plausible bias claims
A pregnant African-American nurse technician, who almost went into premature labor after a coworker refused to help her change a patient, and was subsequently accused by a supervisor of using her pregnancy as an excuse for not doing her work, disciplined, and ultimately fired, stated plausible claims of pregnancy and race bias. Moreover, although her state employer was immune from her disability bias claims, she could advance her claim against her supervisor under the New York State Human Rights Law (NYSHRL) that she was denied a reasonable accommodation. Accordingly, a federal district court in New York denied in part the defendants’ motion for judgment on the pleadings. (Jackson v Battaglia, NDNY, December 3, 2014, Hurd, D.)

Report finds CEOs of U.S. small and mid-size businesses can spend up to 46 percent of time on HR issues
TriNet, an HR services provider, has released a survey showing that concerns surrounding HR weigh heavy on the minds and time of CEOs with 33 percent of CEOs citing HR documentation and workplace compliance as their greatest worry, followed by litigation and hiring practices, at 25 and 18 percent, respectively. CEOs surveyed said that they spend an average of up to 46 percent of their time on HR issues. The survey was conducted by eMedia and comprised 469 CEOs of small and medium size businesses from various industries including technology, biotech and financial services.



HR to address employee stress, burnout in 2015, ClearRock says
One of the top human resource challenges of 2015 will be addressing the issue of employees being overwhelmed at work, which often spills over into their personal lives. "More employers are seeing higher levels of employee burnout and stress and are addressing it at the organizational level. Developing policies and procedures that relieve employees' sense of being overwhelmed at work and promote sustainable work habits will be one of the top organizational change management initiatives of 2015," said Ellie Eckhoff, vice president with the leadership development firm ClearRock.



Congress is slammed by machinists’ union for “sneak attack” on ERISA
For what it termed “a stunning betrayal of America’s highly vulnerable retiree population,” and a “sneak attack” on ERISA, the International Association of Machinists and Aerospace Workers (IAM) has lambasted lawmakers who are preparing legislation for the lame duck session of Congress that would overturn one of ERISA’s key tenets and allow drastic cuts to the pensions of current retirees. The legislation, which is being brokered behind closed doors by members of the House Education and Workforce Committee, would be attached to the massive Omnibus Spending Bill, and could take effect without opportunity for hearings or public comment.



Survey looks at workers’ holiday spending plans
According to national staffing company Spherion's "WorkSphere" survey, conducted online by Harris Poll among more than 873 U.S. adults employed full/part-time in November, a majority of American workers don't plan to give gifts to their co-workers (56 percent), boss (59 percent) or other colleagues (61 percent).



In state law news:

Michigan House moves to prevent student athletes at public universities from unionizing
The Michigan House of Representatives has given the green light to a proposal that would ensure student athletes at public universities in the state cannot unionize. The move is likely a preemptive measure in light of recent developments at Northwestern University in Illinois.



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Employment NetNews is a broader look at labor and employment law issues, with both attorneys and HR professionals in mind. Delivered to you every Monday, Employment NetNews offers timely coverage of breaking legislative developments, regulatory activity, state law changes, key case law and expert commentary by wkl&b editors.


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Special Report

Time spent in security checks not compensable, unanimous Supreme Court holds


Amazon.com warehouse workers who must undergo antitheft security screening before leaving the warehouse each day are not entitled to pay for the time spent waiting to undergo those security checks, or actually undergoing them, a unanimous Supreme Court has ruled. Reversing a Ninth Circuit decision to the contrary—which had erred by focusing on the fact that the employer had required the activity—the High Court held the security screenings at issue here are noncompensable postliminary activities under the Portal-to-Portal Act and thus not compensable under the FLSA. (Integrity Staffing Solutions, Inc v Busk, December 9, 2014, Thomas, C.)


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