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Solar fusion: Industry groups form alliance

BY Ken Clark

The Solar Energy Industries Association (SEIA) and the U.S. Solar Heating and Cooling Council (SHC Council) launched the U.S. Solar Heating & Cooling Alliance (SHC Alliance).

The Alliance is focused on growing the solar heating and cooling market through reducing barriers and advocating for policies on the federal, state and local levels.

The newly elected leaders of the U.S. Solar Heating & Cooling Alliance are:

  • Chair Mike Healy, Skyline Innovations;
  • Vice Chair Matt Carlson, Sunnovations;
  • Treasurer Eileen Prado, SRCC  (Solar Rating & Certification Corporation); and
  • Rotating members Les Nelson, IAMPO  (International Association of Plumbing and Mechanical Officials) and Ole Pilgaard, Heliodyne.

“We’re thrilled that this partnership between SEIA and the U.S. solar heating and cooling (SHC) industry has been established to focus on securing pathways to greater deployment of solar heating and cooling technologies,” said newly elected SHC Alliance Chairman Mike Healy. “This collaboration will empower us to heighten awareness of this technology and the benefits it can provide to families and businesses.”

The SHC Alliance will be governed collaboratively by SEIA and the Alliance’s governing body, the U.S. Solar Heating and Cooling Council. 

The new SHC Alliance outlined its objectives:

  • To catalyze a common vision and raise awareness with all stakeholders, including policymakers, potential customers, investors and financiers;
  • To serve as the coordinated go-to voice on industry issues to ensure stakeholder interests are protected;
  • To energize the industry through collaboration and funding of collective priorities; and
  • To take action to maintain and develop markets for SHC businesses to be a success.

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Housing starts decline in January

BY Ken Clark

The million-starts milestone moved a step away from the home-building industry. But it remains well in sight, as data released Wednesday showed an 8.5% decline in the seasonally adjusted annual rate of housing starts.

The January figure was 890,000, down from an upwardly revised December rate of 973,000, according to the new residential construction data released by the U.S. Department of Commerce. Compared with a year ago, the rate of total housing starts is up 23.6%. 

There was better news on the single-family front, where the rate of new housing starts increased to 613,000, the highest level since July 2008. Single-family starts were up 0.8% from December, and up 20.0% from the same month last year. 

Building permits in January were at a rate of 925,000, up 1.8% from the December rate of 909,000. 

On an unadjusted basis, January saw an estimated 58,500 total starts, and 39,600 single-family starts.

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Court rules against manager in spat with CEO

BY Ilana Pearlman

A store manager’s inability to be physically present at work during the busy season was a legitimate business reason for her termination, the 9th U.S. Circuit Court of Appeals ruled.

Cynthia Lawler had managed a Montblanc retail store in a mall for nearly a decade. The store made a third of its sales during the holiday season. Thus, from Thanksgiving to Jan. 2, Lawler was required to work 60 to 70 hours per week.

Due to her chronic arthritis, Lawler requested a 25-hour workweek. The company responded that the manager job required her full-time presence, and inquired about the nature and scope of her disability and any possible accommodations.

On Aug. 4, 2009, Lawler fell and fractured two toes on one foot. The next day, she drove to the store to use the fax machine to submit her doctor’s certification, which stated that Lawler needed to be off from work until Sept. 2, 2009. She contends that, at the store, she encountered Montblanc CEO Jan-Patrick Schmitz. Schmitz, who was on a routine visit, asked, in an “abrupt, brisk” manner, why Lawler was not professionally dressed. The store manager disclosed her disability status and said she would be leaving the store. In an “intimidating,” “abrupt” and “gruff” tone, Schmitz replied, “We will talk when I get back.” When he returned, he “stared” at her. Lawler claims that Schmitz became “very, very angry” when he noticed that new products were not displayed.

When Lawler tried to respond, Schmitz “got mad that [Lawler] was confronting him.” He also complained about how parts were being stored. The CEO instructed Lawler to give him a report on the racial backgrounds of store customers. When she reminded him that she was on disability leave, he replied, “You will do it or else.”

On Sept. 2, 2009, the day Lawler was scheduled to return to work, her doctor provided a letter recommending that she remain on leave until Jan. 5, 2010, because of her arthritis. In response to an HR inquiry about accommodations that could be provided to permit Lawler to return, the doctor reiterated the leave requirement.

On Oct. 14, 2009, Montblanc sent a termination letter to Lawler because, as she had been advised in July, the company needed a full-time manager in the store. In response, Lawler sued Montblanc for intentional infliction of emotional distress and for disability-related discriminatory termination, retaliation and harassment under the California Fair Employment and Housing Act (FEHA). The trial court dismissed her case on summary judgment, and the 9th U.S. Circuit Court of Appeals affirmed the ruling. The 9th Circuit encompasses California, Arizona, Oregon, Washington, Hawaii, Alaska, Idaho, Montana and Nevada. Appeals court decisions are the law only in the states within that circuit, but other circuit courts may look to their sister court decisions in similar cases.

Under California Law, two of the elements of a claim for intentional infliction of emotional distress are “outrageous” conduct that is so “extreme as to exceed all bounds of that usually tolerated in a civilized society” and emotional distress that is so “severe” that “no reasonable person in civilized society should be expected to endure it.”

First, Schmitz’s “gruff,” “abrupt” and “intimidating” conduct did not meet this test, as the law does not protect employees from impolite communication of dissatisfaction with their work performance. Second, Lawler’s claimed emotional injuries of “anxiety, sleeplessness, upset stomach and sometimes muscle twitches” were not sufficiently “severe” as a matter of law.

Further, to establish a discriminatory disability termination claim under FEHA, an employee must demonstrate that she was able to perform the essential job functions, with or without accommodation. Here, Lawler admitted that her duties could be performed only in the store, and she did not provide any evidence that she could perform any of her responsibilities, regardless of the accommodation.

As to the retaliation claim, once an employee has made an initial factual showing, the defendant employer can rebut the showing with proof of a “legitimate business reason” for the termination. Montblanc’s stated business reason for terminating Lawler — her absence from work — met this test. In this case the company did a third of its annual business during the period in which Lawler could not perform her duties. The fact that the company knew that Lawler’s absences were disability related did not change this analysis.

Finally, to establish a harassment claim under FEHA, the employee must show a concerted pattern of harassment. Unlike discrimination, harassment consists of actions outside the scope of job duties. However, here, all of Schmitz’s actions were related to business operations and Lawler’s position as a manager. Even if the actions had been unrelated to business, this single occasion of “gruff,” “abrupt” and “intimidating” speech was not severe enough to constitute a hostile work environment.

Accordingly, the court of appeals affirmed the trial court’s dismissal of all of Lawler’s claims.

Lawler v. Montblanc North America LLC, 9th Cir., No. 1-16206 (Jan. 11, 2013).

Ilana Pearlman is an attorney with Foster Employment Law, the Worklaw® Network member firm in Oakland, Calif.

Have HR-related questions and concerns? Get access to essential forms, policies and guides, plus a live call center, at ToolkitHR.com, powered by HCN and the Society for Human Resource Management (SHRM).

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