News for July 16, 2018

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

Failure to report harassment may have been reasonable where employer turned blind eye to past complaints
Because fact questions existed as to whether an employee reasonably failed to avail herself of her employer's procedure for reporting sexual harassment, her Title VII complaint should not have been dismissed on summary judgment, held the Third Circuit. After years of unwanted sexual advances by her supervisor, a secretary brought a sexual harassment claim against him and her employer. The district court held that the employer was not liable because it exercised reasonable care to eliminate the harassing behavior and that, by not reporting the supervisor's behavior, the employee had failed to take advantage of the safeguards put in place by the employer. But the appeals court found that disputed fact issues should have permitted the claim to go to a jury—including evidence of prior harassment complaints against the supervisor, and the employee's genuine fear of reprisal and belief that her complaint would be futile. (Minarsky v Susquehanna County, 3rdCir, July 3, 2018, Rendell, M.)

Employee did not qualify for differential pay while on military leave
Because USERRA does not require employers to provide service members with benefits that exceed those offered to other employees, an employer was not required to pay wages under its differential pay policy to an employee on military leave, ruled a federal district court in Alabama. The differential pay policy was an extra benefit provided to service members on active duty, and the employee did not qualify because his military earnings exceeded his wages with the employer. Moreover, the employer did not treat him differently than any other employee on leave of absence with regard to a life insurance policy. The employee was responsible for paying his portion of the insurance premium while on leave. The employer mailed him direct payment invoices for those premiums, he did not pay those premiums, and his policy was cancelled. He was unable to recover from the employer for the policy lapse. (Duncan v Tyco Fire Products, LP, NDAla, July 5, 2018, Cornelius, S.)

'Layperson understanding' of medical info in doctor's note insufficient to justify ending interactive process
A jury will decide whether PetSmart failed to reasonably accommodate a discharged employee who, after suffering an on-the-job back injury, submitted FMLA paperwork indicating she could return to work if allowed to sit intermittently, but subsequently provided a letter from another medical professional stating that she had additional medical restrictions. Denying both parties' motions for summary judgment, a federal court in Illinois found the company's "layperson understanding" of medical information contained in the second letter was not sufficient to justify its instant termination of the interactive process. However, her disability discrimination claim was tossed since there was no indication she was fired because of her disability, as opposed to an alleged "mistaken belief" that she was not qualified under the ADA. (Kottke v PetSmart, Inc, NDIll, July 6, 2018, Hart, W.)

Failure to seek accommodation or show she was prevented from leaving before sunset bar employee's claims
Because an employee neither showed that she informed her supervisors of her need for a religious accommodation nor cited an instance where she was not permitted to leave the workplace before sunset as her religious practice required, she could not demonstrate that her employer's legitimate nondiscriminatory reason for her termination (poor performance) was pretextual, held a federal district court in Pennsylvania. The employee, a Seventh-Day Adventist, asserted that she was not always permitted to leave the workplace before sundown on Friday in order to meet her religious obligations. But she provided no evidence that her supervisor knew of her need for religious accommodation. Her testimony regarding the one example she cited of being kept past sundown actually demonstrated that she was permitted to leave work 16 minutes before sundown. She also failed to demonstrate pretext on her claims of race and national origin discrimination; the only evidence she presented that her supervisor treated American employees more favorably than Jamaican employees was based on rumor. In addition, she was replaced with a Jamaican woman. (Smith v RC Operator, LLC dba Willow Terrace, EDPa, July 9, 2018, DuBois, J.)

Trump signs whistleblower protection bill into law
On July 9, the White House announced that President Trump has signed the "All Circuit Review Act," which provides permanent authority for judicial review of certain Merit Systems Protection Board decisions related to whistleblowers.

CPI for all items rises 0.1% in June as shelter, gasoline, food indexes increase
The Consumer Price Index for All Urban Consumers (CPI-U) increased 0.1 percent in June on a seasonally adjusted basis after rising 0.2 percent in May, the U.S. Bureau of Labor Statistics reported July 12. Over the last 12 months, the all items index rose 2.9 percent before seasonal adjustment.

Real average hourly earnings increase 0.1% over the month in June, BLS reports
Real average hourly earnings for all employees increased 0.1 percent from May to June, seasonally adjusted, the U.S. Bureau of Labor Statistics reported July 12.

Unemployment rate rises to 4.0% in June, BLS reports
Total nonfarm payroll employment increased by 213,000 in June, and the unemployment rate rose by 0.2 percentage point to 4.0 percent, the U.S. Bureau of Labor Statistics reported July 6. The number of unemployed persons increased by 499,000 to 6.6 million. A year earlier, the jobless rate was 4.3 percent, and the number of unemployed persons was 7.0 million.

In state law news:

Louisiana enacts mandated benefit provisions
Effective January 1, 2019, in Louisiana, minimum coverage of mammography examinations under a health insurance plan must include digital breast tomosynthesis, which is a radiologic procedure that involves the acquisition of projection images over the stationary breast to produce cross-sectional digital three-dimensional images of the breast.

Hawaii Governor signs 11 bills into law, including workers' compensation, equal pay, Title IX, and discrimination
Hawaii Governor David Ige signed several bills into law on July 5, including workers compensation, equal pay and antidiscrimination laws. The measures include multiple "Women's Legislative Caucus" bills.

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Special Report

Sessions rescinds more guidance, including on Obama-era affirmative action

On July 3, Attorney General Jeff Sessions announced the rescission of 24 guidance documents he considers unnecessary, outdated, inconsistent with existing law, or otherwise improper, consistent with his November 2017 memorandum prohibiting the Justice Department from making rules without following procedures required by Congress. The now-rescinded guidance documents addressed topics such as the treatment of juvenile offenders, housing discrimination, and race discrimination in education.

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