A San Jose-based business has agreed to pay $100,000 to a former employee, who was allegedly fired because of his vision impairment, according to a disability discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC). The EEOC charged that Farhang Dahmubed was hired, and soon after, terminated as a senior bookkeeper at Riviera Consulting & Management Consulting, LLC within one month because of his retinitis pigmentosa. The EEOC also charged that the employer failed to conduct an interactive process to find a reasonable accommodation for newly created job duties related to driving.
The IRS has issued new guidance, Notice 2014-19, which provides information on how qualified retirement plans should treat same-sex marriages in light of the Supreme Court's decision in United States v. Windsor. The Windsor decision invalidated Section 3 of the 1996 Defense of Marriage Act (DOMA) that barred married same-sex couples from being treated as married under federal law. The notice gives examples of Code requirements under which the marital status of the participants is relevant to the payment of benefits; provides guidance on how to satisfy those requirements in light of Windsor; and, describes when retirement plans must be amended to comply with Windsor, Revenue Ruling 2013-17, and Notice 2014-19.
Employer Must Reinstate Before Seeking its Own Evaluation of the Employee’s Fitness for Duty in FMLA Matter
When an employee takes leave under the Family and Medical Leave Act (FMLA) the employee is entitled to reinstatement as long as medical certification is received from the employee's health care provider indicating that the employee is able to resume work. However, the employer is not permitted to seek a second opinion regarding the employee's fitness for work prior to restoring the employee to employment. According to a recent appellate court decision, if the employer is not satisfied with the employee's health care provider's certification, the employer may seek its own evaluation of the employee's fitness for duty at its own expense, but the employer must first restore the employee to work.
Employer Liable for Allegedly Denying Employee’s Request for Service Dog at Work as an Accommodation for Anxiety
Direct Optical, Inc., an optical store in Farmington Hills, Mich., has agreed to pay $53,000 to settle a disability discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC). According to the EEOC's suit, Direct Optical denied an optician's request for the reasonable accommodation to bring her service dog to work because of her generalized anxiety disorder. The employee advised that the dog alerted her to oncoming panic attacks, helped alleviate symptoms during a panic attack, and could also do other tasks, such as retrieve small objects, retrieve her medical bag and guide her to an exit. The EEOC also charged that after Direct Optical denied the request it began disciplining and ultimately terminated the employee because of her disability and in retaliation for her request.
The WW Group., Inc., a company based in Farmington Hills, Mich., doing business as Weight Watchers, will pay $45,000 and furnish other relief to settle a pregnancy discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC). The EEOC charged that the company violated federal law when it refused to hire an applicant as a group leader because she was pregnant. The applicant was a lifetime member of Weight Watchers, and she had met and maintained her weight goals before becoming pregnant. When Weight Watchers learned of the applicant's pregnancy, it allegedly advised her that it did not hire pregnant women.
As summer approaches, high school and college students around the country are searching for internships, which can provide valuable experience for future career endeavors. Historically, many internships have been unpaid, and as long as certain criteria established by state and federal laws are met, employers may offer unpaid internships. However, in recent years there has been a significant increase in the number of lawsuits filed in which interns have alleged wage violations for failure to pay wages. Therefore, employers should familiarize themselves with the applicable laws for determining whether or not an intern should be paid. Federally, pursuant to the FLSA, there are six criteria that must be applied when determining if an internship can be unpaid.
A coalition of community and labor advocates (the "Coalition for a Fair Economy") has submitted a proposed ballot measure (the "Minimum Wage Act of 2014") to increase the minimum wage in San Francisco to $15 an hour, as a first step to get the measure on the November ballot. The "Coalition for a Fair Economy," includes members from Progressive Workers Alliance, SF Rising, the San Francisco chapter of Alliance of Californians for Community Empowerment, Unite Here Local 2 and Service Employees International Union Local 1021. SEIU Local 1021 represents 13,000 city workers in San Francisco. The measure would cover all part-time, temporary and contract employees. The increase in minimum wage would be phased in, with a longer period provided for employers with less than 100 employees.
Senate Republicans have blocked legislation, the Paycheck Fairness Act, which was directed at a pay gap between men and women. The bill fell short of the 60 votes needed to prevent a filibuster and advance. The Act would have banned workplace retaliation for those who discuss their pay, in addition to requiring employers to explain why workers in similar jobs earn more than others and allowing workers to seek punitive damages, in addition to back pay, in disputes over wages.
According to the EEOC, Murphy School District No. 21, a public school district in the city of Phoenix, used an early retirement incentive plan which grants greater economic benefits to younger retirees based upon their age. The EEOC has filed an age discrimination lawsuit against the district. The EEOC alleges that Murphy School District's early retirement incentive plan is facially discriminatory because it grants more favorable benefits to younger early retirees based on their age. The school district adopted the plan in the 1980s. Under the Age Discrimination in Employment Act (ADEA), early retirement incentive plans which discriminate on the basis of age violate the law.
The California Chamber of Commerce (CalChamber) has released its annual list of "job killer" bills, highlighting legislation that CalChamber believes will have a negative impact on California's "job climate and economic recovery if they were to become law." According to Allan Zarember, president and CEO of CalChamber, "The economic recovery is still the number one issue for Californians...These bills pose a serious threat to our economy and, if enacted, would dampen job growth in the state. While it is encouraging that the list of new job killer bills is smaller than in past years, the unfortunate consequence of any one of these bills becoming law would be harmful to our economy. Protection of the job climate remains CalChamber's top priority."
Valero Services, Inc. has agreed to rescind its nationwide social media policy and to post and mail a NLRB remedial notice to its employees throughout the country in response to a complaint filed by the National Labor Relations Board (NLRB). Valero Services provides employee leasing services to refineries and plants located throughout the United States, including a refinery located in Port Arthur, Texas. The United Steelworkers of America filed an unfair labor practice charge with the NLRB Region 16, alleging that Valero Services social media policy interfered with employees' rights to discuss their terms and conditions of employment on social media.
On April 8, 2014, President Obama signed an executive order banning federal contractors from retaliating against employees who discuss their compensation. In addition, he signed a presidential memorandum instructing Labor Secretary Tom Perez to establish new regulations that will require federal contractors to submit to the Department of Labor (DOL) summary data on employee compensation, including data by sex and race. The data will be used by the DOL to encourage voluntary compliance with equal pay laws and allow for more targeted enforcement of equal pay laws.
The U.S. Citizenship and Immigration Services (USCIS) announced that it has reached the statutory cap for H-1B petitions for fiscal year (FY) 2015. USCIS has also received more than the limit of 20,000 H-1B petitions filed under the U. S. advanced degree exemption. Before running a random selection process, USCIS will complete initial intake for all filings received during the filing period. As a result of the high number of petitions, USCIS is not yet able to provide the date on which the random selection process will be conducted.
The National Labor Relations Board (NLRB) has proposed amending its rules and regulations governing representation-case procedures, in an effort to enable the NLRB to more effectively administer the National Labor Relations Act (NLRA). The proposed amendments are intended to "modernize and simplify" representation-case procedures and make them more "transparent and uniform." Issuance of the proposed rule was approved by NLRB Chairman Mark Gaston Pearce and Members Kent Y. Hirozawa and Nancy Schiffer. NLRB Members Philip A. Miscimarra and Harry I. Johnson III dissented. The public hearing on the proposed amendments governing representation-case procedures, will be webcast in its entirety, viewable on the agency's website at http://www.nlrb.gov/openmeeting.
The California Supreme Court, in Salas v. Sierra Chemical Co., (Case No. S196568) has agreed to hear a case regarding whether undocumented workers may sue employers for discrimination pursuant to the Fair Employment and Housing Act (FEHA) and collect back wages. The court will also consider whether the doctrine of "unclean hands" based upon the employee's use of a false social security number to obtain employment, bars a discrimination claim by the employee.
Ventura Corporation, a Puerto Rico-based wholesaler of makeup, beauty products, jewelry and other personal care items to retail sellers, has agreed to settle a sex discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC). The EEOC charged in its suit that Ventura engaged in a pattern or practice of refusing to hire men as Zone Managers and Support Managers. The EEOC also alleged that Ventura promoted a male employee into a Zone Manager position after he complained about its discriminatory practices, with the intent of setting him up for failure and termination in retaliation for his opposition to Ventura's sex-based hiring practices.
Job descriptions are an essential part of hiring and managing employees. They help ensure that applicants and employees understand their roles in the workplace and what they need to do to be held accountable. Job descriptions also: (1) help attract the right job candidates; (2) describe the major areas of an employee's job or position; (3) serve as a major basis for outlining performance expectations, job training, job evaluation and career advancement; (4) provide a reference point for compensation decisions and unfair hiring practices; (5) provide the essential functions of the job for disability and performance related matters. A job description should be current, practical, clear and accurate to effectively define the employer and employee's respective responsibilities.
A fast food restaurant franchise, Market Burgers, LLC, doing business as Checkers in West Philadelphia, will pay $100,000 to settle a gender pay discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC). The EEOC charged that Market Burgers paid female shift managers and female cashiers/sandwich makers lower wages than their male counterparts even though they did substantially equal work. Allegedly, Market Burgers also suppressed the wages of female shift managers and cashiers/sandwich makers through discriminatory job assignments, such as scheduling them for fewer hours than their male counterparts.
Pitre Inc., an Albuquerque car dealership, has agreed to settle a same-sex sexual harassment and retaliation lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC) for over $2 million and a very strong consent decree. In its lawsuit, the EEOC charged a former lot manager with subjecting a class of over 50 men to egregious forms of sexual harassment, including shocking sexual comments, frequent solicitations for oral sex, and regular touching, grabbing, and biting of male workers on their buttocks and genitals. The EEOC also alleged that Pitre retaliated against male employees who objected to the sexually hostile work environment. During the pendency of the lawsuit, the retaliatory actions of Pitre raised such concern that a U.S. District Court judge granted a preliminary injunction against Pitre, prohibiting the dealership and all of its agents from threatening or engaging in retaliatory actions against case participants.
Wal-Mart Stores East, L.P., has agreed to pay $363,419 to settle a sexual harassment and retaliation lawsuit brought by the U.S. Equal Employment Opportunity Commission (EEOC). According to the EEOC's lawsuit, Wal-Mart allowed a co-worker to sexually harass Jamie Wells, an intellectually disabled employee at a Walmart store in Akron, Ohio. The EEOC alleged that this harassment continued for several years, despite the knowledge of several members of store management. The store allegedly terminated Wells shortly after she made a formal complaint about the harassment to management. As part of the consent decree settling the suit, Wal-Mart will pay $363,419 to settle Wells' case. In addition to the monetary relief, Wal-Mart must provide sexual harassment training to managers at the store. The training will include instruction on how to prevent the sexual harassment of intellectually disabled employees, including by working with job coaches and vocational counselors who interact with Wal-Mart on behalf of such employees. Also as part of the settlement, the company must post a notice in the workplace explaining employee rights and employer obligations, and it must submit reports to the EEOC during regular intervals throughout the decree's three-year duration.
V&B LLC, a Merry Maids home cleaning franchise in Kenosha, Wisconsin, has been sued by the U.S. Equal Employment Opportunity Commission (EEOC) for allegedly terminating a woman because of her pregnancy. The EEOC has charged that V&B fired Belinda Sternemann because she suffered from pregnancy-related health issues. Sternemann, a military veteran who worked for V&B for over two years, was a Team Captain on one of V&B's crews and had an unblemished work record. According to the EEOC, her pregnancy issues did not prevent her from working. EEOC Chicago Regional Attorney John C. Hendrickson said, "Thirty-six years after the passage of the Pregnancy Discrimination Act, pregnancy discrimination continues to demand the EEOC's attention. Employers who are over-protective sometimes don't think clearly and fail to ask questions that can allay their concerns. The ADA requires employers to engage in discussions with employees they believe to be disabled before taking any action which would affect their employment rights - and we are determined to make employers comply with the law."