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    EEOC Releases New Digest of EEO Law

    Posted by Nicole Prysby on Wed, Oct 5, 2016 @ 17:10 PM

        The EEOC announced that it has released the latest edition of the Digest of Equal Employment Opportunity Law (EEO Digest), featuring an article on “Discrimination on the Basis of Mental Health Conditions Under the ADA and Rehabilitation Act.” The article discusses some cases specifically dealing with how to accommodate employees with mental health conditions, including modified work environments, use of leave, and reassignment. The digest is available at:


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    Topics: EEOC, disability discrimination

    Court Supports EEOC’s Position on Wellness Programs; Finds Them Subject to ADA

    Posted by Nicole Prysby on Thu, Sep 29, 2016 @ 15:09 PM

         In a Wisconsin case involving a wellness program, Orion Energy Systems argued that its program was not subject to scrutiny under the ADA because of the ADA’s insurance safe harbor provision. The plan required employees to undergo medical tests for the wellness program or pay 100% of the health insurance premium. Orion also argued that the wellness plan was voluntary and therefore lawful under the ADA. The court rejected Orion’s argument that the plan was not subject to scrutiny under the ADA but did find that the plan was lawful under the ADA because it was voluntary. However, the case will go forward because the court also found that there were issues of facts regarding whether the employee was fired in retaliation for her opposition to the plan. For additional information, see EEOC’s press release: https://www.eeoc.gov/eeoc/newsroom/release/9-23-16b.cfm.

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    Topics: ADA, retaliation

    EEOC Sues M&T Bank, Alleging Disability Discrimination

    Posted by Nicole Prysby on Tue, Sep 27, 2016 @ 11:09 AM

         The EEOC alleges that M&T Bank failed to provide a reasonable accommodation and fired a bank manager after she returned from pregnancy leave. The woman had worked as a branch manager in Baltimore for several years when she became pregnant and informed upper management that she would need surgery to prevent a miscarriage. She then went on FMLA leave. While she was on leave, M&T told her that the bank would fill her position unless she returned to work within 10 days. She was unable to return to work until after the birth, at which time she applied for vacant positions. M&T failed to reassign her to a vacant position, including 24 vacant branch manager or assistant branch manager jobs for which she was qualified. For additional information, see EEOC’s press release: https://www.eeoc.gov/eeoc/newsroom/release/9-23-16.cfm.


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    Topics: EEOC, disability discrimination, FMLA

    EEOC Sues Wynn Las Vegas for Disability Discrimination

    Posted by Nicole Prysby on Tue, Sep 20, 2016 @ 16:09 PM

         EEOC has announced a lawsuit filed against the Wynn Las Vegas for disability discrimination. The charge alleges that the Wynn failed to engage in the interactive process required to identify a reasonable accommodation. The accommodation was requested by one of its security guards, a veteran who was disabled with PTSD. EEOC also alleges that in addition to denying the employee a reasonable accommodation, the Wynn retaliated against him by suspending him after he filed a complaint with the EEOC. For additional details, see EEOC’s press release: https://www.eeoc.gov/eeoc/newsroom/release/9-16-16.cfm

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    Topics: EEOC, disability discrimination, retaliation

    School District Resolves Equal Pay Act Claim

    Posted by Nicole Prysby on Tue, Sep 13, 2016 @ 12:09 PM

         The Montevideo School District in Minnesota has signed a conciliation agreement under which it agrees to pay $50,000 to a female employee who was classified as a custodial aid but performed the duties of a custodian. Her male co-worker was classified as a custodian and received pay at almost double the female’s hourly rate. For additional details of the agreement, see the EEOC news release at https://www.eeoc.gov/eeoc/newsroom/release/9-7-16b.cfm.

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    Topics: employment, equal pay, EEOC

    Final EEOC Guidance on Retaliation

    Posted by Nicole Prysby on Thu, Sep 1, 2016 @ 09:09 AM

         On August 29, the EEOC issued final Enforcement Guidance on Retaliation and Related Issues. The new guidance is part of the EEOC Compliance Manual and is available at https://www.eeoc.gov/laws/guidance/retaliation-guidance.cfm. The guidance provides detailed examples to help employers understand what types of actions may constitute retaliation. Retaliation is now the most frequently alleged form of discrimination and in FY2015, accounted for almost 40,000 filings, or approximately 45% of discrimination charges filed.

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    Topics: employment law, EEOC, retaliation

    State Equal Pay Act Changes

    Posted by Nicole Prysby on Tue, Aug 30, 2016 @ 14:08 PM

        Several states have recently modified their Equal Pay Acts, increasing the scope of those laws. For example, California eliminated its requirements that to be actionable, the wage differential must be within the “same establishment” and the work must be “equal.” Rather than being “equal” the work must now be “substantially similar” and the modified establishment language means that the prohibition could potentially apply across an entire business, not merely to a single physical location.  (Cal. Laws 2015, Ch. 546). Similarly, New York modified its law so that the term “same establishment” is now defined as workplaces in the same geographic region no larger than a county. (N.Y. Laws 2016, Ch. 362). In Massachusetts, a recent change to the law (effective 1/1/2018) will prohibit employers from requesting salary history during the job interview process. The new legislation also updates the definition of “comparable work” to clarify that it means work that is substantially similar in skill, effort, and responsibility. (Mass. Laws 2016, Ch. 177).

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    Topics: equal pay, Equal Pay Act, employment law

    PUBLIC EMPLOYMENT: "A Law" Does Not Include an Agency Regulation

    Posted by John M. Stone on Thu, Aug 18, 2016 @ 10:08 AM

    John Stone, Senior Attorney, National Legal Research Group

         It is commonly understood that substantive agency regulations that are promulgated pursuant to statutory authority typically have the "force and effect of law." See Perez v. Mortg. Bankers Ass'n, 135 S. Ct. 1199, 1204 (2015). That does not mean, however, that for all purposes and in all contexts, a law is the same as a statute, and vice versa.  The point is illustrated by a recent decision by the Court of Appeals for the Federal Circuit, where the presence of a one-letter word, "a," was a part of the court's reasoning. Rainey v. Merit Sys. Prot. Bd., No. 2015-3234, 2016 WL 3165617 (Fed. Cir. June 7, 2016).

         A Foreign Affairs Officer in the Department of State was relieved of his duties as a contracting officer representative. The officer filed a complaint with the Office of Special Counsel, alleging that his duties had been taken away because he had refused his supervisor's order to tell a contractor to rehire a terminated subcontractor. He argued that his refusal was based on his view that carrying out the order would have required him to violate a federal regulation, by improperly interfering with personnel decisions of a prime contractor and requiring the prime contractor to operate in conflict with the terms of the contract.

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    Topics: public employment, John M Stone, Department of Homeland Security v. MacLean, agency regulations, right-to-disobey provision

    Recent Equal Pay Developments

    Posted by Anne B. Hemenway on Wed, Jun 22, 2016 @ 10:06 AM

    The Lawletter Vol 41 No 5

    Anne Hemenway, Senior Attorney, National Legal Research Group

         Under the Equal Pay Act, 29 U.S.C. § 206(d), no covered employer shall discriminate on the basis of sex by paying wages to employees at a rate less than the rate paid to employees of the opposite sex for equal work. In Hesterberg v. Tyson Foods, Inc., Case No. 5:14-CV-05382, 2016 WL 483017 (W.D. Ark. signed Feb. 5, 2016), the court held that to establish a prima facie claim for damages under the Equal Pay Act, the complaining party must show by a preponderance of the evidence that "(1) she was paid less than a male employed in the same establishment, (2) for work on jobs requiring skill, effort and responsibility, (3) which were performed under similar working conditions." Id. at *5. The employer will be entitled to summary judgment and dismissal of the equal pay suit if it can show that any pay differential between the plaintiff and her male counterpart is explained by a statutory defense such as a merit system or some excuse other than sex.

         The plaintiff in the case alleged that her immediate supervisor, who was male, had total discretionary authority over the amount of bonuses paid and percentage raises given to her and her male counterparts and that his decisions regarding these forms of compensation were largely subjective. She argued that her comparatively lower bonuses and percentage raises in the years in question were the result of the males' being treated more favorably. Recognizing that employers can "easily circumvent the Equal Pay Act by relying substantially on bonuses to compensate employees," id. at *6, the court denied the employer's motion for summary judgment. Genuine issues of material fact existed as to whether the employer's merit system, on which the employer relied to justify the pay differential in this case, had been implemented at the company in a truly nondiscriminatory way.

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    Topics: employment law, Anne Hemenway, bonuses, 29 U.S.C. § 206, equal pay, Equal Pay Act

    FMLA: Individual Liability and the Need for Clear Communication

    Posted by Suzanne L. Bailey on Tue, Jun 21, 2016 @ 17:06 PM

    The Lawletter Vol 41 No 5

    Suzanne Bailey, Senior Attorney, National Legal Research Group

         A recent case from the Second Circuit Court of Appeals sets forth new Second Circuit standards for addressing certain issues under the Family and Medical Leave Act ("FMLA"), 29 U.S.C. §§ 2601–2654, and the employment discrimination provisions of the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12111–12117, and provides a set of facts on how not to respond to an employee's request for FMLA leave. Graziadio v. Culinary Inst. of Am., No. 15-888-CV, 2016 WL 1055742 (2d Cir. Mar. 17, 2016).

         The plaintiff, Cathleen Graziadio, had been employed at the Culinary Institute of America ("CIA") as a Payroll Administrator for five years on June 6, 2012, when she notified her direct supervisor that she needed to take FMLA leave to care for her 17-year-old son, who had been hospitalized as a result of previously undiagnosed Type I diabetes. At Graziadio's request, the necessary FMLA paperwork was forwarded to her by the appropriate employee. Graziadio returned to work on June 18, 2012, and on or about June 27, 2012, she submitted a medical certification supporting her need for leave to care for the 17-year-old son. That same day, June 27, Graziadio's 12-year-old son underwent surgery after having fractured his leg playing basketball, and Graziadio promptly notified her supervisor that she would need immediate leave to care for her son and that she expected to return the week of July 9 at least part-time. On July 9, Graziadio responded to her supervisor's request for an update, stating that she would need to work a reduced, three-day-week schedule until mid-to-late August and could return on Thursday, July 12, if that schedule were approved. She also asked, as she had in prior emails, if there was "any further documentation that [the CIA] may need from me." Id. at *1. At this point, the supervisor reached out to the CIA's Director of Human Resources, and matters got complicated.

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    Topics: employment law, Americans with Disabilities Act, Suzanne Bailey, Family and Medical Leave Act

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