News for September 17, 2018

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

Court upholds $250K jury verdict against Costco for customer's stalking of worker
In the EEOC's suit on behalf of a Costco worker who was stalked by a customer, in which a jury awarded $250,000 in compensatory damages, the Seventh Circuit agreed with the lower court that a reasonable jury could find the conduct severe and pervasive enough to create a hostile work environment. Noting that a state court had found the customer violated the Illinois Stalking No Contact Order Act with his actions, which had caused the employee emotional distress, the appeals court explained that "it would be quite something for us to say that a jury acted unreasonably by reaching the same conclusion." However, the appeals court remanded on the denial of backpay, instructing the lower court to address whether backpay should have been awarded for the employee's period of medical leave. (EEOC v Costco Wholesale Corp, 7thCir, September 10, 2018, Barrett, A.)

Transgender applicant, denied job after indicating birth sex on form, advances sex-stereotyping claim
To deny the availability of a sex-stereotyping claim to a transgender individual would be to exclude that person from the Title VII protections laid out in Price Waterhouse, a federal court in Colorado observed, finding the EEOC plausibly alleged facts suggesting sex-based consideration played a role in a company's decision not to hire a transgender job applicant. Although the court refused to dismiss the EEOC and intervening applicant's Title VII sex-stereotyping claims, it would not weigh in on whether they plausibly alleged a claim of discrimination because of sex under Title VII. (EEOC v A&E Tire, Inc, DColo, September 5, 2018, Jackson, R.)

Wal-Mart manager fired after reporting supervisor's remarks about his cane raised triable issues on ADA claims
A disabled Wal-Mart manager, who was fired for safety violations at his store soon after complaining about his supervisor questioning whether he could do his job while using a cane and boot, raised triable issues on his ADA disparate treatment and retaliation claims, considering his supervisor's role in the termination. However, the federal district court in Hawaii found that the supervisor's comments were not enough to create a hostile work environment under the ADA, so it granted summary judgment in that respect. The court also granted the employer's motion against his ADEA claims because he only vaguely alleged age-related comments by his supervisor without specifying what those were, and isolated comments by a different manager were not enough to create a hostile work environment. (Crowley v Wal-Mart Stores, Inc, DHaw, September 11, 2018, Mollway, S.)

Higher manager's bias may have led others to evaluate Muslim employee more harshly
Denying summary judgment on a former Amazon employee's claims that he was unlawfully terminated because he is a Muslim of Syrian national origin, a federal district court in Michigan pointed to evidence that a high-level manager made discriminatory comments and held that a reasonable jury could find that lower-level supervisors took their cue from him and evaluated the employee more harshly than he would otherwise have been evaluated. However, the employee's retaliation claim failed for lack of a causal link between his complaint and his termination six months later. (Haydar v Amazon Corporate, LLC, EDMich, September 7, 2018, McGovern, T.)

Make sure applicants can request reasonable accommodations to digital interviews
On September 7, the EEOC released an informal discussion letter that, while not an official opinion of the Commission, nonetheless reminds employers that they need to keep applicants who are deaf or hard of hearing in mind when extending invitations for digital interviews (typically video or virtual interviews).

Boosting minimum wage did not lead to significant job losses
Contrary to concerns that increasing the minimum wage would result in significant job losses, a new report by the Center on Wage and Employment Dynamics at University of California, Berkeley, finds no such employment effect.

Unemployment rate remains at 3.9% in August
Total nonfarm payroll employment increased by 201,000 in August, and the unemployment rate was unchanged at 3.9 percent, the U.S. Bureau of Labor Statistics reported September 7. The number of unemployed persons, at 6.2 million, changed little.

CPI for all items rises 0.2% in August as shelter, energy indexes increase
The Consumer Price Index for All Urban Consumers (CPI-U) increased 0.2 percent in August on a seasonally adjusted basis, the same increase as in July, the U.S. Bureau of Labor Statistics reported September 13. Over the last 12 months, the all items index rose 2.7 percent before seasonal adjustment.

Real average hourly earnings increased 0.1 % over the month in August
Real average hourly earnings for all employees increased 0.1 percent from July to August, seasonally adjusted, the U.S. Bureau of Labor Statistics reported September 13. This result stems from a 0.4-percent increase in average hourly earnings combined with a 0.2-percent increase in the Consumer Price Index for All Urban Consumers (CPI-U).

In state law news:

Michigan Governor directs departments to go "outside the box" and remove felony questions on occupational licensing and state job applications
The Department of Licensing and Regulatory Affairs (LARA) has removed the checkbox reading "Were you convicted of a felony?" that precedes occupational and construction code licensing applications, according to Michigan Governor Rick Snyder in a September 7 Press Release. The Governor also signed Executive Directive 2018-4 instructing all state departments and agencies to remove the felony question box that precedes job applications on NEOGOV, the website through which residents can apply for state employment.

Delaware enacts new law aimed at preventing sexual harassment in the workplace
A new law to prevent sexual harassment in the workplace is enacted in Delaware. Senate Bill 360, which was signed on August 29 and becomes effective January 1, 2019, defines sexual harassment and makes employers responsible for the sexual harassment of an employee by a supervisor or by another employee when the employer knew or should have known about it and failed to take appropriate corrective action.

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Special Report

NLRB proposes new joint-employer standard tracking vacated Hy-Brand decision

The National Labor Relations Board has taken the widely anticipated step that has been on the radar of labor and employment lawyers for several months—it has released its proposed rule on the standard for determining joint-employer status. Under the proposal, an employer may be considered a joint employer of a separate employer's employees only if the two employers share or codetermine the employees' essential terms and conditions of employment, such as hiring, firing, discipline, supervision, and direction. The putative joint employer must possess and actually exercise substantial, direct, and immediate control over the employees' essential terms and conditions of employment in a manner that is not limited and routine.

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