With SB 767, Oklahoma Opt Out Gets a Wee Bit Darker

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Published on Wednesday, 27 May 2015 Written by Robert Wilson, Editor, www.workerscompensation.com

The Oklahoma State Legislature last week passed and sent to the Governor SB 767, a bill otherwise known as the “comp cleanup bill”. Overall it is a rather unremarkable piece of legislation, correcting what some had felt were oversights from the states previous reform efforts. One of the more substantial “corrections” was the removal of sanitarium limitations on infectious diseases. Infectious disease is back to previous law, if contraction "arises out of employment."

There were, however, a couple changes that Opt Out supporters in Oklahoma will enjoy, even if they lend to lessened perceptions regarding the industry’s openness and overall fairness. One was the removal of the requirement that Opt Out companies maintain the same Statute of Limitations for claims reporting that companies under workers’ comp must honor. That move will (temporarily at least) solidify the extremely tight reporting windows that most Opt Out companies have adopted.

Read more: With SB 767, Oklahoma Opt Out Gets a Wee Bit Darker

DOL Updates FMLA Forms

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Published on Wednesday, 27 May 2015 Written by Editor

The U.S. Department of Labor (DOL) has updated its Family and Medical Leave Act (FMLA) forms. The forms now have a new expiration date of May 31, 2018. The form updates include information pertaining to the Genetic Information Nondiscrimination Act (GINA). California employers must modify the forms to the extent they permit disclosure of an employee’s medical diagnosis. The updated forms are available here. 

Employer To Pay $100,000 For Alleged Sex Discrimination

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Published on Wednesday, 27 May 2015 Written by Editor

International restaurant chain Ruby Tuesday, Inc., will pay $100,000 and implement preventative measures to settle a sex discrimination lawsuit brought by the Equal Employment Opportunity Commission (EEOC). The federal agency charged that Ruby Tuesday denied two male employees the opportunity to work as servers in the busy resort town of Park City, Utah in the summer of 2013. According to the EEOC's suit, Ruby Tuesday posted an internal announcement within a nine-state region for temporary summer positions with company-provided housing and the chance for greater earnings. However, the announcement stated that only females would be considered, purportedly because of concerns about housing employees of both genders together. Ruby Tuesday only selected women for those summer jobs, therefore preventing two male employees from transferring to the resort. Subsequently the EEOC filed a lawsuit on behalf of the two employees, alleging sex discrimination. To resolve the matter, Ruby Tuesday will pay employees Andrew Herrera and Joshua Bell a total of $100,000 and take steps to prevent future sex discrimination. Read more here.

LA’s Minimum Wage Increase Fuels Controversy Over Disparity In Pay Between Cooks and Servers

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Published on Wednesday, 27 May 2015 Written by Editor

The City of Los Angeles’ new minimum wage legislation has added to the controversy over a longstanding pay disparity between cooks and servers. In response, a group of more than 250 Los Angeles restaurant owners has joined to fight the changes. The new law, passed by the City Council on May 19, gradually raises the city’s $9 per hour minimum wage to $15 by 2020. However, the new law does not allow employers to calculate tips as part of that income. Further, according to restaurant owners, a proposed amendment would further restrict their ability to even the pay between service staff and cooks. The controversy stems from the fact that California is one of only a handful of states that guarantees that employees who earn tips from customers are paid the same minimum hourly wage as everyone else. (The others are Alaska, Minnesota, Montana, Nevada, Oregon and Washington.) California state law requires that those tips be shared only among employees who actually interact with diners, not kitchen workers. This results in servers often earning far more than kitchen staff. Read more here.

HR Practice Pointer: Can An Employee Be Terminated For Refusing to Sign A Disciplinary Notice?

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Published on Wednesday, 27 May 2015 Written by Kyle Uebelhardt, Esq, Floyd, Skeren & Kelly LLP

In Paratransit, Inc. v. UIAB, an employee, Craig Medeiros, refused to sign a disciplinary notice because he disagreed with the allegations contained in the notice and believed he was entitled to a consult with a union representative prior to signing the document. Craig Medeiros worked for Paratransit, Inc. as a vehicle operator.  As part of employment with Paratransit, workers were required to join a union, which amongst other things, required that the employer provide vehicle operators with certain notices regarding job performance and disciplinary notices.  In addition, union rules required vehicle operators to sign all disciplinary notices as acknowledgment of receipt but without admission of fault. Mr. Medeiros was accused of sexual harassment and was disciplined by the employer, including a 2 day suspension without pay.  Paratransit provided the notice of disciplinary action to Mr. Medeiros.  However, as noted above, Mr. Medeiros refused to sign the notice because he disputed the allegations on the notice and believed he was entitled to a union representative to be present upon signing the notice.

Read more: HR Practice Pointer: Can An Employee Be Terminated For Refusing to Sign A Disciplinary Notice?

Los Angeles To Increase Minimum Wage To $15 An Hour By 2020

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Published on Wednesday, 20 May 2015 Written by Editor

Los Angeles, the nation’s second-largest city, voted to increase its minimum wage from $9 an hour to $15 an hour by 2020. The increase was passed by the City Council in a 14-to-1 vote. Several other cities, including San Francisco, Chicago, Seattle and Oakland, have already approved increases, and dozens more are considering doing the same. In 2014, a number of Republican-leaning states like Alaska and South Dakota also raised their state-level minimum wages by ballot initiative. The effect of the minimum wage increase is likely to be particularly strong in Los Angeles, where, according to some estimates, almost 50 percent of the city’s work force earns less than $15 an hour. Under the plan approved Tuesday, the minimum wage will rise over five years. Read more here.

Exploration and Production Companies Sued by EEOC for Alleged Pay Discrimination

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Published on Monday, 18 May 2015 Written by Editor

Ten associated exploration and production companies operating in 12 states allegedly violated federal law by paying female employees lower wages than men, the U.S. Equal Employment Opportunity Commission (EEOC) has charged in a lawsuit. According to the EEOC, the Casper, Wyo.-headquartered True Oil, LLC and its associated companies allegedly paid a class of female accounting clerks lower wages than it paid to their male counterpart who was doing substantially equal work under similar working conditions. The lawsuit seeks lost wages and liquidated damages, as well as injunctive relief. Read more here.

U.S. Supreme Court Rules Employers Can Be Sued Over High Fees In Retirement Plans

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Published on Monday, 18 May 2015 Written by Editor

The U.S. Supreme Court has ruled that employers can be sued if their retirement plans offer employees mutual funds with unnecessarily high fees. In a 9-0 decision, the Court revived a lawsuit against Edison International and said the company had a "continuing duty to monitor" the investments offered to its employees. Several employees had sued Edison alleging they were offered "retail-class mutual funds" with high fees in their 401(k) plan, even though lower-priced "institutional" funds were available. They cited federal law (ERISA), which says retirement funds should be operated in trust and with "prudence" for the "exclusive" benefit of the employees. The U.S. 9th Circuit Court of Appeals had dismissed most of the suit because it was filed more than six years after the disputed mutual funds were first offered to the employees. Read more here.

Employer To Pay $120,000 For Allegedly Refusing To Hire Applicant Because of His Dyslexia

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Published on Wednesday, 13 May 2015 Written by Editor

McPhee Electric Ltd., a construction company with offices in Connecticut, and Bond Brothers, Inc., a construction management and design company with an office in Connecticut, will pay $120,000 to settle a disability discrimination lawsuit brought by the U.S. Equal Employment Opportunity Commission (EEOC). The EEOC charged that McPhee and Bond refused to hire an applicant as a carpenter because of his disability, dyslexia, which substantially limits his ability to read. The applicant had 15 years of experience as a carpenter. He also had numerous construction safety training certifications and a clean safety record. However, Bond and McPhee allegedly refused to hire him after learning about his dyslexia while asserting that the applicant would present a safety risk. Read more here.

EEOC Takes First Steps in Digital Charge System

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Published on Wednesday, 13 May 2015 Written by Editor

The U.S. Equal Employment Opportunity Commission (EEOC) announced that 11 of its 53 offices will begin a pilot program called ACT Digital to digitally transmit documents between the EEOC and employers regarding discrimination charges.  This is the first step in the EEOC's move toward an online charge system that will streamline the submission of documents, notices and communications in the EEOC's charge system.  This system applies to private and public employers, unions and employment agencies. The EEOC receives about 90,000 charges per year, making its charge system the agency's most common interaction with the public.  The EEOC's ACT Digital initiative aims to improve customer service, ease the administrative burden on staff, and reduce the use of paper submissions and files. The first phase of ACT Digital allows employers against whom a charge has been filed to communicate with the EEOC through a secure portal to download the charge, review and respond to an invitation to mediate, submit a position statement, and provide and verify their contact information. The newly designed EEOC notice of a charge will provide a password-protected log in for the employer to access the system in the pilot offices. Employers will also have the option of opting out of the pilot program and receiving and submitting all documents and communications in paper form. Read more here.

Source One Staffing to Pay $800,000 to Settle Multiple EEOC Discrimination Claims

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Published on Tuesday, 12 May 2015 Written by Editor

A Chicago-area staffing agency will pay $800,000 under a consent decree resolving two discrimination lawsuits filed by the U.S. Equal Employment Opportunity Commission (EEOC). The EEOC's two lawsuits alleged multiple violations of Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act (ADA).  Specifically, the EEOC charged that Source One Staffing: (1) assigned female employees to a known hostile work environment; (2) retaliated against two female employees who reported that their supervisor was making sexual advances toward them; (3) categorized jobs as "men's work" or "women's work" and assigned employees accordingly; (4) asked impermissible pre-employment medical questions in violation of the ADA; and (5) failed or refused to assign employees to certain jobs because of their race and/or national origin. Read more here.

California Supreme Court To Decide Whether Employers Can Require Employees To Be “On-Call” During Rest Periods

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Published on Tuesday, 05 May 2015 Written by Bernadette M. O'Brien, ESQ., SPHR of Floyd, Skeren & Kelly LLP

The California Supreme Court has granted review of Augustus v. ABM Security Systems, Inc. (hereafter ABM), a case in which the California appellate court held that employers may require employees to remain “on-call” during rest periods. In the Augustus case, Jennifer Augustus and other individuals worked as security guards for ABM. They filed a class action lawsuit against ABM, alleging that the company failed to provide rest periods as required by California law because the company did not relieve security guards of all duties during rest breaks, and instead required its guards to remain “on call” during breaks. In the course of discovery, ABM admitted that during rest breaks it requires its security guards to keep their radios and pagers on, to remain vigilant, and to respond when needs arise or an emergency situation occurs. The trial court concluded an employer must relieve its employees of all duties during rest breaks, including remaining “on call.” The court then granted approximately $90 million in statutory damages, interest, penalties and attorney fees. On appeal, the 2nd District Court of Appeal reversed, holding that merely being “on-call” does not constitute performing “work.” The Supreme Court will now decide the issue. Read the appellate court decision here.

Uber Driver Injured By Passenger In Attack Sues For Workers Comp

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Published on Tuesday, 05 May 2015 Written by Editor

An Uber driver, Abdo Ghazi, whose nose was broken after allegedly being attacked by a passenger is now suing the company for workers compensation. Mr. Ghazi filed the lawsuit in San Francisco Superior Court on April 28, seeking workers compensation insurance coverage from Uber Technologies. The complaint stems from an incident back on November 23, when a passenger, 26-year old David Lin, allegedly jumped into the front seat of Ghazi's car and punched him in the face without any provocation. Ghazi suffered a broken nose and puncture wounds to the mouth and chin from a sharp object used in the attack, according to the San Francisco Business Times. However, because Uber has classified its drivers as independent contractors, they do not provide any benefits or workers compensation—although another lawsuit has been filed alleging that Uber misclassified its drivers as independent contractors, when they should be classified as employees. Read more here.

FS&K's 5th Annual Employment Law Conference-New Topic Added On The Surge In Retaliation Claims

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Published on Monday, 04 May 2015 Written by Editor

Floyd, Skeren & Kelly, LLP, is pleased to announce that Derek Li, Senior Trial Attorney for the Equal Employment Opportunity Commission (EEOC), will be a key note speaker at the law firm's 5th Annual Southern California Conference to be held at the Disneyland Hotel on June 19, 2015. Mr. Li will be talking about the important workplace topic of retaliation claims. Additional keynote speakers are: 

Phoebe Liu, Senior Staff Counsel IV from the California Department of Fair Employment and Housing, who will be speaking about sexual harassment in the workplace;

Andrew Schneiderman, Esq., Councilmember of the Fair Employment and Housing Council, who will be speaking about the amended California and Family Rights regulations, in effect as of July 1, 2015.

Steve Jones, Deputy Labor Commissioner from the California Department of Industrial Relations, who will be speaking about California's new Paid Sick Leave law, in effect as of July 1, 2015. 

The event is co-hosted by the Employers' Fraud Task Force. 

For more information (including a list of all topics) and to register, please visit FSK HR TRAINING.

Countdown to Fraud Fighting Conference - Only 9 more Days to Register

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Published on Monday, 04 May 2015 Written by Editor

Can you afford to gamble with your workers’ comp claims? Don’t miss this exciting event, packed with information and education. EXHIBITOR FAIR Included. Get the latest and greatest Tools, Solutions & Resources you need to increase your odds. Come, Learn, Stay and Play…Register TODAY using the form below, or print out the PDF and mail with a check.

Up to 9 Hours for CE Certificate for Adjusters

MCLE Credits 9 Hours

More Information is available here.

Comcast Corporation Settles Discrimination Case

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Published on Monday, 04 May 2015 Written by Editor

Comcast Corporation has agreed to pay nearly $190k in back wages and interest to 96 former and current female employees and 100 minority job applicants. Investigators for the U.S. Department of Labor's Office of Federal Contract Compliance Programs (OFCCP) determined that between March 2006 and September 2007 in Everett, Washington, Comcast allegedly directed 96 women into lower-paying positions that assisted customers with cable services rather than higher-paid positions providing customer assistance for Internet services because these positions were considered "technical."Investigators also found that Comcast disproportionately rejected 100 African American, Asian, and Hispanic applicants for call center jobs because its hiring tests were neither uniformly applied nor validated as related to the job. According to the OFCCP, “this resulted in systemic hiring discrimination on the basis of race.” Comcast Corporation is a federal contractor. Read more here.

Red Lobster Restaurants Will Pay $160,000 for Alleged Sexual Harassment

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Published on Monday, 04 May 2015 Written by Editor

Red Lobster Restaurants LLC will pay $160,000 to resolve a sexual harassment lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC). According to the lawsuit, the then culinary manager at the Red Lobster restaurant in Salisbury, Md., allegedly subjected Valerie Serman, Racheal Cox and Jennifer Tolbert to severe and pervasive sexual harassment, including pressing his groin against them, grabbing and groping them. The EEOC charged that the manager also frequently made sexually offensive comments, including remarks about the bodies of female employees and about his genitals. The restaurant's general manager allegedly not only failed to take prompt action to stop the sexual harassment, but he too had a history of making vulgar and sexually charged remarks about female employees, the lawsuit claimed. Read more here.

U.S. Supreme Court Issues Decision In EEOC Conciliation Case

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Published on Wednesday, 29 April 2015 Written by Editor

In a unanimous decision, the U.S. Supreme Court held that courts may only conduct a "relatively bare-bones review" of the EEOC's conciliation efforts. EEOC Chair Jenny R. Yang commented that, "Today's decision puts the focus of the EEOC and the courts squarely on the merits of the discrimination claim." In reaching its decision, the Court recognized that the scope of review of EEOC conciliation efforts is narrow and a sworn affidavit is usually sufficient to meet the statutory requirements.  The Court’s decision stems from the EEOC's lawsuit against Mach Mining, LLC, headquartered in Marion, Ill.  The EEOC sued Mach Mining alleging that the company violated Title VII by failing to hire any female miners since beginning operations in 2006, despite having received applications from many qualified women. Mach Mining defended against the allegations by criticizing the EEOC for inadequately conciliating the matter before suing. The Supreme Court's decision adopts a standard requiring that the EEOC "afford the employer a chance to discuss and rectify a specified discriminatory practice."  Read more here.

9th Circuit Upholds $6.6 Million Dollar Punitive Damage Award Against UPS

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Published on Tuesday, 28 April 2015 Written by Editor

In an unpublished decision, the 9th U.S. Circuit Court of Appeals has upheld a jury verdict against United Parcel Services (UPS) for $6.6 million in punitive damages. The jury awarded former UPS employee, Michael Marlo, $15.9 million (later reduced to $6.6 million) in punitive damages arising from a lawsuit in which Mr. Marlo sued UPS alleging retaliation and wrongful termination. On appeal from the jury verdict, UPS argued that the evidence was insufficient to support the jury’s determination that Vice President and District Manager Tim Robinson was a “managing agent” under California law. However, the 9th Circuit disagreed, holding that pursuant to California law, Robinson qualified as a “managing agent” if he “exercise[d] substantial independent authority and judgment in [his] corporate decisionmaking so that [his] decisions ultimately determine[d] corporate policy.”

Read more: 9th Circuit Upholds $6.6 Million Dollar Punitive Damage Award Against UPS

Employer To Pay $65,000 For Alleged Retaliation

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Published on Tuesday, 28 April 2015 Written by Editor

Newport News Industrial Corporation has agreed to pay $65,000 and provide substantial injunctive relief to settle an employment discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC).  According to the EEOC, the company terminated an employee because she complained she was being discriminated against based on her gender. The EEOC charged in its lawsuit that Newport News Industrial Corporation hired Julia Horton on Sept. 27, 2010, as a planner to assist with a nuclear plant outage at the Brunswick Nuclear Power Plant in Southport, N.C.  Around Nov. 15, Horton allegedly initially complained about the site superintendent treating her in an aggressive, intimidating, sarcastic and condescending manner because of her gender.  The company's vice president / general manager completed an investigation into Horton's complaints on Nov. 30.  On Dec. 2, only 17 days after her initial complaint, and two days after the company's VP completed his investigation, Horton was fired.  The EEOC charged that Horton was fired in retaliation for her complaints about gender-based discrimination. Read more here.

Legislation Introduced In California To Exempt “Highly Compensated” Employees From Overtime

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Published on Thursday, 23 April 2015 Written by Bernadette M. O'Brien, ESQ., SPHR of Floyd, Skeren & Kelly LLP

Pursuant to federal law, specifically the Fair Labor Standards Act (FLSA) most employees working in the United States must be paid at least the federal minimum wage for all hours worked and overtime pay at time and one-half the regular rate of pay for all hours worked over 40 in a workweek. However, there are exemptions from overtime for certain employees, including those working as bona fide executive, administrative, professional, and for certain computer employees. However, to qualify for exempt status, employees must meet certain tests regarding their job duties and be paid on a salary basis of not less than $455 per week. The FLSA also provides that “highly-compensated" workers are exempt from overtime. The FLSA defines highly-compensated workers as those who are paid a total annual compensation of $100,000 or more, which includes at least $455 per week paid on a salary basis. In addition, the employee’s primary duties must involve performing office or nonmanual work, and the employee must customarily and regularly perform at least one of the exempt duties or responsibilities of an exempt, administrative or professional employee. In California, legislation has been introduced, AB 1470, to create a similar exemption for highly-compensated employees in California.

Read more: Legislation Introduced In California To Exempt “Highly Compensated” Employees From Overtime

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