News for April 20, 2015

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In state law news:

Featured this week:

Discharge after deployment, arguably to avoid filling Guardsman’s job on temporary basis, may be actionable
A National Guardsman who was terminated shortly after he advised his employer that he was being deployed to Afghanistan survived the employer’s motion for summary judgment on his USERRA claim. Observing that the company used complaints about the employee’s behavior and performance that suddenly surfaced after four years of positive performance reviews, a federal district court in Alabama concluded that the employee raised material fact issues regarding whether the employer acted to avoid having to find a temporary fill for his position (Guy v Alabama Power Co, MDAla, April 14, 2015, Thompson, M.).

Employee burned ADEA claim by admitting he cooked food in self-made break room
Granting summary judgment for a hospital on an employee’s ADEA claim, a federal court in Ohio ruled that he failed to show pretext where he was fired after admitting to safety violations that were revealed when an internal inspector discovered his self-made break room, complete with hot plate, skillet, toaster, and fridge full of raw eggs, juice, milk, meat, cooking oil, and more. The employee was a well-regarded maintenance mechanic who worked for the medical center for 42 years. His justification that the contraband was no problem because he had successfully hidden it from compliance agencies in the past did not change the fact that the conditions in the air handling room presented hazards that violated several code provisions the hospital needed to satisfy to maintain accreditation (Allen v Atrium Medical Center, S.D. Ohio, April 14, 2015, Beckwith, S.).

Employee terminated for refusing drug test, not for shy bladder syndrome
An employee who was terminated for refusing to take a drug test when he left a medical clinic after approximately two hours because he could not produce a urine sample cannot proceed to trial on his ADA disability discrimination and failure-to-accommodate claims where he failed to inform anyone about his shy bladder syndrome until after his termination, a federal district court in Ohio ruled in granting the employer’s motion for summary judgment and denying the employee’s. Not only did the employee fail to show that the vice president of HR did not make a reasonably informed and considered decision, he failed to show that she lacked an honest belief that leaving the clinic without providing a urine sample did not constitute a refusal to submit to a test as delineated in the company’s drug-free policy (Lucas v Gregg Appliances, Inc, SDOhio, April 15, 2015, Black, T.).

Shy bladder disability might require accommodation under state law
Rejecting an employer’s attempt to assert the equitable defense of laches as a bar to an employee’s race-based harassment claim, a federal district court in Virginia found that despite waiting almost three years to first inform a supervisor of the alleged conduct, the employee raised fact issues as to the extent of prejudice her employer suffered. But, warned the court, if the facts at trial established that she unreasonably delayed in complaining and such delay prejudiced her employer, it would “craft the appropriate remedy to achieve equity.” The employer’s motion for summary judgment was denied (Brink v McDonald, EDVa, April 14, 2015, Davis, M.).

Mental health parity journey continues on long and winding road
Although progress is being made in achieving parity between mental health/substance use treatment and medical/surgical benefits, there’s a long way to go. That’s according to a report by the National Alliance on Mental Illness (NAMI). The report was based on a survey of 2,720 consumers and an analysis of 84 insurance plans in 15 states.

Employers may want to dust off the ‘talking politics at work’ rules
As new entrants in the 2016 presidential race seem to appear daily, one employment authority warns that divisive campaign politics could leak into the workplace and adversely impact productivity and morale.

Survey looks at how American workers use and appreciate health benefits
Americans highly value and depend on their employee benefits — health insurance in particular — but lack the savvy and initiative to ask doctors, "How much will it cost?" That question could mean the difference in thousands of dollars for consumers, and millions for U.S. companies. These are among the findings from a new national survey of more than 2,000 employees, led by Benz Communications and Quantum Workplace.

CPI for all items rises 0.2% as gasoline and shelter prices rise
The Consumer Price Index for All Urban Consumers (CPI-U) increased 0.2 percent in March on a seasonally adjusted basis, the U.S. Bureau of Labor Statistics reported April 17. Over the last 12 months, the all items index declined 0.1 percent before seasonal adjustment.

Real average hourly earnings increase by 0.1 percent in March, BLS reports
Real average hourly earnings for all employees increased 0.1 percent from February to March, seasonally adjusted, the U.S. Bureau of Labor Statistics reported April 17. This result stems from a 0.3-percent increase in average hourly earnings being partially offset by a 0.2-percent increase in the Consumer Price Index for All Urban Consumers (CPI-U).

In state law news:

Revised FMLA definition of “spouse” not being enforced in Texas, Arkansas, Louisiana, Nebraska
Consistent with a preliminary injunction imposed by federal court in Texas on March 26, the Department of Labor has confirmed that it will not be enforcing in Texas, Arkansas, Louisiana, and Nebraska its final rule revising the definition of “spouse” under the FMLA to include employees in same-sex marriages.

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Special Report

Equal Pay Day underscores gender-based wage inequities

On Tuesday, April 14, to mark this year’s Equal Pay Day, two members of MomsRising, an online and on-the-ground grassroots organization that says it is working to achieve economic security for all families in the United States, joined Senator Barbara Mikulski (D-Md.) on Capitol Hill to share their stories about wage discrimination. AnnMarie Duchon of Massachusetts discussed her seven-year struggle with unequal pay.

“April 14 is Equal Pay Day, which acknowledges that on average, it takes women 15 months to earn what men make in 12, and it takes women of color and mothers even longer,” MomsRising said in a release. “That means it can take women a quarter of a year or longer to catch up to men’s wages, and that’s just shameful.”

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