More American workers voluntarily quit their jobs in May, government data showed on Tuesday, a sign of confidence in the labor market that economists say will soon boost wage growth.

WASHINGTON, DC — Today, the National Labor Relations Board (NLRB) announced it is launching a new pilot program to enhance the use of its Alternative Dispute Resolution (ADR) program. The new pilot program will increase participation opportunities for parties in the ADR program and help to facilitate mutually-satisfactory settlements.

By Nicole D. Prysby, J.D.

Because fact questions existed as to whether a secretary reasonably failed to avail herself of her employer’s procedure for reporting sexual harassment, her Title VII complaint should not have been dismissed on summary judgment, held the Third Circuit. After years of unwanted sexual advances by her supervisor, the secretary brought a sexual harassment claim against him and her employer. The district court held that the employer was not liable because it exercised reasonable care to eliminate the harassing behavior and that, by not reporting the supervisor’s behavior, the employee had failed to take advantage of the safeguards put in place by the employer. But the appeals court found that disputed fact issues should have permitted the claim to go to a jury—including evidence of prior harassment complaints against the supervisor, and the employee’s genuine fear of reprisal and belief that her complaint would be futile (Minarsky v. Susquehanna County, July 3, 2018, Rendell, M.).

The supervisor made unwanted sexual advances towards his secretary for a number of years. She never reported his conduct. The supervisor was warned twice for harassing other employees and eventually fired after his conduct toward the secretary came to light. The secretary then brought a sexual harassment claim against the county and the supervisor. The district court dismissed the case on summary judgment, finding that the county had shown that it should not be vicariously liable for the harassment because it exercised reasonable care to eliminate it and the employee failed to take advantage of the safeguards put in place.

However, the Third Circuit found that the questions whether the county acted with reasonable care to detect and eliminate the harassment and whether the employee acted reasonably in not reporting the harassment should be decided by a jury.

Reasonable safeguards? First, the appeals court considered whether the county exercised reasonable care to prevent and correct promptly any sexually harassing behavior. The county maintained a written anti-harassment policy, but there was evidence that it had turned a blind eye to harassment by the supervisor. He had made inappropriate physical advances to a number of employees, including two women who were in a position to discipline him for his behavior. Although one of them raised the issue with the county commissioner, no reprimand was issued. There was at least a question of fact, the appeals court found, as to whether the county exercised reasonable care to prevent and promptly correct the sexually harassing behavior.

Failure to report. Moreover, the employee did not necessarily act unreasonably by failing to report the supervisor’s behavior. Mere failure to report is not per se unreasonable, the appeals court noted. Here, the employee testified that she needed the job and was afraid of retaliation. The supervisor and employee worked together alone one day a week, and he monitored her on the other days. The power imbalance between the two could have contributed to the employer’s fear of speaking up, the court observed. She presented evidence that the supervisor became ill-tempered when she tried to assert herself (for example, by not answering his phone calls on days she was not working). In other words, the employee’s fear was not just a general fear of retaliation, but was specific and supported by evidence.

In addition, the supervisor had discouraged the employee from using the anti-harassment policy by repeatedly telling her that she could not trust the managers to whom she would have reported the conduct. She also testified that she thought reporting the harassment would be futile since the county knew of his past harassment, yet the conduct continued. Under the circumstances, a jury could find that her non-reporting was reasonable. Therefore, her claims should not have been discarded on summary judgment.

By Marjorie Johnson, J.D.

Addressing the “unique” circumstances faced by nursing home employees who assist mentally impaired residents, the Fifth Circuit revived the hostile work environment and retaliation claims of a certified nurse assistant (CNA) who was subjected to a patient’s repeated harassment and fired after she purportedly swung at him and then refused to treat him following a physical altercation. Dismissal of her Title VII claims on summary judgment was reversed since a jury could conclude that an “objectively reasonable caregiver would not expect a patient to grope her daily, injure her so badly she could not work for three months, and have her complaints met with laughter and dismissal” by her employer (Gardner v. CLC of Pascagoula, LLC, June 29, 2018, Costa, G.).

Sexually aggressive patient. The CNA was trained to deal with “physically combative and sexually aggressive patients,” which was not unusual to have at a nursing home. At issue here were her interactions with one such patient, who had a long history of violent and sexual behavior toward both patients and staff. The patient would grab female caregivers’ “breast[s], butts, thighs,” and try to “grab [their] private areas.” He also regularly asked the staff to perform explicit sexual acts and made lewd sexual comments. When she complained about the patient—who suffered from dementia, traumatic brain injury, and Parkinson’s disease—her supervisor allegedly laughed and an administrator said she needed to put “big girl panties on and go back to work.”

Altercation leads to firing. The CNA continued to care for the patient until one morning when he tried to grope her breast and made sexual comments, and then punched her on her side when she moved. Another CNA attempted to assist, but he struck her again, causing her to seek help from a white nurse, who had more success in calming him. Though they were able to get him into his wheelchair, he punched her a third time when she tried to make the bed. The employee, who is black, then purportedly attempted to swing at him and commented that “I am not doing shit else for [patient] at all” and that “I guess I’m not the right color.” She also refused to work with him and asked to be reassigned, but her request was denied.

That evening, she went to the emergency room and was off work for three months on workers’ compensation. When she returned, she was fired, purportedly for engaging in insubordination by refusing to care for the patient, violating his resident rights by swearing and making a “racist” statement, and attacking him by swinging over his head. Meanwhile, after a separate altercation later that same day with another resident, the patient had been sent for a psychiatric evaluation and moved to an all-male “lockdown” unit.

Wrong summary judgment standard. The district court erroneously tossed the employee’s hostile work environment claim based on its conclusion that it was “not clear” that the patient’s harassing comments and attempts to grope and hit her were beyond what a person in her position should expect of patients in a nursing home. On summary judgment, she only needed to show that a jury could reach that conclusion based on its view of the evidence, and the Fifth Circuit found that she met that burden.

“Unique” circumstances. The multiple years of unwanted sexual grabbing and explicit comments could “certainly” be deemed sufficiently severe or pervasive if the harasser had no mental impairments. However, the case was more complicated because the source of the harassment was the resident of an assisted living facility who suffered from dementia. Therefore, at issue was whether a reasonable person would find the work environment hostile or abusive considering the “unique circumstances involved in caring for mentally diseased elderly patients.”

Level of harm. Examining similar cases involving mentally impaired patients, the Fifth Circuit noted that certain verbal harassment had been deemed insufficient to create a hostile work environment, while triable claims existed when patients engaged in potentially life-threatening sexual assaults. Thus, it appeared that inappropriate comments and incidental contact were “sufficiently common behaviors among patients with reduced cognitive ability that it is not objectively reasonable for a caregiver to expect they will never happen.” However, the facility must take steps to try to protect an employee once there is physical contact “that progresses from occasional inappropriate touching or minor slapping to persistent sexual harassment or violence with the risk of significant physical harm.”

Question for jury. Finding that the patient’s conduct fell in the “middle of this continuum,” the Fifth Circuit held that the frequency and nature of the patient’s conduct, along with its effect on the CNA’s employment, could allow a jury to conclude that a reasonable caregiver would view the harassment as sufficiently severe or pervasive even considering his medical condition. His inappropriate conduct occurred daily, was far more severe than behavior by other residents, consisted of physical sexual assault and violent outbursts, and culminated in an incident that left her unable to work for three months.

Liability. The employer did not convince the appeals court that it was impossible to control the patient’s actions due to his various illnesses. Rather, the court found the employer failed to take reasonable measures to try to remedy the harassment, and supervisors even mocked the employee when she complained. It was not “helpless” in trying to mitigate the patient’s behavior, as other nursing homes have avoided liability by assigning a security escort, reassigning the victimized employee, and offering to remove the patient from the facility. The employer also demonstrated its ability to remedy the situation by eventually sending the patient away to an all-male facility, but only after he assaulted another patient.

Retaliation. The district court also erred in analyzing the employee’s retaliation claim under the McDonnell-Douglas framework. Rather, triable issues existed as to whether she presented direct evidence that her refusal to provide care for the harassing patient was the “but for” cause of her termination. The Fifth Circuit declined to address whether she had engaged in protective activity, however, since the issue had not been addressed by the lower court.

Hiring activity in India registered an increase of 9% in June 2018 when compared to June 2017, according to the latest Naukri JobSpeak Index.

The Naukri Job Speak index for May stood at 2,047.

Hiring across auto and auto ancillary industry increased 26%, year-on-year in June 2018, followed by telecom (23%). Heavy machinery and the Business Process Outsourcing sector stood at 22% and 19% respectively.

“We can expect the job market to be cautiously optimistic and move further north in the months to come,” Naukri.com chief sales officer V Suresh said.

Hiring for freshers (0-3 years) saw an increase of 12% for the same period. For top management level (16+ years) hiring increased 11%. In mid-level management (4-7 years) and sub-senior roles (8-12 years), hiring rose 8% and 6%, respectively compared to the year-ago period.

Among the cities, the metro cities showed a positive hiring sentiment as Hyderabad saw a 10% rise in hiring activity while Chennai and Delhi/NCR witnessed rise of 9% and 8%, respectively. Meanwhile, Mumbai saw a rise of 4% and Bangalore 2% in terms of hiring activity in June 2018 when compared to June 2017.

Artificial intelligence and automation will displace millions of workers in coming years but simultaneously create many new jobs that displaced workers will need to be trained to fill.

An employee who was denied a new position he was evidently qualified for and then terminated shortly after returning from medical leave can proceed with his retaliation claim under the Family and Medical Leave Act (FMLA).

Pet-friendly employer policies are a growing trend that can translate into employee engagement and retention.

California employers will not be penalized for allowing federal immigration enforcement agents without a judicial warrant or subpoena to access their worksites and review employee records after a federal district court temporarily blocked the state from enforcing a key provision of a controversial 2017 law.

​An employee’s retaliation claim under the Family and Medical Leave Act (FMLA) failed because he was unable to prove that the managers who decided to temporarily transfer him knew about his FMLA leave.