Employer Must Pay $1M and Reinstate Drivers Allegedly Terminated for Raising Safety Concerns

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Published on Tuesday, 19 August 2014 Written by Editor

Asphalt Specialists Inc. has been found in violation of the Surface Transportation Assistance Act by the U.S. Department of Labor's Occupational Safety and Health Administration (OSHA) for allegedly wrongfully terminating a foreman and two truck drivers. The drivers allegedly raised safety concerns after being directed to violate U.S. Department of Transportation mandated hours of service for commercial truck drivers. Headquartered in Pontiac, the asphalt paving company was ordered to reinstate the three employees to their former positions with all pay, benefits and rights. The company was also ordered to pay a total of $953,916 in damages: $243,916 in back wages to the drivers, $110,000 in compensatory damages and $600,000 in punitive damages. The foreman, who was terminated from employment on June 30, 2012, had allegedly repeatedly raised concerns to the company's co-owner about exceeding hours of service when job assignments repeatedly failed to allow for the 10-hour rest period mandated by the Department of Transportation. At least twice, the foreman and the crew were expected to work more than 27 hours straight. The employee rightfully refused to operate a vehicle in an unsafe manner, which could potentially cause serious injury to the worker, co-workers or the public.

Read more: Employer Must Pay $1M and Reinstate Drivers Allegedly Terminated for Raising Safety Concerns

Employer Will Pay $92,500 for Alleged Retaliation

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Published on Tuesday, 19 August 2014 Written by Editor

Bertolini Corporation, a stackable chair manufacturer, has agreed to pay $92,500 to settle a retaliation lawsuit brought by the U.S. Equal Employment Opportunity Commission (EEOC).  The EEOC had charged Bertolini with unlawful retaliation against two employees. According to the EEOC's suit, the company retaliated against two employees, a maintenance mechanic and a human resources assistant, by firing them because they complained about unlawful discrimination at the company. In addition, to the monetary relief, the one-year consent decree settling the lawsuit enjoins the company from retaliating against any employee; requires it to provide in-person training regarding retaliation to its Tennessee employees and to maintain records of any complaints of retaliation.  The company must also provide a report to the EEOC regarding any such complaints.

Read more: Employer Will Pay $92,500 for Alleged Retaliation

Federal Judge Rules Prime Trucking’s Same-Sex Training Policy Violates Federal Law

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Published on Tuesday, 19 August 2014 Written by Editor

A federal judge has ruled that New Prime, Inc., one the nation's largest trucking companies, violated federal law by discriminating against female truck driver applicants when it required that they be trained only by female trainers, the U.S. Equal Employment Opportunity Commission (EEOC). The court found that the company, which does business as Prime, allegedly engaged in discrimination by denying employment opportunities to women through its same-sex trainer policy. Prime adopted its policy after it was found in a previous EEOC lawsuit to have violated Title VII based upon the sexual harassment of one of its female driver trainees. Based on a discrimination charge filed by Deanna Roberts Clouse, the EEOC filed suit against Prime again. The EEOC charged that Prime's policy of assigning female trainees only to female trainers discriminated against Clouse and all other female applicants for truck driver trainee positions because of their sex. Because Prime had very few female trainers, this practice resulted in female trainees waiting extended periods of time, sometimes up to 18 months, for a female driver to become available, which resulted in most female drivers being denied employment. Male applicants were promptly assigned to male trainers.

Read more: Federal Judge Rules Prime Trucking’s Same-Sex Training Policy Violates Federal Law

Ban on Naps Proves Costly for City of Los Angeles

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Published on Wednesday, 13 August 2014 Written by Editor

The Los Angeles City Council has finalized a $26-million dollar settlement to end a lawsuit over a ban on lunchtime naps taken by sanitation-truck drivers. The settlement amount, approved on a 9-2 vote, resolves a class-action lawsuit involving nearly 1,100 sanitation workers who alleged said they were improperly barred from sleeping and engaging in other activities during their meal breaks. Sanitation officials had imposed the no-nap rule to avoid the bad publicity that would come if a resident, business owner or television news crew stumbled across a sleeping city employee. But lawyers for the drivers said the city, by limiting workers' mealtime activities, had impeded their ability to take a meal break.

Read more: Ban on Naps Proves Costly for City of Los Angeles

Employers Must Consistently Enforce Personnel Policies and Procedures

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Published on Tuesday, 12 August 2014 Written by Hailey Benton, Esq., Floyd, Skeren & Kelly, LLP

A recent case, Riverside County Sheriff's Department  v. Jan Stiglitz, serves as a reminder that employers must consistently enforce personnel policies and procedures, in particular those related to terminations. The case involves Kristy Drinkwater, a Correctional Deputy, who was terminated for allegedly falsifying time records in order to obtain compensation to which she was not entitled.  She appealed her termination, arguing that the disciplinary action was disproportionate to her misconduct because other County Sheriff's Department (the "Department") employees who had falsified time records received lesser punishment. She then submitted a motion to hearing officer Jan Stiglitz for discovery of disciplinary records of other Department personnel who had been investigated or disciplined for similar misconduct.  Stiglitz eventually ordered the Department to produce the requested records and the Department appealed.  The case has made its way to the California Supreme Court.

Read more: Employers Must Consistently Enforce Personnel Policies and Procedures

EEOC Sues Tech Company for Alleged Pregnancy Discrimination

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Published on Monday, 11 August 2014 Written by Editor

Virginia-based Savi Technology, Inc., which specializes in providing sensor-based predictive analytic solutions that enable customers to track and monitor high value assets, has been sued by the Equal Employment Opportunity Commission for allegedly violating federal law when it rescinded a job offer after learning that a job candidate had recently given birth. According to the EEOC, after Christine Rowe successfully completed a telephone interview and an in-person interview, Savi Technology offered her the director of human resources position. However, the day after Savi Technology extended the job offer, Rowe advised the company vice president and general counsel, who was to be her direct supervisor, that she had recently given birth and had surgery related to her pregnancy. The next day, the vice president and general counsel allegedly informed Rowe that the job offer was rescinded.

Read more: EEOC Sues Tech Company for Alleged Pregnancy Discrimination

Judge Rejects $324.5M Settlement in Tech Wage Case

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Published on Monday, 11 August 2014 Written by Bernadette M. O'Brien, Esq., SPHR, Floyd, Skeren & Kelly LLP

A federal judge has rejected a $324.5 million settlement in a class action lawsuit filed by high-tech workers, which alleges that Google and Apple conspired with other technology companies to block top employees from taking better job offers. U.S. District Judge Lucy Koh rejected the settlement on the grounds that it is not enough to cover the damages done to the tech workers. According to Judge Koh, the workers are entitled to at least $380 million.  Originally, the tech workers were seeking $3 billion in damages before settling for about 10 percent of that, which if it had been awarded in a trial, could have been tripled to $9 billion under U.S. antitrust law. Under a $9 billion award, the tech workers would have received an average of more than $140,000. Under the proposed $324.5 million settlement, Judge Koh estimated that after subtracting attorneys' fees and costs of $82 million, the workers would have received an average of $3,750; that amount "falls below the range of reasonableness" according to Koh.

Read more: Judge Rejects $324.5M Settlement in Tech Wage Case

Employer Will Pay $37,500 for Allegedly Terminating Employee Because of Back Impairment

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Published on Friday, 08 August 2014 Written by Editor

MPW Industrial Services Inc., a provider of industrial cleaning and labor support services, has agreed to pay $37,500 to resolve a disability discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC). According to the EEOC, the company terminated Todd Semko, who was hired as a laborer, before his first day of work after it learned during a fitness-for-duty evaluation that he has an implanted Transcutaneous Electrical Nerve Stimulation (TENS) unit in his lower back for a back impairment. The EEOC charged that Semko was fired because a company occupational nurse feared he would not be able to charge the TENS unit at the worksite even though Semko explained that he did not need to charge the unit during working hours. Semko was not under any medical restrictions. The company did not request  additional medical documentation from Semko's doctor, nor did the company explore providing a reasonable accommodation.

Read more: Employer Will Pay $37,500 for Allegedly Terminating Employee Because of Back Impairment

NRLB Rules Required Drug and Alcohol Test Triggers "Weingarten" Rights

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Published on Thursday, 07 August 2014 Written by Editor

The National Labor Relations Board (NLRB) has ruled that Ralphs Grocery Company violated Section 8(a)(1) of the National Labor Relations Act (NLRA) by suspending and then terminating Vittorio Razi for his refusal to take a drug and alcohol test without union representation. The Board ruled that the reason for Razi's termination was "inextricably linked to his assertion of Weingarten rights."  Razi refused to take the test because he wanted to consult with a union representative beforehand. Razi asked for representation and he attempted—unsuccessfully—to contact a representative by phone. Rather than wait to see if a representative would become available, Ralphs terminated Razi. Ralphs argued that Razi's refusal to take the drug and alcohol test was grounds for discipline because it constituted insubordination. However, the Board held this was "not a valid defense" because the drug and alcohol test triggered Razi's right to a Weingarten representative. According to the Board, since Razi's refusal to submit to the test without the presence of a union representative was an exercise of his Weingarten rights, his refusal could not lawfully be used against him.

Read more: NRLB Rules Required Drug and Alcohol Test Triggers "Weingarten" Rights

Employer Will Pay $80K for Alleged Retaliation

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Published on Thursday, 07 August 2014 Written by Editor

Turner Machine Company will pay $80,000 and furnish other relief to resolve a lawsuit for retaliation filed by the U.S. Equal Employment Opportunity Commission (EEOC). According to the EEOC's suit, Ken Woodard was hired by Turner in June 2011, and he worked as a mechanical engineer. Problems began when he raised concerns about mandatory employee meetings called "huddles," which occurred every morning. During the huddles, employees would discuss milestones occurring in their personal lives including their religious affiliations and church activities. Woodard opposed this practice, and subsequently filed a discrimination charge.  The charge with the EEOC was resolved through an informal mediation process, but Turner Machine later allegedly retaliated against Woodard by terminating him.

Read more: Employer Will Pay $80K for Alleged Retaliation

DOL Proposes Rule Pertaining to Federal Contractors to “Combat Pay Discrimination”

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Published on Thursday, 07 August 2014 Written by Editor

The U.S. Department of Labor (DOL) has announced a proposed rule requiring federal contractors and subcontractors to submit an annual Equal Pay Report on employee compensation to the Office of Federal Contract Compliance Programs. The requirement would apply to companies that file EEO-1 reports, have more than 100 employees and hold federal contracts or subcontracts worth $50,000 or more for at least 30 days. The OFCCP would use the Equal Pay Report to collect summary employee pay and demographic data using existing government reporting frameworks.

Read more: DOL Proposes Rule Pertaining to Federal Contractors to “Combat Pay Discrimination”

Employers May Require Exempt Employees to Use Accrued Vacation for Partial Day Absences

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Published on Wednesday, 06 August 2014 Written by Bernadette M. O'Brien, Esq., SPHR, Floyd, Skeren & Kelly, LLP

Both the federal Fair Labor Standards Act (FLSA) and California law require that an employer pay overtime wages to employees unless those employees are classified as exempt, and paid on a salary basis. One area of dispute has been whether, under California law, an employer may require that an exempt employee use his or her accrued vacation or other leave time (as opposed to a deduction from salary, which is not permitted) when the employee is absent from work for partial days, including for increments of less than four hours. In Rhea v. General Atomics, the Court of Appeal held that an employer may require that an exempt employee use accrued vacation/PTO for partial day absences, even for increments of less than four hours.

Read more: Employers May Require Exempt Employees to Use Accrued Vacation for Partial Day Absences

NLRB Officials Ratify Actions Taken During Period Supreme Court Held Board Members Were Not Validly Appointed

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Published on Wednesday, 06 August 2014 Written by Editor

The National Labor Relations Board (NLRB) has unanimously ratified all administrative, personnel, and procurement matters taken by the NLRB from January 4, 2012 to August 5, 2013.  The Supreme Court recently held in NLRB v. Noel Canning that the Board Members appointed on January 4, 2012 by President Obama were not validly appointed. The Board regained a quorum on August 5, 2013.  From January 4, 2012 to August 5, 2013, the Board acted on various matters including the appointment of various Regional Directors, Administrative Law Judges, and restructurings of regional and headquarters offices.  The Board has now ratified these actions to remove any question concerning the validity of actions undertaken during that period of time.

Read more: NLRB Officials Ratify Actions Taken During Period Supreme Court Held Board Members Were Not Validly Appointed

NLRB Rules McDonald’s May Be Jointly Liable for Labor Violations

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Published on Tuesday, 05 August 2014 Written by Editor

The general counsel of the National Labor Relations Board (NLRB) has ruled that McDonald's could be held jointly liable for employee wage violations by its franchise operators. If the NLRB decision is upheld, McDonalds could be held liable for alleged illegal employment actions taken at 1000s of franchises around the country. The ruling arose from an NLRB investigation into claims by employees that McDonald's franchisees allegedly terminated, threatened or otherwise penalized fast-food workers for their protests calling for a $15 dollar minimum wage. The fast-food workers have asserted that McDonald's is a joint employer because franchise owners must strictly adhere to its rules on food, cleanliness and employment practices, and the workers assert that McDonald's often owns the restaurants that franchisees use.

Read more: NLRB Rules McDonald’s May Be Jointly Liable for Labor Violations

California Cities Consider Minimum Wage Increases

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Published on Tuesday, 05 August 2014 Written by Editor

The California Chamber of Commerce is reporting that more California cities are considering minimum wage increases. According to the CalChamber article, Oakland, San Diego and San Francisco have all recently raised the issue of raising the minimum wage. On July 29, the Oakland City Counsel rejected a plan calling for a minimum wage increase to $12.25 per hour for companies with more than 150 employees, although Oakland voters will consider a November ballot measure to raise the minimum wage; the San Diego City Council approved an ordinance that increases the minimum wage to $11.50 an hour by January 1, 2017; and, in San Francisco, the Board of Supervisors unanimously voted to place a measure on the November ballot to increase the city's minimum wage, which is currently at $10.74 per hour.

Read more: California Cities Consider Minimum Wage Increases

Tire Company Allegedly Underpaid Female HR Director

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Published on Tuesday, 05 August 2014 Written by Editor

Royal Tire, Inc., a commercial and retail tire company based in St. Cloud, Minnesota, will pay $182,500 and be subject to a consent decree settle an equal pay discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC). The EEOC's lawsuit charged that Royal Tire allegedly discriminated against its female human resources director by paying her lower wages than it paid a male employee who held the same position. The EEOC's investigation showed that when the female employee became HR director, she was paid $35,000 less per year than her male predecessor, and $19,000 less than the minimum salary for the position under Royal Tire's own compensation system.

Read more: Tire Company Allegedly Underpaid Female HR Director

City Colleges of Chicago Sued for Age Discrimination

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Published on Tuesday, 05 August 2014 Written by Editor

Harold Washington College, part of the City Colleges of Chicago system, has been sued for age discrimination by the U.S. Equal Employment Opportunity Commission (EEOC). According to the complaint, the college refused to hire Nancy Sullivan, an adjunct professor, for a full-time faculty position because of her age--66.  The EEOC's investigation revealed that Sullivan had worked as an adjunct professor in the English Department at the college for five years before applying for the full-time faculty position. According to the EEOC, Sullivan "had the credentials, had compiled an excellent record during her tenure as an adjunct and had enthusiastic recommendations from several full-time members of the faculty. She looked like a perfect fit for the job, yet was passed over in favor of younger, less-experienced candidates."

Read more: City Colleges of Chicago Sued for Age Discrimination

LinkedIn Agrees to Pay Almost $6 Million for Overtime Claim

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Published on Tuesday, 05 August 2014 Written by Editor

LinkedIn Corp. has agreed to pay $3,346,195 in overtime back wages and $2,509,646 in liquidated damages to 359 former and current employees. Following an investigation, the U.S. Department of Labor's Wage and Hour Division (DOL) found that LinkedIn was in violation of the overtime and record-keeping provisions of the Fair Labor Standards Act. When notified of the violations, LinkedIn agreed to pay all the overtime back wages due and to take proactive steps to prevent repeat violations.

Read more: LinkedIn Agrees to Pay Almost $6 Million for Overtime Claim

Can an Employer Require That Employees Sign Disciplinary Notices?

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Published on Monday, 04 August 2014 Written by Kyle Uebelhardt, Esq., Floyd, Skeren & Kelly, LLP

In general, an employer may require that employees sign written disciplinary notices. Insubordination constitutes a refusal by an employee to follow an employer directive, including the requirement that employees sign written disciplinary notices, provided there is timely, clear and concise notice by the employer of the workplace rule regarding signing disciplinary notices. An employee's refusal to sign a disciplinary notice may thus constitute insubordination, depending on the circumstances. However, according to a recent California Supreme Court decision (Paratransit, Inc. v. UIAB) such conduct does not constitute misconduct pursuant to Section 1256 of Unemployment Insurance Code, so as to disqualify the employee from unemployment insurance benefits.

Read more: Can an Employer Require That Employees Sign Disciplinary Notices?

Company Sued for Allegedly Requiring Employees to Disclose Medical Condition When Requesting Sick Leave

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Published on Friday, 01 August 2014 Written by Editor

The Erie Strayer Company, an Erie-Pa.-based construction equipment supplier, has been sued by the U.S. Equal Employment Opportunity Commission  (EEOC) for allegedly violating disability discrimination laws. According to the EEOC, the company required Thomas Young, and other employees, to reveal the specific nature of their medical illness in order to have necessary sick leave count as an excused absence. The EEOC has charged that this is an unlawful disability-related inquiry under the ADA  and not justified by business necessity. The EEOC has also alleged that the company retaliated against employees for their refusal to comply with the company's request for medical information.

Read more: Company Sued for Allegedly Requiring Employees to Disclose Medical Condition When Requesting Sick Leave

Common Pitfalls of Work-Related Email

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Published on Friday, 01 August 2014 Written by Bernadette M. O'Brien, Esq., Floyd, Skeren & Kelly LLP

Work related communication is often via email. However, as an article in www.sfgate.com ("Work email etiquette dos and don'ts") suggests, work related email should not always be a substitute for conversation. The informative article follows: "Whether you work for a Bay Area tech leader or an early stage startup, writing emails is a part of your day. An email can sometimes substitute a conversation — but that doesn't mean it should. Some thoughts don't transfer well into an electronic message. Keep these dos and don'ts in mind before clicking the send button.

Read more: Common Pitfalls of Work-Related Email

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