News for September 8, 2015

Featured this week:

In state law news:

Featured this week:

‘Oldest wholesaler’ told he was ‘too old to keep up’ advances ADEA, state law claims
A 54-year-old salesperson who alleged he was discriminated against based on his age as evidenced by ageist comments and having his territory reduced by over 60 percent and given to younger employee while his sales expectations were ratcheted up by 40 percent, may proceed with his ADEA and state law discrimination and retaliation claims, a federal district court in New York ruled. However, his contract, tort, and unpaid wage claims were dismissed (Giugliano v FS2 Capital Partners, LLC, EDNY, September 1, 2015, Spatt, A.).

Use of n-word, racially segregated bathrooms support hostile environment claim
Although a federal district court in North Carolina found an African-American female employee failed to plausibly allege that she was discharged due to her race, her hostile work environment claim could proceed to discovery. The owner/director’s alleged degrading and humiliating comments, including repeatedly using the word “n***er” and referring to her as a “pickaninny,” along with the employee’s claim that the agency maintained racially segregated bathrooms and installed a racially offensive portrait in the director’s office, “painted a portrait” of a workplace permeated with racial hostility (Johnson v Earth Angels, MDNC, August 21, 2015, Biggs, L.).

Employee put on PIP, fired days after announcing pregnancy advances bias claims
A bank manager who was placed on a performance improvement plan just three days after announcing her pregnancy and fired six days later, reportedly for her late arrival times, presented sufficient evidence of pretext for her federal and state law pregnancy discrimination claims to survive summary judgment, ruled a federal district court in Oklahoma. Not only was there evidence that her employer knew at the time it hired her that she would be arriving at 9:00 a.m. several days a week and that it acquiesced to this, her PIP contained no discussion of her arrival times. Nor was the court willing to find as a matter of law that her actions to mitigate damages and secure a job after giving birth—in which she performed an online job search once a week that lasted less than an hour—were unreasonable (Gibson v Mabrey Bank, NDOkla, August 31, 2015, Eagan, C.).

No gender bias in firing mother of five after missing work for kids’ dental appointments
“Title VII is not a ‘get out of work free’ card for parents with young children—whether male or female,” explained a federal district court in Wisconsin in granting summary judgment against the sex discrimination claim of an employee fired after missing work to take her children to the dentist. While the evidence might allow a jury to infer she was terminated in part because of her family responsibilities, there was simply nothing in the record to suggest she was fired because she was female, said the court, in observing that “this is not a distinction without a difference” (Gingras v Milwaukee County, EDWis, August, 31, 2015, Stadtmueller, J.P.).

Annual EEO-1 survey now open
The EEOC announced that it has completed its mailing of the 2015 EEO-1 survey notification letters and the survey is now open. The EEO-1 is an annual survey that must be filled out by all private employers with 100 or more employees, and federal government contractors or first-tier subcontractors with 50 or more employees and a contract/subcontract of $50,000 or more. The filing deadline is September 30, 2015.

Almost half of employers participating in survey believe ban the box laws are unfair
Nearly half of employers (48 percent) believe ban the box laws—which outlaw the checkbox on job applications that asks candidates if they've ever been convicted of a crime—are unfair to them, according to a survey of more than 500 individuals conducted by EmployeeScreenIQ. What's more, more than half of employers (53 percent) continue to ask candidates to self-disclose criminal histories on applications, despite the growing number of ban the box laws and Equal Employment Opportunity Commission guidance that advises against the practice.

New survey shows students want employers to help manage student loans
With record amounts of student debt attached to the incoming workforce, the majority of the 1,000 individuals with student loans surveyed by Iontuition view employee benefits that address education loans as a breakthrough and welcomed solution.

Unemployment rate edges down to 5.1% in August, BLS reports
Total nonfarm payroll employment increased by 173,000 in August, the number of unemployed persons edged down to 8.0 million, and the unemployment rate edged down to 5.1 percent, the U.S. Bureau of Labor Statistics reported September 4. Over the year, the unemployment rate and the number of unemployed persons were down by 1.0 percentage point and 1.5 million, respectively.

In state law news:

Back to school: Illinois Dept. of Labor issues factsheet on school visitation rights
As students head back to school, Illinois employers should be prepared by brushing up on the state’s “School Visitation Rights Act.” The Illinois Department of Labor enforces the Act, a law which provides for the granting of leave for employees to attend school conferences or classroom activities of their children when such activities cannot be rescheduled during non-work hours.

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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

In long-anticipated decision, divided NLRB loosens joint employer standard

As widely expected, a divided NLRB has loosened its standard for determining joint-employer status under the NLRA. In a press statement announcing the release of the long-awaited decision, the Board said its newly adopted standard serves “to better effectuate the purposes of the Act in the current economic landscape,” noting that more than 2.87 million U.S. workers were employed through temporary staffing agencies as of August 2014, and that the previous standard has failed to keep up with the changing employment relationship, “particularly the recent dramatic growth in contingent employment relationships,” the decision notes.

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