The University of California Regents has agreed to pay $10 million dollars to settle a whistleblower lawsuit in which a physician accused the UC Regents of covering up corruption and physician misconduct at the David Geffen School of Medicine at UCLA. Robert Pedowitz, M.D. alleged that he suffered retaliation after reporting conflicts of interest and other misconduct by doctors that he witnessed as chairman of the UCLA Department of Orthopedic Surgery in 2009. Dr. Pedowitz testified at trial that one of the orthopedic surgeons received $250,000 in consulting fees from device maker Medtronic. Dr. Pedowitz also testified about writing memos to university officials raising concerns about recurrent conflicts of interest and unethical activities by other doctors at the medical school. Dr. Pedowitz's attorneys argued UCLA ignored the conflict of interest because the university profited from the success of medical products or drugs developed by its doctors.
Sixth Circuit Holds EEOC Case Regarding Ford Motor’s Alleged Denial of Teleworking as an Accommodation May Proceed to Trial
The U.S. Court of Appeals for the Sixth Circuit has decided that the U.S. Equal Employment Opportunity Commission (EEOC) has created issues sufficient for trial in its disability discrimination lawsuit against the Ford Motor Company. The EEOC has charged that Ford violated the Americans with Disabilities Act (ADA) by allegedly denying a former employee the opportunity to telework and by allegedly firing her after she filed an EEOC charge. Harris had requested to work from home up to four days a week as an accommodation for her irritable bowel syndrome. Harris was a resale steel buyer whose job primarily required telephone and computer contact with coworkers and suppliers. The Sixth Circuit majority noted that "the law must respond to the advance of technology in the employment context . . . and recognize that the 'workplace' is anywhere that an employee can perform her job duties." The court also held that the "highly fact-specific" question was thus whether presence at the Ford facilities was truly essential, and that a jury should decide that issue.
A federal district court has entered a consent decree requiring Professional Freezing Services, LLC, a Southwest Side Chicago provider of logistical services to the refrigerated and frozen food markets, to pay $80,000 and provide other relief in order to resolve a disability discrimination lawsuit brought by the U.S. Equal Employment Opportunity Commission (EEOC). The EEOC charged that Professional Freezing refused to hire William Harvel because he had prostate cancer, in violation of the ADA. A former employee later testified that he had heard company owner Edward Gryzwacz state that he could not hire Harvel because he had cancer, and, "in a best-case scenario, would end up wearing diapers."
The U.S. Supreme Court has upheld a Michigan voter initiative that banned racial preferences in admissions to the state's public universities. Justice Anthony M. Kennedy authored the majority decision, holding that, "This case is not about how the debate about racial preferences should be resolved...It is about who may resolve it. There is no authority in the Constitution of the United States or in this court's precedents for the judiciary to set aside Michigan laws that commit this policy determination to the voters."
Court Rules Employer Unlawfully Used Results of Post-Offer Medical Exam to Deny Employment to New Hire With Back Injury
A federal judge has ruled in favor of the U.S. Equal Employment Opportunity Commission (EEOC) holding that American Tool & Mold, Inc. (ATM), violated federal disability discrimination law by withdrawing a job offer because of the applicant's prior back injury. According to the EEOC's suit, ATM made a provisional job offer to Michael Matanic as a process engineer pending a post-offer medical examination. However, the exam revealed that Matanic had a successful back surgery six years prior for which he could not provide a medical release indicating he had no restrictions. After ATM's post-offer medical examination provider learned this, it refused to perform a back screen and complete Matanic's physical examination. The EEOC has charged that ATM, subsequently withdrew the job offer because the company regarded Matanic as disabled. Matanic had actually performed the job at ATM for two months while he attempted to obtain the requested medical release.
Employers should ensure that their workday and workweek is specifically defined in the employee handbook. An employer may change the workday/and or the workweek as long as the change is intended to be permanent. It is not necessary for all employees to have the same workday or workweek. Pursuant to California law, a workday is defined as any consecutive 24-hour period beginning at the same time each calendar day. The 24-hour period may begin at any hour of the day, but thereafter must be consistent and unchanged. Overtime pay is based upon the total number of hours worked in excess of eight (8) hours within a 24-hour period or in excess of an established alternative workweek. A workweek is any seven (7) consecutive days starting with the same calendar day each week. A workweek is a fixed and regularly recurring period of 168 hours, seven consecutive 24-hour periods.
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.