News for July 17, 2017

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

Demeanor and communication style, not age, were reason for employee's firing
Citing numerous performance reviews documenting issues with an employee's demeanor and communication style, a written warning for his "argumentative and insubordinate" discussions with his supervisor, his placement on a performance improvement plan due to his "repeated inappropriate feedback," and a string of complaints against him, the Seventh Circuit found it clear that at the time of his termination, his supervisors did not believe he was performing his job adequately. Nor could he show he was similarly situated to a younger employee whom he claimed was treated more favorably despite being a bully, said the court, affirming summary judgment against his ADEA age discrimination claim. Summary judgment was also affirmed against his retaliation claim. (Lauth v Covance, Inc, 7thCir, July 13, 2017, Bauer, W.)

Five years passed since EEOC charge, but deviation from usual rehiring process indicated retaliation
Reversing summary judgment on a former Walgreen employee's retaliation claim, the Seventh Circuit held that, despite the fact that years had passed since she filed EEOC charges of race discrimination, the plaintiff offered sufficient circumstantial evidence of a causal link to support her Section 1981 and Title VII retaliation claims. This included evidence that the district manager who handled her earlier EEOC charges intervened in the 2014 decision not to rehire her, and did so in ways that inexplicably deviated from Walgreens' standard procedures. Walgreens also failed to explain how the plaintiff's application materials went missing. (Baines v Walgreen Co, 7thCir, July 12, 2017, Hamilton, D.)

Employee's request to work registers closest to bathroom should have triggered interactive process
A former Walmart associate, who alleged that her employer denied her request to work the registers closest to the bathroom because of a medical condition, will continue with her pro se lawsuit after a federal district court in Alabama declined to grant summary judgment to the employer on her reasonable accommodation claim. A manager testified that the employee told her she preferred to work in that location "due to a medical condition" and the employer's policy supported the argument that a request to a manager was sufficient to trigger the interactive process. Accordingly, Walmart's motion for summary judgment was declined in part. (Rayford v Walmart Stores, Inc, SDAla, May 4, 2017, Steele, W.)

Seeking religious accommodation not Title VII protected activity
In a closely watched case, the federal district court in Minnesota has granted summary judgment for a hospital that rescinded its conditional offer of employment to a Seventh Day Adventist nurse because she sought a religious accommodation—to not work every other Friday from 11 p.m. - 7 a.m. for religious reasons. Contrary to EEOC guidance, the court expressly found that requesting a religious accommodation, as contrasted with opposing the allegedly unlawful denial of a religious accommodation, was not a protected activity. The EEOC guidance on retaliation, as well as related ADA precedent, was found unpersuasive by the court based on its reading of the plain language of Title VII. (EEOC v North Memorial Health Care, DMinn, July 6, 2017, Doty, D.)

Majority of U.S. workers believe employers should not ask about salary history
According to a new survey from Glassdoor, more than half of U.S. workers (53 percent) believe employers should not ask candidates about their current or past salary history when negotiating a job offer. This survey comes at a time when new laws are being adopted to address this inherent gender bias in long-standing hiring practices.

SHRM poll shows some women's benefits rise while others fall
According to the Society for Human Resource Management's newly released Employee Benefits Survey, 30 percent of organizations currently provide paid maternity leave beyond what is covered by short-term disability or state law, an increase from 26 percent in 2016. However, while some women's benefits are on the rise others are on the decline.

Unemployment rate little changed in June at 4.4%
Total nonfarm payroll employment increased by 222,000 in June, and the unemployment rate was little changed at 4.4 percent, the U.S. Bureau of Labor Statistics reported July 7. The number of unemployed persons, at 7.0 million, was also little changed.

Consumer prices for all items unchanged in June
The Consumer Price Index for All Urban Consumers (CPI-U) was unchanged in June on a seasonally adjusted basis, the U.S. Bureau of Labor Statistics reported July 14. Over the last 12 months, the all items index rose 1.6 percent.

Real average hourly earnings increase 0.2% in June, BLS reports
Real average hourly earnings for all employees increased 0.2 percent from May to June, seasonally adjusted, the U.S. Bureau of Labor Statistics reported June 14. This result stems from a 0.2-percent increase in average hourly earnings combined with no change in the Consumer Price Index for All Urban Consumers (CPI-U).

In state law news:

Washington enacts paid family and medical leave program
Washington Governor Jay Inslee signed Substitute Senate Bill 5975 on July 5, 2017, to provide a paid family and medical leave program in the state. The new law, which was approved in the state Legislature on June 30, 2017, will be in place by 2020.

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Special Report

NLRB rules lacrosse officials were employees of interscholastic athletic association, not independent contractors
Lacrosse officials were employees of the Pennsylvania Interscholastic Athletic Association, Inc. or PIAA, ruled a divided three-member panel of the NLRB, in a 2-1 decision. The Board found that PIAA controlled the manner of work performed by officials; that the officials performed their work in the name of PIAA, and PIAA had wide-ranging rules governing officials' conduct and evaluated their adherence to its policies. PIAA also set game schedules, thereby providing the place and time of work. Moreover, PIAA's control over the officials' compensation system outweighed considerations supporting independent contractor status, so that the method of payment factor also favored employee status. Thus, finding that the PIAA's business was providing a system of fair play, and the officials were an integral part of that business, the Board concluded that the officials were employees (Pennsylvania Interscholastic Athletic Association, Inc., July 11, 2017).

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