- Published on Thursday, 23 May 2013 16:40
As summer approaches, many employers consider hiring interns but question whether or not the intern must be paid. There is no state statute or regulation which expressly exempts individuals participating in an internship from the minimum wage and overtime requirements. California’s Division of Labor Standards Enforcement (DLSE) has, however, historically followed federal interpretations which recognize the special status of trainees and interns who perform some work as part of an educational or vocational program. Similar to the federal exemption from coverage, the effect of a sufficient showing that the intern is enrolled in a bona fide internship or training program is that the intern falls outside the coverage of the State's minimum wage laws. Below is a review of both federal and state law on the criteria for determining whether or not an intern must be paid.
Federal Standard on Unpaid Internships
Although the Department of Labor (DOL) has issued statements that unpaid internships at for-profit private sector employees typically violate the law, the DOL has articulated six criteria to be applied in determining whether an intern is exempt from the Fair Labor Standards Act’s (FLSA) minimum wage coverage. The six criteria are as follows:
- The training, even though it includes actual operation of the employer's facilities, is similar to that which would be given in a vocational school;
- The training is for the benefit of the trainees or students;
- The trainees or students do not displace regular employees,
but work under their close observation;
- The employer derives no immediate advantage from the activities of trainees or students, and on
occasion the employer's operations may be actually impeded [Emphasis added];
- The trainees or students are not necessarily entitled to a job at the conclusion of the training period; and
- The employer and the trainees or students understand that the trainees or students are not entitled to wages for the time spent in training.
The DOL has consistently applied this test for trainees to determine the employment status of interns and indicated that the above criteria must be applied in view of "all the circumstances" surrounding the intern's activities. The six criteria thus provide for a consistent assessment of the "totality of the circumstances" necessary to determine whether a trainee or intern is an employee or exempt from coverage.
In addition to the six guidelines provided by the DOL, the DLSE has historically relied upon five additional factors in determining whether an unpaid internship is legal. Although the DLSE has emphasized that the five factors are not based upon any statute or regulation and are thus not enforceable, these five factors offer employers additional guidelines for determining whether or not an intern should be paid. The five factors are as follows:
- The internship should involve an educational curriculum;
- The student interns should not receive employee benefits;
- The internship training should be general so as to qualify the student interns for work in any similar
business, rather than designed specifically for a job with the employer;
- The screening/hiring process for student interns should focus on criteria relevant for admission into an independent educational program, as opposed to criteria for regular employment; and
- Job postings for internships should indicate that the position is educational or training-based as opposed
to regular employment.
Practical Tips for Employers
- The internship should be for a specific period of time, and thus have a start and
end date, to avoid the suggestion that the internship is a “trial period” for
- The internship program should emphasize training experiences as opposed to more traditional job
- The intern should have close supervision (for example, by a mentor) as opposed to working independently, so there is no displacement of regular employees by the intern;
- Finally, the intern should be gaining experience with more general tasks in the workplace rather than specific job duties pertaining to the employer’s business operations. In addition, the intern should not be performing menial tasks such as filing, answering phones, or other clerical work, which may indicate the
intern is performing tasks for the advantage of the employer or displacing another employee.
Because an employer’s failure to properly classify a student internship as paid/unpaid can result in significant liability for numerous wage and hour violations, including failure to provide wages, overtime, wage statements and meal and rest periods, in addition to penalties and costly attorney fees, employers must create internship programs that meet the federal and state criteria for interns. If in doubt, the safest practice is to consult with legal counsel to determine whether or not the student interns should be paid. Read More.
- Published on Wednesday, 22 May 2013 17:39
In a recent decision issued by the California Court of Appeal, 6th District (Negri v.Koning & Assoc.) the court reviewed the criteria for determining whether or not an employee is receiving a “salary” within the meaning of the pertinent wage and hour laws. California law provides that, absent an exemption, an employee must be paid time-and-a-half for work in excess of 40 hours per week. To be exempt from that requirement the employee must perform specified duties in a particular manner and be paid “a monthly salary equivalent to no less than two times the state minimum wage for full-time employment.” The question presented in the Negri case was whether a compensation scheme based solely upon the number of hours worked, with no guaranteed minimum, could be considered a “salary” within the meaning of the pertinent wage and hour laws. The court concluded that “such a payment schedule is not a salary and, therefore, does not qualify the employee as exempt.” Since the trial court in Negri found the employee was exempt, the court reversed that decision because the employee was not paid a guaranteed minimum amount, but instead was compensated based upon the number of hours worked.
In reaching its decision, the court noted that in order for an employee to be exempt from overtime, the employee must perform specified duties and receive the required compensation. Further, as the court observed, California’s Labor Commission noted in an Opinion Letter dated March 1, 2002, that the California Division of Labor Standards Enforcement (DLSE), construes the IWC wage orders to incorporate the federal salary-basis test for purposes of determining whether an employee is exempt or nonexempt. The federal salary-basis test is found in the regulations implementing the Fair Labor Standards Act. Those regulations provide that in order to be exempt from the federal overtime pay requirement, an employee must be engaged in specified job duties for the particular exemption, such as administrative, and be paid on a “salary or fee basis.” An employee is paid on a “salary basis” if the employee “regularly receives each pay period on a weekly, or less frequent basis, a predetermined amount constituting all or part of the employee’s compensation, which amount is not subject to reduction because of variations in the quality or quantity of the work performed. Read More.
- Published on Wednesday, 22 May 2013 16:23
Senators Robert Casey (D-PA) and Jeanne Shaheen (D-NH) in the Senate, and Representatives Jerrold Nadler (D-NY), Carolyn Maloney (D-NY), Jackie Speier (D-CA), Susan Davis (D-CA) and Marcia Fudge (D-OH) in the House, joined by the leaders of women’s advocacy organizations, unions, and business groups from across the nation, have introduced legislation – the Pregnant Workers Fairness Act – to ensure that pregnant women are not denied reasonable job modifications that would allow them to continue working. The Pregnant Workers Fairness Act will require employers to make reasonable accommodations for pregnant workers and prohibit employers from requiring pregnant employees to take leave when another reasonable accommodation would allow them to continue working. The bill also bars employers from denying employment opportunities to women based on their need for reasonable accommodations related to pregnancy, childbirth, or related medical conditions. Read More.
- Published on Wednesday, 22 May 2013 16:10
Section 806 of the Sarbanes-Oxley Act (SOX) prohibits a publicly traded company, a mutual fund, or “any ... contractor [or] subcontractor ... of such company” from discriminating against an employee in the terms and conditions of employment on the basis of certain protected activity. The First Circuit held that under section 1514A such contractors and subcontractors, if working for a privately-held company, may retaliate against their own employees, and are prohibited only from retaliating against employees of the public companies with which they work. The U.S. Supreme Court has agreed to consider the question of whether SOX applies to an employee of a privately-held contractor or subcontractor of a public company (Lawson v. FMR LLC). The petitioners are former employees of privately held companies that operated a group of mutual funds. They alleged that their employers violated SOX by retaliating against them for complaining about allegedly improper business practices. Read More.
- Published on Monday, 20 May 2013 16:21
A jury has rendered a verdict of more than $1.5 million in a lawsuit filed by the U.S. Equal Employment Opportunity Commission's (EEOC) for alleged sexual harassment and retaliation lawsuit against New Breed Logistics, a North Carolina-based logistics services provider. The verdict followed a seven-day trial before U.S. District Court Judge S. Thomas Anderson on behalf of four claimants and included awards of $177,094 in back pay, $486,000 in compensatory damages and $850,000 in punitive damages for the discrimination victims. The EEOC had charged that New Breed Logistics subjected three female employees in Memphis to sexual harassment and then retaliated against the three female employees and one male employee for opposing the harassment in violation of Title VII. Specifically, the jury found that New Breed, through the conduct of a warehouse supervisor, harassed three temporary workers by subjecting them to unwelcome sexual touching and lewd, obscene and vulgar sexual remarks at the company's Avaya Memphis area warehouse facility. The EEOC also charged and the jury found, a New Breed supervisor fired the three temp workers because they complained about the harassment. In addition, the EEOC said, the supervisor also retaliated against a male employee by terminating him because he opposed the harassment and agreed to serve as a witness for several claimants during the company's investigation. Read More.
- Published on Friday, 17 May 2013 15:30
As a recent case demonstrates, employers must exercise care to avoid a violation of the Genetic Information Nondiscrimination Act (GINA) by permitting improper questions, such as questions about an employee’s family history, by a contract medical provider during preemployment physicals. The case involves Fabricut, Inc., one of the world's largest distributors of decorative fabrics. The company has agreed to pay $50,000 and furnish other relief to settle a disability and genetic information discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC). This is the first lawsuit ever filed by the EEOC alleging genetic discrimination. In its lawsuit, the EEOC charged that Tulsa-based Fabricut violated the Americans with Disabilities Act (ADA) when it refused to hire a woman for the position of memo clerk because it regarded her as having carpal tunnel syndrome, and violated GINA when it asked for her family medical history in its post-offer medical examination. David Lopez, General Counsel of the EEOC commented that, "Employers need to be aware that GINA prohibits requesting family medical history…When illegal questions are required as part of the hiring process, the EEOC will be vigilant to ensure that no one be denied a job on a prohibited basis."
According to the EEOC's suit, Rhonda Jones, worked for Fabricut in a temporary position as a memo clerk for 90 days. When her temporary assignment was coming to an end, she applied for a permanent job in that position.
Fabricut made Jones an offer of permanent employment on August 9, 2011, and sent her to its contract medical examiner, Knox Laboratory, for a pre-employment drug test and physical. When Jones reported for her physical,
she was required to fill out a questionnaire and disclose the existence of numerous separately listed disorders in her family medical history. The questionnaire asked about the existence of heart disease, hypertension, cancer,
tuberculosis, diabetes, arthritis and "mental disorders" in her family. Jones was then subjected to medical testing, from which the examiner concluded that further evaluation was needed to determine whether Jones suffered from carpal tunnel syndrome (CTS).
Fabricut told Jones she needed to be evaluated for CTS by her personal physician and to provide the company with the results. Jones's physician gave her a battery of tests and concluded that she did not have CTS. Although Jones provided this information to Fabricut, the company rescinded its job offer because Knox Labs indicated that she did have CTS. Jones made a written request for reconsideration, emphasizing that she does not have CTS, but Fabricut allegedly ignored her request. Such alleged conduct violates GINA, which makes it illegal to discriminate against employees or applicants because of genetic information, which includes family medical history; and also restricts employers from requesting, requiring or purchasing such information. GINA was signed into law in 2008, and took effect the following year. One of the six national priorities identified by the EEOC's Strategic Enforcement Plan is for the agency to address emerging and developing issues in equal employment law, which includes genetic discrimination. Read More.
- Published on Friday, 17 May 2013 14:59
National Food Corporation, a major supplier of eggs to the Pacific Northwestern and Midwestern United States and East Asia with headquarters in Everett, Washington, has agreed to pay $650,000 to five workers and provide other relief to settle a sexual harassment lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC). The EEOC's suit charged that a supervisor at National Food's egg farm repeatedly demanded sexual favors from a female laborer, who worked alone in a henhouse, in order to keep her job. The supervisor allegedly would physically grab the barn worker and demand sex from her on a weekly basis, from 2003 to 2010. The EEOC also alleged that when the employee’s co-workers raised complaints about sexual harassment to company management, they were fired or forced out of their jobs. David Lopez, general counsel of the EEOC, commented that "This lawsuit is another in an unfortunate pattern of employers taking advantage of female agricultural workers who often work in isolation and are unaware of their rights…It is one of the EEOC's national priorities to combat discrimination against vulnerable workers, and we hope that this settlement sends a message to other employers that they need to be vigilant to prevent sexual harassment and other abuse." Read More.
- Published on Friday, 17 May 2013 14:45
The U.S. Equal Employment Opportunity Commission (EEOC) has issued four revised documents on protection against disability discrimination, pursuant to the goal of the agency's Strategic Plan to provide up-to-date guidance on the requirements of antidiscrimination laws. The documents address how the Americans with Disabilities Act (ADA) applies to applicants and employees with cancer, diabetes, epilepsy, and intellectual disabilities. These documents are available on the agency's website at "Disability Discrimination, The Question and Answer Series," http://www.eeoc.gov/laws/types/disability.cfm. According to EEOC Chair Jacqueline A. Berrien, "Nearly 34 million Americans have been diagnosed with cancer, diabetes, or epilepsy, and more than 2 million have an intellectual disability…Many of them are looking for jobs or are already in the workplace. While there is a considerable amount of general information available about the ADA, the EEOC often is asked questions about how the ADA applies to these conditions."
In plain language, the revised documents reflect the changes to the definition of disability made by the ADA Amendments Act (ADAAA) that make it easier to conclude that individuals with a wide range of impairments, including cancer, diabetes, epilepsy, and intellectual disabilities, are protected by the ADA. Each of the documents also answers questions about topics such as: when an employer may obtain medical information from applicants and employees; what types of reasonable accommodations individuals with these particular disabilities might need; how an employer should handle safety concerns; and what an employer should do to prevent and correct disability-based harassment. Read More.
- Published on Friday, 17 May 2013 14:35
According to a lawsuit filed by the Equal Employment Opportunity Commission (EEOC) the Founders Pavilion, Inc., a Corning, N.Y., nursing and rehabilitation center, allegedly violated federal law by asking for genetic information during the hiring process. The EEOC also alleged that Founders violated the Americans with Disabilities Act (ADA) and Title VII of the Civil Rights Act. The EEOC has charged that Founders conducted post-offer, pre-employment medical exams of applicants, which were repeated annually if the person was hired. As part of this exam, Founders requested family medical history, a form of prohibited genetic information. Such alleged conduct is in violation of the Genetic Information Nondiscrimination Act (GINA), passed by Congress in 2008 and enforced by the EEOC. GINA prohibits employers from demanding genetic information, including family medical history, and using that information in the hiring process. The EEOC filed suit after first attempting to reach a pre-litigation settlement through its conciliation process. The Founders suit is the second ever GINA lawsuit filed by the EEOC. Read More.
- Published on Friday, 10 May 2013 16:05
The Equal Employment Opportunity Commission (EEOC) has charged in a lawsuit that Dynamic Medical Services, Inc., a Miami company which provides medical and chiropractic services, violated federal law by requiring employees to attend courses that involved Scientology religious practices. According to the EEOC's suit, the company allegedly required Norma Rodriguez, Maykel Ruz, Rommy Sanchez, Yanileydis Capote and other employees to spend at least half their work days in courses that involved Scientology religious practices, such as screaming at ashtrays or staring at someone for eight hours without moving. The company also instructed employees to attend courses at the Church of Scientology. Additionally, the company required Sanchez to undergo an "audit" by connecting herself to an "E-meter," which Scientologists believe is a religious artifact, and required her to undergo "purification" treatment at the Church of Scientology. According to the EEOC's suit, employees repeatedly asked not to attend the courses but were told it was a requirement of the job. In the cases of Rodriguez and Sanchez, when they refused to participate in Scientology religious practices and/or did not conform to Scientology religious beliefs, they were terminated.
Requiring employees to conform to religious practices and beliefs espoused by the employer, creating a hostile work environment, and failing to reasonably accommodate the religious beliefs of an employee all violate Title VII of the Civil Rights Act of 1964. "Employees' freedom from religious coercion at the workplace must be protected," said Robert Weisberg, regional attorney for the EEOC's Miami District Office. "These actions are a shameful violation of federal law." Read More.
- Published on Friday, 10 May 2013 15:48
Wellness programs are an increasingly common feature of employee benefits programs, and guidance is needed to avoid violations of federal equal employment opportunity laws, a panel of experts representing business, advocacy groups and providers told the Equal Employment Opportunity Commission (EEOC) at a meeting held today. According to EEOC Chair Jacqueline A. Berrien, "We appreciate the valuable insights and diverse perspectives provided by today's panelists…There has been broad, bipartisan support for the expanded use of wellness programs to reduce health insurance and healthcare costs, but today's meeting underscored the importance of insuring that those programs are designed and implemented in a manner that is consistent with federal equal employment opportunity laws."
A majority of employers now offer some sort of wellness program: 94 percent of employers with over 200 workers, and 63 percent of smaller ones, according to Karen Pollitz of the Kaiser Family Foundation, which researches issues relating to health care. She added that many of these programs offer some sort of financial incentive for participation, which can range from gift cards to higher employer contributions for insurance premiums, or penalties like additional surcharges to employees for health insurance.
The most common intersection of these programs and the statutes EEOC enforces occurs when the programs require medical exams or ask disability-related questions, both of which would ordinarily give rise to a violation of the Americans with Disabilities Act (ADA), EEOC Acting Associate Legal Counsel Christopher Kuczynski told the Commission. He explained that, while the ADA allows employers to ask for medical information in connection with voluntary wellness programs, the meaning of "voluntary" merits further clarification by the Commission. Read More.
- Published on Wednesday, 08 May 2013 16:24
An Atlanta-based air transport communications and information technology company has agreed to settle a disability discrimination lawsuit brought by the U.S. Equal Employment Opportunity Commission (EEOC). The EEOC charged that SITA Information Networking Computing USA, Inc. violated federal law by rescinding Darlene Case's offer of employment rather than accommodating her disability. The company offer Case a position as a full-time personal assistant to SITA's vice president. Shortly after accepting the offer, however, Case learned that she would require cancer surgery, and requested a reasonable accommodation of having her start date moved. Although SITA agreed to this accommodation, when her extended start date arrived, Case then requested that she be allowed to work part-time for the first two weeks to complete her recovery. SITA allegedly refused to grant this request and instead rescinded its employment offer. Read More.
- Published on Monday, 06 May 2013 22:37
Hutco Inc., a major industrial services employment agency, has agreed to pay $1,916,850 in back wages to 2,267 employees assigned to client work sites throughout Louisiana, Mississippi and Texas. The Department of Labor’s (DOL) Wage and Hour Division conducted an investigation and found that the company allegedly used improper pay and record-keeping practices that resulted in employees being denied overtime compensation in violation of the Fair Labor Standards Act (FLSA). According to the DOL, the company mischaracterized certain wages as "per diem" payments and impermissibly excluded these wages when calculating overtime premiums, thus denying employees earned overtime compensation. This pay practice also resulted in FLSA record-keeping violations involving the accuracy of employees' wages and actual hours worked.
Pursuant to the FLSA, an employee's regular pay rate, upon which overtime must be computed, includes all wages for employment, except certain payments excluded by the FLSA, such as reimbursements for work-related
expenses. Payments reasonably approximating travel or other expenses incurred on the employer's behalf may be excluded from the employee's regular rate of pay when computing overtime. However, where an employee receives such payments but actually incurs no such additional expenses, such payments do not constitute bona fide reimbursements and must be included in the employee's regular rate of pay for purposes of computing an overtime premium. Read More.
- Published on Thursday, 02 May 2013 15:29
Employee wellness program are designed to promote health and wellness among employees thereby reducing the employer’s costs related to health care. Such programs are typically voluntary and provide incentives to employees to get healthy. Wellness programs, however, have come under the scrutiny of the U.S. Equal Employment Opportunity Commission (EEOC). The Agency will thus hold a meeting on Wednesday, May 8, at 9:00 a.m. (Eastern Time), at its headquarters, 131 M Street, N.E, to explore the legality of wellness programs. In accordance with the Sunshine Act, the open session of the meeting will be open to public observation of the Commission's deliberations. The Commission will hear from invited panelists on the treatment of wellness programs under federal law, with an emphasis on understanding the ways in which the Americans with Disabilities Act, the Genetic Information Nondiscrimination Act, and other statutes EEOC enforces may be implicated by these programs. Read More.
- Published on Thursday, 02 May 2013 15:09
A Davenport, Iowa jury awarded the U.S. Equal Employment Opportunity Commission (EEOC) damages totaling $240 million, which is the largest verdict in the federal agency's history - for disability discrimination and severe abuse. The jury agreed with the EEOC that Hill County Farms, doing business as Henry's Turkey Service subjected a group of 32 men with intellectual disabilities to severe abuse and discrimination for a period between 2007 and 2009, after 20 years of similar mistreatment. "The verdict sends an important message that the conduct that occurred here is intolerable in this nation, and hopefully will help to restore dignity and acknowledge the humanity of the workers who were mistreated for so many years," said EEOC Chair Jacqueline A. Berrien.
The EEOC presented evidence that for years and years the owners and staffers of Henry's Turkey subjected the workers to abusive verbal and physical harassment; restricted their freedom of movement; and imposed other harsh terms and conditions of employment such as requiring them to live in sub-standard living conditions, and failing to provide adequate medical care when needed. Verbal abuses included frequently referring to the workers as "retarded," "dumb ass" and "stupid." Class members reported acts of physical abuse including hitting, kicking, at least one case of handcuffing, and forcing the disabled workers to carry heavy weights as punishment. The Henry's Turkey supervisors, also the workers' purported caretakers, were often dismissive of complaints of injuries or pain. Such abuse violated the Americans with Disabilities Act (ADA), which prohibits discrimination on the basis of disability, including intellectual disabilities, in terms and conditions of employment and wages and bars disability-based harassment. Read More.
- Published on Thursday, 02 May 2013 14:57
A federal jury has returned a unanimous verdict awarding a total of $20,251,963 to eight former employees of Four Amigos Travel, Inc. and Top Dog Travel, Inc., a former Florida vacation agency with offices in Largo, Orlando and Lake Lauderdale, Florida, who allegedly suffered sexual harassment and retaliation. According to a lawsuit filed by the Equal Employment Opportunity Commission (EEOC), travel agency owner Ronald Schlom and male managers working at Four Amigos / Top Dog's Largo facility subjected a class of female employees to egregious sexual harassment on a daily basis. The abuse allegedly included unwanted sexual advances, physical touching and repeated propositions for sex in a work environment filled with sexual banter, abuse of power and outright disrespect for women. Further, the EEOC charged that the company terminated a manager for bringing forth the victims' complaints. Members of the class of victims, as well as the three intervenors, testified as to how the hostile work environment affected their lives. On April 30 the jury returned a unanimous verdict awarding $2.5 million in compensatory damages and $10 million in punitive damages to five former employees. The court also awarded them $99,876 in back pay. The jury also awarded two former female employees, Anne Patricia Matacchiero and Lisamarie Huskey-Egan, along with former manager Brian Egan, $1.25 million in compensatory damages and $6 million in punitive damages. The court awarded these three employees an additional $402,087 in back pay. Read More.
- Published on Wednesday, 01 May 2013 16:46
The Department of Labor (DOL) has issued a new set of Frequently Asked Questions (FAQs) regarding various provisions of the Affordable Care Act. The FAQs, which were prepared jointly by the Departments of Labor, Health and Human Services (HHS), and the Treasury (collectively, the Departments), address numerous issues such as provider nondiscrimination, waivers from annual limits, and transparency reporting. Read More.
- Published on Wednesday, 01 May 2013 05:53
The U.S. Department of Labor's Occupational Safety and Health Administration (OSHA) announced an initiative to further protect temporary employees from workplace hazards. The announcement was made during a program at the department's headquarters marking Workers' Memorial Day — an annual observance to honor workers who have died on the job and renew a commitment to making work sites across the country safer. OSHA today sent a memorandum to the agency's regional administrators directing field inspectors to assess whether employers who use temporary workers are complying with their responsibilities under the Occupational Safety and Health Act. Inspectors will use a newly created code in their information system to denote when temporary workers are exposed to safety and health violations. Additionally, they will assess whether temporary workers received required training in a language and vocabulary they could understand. The memo, which can be viewed at http://s.dol.gov/ZM, emphasizes the duty of employers to protect all workers from hazards. In addition, OSHA has begun working with the American Staffing Association and employers that use staffing agencies, to promote best practices ensuring that temporary workers are protected from job hazards. In recent months, OSHA has received a series of reports about temporary workers suffering fatal injuries — many during their first days on a job. OSHA has issued citations when the employer failed to provide adequate protections, including safety training. Read More.
- Published on Wednesday, 01 May 2013 05:41
Presrite Corporation, a manufacturing company headquartered in Cleveland that makes gears and other industrial parts, will pay $700,000, offer jobs to no fewer than 40 women, and commit to other injunctive relief to settle a systemic class action lawsuit brought by the U.S. Equal Employment Opportunity Commission (EEOC). The EEOC's lawsuit charged that the company engaged in widespread discrimination against women who applied to work at one or more of Presrite's three plants in Cleveland and Ashtabula County. According to the EEOC, Presrite - a federal contractor - consistently passed over female applicants in favor of less-qualified males for entry-level positions at all three plants. The EEOC also cited evidence that women who were hired for such positions were harassed. The agency pointed to testimony from a former Presrite employee who testified that her male-coworkers told her women should not be working there; called her a "dumb b----h"; drew degrading pictures of her; and suggested that she open the top of her work uniform to pose for a photograph. The EEOC also charged the company with failing to keep applications and other employee data in violation of federal law. The EEOC alleged that Presrite failed to produce more than a thousand employment applications for persons the company hired and failed to maintain accurate or complete data about applicants. As a result, the EEOC said, it was unable to identify by name all of the female applicants who were unlawfully denied hire. Read More.
- Published on Monday, 29 April 2013 17:23
Section 7 of the National Labor Relations Act (NLRA) states that “Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all such activities.” According to the National Labor Relations Board (NLRB), activity is considered “concerted” when two or more employees act together to “improve wages or working conditions,” although, the “action of a single employee may be considered concerted if he or she involves co-workers before acting, or acts on behalf of others.” Reckless or malicious behavior, however, such as sabotaging equipment, threatening violence, spreading lies about a product, or revealing trade secrets, may cause concerted activity to lose its protection. The NLRB has interpreted Section 7 to include social media posts between employees. In one NLRB case, for example, following a work-related incident, an employee criticized her supervisor in a post on Facebook, which prompted other employees to reply to the post. The employee was suspended the next day and then fired. The NLRB issued a complaint alleging the employee was unlawfully fired for engaging in protected concerted activity when she posted on Facebook-the case ultimately settled. The NLRB has also interpreted Section 7 to cover nonunion employees. Thus, an employer may violate the NLRB if it interferes with the ability of nonunion employees to engage in protected concerted activity. All employers, whether union or nonunion, should therefore consult with legal counsel when drafting and implementing workplace policies that could trigger Section 7 concerns, such as social media policies or confidentiality agreements. Read More.
- Published on Monday, 29 April 2013 15:40
The U.S. Department of Labor (DOL) announced that Goodwill Industries of Southern California allegedly engaged in systemic discrimination stemming from the federal contractor's selection practices. Investigators with the department's Office of Federal Contract Compliance Programs (OFCCP) determined that Goodwill's hiring process favored female applicants for entry-level positions as attendants at local donation centers, in part because of perceptions that women have better customer service skills. The investigation concluded that 200 qualified men were allegedly denied the opportunity to advance to the offer stage. OFCCP Director Patricia A. Shiu commented that "Sex discrimination in the workplace can take many forms, and we are committed to fighting all of them…That means getting away from outdated notions about what constitutes 'men's work' and what constitutes 'women's work.' Throughout the past century, both the Labor Department and Goodwill have shared a common purpose of serving the disadvantaged and making workers self-sufficient. This settlement builds on that proud tradition by giving every worker a fair shot at a good job." Read More.
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