News for January 16, 2017 Featured this week: Third Circuit finds ‘subgroup’ disparate impact claims cognizable under ADEA, creates circuit split Employee proved retaliation for seeking leave to care for autistic child Denying remote work and granting paid leave instead may violate FEHA, but not ADA Employee fired for taking pictures of intoxicated CEO, not reporting sexual harassment New standard on the way for workplace violence in healthcare, social assistance Cyber risks to intensify in 2017 with increased cyber espionage, data integrity attacks, according to report Aon says boosting workers’ retirement savings rates to be primary focus for U.S. employers in 2017 Positive online reviews seem to create recruiting advantage, study shows Unemployment rate of 4.7% shows little change in December, BLS reports In state law news: NY Gov. Cuomo signs executive orders to ensure pay equity in state employment and on state contracts DC Council approves ban on credit information inquiries in employment Kentucky “right to work” laws enacted, prevailing wage requirements repealed Featured this week: Third Circuit finds ‘subgroup’ disparate impact claims cognizable under ADEA, creates circuit split Citing the Supreme Court and emphasizing that the ADEA prohibits discrimination based on age and not status of being age 40 or older, and creating a split among the circuit courts, the Third Circuit concluded that "subgroup" disparate impact claims are cognizable under the ADEA. Accordingly, a lower court erred in granting summary judgment against ADEA claims by a group of plaintiffs who filed a putative collective action alleging that their employer’s reduction in force (RIF) had a disparate impact on individuals age 50 and over. Reversing in part, the appeals court also found that the district court erred in applying too high of a reliability standard and excluding testimony by the plaintiffs’ statistical expert, though its other evidentiary rulings were affirmed. (Karlo v Pittsburgh Glass Works, LLC, 3rdCir, January 10, 2017, Smith, D.) Employee proved retaliation for seeking leave to care for autistic child An employee proved she suffered retaliation for seeking FMLA leave to care for her autistic child, held the Seventh Circuit, upholding a jury verdict. A reasonable jury could find that the company orchestrated her firing because she asked to telecommute two days per week so she could spend some non-work hours taking care of her child, who had been expelled from day care. The FMLA entitled her to take leave necessary "to take care of a very difficult (at times violent) sick child," and evidence at trial supported the jury’s verdict that she was retaliated against for exercising her FMLA rights. On a separate issue, the district court erred in reducing her attorneys’ fee award 20 percent. (Wink v Miller Compressing Co, 7thCir, January 9, 2017, Posner, R.) Denying remote work and granting paid leave instead may violate FEHA, but not ADA Dismissing an employee’s ADA discrimination and failure-to-accommodate claims, a federal district court in California noted that an employer is not required to give a disabled employee her preferred accommodation and the employer here had already done more than was required by providing paid medical leave so she could recover from her back problems. However, the motion to dismiss was denied on her disability-related claims under California’s Fair Employment and Housing Act because implementing regulations don’t allow employers to require leave if other reasonable accommodations would allow an employee to work, and here it was plausible the employee could work from home because she had done so in the past. (Ravel v Hewlett-Packard Enterprise, Inc, EDCal, January 11, 2017, Shubb, W.) Employee fired for taking pictures of intoxicated CEO, not reporting sexual harassment Although an employer had difficulty explaining exactly how an employee’s conduct violated any of its policies cited in her termination letter, this was not sufficient to show pretext, a federal court in Illinois stated, observing that "it is not absurd that taking photos of an intoxicated CEO in her hotel room at a work event will not fit neatly into a violation of corporate policy." Granting summary judgment against the employee’s Title VII retaliation claim, in which she alleged she was terminated for reporting the sexual harassment of another employee, the court found it undisputed she was fired for engaging in unacceptable and inappropriate behavior. (Donley v Stryker Corp, NDIll, January 6, 2017, Kocoras, C.) New standard on the way for workplace violence in healthcare, social assistance On January 10, OSHA held a public meeting on the need for a standard to prevent workplace violence in healthcare and social assistance. The meeting was aimed at supplementing written comments submitted in response to its December 7, 2016, request for information by permitting workers to recount their personal experiences with workplace violence, as well as to provide a forum for a discussion among stakeholders. The agency has also indicated that it will commence rulemaking on a new standard. Read Cyber risks to intensify in 2017 with increased cyber espionage, data integrity attacks, according to report Stroz Friedberg predicts that 2017 will usher in intensified cyber attacks, new regulations and a shift in how businesses approach cyber risk management. Top threats this year include nation state cyber espionage, a rise in data integrity attacks and an increase in attacks harnessing Internet of Things (IoT) devices. Read Aon says boosting workers’ retirement savings rates to be primary focus for U.S. employers in 2017 Despite strong participation in employer-sponsored 401(k) plans, few employers (15 percent) are satisfied with their workers’ current savings rates, according to a new report from Aon Hewitt, the talent, retirement and health solutions business of Aon plc (NYSE: AON). In response, employers are focused on increasing savings rates and will continue to expand financial wellbeing programs this year. Read Positive online reviews seem to create recruiting advantage, study shows A recently published academic study finds that companies with positive online employee reviews may hold a recruiting advantage with job seekers as opposed to companies with neutral or negative reviews. Read Unemployment rate of 4.7% shows little change in December, BLS reports Total nonfarm payroll employment rose by 156,000 in December, and the unemployment rate was little changed at 4.7 percent, the U.S. Bureau of Labor Statistics reported January 6. The number of unemployed persons, at 7.5 million, was also little changed. However, both measures edged down in the fourth quarter, after showing little net change earlier in the year. Read In state law news: NY Gov. Cuomo signs executive orders to ensure pay equity in state employment and on state contracts New York Governor Andrew M Cuomo signed two executive orders on January 9 to ensure pay equity in state employment and on state contracts. Read DC Council approves ban on credit information inquiries in employment The District of Columbia Council has approved a measure that amends the employment discrimination provisions of the D.C. Human Rights Act of 1977 to bar employers, employment agencies, and labor organizations from taking discriminatory employment actions based on an applicant or employee’s credit information, or from even inquiring into, requesting, or using credit information. Read Kentucky “right to work” laws enacted, prevailing wage requirements repealed In a Saturday session, the Republican-controlled Kentucky Legislature on January 7 passed a so-called "right-to-work" measure that, according to Governor Matt Bevin, will bring the state into line with the rest of the southern states in the manufacturing belt. Lawmakers also approved measures requiring written or electronic authorization for labor organization membership and dues deductions, and repealing prevailing wage rates on public works contracts. Read