News for August 21, 2017

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

Medical marijuana anti-discrimination law not preempted by federal law
In an issue of first impression, a federal district court in Connecticut found an implied private right of action under Connecticut's Palliative Use of Marijuana Act (PUMA), and further held that federal law did not preempt the PUMA discrimination claim of a registered medical marijuana user whose job offer was rescinded after she tested positive, even though she explained to the employer that she only took synthetic cannabis at bedtime and was not under the influence at work. In finding no preemption, the court explained the federal Controlled Substances Act (CSA) does not regulate the employment relationship and that the ADA does not regulate non-workplace activity. (Noffsinger v SSC Niantic Operating Co, LLC, DConn, August 8, 2017, Meyer, J.)

African-American employee may proceed with claim employer targeted blacks for termination
An African-American woman who was given steadily reduced hours, denied a pay raise, and permanently removed from the work schedule, could proceed with her claims for race discrimination and retaliation under 42 U.S.C. § 1981, ruled a federal district court in Georgia. There was sufficient evidence from which a jury could find an intentional and workplace-wide effort to reduce the number of African-American workers, and that consequently, shortly after the employee complained of racial discrimination, the employer reduced the employee's hours, and then claimed that she requested to be removed from the work schedule and had attendance issues as a pretext for racial discrimination and retaliation. (Trice v Infinity Staffing Solutions, LLC, NDGa, August 16, 2017, Duffey, W.)

Failure to allege he acted effeminately did not doom employee's sex-stereotyping claim
It is not a bar to a sex discrimination claim that a supervisor associated an employee's behavior with being gay as well as with defying sex stereotypes, a federal district court in Pennsylvania explained, finding that a gay employee stated a viable Title VII sex-stereotyping claim even though he did not allege that he actually acted effeminately. Denying in part the defendants' motion to dismiss, the court also found he was entitled to discovery with respect to which company or companies acted as his employer and which local jurisdiction encompassed his place of employment. (Doe v WM Operating, LLC dba Meadowview Rehabilitation & Nursing Center, EDPa, August 7, 2017, O'Neill, T.)

Evidence sufficiently suggests employee was fired for seeking FMLA leave, not dishonest expense reports
An employee told that he was fired for dishonestly for seeking reimbursement for expenses advanced to trial on his claim that the employer's proffered explanation was pretext for FMLA retaliation. Overruling the employer's objections and adopting a magistrate judge's recommendation that its motion for summary judgment be denied, a federal court in South Caroline held that while some evidence supported the employer's explanation, there was also sufficient evidence of retaliation to go to the jury. (Cannon v Equilon Enterprises, LLC, DSC, August 15, 2017, Duffy, P.)

Executive order does not release employers from shared responsibility payments
The IRS has issued two information letters in response to inquiries about employer shared responsibility payments (ESRP) under the Patient Protection and Affordable Care Act (ACA). In the letters, the IRS emphasizes that, despite a recent executive order issued by the Trump administration, Code Sec. 4980H still provides that, if an applicable large employer (generally, one with at least 50 full-time employees, including full-time equivalent employees) fails to offer health coverage to its employees, it may be liable for the ESRP. The IRS adds that there is no provision in the ACA that provides for a waiver of the ESRP.

New OFCCP web pages contain enforcement statistics, wage disparity data
Providing a wealth of insight into over a decade of its enforcement activity, the OFCCP has recently added enforcement statistics and wage disparity data to its website. Under the “Resources” section of the OFCCP's homepage are links to two new pages: “OFCCP by the Numbers” and “Earnings Disparities Data.”

Survey shows financial stress could cost U.S. employers up to $250 billion annually in lost wages
Mercer has released the second installment of the Inside Employee Minds Financial Wellness Survey, which found that employers could lose up to $250 billion in lost wages due to employees' stress about their personal finances. Employees reported spending approximately 150 hours annually of their work time worrying about money.

CPI for all items rises 0.1% in July
The Consumer Price Index for All Urban Consumers (CPI-U) rose 0.1 percent in July on a seasonally adjusted basis, the U.S. Bureau of Labor Statistics reported August 11. Over the last 12 months, the all items index rose 1.7 percent.

Real average hourly earnings increase 0.2% in July, BLS reports
Real average hourly earnings for all employees increased 0.2 percent from June to July, seasonally adjusted, the U.S. Bureau of Labor Statistics reported August 11. This result stems from a 0.3-percent increase in average hourly earnings being partially offset by a 0.1-percent increase in the Consumer Price Index for All Urban Consumers.

In state law news:

Illinois expands workplace protection for sincerely held religious practices
Illinois Governor Bruce Rauner has signed a law providing that it is a civil rights violation for an employer to impose as a condition of obtaining or retaining employment any term or condition that requires a person to violate or forgo a sincerely held practice of his or her religion.

Independent contractor misclassification bill signed into law in North Carolina
North Carolina Governor Roy Cooper on Friday, August 11, signed into law the Employee Fair Classification Act, a measure that creates a separate division within the state's industrial commission to take reports from the public on independent contractor misclassification and investigate them.

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Special Report

States weigh in, oppose DOL persuader rule

A 17-state coalition of attorneys general has urged the Department of Labor to rescind its Obama-era Persuader Rule in response to the agency's request for comments. In an August 11 letter to DOL Secretary R. Alexander Acosta, a coalition led by Texas Attorney General Ken Paxton contends that the much-maligned regulation will increase legal costs for employers and also threatens to undermine "the long-standing and sacred attorney-client privilege."

According to the letter, the revised Persuader Rule "upended five decades of established federal labor policy and would have made it more difficult and expensive for small businesses to obtain legal advice."

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