Although many employers have not yet been sued for an alleged wage and hour violation, if it happens, it often is quite shocking for the employer. The claims are expensive to defend and can result in significant damages, payable of course by the employer. Further, many employers do not have Employment Practices Liability (EPL) insurance, and those who do have such coverage for employment related matters often mistakenly believe that their EPL policy provides coverage for wage and hour claims. Unfortunately, the majority of EPL policies exclude coverage for wage and hour claims, and when such coverage is available it is often only for defense costs. Thus, employers should check their EPL polices to determine whether or not coverage for wage and hour claims is offered and if not contact their insurance broker to discuss obtaining such coverage. All employers should have some form of EPL coverage in place to protect against the plethora of employment related claims that can arise from the workplace. Read More.
The Food Farmacy, Ltd. and J&T Enterprises, LLC, doing business as Foodworks, a chain of grocery stores in Connecticut, will pay $25,000 and furnish other relief to settle a disability discrimination lawsuit filed by the U.S Equal Employment Opportunity Commission (EEOC). According to the EEOC's suit, Foodworks allegedly asked disability-related questions of a class of applicants before offering them jobs. The questions included "Do you have any health problems?" on applications and asking applicants in interviews whether they had any health/ physical problems; whether they were on any medications; and if so, which medications. The EEOC also alleged that when an employee with epilepsy had a seizure at work, Foodworks fired the employee a few days after the seizure, despite the employee having performed his job successfully and presenting medical documentation indicating he was capable of returning to his normal work day. Read More.
The U.S. Equal Employment Opportunity Commission (EEOC) filed suit against Direct Optical, Inc., a Michigan eyewear retailer, for allegedly discriminating against an optician because of her disabilities. The EEOC has charged that Direct Optical discriminated against Laurel Miller because of her disabilities -- generalized anxiety disorder, depression, and post-traumatic stress disorder -- when it denied her request to use her service dog at work. The complaint further alleges that Direct Optical terminated Miller because of her disability (including for minor performance issues that her service dog could have prevented), and in retaliation for her accommodation request. The EEOC is seeking injunctive relief prohibiting Direct Optical from discriminating against other employees with disabilities; equitable relief that provides equal opportunities for qualified employees with disabilities; lost wages; compensatory and punitive damages; and other relief. Read More.
Mountaire Farms, Inc., will pay $48,000 to settle a lawsuit for retaliation filed by the U.S. Equal Employment Opportunity Commission (EEOC). Mountaire Farms is an agricultural food processing company. According to the EEOC's lawsuit, Frantz Morette began working as a translator for a group of Haitian workers at Mountaire Farms' Lumber Bridge facility. The EEOC alleges that Morette complained repeatedly to his supervisors and the human resources department that the Haitian workers were being treated poorly by supervisors as compared to their non-Haitian coworkers. Morette told management that supervisors often refused to allow the Haitian workers to take bathroom breaks while allowing non-Haitian workers to do so and refused to provide the Haitian workers with the training necessary for the higher-paying jobs at the facility. The EEOC further alleges that Morette notified company managers that a supervisor was refusing to allow a Haitian worker to take a restroom break while allowing other non-Haitian workers to do so. A few days later, Morette was allegedly fired for his complaints. Read More.
The Executive Committee of the Ninth Circuit Judicial Council overturned the chief district judge’s opinion and order rescinding the back pay remedy provided to a former District of Oregon employee, Margaret Fonberg, who complained of discrimination based upon a denial of health benefits for the her same-sex domestic partner. The Executive Committee held that the United States Office of Personnel Management’s denial of health benefits constituted a deprivation of due process and equal protection because the employee and her partner were allegedly treated differently from similarly-situated opposite-sex partners who are allowed to marry and thereby gain spousal benefits under federal law. They also were allegedly treated unequally vis-à-vis same-sex couples in other states in the circuit, who may marry and thus gain benefits under United States v. Windsor, 133 S. Ct. 2675 (2013) (holding unconstitutional federal Defense of Marriage Act defining marriage as a legal union between a man and a woman). Read More.
Plaintiffs worked for West Coast Quartz Corporation (West Coast). Defendants were the owners of West Coast and were preparing to sell the company. Allegedly, they promised plaintiffs that if they continued to work for West Coast until the sale, they would be paid a bonus from the sale proceeds that would be sufficient for them to retire. Plaintiffs remained at West Coast for five years, rejecting job offers from other companies, and opportunities to move out of the area. When defendants sold West Coast for approximately $30 million, they did not pay plaintiffs the promised bonus. Plaintiffs filed suit for fraud and breach of contract, among other causes of action. Following the trial court sustaining defendants’ demurrer to their first amended complaint with leave to amend, plaintiffs opted to stand on the pleading. As a result, the trial court dismissed the first amended complaint and entered judgment in favor of defendants. Plaintiffs appealed and the California Court of Appeal, 6th District, reversed, ordering the defendants to answer the complaint. Read More.
The NLRB’s general counsel has advised that the NLRB has investigated charges against Wal-Mart regarding employee protests last year in 13 states, including California. According to the agency, the retailer unlawfully threatened employees with reprisal if they engaged in strikes on Black Friday, unlawfully disciplined workers who did in engage in those strikes and unlawfully treated employees in other stores in anticipation of them participating in strikes or other labor activities. The Black Friday protests last year spread to 100 cities, with 600 people turning out to a Wal-Mart in Paramount, California, to support workers. The NLRB found in favor of Wal-Mart in two instances, saying that Wal-Mart did lawfully tell non-employees to move from Wal-Mart property, and that it did not unlawfully change work schedules. The findings will become complaints if Wal-Mart does not settle with workers, and the company could be forced to award workers back pay and reinstate workers. Read More.
More employers are conducting online searches of job applicants as part of the hiring process. Specifically, between 10% and a third of U.S. employers have searched social media sites for information on job applicants. These online screening searches may, however, result in discriminatory hiring practices. According to an article by the Wall Street Journal, an experiment conducted by Carnegie Mellon University involving dummy résumés and social-media profiles, found, as an example of religious discrimination, that job candidates whose online profiles indicated they were Muslim were less likely to be called for interviews than Christian applicants. The difference was pronounced in areas where more people identify themselves as conservative. In those areas, Christian applicants got callbacks 17% of the time, compared with about 2% for Muslims. Employers should exercise care when conducting online searches of job applicants because the employer cannot control for the information received about age, religion, sex, race, national origin, sexual orientation, etc. that an applicant could claim negatively impacted the hiring decision. Read More.
Under terms of a consent judgment, a now defunct North Canton, Ohio-based company, Star Air Inc., and owner Robert R. Custer, will pay two Ohio truck drivers $302,000 to resolve a lawsuit filed by the U.S. Department of Labor (DOL) for allegedly terminating two of the company's drivers in violation of the 1982 Surface Transportation Assistance Act's whistleblower provisions. The drivers were terminated after one was stopped by West Virginia State Police and cited for: hauling an excess load without a commercial driver's license, operating an overweight trailer and driving without a logbook. The commercial vehicle also did not have the name of the company, its home base or its U.S. Department of Transportation number displayed. The driver who was cited informed another driver, who was also operating without the proper information displayed, and they refused to continue driving until these issues were resolved. Both were allegedly terminated as a result and subsequently filed complaints with the Occupational Safety and Health Administration (OSHA) alleging that Star Air had retaliated against them for their complaint. Read More.
Occupational Safety and Health Administration (OSHA) is encouraging retail employers to take precautions to prevent workplace injuries during major sales events, including Black Friday. OSHA sent letters to major retailers nationwide reminding them about the potential hazards involved with large crowds at retail stores during the holiday season when sales events attract a higher number of shoppers. Retailers are encouraged to use the safety guidelines provided in the OSHA fact sheet, "Crowd Management Safety Guidelines for Retailers," in addition to their own procedures. They were also reminded to maintain appropriate access to exit routes and ensure that exits are not blocked. Crowd management plans should, at least, include: (1) On-site trained security personnel or police officers; (2) Barricades or rope lines for pedestrians that do not start right in front of the store's entrance; (3) The implementation of crowd control measures well in advance of customers arriving at the store; (4) Emergency procedures in place to address potential dangers; (5) Methods for explaining approach and entrance procedures to the arriving public; (6) Not allowing additional customers to enter the store when it reaches its maximum occupancy level; (7) Not blocking or locking exit doors. The fact sheet is available here. Read More.
Fiscal Year 2013 was a historic one for the Securities and Exchange Commission’s Office of the Whistleblower (“OWB”). During the fiscal year, the SEC paid four whistleblowers a total of $14,831,965. The program, which is administered through OWB, is now in its third year of operation. The program was designed to incentivize individuals to provide the SEC with specific, credible, and timely information about possible securities law violations. Under the program, individuals who voluntarily provide the SEC with original information that leads to a successful enforcement action resulting in monetary sanctions of over $1,000,000, may be eligible to receive an award equal to 10-30% of the monies collected by SEC. From the establishment of the whistleblower program in August 2011 until the end of Fiscal Year 2013, the SEC has received 6,573 tips and complaints from whistleblowers. In Fiscal Year 2013, the SEC made its largest whistleblower award to date, awarding over $14 million to a single whistleblower whose information led to an SEC enforcement action that recovered substantial investor funds. Read More.
Ji Li Zheng, the owner of the Century Buffet in Oakland, has been charged with 16 felony and misdemeanor counts alleging payroll tax fraud, workers’ compensation fraud, failure to pay the state-mandated minimum wage and overtime premium, and dissuading a witness. An investigation by the Alameda County District Attorney revealed that Zheng allegedly falsified the restaurant’s paperwork, including its audits, time sheets and payroll journals. Zheng allegedly reported that six to 12 employees worked at the restaurant, with total wages reported between $25,000 to $45,000 per quarter. However, allegedly there were 60 employees working at the buffet from 2010 until the investigation began. Workers also alleged that they worked 12 to13 hour shifts six days a week without rest or meal breaks. Most employees claimed they received monthly cash payments directly from Zheng. An audit revealed the total unpaid minimum wage to all employees totaled more than $520,000 and the total unpaid overtime was more than $550,000, in addition to over $191,000 as premium pay for no meal and rest periods provided. Read More.
The National Labor Relations Board (NLRB) Office of the General Counsel (General Counsel) has investigated charges alleging that Walmart violated the rights of its employees as a result of activities surrounding employee protests. The General Counsel found merit in some of the charges and no merit in others, and has thus authorized complaints on certain alleged violations of the National Labor Relations Act (NLRA). If the parties cannot reach settlements in these cases, complaints will issue. The General Counsel found that some Walmart stores allegedly threatened, disciplined, and/or terminated employees for having engaged in legally protected strikes and protests. The General Counsel also found no merit to other alleged violations of the NLRA against Walmart, concluding that Walmart stores in California and Washington did not unlawfully change work schedules, disparately apply their policies, or otherwise coerce employees in retaliation for their exercise of statutory rights. Read More.
The U.S. Department of Labor announced four rules designed to reduce unnecessary burdens on employers by updating obsolete regulations. A rule from the Occupational Safety and Health Administration updates and streamlines the standards for the use of mechanical power presses while the remaining three rules from the Employment and Training Administration rescind outdated Foreign Labor Certification regulations for the H-2A, F-1 and H-1A programs. The new rules complement President Obama's executive order 13610 to modernize the regulatory system and reduce unjustified regulatory burdens. The OSHA rule revises the standard for mechanical power presses, which punch, form or assemble metal or other materials. Workers can be exposed to hand, finger or arm injuries — often resulting in amputation — if parts of a press are worn, damaged or not operating properly. The new rule will eliminate a requirement for employers to document mandatory weekly inspections of these presses while clarifying the responsibility of employers to perform and document required maintenance. Read More.
Employer's Refusal to Hire Sikh Applicant Because of Beard Resulted in Religious Discrimination Charge
As a recent case demonstrates, employers may not discriminate on the basis of an employee's or applicant's religion and, where appropriate, must provide reasonable accommodations to sincerely-held religious beliefs or practices, such as religious beliefs which require a beard. The case involves Tri-County Lexus. The company strictly enforced its dress code policy allegedly without granting reasonable religious accommodations, and refused to hire Gurpreet Kherha, a member of the Sikh faith, because of its policy. Kherha's religious beliefs require him to wear a beard, uncut hair and a turban. According to the Equal Employment Opportunity Commission (EEOC) Kherha applied for an available position as a sales associate, for which he was qualified. Tri-County Lexus requested, however, that Kherha shave his beard, and he refused to comply because of his religious beliefs. As a result, Tri-County Lexus denied him the job, the agency charged. Read More.
The Occupational Safety and Health Administration (OSHA) has scheduled a public meeting to allow interested parties to comment on the proposed rule to publish online an employer’s recordkeeping logs regarding workplace injuries and illnesses. OSHA's proposed rule amends its current recordkeeping regulations to add requirements for the electronic submission of injury and illness information employers are already required to keep under existing standards, Part 1904. The meeting will be held from 9 a.m. to 4:30 p.m., Thursday, Jan. 9, 2014, at the U.S. Department of Labor in Washington, D.C. Requests to attend or speak at the meeting may be submitted electronically at http://www.regulations.gov, the Federal Rulemaking Portal or by mail or facsimile. The deadline to request to attend the meeting as a speaker or observer is Friday, Dec. 13, 2013. See the Federal Register notice for more details. Read More.
The Equal Employment Opportunity Commission announced that Del Monte Fresh Produce, one of the country's leading producers of fresh fruit and vegetables, has agreed to settle a discrimination lawsuit filed by the EEOC in Hawaii against its Hawaii subsidiary. As part of the settlement, Del Monte Fresh Produce will pay $1.2 million to the Thai claimants. Del Monte Fresh Produce has also agreed to institute comprehensive protocols and accountability measures to ensure that all farm labor contractors that work with the company comply with anti-discrimination laws. This is the first effort of its kind for a farm to ensure farm labor contractor accountability for federal anti-discrimination laws. Among other things, Del Monte Fresh Produce has agreed to establish procedures to ensure that farm labor contractors (FLCs) disseminate policies and procedures prohibiting discrimination to their local work force and to H2-A guest workers in a language they understand. Read More.
According to the Bureau of Labor Statistics’ (BLS) Annual Workplace Injury and Illness Summary, private sector employers reported nearly 3.0 million nonfatal workplace injuries and illnesses, resulting in an incidence rate of 3.4 cases per 100 equivalent full-time workers. The rate reported for 2012 continues the pattern of statistically significant declines that, with the exception of 2011, occurred annually for the last decade. Other key findings from the report include: the rate for cases of a more serious nature involving days away from work, job transfer, or restriction--commonly referred to as DART--was unchanged in 2012; no private industry sector experienced an increase in the rate of injuries and illnesses in 2012; the incidence rate of injuries only among private industry workers declined to 3.2 cases per 100 full-time workers in 2012--down from 3.3 cases in 2011; in comparison, the incidence rate of illness cases was statistically unchanged in 2012. Read More.
According to CareerBuilder’s Annual Study, in the past year, nearly one third (32 percent) of workers have called in sick when not actually ill. Alternatively, 30 percent of employees say they’ve gone to work despite actually being sick in order to save their sick days for when they’re feeling well. The national survey was conducted online by Harris Interactive, and included a sample of 3,484 workers and 2,099 human resource professionals. Twenty percent of workers say in the past year they called in sick but still ended up working from home. The most common reason employees take sick days is because they just don’t feel like going to work (33percent). When asked to share the most memorable excuses for absences that they’ve heard, employers reported the following: employee’s false teeth flew out the window while driving down the highway; employee’s favorite football team lost on Sunday so needed Monday to recover; employee was quitting smoking and was grouchy; employee claimed a swarm of bees surrounded his vehicle and he couldn’t make it in; employee received a threatening phone call from the electric company and needed to report it to the FBI; and, employee got lost and ended up in another state. Read More.
California’s Labor Commissioner has fined two Ukiah restaurants over $1.9 million for wage and hour violations allegedly committed against 47 workers over a three-year period. The co-owners are being held both individually and jointly liable for Labor Code violations found at their two establishments: WT Yupin, Inc., dba Walter Café, and Yupin, Inc., dba Ruen Tong Thai Cuisine. Based on a joint investigation by the Labor Commissioner’s office and the U.S. Department of Labor (U.S. DOL), the state found that during the three year period from June 19, 2010 through June 15, 2013, workers of the two restaurants allegedly regularly worked at least 11.5 hours a day, 6 or up to 7 days a week with no meal breaks, no minimum wage for all the hours worked, and no overtime premium pay as required by law. Additionally, some of the workers were allegedly forced to sign time cards containing falsified information stating they had only worked between five and six hours each day, while others were paid in cash with no information on the total hours worked, rate of pay or deductions provided. Read More.
The U.S. Department of Labor (DOL) has announced a new online resource providing information for states interested in developing short-time compensation programs (STC), also known as work-sharing. The STC is designed to avert employee layoffs for businesses faced with a temporary slowdown in business activity. The online resources, which will be available to state workforce agencies, state policymakers and the general public, are located here. The STC program is an alternative to layoffs for employers faced with a reduction in available work. Employers can reduce work hours for a group of workers rather than laying off one or more workers. Employees affected by a reduction of hours can collect a percentage of their unemployment benefits to replace a portion of their lost wages. Employees' jobs are thus preserved while participating in an STC program, and employers get to maintain their trained workforce without having to rehire and retrain new workers when business activity increases. Read More.
- DOL to Host Symposium Marking 75th Anniversary of FLSA
- Senators Introduce “Payroll Fraud Prevention Act” to Curtail Independent Contractor Misclassification
- EEOC Meeting Highlights Challenges to Title VII National Origin Enforcement
- Administration Issues Final Mental Health and Substance Use Disorder Parity Rule