By Lorene D. Park, J.D.

Granting summary judgment against discrimination and retaliation claims by a former Home Depot store manager, a federal court in California found that she failed to show she suffered an adverse employment action, as required to support claims under California’s Fair Employment and Housing Act. While she was issued disciplinary write-ups and her supervisor accidentally sent an email about her poor performance to a group of store managers, these were not adverse employment actions, and her decision to quit based on the email did not constitute constructive discharge (Wheeler v. Home Depot U.S.A., Inc., March 22, 2017, Bencivengo, C.).

Hired in 1994 by Home Depot, the employee worked in various positions, including assistant store manager, co-manager, and eventually store manager (SM). In 2005, and again in 2012, she transferred to be SM at different locations. In the last few months of her employment, she received two progressive disciplinary notices from her district operations manager and five manager notes from the HR manager for poor store operations and appearances.

Email sent accidentally to group. On the afternoon of August 25, 2014, the district operations manager sent an email writing that the employee’s store had performed poorly for six months, and that she was not improving and was “at risk.” He meant to send the email to his boss, the district manager, but accidentally sent it to all SMs in the district (11 individuals). One recipient quickly informed him of the error and two minutes after the email, he sent another asking all SM’s to immediately delete the email. He then sent a third email apologizing for any embarrassment and he called the employee to apologize as well. He was later disciplined.

Constructive discharge? Meanwhile, when she received the email, the employee sent it to an HR manager, whom she later met at a coffee shop to discuss the issue. According to the employee, the HR manager asked her not to quit, but she responded that it didn’t make a difference because “if they had decided to terminate me, they were going to terminate me anyway. One way or another, it was going to happen, so why would I postpone it.” The HR manager then asked if she knew anyone that would hire her. According to the employee, this was a hint by the manager that the employee was right. The employee also testified that she had started taking her stuff home about a month before the email, but the email was the “straw that broke the camel’s back” and that was when she decided she had to go. She later sued for age and sex discrimination, as well as retaliation, claiming she had been constructively discharged.

FEHA claims fail. Granting summary judgment against the FEHA discrimination and retaliation claims, the court first found a genuine issue on whether the employee was performing her job satisfactorily despite her disciplinary notices, because a few days before her departure she received a positive evaluation and in her last year, she was in the top five stores in her district and received a bonus. That said, the employee failed to raise a triable question on whether she suffered an adverse employment action.

No adverse employment action. The evidence showed that she voluntarily resigned, and while she claimed constructive discharge, she did not meet the high bar for such a claim because she did not show “sufficiently extraordinary and egregious” working conditions. In the court’s view, the disciplinary notices she received and the embarrassing dissemination of the email concerning her poor performance were simply not enough. There was no evidence, for example, that the employee was also subject to epithets, harassment, or scorn.

Also rejected was the employee’s assertion that the email confirmed that she would receive a final write-up. To the contrary, the email was an internal document, not meant to be seen by the employee, where her supervisor relayed to his superior that she was “at risk.” That did not constitute a final write-up. Nor did the employee provide authority supporting her proposition that her subjective anticipation of an adverse employment action sufficed.

The employee also mischaracterized the evidence by claiming that she was given an “ultimatum” by the HR manager when they met at the coffee shop. To the contrary, her testimony established that the manager expressed concern for ability to find another job and the manager never said anything to the effect of “you will be fired.” Because the employee failed to show that she suffered an adverse employment action, her FEHA discrimination and retaliation claims failed.

Common law claim fails too. The court also granted summary judgment against the employee’s wrongful discharge claim under California common law, explaining that she was not discharged. Her defamation claim failed too. Though she alleged that a Home Depot vender was told that she had been fired for poor performance, she admitted in deposition that she did not know who had made that statement or when. Her lack of evidence was fatal to her claim.

Americans’ confidence in the U.S. economy tumbled last week. Gallup’s U.S. Economic Confidence Index dropped six points to a score of +5 — the lowest weekly average since November.

The underemployment rate for Australian youth aged 15-24 has reached 18% in February, the highest rate in 40 years according to a report from community organisation the Brotherhood of St. Laurence.

The report, titled ‘Generation Stalled: Young, Underemployed and Living Precariously in Australia’, found that in total, more than 650,000 young people were unemployed or underemployed in February 2017.

Underemployed is defined as having some work but wanting more hours. The 18% underemployment rate figure surpassed the youth unemployment rate which stood at 13.5%.

The report also said young people were far more likely to be in casual and part-time jobs than at the beginning of this millennium.

Other key findings show that in the past 15 years the average gap has widened between the actual working hours of young underemployed people and the hours they would like to work. Furthermore, the growing number of young people combining study with work does not explain the rise in underemployment, as the rise in the percentage of casual and part-time jobs has mostly been among young workers who are not studying.

Tony Nicholson, Executive Director at the Brotherhood of St. Laurence commented, ““The record level of underemployment and stubbornly high unemployment particularly hurts the 60% of young people who don’t go to university and lack the qualifications and skills to navigate the fast-changing modern economy.”

“Stable work is the passport for our young people to build a good life for themselves. Young people starting out today face a much harsher job scenario than their parents and grandparents did,” Nicholson said.

The report uses data from the Australian Bureau of Statistics and the Household, Income and Labour Dynamics in Australia Survey.

South Korean lawmakers failed to reach an agreement on reducing the maximum weekly working hours, reports the Korea Herald.

Members of the National Assembly’s Environment and Labour Committee agreed on a proposed reduction to 52 from the current 68 hours would help improve the working conditions and generate more jobs. But they failed to narrow their differences on details such as weekend pay rates and a grace period to be granted to businesses. This means an agreement will fall on the next administration.

South Korea hopes the adoption of shorter working hours would increase jobs especially for young adults. The current Labour Standards Act currently allows workers to work for up to 40 hours during the week and 12 hours for overtime work. But as the labour ministry sees “the week” as excluding Saturday and Sunday, the 52-hour legal limit is stretched to up to 68 hours — 52 hours during weekdays and 16 hours during the weekend.

Some have expressed concern that shorter working hours would negatively impact SMEs. Employers, especially small and medium-sized enterprises, have asked for a grace period, citing how reduced working hours will damage their business environment and lead to an increase in their labour costs.

Unions have opposed a grace period citing that it will allow businesses to further exploit employees. “Setting a grace period is a privilege for large conglomerates that have benefited from illegally making employees work long hours,” The Korean Confederation of Trade Unions said in a statement.

Hiring managers in New Zealand do not care about a candidate’s social media profile, according to research from international recruitment firm Robert Half.

Robert Half’s research revealed the key factors which influence the success of a job search process. None of the hiring managers surveyed say a candidate’s social media profile has any impact on their hiring decisions for both staff-level and management-level positions. Meanwhile, fundamental elements of the job search, such as CVs and interviews, still predominantly determine if a candidate gets the job (or not).

Almost half, or 45%, of New Zealand HR mangers identify the candidate’s CV as the most important factor when recruiting for management-level roles. The figure falls to 38% for staff-level positions. A candidate’s performance during the interview is seen as almost just as important, as almost four in 10 (38%) HR managers say it has the most impact for management-level roles, and by one in three (30%) for staff-level positions.

“The employment market for jobseekers is looking promising in 2017, but at the same time competitive,” Megan Alexander, General Manager at Robert Half New Zealand said. “Candidates who are faced with tough competition for job vacancies should know as much as possible what influences the final decisions of hiring managers. Doing so can mean the difference between being offered the role and being passed over.”

“While social media have secured a fixed place in the recruitment world, the research confirms that the traditional elements in the hiring process, being the CV and the job interview, are still considered to be the most important elements. For jobseekers to succeed, they need to have a stellar CV, and excel during their interview(s),” Alexander said.

The research shows social media profiles as unimportant, however, Alexander cautioned that jobseekers should still be careful.

“Hiring managers do generally check LinkedIn, Facebook or even Twitter profiles before extending an offer. Kiwi jobseekers should therefore polish their online profiles before commencing their job search. Jobseekers can still display some personality online, but they need to make sure to maintain good conduct online at all times, even for private social media channels and especially in the digital age where online profiles are increasingly accessible to almost everyone,” Alexander said.