Court Holds Employee Created A Direct Threat To The Workplace Due to His Heart Condition

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Published on Friday, 18 May 2012 16:58

Brian Wurzel worked for Whirlpool as a forklift driver. He suffered from Prinzmetal angina, which causes spasms in the coronary arteries. Wurzel could not predict when a spasm would occur, how severe it would be, or how long it would last. The spasms, which sometimes occurred at work, caused Wurzel to experience tightness in his chest, shortness of breath, numbness in his left arm, pain in his neck, and sometimes dizziness and fatigue. Although Wurzel acknowledged that he could not predict when a spasm would occur, he asserted that he could stop what he was doing before becoming incapacitated. Wurzel continued to experience spasms while on the job and the company’s human resources administrator required a medical clearance. Wurzel then provided a note from his physician that he could work with no restrictions.

Wurzel continued to experience spasms and eventually took a position in the company’s paint department, which did not require forklift driving but did require working around machinery.  THe spasms continued and Whirlpool required an independent medical examination; that physician concluded Wurzel could not work around moving machinery because it created a safety risk. Wurzel then went on sick leave, eventually returned to work, and subsequently filed suit against the company claiming disability discrimination in violation of the Americans with Disabilities Act (ADA).

On appeal from the trial court’s decision granting summary judgment in favor of Whirlpool, the court determined that “Whirlpool's determination that Wurzel posed a direct threat was based on a reasonable medical judgment, which relied on the most current medical knowledge and best available objective evidence and reflected an individualized assessment of Wurzel's abilities.” The court also concluded that “there is no evidence of a reasonably based medical judgment supporting the view that Wurzel did not pose a direct threat.” Read More.

Court Holds Starbucks Can Limit Number Of Pro-Union Buttons Worn By Employees

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Published on Thursday, 17 May 2012 02:18

In an appeal involving a lawsuit filed by the National Labor Relations Board (NLRB) against Starbucks Coffee Company (Starbucks) the Second Circuit Court of Appeals has held that Starbucks's enforcement of its one pro-union button dress code is not an unfair labor practice. The case involved employees from four Starbucks who were engaged in a highly visible union organization campaign.  In response, Starbucks mounted an anti-union campaign. The NLRB found that Starbucks committed numerous violations, including implementing a policy prohibiting employees from wearing more than one pro-union button on work clothes.

On appeal, the Second Circuit noted that Section 7 of the National Labor Relations Act guarantees all employees with the right to engage in concerted activities for the purpose of collective bargaining, and employers may not interfere with these rights. Further, "the right of employees to wear union insignia at work has long been recognized as a reasonable and legitimate form of union activity." However, the Second Circuit held that the NLRB went “too far in invalidating Starbucks's one button limitation...‘Special circumstances justify restrictions on union insignia or apparel when their display may . . . unreasonably interfere with a public image that the employer has established.”’ Read More.

“Personal Attendant” May Be Exempt From Overtime

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Published on Thursday, 17 May 2012 01:38

When someone hires an employee to care for an elderly or disabled person in his or her home, the employee is usually not entitled to overtime pay depending on the type of work performed by the caretaker. Specifically, if the employee performs work of a "personal attendant," which refers to a person employed to supervise, feed, or dress a person who by reason of age, physical disability or mental deficiency needs supervision, the caretaker is exempt from overtime pay requirements. However, if the caretaker performs a "significant amount of work" (i.e. duties which constitute greater than 20% of the weekly work time) in addition to these tasks, such as housekeeping responsibilities, the caretaker is not exempt from overtime pay. Additionally, with certain exceptions, if the caretaker is a registered nurse employed to engage in the practice of nursing in the home, the nurse is not exempt from overtime pay requirements.  Read More.

Partner In Partnership Does Not Have Standing to File FEHA Claim

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Published on Thursday, 17 May 2012 01:09

Mary Fitzsimons filed a lawsuit against the California Emergency Physicians Medical Group (CEP) for alleged unlawful retaliation (based on her complaint of sexual harassment) pursuant to the California Fair Employment and Housing Act (FEHA). The trial court found for CEP and Fitzsimons appealed, alleging that the trial court erred in concluding that a partner does not have standing to assert a claim for retaliation under the FEHA against his or her partnership. On appeal, the court of appeal agreed that the FEHA does support a claim for retaliation by a partner against his or her partnership for opposing sexual harassment of an employee. Specifically, as the court noted, although the FEHA prohibits discrimination or harassment, and retaliation for complaining about such conduct, the fundamental basis for liability is the existence of an employment relationship between the one who discriminates and the individual claiming discrimination/harassment.  However, if there is no proscribed employment relationship, FEHA does not apply. Read More.

OSHA Begins Outreach Initiative on Hazards of Working Outdoors in Hot Weather

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Published on Wednesday, 16 May 2012 05:12

The U.S. Department of Labor's Occupational Safety and Health Administration (OSHA) has begun a national outreach initiative to educate employers and employees about the hazards of working outdoors in hot weather. Every year, thousands of workers across the country suffer from serious heat-related illnesses. If not quickly addressed, heat exhaustion can become heat stroke. Labor-intensive activities in hot weather can raise body temperatures beyond the level that normally can be cooled by sweating. Heat illness initially may manifest as heat rash or heat cramps, but quickly can become heat exhaustion and then heat stroke if simple prevention steps are not followed, such as drinking plenty of water and taking frequent breaks in the shade.

According to Secretary of Labor Hilda L. Solis, "For outdoor workers, 'water, rest and shade' are three words that can make the difference between life and death…If employers take reasonable precautions, and look out for their workers, we can beat the heat." In preparation for the summer season, OSHA has developed heat illness educational materials in English and Spanish, as well as a curriculum to be used for workplace training. Additionally, OSHA has a webpage for employers and employees regarding heat illness, which provides information and resources, including how to prevent heat illness and what to do in case of an emergency.  Read More.

EEOC Makes State Charge Data Available Online

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Published on Wednesday, 16 May 2012 04:11

The U.S. Equal Employment Opportunity Commission (EEOC) has made available for the public the private sector workplace discrimination charge statistics for each of the nation’s 50 states and U.S. Territories for fiscal years 2009-2011. The employment data provides a look at EEOC charge receipts, broken down by the basis of discrimination, as well as the percent of total state and national charges. The EEOC will update the state data when new charge statistics are available each fiscal year. Read More.

EBSA Issues New FAQs on Paul Wellstone and Pete Domenici Mental Health Parity and Addiction Equity Act

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Published on Monday, 14 May 2012 15:50

The Department of Labor’s Employee Benefits Security Administration (EBSA) has issued new FAQs on the Paul Wellstone and Pete Domenici Mental Health Parity and Addiction Equity Act of 2008 (MHPAEA), which in general requires employment-based group health plans and health insurance issuers that provide group health coverage for mental health/substance use disorders to ensure equivalence between such benefits and their medical/surgical benefits. Two of the important questions and answers include: (a) Is it permissible for a health plan to define mental health coverage as consisting solely of inpatient care benefits?

“No. The Departments regulations set forth six classifications of benefits: 1) inpatient, in-network; 2) inpatient, out-of-network; 3) outpatient, in-network; 4) outpatient, out-of-network; 5) emergency care; and 6) prescription drugs. If a plan covers mental health or substance use disorder benefits in one of the six classifications, the plan must provide coverage in all of the classifications in which medical/surgical benefits are available. Therefore, a plan that provides medical/surgical benefits on an outpatient basis may not limit mental health or substance use disorder benefits to inpatient care only.”

And, (b) Are there plans that are exempt from MHPAEA? “Yes. While MHPAEA applies to most employment-based health coverage, there are a few important exceptions. Specifically, MHPAEA does not apply to small employers who have fewer than 51 employees. There is also an increased cost exemption available to plans whose costs increase by more than a specified amount and who follow guidance issued by the Departments. Additionally, plans for State and local government employees that are self-insured may opt-out of MHPAEA's requirements if certain administrative steps are taken (such as sending notice to enrollees). Finally, MHPAEA does not apply to retiree-only plans.” Read More.

Preventing Sexual Harassment in the Workplace

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Published on Thursday, 10 May 2012 18:53

The best way to prevent sexual harassment in the workplace, or to limit damages if it should occur despite preventative measures, is to implement effective policies and procedures designed to eliminate sexual harassment. Further, employers have a legal obligation to prevent sexual harassment in the workplace and must therefore take all reasonable steps to prevent discrimination and harassment from occurring. To meet these objectives and legal requirements, employers must provide information to employees on sexual harassment by either distributing a pamphlet that may be obtained from the Department of Fair Employment and Housing (DFEH), "Sexual Harassment is Forbidden by Law" (DFEH-185) or developing an equivalent workplace document, such as a sexual harassment policy contained in an employee handbook and/or standalone policy on sexual harassment, which meets the following requirements:

1. The illegality of sexual harassment is described;

2. The definition of sexual harassment under state and federal laws is detailed;

3. A description of sexual harassment, utilizing examples is provided;

4. The internal complaint process of the employer is explained to employees;

5. The legal remedies and complaint process available through the DFEH is detailed;

6. Directions on how to contact the DFEH are provided;

7. The protection against retaliation for opposing the practices prohibited by law or for filing a complaint with, or otherwise participating in investigative activities conducted by, the DFEH is detailed.

Further, an employer’s sexual harassment policy should contain provisions advising an employee about the scope of his or her rights if the employee is subjected to sexual harassment in the workplace; the employer’s commitment to fully and effectively investigate any complaint of sexual harassment; the employer’s assurance that if harassment has occurred, the employer will take prompt and effective remedial action.

In addition to the above, employers should train all individuals in the workplace on the employer’s policies regarding sexual harassment and post the required notices regarding discrimination and harassment in conspicuous locations in the workplace. And, all employees should be made aware of the seriousness of a violation of the employer’s sexual harassment policy.

Employers with 50 or more employees must also provide at least two hours of classroom or other effective interactive training and education by a qualified trainer regarding sexual harassment to all supervisory employees, and to all new supervisory employees within six months of assuming a supervisory position. Thereafter, covered employers must provide sexual harassment training and education to each supervisory employee once every two years. Read More.

Employer and Employee Arrested for Workers’ Compensation Fraud

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Published on Thursday, 10 May 2012 17:08

Sied "Mike Zarrin" Zarrinsaray, 52, his wife Ronak Barazandeh, 43, the owners of United RMR Enterprises, Inc. of San Jose, and their employee, Chad Oberquell, 40, were arrested for alleged workers' compensation insurance fraud. The maximum sentence for each is five years in state prison. as well as a potential $50,000 in fines and restitution.

The California Department of Insurance (CDI) Fraud Division Detectives, conducted an investigation and allegedly found that on August 26, 2010, Oberquell, an employee of ITR Industries, reported a work-related knee injury to his employer. Subsequently, Oberquell’s co-workers reported that Oberquell had actually injured his knee while working a weekend job with their competitor, United RMR Enterprises, and that company allegedly did not report the work injury to their carrier workers' compensation insurance carrier, the State Compensation Insurance Fund (SCIF). If the workers’ compensation claim filed by Oberquell is found to be fraudulent, the loss to ITR Industries' workers' compensation carrier would be approximately $16,000.

During the CDI’s investigation, investigators also allegedly uncovered evidence that United RMR Enterprises was paying Oberquell, and others, cash wages, and also allegedly was not reporting these employees as part of their payroll to SCIF, nor to the California Employment Development Department (EDD) for tax purposes. Further the forensic audit allegedly determined that United RMR Enterprises failed to remit approximately $15,700 in workers' compensation premiums to their former carrier, SCIF.  Read More.

CA Supreme Court Holds Prevailing Party is Not Entitled to Attorney’s Fees in Meal And Rest Period Cases

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Published on Tuesday, 08 May 2012 16:08

On April 30, 2012, the California Supreme Court issued a published decision addressing whether the prevailing party in meal and rest period cases may recover attorney’s fees. Specifically, the Court considered when, if ever, a prevailing party in a section 226.7 action for an alleged failure to provide meal and rest breaks may be awarded attorney's fees. The Count concluded that the labor code does not authorize an award of attorney's fees to a party that prevails on a section 226.7 claim.  

In reaching its decision, the Court noted that “the legislative history shows that the Legislature (a) considered including a one-way fee-shifting provision in favor of employees in section 226.7, (b) ultimately deleted the provision from the final version of section 226.7, and then (c) gave no indication that section 218.5's two-way fee-shifting rule should apply to section 226.7 claims, even as (d) it adopted amendments to section 218.5 as part of the very same legislation that created section 226.7. We believe the most plausible inference to be drawn from this history is that the Legislature intended section 226.7 claims to be governed by the default American rule that each side must cover its own attorney's fees.” Read More.

More on Brinker: What Happens if an Employee Works Through Lunch?

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Published on Tuesday, 08 May 2012 15:18

The bottom line is that if the employer knew or should reasonably have known that the employee worked through his or her meal period, the employer must pay the employee for the time worked. Thus, it is important that employers maintain records evidencing that an employee took a meal period because, according to a separate opinion issued by two of the seven California Supreme Court justices in Brinker: "If an employer's records show no meal period for a given shift over five hours, a rebuttable presumption arises that the employee was not relieved of duty and no meal period was provided." Although this is not a binding part of the Brinker decision, employers should note that if there is a dispute between an employee and employer over whether or not a meal period was provided, the employer will need employee records to establish that the meal period was provided. 

Even though the Brinker court held that a meal period penalty is not required in situations where the employer provides a meal period but the employee continues to work, if the employee continues to work, and the employer knows or should reasonably know that the employee worked through the meal period, the employer will owe the employee regular pay for the time worked. However, the employer is not required to monitor employees to ensure that they are taking their required meal periods. Employers must also still provide meal periods by the end of the fifth hour of work, although employees may take an early meal period.

Employer Settles Race Discrimination Lawsuit for $600,000

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Published on Monday, 07 May 2012 18:20

Race discrimination and retaliation violate Title VII of the Civil Rights Act of 1964. And, as a recent case demonstrates, race discrimination claims can be costly for employers. The case involves Bankers Asset Management, Inc., a real estate company in Little Rock, that has agreed to $600,000 to former employees and a class of applicants to settle a race discrimination and retaliation lawsuit filed by the U.S. Equal Employment Opportunity (EEOC). According to the EEOC, the company allegedly excluded black applicants for jobs based upon their race.

The EEOC also alleged that the company then retaliated against other employees and former employees for opposing or testifying about the race discrimination, by demoting employees, by forcing one of the employees out of her job, and by suing others in state court. In addition to the settlement amount, the company must: (1) provide mandatory annual three-hour training on race discrimination and retaliation to all of its employees; (2) have its president or another officer appear at the training to inform staff of the company’s non-discrimination policy; that the company will not tolerate such discrimination; and the consequences for discriminating in the workplace; (3) maintain records of complaints of race and retaliation discrimination; (4) provide annual reports to the EEOC regarding such complaints; (5) issue a memo to one of the hiring officials explaining that the company does not discriminate on the basis of race and retaliation; and (5) post a notice to employees about the lawsuit that provides the EEOC’s contact information.

EEOC General Counsel David Lopez commented on the settlement stating that “Excluding qualified individuals from job opportunities because of their race or in retaliation for exercising protected rights are fundamental violations of the laws we enforce…As this case demonstrates, the EEOC is prepared to vigorously pursue such cases and resolutions that help ensure that workplaces will be free from discrimination. Recent cases we have filed alleging hiring discrimination, such as our suit against Bass Pro, demonstrate this continued commitment.” Read More.

NLRB Finds Employer’s Facebook Posts Were Unlawful

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Published on Monday, 07 May 2012 06:53

The National Labor Relations Board (NLRB) has ruled that an employer’s Facebook posts were unlawful. The case involves Jimmy Johns, a restaurant chain. Some of its employees were complaining that the company was not providing its employees with paid sick leave. Specifically, they put up posters near Jimmy John’s restaurants showing two identical sub sandwiches side by side with text that read in part, “CAN’T TELL THE DIFFERENCE? THAT’S TOO BAD BECAUSE JIMMY JOHN’S WORKERS DON’T GET PAID SICK DAYS. SHOOT, WE CAN’T EVEN CALL IN SICK.” In response to this protected activity, an employee started a Jimmy John’s Anti-Union Facebook page. The page was accessible to anyone with a Facebook account. A co-owner of Jimmy John’s made a post on the Facebook page encouraging people to take the posters down, and an assistant manager criticized one of the employees complaining about the sick leave policy. Employees and the assistant manager also posted negative comments about the employee.

Subsequently, the company terminated several of the employees complaining about the sick leave, and others were disciplined. The employees then filed an unfai r labor practices charge with the NLRB. The NLRB found that some of the employer’s posts were  unlawful, specifically those that encouraged individuals to text one of the complaining employees and tell him “how they feel,” because, according to the NLRB, this was encouraging harassment of the employee for protected activities. Read More.

SSA Bans ALJs From Conducting Online Searches About Claimants

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Published on Monday, 07 May 2012 06:25

The Social Security Administration (SSA) has advised its administrative law judges (ALJs) that they may not use information obtained from online sources when deciding cases, a tool used by some judges to uncover fraudulent claims. SSA officials said ALJs cannot trust information posted online, and the process of searching ror information could compromise protected private information. The SSA’s ban covers all Internet sites, including social media sites such as Facebook.  Sen. Tom Coburn, an Oklahoma Republican, disagreed with the SSA’s decision, and in a letter to the Social Security Commissioner stated that “If an individual claims to be disabled, and then publicly posts a picture participating in a sport or physical activity on a social media website, such information should be used by [adjudicators] to determine if the claimant was truly disabled.”

The controversy highlights the ongoing questions about the information individuals make available about themselves online, and how others, such as employers and government agencies may use that information for such things as hiring decisions, disciplinary procedures, and uncovering fraudulent claims. Social Security officials advised that they are not opposed to using information obtained from the Internet, but they do not want the “front-line deciders” searching for such information. Instead, such online searches should be a function for fraud investigators. According to Kia S. Green, a spokeswoman for the agency, “Adjudicators should do what they are trained to do — review voluminous files to determine eligibility for disability benefits. Office of Inspector General fraud investigators should do what they are trained to do — vigorously follow up on any evidence of fraud.” Read More.

NLRB Alleges Arbitration Agreement Used by “24 Hour Fitness” is Unlawful

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Published on Thursday, 03 May 2012 19:19

Employers continue to face legal challenges to workplace arbitration agreements. Recently, the National Labor Relations Board (NLRB) issued a complaint alleging that 24 Hour Fitness USA, Inc. violated federal labor law by insisting that all employment-related disputes be resolved by individual arbitration versus class action. The California-based corporation, requires employees to agree in writing, as a condition of employment, to forego any rights to collective or class action lawsuits or arbitrations. According to the NLRB, the requirement violates the National Labor Relations Act (NLRA).

The NLRB initiated an investigation following a charge filed by an employee from the 24 Hour Fitness center in San Ramon, California. The NLRB alleges that the company is attempting to enforce its no-class-action policy by asserting it in litigation brought by employees in numerous cases, seven of which are cited in the complaint. In each case, employees, who are not represented by a union, sought to bring workplace-related claims, such as wage and hour violations, on a class-wide basis. In response, 24 Hour Fitness sought to compel the employees to submit their claims to individual arbitrations, referencing the arbitration policy contained in its employee handbook. The complaint calls for a hearing before an Administrative Law Judge on June 11, and seeks an order requiring that the company stop maintaining and enforcing that portion of its employee policy that prohibits collective and class action. Read More.

According to the 5th Circuit, “Indefinite Leave is Not a Reasonable Accommodation”

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Published on Thursday, 03 May 2012 18:54

In a recent unpublished decision from the 5^th Circuit, the federal appellate court ruled that “Indefinite leave is not a reasonable accommodation.” Although this is not a citable decision, it is interesting to consider the court’s analysis in a case involving an employee claiming disability discrimination pursuant to the Americans with Disabilities Act (ADA). The case involves Andrew Amsel (“Amsel”) who worked for the Texas Water Development Board (TWDB) which is a state agency that provides water planning, financial and technical assistance, and data collection for the State of Texas. Amsel worked in various positions until his termination in August 2007. During his time working with TWDB, Amsel suffered from several medical conditions including ischemic heart disease, functional class IV angina, and a major digestive disorder. From 1997 to 2005, Amsel worked in TWDB’s information technology group as a Systems Analyst and was provided significant telecommuting accommodations that allowed him to work from home despite his health difficulties.

In August 2004, Amsel’s position was identified as one that faced outsourcing. As a result of the additional stress this caused, Amsel sought treatment from his primary care physician, who recommended that Amsel be provided a flexible work schedule that would allow him to continue telecommuting. Amsel then met with the company’s Human Resources Director about the doctor’s recommendation. TWDB determined that Amsel qualified to fill a back-up role to a TWDB employee in another department. However, his telecommuting was ultimately reduced from about two hours a day to one hour a day. In 2007, Amsel traveled to Thailand to receive cardiac stem-cell treatment. Upon Amsel’s return, he was unable to return to work but requested assignments he could perform from home or the ability to transition back to part-time. TWDB did not agree to this because Amsel was on sick leave and not expected to work. Amsel’s doctor then submitted another FMLA request indicating that Amsel was “unable to work at all” under his present condition. However, Amsel was ineligible for additional FMLA leave because he had not worked 1250 hours in the previous calendar year. TWDB thus awarded Amsel 720 hours from the sick-leave pool.

On June 6, 2007, Amsel  advised TWBD that he was still interested in working from home, but that he was still not released to work. Subsequently, Amsel’s position was eliminated due to budget cutbacks. Amsel then sued TWDB for disability discrimination pursuant to the Americans with Disabilities Act (ADA).

The district court granted TWDB’s motion for summary judgment and Amsel appealed. On appeal, the 5^th Circuit observed that “TWDB provided various accommodations hroughout his tenure, allowing Amsel to telecommute, providing a flexible work schedule, and creating a new position for him when stress exacerbated his conditions.” Further, as the court noted “the evidence undisputedly reflects that Amsel was completely unable to come to work at the time of the adverse employment action. Indeed, though his e-mails to TWDB expressed a desire to work from home, Amsel himself clearly indicated that he was not cleared to work. Amsel was only “qualified” if he could do the job with reasonable accommodation. Amsel, however, was not able to come to work and had not been in the office for months at the time of his discharge. Indefinite leave is not a reasonable accommodation. ‘Nothing in the text of the reasonable accommodation provision requires an employer to wait an indefinite period for an accommodation to achieve its intended effect.’”

The 5^th Circuit thus held that “that Amsel was not ‘qualified’ for his job at the time of his dismissal because he could not perform the job’s essential functions. Because Amsel was not a ‘qualified individual’ with a disability, he cannot establish a prima facie case of disability discrimination under the ADA or the Rehabilitation Act.” Read More.

Court of Appeal Holds Arbitration Agreement Was Illusory and Unenforceable

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Published on Wednesday, 02 May 2012 17:54

In a recent case, Peleg v. Neiman Marcus Group, Inc., the Court of Appeal, 2^nd District, held that an arbitration agreement entered into by Amir Peleg, and his employer, Neiman Marcus Group, was illusory and therefore unenforceable. Peleg, is a gay Jewish male of Israeli national origin. He worked at a Neiman Marcus store in Beverly Hills and allegedly performed his duties in an exemplary manner. In 2008, Neiman Marcus discharged Peleg, allegedly because of his national origin, religion, and sexual orientation in violation of the Fair Employment and Housing Act (FEHA). He was also allegedly harassed and subjected to retaliation for the same reasons. Peleg exhausted his administrative remedies under the FEHA and received a right-to-sue letter. He then filed a lawsuit and Neiman Marcus sought to enforce an arbitration agreement (Agreement) that the parties had signed. However, the Agreement contained a modification provision stating that Neiman Marcus could amend, modify, or revoke the arbitration contract on 30 days‘ written notice and at the end of the 30-day period, a contract change would apply to any claim that had not been filed with the American Arbitration Association (AAA).  

Peleg argued that the employer‘s unilateral right to make changes rendered the Agreement illusory. The 2^nd District agreed, concluding that “an arbitration contract containing a modification provision is illusory if an amendment, modification, or revocation — a contract change — applies to claims that have accrued or are known to the employer...Were it otherwise, the employer could amend the contract in anticipation of a specific claim, altering the arbitration process to the employee‘s detriment and making it more likely the employer would prevail.”  Read More.

Independent Contractor Misclassification Costs Employer $500,000

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Published on Wednesday, 02 May 2012 16:01

The Department of Labor’s Wage and Hour Division (DOL) filed a lawsuit against Hawkins Tree and Landscaping Inc., and its owners, Michael Hawkins and Dawn Hawkins for violations of the Fair Labor Standards Act (FLSA).  The lawsuit alleged, and the company and its owners eventually conceded, that they failed to properly pay workers time and one-half for hours worked over 40 hours in a workweek, failed to maintain adequate records of hours worked, and misclassified workers as independent contractors.  As a result, Judge Susan Richard Nelson of the U.S. District Court for the District of Minnesota entered a finding that the workers were employees of Hawkins and not independent contractors. Furthermore, a consent judgment against the company and its owners was entered by the court ordering them to pay back wages and liquidated damages in the amount of $478,000 to 57 current and former laborers, drivers, crew leaders and foremen of the company, and to pay $22,000 in civil money penalties. In addition to the monetary award, the consent judgment also enjoins the company and its owners from any future FLSA violations; requires Hawkins Tree and Landscaping to retain a certified public accounting firm to conduct bi-annual audits of its pay practices to determine compliance with the FLSA; and, requires that the ccompany provide all employees information on the FLSA in English or Spanish. 

"The misclassification of employees as independent contractors is a serious threat to both workers, who are entitled to good and safe jobs, and to employers who obey the law and are undercut when others use illegal practices," said Nancy J. Leppink, deputy administrator for the Wage and Hour Division. "The Department of Labor is committed to remedying employee misclassification and ensuring compliance to protect and enhance the welfare of the nation's workforce."  Read more.

DOL Recovers $4.83 Million in Back Wages From Wal-Mart for More Than 4,500 Workers

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Published on Tuesday, 01 May 2012 22:22

Wal-Mart Stores Inc., has agreed to pay $4,828,442 in back wages and damages to more than 4,500 employees nationwide following an investigation by the U.S. Department of Labor's Wage and Hour Division (DOL) that found violations of the federal Fair Labor Standards Act's overtime provisions. Wal-Mart has also agreed to pay $463,815 in civil money penalties. The alleged violations related to current and former vision center managers and asset protection coordinators at Wal-Mart Discount Stores, Wal-Mart Supercenters, Neighborhood Markets and Sam's Club warehouses. The DOL alleged that Wal-Mart failed to compensate these employees with overtime pay, considering them to be exempt from the FLSA's overtime requirements. However, the DOL’s investigation apparently determined that the employees were nonexempt and consequently Wal-Mart owed them for overtime pay for any hours worked beyond 40 in a week.

According to Secretary of Labor Hilda L. Solis, "Misclassification of employees as exempt from FLSA coverage is a costly problem with adverse consequences for employees and corporations…Let this be a signal to other companies that when violations are found, the Labor Department will take appropriate action to ensure that workers receive the wages they have earned." The FLSA provides an exemption from both minimum wage and overtime pay requirements for individuals employed in executive, administrative, professional and outside sales positions, as well as certain computer professionals, provided the employees meet certain criteria regarding their job duties and are paid on a salary basis at not less than $455 per week (the federal standard). It is important for employers to recognize that job titles and job descriptions do not determine exempt status. In order for an exemption to apply, an employee's specific job duties and salary must meet all the requirements of the DOL’s regulations. Read More.

Proposed Bill Bans Employers From Requiring Employees to Reveal Online Information

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Published on Monday, 30 April 2012 16:14

A New York Congressman, Rep. Eliot Engel (D-N.Y.) has introduced federal legislation, the “Social Networking Online Protection Act” (SNOPA) that would make it illegal for employers and educational institutions to require an applicant or current employee (or a potential or current student) to reveal personal online information as part of the hiring, enrollment or disciplinary process. Engel stated in a letter seeking support from fellow members of Congress “As you know, social media and networking has become such a widespread part of communications in our country, and around the globe. However, a person’s digital footprint is largely unprotected…There have been countless examples of employers requiring an applicant to divulge their user name and password as part of the hiring process. Additionally, some universities, and even secondary schools, have required the student either divulge their personal information, or grant the institution access to the personal account by ‘friending’ the student." 

SNOPA would prohibit employers from requiring that job applicants or current employees provide their social networking passwords or "other means of accessing a private account"; it would also ban post-secondary schools from disciplining students for failing to provide such access, or from discriminating against applicants who refuse to provide such access. Engel also comment in his letter that "These coercive practices are unacceptable, and should be halted…We have to draw a line between what is publicly available information, and what is personal, private content. I think we would all object to having to turn over usernames and passwords for email accounts, or even worse, to bank accounts. User-generated social media content should be no different." In March, Republicans in the House blocked a measure that would have allowed the Federal Communications Commission (FCC) to stop the practice of employers forcing workers to reveal their Facebook passwords. Recently, Maryland became the first state to enact legislation preventing employers from demanding that job applicants and employees provide their social networking passwords.  Read More.

Taco Bell Operator Settles for $27,000: Worker Allegedly Fired Over Religiously-Mandated Long Hair

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Published on Monday, 30 April 2012 16:00

The U.S. Equal Employment Opportunity Commission (EEOC)  filed a lawsuit against Family Foods, Inc., a North Carolina corporation that operates a chain of Taco Bell restaurants in eastern North Carolina for alleged religious discrimination.  The EEOC's lawsuit involved Christopher Abbey, who worked at a Taco Bell restaurant owned by Family Foods in Fayetteville,  N.C., beginning in 2005. Abbey is a practicing Nazirite.  In accordance with his religious beliefs, Abbey not cut his hair since he was 15 years old. In April of 2010, Abbey was allegedly informed by his employer that his long hair did not comply with the company’s grooming policy and therefore he must cut his hair. Abbey allegedly explained that he could not cut his hair because of his religion, but was allegedly told that unless he cut his hair, he could no longer continue to work at the Taco Bell restaurant. Abbey was subsequently terminated. Title VII of the Civil Rights Act of 1964 requires employers to reasonable accommodation the sincerely held religious beliefs of employees, as long as doing so does not pose an undue hardship on the employer. 

“No person should be forced to choose between his religion and his job when the company can provide an accommodation without suffering an undue hardship,” said Lynette  A. Barnes, regional attorney for the EEOC’s Charlotte District.  “We are pleased that, in resolving this case, Family Foods is taking action to ensure that it fulfills its obligations toward its employees under federal law.”  Family Foods, Inc., in addition  to paying $27,000 to Abbey, has agreed to a two-year consent decree requiring the company to adopt a formal religious accommodation policy, to conduct annual training on Title VII's prohibition against religious discrimination and retaliation in the workplace, and to provide a copy of its anti-discrimination policy at all of its facilities.  Read More.

El Sobrante Man Allegedly Commits Fraud By Collecting $60,000 In Workers’ Compensation Benefits While Operating Business

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Published on Friday, 27 April 2012 14:26

Insurance Commissioner Dave Jones announced that Jeong M. Baek, 36, the owner of Baeks Brother Construction, Inc. has been arraigned on four felony counts of Insurance Fraud.  The California Department of Insurance (CDI) is alleging that Baek received workers’ compensation benefits while operating and working for his business.  According to the CDI’s investigators, Baek claimed to have had suffered a work-related injury while working as a plumber in 2008. Baek was off work and receiving disability benefits briefly then returned to work in 2009, when his claim was re-opened. Since there was no modified work available, Baek received disability benefits based on his plumbing job wages. The insurance company subsequently learned that while Baek was allegedly unable to work he owned and operated the construction business, Baeks Brother Construction, Inc., and had an active building permit in the City of Cupertino, which prompted the insurer to conduct surveillance of Baek.The surveillance allegedly shows Baek performing plumbing work, when he allegedly claimed he could not perform such work. The investigation conducted by CDI allegedly revealed that from May 2009 through November 2010, while Baek operated his construction business he also collected nearly $60,000 in disability benefits.

During the CDI’s investigation of Baek's workers’ compensation disability insurance claim, the CDI discovered evidence that Baek was also committing insurance fraud against his company’s insurance carrier, and allegedly failed to collect payroll taxes reportable to the Employment Development Department (EDD). The CDI is alleging that Baek fraudulently under-reported his employee payroll and misclassified employees with the intent of obtaining a lower insurance premium. Futher, the CDI is allegeing that the payroll was also omitted from annual reports to the EDD, and Baek's company thus allegedly avoided paying the required California employment taxes, providing his business with an unfair advantage over law-abiding companies and thereby operating in the underground economy.

If convicted, Baek could receive a maximum sentence of 20 years in state prison (five years on each insurance fraud count) and restitution in the amount of approximately $68,632.67.  This case is being prosecuted by the Santa Clara County District Attorney's Office.  Read More.

EEOC Holds Title VII Prohibits Gender Identity Discrimination

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Published on Thursday, 26 April 2012 17:01

California law provides protection against discrimination on the basis of gender identity; however, historically federal law has not provided similar protections. In a recent case, Macy v. Holder, the Equal Employment Opportunity Commission (EEOC) appears to be reversing that trend, holding that “Title VII's prohibition on sex discrimination proscribes gender discrimination, and not just discrimination on the basis of biological sex, is important…. Title VII prohibits discrimination based on sex whether motivated by hostility by a desire to protect people or a certain gender, by assumptions that disadvantage men, by gender stereotypes, or by the desire to accommodate other people's prejudices or discomfort…Thus, we conclude that intentional discrimination against a transgender individual because that person is transgender is, by definition, discrimination ‘based on … sex,’ and such discrimination therefore violates Title VII."  The case involved Mia Macy who applied for a ballistics technician job as a contract employee with the Department of Justice’s Bureau of Alcohol, Tobacco, Firearms, and Explosives (“Bureau of Alcohol et al”). Macy was allegedly advised by the lab’s director that she would be hired pending a background check. At this point, Macy still presented herself as a man. Macy alleges that the contractor responsible for filling her position contacted her for completion of the hiring paperwork.

Subsequently, on March 29, 2011, Macy advised the contractor that she was in the process of transitioning from male to female. Five days later, the contractor relayed this information to Bureau of Alcohol et al, and on April 8, 2011, the agency advised Macy that due to budget cuts, the position was not available. Macy filed a complaint with the EEOC after determining that the job had been filled by another person, supposedly because the individual was closer to clearing the background check. The EEOC alleged that this reason was pretextual, and that Macy was denied the job because of her gender identity. Read More.

EEOC Issues Updated Guidance on Employer Use of Arrest and Convictions Records

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Published on Thursday, 26 April 2012 15:35

The U.S. Equal Employment Opportunity Commission (EEOC) has issued an updated Enforcement Guidance on employer use of arrest and conviction records in employment decisions under Title VII of the Civil Rights Act of 1964. The EEOC voted 4-1 to approve the guidance document. The Commission also issued a Question-and-Answer (Q&A) document about the guidance. The Enforcement Guidance and Q&A document will be available on the EEOC’s website at www.eeoc.gov. According to EEOC Chair Jacqueline A. Berrien, “When the Commission met publicly to discuss this subject in July, 2011, I said that I hoped the meeting would help to inform the Commission’s consideration of revisions to existing EEOC guidance. We had excellent testimony from two public meetings and hundreds of written comments submitted by a diverse group of commenters to inform our deliberations concerning the new guidance…The new guidance clarifies and updates the EEOC’s longstanding policy concerning the use of arrest and conviction records in employment, which will assist job seekers, employees, employers, and many other agency stakeholders.” Although Title VII does not prohibit employers from requiring applicants or employees to provide information about arrests, convictions or incarceration, it is unlawful for employers to discriminate on the basis on race, color, national origin, religion, or sex. The EEOC previously held public meetings on the subject in 2008 and 2011. Topics in the guidance include:

How an employer’s use of an individual’s criminal history in making employment decisions could violate the prohibition against employment discrimination under Title VII;

Federal court decisions analyzing Title VII as applied to criminal record exclusions;

The differences between the treatment of arrest records and conviction records;

The applicability of disparate treatment and disparate impact analysis under Title VII;

Compliance with other federal laws and/or regulations that restrict and/or prohibit the employment of individuals with certain criminal records; and, best practices for employers.

The materials for the public meetings held on the use of arrest and conviction records, including testimony and transcripts, are available at http://eeoc.gov/eeoc/meetings/index.cfm. Read More.

DOL Posts Updated Versions of its Model FMLA Forms

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Published on Wednesday, 25 April 2012 16:26

The US Department of Labor (DOL) has posted updated versions of the following model Family and Medical Leave Act (FMLA) forms:

"Certification of Health Care Provider for Employee’s Serious Health Condition" (WH-380-E) (Not for use by California employers- see below for information regarding the proper California medical certifcation form)

"Certification of Health Care Provider for Family Member’s Serious Health Condition" (WH-380-F) (Not for use by California employers- see below for information regarding the proper California medical certifcation form) 

"Notice of Eligibility and Rights & Responsibilities" (WH-381)

"Designation Notice" (WH-382)

"Certification of Qualifying Exigency for Military Family Leave" (WH-384)

"Certification for Serious Injury or Illness of Covered Servicemember—for Military Family Leave" (WH-385)

The forms do not contain any substantive changes, although employers who use these forms should implement the new forms. California employers still cannot use the DOL’s medical certification form because it asks for a medical diagnosis, which is not permitted in California. California employers may use the Fair Employment and Housing Commission’s (FEHC) model medical certification form. In addition, the DOL’s medical certification forms and the FEHC’s medical certification form do not include the “safe harbor” language recommended by the Equal Employment Opportunity Commission’s (EEOC) regulations, regarding the disclosure of genetic information as prohibited by the Genetic Information Nondiscrimination Act of 2008 (GINA). Therefore, employers should add the following language to the medical certification forms and any other document that requests medical information:

“The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers and other entities covered by GINA Title II from requesting or requiring genetic information of any individual or family member of the individual, except as specifically allowed by this law. To comply with this law, we are asking that you not provide any genetic information when responding to this request for medical information. ‘Genetic information,’ as defined by GINA, includes an individual’s family medical history, the results of an individual’s or family member’s genetic tests, the fact that an individual or an individual’s family member sought or received genetic services, and genetic information of a fetus carried by an individual or an individual’s family member or an embryo lawfully held by an individual or family member receiving assistive reproductive services.''

The forms are in effect through February 28, 2015. More information can be located here.

Co-Owners of Roofing Business Arrested and Charged With $1 Million in Insurance Fraud

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Published on Wednesday, 25 April 2012 15:37

Insurance Commissioner Dave Jones announced the arrest of John Applegate, 48, and Camille Applegate, 50, the owners of Hallmark Roofing, Inc. for 24 felony counts of violating Insurance Code Section 11880 (a), Workers' Compensation Insurance Premium Fraud, and five felony counts of violating the Unemployment Insurance Code Section 2117.5, failure to report employee wages. If convicted, the owners could receive a maximum of five years in state prison and owe restitution exceeding $1,000,000.  The California Department of Insurance (CDI) served multiple search warrants on Hallmark Roofing's bank accounts, business location, and the Applegate’s’ residence, during an extensive investigation. After conducting a forensic audit on all the records, the CDI allegedly found evidence that Hallmark Roofing's owners allegedly avoided paying $629,391.10 in workers' compensation insurance premiums during the period of January 1, 2007 through December 31, 2011, through inaccurate reporting of their employee’s wages to the workers' compensation insurance company, State Compensation Insurance Fund (SCIF). Also, the audit allegedly found that during the period of January 1, 2010 through January 1, 2012, the Applegate’s failed to report their employee wages to the Employment Development Department (EDD) in order to avoid paying payroll taxes. Further, the CDI alleged that Hallmark Roofing's owners deducted the payroll taxes from their employees’ wages but failed to pay the taxes to EDD, as required by law. "Business owners who operate unfairly in the underground economy will be brought to justice," said Commissioner Jones. "I commend the excellent work of the investigators in this large scale case and in our ongoing efforts to bring fairness to the bidding process."  Read more.

9th Circuit Holds “Dependable Performance Requires Reliable and Dependable Attendance”

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Published on Tuesday, 24 April 2012 17:49

In a recent case that “tests the limits of an employer’s attendance policy” the 9^th Circuit considered the important question of whether attendance is an essential function of the job. The case involves Monika Samper, a neo-natal intensive care unit (“NICU”) nurse. Ms. Samper sought an accommodation from her employer, Providence St. Vincent (“Providence”), that would have allowed her an unspecified number of unplanned absences from her job. Providence is a medical facility in Portland, Oregon. Its NICU provides intensive care to premature infants. According to the NICU charge nurse, absences among NICU staff can jeopardize patient care because NICU nurses require special training. Samper was employed with Providence as a registered NICU nurse for eleven years. Since at least 2005, she has had fibromyalgia. Although Samper never worked full time, she regularly exceeded the number of unplanned absences permitted even for full-time employees. In July 2000, while on a leave of absence, Samper received a performance appraisal that referred to the seven unplanned absences over the year, exceeding the number permitted by the attendance policy. She was informed by the hospital that her attendance needed improvement.

In 2002, Samper was placed on work plans to manage her continued absences. After two more years of attendance problems, and another negative attendance review, Providence agreed to the following accommodation: Samper was allowed to call in when having a bad day, and move her shift to another day in the week. Providence did not require Samper to find a replacement for her shift. Although none of these leaves counted towards her unplanned attendance limit, and despite the ongoing accommodation, Samper was issued a corrective action notice for seven unplanned absences over the previous twelve-month period; some of the absences were several days in length. 

In 2008, Providence informed Samper that her part-time position would end, and she could either transfer to another position or face termination. Samper responded to this by allegedly making inappropriate comments in the presence of patients. Subsequently, Providence issued two corrective action notices. After additional unplanned absences, Samper was terminated due to her attendance problem. Samper filed suit alleging a violation of the Americans with Disabilities Act (ADA) due to a failure to accommodate her absences. The district court granted summary judgment in favor of Providence, concluding that because Samper was unable to adhere to Providence’s attendance policy, she was unqualified for her position as a matter of law. The court also held that the 2006 part-time work plan was a reasonable accommodation, and that the accommodation that Samper requested, specifically a waiver from the five unplanned absence limit, was  unreasonable.       

On appeal, the 9^th Circuit agreed, holding that “Samper’s performance is predicated on her attendance; reliable, dependable performance requires reliable and dependable attendance. An employer need not provide  accommodations that compromise performance quality.” Read More.

Employers Must Exercise Caution When Using Employee Selection Tools

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Published on Tuesday, 24 April 2012 05:08

As highlighted by a recent lawsuit filed by the United States Justice Department (DOJ) employers must exercise caution when using employee selection tools (such as written examinations) for hiring or promotion purposes, because such tools can have a disparate impact in the workplace. In the lawsuit, the DOJ alleges that the city of Jacksonville, Florida, discriminated against African-Americans in its fire and rescue department. Specifically, the lawsuit challenges the fire department’s use of written examinations for the promotion of firefighters to four ranks – Lieutenant, Captain, and District Chief, all in the suppression line, and Engineer. The complaint filed by the DOJ asserts that the examinations have a disparate impact on African-American candidates in two ways. First, African-American candidates for promotion pass the examinations at much lower rates than white candidates. Second, even those African-Americans who pass the examinations are rarely promoted because the fire department allegedly selects candidates for promotion in descending rank-order based primarily upon each candidate’s written examination score and African-American candidates score significantly lower than whites. According to Thomas Perez, Assistant Attorney General for the Civil Rights  Division, “This complaint should send a clear message to all public employers that employment practices that have the effect of excluding qualified candidates on account of race will not be tolerated…At best, these tests measure only a slice of what is necessary to be a supervisor, but they stand in the way of qualified African-Americans advancing in the fire department. The Justice Department will take all necessary action to ensure that such discriminatory practices are eliminated and that the victims of such practices are made whole.”  Read More.

EEOC to Hold Meeting on Use of Arrest Records for Employment Decisions and on Reasonable Accommodations Pursuant to the ADA

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Published on Monday, 23 April 2012 17:20

The Equal Employment Opportunity Commission (EEOC) is holding a meeting on April 25, 2012, at 9:30 a.m., to discuss both “Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions under Title VII of the Civil Rights Act of 1964,” and “Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act.” More information will be provided on this as details from the meeting unfolds. The EEOC has previously met to discuss the use of an applicant's criminal record in hiring decisions and subsequently issued an advisory letter. In addition, the EEOC previously met to discuss leaves of absence as a reasonable accommodation, in particular to review the circumstances that can pose an undue hardship on employers. It is anticipated that this meeting will be to follow-up on both of these topics. Read More.

Misclassification of Employees as Independent Contractors Can Be Costly: One Employer Pays Almost $431,000

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Published on Monday, 23 April 2012 16:24

After an investigation by the U.S. Department of Labor's Wage and Hour Division (DOL), which allegedly uncovered violations of the Fair Labor Standards Act's (FLSA) overtime and record-keeping provisions, Elevations Shoring LLC of Kenner, which provides digging, shoring and lifting services in the New Orleans area, has agreed to pay $430,956 in overtime back wages to 186 current and former employees. More specifically the DOL alleged that Elevations Shoring misclassified workers as independent contractors and thus did not pay them time and one-half for hours worked over 40 hours in a week. Further, the DOL alleged that the employer kept two sets of payroll records: allegedly, in one payroll, 20 of the workers were classified and paid as regular employees for their first 40 hours worked each week, and for all additional hours, these same employees were listed on a second payroll as independent contractors and issued separate checks for the extra hours worked. The DOL found that the other 166 employees involved in the settlement, were classified by Elevations Shoring as independent contractors for all hours worked, but were actually employees for whom the company failed to keep accurate time and payroll records by not recording actual hours worked and rates of pay. In addition to paying the back wages owed, the company has agreed to comply fully with the FLSA in the future.  

"This employer misclassified employees as independent contractors to avoid paying overtime," said Cynthia Watson, regional administrator of the Wage and Hour Division in the Southwest. "Misclassification of employees is unacceptable, and the Labor Department will ensure that every worker is paid the wages he or she is entitled to receive." Read More.

$600,000 Settles EEOC Race Discrimination and Retaliation Suit

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Published on Friday, 20 April 2012 16:38

Bankers Asset Management, Inc., (BAM)  a real estate company in Little Rock,  and the agreed settle  a race discrimination and retaliation lawsuit filed by the U.S. Equal Employment Opportunity (EEOC) for   $600,000.  The EEOC charged the company based upon race, excluded black applicants for jobs at the company’s Little Rock location and retaliated against other employees and former employees who opposed or testified regarding the race discrimination, by demoting and forcing one out of her job and by suing others in state court.  In addition to monetary relief, the settlement also requires BAM to,, among other things,  provide mandatory annual three-hour training on race discrimination and retaliation to all of its employees, with the president or another officer present at each training to make certain the employees know the company has a no tolerance policy;  and to  post a notice about the lawsuit that provides the EEOC’s contact information.

“Excluding qualified individuals from job opportunities because of their race or in retaliation for exercising protected rights are fundamental violations of the laws we enforce,” said EEOC General Counsel David Lopez. “As this case demonstrates, the EEOC is prepared to vigorously pursue such cases and resolutions that help ensure that workplaces will be free from discrimination. Recent cases we have filed alleging hiring discrimination, such as our suit against Bass Pro, demonstrate this continued commitment.”   Read more.

Federal Court Limits Reach of Sarbanes-Oxley Act

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Published on Thursday, 19 April 2012 18:49

The United States Court of Appeals, 1^st Circuit, in Lawson v. FMR, has addressed an important question of first impression involving the Sarbanes-Oxley Act (SOX). Specifically, the court considered whether the whistleblower protections afforded by SOX apply to an employee of a contractor or subcontractor of a public company, when that employee reports activity which he or she reasonably believes may constitute a violation of any rule or regulation of the Securities and Exchange Commission, or any provision of federal law and such a violation would relate to fraud against shareholders of the public company? SOX provides, in part, that a public company may not discharge, demote, suspend, threaten, harass, or in any other manner discriminate against an employee because of any lawful act done by the employee to provide information, or otherwise assist in an investigation, regarding any conduct which the employee reasonably believes constitutes mail fraud, wire
fraud, bank fraud, securities or commodities fraud; any rule or regulation of the Securities and Exchange Commission; or, any provision of federal law relating to fraud against shareholders, when such information or assistance is provided to, or the investigation is conducted, by: (A) a federal regulatory or law enforcement agency; (B) any member of Congress; or, (C) a person with supervisory authority over the employee. In the Lawson case, plaintiffs, Jackie Hosang Lawson and Jonathan M. Zang, filed separate lawsuits alleging unlawful retaliation by their employers, which are private companies providing advice s subcontractors to managers of a public company. The district court concluded that the whistleblower protections of SOX extends beyond "employees" of "public" companies to encompass the employees of private companies that are contractors or subcontractors to those public companies. On appeal, the 1^st Circuit disagreed holding that whistleblower protections pursuant to SOX only apply to employees of public companies, not employees of private companies doing business with the public company. Read More.

State Bans Practice of Requesting Social Media Passwords; More are Likely to Follow!

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Published on Thursday, 19 April 2012 15:59

The Maryland legislature has become the first to pass bills banning both current and prospective employers from demanding social media usernames and passwords to social media sites, such as Twitter and Facebook.  The Bill awaits Maryland Governor, Martin O’Malley’s signature.  The Baltimore Sun reported that Del. Shawn Tarrant, one of the bill's lead sponsors in the House, called the practice "ridiculous," and equated it to eavesdropping on phone conversations.  The Bill would essentially prohibit employers from requesting or requiring applicants or employees to provide the employer with access to any electronic personal account or service, and from taking any adverse action against and applicant or employee for refusing to provide the information.

This bill comes in the wake of the request by U.S. Senators Richard Blumenthal (D-CT) and Charles E. Schumer (D-NY) that the U.S. Equal Employment Opportunity Commission (EEOC) and the U.S. Department of Justice (DOJ) launch a federal investigation into this growing trend, which the Senators contend is an intrusion into personal privacy that could make it more difficult for individuals to get jobs, and could also expose employers to discrimination claims,  as previously reported on employmentlawweekly.com.

Although Maryland is the first state to pass such legislation, because other states have similar bills waiting for legislative approval, it is likely that the practice will be banned elsewhere. Thus, all employers should be very cautious if requiring, or considering requiring, social media passwords,  and certainly obtain the advice of  legal counsel before proceeding.  Read more.

Court Limits OSHA’s Ability to Issue Citations Beyond Six Month Statute of Limitations

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Published on Thursday, 19 April 2012 03:14

In a recent case, a federal district Court of Appeal has limited the ability of the Occupational Safety and Health Administration (OSHA) to issue citations beyond the six month statute of limitations. The case involves Volks Constructors, a company that OSHA cited for failing to properly record certain workplace injuries, and for failing to properly maintain its injury log between January 2002 and April 2006. OSHA issued the citations in November 2006, which was, as Volks points out, at least six months after the last unrecorded injury occurred.  Federal law specifies that no citation may be issued “after the expiration of six months following the occurrence of any violation.”  Volks thus argued that the citations were untimely and should be vacated. On appeal, the court agreed with Volks, holding that the citations were untimely because the injuries giving rise to the alleged recording failures took place more than six months before the issuance of the citation. 

Pursuant to the Occupational Safety and Health Act (“OSH Act” or “Act”) every “employer shall make, keep and preserve” records of workplace injuries and illnesses.”  Specifically, employers must record information about work-related injuries and illnesses as follows: (1) Employers must prepare an incident report and a separate injury log within 7 calendar days of receiving information that a recordable injury or illness has occurred. An injury or illness must be recorded if it results in any of the following: death, days away from work, restricted work or transfer to another job, medical treatment beyond first aid, or loss of consciousness. The employer must also consider that a case meets the general recording criteria if it involves a significant injury or illness diagnosed by a physician or other licensed health care professional, even if it does not result in death, days away from work, restricted work or job transfer, medical treatment beyond first aid, or loss of consciousness; (2) Employers must prepare a year-end summary report of all recordable injuries during the calendar year; (3) The year-end summary must be certified by a “company executive”; (4) The employer must retain all of these documents for five years from the end of the calendar year that the records cover.

When an occupational injury or illness involves an employee missing one or more days away from work, the employer must record the injury or illness on the OSHA 300 Log with a check mark in the space for cases involving days away and an entry of the number of calendar days away from work in the number of days column. If the employee is out for an extended period of time, the employer must enter an estimate of the days that the employee will be away, and update the day count when the actual number of days is known. Read More.

College Sued for Alleged Age Discrimination

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Published on Thursday, 19 April 2012 02:14

According to a lawsuit filed by the Equal Employment Opportunity Commission (EEOC) Marymount Manhattan College refused to hire a choreography instructor for a tenure-track assistant professorship due to her age. Marymount is a private liberal arts college in New York City. The EEOC has charged that Marymount initially selected a 64-year-old choreography instructor and two other applicants as finalists for an assistant professorship in dance composition. After determining that the 64-year-old was the leading candidate, Marymount’s search committee allegedly expanded its search to include a less qualified, 37-year-old applicant as a fourth finalist because it considered her to be “at the right moment of her life for commitment to a full-time position.” The EEOC alleges that Marymount passed over the 64-year-old applicant and instead hired the 37-year-old applicant because of age. Age discrimination against employees and job applicants who are age 40 or older is a violation of the Age Discrimination in Employment Act (ADEA). Elizabeth Grossman, regional attorney of the EEOC’s New York District Office, commented that “Older workers have the right to be evaluated based on their abilities and not based on their age. The EEOC is committed to combating bias against older workers in all phases of employment and in all types of employment ettings.” Read More.

U.S. Supreme Court Holds That a Private Individual Temporarily Working for the Government is Entitled to Qualified Immunity From a Lawsuit.

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Published on Wednesday, 18 April 2012 15:24

The U.S. Supreme Court has decided that an individual hired by the government to do its work is entitled to immunity from lawsuits, even though the individual works for the government on something other than a permanent or full-time basis. The case involves Nicholas Delia, a firefighter employed by the City of Rialto, Califor­nia. Delia missed 3 weeks of work after becoming ill on the job due to being exposed to a toxic spill. Suspicious of Delia’s extended absence, the City hired a private investigation firm to con­duct surveillance on him. When Delia was seen buying fiberglass in­sulation and other building supplies, the City began an internal af­fairs investigation. It hired Steve Filarsky, a private attorney, to interview Delia. At the interview, which Delia’s attorney and two fire department officials also attended, Delia acknowledged buying the supplies, but denied having done any work on his home. To veri­fy Delia’s claim, Filarsky asked Delia to allow a fire department offi­cial to enter his home and view the unused materials. When Delia refused, Filarsky ordered him to bring the materials out of his home for the official to see. This prompted Delia’s attorney to threaten a civil rights action against the City and Filarsky. Nonetheless, after the interview concluded, officials followed Delia to his home, where he produced the materials. Delia brought an action against the City, the Fire Department, Filarsky, and other individuals, alleging that the order to produce the building materials violated his Fourth and Fourteenth Amendment rights. The District Court granted summary judgment to the individual defendants on the basis of qualified im­munity. The Court of Appeals for the Ninth Circuit affirmed with re­spect to all individual defendants except Filarsky, concluding that he was not entitled to seek qualified immunity because he was a private attorney, not a City employee. However, on appeal, the U.S. Supreme Court held that a private individual temporarily retained by the government to carry out its work is entitled to seek qualified immunity from a lawsuit. Read More.

DC Circuit Court of Appeals Temporarily Enjoins NLRB From Requiring Union Poster

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Published on Wednesday, 18 April 2012 06:55

The U.S. Circuit Court of Appeals in Washington has ruled that the National Labor Relations Board (NLRB) may not require employers to advise employees about their union rights in a workplace poster. The court granted a request by the National Association of Manufacturers, the National Right to Work Legal Defense and Education Foundation and other business groups who claim the union poster rule would impact more than 6 million employers who otherwise would not be subject to NLRB regulation.  The NLRB commented on its website that, “In light of conflicting decisions at the district court level, the DC Circuit Court of Appeals has temporarily enjoined the NLRB’s rule requiring the posting of employee rights, which had been scheduled to take effect on April 30, 2012. In view of the DC Circuit's order, and in light of the strong interest in the uniform implementation and administration of agency rules, regional offices will not implement the rule pending the resolution of the issues before the court. In March, the D.C. District Court found that the agency had the authority to issue the rule. The NLRB supports that decision, but plans to appeal a separate part that raised questions about enforcement mechanisms. The agency disagrees with and will appeal last week’s decision by the South Carolina District Court, which found the NLRB lacked authority to promulgate the rule. Chairman Mark Gaston Pearce said of the recent decisions, “We continue to believe that requiring employers to post this notice is well within the Board’s authority, and that it provides a genuine service to employees who may not otherwise know their rights under our law.” Read More.

Post-Brinker: What Does the Decision Mean for Employers?

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Published on Tuesday, 17 April 2012 15:32

As previously reported, on April 12, 2012, the California Supreme Court released the much anticipated decision in Brinker vs . Superior Court. The sixty-three page decision, issued by a unanimous court, provides important guidance for employers on the requirements for employee meal and rest periods. The decision has five important points that employers should note: (1) Employers must provide employees with an off-duty meal and rest period as required by California statute and wage orders. Specifically, in regards to meal periods, for employees who work at least a 5 hour shift, employers must: (a) provide an off-duty 30 minute meal period; or, (b) consent to a mutual written waiver of the meal period if the employee will not work
more than 6 hours. Employers may not discourage, dissuade, or impede an employee from taking his or her meal period. Further, employers may not encourage employees to skip meal and rest periods by offering incentives. (2) Employers do not have to ensure that employees do not perform any work during the meal and rest period. Specifically, the court held “we conclude an employer’s obligation is to relieve its employee of all duty, with the employee thereafter at liberty to use the meal period for whatever purpose he or she desires, but the employer need not ensure that no work is done.” Although the Brinker decision absolves employers of liability for premium pay if an employee chooses to work through a meal period (i.e. one hour of pay for a missed meal period) the court emphasized that employers may not discourage, impede, dissuade, or create an incentive for an employee to work off the clock by skipping "legally protected breaks." As the court observed, if an employee chooses to work during his or her meal period, the employer will not be required to pay for the missed meal or rest period, as long as the employer does not “undermine a formal policy of providing meal breaks by pressuring employees to perform their duties in ways that omit breaks."  Further, according to the court, "At most, [the employer] will be liable for straight pay, and then only when it 'knew or reasonably should have known that the worker was working through the authorized meal period.'" (3) Employers are not obligated to provide employees with meal periods on a “rolling-five hour” basis. Thus, if an employee takes a meal period after two hours of work, and then works another 5 hours as part of an 8 hour shift, the employee is not entitled to another 30 minute meal period. Employers are only obligated to provide a second 30 minute meal period if the employee works 10 hours. (4) Employers must provide a 10 minute rest period to employees for every four hours of work, or major fraction thereof (defined as 2 hours). However, a rest period is not required for employees whose total daily work time is less than three and one-half (3½) hours. (5) Employers must try to authorize rest breaks in the middle of an employee’s shift, but are not required to provide the rest period before the meal period.

In light of the Brinker decision, employers must review their meal and rest period policies to make sure they are in compliance with California statutes, wage orders, and the Brinker decision. The good news is that employers will not need to “police” whether or not their employees have taken their meal and rest periods. However, it is still recommended that employers periodically remind employees that they take their meal and rest periods, and that they have some system for documenting when meal periods are taken by an employee. The bottom line is that although Brinker is largely a pro-employer decision, employers must still follow the law in regards to providing employees with the required meal and rest periods.  Read More.

Law Firm Settles Age Discrimination Claim

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Published on Monday, 16 April 2012 18:47

Kelley Drye & Warren, a law firm with over 300 attorneys, will stop its policy of allegedly requiring partners to give up their equity in the firm when they turn 70 years of age and it has agreed to pay $574,000 to an attorney who continued to practice at the firm after he turned 70. The Equal Employment Opportunity Commission (EEOC) had filed a lawsuit against the law firm, charging that pursuant to their former policy, attorneys who wanted to practice after reaching 70 could only do so by giving up all ownership interest in the firm and instead being compensated through discretionary bonuses. According to the EEOC, this resulted in significant under-compensation of Eugene T. D’Ablemont, who continued to practice law full-time at the firm after turning 70 in 2000.  EEOC General Counsel P. David Lopez commented that "There is no reason why attorneys who are capable of continuing to practice at 70 either should be forced to retire or otherwise be dissuaded from continuing to work in their chosen profession just because of their age…Our strong enforcement of the Age Discrimination in Employment Act is critical to ensuring that workplaces are free from discrimination." Read More.

The Supreme Court of California Issues Long Awaited Decision on Meal and Rest Breaks (Brinker)

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Published on Thursday, 12 April 2012 18:53

As previously reported on Employment Law Weekly, the main concern involved in this case, for employers, was whether employers will become “clock watchers” who must micromanage employees to ensure that they take their mandated meal periods or whether employers must make them available and leave it to the employees to exercise diligence and take their meal and rest breaks as required by law.  On April 12, 2012, the California Supreme Court of California answered that question holding that an employer’s obligation to provide meal breaks is satisfied when it relieves its employees of all duty, relinquishes control over their activities and permits them a reasonable opportunity to take an uninterrupted 30-minute break, and does not impede or discourage them from doing so.  The Supreme Court further found that an employer is not obligated to police meal breaks and ensure no work thereafter is performed. Bona fide relief from duty and the relinquishing of control satisfies the employer’s obligations, and work by a relieved employee during a meal break does not thereby place the employer in violation of its obligations and create liability for premium pay.  Read more.

Is Severe Obesity an ADA-Protected Impairment?

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Published on Thursday, 12 April 2012 16:33

According to the U.S. District Court for the Eastern District of Louisiana, as well other courts, severe obesity may qualify as a disability regardless of whether it is caused by a physiological disorder.  The U.S. Equal Employment Opportunity Commission (EEOC) filed a disability discrimination lawsuit in September 2010 against Resources for Human Development, Inc. (RHD), doing business as Family House of Louisiana, a treatment facility for chemically dependent women and their children, charging that RHD fired Lisa Harrison because of her disability, severe obesity, even though she was able to perform the essential functions of her job.  Harrison had worked as a prevention/ intervention specialist at RHD’s Family House facility in Louisiana from 1999 until she was fired in September of 2007, and died during the pendency of the lawsuit. 

The defendant’s filed motions for summary judgment arguing that severe obesity was not an impairment within the meaning of the ADA.  In opposition to the motions, the EEOC offered expert testimony of a renowned obesity researcher to show that Harrison’s obesity was the result of a physical disorder or disease, and was not caused by lack of character or willpower.  In denying the motions for summary judgment, the court found that such testimony was not necessary, reasoning that “neither the EEOC nor the Fifth Circuit have ever required a disabled party to prove the underlying basis of their impairment,” and found that severe obesity qualified as a disability under the ADA. 

Subsequently, the court approved a settlement for $125,000 in monetary relief along with other injunctive relief, such as RHD providing annual training on federal disability law to all human resources personnel and corporate directors of RHD nationwide and reporting to the EEOC for three years on all complaints of disability discrimination and all denials of a request for reasonable accommodation of a disability.   RHD will also name a children’s room at the Family House facility, and permanently install a memorial plaque, in honor of Harrison, who taught at the facility for almost eight years.

“All people with a disability who are qualified for their position are protected from unlawful discrimination,” said EEOC General Counsel David Lopez.  “Severe obesity is no exception.  It is important for employers to realize that stereotypes, myths, and biases about that condition should not be the basis of employment decisions.”  Jim Sacher, regional attorney of the EEOC’s Houston District Office, added, “Employers cannot rely on unfounded prejudices and assumptions about the capabilities of severely obese individuals.  Despite performing her job for years, Ms. Harrison was terminated without warning and without any evidence that she could not perform the essential functions of her position.  This case highlights the fact that severely obese people who can do their jobs are every bit as protected by the ADA as people with any other qualifying disability.  Any notion that these individuals are not protected based on the wrongheaded idea that their condition is self-inflicted, is simply wrong and without legal basis.”  Read more.

US District Court Orders Payment of over $11,000 in Back Wages and Liquidated Damages for Employer’s Failure to Pay for Training Courses

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Published on Wednesday, 11 April 2012 20:45

The U.S. District Court for the Middle District of Florida, Tampa Division ordered a Subway eatery franchisee with 29 locations in the Tampa Bay area, to pay 122 employees a total of $7,536 in minimum back wages plus $3,768 in liquidated damages.   The judgment resolves a lawsuit filed by the U.S. Department of Labor (US DOL) against Franchise Equity Group Inc., doing business as MacSub, filed after the department's Wage and Hour Division investigation that found violations of the Fair Labor Standards Act's minimum wage provisions, due to Subway’s failure to pay for work hours spent taking Subway "Sandwich Artist Certification" training courses. "Low-wage workers deserve the full protection of federal labor laws," said James Schmidt, director of the Wage and Hour Division's Tampa District Office, which conducted the investigation. "The Wage and Hour Division is continuing its restaurant enforcement initiative throughout Florida to make sure employees of both full-service and limited-service restaurants receive their full pay, and that employers who follow the law do not have to face unfair competition from those who ignore it. This lawsuit illustrates that the division will use any enforcement tools necessary to resolve cases where vulnerable workers have been exploited."  Read more.

US DOL and U.S. District Court Demonstrate No Tolerance for FLSA Violations with Court Ordered Contempt Consent Judgment of Over $583,000

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Published on Tuesday, 10 April 2012 15:59

According to the terms of a contempt consent judgment, Riverhead-based E. M. & T. Inc., doing business as Empire Gas, and owners Ali Yuzbasioglu and Sukru Ilgin, will pay $544,900 in back wages and interest to 35 employees, resolving a lawsuit filed by the U.S. Department of Labor (US DOL). The suit was based on an investigation by the department's Wage and Hour Division that found violations of the overtime and record-keeping provisions of the Fair Labor Standards Act (FLSA).  Additionally, the chain of 14 Long Island gasoline stations and its owners will pay the Labor Department $39,077 in civil money penalties and interest for the violations. 

The story begins with a previous US DOL investigation which led to a consent judgment and court order in 2004 against the defendants in this case, in which they agreed to pay more than $943,000 in back wages and to comply with the FLSA in the future. While the defendant’s paid the back wages in full, they continued their practice of non-compliance with the FLSA, which the US DOL discovered during a subsequent investigation finding additional violations between January 2008 and January 2011, including underpayment of workers, and failure to maintain accurate and adequate payroll records. As part of the investigation, the US DOL interviewed employees and engaged in surveillance to determine the actual hours worked by employees.  The long list of violations discovered include; failure to pay overtime to employees who often worked between 84 and 114 hours per week;  payment of some employees completely off the books; failure to record dates of birth for minor employees; and payment of non-exempt tax preparers a flat salary or “straight time” for all hours worked, including hours in excess of 40 per work week.

"The violations uncovered in this investigation are unfortunately typical of those we find at other noncompliant gasoline service stations, with vulnerable, low-wage workers being deprived of the wages they have rightfully earned," said Irv Miljoner, director of the division's Long Island District Office, located in Westbury. "We are seeking to change employers' behaviors to reduce noncompliance, and to ensure fairness for workers and those employers who obey the law. This lawsuit, and its results, should send a clear message to other employers that the Wage and Hour Division will aggressively pursue such violations, and we will use all of the enforcement tools available to us to do so."

Under the terms of the current contempt consent judgment, entered in the U.S. District Court for the Eastern District of New York, in addition to paying back wages and interest in full, the defendants rid themselves of the contempt charges by agreeing to take corrective actions, which includes informing their employees of their rights under the FLSA, the terms of the judgment and their right to engage in activities protected by the act without fear of retaliation. Additionally the judgment provides that any future violations of the FLSA's overtime and record-keeping provisions could result in the department filing a contempt action against them in federal court.  Read more.

Employers May Need to Accommodate an Employee’s Religious Beliefs

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Published on Tuesday, 10 April 2012 05:55

As a recent case involving the Equal Employment Opportunity Commission (EEOC) and Aviation Concepts, Inc., an aircraft retailer and service provider in Guam, demonstrates, employers may need to accommodate the religious beliefs of their employees. In that case, Aviation Concepts has agreed to pay $51,000, and furnish extensive relief, to settle a lawsuit filed by the EEOC, in which the agency alleged that Aviation Concepts terminated one of its employees, Armando Perez, an assistant mechanic and practicing Jehovah’s Witness, after he informed his supervisor that he could not perform certain acts that conflicted with his religious beliefs. Specifically, the EEOC alleged that a manager ordered Perez to raise the U.S. and Guam flags at the worksite. Even though Perez explained to his manager that raising the flags would violate his religious beliefs, the manager allegedly ordered Perez to go home and then terminated him that same day for insubordination. In addition to the monetary settlement amount, Aviation Concepts has agreed to appoint an equal employment opportunity consultant; revise its policies and procedures to include the reasonable accommodation of sincerely held beliefs; effectively handle requests for religious accommodation and complaints of discrimination or retaliation; and provide annual anti-discrimination training to all employees with additional training for management and human resources officials on how to handle complaints and accommodation requests. Aviation Concepts will also post a notice on the matter at each of its facilities, and the EEOC will monitor compliance with the decree. Read More.

DIR Seeks the Public’s Input on Workers’ Compensation System

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Published on Tuesday, 10 April 2012 05:32

The Department of Industrial Relations (DIR) and the Division of Workers’ Compensation (DWC) have scheduled open forums across California to begin discussions on the workers’ compensation system and to gather information from stakeholders and members of the public on suggestions for improvements. According to DIR Director Christine Baker, “We want to gather input on areas of improvement for the workers’ compensation system in our effort to ensure a balanced approach for both injured workers and employers…Our effort is to identify efficiencies and improvements that will ensure adequate and timely benefits to injured workers while ensuring that the costs of the system are sustainable. Those who are familiar with the workings of the system are more likely to be able to point out areas of focus for our efforts.” DWC Administrative Director, Rosa Moran, commented that, “Improvements are needed to get injured workers back to work and to remove the imbalance of costs and benefits currently in the system.” Topics of discussion will include:

Provision of appropriate medical treatment without unnecessary delay, the medical provider network (MPN), utilization review (UR) or other issues;

Enabling injured workers to return to work as quickly as medically feasible;

Adequate compensation for permanent disabilities;

Reducing the burden of liens on the system;

Identification of appropriate fee schedules;

Reducing unnecessary litigation costs;

Assessing appropriate use of opiates and other care;

Any other improvements needed.

The forums will be held:

Tuesday, April 10, 2012—West Sacramento, CA 95605 (click here to register)

Monday, April 16, 2012—Los Angeles, CA 90013 (click here to register)

Wednesday, April 18, 2012—Fresno, CA 93721 (click here to register)

Tuesday, April 24, 2012—San Bernardino, CA 92401 (click here to register)

Wednesday, April 25, 2012—La Mesa, CA 91942 (click here to register) 

Monday April 30, 2012—Oakland, CA 94612 (click here to register)

Seating is limited at many of the locations and registration is required. Read More.

HR Practice Pointer: Can an Employer Require Employees to “Make-up” FMLA Leave?

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Published on Friday, 06 April 2012 17:36

An interesting article on www.fmlainsights.com reviews the question of whether an employer can maintain a policy that requires or even encourages an employee to “make-up” medical leave taken pursuant to the Family and Medical Leave Act (FMLA). As the article notes, although FMLA regulations do not provide clear guidance as to whether an employer can maintain such a “make-up” policy, the FMLA regulations (and several court decisions) make two important points: (1) employers cannot interfere with an employee’s ability to request or take FMLA leave; and (2) employers must offer the same privileges and benefits to employees who are on FMLA leave versus non-FMLA leave. Therefore, as the article highlights, employers must recognize that requiring employees to make-up FMLA leave could unlawfully interfere with their ability to take such leave, and consequently expose the employer to costly litigation. Read More.

Security Guard Arrested For Alleged Workers' Compensation Fraud

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Published on Friday, 06 April 2012 17:08

Insurance Commissioner Dave Jones announced the arrest of Julio Santiago for alleged workers' compensation fraud.  After an investigation by the Fraud Division's Valencia Regional office, a felony arrest warrant was issued by the Los Angeles Superior Court on March 26, 2012, and Santiago was subsequently arrested at his residence and booked at the Los Angeles County Jail, with bail set at $120,000.  Santiago was charged with four felony violations of Insurance Code Section 1871.4 (a).  The code section makes it illegal to knowingly make false or fraudulent statements to obtain workers compensation benefits, and to present false or fraudulent written material to obtain such compensation.  In addition Santiago was charged with one felony count of Grand Theft under Penal Code Section 487 (a). 

Santiago filed a workers' compensation claim alleging that he suffered an industrial injury on April 9, 2009, while working as a security guard for the Hacienda La Puente Unified School District. Subsequently, Intercare Insurance Services conducted an investigation which allegedly revealed that Santiago was working as a security guard for another employer while collecting workers' compensation benefits.  Intercare referred this claim to the California Department of Insurance (CDI) Fraud Division for further investigation.  The CDI Fraud Division’s investigation produced evidence which allegedly establishes that Santiago was working as a security guard for another employer, earning $29,750.00 during the period June 2009 to May 2012, while also collecting workers' compensation, in the amount of $13,606.86.  Also, the investigators allege that the evidence shows that Santiago received these Temporary Total Disability (TTD) benefits because he allegedly failed to disclose to Intercare and his doctors that he was working.  The Los Angeles County District Attorney's Office is prosecuting this case.  Read more.

Employer Must Reinstate 28 Employees Allegedly Terminated for Expressing Union Support

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Published on Thursday, 05 April 2012 17:43

The National Labor Relations Board (NLRB) is reporting that a U.S. District Court Judge in Connecticut has ordered the Stamford Plaza Hotel and Conference Center to reinstate 28 employees who were laid off, then rehired by a subcontractor to perform the same work, allegedly because they expressed support for a union. According to the NLRB press release, the layoffs occurred shortly after the United Food & Commercial Workers Union, Local 371, began gathering signatures for a unionization effort. The two hotel operations that were subcontracted, housekeeping and maintenance, had demonstrated the strongest level of union support. The NLRB regional office in Hartford issued a complaint against the hotel, alleging that the
subcontracting was an unlawful attempt to disrupt the union activity. The office also sought an injunction requiring that the employees be reinstated while the case works its way through the NLRB’s process. In granting the injunction, Judge
Mark R. Kravitz stated that “Given the timing of the Stamford Plaza’s decision to subcontract, its shifting explanations for that decision, and the testimony that the hotel continues to structure its subcontracting arrangements with the goal of frustrating union activity, the Court easily finds reasonable cause to believe that unfair labor practices have occurred.” In addition to ordering reinstatement of the employees pending a final decision in the NLRB case, the judge also ordered the employer to refrain from interrogating employees about their union sympathies or otherwise interfering with their labor rights. Read More. 

DOL Obtains Nearly $17,000 for Alleged FMLA Violations

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Published on Wednesday, 04 April 2012 21:25

The U.S. Department of Labor’s Wage and Hour Division alleged that the American Family Life Assurance Co., known as Aflac, violated the Family and Medical Leave Act by terminating an employee who took intermittent leave for a serious health condition.  The company alleged that the leave was denied due to the employee’s failure to timely submit requested documents. However, the Wage and Hour Division’s investigation revealed that the documents had been submitted in a timely manner.  The company has agreed to resolve the allegations and pay the employee $16,882, as well as agreeing to maintain future compliance with the FMLA by properly classifying employees’ FMLA-qualified leave. “Workers’ jobs should be protected while they are dealing with serious medical problems,” said Janet Campbell, director of the Wage and Hour Division’s Atlanta District Office. “The Labor Department is committed to protecting the rights of employees eligible under the FMLA to take up to 12 weeks of unpaid, job-protected leave each year.”  Read more.

Wage and Hour Lawsuits Have Become a Major Concern for Employers

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Published on Wednesday, 04 April 2012 05:40

Wage-and-hour lawsuits have become a major concern for employers. As reported by www.workforce.com, “The complexity of federal and state laws, the relative ease of winning class action certification and workers laid off as a result of the weak economy have led to more litigation in recent years, observers say. For example, the Department of Labor said there were 40,000 wage-and-hour complaints during fiscal 2010, up about 15% from the roughly 35,000 complaints in fiscal 2009. Many claims fall into two major categories: misclassification of workers as exempt, and unpaid overtime, observers say. However, employers can minimize the chances of litigation by taking steps that include periodic audits to determine whether employees are being properly classified, as well as careful record-keeping. When employers are sued, experts say settling the case may be the wiser course. Wage-and-hour litigation is the fastest-growing type of class action, legal experts say. ‘If you asked me what was the headache that kept folks up at night five years ago when it comes to workplace-related lawsuits, I'd say employment discrimination lawsuits,’ said Gerald L. Maatman Jr., a partner with law firm Seyfarth Shaw L.L.P. in Chicago. ‘Today, the headache that keeps people awake at night’ is wage-and-hour litigation, he said. ‘If you're interested in saving money and avoiding the courthouse, I think that's the No. 1 issue right now,’ Maatman said. ‘Every year we think we're at the top of the bell curve, but we haven't reached that yet.’" Read More.

Senators Ask EEOC and DOJ to Investigate Employer Demands for Social Media Passwords

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Published on Wednesday, 04 April 2012 05:26

U.S. Senators Richard Blumenthal (D-CT) and Charles E. Schumer (D-NY) have requested that the U.S. Equal Employment Opportunity Commission (EEOC) and the U.S. Department of Justice (DOJ) launch a federal investigation into the growing trend of employers demanding that job applicants turn over their user names and passwords for social networking and email websites in order to gain access to personal information like private photos, email messages, and biographical data. According to recent reports, a growing number of employers across the country are demanding the information from job applicants as part of the interview  process – including photos and personal messages not shared with anyone else. Blumenthal and Schumer contend that this practice represents an intrusion into personal privacy that could make it more difficult for individuals to get jobs, and it could also expose employers to discrimination claims. According to Blumenthal, "I am alarmed and outraged by rapidly and widely spreading employer practices seeking access to Facebook passwords or confidential information on other social networks…A ban on these practices is necessary to stop unreasonable and unacceptable invasions of privacy. An investigation by the Department of Justice and Equal Employment Opportunity Commission will help remedy ongoing intrusions and coercive practices, while we draft new statutory protections to clarify and strengthen the law. With few exceptions, employers do not have the need or the right to demand access to applicants’ private, password-protected information.” Blumenthal and Schumer are also drafting legislation that would seek to fill any gaps in federal law that allow employers to require personal login information from prospective employees to be considered for a job. The senators are also seeking additional legal opinions, from both the EEOC and DOJ to determine what protections currently exist and what additional protections are necessary. Read More.  

DOL Cracks Down On Restaurants in Massachusetts for Overtime Violations

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Published on Tuesday, 03 April 2012 15:46

An investigation by the U.S. Department of Labor (DOL), focusing in on the restaurant industry in Massachusetts, has apparently uncovered substantial violations of the minimum wage, overtime and record-keeping provisions of the Fair Labor Standards Act (FLSA). To date, investigations by the Boston District Office of the department's Wage and Hour Division, have found $1,307,808 in back wages due to 478 employees of multiple establishments. In addition, the division now is assessing liquidated damages, payable to employees, when employers are found in violation. According to Secretary of Labor Hilda L. Solis, “The restaurant industry employs some of our country's lowest paid workers, who are vulnerable to exploitation…In response to the extensive level of noncompliance we discovered, we will expand our efforts to bring the industry into compliance to ensure that employees receive the minimum wage and overtime wages required by law…Our investigations found that several restaurants violated the FLSA by paying employees flat salaries for all hours worked without overtime pay, failing to combine hours worked at multiple locations for overtime purposes, paying incorrect overtime rates to tipped employees, making illegal deductions from employees' wages and failing to keep accurate records of employees' hours." George A. Rioux, the division's district director in Boston, commented that "Even more serious, our investigations found an emerging trend of misclassifying restaurant workers as independent contractors in order to avoid minimum wage, overtime and record-keeping requirements of the FLSA." Read More.

EEOC Alleges Employee With Hepatitis C Terminated for Taking Disability Leave

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Published on Tuesday, 03 April 2012 15:24

The U.S. Equal Employment Opportunity Commission (EEOC) filed suit against AT&T Corp., for allegedly failing to reasonably accommodate a long-term employee’s disability and then terminating her because of that disability. According to the EEOC, Lupe Cardona, who worked for AT&T Corp. as a customer service representative in Indianapolis beginning in 1984, requested a reasonable accommodation in the form of a finite leave of absence in order to receive interferon treatment for Hepatitis C. She needed the treatment or her disease could have been fatal. Initially, upon learning of Cardona’s disability and need for a leave of absence, AT&T granted her leave request. Cardona was on an approved, paid medical leave of absence from June 24 to Oct. 24, 2010, when her physician determined the treatment was successful and released her to return to work without restriction. Two days later, AT&T fired her, claiming her use of approved leave to receive life-saving treatment violated its attendance policy. AT&T refused to provide Cardona a reasonable accommodation by exempting her leave of absence from its no-fault attendance policy. The EEOC’s lawsuit seeks back pay, compensatory and punitive damages and reinstatement or front pay for Cardona as well as injunctive relief, including a court order prohibiting AT&T from failing to provide reasonable accommodation to disabled employees by counting absences caused by their disability as “chargeable,” or unprotected, absences under its attendance policy. Patrick Holman, EEOC trial attorney commented that “The refusal of AT&T to make a perfectly reasonable exception to its draconian attendance policy to accommodate the known disability of an employee violated federal law as well as common sense and common decency.”  Read  More.

EEOC Issues FAQs on Age Discrimination Final Regulation

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Published on Friday, 30 March 2012 16:08

As noted in in the Employment Law Weekly article, "EEOC Issues Final Rule on Age Discrimination" posted on March 30, 2012, the EEOC has issued the final regulation on “Disparate Impact and Reasonable Factors Other than Age” (RFOA) pursuant to the Age Discrimination in Employment Act of 1967 (ADEA). The EEOC has also issued FAQs to further explain the final regulation, which include:

1. What is the purpose of the rule?

The rule responds to two Supreme Court decision in which the Court criticized one part of the Commission’s existing ADEA regulations. The Court upheld EEOC’s longstanding position that the ADEA prohibits policies and practices that have the effect of harming older individuals more than younger individuals, even if the harm was not intentional. However, it disagreed with the part of the regulations which said that, if an employee proved in court that an employment practice disproportionately harmed older workers, the employer had to justify it as a “business necessity.” The Court said that, in an ADEA disparate impact case, the employer did not have to prove business necessity; it need only prove that the practice was based on an RFOA. The Court also said that the RFOA defense is easier to prove than the business necessity defense but did not otherwise explain RFOA.

The rule does two things:

It makes the existing regulation consistent with the Supreme Court’s holding that the defense to an ADEA disparate impact claim is RFOA, and not business necessity; and it explains the meaning of the RFOA defense to employees, employers, and those who enforce and implement the ADEA.

2. Who is required to follow the rule?

The rule applies to all private employers with 20 or more employees, state and local government employers, employment agencies, and labor organizations. Although the ADEA applies to the federal government as an employer, the rule does not apply to federal employers by virtue of section 633a(f) of the ADEA.

3. Does the rule apply to all employment practices?

No. The rule applies to only a few kinds of employment practices. Specifically, it applies only to practices that are neutral on their face, that might harm older workers more than younger workers, and that apply to groups of people. For instance, it applies to tests used to screen employees or to some procedures used to identify persons to be laid off in a broad reduction-in-force (“RIF”).

4. What determines whether an employment practice is based on Reasonable Factors Other than Age?

An employment practice is based on an RFOA when it was reasonably designed and administered to achieve a legitimate business purpose in light of the circumstances, including its potential harm to older workers.

The rule emphasizes the need for an individualized consideration of the facts and circumstances surrounding the particular situation. It includes the following list of considerations relevant to assessing reasonableness:

• The extent to which the factor is related to the employer’s stated business purpose;
• The extent to which the employer defined the factor accurately and applied the factor fairly and accurately, including the extent to which managers and supervisors were given guidance or training about how to apply the factor and avoid discrimination;The extent to which the employer limited supervisors’ discretion to assess employees subjectively, particularly where the criteria that the supervisors were asked to evaluate are known to be subject to
  negative age-based stereotypes;
• The extent to which the employer assessed the adverse impact of its employment practice on older workers; and, 
• The degree of the harm to individuals within the protected age group, in terms of both the extent of injury and the numbers of persons adversely affected, and the extent to which the employer took steps to reduce the harm, in light of the burden of undertaking such steps.

5. Must employers show that they used each of the considerations listed in the EEOC’s regulation to establish the defense?

No. The considerations merely describe the most common characteristics of reasonable practices. The rule makes clear that the defense could be established absent one or more of the considerations, and that there could even be a situation in which the defense is met absent any of the considerations. Similarly, the
defense is not automatically established merely because one or more of the considerations are present. Read More.

EEOC Issues Final Rule on Age Discrimination

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Published on Friday, 30 March 2012 15:30

The U.S. Equal Employment Opportunity Commission (EEOC) has issued the “Final Regulation on Disparate Impact and Reasonable Factors Other than Age” (RFOA) pursuant to the Age Discrimination in Employment Act of 1967 (ADEA). The ADEA prohibits employment discrimination against employees who are 40 years of age or older. The final rule was coordinated with other federal agencies and reviewed by the Office of Management and Budget (OMB). The rule was posted for public inspection today and will be published in the Federal Register on Friday, March 30.The EEOC’s final rule clarifies that the ADEA prohibits policies and practices that have the effect of harming older individuals more than younger individuals, unless the employer can show that the policy or practice is based on a reasonable factor other than age. The rule explains the meaning of the RFOA defense to employees, employers, and courts, and makes EEOC’s regulations consistent with Supreme Court case law. The rule applies to private employers with 20 or more employees, state and local government employers, employment agencies, and labor organizations.  Read More.

Disciplinary Measures Often Form the Basis of a Retaliation Claim

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Published on Wednesday, 28 March 2012 16:27

Disciplinary measures often form the basis of a retaliation claim, particularly if they are implemented soon after an employee makes a complaint of harassment, discrimination, or some other workplace issue. In a recent case filed by the Equal Employment Opportunity Commission (EEOC) the agency charges that OfficeMax violated federal law when a manager at one of its Sarasota stores allegedly retaliated against a Hispanic sales associate after he made a complaint about race discrimination. The EEOC’s lawsuit charges that OfficeMax’s human resources department became aware of allegations raised by the Hispanic sales associate in mid-June 2009, when he was terminated by his store manager. Although OfficeMax rehired the associate following his discrimination complaint, the manager allegedly began initiated a pattern of retaliatory conduct towards the sales associate, which included unwarranted and disparate discipline, disciplinary actions based on false accusations and a reduction in hours. Eventually the employee resigned. Malcolm Medley, district director of the EEOC’s Miami District Office commented that, “Complaints of retaliation are not taken lightly by the EEOC…When an employee exercises his or her right to oppose unfair practices, they need to feel secure in exercising that right.” In order to avoid a retaliation complaint, employers must not only carefully train their supervisors and managers on the laws regarding discrimination, harassment and retaliation laws, but they must train supervisors and managers on proper disciplinary measures. Obviously, if an employee who has complained of discriminatory/harassing conduct is soon thereafter subjected to disciplinary measures by the employer (particularly if there were no prior performance issues) at a minimum such disciplinary measures create the impression of retaliatory conduct.  Read More.

DOL Announces New Tools to Help Reduce Improper Unemployment Insurance Payments

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Published on Wednesday, 28 March 2012 03:41

The U.S. Department of Labor (DOL) announced the availability of new tools to help state agencies in their effort to detect, prevent and recover improper Unemployment Insurance (UI) payments as well as combat UI fraud. One of these tools consists of “The Fraud Tips and Leads Gateway,” a new online source for reporting UI fraud. In addition, the DOL is publishing new, consumer-friendly materials highlighting the most common mistakes that claimants make and what businesses can do to avoid the negative tax implications of improper payments. The DOL is working with states and through the workforce system to prominently display these materials in public areas and to post them online. Secretary of Labor Hilda L. Solis commented that, "Reducing improper Unemployment Insurance payments is crucial to maintaining the integrity of this vital lifeline for millions of American families, and we each have a role to play…Too many people don't know their responsibilities under the program, and too many businesses don't know what's at stake for them, especially the tax implications. The tools announced today will help educate consumers and businesses, and ultimately improve the UI system."  Read More.

Employers Warned About Demanding Access to Employees' Social Media Accounts

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Published on Wednesday, 28 March 2012 03:26

Facebook Chief Privacy Officer, Erin Egan, has posted a note warning that the social networking company could “initiate legal action” against employers who demand that prospective or current employees provide the employers with access their Facebook account. In addition, lawmakers in several states have either ontroduced, or indicated that they will introduce, bills to prohibit companies from scrutinizing employees by demanding access to their private social media accounts. Specifically, Leland Yee, a California state senator, introduced legislation that would prohibit companies in the state from soliciting Facebook passwords from job applicants. Lawmakers in Illinois and Maryland are also considering similar legislation. According to Yee, “Employers can’t ask in the course of an interview your sexual orientation, your age, and yet social media
accounts may have that information…Employers have legitimate questions about a person’s job performance, but they can get that information the regular way, without cutting corners and violating people’s privacy.” Egan advised in a Facebook post that the social networking company has observed “a distressing increase in reports of employers or others seeking to gain inappropriate access to people’s Facebook profiles…We don’t think employers should be asking prospective employees to provide their passwords because we don’t think it’s the right thing to do…But it also may cause problems for the employers that they are not anticipating. For example, if an employer sees on Facebook that someone is a member of a protected group (e.g. over a certain age, etc.) that employer may open themselves up to claims of discrimination if they don’t hire that person.”

The issue heated-up this week after the Associated Press reported that employers are increasingly asking job applicants to view their social media accounts, regardless of whether that content is shared with the public. For example, the Maryland Department of Corrections asks job applicants to browse through their own Facebook accounts with an interviewer present; the ACLU called the practice “an invasion of privacy.” Read More.

OSHA Issues Memo on Employer Practices That May Discourage Employee Reports of Injuries

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Published on Tuesday, 27 March 2012 16:22

The U.S. Occupational and Safety & Health Administration (OSHA) has issued a memorandum regarding employer practices that may be discriminatory because they discourage employee reports of injuries. According to OSHA, the “memorandum is intended to provide guidance to both field compliance officers and whistleblower investigative staff on several employer practices that can discourage employee reports of injuries and violate section 11(c), or other whistleblower statutes.” The memorandum specifies that “If employees do not feel free to report injuries or illnesses, the employer's entire workforce is put at risk. Employers do not learn of and correct dangerous conditions that have resulted in injuries, and injured employees may not receive the proper medical attention, or the workers' compensation benefits to which they are entitled. Ensuring that employees can report injuries or illnesses without fear of retaliation is therefore crucial to protecting worker safety and health.”

The memorandum also identifies four types of workplace polices, and specific situations, that OSHA believes could discourage an employee from reporting an injury; which are as follows: (1) a workplace policy of taking disciplinary action against employees who are injured on the job, regardless of the circumstances surrounding the injury, which is essentially a policy to discipline all employees who are injured, regardless of fault; (2) situations in which an employee who reports an injury or illness is disciplined, and the stated reason is that the employee has violated an employer rule about the time or manner for reporting injuries and illnesses. However, workplace rules cannot penalize workers who do not realize immediately that their injuries are serious enough to report, or even that they are injured at all; (3) situations in which an employee reports an injury, and the employer imposes discipline on the ground that the injury resulted from the violation of a safety rule by the employee. Although OSHA encourages employers to maintain and enforce legitimate workplace safety rules in order to eliminate or reduce workplace hazards and prevent injuries from occurring in the first place, in some cases, an employer may attempt to use a work rule as a pretext for discrimination against a worker who reports an injury; and, (4) incentive programs that discourage employees from reporting their injuries. One important factor with these types of programs is whether the incentive involved is of sufficient magnitude that failure to receive it "might have dissuaded reasonable workers from" reporting injuries. Read More.

Committee Approves Bill to Freeze "Job-Killing" Regulations

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Published on Monday, 26 March 2012 15:31

The House Judiciary Committee has approved a bill to provide immediate relief to small businesses and freeze the implementation of significant regulations by the Obama administration. The Regulatory Freeze for Jobs Act of 2012 (H.R. 4078), which was introduced by Congressman Tim Griffin (R-Ark), imposes a moratorium on new significant regulations until the national unemployment rate stabilizes at or below six percent. The bill was approved by a vote of 15-13. House Judiciary Committee Chairman Lamar Smith (R-Texas), an original co-sponsor of the bill, commented on the Committee vote “The Obama administration has quickly turned the United States into a regulation nation. This Administration has adopted an unprecedented amount of costly new regulations, which hinder small business growth and stall job creation…According to a study by the Small Business Administration, regulations cost the American economy $1.75 trillion annually. We need to encourage small businesses to expand, not tie them up with red tape…Unfortunately, rather than add much-needed jobs to the economy, the Obama administration has only added job-killing regulations that burden businesses and stifle economic growth. In 2011, the Obama administration’s agenda had over 200 ‘economically significant’ new rules, each of which typically affect the American economy $100 million or more each year…The Freeze Act gives small businesses a much-needed break from new significant federal regulations until the unemployment rate stabilizes at six percent. The Act encourages job creators to make the kinds of investments that will jump-start our economy and gives them confidence about future regulatory actions.”

H.R. 4078 is narrowly tailored so that it only prevents “unnecessary” regulations. Therefore,
the bill contains reasonable exceptions for significant regulations that are necessary to protect health and safety, for national security, to enforce criminal laws or to implement trade agreements. Read More.

EEOC Issues Annual Report on Federal Work Force

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Published on Monday, 26 March 2012 15:22

The U.S. Equal Employment Opportunity Commission (EEOC) has released its Annual Report on the Federal Work Force Part II: Work Force Statistics, Fiscal Year (FY) 2010. The comprehensive report informs and offers advice to the President and the Congress on the state of equal employment opportunity (EEO) government-wide. The report includes information on statistical work force profiles and trends for 64 federal agencies, measures of agencies’ progress toward implementing model EEO programs, and a summary of select EEO program activities and best practices. Each agency’s profile highlights work force participation rates by race, gender, national origin and individuals with targeted disabilities, as well as the breakdown for major occupational categories. The report covers the period from October 1, 2009 through September 30, 2010. According to the EEOC’s report, there has been little change in the composition of the federal work force over the years. In FY 2010, there were over 2.8 million people employed by the federal government, of whom 56% were men and 44% were women. Of that total:

65.4% were White

17.9% were Black or African American

7.9% were Hispanic or Latino

5.9% were Asian1.6% were American Indian or Alaska Native

.08% were persons of two or more races, and,

.04% were Native Hawaiian or Other Pacific Islander.

Despite a modest gain of 554 employees in FY 2010, the participation rate of individuals with “targeted disabilities” remained at 0.88%. Targeted disabilities include deafness, blindness, missing extremities, partial or complete paralysis, convulsive disorders, intellectual disabilities, mental illness, and distortion of the limb  and/or spine.

However, over the last 10 years, women, Hispanic or Latino, Black or African American and Asian employees have made gains in securing senior level positions in the federal government.

According to EEOC Chair Jacqueline A. Berrien, “This report shows that while the federal government is a leader in employing a diverse workforce, specific areas for improvement remain…The EEOC will continue to work with federal government leaders to identify and remove barriers to equal employment opportunity and
promote diversity and inclusion in the federal workplace.” Read More.

Cal/OSHA Citations Issued Totaling $166,890 Following Two Worker Deaths

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Published on Friday, 23 March 2012 15:18

Cal/OSHA issued sixteen citations against Lamont-based composting facility Community Recycling and Resource Recovery after completing an investigation triggered by the Oct. 12, 2011 deaths of two brothers, Armando and Eladio Ramirez, aged 16 and 22, who died due to inhalation of hydrogen sulfide gas while cleaning an underground storm drain system at the recycling facility.  The two workers were clearing debris from an obstructed ten foot shaft of the storm drain system, when one lost consciousness from exposure to hydrogen sulfide gas, then the other attempted to rescue him, only to lose consciousness as well, and both died as a result of the exposure.  All sixteen citations, totaling $166,890, issued to Community Recycling addressed the company’s failure to have an adequate confined space program, including proper training, testing for atmospheric hazards, and rescue procedures.  Twelve citations were for serious violations five of which were directly related to the accident.  Four of the citations were issued for general workplace safety violations.  A&B Harvesting, a farm labor contractor that provides workers to Community Recycling, was also cited for failure to train employees in the hazards of confined spaces.  Eladio Ramirez was employed by A & B Harvesting when he died.  “This enforcement action represents a tragic example of what can go wrong when employers do not have proper safety procedures in place,” said DIR Director Christine Baker. “Workers are at risk of death or serious injury if employers have not provided adequate training or do not have a safety plan for working in confined spaces.”  California Labor Commissioner Julie A. Su also opened an investigation into possible child labor law violations after Armando Ramirez was revealed to have been 16 years old.  Read more.

U.S. Supreme Court Holds States Are Not Liable For Monetary Damages in FMLA Cases

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Published on Wednesday, 21 March 2012 17:51

The Family and Medical Leave Act of 1993 (FMLA) entitles an employee to take up to 12 work weeks of unpaid leave per year for: (1) baby bonding; (2) the adoption or foster-care placement of a child; (3) to care for a spouse, son, daughter, or parent with a serious medical condition; and (4) the employee’s own serious health condition. The FMLA also creates a private right of action for equitable relief and damages “against any employer (including a public agency) in any federal or state court.”  In a recent case, Coleman v. Court of Appeals of Maryland, David Coleman filed suit, alleging that his employer, the Maryland Court of Appeals, an instrumentality of the State, violated the FMLA by denying him “self-care” leave. The Federal District Court dismissed his lawsuit on sovereign immunity grounds. The 4th Circuit affirmed, holding that the “self-care provision” was not directed at an identified pattern of gender-based discrimination and was not congruent and proportional to any pattern of sex-based discrimination on the part of States. The case was appealed to the U.S. Supreme Court. In a 5-to-4 vote affirming the lower court’s decision, the Court held that on the basis of sovereign immunity grounds, state employees may not sue their employers for monetary damages based on a FMLA violation. However, lawsuits for monetary damages under the self-care provision are still permitted against private employers, and other types of actions remain available against state employers. Read More.

Legislation Introduced to Ban Employment Related Predispute Arbitration Agreements

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Published on Wednesday, 21 March 2012 01:23

Rep. Robert Andrews (D-NJ) has introduced legislation that would ban employment related predispute arbitration agreements. Specifically, the proposed legislation provides that “notwithstanding any other provision of this title, no predispute arbitration agreement shall be valid or enforceable if it requires arbitration of an employment dispute. The term `employment dispute' means a dispute between an employer and employee arising out of the relationship of employer and employee.” The legislation would not apply to any arbitration provision in a collective bargaining agreement, although such agreements cannot “have the effect of waiving the right of an employee to seek judicial enforcement of a right arising under a provision of the Constitution of the United States, a State constitution, or a Federal or State statute, or public policy arising therefore.” Read More.

Voluntary Benefits Provided in a Discriminatory Manner May Constitute an Adverse Employment Action

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Published on Wednesday, 21 March 2012 01:04

A recent decision by the U.S. Court of Appeals, 4^th Circuit, emphasizes that if an employer provides benefits in a discriminatory manner that may constitute an adverse employment action even if the employer is not required to provide the benefits. Further, Title VII protects both current and former employees from discriminatory employment actions. The case involves Karla Gerner, who sued her former employer, Chesterfield County, Virginia ("County"), claiming that the County unlawfully discriminated against her by offering her a less favorable severance package than that offered male employees holding similar positions. Gerner worked for the County for more than twenty-five years and always received “positive performance evaluations.”  In 2009, County officials advised Gerner that due to reorganization, her position was being eliminated. They asked her to sign a severance agreement that included three months of pay and health benefits in exchange for a voluntary resignation and waiver of any cause of action against the County. Gerner refused to sign the agreement, and upon receipt of her right to sue letter from the Equal Employment Opportunity Commission (EEOC) she filed a lawsuit against the County alleging disparate treatment on the basis of sex in violation of Title VII. Specifically, Gerner alleged that the County did not offer her the same “sweetheart” severance package offered to her male counterparts, which included offers of transfers to other positions with less responsibility (and the same salary and benefits) or being kept on the payroll with benefits of up to 6 months to enhance their retirement benefits. The district court dismissed Gerner’s complaint, on the ground that she failed to allege a Title VII claim because the County’s allegedly discriminatory denial of severance benefits did not constitute an adverse employment action unless the benefits were a “contractual entitlement.”

On appeal, the court held that if a benefit is part of the employment relationship it may not be “doled out in a discriminatory fashion” even if the employer is not required to offer the benefit.  Thus, benefits that an employer is not required to provide, such as a severance package, may still qualify as a privilege of employment and as such provide the basis for a Title VII action if the benefits are provided in a discriminatory manner thereby constituting an adverse employment action. The court emphasized that if the “employee did not volunteer for a change in employment benefits or retain a job in lieu of a new benefit, courts have consistently recognized that the discriminatory denial of a non-contractual employment benefit constitutes an adverse employment action.” The court further highlighted that “Title VII protects both current and former employees from discriminatory adverse employment actions. Title VII makes it an unlawful employment practice for an employer "to discriminate against any individual" on the basis of membership in a protected class. Courts have consistently interpreted this intentionally broad language to apply to potential, current, and past employees.” Read More. 

NLRB Releases Summary of Activities for Fiscal Year 2011

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Published on Tuesday, 20 March 2012 18:44

The National Labor Relations Board (NLRB) Acting General Counsel Lafe Solomon has released a summary of activities for Fiscal Year 2011 . The summary includes the following information: (1) a 93% settlement rate was achieved in the Regional Offices in meritorious unfair labor practice cases; (2) NLRB Regional Offices won 87% of Board and Administrative Law Judge unfair labor practice and compliance decisions in whole or in part in FY 2011; (3) a total of $60,514,922 was recovered on behalf of employees as backpay or reimbursement of fees, dues, and fines, with 1,644 employees offered reinstatement; (4) the NLRB exceeded two of its three goals and came close to achieving the third, closing 84.7% of all representation cases within 100 days (target 85%), 72.5% of all unfair labor practice cases within 120 days (target 71.2%), and 83.2% of all meritorious unfair labor practice cases within 365 days (target 80.2%). The target for each 2011 overarching goal was higher than in FY 2010 and has been increased for FY 2012; (5) the Agency’s total case intake during FY 2011 was 24,990, compared to 26,585 cases in FY 2010, representing a 5.9% decrease in overall intake. Unfair labor practice case intake was 22,177, a 5.1% decrease from the FY 2010 intake of 23,381. Total representation case intake was 2,813, a 12.2% decrease from the FY 2010 intake of 3,204; and, (6) the working inventory of cases at the end of FY 2011 was 4,421, compared to 4,063 at the end of FY 2010. Read More.

OSHA Revises Hazard Communication Standard

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Published on Tuesday, 20 March 2012 18:30

The U.S. Department of Labor's Occupational Safety and Health Administration (OSHA) has revised its Hazard Communication Standard, thereby bringing it into alignment with the United Nations' global chemical labeling
system. According to OSHA, the new standard will prevent an estimated 43 deaths and result in an estimated $475.2 million in enhanced productivity for U.S. businesses each year. The new standard, which will be implemented in 2016, will classify chemicals according to their health and physical hazards, and establish consistent labels and safety data sheets for all chemicals made in the United States and imported from abroad.  According to Secretary of Labor Hilda L. Solis, “Exposure to hazardous chemicals is one of the most serious dangers facing American workers today…Revising OSHA's Hazard Communication Standard will improve the quality, consistency and clarity of hazard information that workers receive, making it safer for workers to do their jobs and easier for employers to stay competitive in the global marketplace." During the transition period to the effective completion dates noted in the standard, chemical manufacturers, importers, distributors and employers may comply with either 29 Code of Federal Regulations 1910.1200 (the final standard), the current standard or both. The final rule revising the standard is available at httpp://s.dol.gov/P1. Read More.

Senators Introduce Bill to Overturn U.S. Supreme Court’s Decision on Age Discrimination

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Published on Tuesday, 20 March 2012 17:39

Iowa Senators Tom Harkin (D-IA), Chuck Grassley (R-IA) and Patrick Leahy (D-VT) have introduced legislation, the Protecting Older Workers Against Discrimination Act (POWADA) which would overturn the U.S. Supreme Court’s decision in Gross v. FBL Financial Services, Inc. In Gross, the Supreme Court held that in an age discrimination case pursuant to the Age Discrimination and Employment Act (ADEA), the plaintiff must establish by a preponderance of the evidence that age was the “but for” cause of the employer’sadverse employment action.  According to Senator Harkin, “Prior to the Court’s decision in Gross, the same standard of proof applied equally to all workers, regardless of the type of invidious discrimination they faced. Ignoring these consistent standards, the Court’s decision established a far higher standard of proof for age than for discrimination based on race, sex, national origin and religion, without any rationale or justification. The Protecting Older Workers Against Discrimination Act will reverse the Court’s decision and restore the law to what it was for decades so that Jack Gross and all older workers in this country enjoy the full protections of the law.”

Senator Grassley commented that, “The decision in the Gross case has had a major impact on employment discrimination litigation across the country. It’s time we clarify the law to ensure that other people like Jack Gross aren’t put in similar situations. Older Americans have immense value to our society and our economy and they deserve the protections Congress originally intended.”  POWADA would reverse the Gross decision and makes clear that when an employee shows that age discrimination was a “motivating factor” behind a decision, the burden is on the employer to show it complied with the law.  POWADA  is modeled on the Civil Rights Act of 1991, which codified the “motivating factor” framework for race, sex, national origin and religion discrimination claims under Title VII of the Civil Rights Act of 1964.   The Act also clarifies that the "motivating factor” framework applies to all anti-discrimination and anti-retaliation laws involving race, sex, national origin, religion, age and disability – treating all workers, and all forms of discrimination, equally. The legislation would not apply retroactively. Read More.

EEOC Alleges Employer Refused to Grant Leave as a Disability Accommodation

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Published on Monday, 19 March 2012 20:20

GGNSC Charlotte Renaissance LLC, which operates Golden LivingCenter-Dartmouth (Golden Living) in Charlotte, N.C., a nursing facility that provides care to individuals who are ill, physically and mentally disabled, and elderly,  was charged by the U.S. Equal Employment Opportunity Commission (EEOC)  with discrimination against an employee with a disability as well as having  unlawfully fired her.  The complaint alleges that Sandra Bagwell was hired by Golden Living as a licensed practical nurse and has major depressive disorder (MDD).  After working for Golden Living for about two years, Bagwell had a major depressive episode which led to her being admitted into a behavioral health center, for psychiatric evaluation and treatment. On the same day, Bagwell’s husband allegedly called her supervisor, the director of nursing, whom Bagwell had previously informed of her MDD, and allegedly informed the nursing director that Bagwell was in the hospital and would not be able to report to work and advised the supervisor that Bagwell needed to take a leave of absence.  Also, Bagwell’s husband allegedly spoke with the defendant’s executive director concerning Bagwell’s need for a medical leave of absence.  The EEOC claims Golden Living refused to approve Bagwell’s request for a medical leave of absence as an accommodation for her disability and instead fired her, thereby violating the Americans with Disabilities Act (ADA), which protects employees from discrimination based on their disabilities. “Employers are reminded of their obligation to work with disabled employees to provide necessary reasonable accommodations,” said Lynette A. Barnes, regional attorney for the EEOC’s Charlotte District. “A company cannot simply fire someone because he or she needs to take medical leave related to a disability. Federal law clearly protects people from precisely that type of discriminatory action.”  Read more.

Free State Labor Law and Payroll Tax Seminar

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Published on Friday, 16 March 2012 19:25

The Division of Labor Standards Enforcement (DLSE) in conjunction with the Employment Development Department (EDD) is offering a free “State Labor Law and Payroll Tax” seminar. The seminar will including information on: (1) record keeping; (2) reporting requirements; (3) employer obligations; (4) wage payment requirements; (5) common wage and hour law application; (6) employer and employee rights and responsibilities; and, (7) the basics of how to distinguish between an employee and independent contractor. Reservations are highly recommended as the seminars are often full to capacity. Read More.

US Labor Department Settles Charges of Racial Discrimination: Agreement Includes $100,000 in Back Wages and Interest for 67 Asian Applicants

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Published on Friday, 16 March 2012 17:03

The U.S. Department of Labor's Office of Federal Contract Compliance Programs (OFCCP) has reached a settlement with federal government contractor NCS Pearson Inc., involving alleged hiring discrimination on the basis of race.  During a scheduled compliance review, OFCCP allegedly found evidence that NCS Pearson, in 2009, used a hiring process that allegedly resulted in systemic discrimination against Asian job applicants, allegedly affecting 67 Asian applicants who were rejected for associate software developer positions, which violates Executive Order 11246.   The settlement provisions require NCS Pearson to pay $100,000 in back wages and interest to the 67 job seekers. NCS Pearson is also to offer associate software developer positions, when they become available, to at least four class members, and include retroactive seniority. Additionally, the company will revise its selection policies and procedures to ensure equal employment opportunities for future applicants.  “All workers deserve a fair shot to compete for and secure good jobs, and it is incumbent upon companies that do business with taxpayer dollars to make sure that the doors of opportunity are truly open to everyone," said OFCCP Director Patricia A. Shiu, a member of the federal Interagency Working Group on Asian Americans and Pacific Islanders. “I’m pleased that we were able to work out a settlement which will provide financial relief and jobs for workers who were denied their fair shot."  Read more.

Fewer Employers Offering Unpaid Internships

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Published on Thursday, 15 March 2012 20:34

As summer approaches, it is interesting to note that according to a recent article in USA Today, fewer employers are offering unpaid internships or they are converting them to paid programs in light of the increasing number of lawsuits claiming that interns should have been compensated for their work. Unpaid internships are legal only if they meet stringent wage and hour criteria. For example, programs must provide training and benefit interns, not employers. More specifically, according to Fact Sheet #71, issued by the U.S. Department of Labor Wage and Hour Division, the following six criteria must be considered when determining if an intern must be paid or not: (1) the internship, even though it includes actual operation of the facilities of the employer, is similar to training which would be given in an educational environment; (2) the internship experience is for the benefit of the intern; (3) the intern does not displace regular employees, but works under close supervision of existing staff; (4) the employer that provides the training derives no immediate advantage from the activities of the intern; and on occasion its operations may actually be impeded; (5) the intern is not necessarily entitled to a job at the conclusion of the internship; and (6) The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship. If all of these six factors are met, an employment relationship does not exist under the Fair Labor Standards Act, and the Act’s minimum wage and overtime provisions do not apply to the intern. Read More.

Employer Pays $140k for Alleged Pregnancy Discrimination

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Published on Thursday, 15 March 2012 20:06

Olam Americas, Inc., has settled a lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC) for $140,000 and other relief, including providing annual EEO training to all employees at six manufacturing plants in central and northern California, along with more specialized training for managers and human resources staff. The EEOC charged that a jobseeker was denied an executive assistant position at Olam’s Fresno, California, facility allegedly due to her pregnancy. Olam Americas, Inc. is a supplier and processor of agricultural products and food ingredients. According to the EEOC, Olam initially offer a female job applicant an executive assistant position. However, within a very short period of time after disclosing that she was pregnant, Olam allegedly rescinded its offer of employment to her and then selected an alternate, non-pregnant candidate. Pregnancy discrimination violates Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act (PDA). Anna Y. Park, regional attorney for the EEOC, commented that, “Employers should hire and retain the best qualified job applicants, irrespective of one’s gender or pregnancy…We commend Olam for working together with the EEOC to resolve this matter and we appreciate Olam’s efforts toward ensuring equal employment opportunities for all.” Read More.

Senators Blumenthal, Durbin, and Harkin Introduce RESPECT Act to Congress

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Published on Thursday, 15 March 2012 19:47

Senators Richard Blumenthal (D-CT), Dick Durbin (D-IL), and Tom Harkin (D-IA) have  introduced the Re-empowerment of Skilled and Professional Employees and Construction Tradeworkers (RESPECT) Act. The legislation narrows the definition of a “supervisor” under the National Labor Relations Act (NLRA) so as to exclude workers who do not have authority to hire and fire, thereby ensuring that more workers  fall within the Act’s protections. According to Senator Blumenthal, “The RESPECT Act is a crucial step toward ensuring hardworking men and women are not unjustly denied the right to join a labor union…This legislation corrects flaws in current statute that would otherwise unfairly prevent millions of workers from joining together in setting key terms of their employment. Without these rights, they could experience lower wages, fewer benefits, and deteriorating working conditions. Protecting the rights of workers in Connecticut and across the country to join together in good faith is central to the growth of the middle-class, and this bill protects those rights.” Specifically, the RESPECT Act changes the definition of supervisor under current law. The first change eliminates the terms “assign” and “responsibly to direct” from the list of supervisory duties under the NLRA. The elimination of these terms means that only those with real authority to affect employees’ terms of employment could be classified as supervisors. The second change requires that an employee have supervisory duties during a majority of his or her work day in order to be considered a true supervisor and therefore excluded from coverage under the NLRA. Read More.

DOL Extends Comment Period on Proposed Rule to Require Minimum Wage and Overtime Protections for In-Home Care Workers

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Published on Tuesday, 13 March 2012 17:49

The U.S. Department of Labor's Wage and Hour Division has announced a nine-day extension of the comment period for its proposed rule to require minimum wage and overtime protections for workers who provide in-home care services. The division originally published a notice of proposed rulemaking in the Federal Register on December 27, 2011, with a comment period set to end on February 27, 2012. The division then extended the comment period to March 12. The DOL has now decided to extend the comment period through March 21. Comments received between December 27 and March 21 will be included in the rulemaking record. The extension of time is intended to provide additional time for members of the public to analyze the issues raised in the proposal and to provide comments. The proposed rule expands minimum wage and overtime protections to include all home care workers employed by third parties, such as staffing agencies. It also clarifies that individuals performing skilled in-home care work are entitled to minimum wage and overtime pay. However, individuals engaged by families for “true companionship or fellowship activities,” such as visiting with friends or pursuing hobbies, still would be considered "companions" and thus will not be required to meet the act's labor standards provisions. To learn more about the proposed rule, visit http://www.dol.gov/whd/flsa/companionNPRM.htm.

EEOC Retaliation Lawsuit Settles for $65,000 with Painting Company

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Published on Tuesday, 13 March 2012 15:17

The U.S. Equal Employment Opportunity Commission (EEOC), charged Atsalis Brothers Painting Company, a Michigan based painting company which does business in several states, with unlawfully retaliating against an employee for objecting to race discrimination. Race discrimination and, retaliation for objecting to it, violates Title VII of the Civil Rights Act of 1964. The EEOC lawsuit alleged that Atsalis retaliated against Rodney Trice, a journeyman painter, that after he complained about the use of the “N-word” by his foreman, Atsalis did not bring him back to work for the 2008 work season.  In addition to paying $65,000 to Trice, the settlement requires Atsalis to provide anti-discrimination training to its company officers, managers, supervisors and human resources personnel; create a new anti-discrimination policy; institute new discrimination complaint procedures; and file reports with the EEOC regarding compliance. “The right of an employee to object to discriminatory conduct without fear of being punished by his employer is fundamental to ensuring equal employment opportunity,” said EEOC Trial Attorney Dale Price. “Employers should encourage such objection, not penalize it.” Read more.

NYC Must Pay $128 Million in Firefighter Discrimination Case

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Published on Monday, 12 March 2012 01:50

U.S. District Judge Nicholas G. Garufis ordered New York City to pay $128 million dollars to firefighters who allege the city used an entrance exam that deliberately prevented African-Americans and Latino Americans from obtaining employment on the force. Judge Garufis also ordered the City to hire 293 black and Latino applicants. He also commented on the ruling stating that "It has been in the city's power to prevent or remedy the need for damages proceedings for a decade, and it has not done so." Judge Garufis referred to the City’s alleged failure to do so as the "consequences of the city's decision to ignore clear violations of federal law." The federal government had sued the City (United States of America and Vulcan Society Inc. vs. City of New York) alleging the City violated the U.S. Constitution and local civil rights laws by using an entrance exam that was intentionally designed to discriminate based on race. The lawsuit also alleged that the exams had little to do with firefighting and instead focused on cognitive and reading skills. 

According to the lawsuit, "There has been one persistent stain on the Fire Department's record…For decades, black and other minority firefighters have been severely underrepresented in the Department's ranks." The most recent census data reveal that black residents make up 25.6% of New York City's population; however, when this case was filed in 2007, black firefighters accounted for only 3.4% of the Department's force. Thus, in a city of over eight million people, and out of a force with 8,998 firefighters, there were only 303 black firefighters.  Read More. 

Termination of New York Teacher Due to Facebook Posts Overturned

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Published on Saturday, 10 March 2012 22:28

Christine Rubino had been a fifth grade teacher in Brooklyn for 15 years without any disciplinary history when she was terminated in response to comments she posted about students on her Facebook page. To put this in context, Rubino’s post was made the day after a sixth grade student, from a different school, drowned at the beach while on a field trip.  According to the New York Post, Rubino posted:  “After today, I am thinking the beach sounds like a wonderful idea for my 5th graders! I HATE THEIR GUTS!”  As reported by the Huffington Post, Rubino also posted that her students “deserved to drown”, and, to make matters worse, when asked a few minutes later by a “friend” on Facebook, "Oh you would let little Kwame float away!" Rubino responded with: "Yes, I would [sic] not throw a life jacket in for a million!!"  According to the New York Post, Rubino’s post was reported to the principal by a fellow teacher who was one of eleven school staff members who were “friends” on Facebook with Rubino.  A disciplinary hearing officer found her guilty of "misconduct, neglect of duty, and conduct unbecoming her profession." She subsequently appealed to the N.Y. Supreme Court, which overturned the decision.

Although the court described Rubino's posts as "repulsive," it determined that the termination was too stiff a penalty, in light of all circumstances, which made the termination “shocking to one’s sense of fairness.” The court specifically noted that Rubino had an unblemished record before this incident, she posted the content outside of school and after school hours, and there was no evidence it affected her ability to teach.  Further, according to the website “Internet Cases”, the court stated:

"[E]ven though petitioner should have known that her postings could become public more easily than if she had uttered them during a telephone call or over dinner, given the illusion that Facebook postings reach only Facebook friends and the fleeting nature of social media, her expectation that only her friends, all of whom are adults, would see the postings is not only apparent, but reasonable."

In overturning the school’s decision, it seems the court is saying that, being ignorant of the potential of Facebook posts reaching a broad audience, is a legally sufficient means to establish a reasonable expectation of privacy, a concept other courts have not supported.  The battle is not over, as the Huffington Post reports that the cities Law Department spokeswoman, Connie Pankratz, stated they intend to fight the ruling.

HR Practice Pointer: What is the NLRB?

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Published on Friday, 09 March 2012 20:38

The National Labor Relations Board (NLRB) is an “independent federal agency vested with the power to safeguard employees' rights to organize and to determine whether to have unions as their bargaining representative.” Pursuant to the NLRB, employers may not:

• Prohibit employees from discussing a union during non-work time, or from distributing union literature
  during non-work time in non-work areas, such as parking lots or break rooms;
• Question employees about their union support or activities in a manner that discourages them from engaging in that activity;
• Fire, demote, transfer, reduce hours or take other adverse action against employees who join or support a union or act with co-workers for mutual aid and protection, or who refuse to engage in such activity;
• Threaten to close their workplace if employees form or join a union;
• Promise or grant promotions, pay raises, or other benefits to discourage or encourage union support;
• Prohibit employees from wearing union hats, buttons, t-shirts, and pins in the workplace except under special circumstances;
• Spy on or videotape peaceful union activities and gatherings.

In addition, pursuant to the NLRB, unions may not:

• Threaten employees with job loss if they don't support the union;
• Refuse to process grievances of employees who criticize union officials or do not join the union;
• Act in a discriminatory way when making job referrals from a hiring hall;
• Cause or attempt to cause an employer to discriminate against employees because of their union-related activity;
• Take other adverse action against employees who do not support the union. For more information on the NRLA, go to www.nlrb.gov.

Google and GO-Biz Offering Small Businesses Free Websites

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Published on Friday, 09 March 2012 16:39

“California Get Your Business Online” website, a partnership between GO-Biz and Google, was recently launched.  The program offers California small businesses free, customizable websites, along with online training, tools and resources to find new customers and grow their businesses. To sign up for the free website, small businesses should go to the California Get Your Business Online website, where they will be able to create a URL and choose a website template they can customize.  In addition to the online forum for small businesses, Google will host four free training seminars throughout California, to help business owners to teach them how to build their website, secure the domain name, connect with customers, and even venture into micro targeted advertising.  These seminars are currently scheduled to be held March 12 and 13 at Siren Studios in West Hollywood, March 14in Irvine, March 15 in Bakersfield and March 16 in Sacramento.  GO-Biz will participate in some of training seminars to help connect small business owners directly with web professionals in person, provide instruction on how to build a website and how to grow and promote their business online.  "There is a perception that getting online is hard, that it's expensive and time consuming," said Scott Levitan, Google's director of small business engagement, in a statement. "As a company with roots in California, we want to make it fast, easy and free for any business in the state to get online." According to Google, 97% of Americans turn to the Web for local products and services, but only 38% of small businesses in California are online.  Read more.

$235,835 Settlement for Unpaid Wages Reached Between California Labor Commissioner and San Francisco Restaurant

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Published on Friday, 09 March 2012 16:02

In October 2011, a worker filed a wage claim against Big Lantern Restaurant in San Francisco, with the Department of Industrial Relations’ (DIR) Division of Labor Standards Enforcement also known as the Labor Commissioner’s Office..  In December 2011 the DIR issued citations for unpaid minimum wage and overtime violations and conducted a payroll audit which yielded evidence of unpaid wages involving 14 workers. 

Less than six months later, Labor Commissioner Julie A. Su, reached a $235,835 settlement with Big Lantern Restaurant, which stipulates that the restaurant pay each of the 14 workers the amount of wages owed to them, ranging from $457 to $38,880 each. An additional $5,300 covers penalties owed for the violations.  “Any employer who fails to pay wages for all hours worked should know that we will hold their feet to the fire,” said Labor Commissioner Julie A. Su. “This case demonstrates the power of one worker who stepped forward to file a wage claim, which brought the violations to our attention.  With this settlement, we also say to law-abiding employers, we are committed to ensuring that everyone plays by the same rules you do.”

The settlement also signals the restaurant’s acknowledgement of their legal obligations going forward, by agreeing to maintain accurate records on a daily basis of hours worked and to provide employees accurate wage statements as required by law. The settlement was the result of collaboration between State and local government as well as the Asian Law Caucus and Chinese Progressive Association.  Su added, “Often, workers feel that if they speak out, they will lose their jobs.  These organizations are critical in making sure workers know their rights and have a place to turn.  We are very appreciative of their help.”

California law requires that an employer pay overtime to any employee who works more than 8 hours in a day or 40 hours in a work week.  When an employee works more than 8 hours in a day, or beyond 6 consecutive days, he or she is entitled to one-and-a-half times their regular rate of pay.  An employee is due double their amount of regular pay when he or she works beyond 8 hours on the 7th consecutive working day, or if he or she works beyond 12 hours in one workday.  Read more.

Labor Commissioner Seeks Over $2 Million for Multiple Wage and Hour Violations

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Published on Wednesday, 07 March 2012 16:55

California Labor Commissioner Julie A. Su filed two separate lawsuits against three Los Angeles carwash businesses, Rosecrans King Car Wash, Wilshire Car Wash and Vermont Auto Spa, in Los Angeles Superior Court.  The lawsuits seek unpaid wages, penalties and damages totaling in excess of $2,047,464,  for alleged failure to provide minimum wage and overtime to employees, among other alleged violations, following the heels of an investigation conducted by  the California Department of Industrial Relations’ (DIR) Division of Labor Standards Enforcement (Labor Commissioner’s Office).  

The complaint filed against Rosecrans King Car Wash, alleged that the company routinely and systematically failed to pay workers all wages earned. Evidence proffered will allegedly show that the employer did not pay workers for all hours worked, resulting in workers not being paid proper minimum wage and overtime, for which the Labor Commissioner seeks $1,698,732 in minimum/overtime wages and penalties as well as attorney fees.  “Wage theft is a serious problem that harms workers and employers who follow the laws as well as the state economy. As this case shows, we will hold employers accountable to the full extent of the law,” said DIR Director Christine Baker.   

The second complaint is filed against B.B.L Investment Corporation, d.b.a. Wilshire Car Wash, and V5 Car Wash LLC, d.b.a. Vermont Auto Spa, for alleged record keeping violations and failure to issue itemized wage deduction statements.  “Our investigations found that employers knowingly and willfully failed to properly record accurate time records for each worker and failed to provide them with itemized wage deduction statements with their pay.  By not providing an itemized statement, workers had no way to verify if the pay they received covered all hours worked. This routine practice by the employers is nothing less than an act of wage theft,” stated Labor Commissioner Julie A. Su. This lawsuit seeks $348,732 in minimum wages, overtime, and penalties for meal and rest period violations as well as attorney fees. 

Of significance, as pointed out by the Labor Commissioner, is that B.B.L. Investment Corporation d.b.a. Wilshire Car Wash allegedly closed down only to open another car wash under a new name, V5 Car Wash LLC, d.b.a. Vermont Auto Spa, allegedly using the same facility and workforce and providing basically the same services.  The complaint alleges that both entities were acting at all times within the course and scope of an employment partnership or joint venture which, under California law, allegedly makes V5 Car Wash the legal successor to B.B.L. Investment Corporation.  “The law is intended to address the problem of shell games, where employers caught violating the law simply close one entity down and open a new one under a different name,” said Su.  “When this happens, both the original employer and the successor entity are responsible for making sure workers are paid.”  Read more.

HCS Medical Staffing Ordered to Pay $148,000 for Pregnancy Discrimination by Owner

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Published on Monday, 05 March 2012 20:21

A federal judge has ordered a Milwaukee medical staffing company to pay $148,000 to settle a pregnancy discrimination case filed by the U.S. Equal Employment Opportunity Commission (EEOC).  The EEOC’s suit charged that owner of HCS Medical Staffing, Inc., with violating Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act, when he allegedly discriminated against Roxy Leger, the company’s bookkeeper, by allegedly making offensive comments about her pregnancy and firing her because she needed to take maternity leave following the birth of her son.  The U.S. District Court for the Eastern District of Wisconsin entered a default judgment against HCS, when HCS refused to follow a court order to obtain an attorney, and ordered HCS to pay Roxy Leger back pay plus pre-judgment interest in the sum of $48,340; compensatory damages in the sum of $50,000; and punitive damages amounting to $50,000; totaling $148,340.  Judge J.P. Stadtmueller found that the “circumstances leading up to HCS's discriminatory termination of Leger were inherently humiliating and caused Leger substantial emotional distress.  The circumstances surrounding Leger's notification of termination were equally degrading.”  In particular the judge found that HCS's owner, Charles Sisson, referred to Leger's pregnancy as a joke; insisted that maternity leave should last no more than a couple of days; suggested that Leger's pre-natal appointments were a ruse for additional time off or for money; and gave Leger an offensive graphic diagram of a machine which would allegedly allow Leger to return from her maternity leave sooner.  Additionally, the judge found that with no prior warning or discipline, and while Leger was still in the hospital recovering from a Caesarean section, HCS terminated her employment and health insurance. “The conduct at issue in this case was deplorable,” said EEOC Regional Attorney John Hendrickson.  “Pregnancy discrimination is sex discrimination. It is flatly prohibited by law. Working to stop it remains a high priority for the EEOC.”  Read more.

Arbitration Agreement Unenforceable, in Part, Because Employee Not Provided Arbitration Rules

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Published on Monday, 05 March 2012 06:56

In a recent case (Mayers v. Volt Management) a California appellate court held an employment related arbitration agreement was unenforceable, in part because the employer did not provide the employee with the abritration rules referred to in the agreement. The case involved Stephen Michael Mayers, who filed a lawsuit against his former employer, Volt Management Corp./Volt Information Sciences, Inc. (Volt), alleging several claims under the California Fair Employment and Housing Act (FEHA). Volt moved to compel arbitration based on a signed arbitration agreement in which Mayers agreed to submit employment related claims to final and binding arbitration. The trial court denied the motion, and Volt appealed to the California Court of Appeal, Fourth District, which affirmed holding that the arbitration agreement was unenforceable.

It was undisputed that Volt presented Mayers with the arbitration agreement on a take it or leave it basis; that Mayers was in the weaker bargaining position; and, that Mayers could not negotiate the terms of the arbitration agreement. The court noted that the Mayers was aware of the general provisions of the arbitration agreement, and that case law has established that arbitration itself is a fairly common means of dispute resolution and would not be beyond the reasonable expectation of the weaker party. However, the court found that even though the arbitration agreement required Mayers to submit employment related claims to arbitration pursuant to the “applicable rules of the American Arbitration Association in the state”(AAA) Mayers was not provided with a copy of the controlling AAA rules nor advised of how he could find or review them. Further, the arbitration agreement failed to identify which set of rules promulgated by the AAA would apply. Thus, the arbitration agreement subjected Mayers to unreasonable surprise.

Further, due to the claim being filed under FEHA, the court found that the “prevailing party attorney fees” provision which stated that the “arbitrator shall be entitled to award reasonable attorney’s fees and costs to the prevailing party,” exposed plaintiff to a greater risk of being liable to defendant for attorney fees than he would have been had he pursued his FEHA claims in court. Pursuant to the FEHA, an award of attorney’s fees against a plaintiff is limited to instances where the claims are found to be frivolous, unreasonable, without foundation, or brought in bad faith. In this case, the arbitration agreement did not limit Volt’s right to recover attorney fees as required under FEHA. Read More.

Employers Must Implement Workplace Policies and Procedures to Prevent Sexual Harassment in the Workplace

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Published on Monday, 05 March 2012 06:10

The recent $168 million dollar sexual harassment verdict highlights how important it is for employers to ensure that harassment is not occurring in the workplace. The following includes a brief overview of the basics on sexual harassment and a reminder that employers must implement appropriate workplace anti-sexual harassment policies and procedures. Pursuant to the Fair Employment and Housing Act  (FEHA) harassment because of sex includes sexual harassment, gender harassment, and harassment based on pregnancy, childbirth, or related medical conditions. The Fair Employment and Housing Commission (FEHC) regulations define sexual harassment as unwanted sexual advances, or visual, verbal or physical conduct of a sexual nature. This definition includes many forms of offensive behavior and includes gender-based harassment of a person of the same sex as the harasser. The following is a partial list of violations:

Unwanted sexual advances

Offering employment benefits in exchange for sexual favors

Making  or threatening reprisals after a negative response to sexual advances

Visualb conduct: leering, making sexual gestures, displaying of suggestive objects or pictures, cartoon or posters

Verbal conduct: making or using derogatory comments, epithets, slurs, and jokes

Verbal sexual advances or propositions

Verbal abuse of a sexual nature, graphic verbal commentaries about an individual's body, sexually degrading words used to describe an  individual, suggestive or obscene letters, notes or invitations

Physical conduct: touching, assault, impeding or blocking movements

EMPLOYER LIABILITY

All employers are prohibited from harassing employees in the workplace. It is important for employers to
understand that if harassment occurs, an employer may be liable even if management was not aware of the harassment. However, an employer might avoid liability if the harasser is a non-management employee, the employer had no knowledge of the harassment, and the employer had implemented an anti-harassment program. Further, if the harasser is a non-management employee, the employer may avoid liability if the employer takes immediate and appropriate corrective action to stop the harassment once the employer learns about it. Employers must recognize they are strictly liable for harassment by their supervisors or agents. The harasser can also be held personally liable for damages. Employers must take all reasonable steps to prevent harassment from occurring. If the employer has fails to take such preventative measures, the employer can be held liable for the harassment. A victim of harassment may be entitled to monetary damages even though no employment opportunity has been denied and there is no actual loss of pay or benefits.

EMPLOYER OBLIGATIONS

All employers have a legal obligation to prevent sexual harassment and must therefore take all reasonable steps to prevent discrimination and harassment from occurring by implementing anti-sexual harassment policies and procedures which include the following:

(1) Post in the workplace an anti-sexual harassment poster made available by the Department of Fair Employment and Housing (DFEH).

(2) Distribute to employees information on sexual harassment. An employer may either distribute a brochure that may be obtained from the DFEH or develop an equivalent anti-harassment policy (distribute as a stand alone policy and or as part of the employee handbook) which must meet the following requirements:  

• The illegality of sexual harassment
• The definition of sexual harassment under state and federal laws
• A description of sexual harassment, utilizing examples
• The internal complaint process of the employer available to the employee
• The legal remedies and complaint process available through the DFEH.
• Directions on how to contact the DFEH.

(3) Advise employees about the protection against retaliation for opposing the practices prohibited by law or for filing a complaint with, or otherwise participating in investigative activities conducted by, the DFEH.

(4) Employers with 50 or more employees must provide at least two hours of classroom or other effective interactive training and education regarding sexual harassment to all supervisory employees, and to all new supervisory employees within six months of assuming a supervisory position. Thereafter, covered employers must provide sexual harassment training and education to each supervisory employee once every two years.

A program to eliminate sexual harassment from the workplace is not only required by law, but it is the most practical way to avoid or limit damages if harassment should occur despite preventative efforts.

COMPLAINT PROCEDURE

An employer should take immediate and appropriate action when he/she knows or should have known that
sexual harassment has occurred. An employer must take effective action to stop any further harassment and to minimize any effects of the harassment. To those ends, the employer's policy should include provisions to:

(1) Fully inform the employee of his/her rights.

(2) Fully and effectively investigate any complaint of sexual harassment. The investigation must be immediate,
thorough, objective and complete. Anyone with information on the matter should be interviewed. A determination must be made and the results communicated to the complainant, to the alleged harasser, and, as appropriate, to all others directly concerned.

(3) If harassment is proven, there must be prompt and effective remedial action.  First, appropriate action must be taken against the harasser and communicated to the complainant. Second, steps must be taken to prevent further harassment. Third, appropriate action must be taken to remedy the complainant's loss, if any.

TRAINING OF ALL INDIVIDUALS IN THE WORKPLACE

All employees must receive from their employers a copy of the DFEH pamphlet "Sexual Harassment is Forbidden by Law" (DFEH-185) or an equivalent document. All employees should be made aware of the seriousness of violations of the sexual harassment policy. Supervisory personnel should be educated about their specific responsibilities. Rank and file employees should be cautioned against using peer pressure to discourage harassment victims from using the internal grievance procedure. As indicated above, employers with 50 or more employees must provide at least two hours of classroom or other effective interactive training and education regarding sexual harassment to all supervisory employees and to all new supervisory employees within six months of assuming a supervisory position. Thereafter, covered employers must provide sexual harassment training and education to each supervisory employee once
every two years.

TYPICAL SEXUAL HARASSMENT CASES

The three most common types of sexual harassment complaints filed with the DFEH are:

(1) An  employee is fired or denied a job or an employment benefit because he/she  refused to grant sexual favors or because he/she complained about  harassment. Retaliation for complaining about harassment is illegal, even  if it cannot be demonstrated that the harassment actually occurred. 

(2) An employee quits because he/she can no longer tolerate an offensive work environment, referred to as a "constructive discharge" harassment case. If it is proven that a reasonable person, under like conditions, would resign to escape the harassment, the employer may be held responsible for the resignation as if the employee had been discharged.

(3) An employee is exposed to an offensive work environment. Exposure to various  kinds of behavior or to unwanted sexual advances alone may constitute harassment.

The above information was obtained from the DEFH’s website at www.dfeh.ca.gov.

A Stunning $168 Million Dollar Verdict in Sexual Harassment Case

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Published on Friday, 02 March 2012 18:03

A federal jury in Sacramento, California, has returned a stunning $168 million dollar verdict for alleged sexual harassment. It may be the largest verdict for a single plaintiff claiming sexual harassment. The case involves Ani Chopourian who worked at Mercy General Hospital as a surgical assistant. She alleged that she made multiple complaints of sexual harassment against surgeons that she worked with and of substandard patient care, but the hospital allegedly ignored her complaints. As reported by the Los Angeles Times, “there were at least 18, she recalled, many having to do with the bullying surgeon who once stabbed her with a needle and broke the ribs of an anesthetized heart patient in a fit of rage. Another surgeon, she said, would greet her each morning with "I'm horny" and slap her bottom. Yet another called her "stupid chick" in the operating room and made disparaging remarks about her Armenian heritage, asking if she had joined Al Qaeda.” However, managers from Mercy General Hospital testified that it was Chopourian who was guilty of professional misconduct, which was why they terminated her and tried to deny her unemployment benefits.

Chopourian worked at four other hospitals in New England and California before joining the prestigious cardiovascular surgical team at Mercy General Hospital in August 2006. Two years later, she was terminated, allegedly after filing one last complaint about patient care and the doctors' offensive behavior. The record judgment — $125 million in punitive damages and $42.7 million for lost wages and mental anguish — could be reduced on appeal or via a post-trial settlement. Chopourian commented that "Cardiac surgery brings in the most money for any hospital facility, which is why they are willing to turn a blind eye to illegal and inappropriate behavior…We had four very strong witnesses who were frightened to speak out but did so because they felt it was important that someone put a stop to this." Chopourian’s attorney observed that the jury was “just shocked by the whole workplace environment” which was revealed through the plaintiff’s case that included testimony from numerous witnesses who “depicted a culture of vulgarity and arrogance they said humiliated female employees and put patients at risk.” Mercy General Hospital President Denny Powell stated that they would appeal the decision, and also commented that, “We are disappointed by the jury's decision…We are committed to providing a safe working environment, free from sexual harassment and inappropriate behavior. We stand by the actions we took in ending our relationship with this former employee and we will appeal this decision.” Read More

Employers Must Prevent Harassment of Employees by Customers

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Published on Friday, 02 March 2012 00:44

A recent lawsuit filed by the Equal Employment Opportunity Commission (EEOC) highlights the fact that employers are obligated to prevent the harassment of employees by anyone in the workplace including customers, clients and outside vendors. The case involves a Hurricane Grill and Wings restaurant franchise in Royal Palm Beach, Florida. The restaurant will pay $200,000 to settle a class sexual harassment lawsuit filed by the EEOC, in which the agency charged that the company violated federal law when it allegedly allowed a class of female servers to be sexually harassed by a customer, a Palm Beach County sheriff’s deputy. In addition, according to the EEOC, the company terminated a female server after management learned she had hired a private attorney to assist her in filing an EEOC complaint. The EEOC’s lawsuit alleged that servers were “frequently grabbed on their breasts and buttocks and humiliated by sexual innuendo, as well as direct invitations to join the harasser and his wife in ménage a trois.” As part of the settlement, the company has agreed to amend and redistribute its sexual harassment policy; offer training to all employees, including management; post a notice regarding its continued effort to ensure that the Royal Palm Beach location is free of sexual harassment and its intent not to retaliate further; monitoring and reporting to the EEOC; and a written request for the offending patron to stay away from the facility. The EEOC’s Miami District Director Malcolm Medley commented that, “The Commission remains poised to enforce Title VII and it will actively pursue flagrant violations such as this one. Employees should feel safe at work and employers must protect their employees from a sexually hostile work environment.” Read More.

EEOC Issues Revised Guides Related to Employment of Disabled Veterans

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Published on Wednesday, 29 February 2012 06:32

The U.S. Equal Employment Opportunity Commission (EEOC) has issued two revised guides addressing veterans with disabilities and the Americans with Disabilities Act (ADA). The revised guides reflect changes to the law stemming from the ADA Amendments Act of 2008, which make it easier for veterans with a wide range of impairments – including those that are often not well understood -- such as traumatic brain injuries (TBI) and post-traumatic stress disorder (PTSD), to obtain needed reasonable accommodations that will enable them to work successfully. The revised documents are also an outgrowth of a public meeting the EEOC held in November of  2011 entitled “Overcoming Barriers to the Employment of Veterans with Disabilities,” in which the EEOC heard testimony from a panel of experts on the unique needs of veterans with disabilities transitioning to civilian employment. The particular challenges faced by veterans with disabilities in obtaining employment has been the subject of increased attention in recent months, as large numbers of veterans return from service in Iraq and Afghanistan.

The Guide for Employers explains how protections for veterans with service-connected disabilities differ under the Americans with Disabilities Act (ADA) and the Uniformed Services Employment and Reemployment Rights Act (USERRA), and how employers can prevent disability-based discrimination and provide reasonable accommodations.

The Guide for Wounded Veterans answers questions that veterans with service-related disabilities may have about the protections they are entitled to when they seek to return to their former jobs or look for civilian jobs. The publication also explains the kinds of accommodations that may be necessary to help veterans with disabilities obtain and successfully maintain employment.

EEOC Chair Jacqueline A. Berrien commented that, “We want veterans with disabilities to know that the EEOC has resources to assist them as they transition to, or move within the civilian workforce…The release of these publications demonstrates our commitment to ensuring that veterans with disabilities receive the full protection of the laws we enforce, and that employers understand how to comply with those laws.” Read More.

California Labor Commissioner Launches Criminal Investigation Unit

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Published on Tuesday, 28 February 2012 19:54

The Department of Industrial Relations’ (DIR) Division of Labor Standards Enforcement (DLSE, also referred to as the Labor Commissioner’s Office) has created a Criminal Investigation Unit (CIU), consisting entirely of sworn peace officers, who report directly to the Labor Commissioner. The CIU was created for the purpose of investigating employers who perpetrate wage theft and other criminal activities against workers. The CIU's functions will include investigations and arrests for labor code violations, filing of criminal charges and serving subpoenas and inspection warrants.  DIR Director Christine Baker commented, “Employers who violate labor laws at the expense of their workers should know that we are now applying a new enforcement tool to address flagrant mistreatment of workers.”

Members of the unit are currently providing training to DLSE staff in district offices across the state, to assist them in identifying cases which should be referred to the CIU.  Cases handled by the Criminal Investigation Unit include workers’ compensation violations, theft of labor (which can be a felony or misdemeanor), payment of wages with bounced checks or other insufficient funds, unlicensed farm labor contractors and garment manufacturers, kickbacks on public works projects, violations involving minors on the job, and impeding of Labor Commissioner investigations.

“As a law enforcement agency, we will use all tools available to us to bring about compliance.   The Labor Code’s criminal provisions acknowledge that wage theft is a threat not just to those most directly affected, but to public safety and the health of our economy,” said California Labor Commissioner Julie A. Su.  “This is a vital tool in our efforts to step up enforcement to protect California workers and employers struggling to make an honest living.” added Su.  Read more.

$400,000 Racial Harassment Settlement Agreed to by Ready Mix USA and EEOC

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Published on Friday, 24 February 2012 20:45

Ready Mix USA, a major cement and concrete products company, will pay $400,000 and furnish other relief to settle a lawsuit alleging violations under Title VII, for racial harassment filed by the U.S. Equal Employment Opportunity Commission (EEOC).  The EEOC alleged that a class of African American males was subjected to a  racially hostile work environment at Ready Mix’s Montgomery-area facilities, where a noose was allegedly displayed,  derogatory racial language,  including references to the Ku Klux Klan, was allegedly used by a direct supervisor and  manager and that race-based name calling allegedly occurred. Ready Mix denies that racial harassment occurred at its worksites.  The injunctive relief enjoins Ready Mix from engaging in further racial harassment or retaliation, requires Ready Mix to conduct EEO training, modify its policies to ensure that racial harassment is prohibited, establish a complaint system, and report certain complaints of harassment or retaliation to the EEOC for monitoring.  “Employees have a right to expect that harassment based on race will be kept out of the workplace,” said Delner Franklin-Thomas, district director for the EEOC Birmingham District. “This case involved not only racist language, but a noose, a threatening symbol of cruelty that has no place in any American workplace.”  In Fiscal Year 2011, the EEOC received 35,395 charges alleging race-based discrimination and harassment. Read more.

Tyson Foods Agrees to Pay $35,000 to Applicant Denied Employment Because of Epilepsy

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Published on Thursday, 23 February 2012 19:40

Tyson Foods, Inc., one of the world’s largest processors of chicken, beef and pork, will pay $35,000 and furnish other relief to settle a disability discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC).  The EEOC lawsuit alleged that Tyson violated the Americans with Disabilities Act (ADA), when it failed to hire Mark White for an open maintenance job because he had epilepsy. White’s epilepsy had been controlled by medication for twelve years during which he had been previously employed on two occasions by Tyson. When White reapplied for the maintenance job, a new medical assessment procedure had been implemented by Tyson and allegedly when White failed the medical evaluation specifically required for applicants with epilepsy, Tyson refused to hire him. However, the doctor who performed the evaluation for Tyson allegedly did not examine White, and relied soley on outdated medical research. Another significant fact was that Tyson had grandfathered in several other employees with epilepsy.  In addition to the monetary settlement, Tyson agreed to injunctive relief , including  agreeing to institute a new assessment procedure for similar cases where an applicant who fails the medical assessment, may obtain a second and third opinion. “The potentially three-step medical assessment process agreed to by the parties is an extraordinary step in the right direction in terms of making sure disabled employees are given a full and fair opportunity to compete in the workplace,” said EEOC attorney Melvin Kennedy. Read more.

DOL Extends Comment Period on Proposed Rule to Provide Minimum Wage and Overtime Protections for In-Home Care Workers

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Published on Wednesday, 22 February 2012 04:42

The U.S. Department of Labor's (DOL) Wage and Hour Division has extended the comment period for its proposed rule to provide minimum wage and overtime protections for in-home care workers. The comment period will be extended for 14 days. Currently, workers classified as "companions" are exempt from the Fair Labor Standards Act's minimum wage and overtime pay requirements. However, according to the DOL, when established in 1974, the exemptions were meant to apply to casual babysitters and companions for the elderly— not to workers who choose in-home care service as a vocation. If the proposal is enacted, it would grant the exemption to households where the services are provided but not third-party staffing agencies. It would also clarify that “companionship services are those directly related to the fellowship and protection of a care recipient.”

The DOL first announced its proposal to revise the rules concerning in-home care workers in its regulatory agenda published on April 28, 2010. The proposed rule “would expand minimum wage and overtime protections by ensuring that all home care workers employed by third parties such as staffing agencies receive these protections. It also would clarify that individuals performing skilled in-home care work are  entitled to minimum wage and overtime pay. However, families that engage individuals for true companionship or fellowship activities, such as visiting with friends or pursuing hobbies, still would be considered ‘companions’ and not be required to meet the act's labor standards provisions.” Read More.

EEOC Alleges Law Firm Committed Pregnancy Discrimination

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Published on Monday, 20 February 2012 18:52

According to the Equal Employment Opportunity Commission (EEOC), a Washington, D.C. law firm violated federal law when it refused to hire a job applicant allegedly because she was pregnant. The EEOC has charged that James E. Brown & Associates, PLLC rescinded its offer of employment to Zorayda J. Moreira-Smith after learning she was pregnant. The EEOC alleges that Moreira-Smith interviewed for an associate attorney position at Brown & Associates around November 2010 and received a job offer in January 2011.  However, before Moreira-Smith accepted the job offer, on or around January 6, 2011, she e-mailed the Brown & Associates’ business manager to inquire about the company’s maternity leave policy, among other things.  In the same e-mail, Moreira-Smith informed the business manager that she was six months’ pregnant.  Later that same day, Brown & Associates apparently e-mailed Moreira-Smith and rescinded its job offer; the law firm continued to advertise for the same position and, within three months, hired two associates who were not pregnant.

The EEOC’s lawsuit seeks back pay, compensatory damages and punitive damages for Moreira-Smith, as well as injunctive and other non-monetary relief.  Lynette A. Barnes, regional attorney for the EEOC’s Charlotte District Office, commented on the lawsuit, stating that, “Working women who choose to have children cannot be penalized or treated differently from other employees simply because they are pregnant…Employers must remember that refusing to hire a woman because she is pregnant violates federal law, and the EEOC will enforce that law.”  Read More.

Unpaid Wages Claim Settles for $316,000 with San Francisco Restaurants and DLSE

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Published on Friday, 17 February 2012 14:17

California Labor Commissioner Julie A. Su reached a $316,000 settlement in eight wage cases alleging unpaid minimum wage and overtime wages at Pho Clement and Pho Clement 2 restaurants in San Francisco.  An investigation was initiated in June 2011, originating from a Cal/OSHA referral, which led to the charges in the eight wage cases.  The settlement, which was negotiated with the aide The Department of Industrial Relations’ (DIR) Division of Labor Standards Enforcement, also known as the Labor Commissioner’s Office,  requires payments of unpaid wages and overtime, ranging from $17,432 up to $85,114, to each of the eight workers.   This settlement was achieved through the collaborative effort between workers, legal and community advocates and the state . “This case is an example of the effective partnerships we can have with community based organizations who share the goal of strong enforcement of labor laws,” said Labor Commissioner Julie Su. “Regardless of the industry, employees should never feel like they have to fight to receive the full wages they are owed. In this instance, employees successfully stood up for wages taken by their employer that they were owed,” said DIR Director Christine Baker.  Under California law employers must pay overtime to any employee who works more than 8 hours in a day or 40 hours in a work-week.  Should an employee work more than 8 hours in a day, or beyond 6 consecutive days, he or she is entitled to one-and-a-half times their regular rate of pay, and is due double their amount of regular pay when he or she works beyond 8 hours on the 7th consecutive working day, or if he or she works beyond 12 hours in one workday.  “Refusal to pay workers for all hours worked has no place in California. Overtime laws are on the books for a reason and the state will protect both employees and the honest employers who play by the rules,” emphasized Commissioner Su.  Read more.

Experts Advise EEOC Pregnancy Discrimination is Widespread

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Published on Thursday, 16 February 2012 16:52

A group of experts have advised the U.S. Equal Employment Opportunity Commission (EEOC) at a public meeting, that in their opinion pregnancy discrimination is widespread. The meeting follows up on EEOC meetings in 2007, when the Commission issued its groundbreaking “Enforcement Guidance on Unlawful Disparate Treatment of Workers with Caregiving Responsibilities” and in 2009 when the Commission issued “Employer Best Practices for Workers with Caregiving Responsibilities.” According to EEOC Chair Jacqueline A. Berrien, “Pregnancy discrimination persists in the 21st century workplace, unnecessarily depriving women of the means to support their families…Similarly, caregivers – both men and women – too often face unequal treatment on the job. The EEOC is committed to ensuring that job applicants and employees are not subjected to unlawful discrimination on account of pregnancy or because of their efforts to balance work and family responsibilities.”

Although the Pregnancy Discrimination Act was passed more than 30 years ago, women still often face demotions, prejudice, and even job loss due to pregnancies. Women currently make up 47% of the nation’s workforce, according to Bureau of Labor Statistics and are the primary, or co-primary, breadwinners in nearly two-thirds of families.  Commissioner Stuart J. Ishimaru commented that  “Discrimination against pregnant women and caregivers continues to be an issue of vital concern for the Commission…Employers should not make decisions based on stereotypes and presumptions about the competence and commitment of these workers. EEOC will vigorously enforce the anti-discrimination laws as they apply to pregnant women and caregivers.”

Panelists Sharon Terman and Joan Williams provided examples of the types of discrimination pregnant workers and workers with caregiving responsibilities which included harassment, hostility, decreased hours, forced unpaid leave,  or job loss experience. Examples were also provided of men being penalized by their employers for requesting to use leave to which they were entitled for caregiving responsibilities, on the basis that such caregiving is “women’s work.”

A number of witnesses at the meeting called for stepped-up enforcement and greater guidance on the subject, as well as closer coordination between the EEOC, which enforces laws prohibiting discrimination on the basis of sex, pregnancy, and disability.  Read More.

Cal/OSHA Issues Hazard Alert and Launches Confined Spaces Emphasis Program

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Published on Thursday, 16 February 2012 16:41

The California Department of Industrial Relations’ Division of Occupational Safety and Health (Cal/OSHA) launched a statewide Confined Space Special Emphasis Initiative in an effort to prevent deaths and injuries of workers who work in confined space.  The initiative follows investigations of seven workers’ deaths due to working in confined spaces, which occurred in various industries and situations, including two young brothers in Kern County overcome by toxic gases in a recycling drainage tunnel. To help employers and employees identify confined space situations and take immediate steps to protect the workers Cal/OSHA issued a Confined Space Hazard Alert.  “Employers in California are responsible for identifying and mitigating risks in the workplace,” said Department of Industrial Relations Director Christine Baker. “This initiative and the Confined Space Hazard Alert provide specific information so that employers can identify when confined space hazards exist and special precautions must be taken.”  Common types of confined spaces include tanks, sewers, storage bins, drain tunnels, and vaults.  Although employers tend to believe these spaces are confined to certain industries, such confined spaces are also found in non-industrial workplaces such as health care, education, retail and services.  Cal/OSHA begins its yearlong campaign on confined space hazards in collaboration with partners in labor, industry, public safety agencies and other safety and health groups. The campaign stresses the importance of the requirement that businesses have plans in place to identify confined space at their workplaces, notify and train employees, and ensure that on-site rescue plans are in place.  Read more.

EEOC Settles Lawsuit Alleging Sexual Harassment of Female Employee by Top Manager

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Published on Thursday, 16 February 2012 14:36

Hobson Air Conditioning, Inc. has settled a sexual harassment and constructive discharge lawsuit brought by the U.S. Equal Employment Opportunity Commission (EEOC), agreeing to pay the discrimination victim $37,500.  The EEOC’s lawsuit, charged that former installation coordinator Misty Kratky, the only female employee at Hobson’s Kennedale facility, was allegedly subjected to sexually vulgar comments and touches, from her manager, including, but not limited to, repeatedly asking Kratky to show him her breasts, making crude sexual demands on her and even exposing himself to her on multiple occasions. Further it was alleged that Kratky reported the harassment to higher management, but nothing was done to stop the harassing conduct or to impose any disciplinary action on the harasser. As a result of the company’s failure to conduct an investigation of her report and the continuation of the unwanted conduct, Kratky had no choice but to quit, alleged the EEOC.  The settlement also included a the five-year consent decree, which, among other things, includes the requirement that the company report to the EEOC any complaints of sexual harassment for the next five years and place in the personnel file of the alleged harasser a notice reflecting the sexual harassment complaint.  EEOC Supervisory Trial Attorney Toby Wosk Costas said, “As the only female employee in her office, Ms. Kratky was targeted for this crude and disturbing behavior on the work premises. Women in traditionally male-dominated fields can sometimes face an uphill battle when it comes to reporting and remedying unwelcome sexual conduct on the job, and the EEOC is here to help.”  Read more.

EEOC Issues Guidance on the ADA and High School Diploma Requirements

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Published on Wednesday, 15 February 2012 17:51

On November 17, 2011, the Equal Employment Opportunity Commission (EEOC) issued an informal discussion letter about how the Americans with Disabilities Act (ADA) applies to qualification standards for jobs. Since that time, there has been significant inquiry from the public about the meaning and scope of the letter.  In response, the EEOC has released additional guidance in the form of questions and answers in an effort to clarify the issue, including the following: 

Question:  Have you just made it illegal for businesses to require a high school diploma?

Answer:  No.  Nothing in the letter prohibits employers from adopting a requirement that a job applicant have a high school diploma.  However, an employer may have to allow someone who says that a disability has prevented him from obtaining a high school diploma to demonstrate qualification for the job in some other way.

Question:  Are you telling people that they are protected by the ADA if they decide not to graduate from high school?  Wouldn’t this create a disincentive to finish high school?

Answer:   No.  The ADA only protects someone whose disability makes it impossible for him or her to get a diploma.  It would not protect someone who simply decided not to get a high school diploma.

Employers may continue to have high school diploma requirements and, in the vast majority of cases, they will not have to make exceptions to them.  However, if an applicant tells an employer she cannot meet the requirement because of a disability, an employer may have to allow her to demonstrate the ability to do the job in some other way.  This may include considering work experience in the same or similar jobs, or allowing her to demonstrate performance of the job’s essential functions.  The employer can require the applicant to demonstrate, perhaps through appropriate documentation, that she has a disability and that the disability actually prevents her from meeting the high school diploma requirement.

Question:  So, does that mean the employer must hire the person with a disability?

Answer: No.  Even if the applicant with a disability can demonstrate the ability to do the job through some means other than possession of a high school diploma, the employer may still choose the best qualified person for the job.  The employer does not have to prefer the applicant with a disability over someone who can perform the job better. Read More.

Employer Will Pay $323,116 for Allegedly Terminating 73 Employees for Engaging in Protected Activity

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Published on Tuesday, 14 February 2012 04:30

In a settlement with the National Labor Relations Board (NLRB) Atlantic Scaffolding, a Texas scaffolding company, has agreed to pay $323,116 in back pay and interest to 73 former employees who were allegedly discharged in violation of federal labor law. The agreement also requires the company to expunge its records of the terminations and send written notification of the action to the employees. The settlement follows a Board decision in March 2011 that found the company unlawfully terminated the 73 employees for engaging in protected concerted activity. The Board denied the employer’s motion for reconsideration. The employer then provided records to the Board’s Regional Office so that back pay could be calculated. After extensive review of the company’s payroll records, assessment of the interim earnings of the terminated employees, and consultation with the employer, the Region concluded that $274,916 in back pay was due, with daily compound interest through January 31, 2012 adding 48,200. Read More.

DOL Releases Comprehensive “Soft” Skills Curriculum for Young Workers

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Published on Tuesday, 14 February 2012 04:06

The U.S. Department of Labor's (DOL) Office of Disability Employment Policy (ODEP) has released of "Skills to Pay the Bills: Mastering Soft Skills for Workplace Success," a collection of career development exercises designed to sharpen the communication and other "soft" skills of young workers, including those with disabilities. ODEP's curriculum, which covers communication, networking, enthusiasm and attitude, teamwork, problem-solving, critical thinking and professionalism, is based on surveys of businesses to determine what they believe are the most important skills for young workers. According to recent surveys, nearly three-quarters of employers indicated high school graduates lacked proficiency in basic skills as punctuality, verbal communication and working productively with others. Businesses across the nation have identified “soft” skills as crucial to the hiring and employment success of all workers.  According to Kathy Martinez, assistant secretary of labor for disability employment policy, "Dressing appropriately, showing up on time and networking with co-workers are all crucial to finding and keeping a job…For many young people these skills are not intuitive. We hope educators, human resource professionals, job clubs and faith-based organizations will use the curriculum to help our youth build the skills to succeed in the workplace." The "Skills to Pay the Bills" is available in English and Spanish, and was field-tested by youth service professionals and students across the country. Read More.

New Website Launched to Help Small Businesses Navigate the New Federal Healthcare Laws

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Published on Monday, 13 February 2012 17:47

A first-of-its-kind business-oriented website, aimed at providing accurate and easy to understand information about the Patient Protection and Affordable Care Act (designed by leading business organizations) has been launched. The website “Health Law Guide for Business,” is tailored specifically for California’s business community and can help business owners navigate all 2,409 pages of the health care law. The website includes information on how a small business can control health care costs and improve the quality of health care. Small businesses lack the purchasing power of larger employers and, on average, pay about 18% more for the same health insurance policy. The website provides information on how to take advantage of the cost saving provisions in the new laws intended to increase the purchasing power of small businesses while improving the quality of healthcare.  The Patient Protection and Affordable Care Act also requires insurance companies to provide important preventive services, at no additional cost, which essentially means employers or their employees will no longer have to pay copayment, co-insurance, or deductible fees in order to receive recommended preventive health services, such as screenings, vaccinations, and counseling. The website provides information on this aspect of the new laws as well as how to start a wellness program for a small business, which not only can prevent illness, but also improve the bottom line of a company through reduced absenteeism and health care costs, which has been proven to increase productivity and profit.  Read More.

FS&K Publishing Releases 11th Edition of California Unemployment, Disability, & Paid Family Leave Insurance Programs

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Published on Saturday, 11 February 2012 06:52

FS&K Publishing is pleased to announce the release of the 11^th Edition of the popular treatise California Unemployment, Disability, & Paid Family Leave Insurance Programs, authored by preeminent expert in the field, David W. O’Brien, Esq., a retired California Unemployment Insurance Administrative Law Judge, and co-authored by attorneys John B, Floyd, Esq., one of the founding partners of Floyd, Skeren & Kelly LLP and a workers’ compensation specialist, and Bernadette M. O’Brien, Esq., managing attorney of Floyd, Skeren & Kelly LLP’s employment law department. The comprehensive treatise, which details California’s Unemployment Insurance Compensation Program, also reviews and analyses two important programs closely related to unemployment insurance: disability insurance and Paid Family Leave. The treatise contains multiple subjects of interest to employers, attorneys, insurance agents, and any other professionals involved with the field of unemployment insurance such as an in depth review of all  grounds (and precedent board decisions) available for establishing misconduct so as to defeat a claim for unemployment insurance including:

• Absenteeism
• Altercations in the Workplace
• Criminal Conduct
• Dishonesty
• Disloyalty
• Insubordination
• Poor Workmanship
• Profanity
• Sexual Harassment
• Tardiness
• Theft
• Uncooperative Behaviour

The treatise also contains an overview of the EDD administrative procedures, helpful tips on navigating the appellate process, information on reserve accounts, the types of benefits available, the significance of base periods, disqualification issues, implementing wage attachments, the implications of voluntary quits and a review of drug testing laws.

This book is a must for any professional involved with the complex matters related to unemployment insurance, disability insurance and Paid Family Leave. For more information, including purchase details, contact Christina Bardelli, at Floyd, Skeren & Kelly, LLP, (818) 206-9222, Extension 212.

DOL Announces Final Rule on H-2B Certification Program

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Published on Saturday, 11 February 2012 06:04

The U.S. Department of Labor's (DOL) Employment and Training Administration and its Wage and Hour Division announced a final rule to improve the H-2B temporary nonagricultural worker program. The rule, to be published in the February 21, 2012 edition of the Federal Register, includes changes to the program intended to ensure that U.S. workers receive greater access to jobs. The H-2B program permits the entry of foreign workers into the United States on a temporary basis when qualified U.S. workers are not available, and the employment of those foreign workers will not adversely affect the wages and working conditions of U.S. workers. The H-2B program is limited by law to a cap of 66,000 visas per year. The DOL had responded to comments received from employers and worker advocates in drafting the final rule which creates a national registry for all H-2B job postings and increases the amount of time during which U.S. workers must be recruited. The rule also requires the rehiring of former employees when available. In addition, H-2B program benefits such as transportation costs and wages will be extended to U.S. workers performing substantially the same work as H-2B workers. Worker protections also will be strengthened by enhanced transparency throughout the employment process. The rule will be effective on April 23. It can be viewed at http://s.dol.gov/MZ. Additional materials, such as fact sheets, are available at http://www.foreignlaborcert.doleta.gov/h-2b.cfm and http://www.dol.gov/whd/immigration/H2BFinalRule/index.htm. Secretary of Labor Hilda L. Solis commented on the final rule, observing that "The H-2B program is designed to help businesses when there is a temporary shortage of U.S. workers…The rule announced today will ensure that the program is used as intended by making these jobs more accessible to U.S. workers and providing stronger protections for every worker." Read More.

HR Practice Pointer: Determining Worker Status- Independent Contractor vs. Employee

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Published on Saturday, 11 February 2012 05:47

It is essential that employers properly classify employees, as the potential liabilities and penalties are significant. This is particularly important in light of the Department of Labor’s recent memorandum of understanding with the State of California, which is intended to “end the misclassification” of  employees as independent contractors.

The state agencies most involved with the determination of independent contractor status are the Employment Development Department (EDD), which deals with employment-related taxes, and the Division of Labor Standards Enforcement (DLSE), which enforces wage and hour laws. There are other agencies, such as the Franchise Tax Board (FTB), Division of Workers’ Compensation (DWC), and the Contractors State Licensing Board (CSLB), that also have requirements concerning independent contractors. Significantly, since different laws may be involved with a particular workplace situation such as a termination of employment, it is possible that the same individual could be considered an employee under one law and an independent contractor under another law.

Although there is no set definition of the term “independent contractor” it is important to note that the DLSE begins with the presumption that the worker is an employee. Labor Code Section 3357.  This is a rebuttable presumption, however, and the determination of whether a worker is an employee or independent contractor depends upon a number of factors, all of which must be taken into account. Therefore, it is necessary to analyze the facts of each service relationship. For most matters before the DLSE, this means applying the "multi-factor" or the "economic realities" test adopted by the California Supreme Court in the case of S. G. Borello & Sons, Inc. v Dept. of Industrial Relations (1989) 48 Cal.3d 341. In applying the economic realities test, the most important factor is whether the person to whom service is rendered (the employer or principal) controls the worker both as to the work done and the manner and means in which it is performed. Additional factors that may be considered depending on the issue involved are:

1. Whether the person performing services is engaged in an occupation or business distinct from that of the alleged employer;

2. Whether or not the work is a part of the regular business of the principal or alleged employer;

3. Whether the principal or the worker supplies the instrumentalities, tools, and the place for the person doing the work;

4. The alleged employee’s investment in the equipment or materials required by his or her task or his or her employment of helpers;

5. Whether the service rendered requires a special skill;

6. The kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the principal or by a specialist without supervision;

7. The alleged employee’s opportunity for profit or loss depending on his or her managerial skill;

8. The length of time for which the services are to be performed;

9. The degree of permanence of the working relationship;

10. The method of payment, whether by time or by the job; and

11. Whether or not the parties believe they are creating an employer-employee relationship may have some bearing on the question, but is not determinative since this is a question of law based on objective tests.

Even in situations where there is an absence of control over work details, an employer-employee relationship will be found if (1) the principal retains pervasive control over the operation as a whole, (2) the worker’s duties are an integral part of the operation, and (3) the nature of the work makes detailed control unnecessary (Yellow Cab Cooperative v. Workers Compensation Appeals Board (1991) 226 Cal.App.3d 1288).

It is important to note that the existence of a written agreement purporting to establish an independent contractor relationship is not determinative of independent contractor status (Borello, Id.at 349), and the fact that a worker is issued a 1099 form rather than a W-2 form is also not determinative with respect to independent contractor status (Toyota Motor Sales v. Superior Court (1990) 220 Cal.App.3d 864, 877). Read More.

DOL and State of California Sign Agreement to Reduce Misclassification of Employees

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Published on Saturday, 11 February 2012 04:49

Nancy J. Leppink, deputy administrator of the U.S. Department of Labor's (DOL) Wage and Hour Division, and California Secretary of Labor Marty Morgenstern have entered into a memorandum of understanding regarding misclassification of employees as independent contractors. According to Ms. Leppink, "This memorandum of understanding helps us send a message: We are standing together with the state of California to end the practice of misclassifying employees…This is an important step toward making sure that the American dream is still available for workers and responsible employers alike." The partnership between the DOL and the State of California is the 12th of its kind for the DOL. Labor Commissioner Su commented on the agreement, stating that "California is proud to enter into this partnership with the U.S. Department of Labor to work together to attack the problems of the underground economy." Employee misclassification continues to be a problem for employers. In 2011, the DOL collected more than $5 million in back wages for minimum wage and overtime violations under the Fair Labor Standards Act (FLSA) as a result of employees being misclassified as independent contractors. According to the DOL, “the misclassification of employees as something else, such as independent contractors, presents a serious problem, as these employees often are denied access to critical benefits and protections — such as family and medical leave, overtime compensation, minimum wage pay and Unemployment Insurance — to which they are entitled. In addition, misclassification can create economic pressure for law-abiding business owners, who often struggle to compete with those who are skirting the law. Employee misclassification also generates substantial losses for state Unemployment Insurance and workers' compensation funds.”

The memorandums of understanding between the DOL and state government agencies arose as part of the U.S. Department of Labor's Misclassification Initiative, which was launched with the goal of preventing, detecting and remedying employee misclassification. Colorado, Connecticut, Hawaii, Illinois, Maryland, Massachusetts, Minnesota, Missouri, Montana, Utah and Washington have entered into similar agreements with the DOL. More information is available on the DOL’s misclassification webpage at http://www.dol.gov/misclassification/. Read More.

9th Circuit Holds California Law Applies in Misclassification Case

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Published on Thursday, 09 February 2012 04:39

Employers continue to face costly claims of employee misclassification. In a recent case, the 9^th Circuit Court of Appeal ruled that California law, as opposed to Georgia law, applied in a misclassification case, even though the employer and employee had signed an agreement which stated that Georgia law would apply in any dispute. The case involved Fernando Ruiz who worked for Affinity Logistics Corporation (“Affinity”), a company that provides home delivery and transportation logistical support services to various home furnishing retailers, including Sears. In order to work as a driver for Affinity, individuals had to enter into the “Independent Truckman’s Agreement” and the “Equipment Lease Agreement (collectively the “Agreements”) with Affinity. The Agreements included clauses stating that the parties were entering into an independent contractor relationship, as opposed to an employer-employee relationship, and that Georgia law applied to disputes. Ruiz and other drivers filed a class action against Affinity alleging violations of FLSA and California laws, including failure to pay overtime, failure to pay wages (including payment for vacation, holidays, sick days, and severance), improper charges for workers’ compensation insurance, and the unfair business practice of wrongfully classifying California drivers.

The district court initially granted partial summary judgment to Affinity on Ruiz’s cause of action for violation of FLSA. Affinity then moved for summary judgment on the remainder of Ruiz’s claims. On June 5, 2008, the district court granted Affinity’s motion for summary judgment on Ruiz’s cause of action for overtime pay under California law. The remainder of Ruiz’s claims, however, turned on whether Ruiz should be classified as an independent contractor or as an Affinity employee. Relying on the choice of law clause in the Agreements, the district court held that Georgia law applies to determine whether the drivers were employees of Affinity or independent contractors. The district court applied California’s choice of law framework to reach this conclusion. Under California’s choice of law framework, the district court noted that California courts enforce choice-of-law clauses where the state in question has a substantial relationship to the parties or transaction.  The district court then found that “[a] substantial relationship exists where one of the parties is domiciled or incorporated in the chosen state” and that Affinity was incorporated in Georgia and has its principal office in Marietta, Georgia. Thus, the district court enforced the parties’ choice of law clause and applied Georgia law to resolve the employee independent contractor issue. Applying Georgia law, the court determined that sufficient evidence existed from which a reasonable jury could conclude that Ruiz had overcome the presumption of ‘independent contractor’ status thereby establishing that he was Affinity’s employee. Thus, the court denied Affinity’s motion for summary judgment on the claims related to whether Ruiz should be classified as an independent contractor or as an Affinity employee. The matter was set for trial on the remaining claims.

After a three-day trial, the district court concluded that unlike California law, where there is a presumption that an individual is an employee, under Georgia law there is a presumption of independent contractor status. Thus, in order to rebut that presumption Ruiz needed to establish that an employer-employee relationship existed. The district court concluded that Ruiz could not establish an employer-employee relationship and he thus failed to rebut the presumption of independent contractor status. Ruiz appealed, arguing that the district court erred when it held that Georgia law applies. The 9^th Circuit agreed, holding that California law, not Georgia law, applied to the case based on several reasons including the fact that “Georgia law ‘is contrary to a fundamental  policy of California.’” Read More. 

EEOC to Hold Meeting On Pregnancy and Caregiver Issues

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Published on Thursday, 09 February 2012 03:48

The U.S. Equal Employment Opportunity Commission (EEOC) has announced that it will hold a public meeting on the subject of pregnancy discrimination and caregiver issues at 9:30 a.m. (Eastern Time) Wednesday, February 15, at agency headquarters, 131 M Street, N.E., Washington, D.C. In accordance with the Sunshine Act, the meeting is open for public observation of the EEOC’s deliberations. At the meeting, the EEOC will examine recent trends in discrimination against pregnant workers and workers with caregiving responsibilities, examining these two forms of discrimination as a continuum. The EEOC is scheduled to hear from panelists on the following topics: Panel 1: Understanding Pregnancy and Caregiver Discrimination in Today’s Workplace and Panel 2: Statutory Framework and Enforcement Efforts; Panel 3: The Way Forward: Implications for the Future. Read More.

Professional Media Corporation to Pay $58,000 for Alleged Disability Discrimination and Eliminate “Health Warranty” Policy

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Published on Wednesday, 08 February 2012 16:20

Employers must be cautious when implementing any sort of “be healthy” plans or policies for employees as a  recent case demonstrates. In the case, Professional Media Corporation, traded as "Your Health" (a magazine), agreed to settle a lawsuit filed by U.S Equal Employment Opportunity Commission (EEOC) that included a monetary settlement of $58,000. The settlement amount will be paid to a worker allegedly harassed and then fired for having Attention Deficit Hyperactivity Disorder (ADHD) and Auditory Processing Disorder (ADP).   Significantly, the EEOC also charged "Your Health" with violating the Americans With Disabilities Act (ADA) for its policy of allegedly forcing employees to sign a “health warranty” certifying their health, including that they did not use medications. Pursuant to the ADA, employers may discriminate against a qualified individual with a disability, and more specifically, employers may not ask job applicants or employees about the existence, nature or severity of a disability.  Thus, the settlement also enjoins "Your Health" from continuing its “health warranty” policy and gives the EEOC three-years of continuing jurisdiction provisions to ensure that "Your Health" will comply with the ADA. Spencer H. Lewis, Jr., director of the EEOC’s Philadelphia District Office, which oversees Pennsylvania, Maryland, Delaware, West Virginia and parts of New  Jersey and Ohio said  “This case shows that employers continue to make employment decisions based on uninformed prejudices and irrational fears.” EEOC Regional Attorney Debra M. Lawrence, commented that, “Employees with disabilities must be treated with the same dignity and respect as all other members of the work force. The EEOC will continue to enforce the ADA to protect the rights of disabled employees and applicants.”  Read More.

EEOC Settlement of $120,000 for Woman Fired Because of Prior Back Injury and Age

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Published on Tuesday, 07 February 2012 14:57

The U.S. Equal Employment Opportunity Commission (EEOC) has agreed to settle a disability and age discrimination lawsuit against DXP Enterprises, Inc., doing business as DXP Safety Alliance, Inc., in which the EEOC obtained a monetary settlement of $120,000, in addition to other relief.  The lawsuit, EEOC v. DXP Enterprises,  Inc., d/b/a DXP Safety Alliance, Inc., 11-cv-00849 JCH/KBM, alleged that DXP  hired Connie Brooks but, after learning of a prior back injury, fired her a few days later, either solely due to her disability or  the intersection of  disability and age.  Regional Attorney Mary Jo O’Neill of the EEOC’s Phoenix District Office, which  has jurisdiction over Arizona, Colorado, Wyoming, New Mexico and Utah said  “We are pleased with this employer’s willingness to provide a prompt resolution to Ms. Brook….  Employers must be extra vigilant to assure that decision-makers are aware that employment decisions must not be based on myths, fears or stereotypes about a person’s age or disability.”  DXP also agreed to prohibit further discriminatory practices; to institute policies and procedures addressing disability and age discrimination; to train employees, managers and  human resource officials on disability and age discrimination; to post a notice advising employees of their rights under the ADA and ADEA; and to provide a letter of  reference for Brooks.  EEOC Deputy District Director Elizabeth Cadle stated that, “The EEOC is gratified to see that this employer is now following the adage that ‘Prevention is the best cure’ – in this case, preventing future problems with discrimination through training and awareness.”  Read More.

The Effects of the ADA Amendments Act of 2008 Are Emerging

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Published on Monday, 06 February 2012 22:08

In the case of Maria Molina v. DSI Renal Inc., the U.S. District Court for the Western District of Texas acknowledged that its decision would have been different if it had occurred before the amendments to the Americans with Disabilities Act (ADA), specifically the ADA Amendments Act Of 2008 (ADAAA), and the corresponding state law in Texas, enacted in 2009.  In the Molina case, the plaintiff alleged that her back condition, that imited her ability to lift and bend and that caused considerable pain, was a disability under the ADAAA and Texas laws. In considering this issue, the court noted that a plaintiff is covered, pursuant to both the ADAAA and the Texas laws, when he or she is substantially limited from performing a major life activity.  The primary purpose of the ADAAA is to make it easier for disabled individuals to obtain protection under the ADA by requiring a broader interpretation of what qualifies as a covered disability.  The court noted the amendments state that both lifting and bending are major life activities, thus it only needed to analyze whether the plaintiff’s restrictions were a substantial limitation of those activities.  The defendant argued that the plaintiff was not substantially limited since: (1) the plaintiff testified that she was able to tolerate the pain while lifting and bending; and (2) the plaintiff took  pain medication to assist her in both bending and lifting . However, the Equal Employment Opportunity Commission's (EEOC) ADA/ADAAA regulations state that an  impairment does not need not prevent, or significantly or severely restrict, an individual from performing a major life activity in order to be considered substantially limiting.  Additionally, the regulations  state that the determination of whether an impairment substantially limits a major life activity shall be made without regard to the effect of any mitigating measures taken by the individual. Thus, the trial court denied the defendant’s motion for summary judgment and the case will proceed to trial on the merits. 

Workers’ Compensation May Not be Exclusive Remedy for Work Related Injury Caused by Sexual Harassment

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Published on Monday, 06 February 2012 20:02

The Court of Appeal, Fifth Appellate District, has held in an unpublished opinion that a cause of action for work related intentional infliction of emotional distress, in a case where discrimination and harassment by an employer were involved, may not be barred by the exclusive remedy provision of California workers’ compensation law. The case was appealed after the trial court granted the employer’s motion for a summary judgment on all claims, including sexual harassment, retaliation and intentional infliction of emotional distress. The appellate court found that there were triable issues of fact in regards to these claims and reversed the trial court’s decision. The appellate court’s reasoning was that in terms of the exclusivity of the workers’ compensation remedy, harassment and discrimination by an employer are acts that are outside the normal part of the employment environment.

The court noted, however, that in order for such discriminatory and harassing acts to move beyond those of a normal work environment, and thereby outside of the workers’ compensation arena, the conduct must consist of extreme and outrageous behavior beyond all bounds of decency. Referring to existing case law, the court emphasized that outrageous behavior could be found when an individual:  (1) abuses a relation or position which gives the individual power to damage another person’s interest; (2) knows the other person is susceptible to injuries through mental distress; or (3) acts intentionally or unreasonably with the recognition that the acts are likely to result in illness through mental distress. The court stated that if sexual harassment and retaliation claims under Fair Employment and Housing Act (FEHA) are found compensable, then a concurrent claim for intentional infliction of emotional distress , based upon the same facts, will meet the above criteria and can be tried with a civil court, instead of the workers’ compensation appeals board. Thus, employers need to be aware that although workers’ compensation laws and insurance will preclude most work injuries or illnesses at work from being brought before the civil courts, if the facts of the workers’ compensation claim can also support a claim under the FEHA, the employee may be able to seek the greater remedies available in a civil court. Read More.

Don't Miss: Floyd, Skeren & Kelly’s 2012 Employment Law Conference

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Published on Friday, 03 February 2012 07:02

Floyd, Skeren & Kelly LLP, is pleased to announce its 2012 Employment Law Conference, which is an advanced course designed for employers, supervisors, managers, and any other professionals associated with human resources and employment law. The conference will cover important workplace topics such as: (1)  The crucial overlap between workers' compensation and the FEHA/ADA, including medical leave, reasonable accommodation, the interactive process, benefit continuation, fitness-for-duty examinations, and return-to-work issues; (2) the California Family Rights Act, including leave requirements, notification obligations, eligibility criteria, definition of a serious health condition, medical certification, intermittent leave issues, benefits, reinstatement, and required forms; (3) An overview of the new legislation in effect as of January 1, 2012, including legislation related to Consumer Credit Reports; E-Verify; gender identity and expression; health benefits during pregnancy leave; the Wage Theft Prevention Act; and, a review of the most significant employment cases for 2011; (4) Tips on controlling an employer’s unemployment insurance tax rate, including the four elements required to successfully establish a misconduct defense; (5) A discussion of the 5 steps that can help reduce workers’ compensation costs including understanding the correct procedures regarding MPN notices, and properly completing the Workers’ Compensation Claim Form and Employer’s Report of Occupational Injury and Illness; (6) A review of recent case law and legislation related to social media, including sites such as Facebook, Twitter and Linkedin, in addition to a look at how recent NLRB advisory letters on social media may provide guidance on workplace policies and procedures; and, (7) An overview of the recent cases and legislation on employee misclassification, in addition to the five most common mistakes employers make when classifying individuals as independent contractors or classifying employees as exempt from overtime. More Details.

Court Upholds Consent Decree in Disability Discrimination Case

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Published on Friday, 03 February 2012 06:42

The U.S. Court of Appeals for the Eighth Circuit reversed a lower court decision that rejected a consent decree resolving an U.S. Equal Employment Opportunity Commission (EEOC) disability discrimination lawsuit against Pine City, Minn.-based Product Fabricators, Inc. The EEOC’s consent decree had been rejected by the lower court because it contained a provision requiring the court to continue its jurisdiction over the consent decree for the term of the decree – two years – in order to ensure that the parties complied with its terms. The EEOC had sued Product Fabricators in 2009 for allegedly violating federal disability discrimination laws when the company required employees to report their use of legal prescription drugs. Further, the EEOC charged that the company unlawfully terminated an employee for taking prescribed drugs for back pain. In reversing the lower court’s decision, the Eighth Circuit held that “[a] consent decree offers more security to the parties than a settlement agreement where the only penalty for failure to abide the agreement is another suit.” EEOC Regional Attorney John Hendrickson commented that, “Today’s ruling by the Eight Circuit reinforces a critical component of negotiated settlements in EEOC lawsuits which is the agency’s ability to guarantee compliance with important settlement terms through the immediate court enforcement…Continuing jurisdiction provisions in our consent decrees – as the Eighth Circuit reinforced today – serve as an important form of insurance for the public. Once the EEOC has reached a settlement with employer accused of discrimination, continuing jurisdiction provisions enable the EEOC to ensure that defendants will comply with civil rights laws for years to come.” Read More.

Tip of the Day: A Final Paycheck Must be Timely to Avoid Costly Waiting Time Penalties

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Published on Thursday, 02 February 2012 20:38

In California, public policy favors the full and prompt payment of all wages due an employee at the end of an employment relationship. Thus, to ensure that employers comply with the laws governing the payment of final wages, the Legislature enacted Labor Code Section 203.   It provides for the assessment of a penalty against the employer when there is a willful failure to pay the employee wages owed at the end of the employment relationship. The term "willful" as used in Labor Code Section 203, and as defined by the courts, does not require anything blameworthy or an evil intent, but only that the person knows what he or she is doing, is a free agent, and fails to perform a required act. Thus, the waiting time penalty will apply when the final pay is not paid according to the law, and ignorance of the law will not provide a means of avoiding the penalty.

The penalty will be assessed if the employer does not comply with the following time frames: 1) when an employee voluntarily quits his job, the final paycheck must be given to the employee within 72 hours (calendar days not working days) of when the employee actually stops working, unless the employee provides at least 72 hours advanced notice, in which case the final paycheck must be provided to the employee at the time of quitting (i.e. the last day of work); 2)  if the employee is discharged, with or without cause, the employee must be paid immediately.  Additionally, the final paycheck must include all wages owed, including vacation pay and other wages as defined in Labor Code Section 200, or the waiting time penalty will be assessed, even if the employee was given some of his or her wages timely. 

The penalty is calculated based upon the number of calendar days that the paycheck is late, whether or not the employee was scheduled to work those days, and includes weekends and holidays, times the employee’s daily rate of pay, for up to a maximum of 30 days. Payment of the wages or the commencement of an action (i.e. filing a complaint in court) stops the penalty from accruing. However, filing a claim with the Division of Labor Standards Enforcement (DLSE) is not considered commencement of an action, and does not stop the penalty from accruing.  Note: The waiting time penalty is not wages, thus, no deductions are taken from the penalty payment.  Read More.

Cal/OSHA Issues Reminder for California Employers to Post Work-Related Injury and Illness Summary

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Published on Thursday, 02 February 2012 17:31

The California Department of Industrial Relations’ Division of Occupational Safety and Health (DIR/DOSH), also known as Cal/OSHA, is reminding all employers that the annual summary of all work-related injuries and illnesses  (Form 300A, available on the DIR website), must be posted at their place of business during the period of February 1 through April 30, in a visible and easily-accessible area.  Employers are required to fill out and post the form every year, even if no workplace injuries occurred.  Information that must be disclosed on the form includes total number of cases with days away from work, total number of days injured or sick employees spent away from work, and the different types of injury or illness suffered.  “Transparency and accountability are very important aspects of the employer-employee relationship,” said Cal/OSHA Chief Ellen Widess.  “This form gives employees, former employees and their representatives access to worksite injury and illness data.  Full and accurate reporting of injuries and illnesses is vital to understanding hazards in the workplace. It is also a good tool to determine where additional safety and health measures are needed.”   Read more.

L.A. Fire Department Settles EEOC Harassment & Retaliation Case for Nearly $500,000

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Published on Wednesday, 01 February 2012 21:52

The Los Angeles City Fire Department has reached a settlement with the U.S. Equal Employment Opportunity Commission (EEOC) in the amount of $494,150, for alleged sexual and religious harassment and retaliation.  Anthony Almeida, a firefighter/engineer employed since 1986 with the Los Angeles City Fire Department, filed a discrimination charge with the U.S. Equal Employment Opportunity Commission (EEOC), in 2007, alleging harassment by fellow firefighters who continually made offensive comments of a sexual and religious nature. The EEOC investigation revealed that once Almeida’s co-workers learned of his lawsuit filed against the Catholic Church alleging that Almeida had suffered sexual abuse by a priest, several of his coworkers allegedly began mocking him, using explicit and offensive religious and sexual epithets.  Almeida complained about the harassment to management officials, but the Fire Department allegedly failed to adequately halt or address it. Further, the EEOC alleged that Almeida had suffered retaliatory discipline for his participation in another equal employment opportunity investigation.  Following a determination by the EEOC that there was reasonable cause to believe a violation of law occurred, the Los Angeles City Fire Department entered into a three-year conciliation agreement with the EEOC and Almeida, who was represented by private counsel. Aside from the monetary relief, the Fire Department agreed to provide widespread live anti-harassment training to all fire station chiefs and their subordinate staff, impacting every fire station in the city of Los Angeles and to publicize the settlement via a press release, among other injunctive relief   Olophius Perry, district director for the EEOC’s Los Angeles District Office stated,  “by working with the EEOC this way, the Department is sending a message that no further civil rights abuses will be tolerated -- a key responsibility of all employers.”  Read more.

DOL Launches Equal Pay Application Development Contest

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Published on Wednesday, 01 February 2012 05:53

In an effort to develop new ways to eliminate the gender gap in pay, the U.S. Department of Labor (DOL) and its federal agency partners on the National Equal Pay Task Force, announced a contest for creating software applications that use the DOL’s data to promote equal pay for men and women. According to the DOL, women are still paid less on average than their male counterparts for doing comparable jobs, and the discrepancy is even more significant for minority women. The “Equal Pay App Challenge” is asking developers “to use publicly available data and resources to create innovative, easy-to-use apps that educate users about the pay gap and provide tools to combat it. The apps should improve the accessibility of pay data broken down by gender, race and ethnicity, and provide coaching on early career pay, pay negotiation or career mentorship.” More information, including a complete list of the contest's rules and requirements, is available at http://www.challenge.gov/labor. According to Secretary of Labor Hilda L. Solis, "Women make up nearly half of the U.S. labor force and play a vital role in the nation's economy…While progress has been made in recent decades, the pay gap continues to disadvantage many women, with consequences not only for them, but for their families and the economy as a whole."

Those applications that best meet the criteria for the challenge will be eligible to receive one of eight prizes, including scholarships to attend an eight-week immersive program on digital product innovation and entrepreneurship hosted by General Assembly, a campus for technology, design and entrepreneurship. The contest will be open for submissions from Jan. 31 until March 31; winners will be announced in connection with Equal Pay Day in April. Read More.

Employers Must Avoid Discriminatory Hiring Practices

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Published on Tuesday, 31 January 2012 21:53

Title VII of the Civil Rights Act of 1964 prohibits discrimination when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits, and any other term or condition of employment. In terms of hiring, employers must ensure that they are not excluding a particular class of protected individuals in violation of Title VII, such as all women. In a recent case, the Equal Employment Opportunity Commission (EEOC) charges that Mavis Discount Tire refused to hire women for a wide variety of positions even though some of the applicants had superior qualifications. The Millwood, New York-based company, which also operates as Mavis Tire Supply Corporation and Mavis Tire NY, sells tires and a variety of other automotive parts and services. The case involves the Mavis job positions of tire installers, mechanics, assistant managers, managers, and related positions. The EEOC alleges that since at least 2008, only one woman was employed in any of these positions out of approximately 800 employees. The EEOC also alleges that out of approximately 1,300 hires that Mavis made between 2008-2010 for the above listed positions, not one was female. Additionally, even though Mavis allegedly failed to properly maintain applications—which is itself a separate violation of federal law—the applications that were available indicated that Mavis rejected women with superior credentials and experience, and less qualified men were hired.

Anna M. Pohl, EEOC trial attorney, commented that “Women have been working in traditionally all-male fields like automotive services and sales for quite a while, but Mavis seems to be stuck in the past.”

For employers concerned about possible discriminatory hiring practices in their workplace, the Office of Federal Contract Compliance Programs (OFCCP) has created a Guide for Small Businesses with Federal Contracts, which contains helpful information even for those employers who are not dealing with federal contracts. Specifically, the OFCCP created a self-audit for employers to take in order to assess their hiring practices in the workplace, to ensure that discrimination is not occurring. On the issue of discriminatory hiring practices, the self-audit asks: (1) Were there women and minority applicants? (2) What were their qualifications? (3) How did their qualifications compare to the qualifications of the people who were hired? (4) Why did the decision-makers select those hired and not the women and minority applicants who seemed to have comparable qualifications? (5) Were all the qualifications necessary for successful performance of the job? Employers would be wise to keep this checklist as a guide when hiring and to take the self-audit created by the OFCCP to help ensure that they are not engaging in discriminatory workplace practices. For more information on the self-audit, click here.

DOL Issues Notice of Proposed Rulemaking to Amend FMLA

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Published on Tuesday, 31 January 2012 05:18

Secretary of Labor Hilda L. Solis announced that the U.S. Department of Labor (DOL) is issuing a notice of proposed rulemaking to amend the Family and Medical Leave Act (FMLA) by expanding military family leave provisions and incorporating a special eligibility provision for airline flight crew employees. The FMLA entitles eligible employees who are working for employers covered by the Act, to take unpaid, job-protected leave for specified family and medical reasons.  Eligible employees may take up to twelve workweeks of FMLA leave in a 12-month period for the birth, adoption or placement of a child, to care for a family member with a serious health condition, or because they are unable to work due to their own serious health condition.

Amendments to Military Family Leave

In 2008, the FMLA was amended to add special military family leave entitlements thereby providing an expanded leave entitlement which permits eligible employees who are the spouse, son, daughter, parent, or next of kin of a service member (National Guard, Reserves, or Regular Armed Forces) with a serious injury or illness incurred in the line of duty,  to take up to twenty-six workweeks of unpaid, job protected FMLA leave during a single 12-month period to care for their family member (military caregiver leave), and to allow eligible employees whose spouse, child, or parent is called up for active duty in the National Guard or Reserves to take up to twelve workweeks of FMLA leave for “qualifying exigencies” related to the call-up of their family member (qualifying exigency leave).

The current proposal expands coverage for military caregiver leave for the first time to include care for covered veterans with a serious injury or illness. The proposal includes the statutory amendment’s limitation on coverage to care for veterans to veterans who have been discharged within the five preceding years. In addition, the proposal expands military caregiver leave to cover serious injuries or illnesses resulting from the aggravation of a preexisting condition in the line of duty for both active duty service members and covered veterans.

The proposal also extends qualifying exigency leave to include employees whose family members serve in the Regular Armed Forces (in addition to the National Guard and Reserves). Further, the proposal adds the new requirement that the employee’s family member be deployed to a foreign country (this requirement applies to National Guard, Reserves, and Regular Armed Forces members) in order for the employee to qualify for exigency leave.

Airline Flight Crew Amendments

The proposal implements a new special minimum hours of service eligibility requirement for airline flight crew employees. Specifically, airline flight crew employees will meet the hours of service eligibility requirement under FMLA if they have worked or been paid for not less than 60 percent of the applicable total monthly guarantee and have worked or been paid for not less than 504 hours during the 12 months prior to their leave.

The DOL has issued a fact sheet detailing the amendments. Read More. 

Bay Area Business Owner Charged With 57 Underground Economy Violations by Insurance Commissioner Dave Jones

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Published on Monday, 30 January 2012 16:47

Insurance Commissioner Dave Jones announced that Frances Ann Doherty, 51, of Millbrae was arraigned in San Francisco Superior Court for 57 felony counts related to alleged payroll theft and workers' compensation insurance premium fraud. Doherty was arrested January 26, 2012 and her bail has been set at $750,000. Doherty is the owner of Doherty Painting & Construction, a painting contracting company that was awarded numerous public contracts with the City and County of San Francisco, San Francisco Unified School District and other public agencies. San Francisco District Attorney George Gascón stated, “We intend to prove that over the course of three years the defendant underpaid her employees and pocketed over $600,000 that the City thought it was paying for those wages, and defrauded her workers' compensation insurance carriers out of over $100,000 in insurance premiums. This conduct not only victimizes workers who are desperately trying to make a living in a very tough economy, it also hurts the honest businesses that were unable to successfully compete for these projects which the defendant was able to underbid and win as a result of this scheme." 

It was further alleged that Doherty Painting workers were underpaid, that  fraudulent information was allegedly provided by Doherty to public agencies that were doing compliance audits, allegedly in an effort to conceal the prevailing wage violations and allegedly provided fraudulent employee payroll information to Redwood Fire & Casualty and Zurich Insurance companies from September 2006 through June 2009, which allegedly allowed her to pay lower workers' compensation insurance premiums to these carriers.  This arrest is a result of a joint investigation headed by Investigators from the San Francisco County District Attorney's Office and Detectives from the California Department of Insurance (CDI).  "This case is an excellent example of inter-agency collaboration," said Commissioner Jones. "The underground economy is a real threat to California's law-abiding businesses and owners. Rooting out these bad actors and the fraud they commit is a top priority of my Department."  Read more.

EEOC Has Developed Final Plan for Review of Significant Regulations

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Published on Monday, 30 January 2012 08:17

Pursuant to Executive Order 13563, 76 Fed. Reg. 3821 (Jan. 21, 2011), the Equal Employment Opportunity Commission (EEOC) has developed a Final Plan for Retrospective Review of Significant Regulations, consistent with the law, its resources and regulatory priorities. The Final Plan is posted on www.eeoc.gov at: http://www.eeoc.gov/laws/regulations/retro_review_plan_final.cfm. The EEOC’s regulatory program enforces six employment nondiscrimination laws: (1) Title VII of the Civil Rights Act of 1964, as amended; (2) the Equal Pay Act of 1963, as amended; (3) the Age Discrimination in Employment Act of 1967, as amended; (4) Titles I and V of the Americans with Disabilities Act, as amended; (5) Sections 501 and 505 of the Rehabilitation Act, as amended; and, (6) Title II of the Genetic Information Nondiscrimination Act. The EEOC continues to accept public comments on the review of EEOC’s regulations. Read More.

Employer Must Accommodate an Employee’s Religious Beliefs

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Published on Sunday, 29 January 2012 21:22

The law requires an employer to reasonably accommodate an employee’s religious beliefs or practices, unless doing so would cause the employer an undue hardship, specifically, cause more than a minimal burden on the employer’s operations. This means an employer may be required to make reasonable adjustments to the work environment in order to allow employees to practice their religion. Some common religious accommodations include flexible scheduling, voluntary shift substitutions or swaps, job reassignments, modifications to workplace policies or practices, and accommodating an employee’s grooming practices related to their religious beliefs. In terms of grooming practices, this might include, for example, permitting the employee to wear a particular head covering or other religious dress (such as a Jewish yarmulke or a Muslim headscarf), or wearing certain hairstyles or facial hair (such as Rastafarian dreadlocks or Sikh uncut hair and beard). It could also include an employee's observance of a religious belief that prohibits wearing certain garments (such as pants or miniskirts). When an employee needs a grooming accommodation for religious reasons, the employee should provide notice to the employer that he or she needs such an accommodation for religious reasons. If the employer reasonably needs more information to determine whether or not the accommodation can be granted, the employer and the employee should engage in an interactive process to discuss the request. If the accommodation would not pose an undue hardship on the employer, it must be granted.

However, as noted above, an employer does not have to provide a religiously based accommodation unless doing so would pose an undue hardship on the employer. Whether a particular accommodation may cause undue hardship on the employer depends on numerous factors including whether the accommodation is: (1) too costly; (2) compromises workplace safety; (3) decreases workplace efficiency; (4) infringes on the rights of other employees; (5) requires that other employees to do more than their share of potentially hazardous or burdensome work.

A recent case filed by the Equal Employment Opportunity (EEOC), serves as a reminder that employers must not discriminate against an employee by failing to grant a religiously based accommodation, provided it does not pose an undue burden on the employer. In this case, the EEOC alleges that Ozarks Electric Cooperative Corporation, an electric power supplier, violated the law by terminating an employee who was a Jehovah’s Witnesses, and who had requested a day off to attend a religious convention. Katharine W. Kores, district director for the EEOC, commented on the case noting that “This employee’s request was so modest and minor it is astounding the company not only refused it, but also fired her…Employees should never be forced to choose between their religion and their job.” Read More.

Labor Commission Issues Updated FAQs on Wage Theft Prevention Act

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Published on Thursday, 26 January 2012 20:06

On January 23, 2012, the California Labor Commissioner released an updated and expanded version of the previously issued “frequently asked questions” (FAQ) related to the new Wage Theft Protection Act (AB 469). The Wage Theft Prevention Act went into effect on January 1, 2012. The new legislation amends existing laws, and adds new requirements which “criminalizes willful violations for non-payment of wages after a court judgment or final administrative order; requires restitution to the employee in addition to a civil penalty for failure to pay minimum wages; requires that specified information be provided to employees at the time of hire and in wage claim proceedings and that employers update changes within specified periods; extends the time period for obtaining judgments on final orders for collection of penalties by the Division of Labor Standards Enforcement (DLSE); enhances bond requirements for employers with convictions or court judgments for non-payment of wages including requiring an accounting of assets upon request by DLSE or court order; establishes that penalties under the Labor Code for failure to comply with wage-related statutes are minimum penalties; and allows employees to recover attorney’s fees and costs incurred to enforce a judgment for unpaid wages.” 

The new legislation also requires that employers provide notice to employees of  their rate(s) of pay, designated pay day, the employer’s intent to claim allowances (meal or lodging allowances) as part of the minimum wage, and the basis of wage payment (whether paying by hour, shift, day, week, piece, etc.), including any applicable rates for overtime. The new law also requires that the notice contain the employer's "doing business as" names, and that it be provided when the employee is hired and within 7 days of a change, provided the change is not listed on the employee’s pay stub for the following pay period. The notice must be provided in the language the employer typically uses to communicate workplace information to the employee. The Labor Commission has provided translated notices. The Commissioner is also recommending that all non-exempt existing employees be provided with the same information although the new legislation only pertains to new hires. A template has been provided by the Commissioner which can be found at: http://www.dir.ca.gov/dlse/Governor_signs_Wage_Theft_Protection_Act_of_2011.html. Read More.

NLRB Releases Second Report Detailing Social Media Cases

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Published on Thursday, 26 January 2012 05:08

In order to provide further guidance to employers and human resource professionals, the National Labor Relations Board (NLRB) has released a second report describing social media cases reviewed by the NLRB’s Acting General Counsel. The Operations Management Memo involves 14 cases, half of which involve questions about employer social media policies. The NLRB found that five of the policies were unlawfully broad, one was lawful, and one was found to be lawful after the employer revised the policy. The remaining cases involved terminations of employees after they posted comments to Facebook. The NLRB determined that several of the terminations were unlawful because they flowed from unlawful policies. However, in one case, the NLRB upheld the termination despite an unlawful policy because the employee’s posting was not work-related. The report emphasized two important points made in an earlier compilation of cases: (1) “Employer policies should not be so broad that they prohibit the kinds of activity protected by federal labor law, such as the discussion of wages or working conditions among employees; (2) An employee’s comments on social media are generally not protected if they are mere gripes not made in relation to group activity among employees.”

In light of the evolving nature of social media cases, the Acting General Counsel requested that all NLRB regional offices forward cases which the Regions believed to be meritorious. Approximately 75 cases have been forwarded to date. The report does not name the parties to the cases or their locations; however, the report does demonstrate that social media cases are very fact-specific.

The report also reflects the Acting General Counsel’s interpretation of the National Labor Relations Act as it relates to communication methods that were not in existence when the Act was written. Three cases involving social media questions are currently pending before the NLRB. It is anticipated that the decisions in those cases will provide further guidance for employers on this complicated issue.  Information on the three cases may be found: here, here, and here. Read More.

Court Rules Commissioned Employees Were Properly Classified As Exempt

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Published on Wednesday, 25 January 2012 05:07

Pursuant to the “commissioned employees exemption” from overtime, employers are not required to pay overtime wages to employees whose earnings exceed one and one-half (1 1/2) times the minimum wage if more than half of that employee's compensation represents commissions. In a recent case involving employees working as senior consulting managers, who claimed they were owed overtime because their employer classified them as exempt from overtime, both the trial court and the court of appeal concluded that the employees were properly classified as exempt under the commissioned employees exemption. The case involved Tyrone Muldrow, who filed suit against Surrex Solutions Corporation (Surrex) on behalf of himself and a class of current and former Surrex employees. In his complaint, Muldrow alleged that Surrex failed to pay overtime and failed to provide meal periods. Surrex asserted that it was not required to pay overtime to because the employees were subject to the commissioned employees exemption.

The trial court determined that the class members were subject to the commissioned employees exemption, that Surrex had properly provided meal periods, and that the current law did not obligate Surrex to ensure that the employees utilized the meal periods. Muldrow appealed contending that the commissioned employees exemption did not apply. However, the appellate court held that the trial court did not err in determining the employees were not entitled to overtime pay, due to the fact that they met the criteria for the commissioned employees exemption because they were primarily engaged in sales, their commissions were based on price, and Surrex's compensation system was a bona fide commission system. The court rejected Muldrow’s various arguments including that "searching on the computer, searching for candidates on the website, cold calling, interviewing candidates, inputting data, and submitting resumes," should not be considered sales-related activities. Read More.

EEOC Obtains Record Amount of Relief in 2011

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Published on Wednesday, 25 January 2012 03:02

The U.S. Equal Employment Opportunity Commission (EEOC) is reporting that it received a record 99,947 charges of employment discrimination and obtained $455.6 million in relief through its administrative program and litigation in Fiscal Year 2011. For the second year in a row, the EEOC resolved more charges than it took in with 112,499 resolutions (7,500 more resolutions than FY 2010—an increase of 7%)—leaving 78,136 pending charges, a ten percent decrease in its inventory. The FY 2011 data show that (1) the EEOC obtained a record $455.6 million in relief for private sector, state, and local employees and applicants, which represents a more than $45 million increase from the past fiscal year, and continues the upward trend of the past three fiscal years; (2) the mediation program reached record levels, both in the number of resolutions – 9,831 – which is 5% more than in FY 2010 (9,362), and benefits -- $170,053,021-- $29 million more than FY 2010; (3) the EEOC filed 300 lawsuits and obtained $91 million in relief, representing the third year in a row that the relief obtained was greater than in the preceding year.

EEOC Chair Jacqueline Berrien commented that, “For the second year in a row, the EEOC received a record number of new charges of discrimination…Nevertheless, the hard work of our employees, combined with increased investments in training, technology and staffing in 2009 and 2010, and strategic management of existing resources made 2011 a year of extraordinary achievements for the EEOC.” While the numbers of charges with race discrimination allegations declined from the previous year, charges with the three other most frequently-cited allegations increased: Sex discrimination--28,534; Disability discrimination--25,742; Age discrimination—23,465. The EEOC’s enforcement of Americans with Disabilities Act (ADA) produced the highest increase in monetary relief among all of the statutes: the administrative relief obtained for disability discrimination charges increased by almost 35.9 percent to $103.4 million compared to $76.1 million in the previous fiscal year. Interestingly, back impairments were the most frequently cited impairment under the ADA, followed by other orthopedic impairments, depression and diabetes. Read More.

Court Reverses $2 Million Dollar Judgment Against City of Los Angeles for Retaliation

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Published on Tuesday, 24 January 2012 06:53

The California Court of Appeal, 2^nd District, has reversed a $2 million dollar judgment against the City of Los Angeles (City). The case involved Richard Joaquin, a Los Angeles Police Department officer, who complained of sexual harassment by Sergeant James Sands. The department investigated and concluded that Joaquin’s complaint was unfounded. Sands then pursued a complaint against Joaquin for filing a false sexual harassment charge. Internal Affairs investigated Sand’s complaint, agreed that Joaquin’s charge was without merit, and recommended that the matter be adjudicated by a Board of Rights. The Board of Rights found that Joaquin fabricated the charges and recommended termination. Subsequently, Joaquin was terminated. Joaquin then filed a petition for writ of mandate. The superior court granted the petition and ordered Joaquin reinstated, concluding that the evidence did not support the Board of Rights’ findings. Joaquin was reinstated. He then filed suit against the City alleging that the City terminated him in retaliation for filing a sexual harassment complaint, in violation of the Fair Employment and Housing Act (FEHA). A jury agreed and awarded Joaquin more than $2 million for lost wages and emotional distress.

The City appealed, arguing that the jury’s verdict was not supported by substantial evidence. The 2^nd District Court of Appeal agreed and reversed the $2 million dollar judgment. Notably, in its decision the court focused in on the issue of whether “an employee may be disciplined if his or her employer concludes that the employee has fabricated a claim of sexual harassment, or whether such a complaint is insulated from discipline even where, as here, the employer determines that it was fabricated.” On this important point, the court noted that it was “not aware of any California case that has discussed” the matter although the question of whether “a false report of discrimination or harassment may lawfully be a basis for discipline has been addressed in federal cases interpreting title VII of the Civil Rights Act of 1964.” After reviewing several of these cases, the court concluded that “in appropriate circumstances, an employer may discipline or terminate an employee for making false charges, even where the subject matter of those charges is an allegation of sexual harassment.” Read More.

Employee Terminated for Working Through Lunch Wins U.I. Appeal

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Published on Tuesday, 24 January 2012 05:19

Sharon Smiley worked for 10 years as a receptionist and administrative assistant at a Chicago real estate company. However, she was terminated for working through her lunch, in violation of company policy. Specifically, Smiley alleged that she punched out of work for lunch but remained at her desk to finish a project assigned by a manager because she did not plan to eat that day. Another manager advised Smiley that it was time for her to take her meal break and step away from her desk, but apparently she refused. The manager observed Smiley performing her job duties including working on a spreadsheet on her computer, answering the phone and responding to questions by people who approached her desk. The company's human resources director became involved, explaining that hourly non-exempt employees were required to take a 30-minute meal break, a policy that had been in the company handbook for 10 years. Further, the HR director advised that not following the policy would be a violation of Illinois' labor laws. Smiley was terminated and subsequently Smiley filed for unemployment insurance (U.I.) benefits, which were denied due to her “misconduct.” According to the employer, Smiley had been warned several times about working during her meal period. After a two-year battle, an Illinois appeals court has found that denial of her unemployment benefits was "clearly erroneous." Similar to California, Illinois requires employers to provide employees a lunch break. But, according to one legal expert, Michael LeRoy, law professor at the University of Illinois at Urbana-Champaign, the law does not mean that an employer may fire a worker who refuses to take a break in order to finish his or her work. This puts employers in the difficult position of risking a violation of wage and hour laws by not disciplining employees for failing to take their meal periods as required by law and workplace policies versus imposing disciplinary measures for failure to follow company policy, such as termination, which could be interpreted by a court as inappropriate under the circumstances. Read More.

Covered Employers Must Post Annual OSHA 300A Summary Form by February 1, 2012

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Published on Tuesday, 24 January 2012 04:33

Every employer covered by the Occupational Safety and Health Administration (OSHA) who has more than 10 employees, except for employers in certain low-hazard industries in the retail, finance, insurance, real estate, and service sectors, must maintain specific records of job related injuries and illnesses, including the OSHA Form 300, which is an injury/illness log, with a separate line entry for each recordable injury or illness. Such events include work related deaths, injuries, and illnesses other than minor injuries requiring only first aid treatment not involving medical treatment, loss of consciousness, restriction of work, or transfer to another job. Every year, the employer must post in a conspicuous location in the workplace the OSHA Form 300A, which consists of a summary of the previous year's work-related injuries and illnesses recorded on the Form 300. Employers must also record on the OSHA Form 301 individual incident reports that provide added detail about each specific recordable injury or illness. Read More.

Dual-Employers Issued $256,445 in Citations by Cal/OSHA for Unsafe Working Conditions

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Published on Monday, 23 January 2012 21:05

After receiving complaints from Warehouse Workers United, the California Department of Industrial Relations’ Division of Occupational Safety and Health (Cal/OSHA)conducted inspections and issued $256,445 in citations to warehouse owner National Distribution Centers and its temporary staffing contractor, Tri State Staffing, for more than 60 violations at four warehouses in San Bernardino County, including violations for a lack of fall protection for high-rise pickers, unstable storage stacking and unguarded machinery.  Cal/OSHA found three of the warehouses had dual-employer relationships—where one employer hires workers and provides them to another employer—and both employers are potentially liable for the violations of safety and health regulations. “When employers use a contractor for their staffing needs, they are not released from their responsibilities to provide a safe workplace,” said Cal/OSHA Chief Ellen Widess. “As dual employers sharing responsibility for training and worker safety, both National Distribution Centers and Tri State Staffing were responsible for ensuring that all employees are protected on the job.”  In addition to the complaints received, attention was brought to these warehouses when, in August 2011, Cal/OSHA found that a 49-year-old warehouse, working inside in 90-degree temperatures, had become dizzy and nauseous and further determined that the employer failed to recognize the symptoms as heat-related or effectively address the conditions in a required Injury and Illness Prevention Program (IIPP).  Every employer in the state of California is required to have an IIPP that addresses the safety hazards associated with their specific work site. When a common problem in a workplace puts employees at risk, such as dangerously high temperatures in warehouses, then the IIPP is required to address preventive measures to protect employees from the heat.   “It’s not just outdoor workers who are vulnerable to heat illness,” said Cal/OSHA Chief Widess. “Every California employer needs to be aware of heat illness symptoms so that appropriate steps can be taken to prevent serious on-the-job injuries or death.”  Read more.

Determining if a Disability Exists Under the ADA is a Case by Case Determination

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Published on Monday, 23 January 2012 19:49

Employers must be aware that a determination of  whether an employee is disabled under the American with Disabilities Act (ADA) and the American with Disabilities Act Amendments Act of 2008(ADAAA),  is made on a case by case basis. A recent decision by the U.S. Court of Appeals,10^th Circuit, Allen v. Southcrest Hospital, No. 11-5016, 2011 U.S. App. LEXIS 25488 (10th Cir. Dec. 21, 2011), highlights this important point. In the Allen case, the court held that an employee diagnosed with migraine headaches was not disabled under the ADA/ADAAA, based on the particular facts before the court. The court’s decision demonstrates that that whether or not migraines (or any other medical condition) constitute a disability under the ADA/ADAAA, depends on the particular evidence presented. The employee in the Allen case worked as a medical assistant. She claimed that after she was transferred to work for a certain physician (who had a particularly hectic office schedule), she began experiencing migraine headaches, which varied in severity, and allegedly affected her ability to work and care for herself at home. Thus, in August 2009, after she was allegedly denied family and medical leave (to care for her daughter who was scheduled to give birth) and allegedly denied a reasonable accommodation for her migraines, the employee resigned and subsequently filed a lawsuit claiming violations of the ADA/ADAAA and the Family and Medical Leave Act (FMLA). The employer moved for summary judgment on the ADA/ADAAA claim, which the district court granted, and the employee appealed. On appeal, the 10^th Circuit held that the employee could not establish that her migraine headaches constituted a disability because she could not prove that the migraines substantially limited a major life activity under the ADA standards, and that the ADAAA standards would not be applied retroactively.  Thus, the court found for the employer. Read More. 

$75,000 to be Paid to Job Applicant in Settlement With EEOC for Racial Discrimination

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Published on Friday, 20 January 2012 14:59

In its lawsuit, the U.S. Equal Employment Opportunity Commission (EEOC) charged Choctaw Transportation Company, Inc., (Choctaw) a marine construction and transportation company located in Dyersburg, Tenn., with violating Title VII of the Civil Rights Act of 1964, when it refused to hire an African-American job applicant for a deckhand position because of his race.  Further, the EEOC charged that Choctaw had a long history of segregating its work force and refusing to hire African-Americans, and that the company violated the record-keeping provision of the Americans with Disabilities Act (ADA) when it failed to properly maintain medical and personnel records.  The settlement requires Choctaw to pay $75,000 to the African-American job applicant, as well as enjoining Choctaw Transportation from further discriminating against blacks in hiring and requires it to use its best efforts to fill up to 25% of available positions with African-Americans. The consent decree further provides for training both on and off its vessels on employee rights under Title VII, and requires Choctaw Transportation to maintain records of discrimination complaints, provide annual reports to the EEOC, and post a notice to employees about the lawsuit that includes the EEOC’s contact information.  “Employees should not be subjected to racial discrimination in hiring, as it is a violation of federal law,” said Faye Williams, Regional Attorney for the EEOC’s Memphis District Office. “The EEOC will continue to ensure that such barriers to employment are removed.” Read more.

OSHA Orders Company to Pay More Than $1 Million in Back Wages and Damages

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Published on Thursday, 19 January 2012 04:47

The U.S. Department of Labor's Occupational Safety and Health Administration (OSHA)  has ordered AirTran Airways, a subsidiary of Southwest Airlines, to reinstate a former pilot who was terminated allegedly after reporting numerous mechanical concerns. OSHA has also ordered that the company pay the pilot more than $1 million in back wages plus interest and compensatory damages. An investigation by OSHA's Whistleblower Protection Program apparently found reasonable cause to believe that the termination constituted retaliation in violation of  whistleblower protection laws. The pilot's complaint alleged that the airline removed him from flight status on Aug. 23, 2007, while an investigative hearing was conducted regarding a sudden spike in the pilot's mechanical malfunction reports, or PIREPS. The airline held an internal investigative hearing on Sept. 6, 2007; the hearing lasted 17 minutes. Seven days later, the airline terminated the pilot's employment, asserting that he did not satisfactorily answer a question regarding the spike in reports. However, OSHA found that the pilot did not refuse to answer any questions,  that answers to questions were appropriate, and the action taken by the airline was retaliatory. OSHA Assistant Secretary Dr. David Michaels commented that "Airline workers must be free to raise safety and security concerns, and companies that diminish those rights through intimidation or retaliation must be held accountable…Airline safety is of vital importance, not only to the workers, but to the millions of Americans who use our airways." Either party can file an appeal with the Labor Department's Office of Administrative Law Judges. Read More.

Employer WIll Pay $150,000 to Settle Allegations of Race Discrimination

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Published on Wednesday, 18 January 2012 15:39

As demonstrated by a recent case, employers must continue to be proactive in ensuring that any form of discrimination, harassment or retaliation is prohibited in the workplace by conducting regular training, instituting the proper policies and procedures, and posting the proper notices about workplace discrimination, harassment and retaliation. The case involves Shack-Findlay Automotive, LLC (doing business as Findlay Honda and Findlay Automotive Group, Inc.), which is a car dealership in Henderson, Nevada. The company will pay $150,000 to two black employees for allegedly subjecting them to discrimination, harassment and retaliation. The EEOC filed suit against the company on behalf of the two employees alleging that a parts department manager made racially derogatory comments and jokes on a near-daily basis and imposed stricter work-related rules on black employees than non-black employees. Two black employees were eventually terminated, one after allegedly advising that he was going to file a discrimination charge against the company. In addition to the monetary settlement amount, the company must hire an outside EEO consultant; distribute its policies and complaint procedures regarding workplace discrimination, harassment and retaliation; track future complaints; and provide annual equal employment opportunity training. Anna Y. Park, regional attorney for the EEOC’s Los Angeles District Office, stated that, “We commend Shack-Findlay Automotive for taking proactive measures to ensure a workplace free of discrimination…We encourage other employers to take steps to ensure that managers are trained about their obligations under Title VII.” Read More.

The Ethics Resource Center Files its Annual National Business Ethics Survey

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Published on Tuesday, 17 January 2012 05:34

The Ethics Resource Center has published its National Business Ethics Survey (NBES), a nationally recognized survey of employees, designed to understand how employees view ethics and compliance at work. The report is significant because its provides insight into national employment related trends and it is the only longitudinal study that tracks the views of employees on these topics,  in addition to the ethics risks they face. The ERC has polled and reported findings on more than 21,000 employees; in 2011, it collected 4,800 responses. Participants in the survey were 18 years of age or older; currently employed at least 20 hours per week for their primary employer; and working for a company that employs at least two people. The employees were randomly selected to attain a representative national distribution. One-third of all participants were interviewed by telephone (over a land line (75 percent of phone sample) or cell phone (25 percent of phone sample)), and two-thirds participated through an online survey (using online panels and communities). All of the participating employees were assured that their responses to survey questions would remain confidential. Highlights of the study include: 22% who reported misconduct in the workplace said they had experienced some kind of retaliation in response, an increase from 15% in 2009;  the percentage of employees who perceived pressure to compromise standards in order to do their jobs climbed five points from 2009 to 13 percent; the share of companies with weak ethics cultures also climbed to near record levels; 34% of employees said their managers do not exhibit ethical behavior; the decisions and behaviors of  leaders in the workplace are perceived by employees as a heightened commitment to ethics--as a result, employees adopt a higher standard of conduct for themselves; interestingly, active social networkers report far more negative experiences in their workplaces—further,  as a group, they are much more likely to experience pressure to compromise ethics standards and to experience retaliation for reporting misconduct than co-workers who are less involved with social networking. Read More.

Employer Will Pay $219,000 for Alleged Discrimination Against Blacks and Caucasians

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Published on Tuesday, 17 January 2012 01:03

The U.S. Department of Labor's Office of Federal Contract Compliance Programs (OFCCP) announced that government contractor JacintoPort International LLC will pay $219,000, and provide other relief, to settle a lawsuit in which the OFCCP alleged that the company engaged in hiring discrimination on the basis of race. The case involves 48 African-American and 21 Caucasian job applicants, who were allegedly rejected for longshoreman positions at the company's cargo facility in Houston.  JacintoPort had previously been cited by the OFCCP for failing to institute an applicant tracking system for new hires, and for failing to develop and execute action-oriented programs to recruit women and African-Americans. That matter was settled on June 6, 2006, and JacintoPort agreed to correct the violations and produce semiannual reports on the company's progress in employing women and minorities. Regarding the current settlement, OFCCP Director Patricia A. Shiu commented that "In this day and age, it is shocking that any company would allow race to be a factor in determining who gets hired…This settlement should put all federal contractors on notice that, in the Obama administration, we will be persistent when it comes to rooting out workplace discrimination and will vigilantly monitor employers who violate the law until they get it right." In reviewing the company’s progress reports, OFCCP investigators apparently discovered that the company was allegedly giving preferential treatment to Latino applicants and systematically discriminating against African-Americans and Caucasians seeking longshoreman jobs. Under the terms of the settlement agreement, JacintoPort has agreed to pay $219,000 in back wages and interest, and make 17 job offers to members of the original class as longshoreman positions become available. In addition, JacintoPort will implement extensive self-monitoring measures to ensure that all hiring practices are compliant with law. Read More.

Employers Must Ensure That Pre-Employment Background Checks Are Not Discriminatory

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Published on Friday, 13 January 2012 07:32

As a recent Equal Employment Opportunity Commission (EEOC) case demonstrates, employers must ensure that pre-employment background checks are not discriminatory. The case involves Pepsi Beverages (Pepsi), which has agreed to pay $3.13 million and provide job offers and training to resolve a charge of race discrimination. Based on its investigation, the EEOC found reasonable cause to believe that the criminal background check policy formerly used by Pepsi discriminated against African Americans was in violation of Title VII of the Civil Rights Act of 1964.  According to the EEOC, more than 300 African Americans were adversely affected when Pepsi applied a criminal background check policy that “disproportionately excluded black applicants from permanent employment.” Pursuant to Pepsi’s former policy, job applicants who had been arrested pending prosecution were not hired for permanent jobs even if they had never been convicted of any offense. Further, Pepsi’s former policy denied employment to job applicants from employment who had been arrested or convicted of minor offenses. The EEOC contends that the “use of arrest and conviction records to deny employment can be illegal under Title VII of the Civil Rights Act of 1964, when it is not relevant for the job, because it can limit the employment opportunities of applicants or workers based on their race or ethnicity.” Julie Schmid, Acting Director of the EEOC’s Minneapolis Area Office commented that, “When employers contemplate instituting a background check policy, the EEOC recommends that they take into consideration the nature and gravity of the offense, the time that has passed since the conviction and/or completion of the sentence, and the nature of the job sought in order to be sure that the exclusion is important for the particular position.  Such exclusions can create an adverse impact based on race in violation of Title VII…We hope that employers with unnecessarily broad criminal background check policies take note of this agreement and reassess their policies to ensure compliance with Title VII.” Read More.

Female Employees Seek $100 Million for Gender Discrimination

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Published on Thursday, 12 January 2012 18:34

Female sales representatives for Quest Diagnostics have accused the diagnostic testing company of gender discrimination in a $100 million federal lawsuit. The lawsuit was filed Thursday in U.S. District Court in Newark, N.J., by two employees of the company's AmeriPath division, Erin Beery and Heather Traeger. They allege a wide range of discriminatory practices by the Fortune 500 company, including that high-ranking company officials fostered an "old boys' club" environment which forced women to work under less favorable circumstances than men and denied them equal advancement opportunities. Read More. 

U.S. Supreme Court Holds “Ministerial Exception” Bars Employee’s ADA Claim

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Published on Thursday, 12 January 2012 04:47

In a recent case, the U.S. Supreme Court considered the question of whether the Establishment and Free Exercise Clauses of the First Amendment bar a wrongful termination action based on disability discrimination in violation of the Americans with Disabilities Act (ADA) against an employer that is a religious group, brought by an employee who is one of the group’s ministers. The case involves Hosanna-Tabor Evangelical Lutheran Church and School, which is a member congregation of the Lutheran Church–Missouri Synod. The Synod classifies its school teachers into two categories: “called” and “lay.” “Called” teachers are regarded as having been called to their vocation by God. To be eligible to be considered “called,” a teacher must complete certain academic requirements, including a course of theological study. Once called, a teacher receives the formal title “Minister of Religion, Commissioned.” “Lay” teachers, by con­trast, are not required to be trained by the Synod. Although lay and called teachers at Hosanna-Tabor usually perform the same duties, lay teachers are hired only when called teachers are unavailable. After respondent Cheryl Perich completed the required training, she became a commissioned minister. In addition to teaching secular subjects, Perich taught a religion class, led students in daily prayer, and took stu­dents to a weekly school-wide chapel service. Perich then developed narcolepsy, and thus suffered from sudden and deep sleeps from which she could not be roused. Because of her illness, Perich began the 2004–2005 school year on disability leave. In January 2005, she notified the school principal that she would be able to report to work in February. The principal responded that the school had already contracted with a lay teacher to fill Perich’s position for the remainder of the school year.

The congregation then voted to offer Perich a “peaceful release” from her call, in which the congregation would pay a portion of her health insurance premiums in exchange for her resigna­tion. Perich refused to resign and produced a note from her doctor stating that she could return to work on February 22. The school board urged Perich to reconsider, advising that they no longer had a position for her, but Perich still refused to resign. Subsequently, the congregation voted to rescind Perich’s call, and Hosanna-Tabor sent her a letter of termination. The EEOC brought suit against Hosanna-Tabor, alleging that Perich had been fired in retaliation for threatening to file an ADA lawsuit. Hosanna-Tabor invoked the “ministerial exception” arguing that the suit was barred by the First Amendment because the claims concerned the employment relation­ship between a religious institution and one of its ministers. The District Court agreed and granted summary judgment in Hosanna­ Tabor’s favor. The Sixth Circuit vacated and remanded. It recog­nized the existence of a ministerial exception rooted in the First Amendment, but concluded that Perich did not qualify as a “minister” under the exception. On appeal, the U.S. Supreme Court reversed, holding that Perich qualified as a minister and that “requiring a church to accept or retain an unwanted minister, or punishing a church for failing to do so, intrudes upon more than a mere employment decision. Such ac­tion interferes with the internal governance of the church, depriving the church of control over the selection of those who will personify its beliefs.” Read More.

U.S. Supreme Court Considers How FMLA Applies to State Workers

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Published on Wednesday, 11 January 2012 18:44

On January 11, 2012, the U.S. Supreme Court heard oral arguments in a case involving how the federal Family and Medical Leave Act (FMLA) applies to state government workers. The case, which could affect millions of state workers, was brought by Daniel Coleman, a Maryland man who says he was wrongfully terminated for trying to take a 10-day medical leave to deal with hypertension and diabetes, and then was barred from suing state officials for monetary damages. The 1993 federal leave act provided workers a right to unpaid medical leave, but Maryland and Coleman disagree about the penalty for violations. Coleman argues he should be able to sue the state for monetary damages. However, Maryland and 26 other states argue they are protected from monetary damages in such cases. Coleman was terminated from his job overseeing contracts for the Maryland court system in 2007. According to Coleman, he was fired after asking for time off for doctor-ordered bed rest to deal with hypertension and diabetes. Pursuant to FMLA, eligible employees can take up to 12 weeks of unpaid leave for certain reasons, including a serious health condition. After being terminated, Coleman sued, alleging a FMLA violation; however, a lower court dismissed his claim. He had asked Maryland to pay him a reported $1.1 million in compensatory and punitive damages. But, as indicate above, lawyers for Maryland argued that Congress should not have provided Coleman with the ability to sue state employers for monetary damages. Unlike private employers, states are generally exempt from such lawsuits. Two lower courts agree with Maryland that Congress overstepped its authority. Read More.

Pepsi to Pay $3.1 Million for Alleged Race Discrimination Related to Background Checks

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Published on Wednesday, 11 January 2012 17:40

Pepsi Beverages Company has agreed to pay $3.1 million to settle federal charges of race discrimination for using criminal background checks to screen out job applicants. According to the Equal Employment Opportunity Commission (EEOC), the company's policy of not hiring workers with arrest records disproportionately excluded more than 300 black applicants. Pursuant to Pepsi’s policy, applicants with arrest records were not hired even if they had never been convicted of a crime. Pepsi also denied employment to those arrested or convicted of minor offenses. The EEOC says using arrest and conviction records to deny employment can be illegal if it's not relevant for the job. Pepsi has since adopted a new criminal background policy. Due to the significant issues this case raises, more information will be provided on the case as it becomes available. Read More.

Employer Must Pay $155,000 for Alleged Sex-Based Harassment of Employee in Iraq

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Published on Wednesday, 11 January 2012 17:13

DynCorp International, LLC, a Virginia-based private military contractor and aircraft maintenance company, will pay $155,000 to settle a sex-based harassment and retaliation lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC) on behalf of an employee working in Iraq. The EEOC filed suit against DynCorp alleging that from October 2006 through January 2007, James Friso, an aircraft sheet metal/structural mechanic working in Taji, Iraq, was subjected to harassment based on his sex by a male co-worker. According to the EEOC, the harassment allegedly included “daily derogatory sex-based comments, such as accusations that Friso was gay and engaged in homosexual acts, and descriptions of homosexual acts.” Friso is married. The co-worker who subjected him to the comments was aware of this and of the fact that he is not homosexual. The EEOC’s lawsuit alleged that despite this knowledge, the co-worker subjected Friso to the harassment because he did not fit the co-worker's gender stereotype for a man. The EEOC also charged that Friso complained to DynCorp about the harassment and was subsequently transferred in retaliation for his complaints. DynCorp has agreed to pay $155,000 to Friso, and to take other actions such as providing anti-harassment and anti-retaliation training to its managers and human resource personnel and posting a notice about the settlement. DynCorp is also enjoined from engaging in further sex-based harassment or retaliation and has agreed to be monitored by the EEOC. According to Lynette A. Barnes, “this lawsuit should remind employers that employees have a legal right to a workplace free of harassment, including harassment based on sex-based stereotypes…Employers must be careful about allowing comments concerning sexual orientation to be made in the workplace because if those comments are based on sexual stereotyping, they might violate the law." Read More.

U.S. Supreme Court Upholds Enforceability of Mandatory Arbitration Agreement in Credit Card Misrepresentation Case

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Published on Tuesday, 10 January 2012 19:57

The U.S. Supreme Court has upheld the enforceability of a mandatory arbitration agreement in a case involving individuals who applied for, and re­ceived, an Aspire Visa credit card marketed by petitioner CompuCredit Corporation and issued by Columbus Bank and Trust, now a division of petitioner Synovus Bank. In their applications for the credit card, the individuals (respondents) agreed to be bound by a provision which read: “Any claim, dispute or controversy (whether in contract, tort, or otherwise) at any time arising from or relating to your Account, any transferred balances or this Agreement (collectively, ‘Claims’), upon the election of you or us, will be resolved by binding arbitration . . . .” In 2008, respondents filed a class-action complaint against CompuCredit and Columbus alleging violations of the Credit Repair Organizations Act (CROA). Their claims largely involved allegedly mislead­ing representations made by the companies that the credit card could be used to rebuild poor credit and the assessment of multiple fees upon opening of the accounts, which greatly reduced the advertised credit limit. Even though respondents had signed the mandatory arbitration agreement, they filed a lawsuit against the peti­tioners in civil court. The federal district court denied the petitioners’ motion to compel arbitration, concluding that Congress intended CROA claims to be nonarbitrable. The Ninth Circuit affirmed. On appeal, the U.S. Supreme Court reversed, holding that the CROA “is silent on whether claims under the Act can proceed in an arbitrable forum, the Federal Arbitration Act (FAA) re­quires the arbitration agreement to be enforced according to its terms. Read More.

NLRB Holds Class Action Waiver in Mandatory Arbitration Agreement Violates the NLRA

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Published on Tuesday, 10 January 2012 19:03

In an unfortunate case for employers, the National Labor Relations Board (NLRB) has ruled that an employer violates Section 8(a)(1) of the National Labor Relations Act (NLRA) by requiring employees, as a condition of their employment, to sign a mandatory arbitration agreement precluding the employee from filing a class claim that addresses issues such as wages disputes, in any forum, arbitral or judicial. In the 2-0 decision, the NLRB found that the agreement contained a class action waiver which the Board held unlawfully restricted an employee’s Section 7 right to engage in concerted action, even though pursuant to the Federal Arbitration Act (FAA), employment-related arbitration agreements are enforceable if properly constructed. The mandatory arbitration agreement in question was implemented by D. R. Horton, Inc., a home builder with operations in more than 20 states. In January 2006, the company required each new and current employee to execute a “Mutual Arbitration Agreement” (MAA) as a condition of employment. The MAA provided in relevant part: “That all disputes and claims relating to the employee’s employment with [the Company]…will be determined exclusively by final and binding arbitration; that the arbitrator “may hear only Employee’s individual claims,” “will not have the authority to consolidate the claims of other employees,” and “does not have authority to fashion a proceeding as a class or collective action or to award relief to a group or class of employees in one arbitration proceeding”; and that the signatory employee waives “the right to file a lawsuit or other civil proceeding relating to Employee’s employment with the Company” and “the right to resolve employment-related disputes in a proceeding before a judge or jury.” Michael Cuda was employed by the company as a superintendent. As a condition of his continued employment, he signed the MAA. Subsequently, Mr. Cuda became part of a class of employees alleging that they had been improperly classified as exempt, and were thus owed overtime. His attorney gave notice of their intent, pursuant to the MAA, to initiate arbitration on behalf of the class. The company’s counsel replied that they failed to provide effective notice of the intent to arbitrate, because the MAA barred arbitration of class claims. The NLRB disagreed, holding the arbitration agreement as drafted was unenforceable. Read More.

ODEP Signs Alliance Agreement with U.S. Customs and Border Protection

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Published on Monday, 09 January 2012 17:49

Assistant Secretary of Labor for Disability Employment Policy (ODEP) Kathleen Martinez and U.S. Customs and Border Protection (CBP) acting Commissioner David V. Aguilar signed an alliance agreement intended to advance President Obama's executive order to increase the hiring of people with disabilities by federal agencies. According to Ms. Martinez, "Today's alliance is an opportunity for ODEP and CBP to demonstrate disability employment practices that will not only result in increased hires at CBP but easily can be replicated by other federal agencies seeking to fulfill the requirements of their executive order plans." The Labor Department's Office of Disability Employment Policy's Alliance Initiative, which was started in 2006, enables organizations seeking to improve their disability workplace practices to work with ODEP in developing and implementing model policies and initiatives that increase recruiting, hiring, advancing and retaining employees with disabilities. CBP is one of the U.S. Department of Homeland Security's largest and most complex components. The agency's responsibilities include securing and facilitating trade and travel while enforcing hundreds of U.S. regulations, including immigration and drug laws. The ODEP mission “is to provide national leadership by developing and influencing disability employment-related policies aimed at increasing the employment of people with disabilities.” Read More.

Employer Settles Race Discrimination Lawsuit for $450,000

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Published on Monday, 09 January 2012 17:30

Matrix, L.L.C., a large cleaning company, will pay $450,000 to a class of 15 former employees and provide other relief to settle a race discrimination and retaliation lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC). According to the EEOC, Matrix officials told white supervisor Barbara Palermi not to hire any more black cleaners to work at one of the company's sites. When Palermi hired additional black cleaners, Matrix dismissed her allegedly in retaliation for opposing the company’s racial discrimination. The EEOC also alleges that Matrix management officials also discriminated against the African-American cleaners, telling them to sit in the back of the cafeteria during break times and later disallowing them from using the cafeteria at all for their breaks. Matrix subsequently terminated all of the employees at the worksite and replaced them with an entirely non-black cleaning crew. Title VII of the 1964 Civil Rights Act prohibits discrimination based on race, and makes it unlawful for an employer to retaliate against an employee for opposing discrimination, including opposing instructions to make hiring decisions based on race. In addition to the monetary relief to the class of fifteen, the settlement bars Matrix from engaging in any further race discrimination or retaliation. Matrix is also required to train its supervisors and managers about the prohibitions against racial discrimination and retaliation, report to the EEOC regarding against complaints of discrimination or retaliation at the work site and post a remedial notice. District Director Spencer H. Lewis, Jr. of the EEOC's Philadelphia District Office commented that “We commend the company for its agreement to carry out the significant equitable relief provided in the consent decree, including providing expansive annual training, which will benefit all company employees.” Read More.

President Obama Announces Recess Appointments to NLRB

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Published on Thursday, 05 January 2012 21:01

President Obama announced his intent to recess appoint three individuals to fill key National Labor Relations Board (NLRB) administration posts that have been left vacant: Sharon Block, Terence F. Flynn and Richard Griffin. According to President Obama, “The American people deserve to have qualified public servants fighting for them every day - whether it is to enforce new consumer protections or uphold the rights of working Americans.  We can’t wait to act to strengthen the economy and restore security for our middle class and those trying to get in it, and that’s why I am proud to appoint these fine individuals to get to work for the American people.” Additional biographical information on the appointees is as follows: (1) Sharon Block is the Deputy Assistant Secretary for Congressional Affairs at the U.S. Department of Labor.  Between 2006 and 2009, Ms. Block was Senior Labor and Employment Counsel for the Senate HELP Committee, where she worked for Senator Edward M. Kennedy. Ms. Block previously served at the National Labor Relations Board as senior attorney to Chairman Robert Battista from 2003 to 2006 and as an attorney in the appellate court branch from 1996 to 2003.  From 1994 to 1996, she was Assistant General Counsel at the National Endowment for the Humanities, and from 1991 to 1993, she was an associate at Steptoe & Johnson.  She received a B.A. in History from Columbia University and a J.D. from Georgetown University Law Center where she received the John F. Kennedy Labor Law Award. (2) Terence F. Flynn is currently detailed to serve as Chief Counsel to NLRB Board Member Brian Hayes.  Mr. Flynn was previously Chief Counsel to former NLRB Board Member Peter Schaumber, where he oversaw a variety of legal and policy issues in cases arising under the National Labor Relations Act.  From 1996 to 2003, Mr. Flynn was Counsel in the Labor and Employment Group of Crowell & Moring, LLP, where he handled a wide range of labor and employment issues, including collective bargaining negotiations, litigation of unfair labor practices, defense of ERISA claims, and wage and hour disputes, among other matters.  From 1992 to 1995, he was a litigation associate at the law firm David, Hager, Kuney & Krupin, where he counseled clients on federal, state, and local employment and wage hour laws, NLRB arbitrations, and other labor relations disputes.  Mr. Flynn started his law career at the firm Reid & Priest, handling labor and immigration matters from 1990 to 1992.  He holds a B.A. degree from University of Maryland, College Park and a J.D. from Washington & Lee University School of Law. Read More.

Court Finds Pre-Employment Arbitration Agreement is Unconscionable

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Published on Thursday, 05 January 2012 04:11

In a recent case, the Third District Court of Appeal held that a clause in an application for employment with AccentCare, Inc. (AccentCare), which required that only the applicant agree that, if hired, any disputes that could not be resolved informally would be submitted to binding arbitration, was both procedurally and substantively unenforceable as unconscionable. The plaintiffs in the case were employed by AccentCare as on-call staffing coordinators. Part of their job duties included ensuring that all cases remained staffed during off hours. Thus, they were required to respond to an off-hour call within 20 minutes. Plaintiffs filed a complaint for damages, injunctive, and declaratory relief, alleging they were not paid for all of the overtime and time they spent handling off-hour calls.  AccentCare brought a motion to compel arbitration of the claims asserted by four of the plaintiffs who had signed an arbitration agreement, and to stay the proceedings asserted by all plaintiffs pending completion of the arbitration. The trial court denied the motion, holding that the agreements were procedurally and substantively unconscionable. On appeal, the court affirmed noting that “in addition to the procedural unconscionability of the pre-employment agreement to give up the right to trial, the agreement at issue was procedurally unconscionable because its language implied there was no opportunity to negotiate, because the rules of any arbitration were not spelled out in the agreement or attached thereto, and because plaintiffs did not understand they were waiving their right to a trial, nor was that fact explained to them.”  Read More.

Employee Terminated Allegedly For Complaining About Coworker Threats

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Published on Tuesday, 03 January 2012 21:03

Grand Central Partnership, Inc. (GCP), a not-for-profit developer of real estate, offices, and facilities around the Grand Central Terminal area in New York, apparently violated a consent decree and committed new illegal acts when it fired a black Rastafarian security officer allegedly in retaliation for his complaints about threats of violence and racism.  According to a lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC), in 2009, EEOC and GCP settled an earlier lawsuit about GCP’s treatment of Rastafarian and Caribbean security officers with a consent decree filed in federal court. Pursuant to that settlement, the parties had agreed that GCP would accommodate the religious practices of the Rastafarian security officers and not retaliate against Rastafarian security officers for their participation in the lawsuit. As part of the settlement, GCP was also subject to supervision by the federal court in that action. The EEOC’s new lawsuit claims that in 2010, the hostility toward Rastafarian employees at GCP resurfaced when a non-Caribbean security officer threatened to shoot and kill a group of Rastafarian officers. After a white security supervisor allegedly made light of the physical threats made to the Rastafarian employees, one of the Rastafarian security officer objected to the supervisor’s conduct. Additionally, he called the supervisor a racist for referring in the past to a group of Rastafarians with the “N word” and for threatening to stand in the way of their receiving wages for their work. After the security officer complained to the supervisor and telephoned EEOC, GCP terminated the employee approximately three months later. Elizabeth Grossman, Regional Attorney of EEOC’s New York District Office, commented that the “EEOC is particularly concerned when it obtains a consent decree to stop violations of the law and the employer turns around and ignores the settlement by reverting to the illegal behavior. We will pursue vigorously retaliation claims against employers whose managers would rather not comply with court orders and fire individuals who object to threats based on their religion and bias based on race.” Read More.

NLRB Postpones Effective Date of Employee Rights Notice Poster

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Published on Tuesday, 03 January 2012 20:28

As a reminder, the National Labor Relations Board (NLRB) has postponed the effective date of its employee rights notice-posting rule at the request of the federal court in Washington, DC which heard a legal challenge regarding the rule. According to the NLRB, postponing the effective date of the rule will facilitate the resolution of the legal challenges that have been filed regarding the poster. The new implementation date is April 30, 2012. Most private sector employers will be required to post the 11-by-17-inch notice on the new implementation date of April 30. The notice is available at no cost from the NLRB through its website, www.nlrb.gov, which has additional information on posting requirements and NLRB jurisdiction. Read More.

Labor Commissioner Issues Template For AB 469 Notice

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Published on Saturday, 31 December 2011 21:27

Governor Brown signed into law AB 469 known as the Wage Theft Protection Act of 2011. The provisions of the Act become effective January 1, 2012.  Labor Code section 2810.5 was added by the bill which requires that all employers must provide each employee at the time of hire with a written notice that contains certain information. The Notice must be provided in the language the employer normally uses to communicate employment-related information to the employee. The Act required that the Labor Commissioner make available for employers a template that complies with the requirements of the Notice. The template is now available at www.dlse.ca.gov. Employers should also realize that Labor Code section 2810.5(b) requires that employers notify employees in writing of any changes to the information set forth in the Notice within seven calendar days after the time of the changes, unless one of the following applies: (a) All changes are reflected on a timely wage statement furnished in accordance with Labor Code section 226; (b) Notice of all changes is provided in another writing require by law within seven days of the changes. The Notice is NOT required if (a) the employee is directly employed by the state or any political subdivision thereof; (b) the employee is exempt from the payment of overtime wages by statute or wage order; or (c) the employee is covered by a collective bargaining agreement that expressly provides for wages, hours of work and working conditions, and provides for premium wage rates for all overtime worked. Read More.

In An Efffort To Battle California’s Underground Economy DIR Launches The Labor Enforcement Task Force

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Published on Friday, 30 December 2011 20:13

The Department of Industrial Relations (DIR) announces the January 1st launch of the newly created Labor Enforcement Task Force (LETF), a collaborative effort between state agencies to combat the underground economy and to improve California’s business environment where legitimate employers can thrive. LETF includes the DIR, the Employment Development Department, Contractor’s State License Board, Board of Equalization, and the Bureau of Automotive Repair, and will collaborate with the Department of Insurance, the Attorney General and Local District Attorneys, and others in affected communities.  The intent is for  LETF to ensure more effective targeting of businesses in the underground economy to eliminate the worst violations of workers’ rights and protections through the collaboration of departments, wider information-sharing and use of new technology for enforcement. The task force will also conduct outreach and education efforts to inform businesses of their rights and responsibilities under the law.  “The goal of LETF is to ensure fair and safe working conditions in all workplaces and promote a level playing field for employers through education and enforcement of state laws,” said Labor and Workforce Agency Secretary Marty Morgenstern. “Labor law violators endanger workers and have an unfair market advantage over law-abiding businesses. We cannot tolerate businesses that skirt the law.”  Businesses operating underground typically violate many laws designed to protect workers and our state’s economy. These include: not paying income taxes, unemployment insurance or disability insurance; not carrying workers’ compensation coverage; not paying proper wages; and not registering for required licenses or permits, which thereby lower their overhead costs and provide them an unfair competitive advantage over legitimate, law-abiding businesses.  “By joining forces with other agencies conducting inspections, we can have a greater impact on stopping labor violations and the underground economy,” said Christine Baker. “Collaboration will also save time and money by avoiding overlapping inspections and focusing our efforts on the egregious violators.” Read more.

California Supreme Court Issues Decision in “Administrative Exemption” Case Involving Claims Adjusters

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Published on Friday, 30 December 2011 07:35

The California Supreme Court has issued a decision in Harris v. Superior Court, a case which involves the important question of how to apply and interpret the administrative exemption to overtime. The plaintiffs in the Harris case were claims adjusters employed by two insurance companies. They filed class action lawsuits alleging the companies improperly classified them as exempt administrative employees, and they were thus entitled to overtime. Due to the unsettled nature of the law on various issues, the trial court suggested the parties seek interlocutory review by the court of appeal; both parties did so. The court of appeal interpreted the administrative exemption as applying to employees who formulate company policy, specifically holding that "Only work performed at the level of policy or general operations can qualify as 'directly related to management policies or general business operations.’ In contrast, work that merely carries out the particular day-to-day operations of the business is production, not administrative, work. That is the administrative/production worker dichotomy, properly understood."  Such reasoning potentially opened the door to a massive number of class actions brought by white collar workers claiming they had been misclassified as exempt. However, the California Supreme Court held that the court of appeal “improperly applied the administrative/production worker dichotomy as a dispositive test.” The Court also noted that “work qualifies as ―administrative when it is ―directly related to management policies or general business operations. Work qualifies as ―directly related if it satisfies two components. First, it must be qualitatively administrative. Second, quantitatively, it must be of substantial importance to the management or operations of the business. Both components must be satisfied before work can be considered ―directly related to management policies or general business operations in order to meet the test of the exemption.” In addition, the Court emphasized that "in resolving whether work qualifies as administrative, courts must consider the particular facts before them and apply the language of the statutes and wage orders at issue.” Ultimately, the Court did not rule on the relative strength of the parties’ positions, but instead concluded that the court of appeal erred in its analysis. Read More.  

Employer Must Pay $300,000 For Terminating an Employee Who Reported a Work-Related Injury

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Published on Thursday, 29 December 2011 20:53

The U.S. Department of Labor's Occupational Safety and Health Administration (OSHA)  is reporting that Omaha, Nebraska based Union Pacific Railroad Company must immediately reinstate an employee in Idaho who the company allegedly terminated after the employee reporting a work-related injury. The company must also pay the employee more than $300,000 in back wages, compensatory damages, attorney's fees and punitive damages. The employee filed a whistleblower complaint with OSHA, alleging suspension without pay and then termination 23 days after allegedly notifying the company of a work-related injury. OSHA's investigation found reasonable cause to believe that the disciplinary charges and termination were not based on the employee violating a work rule but were instead due to the employee reporting the injury to the railroad, which is a violation of the Federal Railroad Safety Act's whistleblower protection provisions. According to Assistant Secretary of Labor for OSHA, Dr. David Michaels, "This case sends a clear message that OSHA will not tolerate retaliation against workers for reporting a work-related injury. An unreported injury is an uninvestigated injury. Nothing is learned that can help prevent the next injury…The safety of all workers is endangered when employers intimidate injured workers so that they do not report injuries." Read More.

NLRB Holds That Symphony Musicians Are Employees Not Independent Contractors

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Published on Thursday, 29 December 2011 20:26

With the advent of the New Year, it is a good time for employers to ensure that they have properly classified their employees both in terms of exempt versus non-exempt status, and in terms of employee versus independent contractor status, particularly since failure to properly classify employees can be costly for an employer. In a recent decision, the National Labor Relations Board (NLRB) found that musicians playing for symphony orchestras in Pennsylvania, Massachusetts and Texas are employees, not independent contractors. As employees they are therefore eligible to vote on whether they want union representation.  In a 2-to-1 decision in Lancaster Symphony Orchestra, which was issued on December 27, the NLRB reversed the Regional Director’s decision to dismiss an election petition and sent the case back to the region for further action. The NLRB then issued two unpublished decisions the following day, in which the Board cited Lancaster, and also found that musicians with the Cape Cod Symphony Orchestra and Plano Symphony Orchestra are employees. In Lancaster, the Board considered numerous factors regarding independent contractor status versus employee status and found the factors weighed heavily in favor of employee status. For example, although musicians have some control over their work by choosing whether or not to bid on programs, “once they are selected to work in relation to a particular program, the musicians’ control over their work time ends.” The Board also observed that orchestra management determines such things as work hours, payment schedules, dress codes and standards for behavior. Further, the Board noted that the musicians do not enjoy entrepreneurial opportunity or suffer risk because their fees are set and cannot be negotiated. Chairman Mark Gaston Pearce and Member Craig Becker voted to approve the decisions. In his dissent in Lancaster, Member Brian Hayes applied the same multi-factor analysis as the majority, but concluded that the factors weigh strongly in favor of finding the musicians to be independent contractors. In particular, on the right of control factor, Member Hayes argued that, under Board precedent, the relevant question is “whether the musicians retain discretion to accept or decline to work with the employer and to play elsewhere,” and concluded that, in this case, they do. In addition, Member Hayes found that the musicians’ ability to take as many or as few jobs as desired and to work for various employers evidenced their entrepreneurial opportunity for gain.  Read More.

NLRB Holds Employee Termination Was Based on Performance Issues Not Facebook Postings

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Published on Wednesday, 28 December 2011 20:42

In a recent case, involving an Employee’s Facebook posting, the National Labor Relations Board (NLRB) has issued an “Advice Memorandum” responding to a request by a Regional Director regarding whether an Employer unlawfully discharged an Employee for her Facebook activity. In the memorandum, the NLRB advises that the Employee’s Facebook posting did not constitute concerted protected activity, and “in any event, the Employer can demonstrate that it would have discharged her for poor work performance regardless of her Facebook activity.” The case involved Intermountain Specialized Abuse Treatment Center (Employer), an agency that provides therapy for individuals or families who have been victims of domestic violence or sexual abuse and for offenders. Most of its clients are referred by the court system. The Employee in question worked as a therapist for the agency. She had ongoing performance problems related to her interactions with offender clients, and the Employer had received numerous complaints from both the Employee’s co-workers and clients, including that clients felt like they were being “attacked.”  The Employee also repeatedly reported late to therapy sessions with clients. The Director documented the numerous performance counseling sessions he had with the Employee over these performance problems. Eventually, the Director removed the Employee from her victims group and replaced her with a co-worker. Subsequently, the Employee posted some comments on her Facebook page, including that she hated staff meetings and that she was “done trying to understand our boss.” A co-worker reported the comments to the Director. Following the Facebook post, the Employee conducted a therapy session in which a victim walked out due to the Employee’s confrontational approach. The following day the Employee was terminated. The NLRB determined that the Facebook posting did not constitute “concerted activity” (seeking mutual aid and protection) which is defined, in part, as “circumstances where individual employees seek to initiate or to induce or to prepare for group action.” Comments made solely by and on behalf of the Employee are not “concerted.” Further, the NLRB determined that even if the Facebook posting was protected activity, there was ample evidence to establish that the Employee was terminated for ongoing performance issues. This case thus also highlights the importance of documenting performance related problems. Read More.

Employers Beware: Cal/OSHA Violation May Result in Felony Charges and Substantial Penalties

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Published on Wednesday, 28 December 2011 19:18

All employers must provide a safe workplace and comply with workplace safety laws. Failure to do so can result in criminal prosecution and substantial monetary penalties. Therefore, to ensure worker safety, comply with the Cal/OSHA law, and avoid serious charges and penalties, employers must display a workplace poster advising employees of their rights and responsibilities under Cal/OSHA; implement a written and effective injury and illness prevention program for employees to follow; understand the particular hazards each employee faces on the job and keep records showing that each employee has been trained in the hazards unique to each job assignment;  immediately correct any hazardous condition that the employer knows may result in serious injury to employees; and, notify the nearest Cal/OSHA office of any serious injury or fatality occurring on the job. Further, an employer must never: (1) permit an employee to do work that violates Cal/OSHA law; (2) permit an employee to be exposed to harmful substances without providing adequate protection; and, (3) allow an untrained employee to perform hazardous work. Cal/OSHA violations carry penalties of up to $7,000 for each violation and up to $25,000 for each serious violation. A willful violation that causes death or permanent impairment of the body may result, upon conviction, in a fine of not more than $250,000, or imprisonment up to three years, and if the employer is a corporation the fine may be up to $1.5 million. In a recent case, the Los Angeles County district attorney filed felony charges against the University of California and a UCLA chemistry professor in connection with a laboratory fire that killed a staff research assistant. The incident occurred in December of 2008, when Sheharbano Sangji sustained severe burns when air-sensitive chemicals broke into flames during an experiment and ignited her clothing. Sangji was not wearing a protective lab coat. She died 18 days later. Her death raised questions about UCLA lab-safety practices, as well as the employee training and supervisory practices of professor Patrick Harran, a member of UCLA’s faculty for whom Sangji worked. The district attorney’s office has charged Harran and the regents of the University of California with three counts each of willfully violating occupational health and safety standards, resulting in Sangji’s death. Harran faces up to 4 1/2 years in state prison and UCLA could be fined up to $1.5 million on each count. UCLA issued a statement emphasizing that “UCLA intends to mount a vigorous defense against the outrageous charges announced today by the Los Angeles County District Attorney’s Office.” Read More.

EEOC Fact Sheet for Small Business Information

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Published on Tuesday, 27 December 2011 21:51

The Equal Employment Opportunity Commission (EEOC) has created a “Fact Sheet” for small businesses that has helpful information on a variety of work related topics. Highlights are as follows: (1) What laws does the Equal Employment Opportunity Commission enforce? The Equal Employment Opportunity Commission (EEOC) enforces the following federal laws: Title VII of the Civil Rights Act of 1964 (Title VII), Age Discrimination in Employment Act (ADEA), Equal Pay Act (EPA), titles I and V of the Americans with Disabilities Act, as amended (ADA), and title II of the Genetic Information Nondiscrimination Act of 2008 (GINA). These laws prohibit employment discrimination based on race, color, sex, religion, national origin, age, disability, genetic information, or in retaliation for opposing job discrimination, filing a charge or participating in proceedings under the laws. EEOC's mandate is to determine in a fair and objective manner whether the laws it enforces have been violated; (2) What small businesses are covered? The laws cover all private employers, state and local government employers, and educational institutions that employ 15 or more individuals, except for ADEA which covers employers with 20 or more employees. These laws also cover private and public employment agencies, labor organizations, and joint labor management committees controlling apprenticeship and training; (3) When can employees file charges? Employees must file their charge with EEOC within 180 days from the date of the alleged discrimination. If the employer is also covered by a state or local employment discrimination law, the time to file a charge with EEOC is extended to 300 days; (4) How are charges filed with the EEOC? Any individual who believes that his or her employment rights have been violated because of his or her race, color, sex, religion, national origin, age, disability, genetic information, or because of retaliation may file a charge of discrimination with EEOC. Under statute, EEOC must accept the filing of a charge. EEOC investigators interview individuals alleging employment discrimination to establish whether there is jurisdiction. Investigators explore in detail a potential charging party's description of the alleged violation and the pertinent date(s). This information is assessed to determine the potential merits of the charge. Based upon the EEOC’s assessment, the EEOC advises the potential charging party whether the agency will investigate or immediately dismiss the charge. The EEOC will notify the employer within 10 days of accepting a charge. Notification normally includes a copy of the charge briefly identifying (a) the charging party, (b) the bases and issue(s) of the allegation, (c) the date of the alleged violation, and (d) an explanation of the employer’s obligation to retain records pertaining to the charge. An offer to mediate the complaint may also be included in the notification package. Read More.

10 Steps Employers Should Take To Avoid Immigration-Related Employment Discrimination

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Published on Tuesday, 27 December 2011 06:08

The Office of Special Counsel (OSC) for Immigration-related Unfair Employment Practices enforces the laws that prohibit discriminatory workplace practices in the recruitment, hiring, employment eligibility verification (“Form I-9”) process or dismissal of persons authorized to work in the United States. The OSC has provided a list of 10 steps an employer should take to avoid discriminatory practices, which are as follows: “(1) Treat all people the same when announcing a job, taking applications, interviewing, offering a job, verifying eligibility to work, hiring, and firing; (2)  Examine and accept original documents that reasonably appear genuine and relate to the employee; (3) Do not demand different or additional documents as long as the documents presented prove identity and work authorization, are listed on the back of Form I-9, and appear genuine; (4) So long as the job applicants are authorized to work in the United States, avoid requiring job applicants to have a particular citizenship status, such as U.S. citizenship or permanent residence, unless mandated by law or federal contract; (5) Give out the same job information over the telephone to all callers, and use the same application form for all applicants;  (6) Base all decisions about firing on job performance and/or behavior, not on the appearance, accent, name, or citizenship status of your employees; (7) Complete the I-9 form and keep it on file for at least 3 years from the date of employment or for one year after the employee leaves the job, whichever is later; (8) On the I-9 form, verify that you have seen documents establishing identity and work authorization for all your new employees—U.S. citizens and noncitizens alike—hired after November 6, 1986; (9) If reverification of employment eligibility becomes necessary, accept any valid documents your employee chooses to present—whether or not they are the same documents the employee provided initially. For reverification, employees need only present either a List A document or a List C document; (10) Be aware that U.S. citizenship, or nationality, belongs not only to persons born within the fifty states, but may belong to persons born to a U.S. citizen outside the United States. Persons born in Puerto Rico, Guam, the Virgin Islands, the Commonwealth of the Northern Mariana Islands, American Samoa, or Swains Island also are U.S. citizens or nationals. Finally, an immigrant may become a U.S. citizen by completing the naturalization process.” Read More.

Wal-Mart Will Pay $275,000 for Alleged Disability Discrimination

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Published on Friday, 23 December 2011 17:41

Wal-Mart Stores Inc. will pay $275,000 to settle a disability discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC). According to the EEOC, Wal-Mart allegedly refused to provide an accommodation to a 12 year employee of its East Tennessee distribution center in Midway, Tennessee, after he had cancer surgery, which left him with weakness in his right shoulder. The EEOC charged that Wal-Mart also terminated the employee allegedly because he complained about its refusal to accommodate him, thereby engaging in retaliatory conduct. The employee had successfully worked as a forklift driver after the surgery. He requested that the company accommodate him by not requiring him to cover a 20-minute break in the shipping department because it would require manual lifting. However, Wal-Mart denied his request for an accommodation and discharged him, claiming he could not perform the essential functions of his job. This case was among the EEOC’s first lawsuits filed under the ADAAA. EEOC regional attorney Faye A. Williams commented that, “There is a solid body of federal law that clearly obligates employers to provide an employee with a reasonable accommodation unless it poses an undue hardship…The EEOC remains committed to vigorously enforcing the ADA and the ADAAA.” In addition to the settlement amount, the suit enjoins Wal-Mart’s distribution center from further failing to provide reasonable accommodation, absent undue hardship, or following proper procedures for handling such requests per the ADA and ADAAA. In addition, Wal-Mart must provide anti-disability discrimination training to its management staff; maintain records of any accommodation requests and provide them to the EEOC; and post a notice to employees about the lawsuit that includes the EEOC’s contact information. Wal-Mart has also amended its accommodation policy, which it distributed to all employees. Wal-Mart Stores has with more than 8,576 retail units under 55 different banners in 15 countries. Read More.

NLRB Extends Required Date for Posting Notice on Union Rights

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Published on Friday, 23 December 2011 17:29

On December 23, 2011, The National Labor Relations Board (NLRB) announced that it has postponed the effective date of its employee rights notice-posting rule at the request of the federal court in Washington, DC, which is considering a legal challenge regarding the rule. The NLRB’s ruling states that it has determined that postponing the effective date of the rule would facilitate the resolution of the legal challenges that have been filed with respect to the rule. The new implementation date is April 30, 2012.  The notice is to advise employees that they have the following rights under the NLRA: (1) to act together to improve wages and working conditions, to form, join and assist a union, to bargain collectively with their employer, and (2) to refrain from any of these activities. The notice also provides examples of unlawful employer and union conduct and advises employees on how to contact the NLRB with any questions or complaints. According to the NLRB, the “11-by-17-inch notice should be posted in a conspicuous place, where other notifications of workplace rights and employer rules and policies are posted.” Most private sector employers will be required to post the notice on the new implementation date of April 30. The notice is available at no cost from the NLRB through its website, www.nlrb.gov, which has additional information on posting requirements and NLRB jurisdiction. Read More.

DOL Issues Three New Fact Sheets on the Subject of Retaliation

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Published on Friday, 23 December 2011 17:12

The U.S. Department of Labor Wage and Hour Division (WHD) has released three new fact sheets regarding retaliation. Fact Sheet #77A, “Prohibiting Retaliation Under the Fair Labor Standards Act (FLSA),” provides general information concerning the FLSA’s prohibition of retaliating against any employee who has filed a complaint or cooperated in an investigation and is available on the WHD website at http://www.dol.gov/whd/regs/compliance/whdfs77a.htm. Fact Sheet #77B, “ Protection for Individuals under the FMLA, provides general information concerning the Family and Medical Leave Act’s (FMLA) prohibition of retaliating against an individual for exercising his or her rights or participating in matters protected under the FMLA and is available on the WHD website at http://www.dol.gov/whd/regs/compliance/whdfs77b.htm. Fact Sheet #77C, “Prohibiting Retaliation Under the Migrant and Seasonal Agricultural Worker Protection Act (MSPA),” provides general information concerning MSPA’s prohibition of discrimination against a migrant or seasonal agricultural worker who has filed a complaint or participated in any proceeding under or related to MSPA and is available on the WHD website at http://www.dol.gov/whd/regs/compliance/whdfs77c.htm. Read More. 

Supreme Court Sets Dates for Oral Argument on Challenges to Health Care Law

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Published on Wednesday, 21 December 2011 18:25

The U.S. Supreme Court recently announced that it has set the date for oral arguments on the health care reform law for March 26-28, 2012. Attorneys will have five-and-a-half hours over three days in which to argue specific questions related to the controversial law, known as the Patient Protection and Affordable Care Act. The health care law, which was signed into law in March 2010, is intended to expand the number of Americans who have access to health insurance coverage. Decisions in the lower courts regarding the health care law have been split. In the largest of the lawsuits, the attorneys general of 26 states, led by Florida, filed suit against the federal government over the health insurance mandate. These states argue that the required health insurance is a product that individuals may not want or need. The federal government argues that all Americans need medical care at some point, and uninsured individuals incur billions in uncompensated costs that insurers must pass on to their covered customers. At the Supreme Court, several consolidated lawsuits (Department of Health and Human Services v. Florida; National Federation of Independent Business v. Sebelius; and Florida v. Department of Health and Human Services ) seek decisions on legal challenges regarding the requirement that all individuals have a minimum level of health insurance or pay a tax penalty and questions around federal powers to force states to expand Medicaid eligibility and thus incur tremendous costs. The Supreme Court is considering four legal questions to be argued for a set time over the three days: (1) Whether the Anti-Injunction Act bars the lawsuit that challenges the insurance coverage mandate before it goes into effect in 2014 (1 hour); (2) Whether Congress has the power under Article 1 of the Constitution, or the commerce clause, to regulate economic inactivity in order to mandate minimum coverage (2 hours); (3) Whether Congress exceeded its powers in mandating minimum coverage, and if so, is the law in its entirety invalidated or to what extent can the individual mandate be separated from the remainder of the law; (4) Whether Congress exceeded its powers by forcing states to accept an expansion of Medicaid costs and administration under pain of losing Medicaid funding (1 hour). It is likely that the Supreme Court will render its decision during the summer of 2012. Read More.

A Medical Leave of Absence Can be a Reasonable Accommodation

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Published on Wednesday, 21 December 2011 18:04

Employers must recognize that a medical leave of absence can be a reasonable accommodation, and depending on the circumstances, that failure to grant a medical leave of absence or terminating an employee while on a medical leave of absence can be a violation of the Fair Employment and Housing Act (FEHA)/Americans with Disabilities Act (ADA). In a recent case, American Apparel,  Inc., a clothing manufacturer employing thousands of workers at its production facility in Los Angeles and at retail stores around the country, has agreed to pay  $60,000 to settle a disability discrimination lawsuit  filed by the Equal Employment Opportunity Commission (EEOC).  The EEOC charged that the company allegedly violated federal law when it terminated a garment worker while he was on a leave of absence related to his disability, thereby failing to accommodate the employee’s disability, in violation of the (ADA). As part of the settlement, American Apparel agreed to adopt a comprehensive ADA policy; agreed to provide training to its managers and supervisors regarding the ADA; agreed to inform employees about their rights under the ADA and how to seek accommodations under the law; and agreed to designate an ADA coordinator who will oversee implementation of the settlement decree and the company’s ADA policy going forward. American Apparel will pay the terminated garment worker $40,000 and spend  $20,000 of the $60,000 settlement amount to sponsor, in conjunction with Los Angeles-based non-profit organizations, two seminars on the rights of workers  and responsibilities of employers under the ADA. According to Anna Y. Park, regional attorney for the EEOC, “We are pleased that American  Apparel recognizes the importance of the ADA and  is implementing measures to insure its full compliance with the ADA going forward…Employers should enforce  internal policies and procedures flexible enough to fairly and promptly address accommodation requests by those with disabilities.” Read More.

Blockbuster to Pay Over $2 Million for Alleged Sex, Race and National Origin Discrimination

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Published on Tuesday, 20 December 2011 19:39

Blockbuster, Inc. has entered into a consent judgment in which the company has agreed to pay over  $2 million to settle an employment discrimination lawsuit filed by the U.S.  Equal Employment Opportunity Commission (EEOC). The EEOC alleged that at a Blockbuster distribution faciility located in Maryland, supervisors subjected female temporary employees to sexual harassment, and then retaliated against the employees for resisting sexual advances and complaining. The EEOC also alleged that the company's supervisors subjected Hispanic temporary employees to national origin and race harassment and other discrimination.  Specifically, the EEOC charged that the male supervisory staff engaged in and condoned the harassment of a class of seven female employees, four of whom are Hispanic. The EEOC charged that the incidents of harassment committed by Blockbuster supervisors included alleged repeated requests for  sexual favors; yelling; insults; threats; unwelcome sex-related questioning; offense racial remarks; touching women’s intimate body areas; and other discriminatory  conduct. According to the EEOC, the conduct culminated in the denial of work hours, discriminatory firings, forced resignations and other adverse employment actions. EEOC Philadelphia Regional Attorney Debra M. Lawrence commented that,  “This case should act as a warning  to all employers who use staffing agency personnel…Employers who are customers of staffing  agencies have a responsibility to protect their temporary workers from unlawful  discrimination. Too frequently, such employers fail to create systems to prevent and detect abuse of temporary workers and fail to respond forcefully to it. Those employers do so at their peril.” Read More.

DOL Proposes Amendments to Domestic Caregiver Regulations

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Published on Tuesday, 20 December 2011 19:23

The Department of Labor’s (DOL) Wage and Hour Division (WHD) has issued a proposed rule that could make domestic caregivers eligible to receive minimum wage and overtime pay under the Fair Labor Standards Act (FLSA). According to the WHD, “although Congress expanded protections to “domestic service” workers in 1974, these Amendments also created a limited exemption from both the minimum wage and overtime pay requirements of the Act for casual babysitters and companions for the aged and infirm, and created an exemption from the overtime pay requirement only for live-in domestic workers. Although the regulations governing exemptions have been substantially unchanged since they were promulgated in 1975, the in-home care industry has undergone a dramatic transformation. There has been a growing demand for long-term in-home care, and as a result the in-home care services industry has grown substantially. However, the earnings of in-home care employees remain among the lowest in the service industry, impeding efforts to improve both jobs and care. Moreover, the workers that are employed by in-home care staffing agencies are not the workers that Congress envisioned when it enacted the companionship exemption (i.e., neighbors performing elder sitting), but instead are professional caregivers entitled to FLSA protections. In view of these changes, the Department believes it is appropriate to reconsider whether the scope of the regulations are now too broad and not in harmony with Congressional intent.” The Department will publish a Notice of Proposed Rulemaking (NPRM) to revise the companionship and live-in worker regulations for two important purposes: (1) To more clearly define the tasks that may be performed by an exempt companion; and, (2) To limit the companionship exemption to companions employed only by the family or household using the services. Third party employers, such as in-home care staffing agencies, could not claim the exemption, even if the employee is jointly employed by the third party and the family or household. Read More.

Wal-Mart Sued for Alleged Disability Discrimination

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Published on Monday, 19 December 2011 06:13

The Equal Employment Opportunity Commission (EEOC) has filed a lawsuit against Wal-Mart for allegedly failing to accommodate an employee with a disability. The EEOC also alleges that Wal-Mart later terminated the worker because of his disability and in retaliation for asserting his civil rights. According to the EEOC’s investigation, David Gallo worked at the Wal-Mart in Placerville, California, starting in June 2003. During his six years at the store, Gallo’s successful performance was reflected in promotions from overnight stocker to manager of the store’s tire lube express bay. Gallo has atrial fibrillation, a heart condition that causes shortness of breath and difficulty walking. In March 2008, the new store manager barred Gallo from parking in the handicap parking spaces and any spaces close to the front of the store, despite the company’s knowledge that Gallo had a disability. Gallo filed a charge with the EEOC for Wal-Mart’s failure to accommodate his disability in September 2008. Eight months later, he was terminated allegedly for an error made by a subordinate, even though the subordinate and the inspector who had reviewed his work were not discharged. EEOC San Francisco Regional Attorney William R. Tamayo said, “In December 2001, the EEOC reached a $6.5 million settlement with Wal-Mart. That consent decree was in effect for four years, resolved 13 different cases of disability discrimination against the company throughout the U.S., and required Wal-Mart to hire an ADA coordinator. Nevertheless, it appears that some store managers still do not understand their obligation to accommodate people with disabilities.” EEOC San Francisco District Director Michael Baldonado commented, “Wal-Mart could have easily accommodated Mr. Gallo, but despite his repeated requests, nothing happened until he filed his EEOC charge. Wal-Mart compounded its mistake by firing him in retaliation.  The EEOC will defend employees’ rights to ask for an accommodation for their disabilities and to report discrimination when employers fail to respond properly to their requests.” Read More.

EEOC Launches Small Business Task Force

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Published on Monday, 19 December 2011 05:40

The U.S. Equal Employment Opportunity Commission (EEOC) has launched an internal task force, the Small Business Task Force, which will focus on expanding and improving outreach and technical assistance to small businesses. The Small Business Task Force will be headed by Commissioner Constance S. Barker, and will look for ways in which the agency can better serve the small business community to ensure compliance with federal anti-discrimination laws. The internal task force includes EEOC District Directors from the Birmingham, Charlotte and San Francisco offices; program analysts responsible for outreach from the San Antonio, Los Angeles, and Philadelphia offices; and representatives from the Offices of Field Programs, General Counsel, Legal Counsel, and Communications and Legislative Affairs. The Task Force will, among other things, develop recommendations on how to: (1) Utilize new technology to expand outreach to small businesses; (2) Develop technical assistance and training initiatives for small businesses; (3) Identify specialized approaches to aid small businesses owned by women and minorities; (4) Identify specialized approaches for micro businesses, generally those with 50 or fewer employees; and, (5) Enhance small business information and training on the EEOC’s web site. The Task Force intends to focus on newly established small businesses and those that are too small to afford lawyers or human resource personnel. EEOC Chair Jacqueline A. Berrien commented that, “I am pleased that Commissioner Barker is leading this important effort to assist small businesses in complying with the laws and regulations enforced by the EEOC…The Task Force demonstrates our commitment to strengthening the lines of communication with small business owners and educating them about their responsibilities, including the benefits of preventing and resolving discrimination claims.” The Task Force will work during 2012 to develop recommendations to the Commission, which will be presented in a public Commission meeting. Read More.

DLSE Forms “Compliance Monitoring Unit”

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Published on Thursday, 15 December 2011 20:03

The Compliance Monitoring Unit or “CMU” is a new unit within the Division of Labor Standards Enforcement (DLSE) intended to monitor and enforce prevailing wage requirements on public works projects receiving state bond funding and on other projects that are required to use the CMU.  The CMU will begin operations on January 1, 2012, following the recent adoption of AB 436 and approval of revisions to program regulations. According to the DLSE, “by actively monitoring compliance on an ongoing basis while work is being performed, the CMU will play a special role in ensuring that public works construction workers are promptly paid the proper prevailing wage rates and in helping maintain a level playing field for contractors who comply with the law.” Only projects for which the public works contract has been awarded on or after January 1, 2012 will be subject to the CMU requirements. Contracts awarded prior to January 1, 2012 will be subject to the prior monitoring and enforcement rules for the duration of those projects. Read More.

President Obama Nominates Two Individuals to NLRB

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Published on Thursday, 15 December 2011 19:47

President Barack Obama announced his intent to nominate two individuals to the National Labor Relations Board (NLRB), Sharon Block and Richard Griffin. Ms. Block is currently the Deputy Assistant Secretary for Congressional Affairs at the U.S. Department of Labor.  Between 2006 and 2009, she was Senior Labor and Employment Counsel for the Senate HELP Committee, where she worked for Senator Edward M. Kennedy. Ms. Block previously served at the NLRB as senior attorney to Chairman Robert Battista from 2003 to 2006 and as an attorney in the appellate court branch from 1996 to 2003.  From 1994 to 1996, she was Assistant General Counsel at the National Endowment for the Humanities, and from 1991 to 1993, she was an associate at Steptoe & Johnson.  She received a B.A. in History from Columbia University and a J.D. from Georgetown University Law Center where she received the John F. Kennedy Labor Law Award. Mr. Griffin is currently General Counsel for International Union of Operating Engineers (IUOE).  He also serves on the board of directors for the AFL-CIO Lawyers Coordinating Committee, a position he has held since 1994.  Since 1983, he has held a number of leadership positions with IUOE from Assistant House Counsel to Associate General Counsel.   From 1985 to 1994, Mr. Griffin served as a member of the board of trustees of the IUOE’s central pension fund.  From 1981 to 1983, he served as a Counsel to NLRB Board Members.  Mr. Griffin holds a B.A. from Yale University and a J.D. from Northeastern University School of Law. President Obama commented on the nominations, noting that “Our nation will be greatly served by the talent and expertise these individuals bring to their new roles.  I am grateful they have agreed to serve in this Administration, and I look forward to working with them in the months and years ahead.” Read More.

Employers Must Prevent Harassment of Disabled Employees

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Published on Wednesday, 14 December 2011 21:44

A recent lawsuit filed by the Equal Employment Opportunity Commission (EEOC) highlights the fact that employers must not tolerate harassment of employees in the workplace, including harassment of disabled employees. The case involves the King Soopers supermarket chain in Colorado. The company must pay $80,000 to a mentally disabled employee who worked at one of its stores and furnish other relief to settle a disability discrimination lawsuit filed by the EEOC on behalf of the employee. According to the EEOC’s suit, a King Soopers’ supervisor, head clerk, and service manager, allegedly subjected a ten-year employee to repeated bullying and taunting because of his learning disability. The EEOC alleged that the company eventually terminated Stringer. The alleged conduct is in violation of the Americans with Disabilities Act (ADA). In addition to the monetary settlement, King Soopers will provide training to all of its supervisors and managers about the ADA and how to properly interact with employees with special needs. King Soopers must also provide periodic reports to the EEOC concerning all complaints of disability discrimination for the next three years. EEOC Regional Attorney, Mary Jo O’Neill commented that “Employees with disabilities must be treated with the same dignity and respect as all other members of the work force…The EEOC will continue to enforce the ADA to protect the rights of disabled employees and applicants.” Read More.

Ministerial Exemption Bars Employee’s Claim Against Church for Wrongful Termination

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Published on Wednesday, 14 December 2011 21:25

Sara Henry sued Red Hill Evangelical Lutheran Church of Tustin (“the Church”) for wrongful termination pursuant to the California Fair Employment and Housing Act (“FEHA”) and for wrongful termination in violation of public policy based upon her termination from the Red Hill Lutheran School (“the School”) which occurred because she was living with her boyfriend and raising their child together without being married. The Church was formed for nonprofit religious purposes and is tax exempt. The School is part of the church’s ministry and does not exist as a separate legal entity. Henry was an at-will employee of the Church. She started as a preschool teacher and became the director of the preschool in 2003. She continued teaching a preschool class in addition to her duties as director. Henry knew the School was “Bible-based.” Although teachers were not required to be Lutheran — Henry is Catholic — teachers were required to be practicing Christians “involved in a church-based setting on a regular basis.” Henry was married when she applied to the school for a teaching position. She subsequently divorced and gave birth to a child fathered by her boyfriend. While Henry was pregnant, she told representatives of the Church that she intended to get married, but was not ready to do so just yet. A pastor from the Church then met with Henry. They discussed her living with her boyfriend and he inquired as to whether Henry intended to marry him. Henry said she and her boyfriend intended to get married, but did not know when. She understood that her living arrangement was “contrary to the religious and moral beliefs of the church.” Henry also recognized before she became pregnant that living with boyfriend was contrary to the teachings of the Bible. The school subsequently terminated Henry’s employment for living with her boyfriend and raising their son together without being married, which the Church deemed to be a “failure to adhere with the Professional Expectations of the teaching staff in that her living arrangements were contrary to the religious beliefs of the church and school.”  Henry filed a complaint against the Church alleging that the Church terminated her employment based upon her marital status, in violation of the FEHA. The trial court held that the ministerial exception applied and entered judgment in favor of the Church. On appeal, the court affirmed holding that (1) Henry’s claim of wrongful termination under the FEHA was barred because the Church did not qualify as an “employer” under the FEHA; (2) Henry’s employment was terminated for religious reasons for which the Church and School are exempt under Title VII of the 1964 Civil Rights Act; and additionally, (3) Henry’s claim for wrongful termination in violation of public policy was barred by the ministerial exception. Read More.

EEOC Sues Employer for Alleged Religious Discrimination Based on Failure to Accommodate

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Published on Monday, 12 December 2011 23:36

The Equal Employment Opportunity Commission (EEOC) has filed suit against a nursing home alleging that the facility violated federal law when it terminated a Jehovah’s Witness based on  her religion and need for a religious accommodation. According to the EEOC’s lawsuit, Whitehall Healthcare terminated the employee, a Jehovah’s Witness, from her job as a certified nursing assistant, allegedly due to her need to have Wednesdays and Sundays off to attend religious services. Title VII of the Civil Rights Act of 1964, protects employees against discrimination based on religion and requires employers to provide employees with reasonable accommodations to allow them to practice their sincerely held religious beliefs. Lauren Gibbs, trial attorney for the EEOC commented that “An employer has a legal duty to  accommodate an employee's sincerely held religious beliefs, plain and simple…Firing someone for asserting that right violates federal law against religious discrimination and only makes a bad situation  worse.” Read More.

Senate Committee Holds Hearing on Obstacles Faced by Unemployed

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Published on Monday, 12 December 2011 23:14

The Senate Committee on Health, Education, Labor and Pensions (HELP) recently held a hearing to review the obstacles faced by the unemployed who are seeking employment. Committee Chairman Tom Harkin (D-IA), is in favor of proposed legislation that would prohibit discrimination against a job applicant based on his or her unemployment status. In February of 2011, the Equal Employment Opportunity Commission held a meeting to review what the agency believes is an “emerging practice” on the part of employers to exclude those who are currently unemployed from the pool of applicants. Subsequently, Rep. Henry Johnson (D-GA) introduced the Fair Employment Act of 2011 (H.R. 1113), which proposes to amend Title VII of the Civil Right Act by adding “unemployment status” as a protected classes. Another unemployment status-related bill was introduced on July 12, 2011, the Fair Employment Opportunity Act of 2011 (H.R. 2501) which also proposes protections for unemployed individuals seeking employment. Read More.

DOL Proposes Hiring Goal of a Workforce Consisting of 7% Disabled for Federal Contractors

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Published on Friday, 09 December 2011 20:59

The U.S. Department of Labor (DOL) is proposing a new rule requiring federal contractors and subcontractors to set a hiring goal in which 7 percent of their workforces would consist of disabled employees,  among other requirements. The department's Office of Federal Contract Compliance Programs (OFCCP) invites public comment on this proposal, which will be published in the December 9 edition of the Federal Register. The proposed rule would strengthen the affirmative action requirements established in Section 503 of the Rehabilitation Act of 1973 which require that federal contractors and subcontractors ensure equal employment opportunities for qualified workers with disabilities. The proposed regulatory changes detail specific actions contractors must take in the areas of recruitment, training, record keeping and policy dissemination — similar to those in place for women and minorities. In addition, the rule would clarify OFCCP's expectations for contractors by providing specific guidance on how to comply with the law. Secretary of Labor Hilda L. Solis commented that, "This proposed rule represents one of the most significant advances in protecting the civil rights of workers with disabilities since the passage of the Americans with Disabilities Act…President Obama has demonstrated a commitment to people with disabilities. This proposed rule would help federal contractors better fulfill their legal responsibility to hire qualified workers with disabilities." Although Section 503 regulations have been in place for decades, the current unemployment rate for people with disabilities is 13 percent, 1 1/2 times the rate of those without disabilities. Even more discouraging, data published last week by the department's Bureau of Labor Statistics show stark disparities facing working-age individuals with disabilities, with 79.2 percent outside the labor force altogether, compared to 30.5 percent of those without disabilities. Read More.

HR Practice Pointer: What Benefits Must an Employer Provide to an Employee on CFRA Leave?

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Published on Thursday, 08 December 2011 07:06

An employer covered by the California Family Rights Act (CFRA) is not required to pay an eligible employee during a CFRA leave, except when the employee elects, or the employer requires, the employee to use any accrued vacation time or other accumulated paid leave other than accrued sick leave. However, if CFRA leave is for the employee's own serious health condition, the employee may elect or the employer may require the employee to use any accrued vacation time or other accumulated paid leave, including any accrued sick leave. Additionally, the employee may elect to use accrued sick leave for any other reason mutually agreed to by the employer. If the employer provides health benefits under any group health plan, the employer has an obligation to continue providing such benefits during an employee's CFRA leave. This obligation commences on the date leave first begins and continues for the duration of the leave(s), up to a maximum of 12 work weeks in a 12-month period. The employee can be required to make his or her share of the premium contribution. During CFRA leave, the employee is entitled to accrual of seniority and to participate in employee benefit plans, including life, short-term or long-term disability or accident insurance, pension and retirement plans, and supplemental unemployment benefit plans to the same extent and under the same conditions as would apply to any other leave granted by the employer for any reason other than CFRA leave. Read More.

Court Rules $2 Million Dollar Judgment in WC Retaliation Case Was Excessive

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Published on Thursday, 08 December 2011 06:45

The 10^th Circuit Court of Appeal has held that a jury’s $2 million dollar punitive damage award against United Parcel Services (UPS), in favor of Keith Jones, a former employee, was excessive. Ultimately, Jones was awarded a reduced amount of $630,000 in punitive damages. The case involved a lawsuit filed by Jones who alleged that UPS terminated him in retaliation for filing a workers’ compensation claim. Jones worked as a package car driver, which requires lifting of up to 70 pounds. While working, Jones suffered a series of work-related injuries, including an injury to his left shoulder, for which he filed a workers’ compensation claim. Dr. Gary Legler, UPS’s company doctor, examined Jones, concluding that he could return to work if he did not lift more than 20 pounds, or lift anything above shoulder level. Dr. Legler referred Jones to an orthopedic specialist, Dr. Daniel Stechshulte, for further evaluation. Dr. Stechshulte examined Jones and concluded he could return to work, but with no overhead lifting of more than 20 pounds and no chest-to-shoulder lifting over 45 pounds. Jones alleges that UPS’s labor manager reviewed Dr. Stechshulte’s work release and told Jones that he could no longer work as a package car driver because of the permanent lifting restrictions. Jones then contacted his union representative, who suggested he see Dr. Michael Poppa. The doctor examined Jones and concluded he could return to work as a package car driver without restrictions. However, pursuant to the collective bargaining agreement (“CBA”) between UPS and the union, once Jones was cleared to work by his own doctor, he had to be re-examined by Dr. Legler.  During the examination by Dr. Legler, Jones successfully performed a lift test which required him to demonstrate that he could lift 70 pounds. Dr. Legler then released Jones to work without restrictions and he sent a copy of Jones’s work release to Monica Sloan, an occupational health manager for UPS. Sloan contacted Dr. Legler and asked him if he was aware that Dr. Stechshulte had imposed a permanent 20-pound overhead lifting restriction on Jones. Dr. Legler testified at trial that when he told Sloan he was unaware of Dr. Stechshulte’s report, Sloan asked him “if he would . . . mind changing [his] return to work evaluation to reflect the 20 pound lift limit that Dr. Stechschulte had given [Jones].” Sloan testified, however, that she did not ask Dr. Legler to change his diagnosis.  Following his conversation with Sloan, Dr. Legler changed Jones’s work restriction to match Dr. Stechshulte’s, at which point UPS refused to permit Jones to return to work. Subsequently, Jones filed suit against UPS alleging disability discrimination and retaliation in violation of the Americans with Disabilities Act of 1990 (ADA). After a six day trial, the jury found in Jones’s favor, awarding him $630,307 in actual damages and $2 million in punitive damages. UPS appealed to the 10^th Circuit Court of Appeal, which held the $2 million in punitive damages was excessive.  Read More.

U.S. House of Representatives Passes REINS Act

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Published on Thursday, 08 December 2011 01:38

On December 7, 2011, the House of Representatives passed Congressman Geoff Davis’ bill (H.R. 10), the Regulations from the Executive in Need of Scrutiny (REINS) Act, by a bipartisan vote of 241 to 184. Congressman Davis commented that, “The point of the REINS Act is accountability.  Each member of Congress must take a stand and be accountable for regulations that will have the greatest impact on our economy.  Regulatory compliance costs small businesses an estimated $10,500 per employee annually.  At a time of high unemployment, we must do something about this massive burden.  No longer would Congress be able to avoid accountability by writing vague laws requiring the benefits up front and leaving the unpopular or costly elements up to the bureaucrats who will write those elements of the law at some later date…I want to thank all of the supporters of the REINS Act, especially Speaker Boehner, Chairman Smith, Senator Paul, and the over 200 co-sponsors for their tireless efforts to advance this commonsense legislation.”  The REINS Act requires “an up-or-down, standalone vote in Congress and the President’s signature on all new major rules before they can be enforced on the American people, job-creating small businesses, or State and local governments.  Major rules are those that have an annual economic impact of $100 million or more.” Congressman Davis first introduced the REINS Act during the 111^th Congress, and reintroduced the bill in the 112^th Congress as H.R. 10, which has the bipartisan support of over 200 co-sponsors.  Senator Rand Paul [KY] introduced the companion bill in the Senate as S. 299, which has the bipartisan support of 31 co-sponsors. More than 30 organizations have endorsed the REINS Act. Read More.

Job Qualification Standard Requiring High School Diploma May Violate ADA

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Published on Wednesday, 07 December 2011 07:29

The Equal Employment Opportunity Commission (EEOC) has issued an “Informal Discussion Letter” regarding whether a job qualification standard requiring that an employee have a high school diploma is a violation of the Americans with Disabilities Act (ADA). “Informal Discussion Letters” are written by EEOC staff in the Office of Legal Counsel and they do not constitute official opinions of the EEOC. They are provided by the EEOC in an effort to respond to inquiries from members of the public. In this case, the EEOC received an inquiry, as noted above, regarding whether an employer is in violation of the ADA by requiring that an individual seeking employment have a high school diploma as part of a job qualification standard. The letter points out that some individuals cannot obtain a high school diploma due to a learning disability, and therefore cannot obtain jobs requiring a high school diploma. The letter also advises that pursuant to the ADA, “a qualification standard, test, or other selection criterion, such as a high school diploma requirement, that screens out an individual or a class of individuals on the basis of a disability must be job related for the position in question and consistent with business necessity. A qualification standard is job related and consistent with business necessity if it accurately measures the ability to perform the job’s essential functions (i.e. its fundamental duties). Even where a challenged qualification standard, test, or other selection criterion is job related and consistent with business necessity, if it screens out an individual on the basis of disability, an employer must also demonstrate that the standard or criterion cannot be met, and the job cannot be performed, with a reasonable accommodation…Thus, if an employer adopts a high school diploma requirement for a job, and that requirement “screens out” an individual who is unable to graduate because of a learning disability that meets the ADA’s definition of “disability,” the employer may not apply the standard unless it can demonstrate that the diploma requirement is job related and consistent with business necessity. The employer will not be able to make this showing, for example, if the functions in question can easily be performed by someone who does not have a diploma. Even if the diploma requirement is job related and consistent with business necessity, the employer may still have to determine whether a particular applicant whose learning disability prevents him from meeting it can perform the essential functions of the job, with or without a reasonable accommodation.” Read More.

DOL Proposes Rules to Regulate MEWAs

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Published on Monday, 05 December 2011 22:24

The U.S. Department of Labor's (DOL) Employee Benefits Security Administration today announced two proposed rules under the Affordable Care Act intended to protect businesses and employees whose health benefits are provided through a multiple employer welfare arrangement (MEWA). Through MEWAs, unrelated employers, typically small businesses, seek to provide health care benefits to employees at what is represented to be lower costs than other traditional forms of coverage. However, according to the DOL, the promoters, marketers and operators of MEWAs often take advantage of gaps in the law to avoid state insurance regulations, such as a requirement to maintain sufficient funding and adequate reserves to pay the health care claims of employees and their families. In some cases, employees incur significant medical bills before they learn that claims are not being paid — and that they are liable and need to pay their medical bills themselves. For employers or employee organizations that have paid premiums or made contributions to an MEWA, the impact can thus be significant. The DOL’s proposed rules call for MEWAs to adhere to enhanced reporting requirements so that employers, workers and their families will not unexpectedly be cut off from health care services. The rules also will increase the DOL’s enforcement authority to protect participants in such plans and allow the department to shut down MEWAs engaged in fraud or other activities presenting an immediate danger to the public safety or welfare. Secretary of Labor Hilda L. Solis commented that, "Too many MEWAs are taking advantage of good employers who want to make health insurance available to their workers, and too many hardworking Americans have suffered…These proposed rules under the Affordable Care Act will crack down on those who want to use MEWAs to defraud American families." Read More.

IT Services Company Bans Workplace Emails

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Published on Monday, 05 December 2011 21:38

A French technology company, Atos Origin (which has 74,000 employees in 42 countries), will ban internal email from company communications within two years. Citing the volume of its email as "unsustainable," the company plans to have employees communicate mostly through instant-messaging tools or wiki-like documents that can be edited by multiple users online. According to Atos CEO Thierry Breton, “We are producing data on a massive scale that is fast polluting our working environments and also encroaching into our personal lives…At Atos we are taking action now to reverse this trend." Breton gave an interview to the Wall Street Journal in which he asserted that he had not sent a work related email in three years. In that interview, Breton emphasized that, "If people want to talk to me, they can come and visit me, call or send me a text message…Emails cannot replace the spoken word." Breton estimates that only 10% of the approximately 200 messages which his employees receive each day on an average work day are useful, and that 18% is spam.  A spokesperson from Atos said the response to Breton’s policy has been “positive” and the company has already reduced its volume of internal emails by 20 percent in six months.  BonitaSoft CEO Miguel Valdés Faura wrote on the tech blog GigaOm that the decision by Atos “is perhaps the most ringing endorsement yet for the notion that email is being gradually phased out of [the workplace]." Read More.

Employer Must Pay $267,000 to Settle EEOC Sexual Harassment Claim

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Published on Friday, 02 December 2011 19:31

Real estate developer Lakemont Homes, Inc. and its subsidiary Lakemont Homes Nevada will pay $267,000 to settle a lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC). The EEOC alleged that four female employees of the company endured inappropriate sexual comments and unwanted propositions or touching by a male lead sales agent. According to the EEOC, the lead agent asked at least one of the women to have sex with him, and even threatened her at gunpoint. Despite multiple complaints to a female sales manager, the company allegedly did not take action to stop the harassment. Instead, the EEOC contends, the company retaliated against the women for reporting the conduct by implementing unfavorable scheduling and poor performance evaluations. Ultimately, the women who complained were forced to quit while the harasser remained employed by the company. The EEOC filed suit after the parties were unable to reach a pre-litigation settlement through its conciliation process. Aside from the settlement amount, Lakemont agreed to appoint an EEO compliance officer to oversee the company’s policies and procedures against discrimination and retaliation; ensure proper communication of those policies to staff; monitor investigations of complaints; and ensure that employees are disciplined for misconduct under Title VII. The EEOC will also be monitoring the handling of all harassment and retaliation complaints received by Lakemont. “While we commend Lakemont for taking measures to resolve this matter, we hope more employers recognize that they must deal with workplace harassment quickly and effectively…Federal law requires it, and workers need not tolerate a hostile work environment.” Read More.

Interstate Truck and Bus Drivers Prohibited From Using Hand-Held Cell Phones

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Published on Wednesday, 30 November 2011 05:42

U.S. Transportation Secretary Ray LaHood announced a final rule prohibiting interstate truck and bus drivers from using hand-held cell phones while operating their vehicles. The joint rule from the Federal Motor Carrier Safety Administration (FMCSA) and the Pipeline and Hazardous Materials Safety Administration (PHMSA) is the latest action by the U.S. Department of Transportation to end “distracted driving.”  The final rule prohibits commercial drivers from using a hand-held mobile telephone while operating a commercial truck or bus. Drivers who violate the restriction will face federal civil penalties of up to $2,750 for each offense and disqualification from operating a commercial motor vehicle for multiple offenses. Additionally, a driver's commercial driver's license (CDL) will be suspended after two or more serious traffic violations. Commercial truck and bus companies allowing their drivers to use hand-held cell phones while driving will face a maximum penalty of $11,000. Approximately four million commercial drivers are affected by this final rule. According to Transportation Secretary Ray LaHood, "When drivers of large trucks, buses and hazardous materials take their eyes off the road for even a few seconds, the outcome can be deadly…I hope that this rule will save lives by helping commercial drivers stay laser-focused on safety at all times while behind the wheel."  In September 2010, FMCSA banned text messaging while operating a commercial truck or bus and PHMSA followed with a companion regulation in February 2011, banning texting by intrastate hazardous materials drivers.  Read More.

$240,000 EEOC Settlement for Harassment and Discrimination Against Latina Farm Workers

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Published on Tuesday, 29 November 2011 23:23

Cyma Orchids, Inc.,(Cyma) one of the largest orchid farms in the U.S., will pay $200,000, and the farm’s former owner, Taean Orchids, will pay $40,000, to settle a lawsuit alleging pervasive harassment, discrimination and retaliation due to sex and national origin bias, filed by the U.S. Equal Employment Opportunity Commission (EEOC).  According to the EEOC a class of female Latina greenhouse workers of the Oxnard, California based company, were continuously sexually harassed by supervisors, managers, and the company’s owners. The women were allegedly groped and subjected to unwanted touching of their breasts and buttocks, repeated propositions, sexual jokes and comments about their bodies. The EEOC further alleged that both Korean and Hispanic male supervisors engaged in the widespread sexual harassment which was also laced with discrimination based on their country of origin. The harassers allegedly “joked” about how often Mexican women have sex, and made comments that Mexican women were “lazy” and “do not know their place.”  Allegedly, workers who complained about the harassment and discrimination were retaliated against, including a Hispanic male lead greenhouse worker who was fired after defending one of the victims.  In addition to the monetary settlement, Cyma is required to assign an equal employment opportunity (EEO) coordinator to ensure all staff are trained regarding their EEO rights and responsibilities, to track future complaints by creating a centralized tracking system and to hold employees accountable for failing to adequately address those complaints.   Anna Y. Park, regional attorney for the EEOC’s Los Angeles District Office commented “We continue to see persistent problems in agriculture with harassment. Employers are responsible for Title VII compliance for migrant or farm workers.”  Olophius Perry, district director  for the EEOC’s Los Angeles District Office, said, “Our nation’s workers have  the right to work without being touched or demeaned due to their country of origin. Retaliation against those that report discrimination is illegal, and the EEOC is here to help those who endure such violations of the law.”  Read more.

Settlement of Over $580,000 Reached in Wage Case Between ZipRealty and the California Labor Commissioner

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Published on Tuesday, 29 November 2011 22:33

A $586,068.54 settlement was reached, in four wage cases filed to recover unpaid minimum wages and overtime pay, between ZipRealty in Bakersfield, California and the California State Labor Commissioner Julie A. Su.  This case was originally heard, in the administrative process, before the California Department of Industrial Relations’ (DIR) Division of Labor Standards Enforcement, headed by the State Labor Commissioner, on October 27, 2010 after four wage claims for nonpayment of minimum wage and overtime were filed by four ZipRealty agents. “Real estate traditionally is not known as a low wage industry. In the current economy we have seen a change in scenario where real estate agents may earn less than the minimum wage,” said DIR Acting Director Christine Baker. “Employers who previously were not concerned with minimum wage issues are now put on notice to ensure they are providing those basic protections to workers.”  Each of the four agents are to be immediately paid 100% of their judgment which totaled over $330,000 plus an additional $25,000 each, for a total payout of $430,202. In addition, the settlement includes payment by ZipRealty of $155,866 in attorney’s fees and expenses payable to the Labor Commissioner.  Julie A. Su commented “This resolution reflects the strength of the evidence and the law supporting these four workers’ claims for minimum wage and overtime pay that was owed to them.”  On September 26, 2011 Labor Commissioner Su also filed a lawsuit in the Superior Court of Alameda County to recover unpaid wages and overtime for ZipRealty agents throughout California.  Su added “The Division of Labor Standards Enforcement will now pursue with equal determination the lawsuit filed in September for hundreds of other ZipRealty employees statewide, who are entitled to compensation for their work. The decision of the Kern County Superior Court will not be binding in the new litigation, but the analysis of the Bakersfield court is extremely compelling and we believe that there will be a similar result in the case pending in Alameda County.”   Read more.

UPS Must Pay 96K for Terminating Disabled Employee

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Published on Monday, 28 November 2011 06:14

The California Department of Fair Employment and Housing (DFEH) announced that United Parcel Service (UPS) must pay more than $96,000 in damages after the company terminated employee Eva Linda Mason allegedly because of her disability. The Fair Employment and Housing Commission (Commission) found that UPS had unlawfully terminated Ms. Mason even though she was able to perform the essential functions of her job. UPS hired Ms. Mason in 1997 as an Operations Management Specialist to handle customer calls and complaints on shipments. Although Ms. Mason occasionally located packages in a warehouse, handling packages was not part of her job. In 2007, Ms. Mason had knee surgery and took a medical leave of absence to recover. Upon her return, she continued to carry out the essential customer service functions of her job. However, UPS allegedly perceived Ms. Mason as disabled because she had some restrictions, such as limited standing, walking, bending, and kneeling. UPS had a 12-month cap on the length of time employees with disabilities could be reasonably accommodated from their regular duties. UPS applied this cap to Ms. Mason and terminated her in August 2008. According to Phyllis Cheng, Director of the DFEH, “Using a 12-month cap to fire disabled employees is unlawful under the Fair Employment and Housing Act (FEHA)…Employees with disabilities must be allowed to work if they can perform their essential job duties with or without accommodation.”  The Commission ordered UPS to pay $96,170 in damages, including $10,000 in administrative fines to the State. UPS is also required to post a notice about its liability and develop a policy and train management on disability discrimination. Read More.

NLRB Schedules Vote on Amendments to Election Procedures

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Published on Monday, 28 November 2011 05:44

The National Labor Relations Board (NLRB) has scheduled a November 30 vote on whether to adopt certain controversial amendments to its election procedures that the NLRB proposed earlier this year.  The NLRB has proposed the amendments to election process “in order to simplify procedures, make them more uniform across regional offices, and reduce unnecessary litigation.” In general, the amendments are intended to shorten the time between the filing of a petition and the election.  The NLRB received more than 65,000 written comments on the proposal and heard testimony from 66 speakers at a two-day hearing in July. The meeting of the Board’s three members, to be held at NLRB headquarters in Washington, is open to the public, although the public may not participate. Members will discuss and vote on a resolution to accept the proposals, proceed to draft a final rule limited to those proposals, and defer the remainder of the proposed rule for further consideration. Members of the public and media are permitted to attend the meeting, provided space is available.  Read More.

DOL Recovers Nearly $8 Million for Back Wages and Other Claims

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Published on Monday, 28 November 2011 05:30

The U.S. Bankruptcy Court for the District of Maryland has approved a global settlement that allows the U.S. Department of Labor (DOL) to recover $7,968,744 in back wages, fringe benefits and 401(k) plan assets for more than 2,000 security guards formerly employed by USProtect Corp., a bankrupt Silver Spring company that provided security services for federal buildings around the country. The decision resolves a claim brought by the DOL against the company related to alleged violations of the McNamara O'Hara Service Contract Act and the Employee Retirement Income Security Act. The DOL’s Wage and Hour Division and its Employee Benefits Security Administration conducted an investigation when the company could not meet its payroll. Investigators determined that the company allegedly failed to pay hundreds of employees for their last 2 1/2 weeks of work, and many employees were not paid the prevailing wage for their geographic areas or fringe benefits. The company also allegedly failed to remit employee salary deferral contributions to their 401(k) plan accounts. The settlement between the DOL and a bankruptcy trustee allows for a total recovery of $7,968,744, of which $6,951,977 was recovered for the employees' wages and cash fringe benefits. The remaining $1,016,767 was recovered for the employees' 401(k) accounts. According to Secretary of Labor Hilda L. Solis, "I am very pleased that former USProtect employees will receive the back wages, fringe benefits and retirement assets they earned and are owed…This settlement represents a remarkable recovery for a bankruptcy proceeding and is due to the coordinated effort of the Department of Labor's agencies, Department of Justice attorneys, the bankruptcy trustee and various federal contracting agencies." Read More.

$365,000 Settlement of Sexual Harassment and Retaliation Suit Filed By EEOC

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Published on Tuesday, 22 November 2011 17:38

MMS Resources, Inc., also known as Merchant Management Systems Inc., (MMS) a company that processes credit card payments, will pay $365,000 to  settle a sexual harassment lawsuit filed by the U.S. Equal Employment  Opportunity Commission (EEOC). The lawsuit alleged MMS’s owner and president, Pat Reed, sexually harassed a class of female employees.  The alleged harassment was “quid pro quo” which is when a person in authority bases his/her decisions or expectations (hiring, promotions, salary increases, shift or work assignments, performance standards,  recommendations, etc.) on whether an employee submits to or rejects  sexual advances, requests for sexual favors, or other behavior of a sexual nature. The EEOC alleged that the “quid pro quo” sexual harassment ranged from sexual comments and touching up to and including coerced sexual intercourse, elicited through alleged threats of losing their jobs, raises, promotions or other employment opportunities in the community.   Additionally, Reed allegedly threatened retaliation against the women if they should protest the harassment, according to the EEOC.  Such alleged conduct would be a violation of Title VII of the Civil Rights Act of 1964. MMS agreed to a two-and-one-half-year consent decree and to pay $365,000 in compensation to 11 sexual harassment victims.  Since, MMS filed for bankruptcy during the pendency of this lawsuit, Pat Reed further agreed that if he opens or acquires a business during the duration of the consent decree, that business will create a sexual harassment policy prohibiting sexual harassment of employees and institute a training program for all employees regarding prohibiting sexual harassment in the workplace.  “Employees should be free from harassment based upon their gender, and those who complain about such misconduct should not be in fear of losing their jobs,” said Webster N. Smith, district director of the EEOC’s Indianapolis District Office.  Read More.

Minnesota State Agencies Settle EEOC Age Bias Suits for Over $574,000

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Published on Tuesday, 22 November 2011 03:42

Three U.S. District Court judges approved consent decrees ordering the Minnesota Department of Natural Resources, the Minnesota  Department of Commerce and the Minnesota Department of Public Safety to pay  damages to claimants who were allegedly denied employer contributions for retiree health and dental insurance because they were older than age 55 at the time that they retired.  In its age discrimination lawsuits against the three agencies, the Equal Employment Opportunity  Commission (EEOC), contended that the incentive plans contained in collective  bargaining agreements for certain employees violated the Age Discrimination in  Employment Act (ADEA) because the incentive plan denied the premiums to persons over a certain age. In an earlier lawsuit involving the same incentive plans, U.S. District Court Judge Paul A. Magnuson held that the early retirement incentives are “facially  discriminatory, and, as such, violate the ADEA.”  Under the decrees, the agencies will pay those 13 people the lost premium amounts, amounting to a combined total of at least $574,195.  In addition, the agencies must to offer  to pay future premium costs for persons who would still be entitled to receive  them but for the unlawful early retirement provision. “The law is settled: it is discriminatory for employers to maintain incentive plans that  explicitly reduce benefits as persons grow older,” said the EEOC’s regional  attorney in Chicago, John Hendrickson. “We commend the State of Minnesota  for working with the EEOC to resolve these cases in light of the state of the  law.”  Read More.

California Labor Commissioner Issues Additional $616,250 Citation in Riverside County Warehouse Case

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Published on Monday, 21 November 2011 17:01

California Labor Commissioner Julie A. Su issued additional citations totaling $616,250 to Premier Warehousing Ventures, LLC (Premier) for violations discovered during an October 12, 2011 inspection of Schneider Logistics.  Of this total $601,000 was issued for Premier’s failure to provide employees proper wage statements, as well as failure to keep payroll records at the place of employment or at another location in California was only calculated for one pay period, resulting in $15,250.  Employers must furnish an accurate itemized statement with employees’ paychecks that includes details on the total hours worked, hourly pay, piece rates, if piece rate pay is utilized, deductions and other wage information (Labor Code 226).  State law also requires a company to maintain payroll records at the place of employment or at another location in California. "We hope this citation sends a message to all employers in California that when the failure to keep and provide records as required by law  is part of a concerted effort to deny workers their hard-earned wages, we will not tolerate it,” said California Labor Commissioner Julie A. Su.  Investigations of other violations, including failure to pay for reporting time and stand-by time, illegal deductions of the workers' pay, as well as the relationship between Schneider Logistics and the two agencies that have already been cited, are ongoing.  “It is the strong public policy of this state that workers are entitled to know what they have earned,” said Su. “Information is power, and when it comes to wages, that information must be transparent and shared. When an employer chooses to pay by the piece, this is even more critical.  Employers cannot simply make up a piece rate and change it at their whim.”  Read more.

Employer Will Pay $530,000 to Settle Sexual Harassment Claim

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Published on Friday, 18 November 2011 21:57

As a recent case demonstrates, a workplace sexual harassment claim can be costly. The case involved the Garfield Medical Center, an acute care facility in Monterey Park, California. The facility will pay $530,000 to settle a lawsuit filed by the Equal Employment Opportunity Commission (EEOC) alleging sexual harassment. According to the EEOC, several female employees who claimed that they had been sexually harassed were either retaliated against or compelled to quit after their complaints were allegedly ignored by hospital management. The EEOC charged that from 2007 the hospital allegedly permitted a male emergency room admitting representative to harass female employees by subjecting them to inappropriate touching, propositions for sex, graphic discussions of sexual activities, obscene pictures and comments regarding female body parts, including those of underage patients. One employee was allegedly terminated by the facility when she reported the harassment, while others were compelled to quit rather than endure the hostile work environment. Despite complaints to hospital management, the facility did not terminate the offending employee for more than two years after employees made the initial complaints. Anna Y. Park, regional attorney for the EEOC’s district office commented that, “In order to be productive, employees deserve a workplace free from sexual comments, repeated propositions  and inappropriate touching…We commend Garfield  for agreeing to sweeping injunctive relief remedies to ensure this does not  happen again. The EEOC is committed to remedying any disregard for the well-being and civil rights of workers.” Read More.

HR Practice Pointer: What is a FMLA “Interference” Claim

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Published on Friday, 18 November 2011 21:42

Pursuant to the Family and Medical Leave Act (FMLA) it is unlawful for an employer to discharge or in any other way discriminate against an employee for exercising his or her FMLA rights. More specifically, the FMLA provides that an employer may not "interfere with, restrain, or deny the exercise of or the attempt to exercise" FMLA rights. Further, an employee on FMLA leave has the right to be reinstated to the same or an equivalent position which he/she had before taking FMLA leave. There are two types of FMLA claims, those for interference and those for retaliation. Although these claims are closely linked, the difference between a retaliation and interference claim is that a retaliation claim requires proof of discriminatory or retaliatory intent, while an interference claim only requires proof that the employer denied the employee his or her rights under the FMLA. To prevail on an FMLA interference claim, the employee must establish: (1) eligibility for the FMLA's protections; (2) that the employer was covered by the FMLA; (3) that the employee was entitled to take leave under the FMLA; (4) that the employee provided sufficient notice of his/her intent to take leave; and (5) that the employer denied the employee FMLA benefits to which he/she was entitled. In order to avoid a FMLA interference claim, covered employers must make sure to provide eligible employees with the proper notices and forms and ensure that such employees are permitted to take any FMLA leave to which they are entitled, without employer interference.  Read More.

Timing of Termination May Support FMLA Interference Claim

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Published on Thursday, 17 November 2011 05:23

William Shaffer worked for the American Medical Association (AMA) as Director of Leadership Communications. In 2009, the AMA asked all its departments to reduce their budgets by at least 3% below the previous year's budgets. In response to direction from the AMA board, Marietta Parenti, AMA's Chief Marketing Officer, directed department heads to consider all options to reduce budgets, including the elimination of positions. Parenti and Michael Lynch (the individual who hired Shaffer) ultimately decided they needed to downsize by at least one position in Lynch's department. Parenti emailed Lynch asking for his recommendation regarding the elimination of a position, including whether Shaffer’s position should be eliminated. Lynch replied that he did not think cutting additional positions was in the AMA's best interest. Thereafter, Shaffer notified Lynch that he needed knee replacement surgery and would thus have to take four to six weeks of family and medical leave. Subsequently, Lynch sent Parenti a long email advising that he now thought the AMA should eliminate Shaffer's position. Lynch wrote in the email, "The team is already preparing for Bill's short-term leave in January, so his departure should not have any immediate negative impact." He also apologized to Parenti for his "11th hour change of heart." The AMA then terminated Shaffer. In response, Shaffer filed suit in federal court. The district court granted summary judgment in the AMA's favor and Shaffer appealed contending that a reasonable jury could conclude the AMA terminated his employment because he requested leave protected by the FMLA. The AMA argued that its decision to terminate Shaffer's employment had nothing to do with his FMLA request. However, the court agreed with Shaffer holding that “a reasonable jury could find that the AMA chose him as the person in his department to let go because he exercised his right to take FMLA leave.” Read More.

HR Director’s Statements are Admissible in FMLA Interference Claim

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Published on Thursday, 17 November 2011 03:03

Lisa Makowski worked as Marketing Director for SmithAmundsen, a law firm. In the summer of 2007, Makowski notified SmithAmundsen’s management that she was pregnant and due in December. Due to pregnancy complications, the law firm allowed her to work from home until November 26, 2007, at which point she began leave pursuant to the Family and Medical Leave Act (FMLA). On December 2, 2007, Makowski gave birth. In January 2008, the Executive Committee for SmithAmundsen conducted its yearly retreat. At the retreat, the Executive Committee decided to eliminate Makowski’s position. In an email sent at the conclusion of the retreat from one of the attendees to Molly O’Gara, Director of Human Resources, the attendee commented that Makowski “doesn’t fit into our culture.” As the Director of Human Resources, O’Gara was responsible for the law firm’s compliance with human resources policies, as well as monitoring the firm’s compliance with anti-discrimination laws. O’Gara was thus asked to consult with outside counsel regarding Makowski’s firing, which she did prior to the actual termination. While Makowski was on maternity leave, she was terminated over the telephone, and advised that her position was eliminated as part of an organizational restructuring. Later that day, Makowski came to the office to retrieve her belongings. While there she encountered O’Gara who told her that she terminated because of her pregnancy and medical leave. Subsequently, Makowski filed a lawsuit alleging violations of the Pregnancy Disability Act and the FMLA. The defendants moved for summary judgment, which was granted by the district court on the basis that O’Gara’s job responsibilities were not related to the decision to terminate Makowski, and because O’Gara was not involved in the decision-making process, O’Gara’s statements concerning Makowski’s termination were inadmissible hearsay. On appeal, the court reversed, holding that although O’Gara was not directly involved in Makowski’s termination, she was involved in the decision making process leading up to that action due to her consultation with outside counsel regarding the termination and due to her job duties, which included ensuring the law firm’s compliance with federal anti-discrimination laws. Thus, O’Gara’s statements fell within the scope of her employment and were admissible. Read More.

EEOC, DOL and OFCCP Update Memorandum of Understanding

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Published on Wednesday, 16 November 2011 07:25

The Equal Employment Opportunity Commission, Department of Labor, and Office of Federal Contract Compliance Programs (OFCCP) have updated a Memorandum of Understanding (MOU) between the agencies published in 1999. The update includes using contemporary offices names and titles; designating a “Coordination Advocate” at each agency; reorganizing or condensing language for clarity; streamlining the Compliance Coordination Committees; and clarifying the complaint/charge referral procedures. The stated purpose of the MOU is to “further the agencies’ joint objectives in ensuring equal employment opportunities for applicants and employees under Title VII of the Civil Rights Act of 1964…to promote greater efficiency and coordination, and to eliminate conflict and duplication of effort.” Read More.

Disabled Former Employee Receives $415,000 for Alleged Disability Discrimination

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Published on Wednesday, 16 November 2011 07:04

AutoZone, Inc., a leading auto parts retailer, has been ordered to reasonably accommodate the disabilities of its retail employees throughout central Illinois. In a disability discrimination lawsuit brought by the Equal Employment Opportunity Commission (EEOC), the court also held the company liable for $415,000 in damages and lost wages and $9,045 in litigation costs. A a federal jury found that AutoZone violated the Americans With  Disabilities Act (ADA) when it allegedly failed to accommodate the disability of a sales  manager at one of its facilities.  At trial, the EEOC presented evidence that the employee was required to perform cleaning tasks that violated his medical restrictions and resulted in an injury and severe physical pain. The sales manager, who worked at the company until 2003, is disabled with permanent  back and neck impairments. Pursuant to the ADA, a reasonable accommodation may include the elimination or modification of a non-essential  job duty, or the transfer of a non-essential job duty to another employee. The court granted the EEOC’s post-trial request  for an injunction, holding that “the conduct of the defendant’s  managerial employees at the highest level was clearly an intentional violation  of the ADA.” The injunction applies to all of the company’s retail stores within the Central District of Illinois. AutoZone will also be required to report all requests for reasonable accommodations in that region to the EEOC for a period of three years, and to maintain records of the company’s responses to such requests for a period of four years. John Hendrickson, the EEOC’s regional attorney in Chicago, commented that “While we are able to resolve most of our litigation through settlement, this case illustrates the EEOC’s commitment to litigating cases to judgment when necessary to vindicate the public interest. The objective of every EEOC case, whether large or small, is the same: to make equal employment opportunity the reality in the workplace.” Read More.

EEOC Reports Record Amount of Relief Recovered and Charges Filed for 2011

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Published on Wednesday, 16 November 2011 06:38

U.S. Equal Employment Opportunity Commission (EEOC) is reporting in its annual Performance and Accountability Report (PAR) that it finished fiscal year 2011 with a ten percent decrease in its pending charge inventory—the first such reduction since 2002. In addition, according to the EEOC, the agency achieved the highest ever monetary amounts through administrative enforcement, and the agency received a record number of charges of discrimination. According to the report, the EEOC received a record 99,947charges of discrimination in fiscal year 2011, which ended Sept. 30, the highest number of charges in the EEOC’s 46-year history.  The EEOC also obtained more than $364.6 million in monetary benefits for workplace discrimination, which is the highest amount obtained in the EEOC’s history.  The fiscal year ended with 78,136 pending charges, which is a decrease of 8,202 charges, or ten percent. The EEOC’s private sector national mediation program obtained more than $170 million in monetary benefits for complainants, thereby securing the highest number of resolutions in the history of the program—9,831.  This is five percent more than the number of resolutions reported in fiscal year 2010.The EEOC’s FY 2011 PAR is posted on the agency’s web site at http://www.eeoc.gov/eeoc/plan/index.cfm. Comprehensive enforcement and litigation statistics for fiscal year 2011 will be available in early 2012. Read More.

Employers Must Implement Consistent Disciplinary Policies and Procedures

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Published on Tuesday, 15 November 2011 16:59

A recent case, Eaton v. Indiana Department of Corrections, illustrates how important it is for employers to implement consistent disciplinary policies and procedures. The case involves Autumn Eaton who worked for the Indiana Department of Corrections (DOC) as a correctional officer. She was first assigned to watch tour duty, which involved walking. The DOC then reassigned her to the control room which did not require walking. Eaton also had a schedule in which she rotated between a “short week” and a “long week.” During this time, the DOC warned Eaton about excessive absenteeism. Subsequent to that the DOC switched Eaton to a five day a week, 8 hour shift which she claimed was due to her absences which she had taken as sick leave. Immediately after being reassigned, Eaton took a 2 month leave of absence under the Family and Medical Leave Act (FMLA). Thus, she never worked the new shift because when she returned the DOC put her back on the alternating shift schedule. Shortly after returning, Eaton was in a car accident which aggravated her back condition and resulted in work restrictions. Subsequently, the DOC reassigned her to the control room. When Eaton repeatedly refused the new assigned her supervisor asked for her belt and badge. She ultimately turned these over to her supervisor and left the facility. Subsequently, Eaton attempted to return to the facility for her next shift but the DOC barred her from entering. Eaton filed a lawsuit claiming violations of Title VII, the Americans with Disabilities Act and the FMLA asserting that she met her employer’s expectations and had been subjected to an adverse employment action based on her sex. The district court granted summary judgment on all of her claims except Title VII, on the basis that Eaton failed to identify a similarly-situated male that had been treated differently, even though Eaton offered evidence regarding a male co-worker, Dennis Curtis, who had not been terminated under what Eaton claimed were similar circumstances. Curtis had also refused assignment to a new position and left the facility after being asked to turn in his belt and badge. He then returned to the facility forty five minutes later and the DOC permitted him to resume working without any discipline. Eaton appealed and the Seventh Circuit reversed holding that the district court erred in holding that the two situations were not comparable. Read More. 

NLRB Holds Employee’s Linkedin Post Was Unprotected Activity

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Published on Tuesday, 15 November 2011 05:14

In a recent case involving social media, the National Labor Relations Board (NLRB) has ruled that an employee’s post on Linkedin constituted unprotected activity.  In 2010, an IT supervisor invited the employee to join Linkedin, a professional and business related networking site.  The invitation identified the employer and asked for the employee’s job title. As a joke that the employee believed only the supervisor would see, he replied “f_ _ _ tard.”  In February 2011, the employee discussed with some coworkers a successful wage and hour lawsuit filed against another employer that involved employees getting comp time instead of being paid overtime. Although they all agreed that their employer’s policy on overtime might also be unlawful, no one wanted to complain to management.  Subsequently, the employer revised its policy and began paying overtime instead of giving comp time. The employer then conducted a study about setting up its own Linkedin profile and as part of that looked at the posts of its employees. After viewing the employee’s “f_ _ _ tard” post, the company advised the employee that the post was in violation of its Electronic Communication Policy as it disparaged the company; the employee was then terminated by the company. The employee filed suit alleging that the company terminated him for engaging in conversations about the overtime issue. He asserted that the timing was suspicious since the post had been on Linkedin for over a year, but the employer alleged it had discovered the post only two months after the employee’s conversation about the overtime. The NLRB held that the “Linkedin ‘joke’ clearly was not protected” and observed that “Moreover, the LinkedIn posting was not a pretextua1 reason for discharging the Charging Party; the Employer has demonstrated that it only discovered the posting in its April review of prior employee posts as part of its assessment of problems with its new LinkedIn page. Finally, no one contends that the Charging Party's posting in violation of the electronic usage policy—the stated reason for his discharge—was protected by Section 7."  Read More.

SB 757 Covers Heath Care Plans and Same Sex Partners

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Published on Monday, 14 November 2011 17:57

California law defines domestic partners as “two adults who have chosen to share one another’s lives in an intimate and committed relationship of mutual caring.” An individual who is part of a domestic partnership is entitled to certain benefits such as Paid Family Leave to care for the domestic partner’s ill child, provided the couple fulfills certain criteria such as filing a “Declaration of Domestic Partnership” with the Secretary of State. Existing law requires that a health care service plan and a health insurance policy provide group coverage to the registered domestic partner of an employee, subscriber, insured, or policyholder that is equal to the coverage it provides to the spouse of those persons. SB 757 specifies that a plan or policy may not discriminate in coverage between spouses or domestic partners of a different sex and spouses or domestic partners of the same sex. A health care service plan may require that the employee verify the status of the domestic partnership by providing to the plan a copy of a valid “Declaration of Domestic Partnership” filed with the Secretary of State. The plan may also require that the employee notify the plan if the domestic partnership is terminated. SB 757 takes effect on January 1, 2012. 

Supervisors Are Not Personally Liable For Discriminating Against Members of the Armed Forces

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Published on Monday, 14 November 2011 04:09

California’s Military and Veterans Code section 394 prohibits employers from discriminating against an employee who is a member of the armed forces. In a recent case, the California Court of Appeal, Second District, held that supervisors are not personally liable for discrimination under section 394. The court concluded that similar to the California Fair Employment and Housing Act (FEHA), although section 394 allows servicemen and servicewomen who claim they have been discriminated against in the workplace, to hold their employers liable, individual employees (such as supervisors) may not be held liable. The case involved Mario Pantuso, who worked for Safway Services, LLC. Pantuso was called to active duty with the Navy. When he returned from his six month deployment in Iraq and asked for his job back, his immediate supervisor and regional manager advised that he was terminated. Pantuso then sued his employer, the supervisor, and regional manager for discrimination and retaliation in violation of section 394. He also sought damages for wrongful termination in violation of public policy from the employer. Pantuso alleges that because of his membership in the Navy, Safway, his supervisor and the regional manager discriminated against him by giving him negative performance evaluations after he informed them that he would be deployed, then terminating him from employment because of his military service, refusing to employ him upon return from Iraq, and refusing to pay him an earned bonus. Although the trial court found the individual defendants liable, because the statute refers to “person,” the court of appeal disagreed finding that supervisors cannot be personally liable for discrimination under section 394. Read More.

Employer will pay $30,000 to Resolve Alleged Disability Discrimination During the Hiring Process

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Published on Friday, 11 November 2011 18:16

As this case demonstrates, employers must make reasonable accommodations during the hiring process as well as after hiring someone.  In September 2011, the U.S. Equal Employment Opportunity Commission (EEOC) filed a lawsuit charging that G2 Secure Staff, LLC (G2) violated the Americans With Disabilities Act (ADA) when it allegedly refusing to accommodate a disabled applicant who needed an accommodation during the hiring process and subsequently denied him employment because of his disability. According to the EEOC’s complaint, Sharif K. Thompson has end-stage renal disease, a condition in which his kidneys no longer function and he is not able to urinate. Allegedly, around May 2010 Thompson applied for a shift supervisor position at G2’s facility at Raleigh-Durham International Airport in Raleigh, N.C. Thompson fulfilled all of the requirements for obtaining the position, with the exception of a drug test. Since Thompson’s disability rendered him unable to urinate, he allegedly asked if he could take the drug test using a hair sample as an accommodation for his disability, which G2 allegedly would not allow, nor did they allow any other options. Consequently, alleged the EEOC, Thompson was denied the job.  In resolution of the suit, G2 will pay $30,000 to Thompson, in addition to injunctive relief enjoining the company from engaging in any further disability discrimination or retaliation against those who complain about it and revision of its anti-discrimination policies and training.  Lynette A. Barnes, Regional Attorney for the EEOC’s Charlotte District, which includes the EEOC’s Raleigh Area Office, where the charge was filed, said “This was a situation where based on EEOC’s allegations in the complaint, EEOC contends that the employer could have easily made the requested accommodation and avoided this entire process. This case shows that the EEOC will vigorously prosecute cases where the employer refuses to provide a reasonable accommodation that would enable a person to be hired.”  Read more.

Comfort Suites To Pay $132,500 For Alleged Disability Discrimination Against Clerk With Autism

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Published on Thursday, 10 November 2011 18:04

Tarsadia Hotels, doing business as Comfort Suites, a hotel developer and  operator in California,  will pay $132,500 and implement substantial changes to settle a disability discrimination lawsuit that the U.S. Equal Employment Opportunity Commission (EEOC) filed on behalf of hotel clerk with autism. The EEOC charged that a front desk clerk at the Comfort Suites Mission Valley Hotel in San Diego was denied a reasonable accommodation, disciplined and ultimately fired in 2008 due to his disability, alleging that such conduct violated the Americans With Disabilities Act (ADA).  The EEOC lawsuit filed in September 2010, claimed that after starting at Comfort Suites, the clerk sought free job coach services from the state, to help him master his job by using autism-specific training techniques, but Tarsadia allegedly refused to allow the assistance of a job coach and then fired him.  As part of settlement, the parties entered into a three-year consent decree under which Tarsadia will pay the claimant $125,000 and donate $7,500 to Partnerships with Industry, a San Diego-based non-profit organization that provides employment support to people with disabilities. Tarsadia further agreed to sweeping changes in their policies, practices and training, including revising its policies and procedures with respect to ADA compliance; hiring an EEO consultant to train all employees of their ADA rights and responsibilities and ensure the proper handling of reasonable accommodation requests and disability-related complaints; and agree to hold managers and supervisors accountable for compliance with these new policies. Marla Stern, local director of the EEOC’s San Diego Local Office, commented, “A reasonable accommodation is often minimal in cost and merely involves open communication between the employer and employee to make it work. The results can make all the difference for people with disabilities, allowing them to succeed in the workplace.” Read more.

Businesses Beware: The “California Labor Compliance Bureau” Is Not A Government Enforcement Agency And Is Not Authorized to Collect Fees on Behalf Of the State!

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Published on Thursday, 10 November 2011 17:29

Officials of the California Department of Industrial Relations’ (DIR) Division of Labor Standards Enforcement (DLSE/ Labor Commissioner’s Office) announced  that a group calling itself the  “California Labor Compliance Bureau” has reportedly distributed misleading business solicitations requiring immediate payment of a “processing fee” of $275 for labor-related postings. “This group is not an enforcement agency, it is not authorized to issue citations or charge fees on behalf of the state,” said California Labor Commissioner Julie A. Su. The DLSE provides all required postings on their website at no charge, which can be downloaded. The website link to download workplace postings is http://www.dir.ca.gov/wpnodb.html.  Although DLSE investigators do visit businesses to ensure compliance with labor laws, they will never request payment in lieu of citations or ask for money onsite. Su also commented, “Californians should be vigilant about scams like this in which an entity adopts a name meant to suggest some legitimate authority and tries to cheat employers out of their hard-earned money.  If an employer is ever approached by someone claiming to be a state investigator who requests payment on site for any reason, we urge you to call us immediately at 415-703-4810…All of our deputies clearly identify themselves and their affiliation with the office of the Labor Commissioner or Division of Labor Standards Enforcement (DLSE) and carry their business cards.  We do not collect money for citations or violations on the spot, and there is no charge for any materials we require be posted in the workplace.”

The DLSE investigator protocol is as follows:

• The investigator identifies him/herself.
• Discusses with the employer his or her rights and responsibilities during the inspection, as well as what happens during the process.
• Interviews the employer, employees and asks to review records that demonstrate hours worked by the employees, workers’ compensation policy for the employer, payroll records and related documentation. The investigator may call to verify that the employer’s workers' compensation policy is up to date.
• If additional records or an audit is required, the investigator makes a notation of the items needed and frequently asks the employer to appear at the local district office to present the required documentation.
• It is never proper for an investigator to request any kind of payment during the inspection.
• Gives the employer any citation and discusses the employer's right to file an appeal. 

Read more.

Brinker: Argued and Submitted before the Supreme Court of California

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Published on Wednesday, 09 November 2011 18:57

Oral arguments were heard on November 8, 2011 by the California Supreme Court regarding wage and hour issues in the case of Brinker Restaurant Corp. et al. v. Superior Court of San Diego County (SC S166350 Oral Argument 11-8-11).   This case presents issues concerning the proper interpretation of California’s statutes and regulations, along with wage orders,  which govern an employer’s duty to provide meal and rest breaks to hourly workers.   This will be a monumental decision and will determine whether employers will become “clock watchers” who must micromanage employees to ensure that they take their mandated meal and rest periods or whether employers must make them available and leave it to the employees to exercise diligence and take their meal and rest breaks as required by law.  Watch the November 8, 2011 oral argument before the California Supreme Court on YouTube.

California Labor Commissioner Reaches $726,063 Settlement for Wage and Hour Violations

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Published on Wednesday, 09 November 2011 18:50

California State Labor Commissioner Julie Su reached a substantial settlement to resolve a civil wage and penalty assessment against a prominent subcontractor, 84 Lumber Company.  Tercero Housing Project at the University of California, Davis hired general contractor Brown Construction, Inc., for the project, who subcontracted with  84 Lumber Company, a building materials supplier, to perform framing work for the student residence complex.  84 Lumber Company then subcontracted with Russell/Thompson Inc. to perform the actual work.  The Labor Commissioner conducted an investigation in 2009 which uncovered evidence establishing that Russell/Thompson Inc. willfully violated the law by failing to pay proper prevailing wages on the public works project, failed to pay overtime and misclassified workers by identifying them as lower paying positions rather than the higher rate skilled positions that were actually worked, and falsified payroll records, affecting a total of 74 employees. Initially, the Labor Commissioner had ordered Russell/Thompson to pay $1.3 million in wages and $200,000 in fines and further served a civil wage and penalty assessment against Brown Construction and 84 Lumber as prime contractors in the matter.  However, Brown Construction provided documentation that additional wages had been paid, and the Labor Commissioner then reached agreement that 84 Lumber Company would pay $726,063.24 of which, $564,938.24 is for the outstanding wages and $161,125 is for related penalties.  The settlement also resolves the wage violations and penalties against Russell/Thompson, Inc. and Brown Construction, Inc. “This settlement will make available wages that should have been rightfully paid to workers,” said Labor Commissioner Julie Su. “It also sends a strong message that on public works projects, prime contractors will be held responsible when their sub-contractors fail to follow labor laws.”  Read more. 

HR Practice Pointer: What is an Alternative Workweek Schedule?

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Published on Friday, 04 November 2011 20:37

In general, alternative workweek schedules allow an employer to avoid paying daily overtime, provided the employee does not work more than 40 hours a week. With certain limited exceptions, all employees in a work unit must work the alternative workweek schedule. Further, all employees in the work unit must vote to approve or reject the proposed schedule by secret ballot. A regularly scheduled alternative workweek cannot consist of more than ten (10) hours per day within a 40 hour workweek without the payment of an overtime rate of compensation. All work performed in any workday beyond the schedule established by the agreement up to 12 hours a day (certain exceptions apply such as the health care industry) or beyond 40 hours per week shall be paid at one and one-half (1½) times the employee's regular rate of pay. All work performed in excess of 12 hours per day and any work in excess of eight (8) hours on those days worked beyond the regularly scheduled number of workdays established by the alternative workweek agreement shall be paid at double the employee's regular rate  of pay. Read More.

Lowe’s Allegedly Terminated Service Member Without Just Cause

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Published on Friday, 04 November 2011 05:47

Lowe’s, a national hardware store chain, has agreed to settle a complaint brought by the U.S. Department of Justice’s (DOJ) which alleged that the company violated the Uniform Services Employment and Reemployment Rights Act (USERRA) when it terminated Matthew King, a U.S. Army Guard member and Iraq War veteran, allegedly without just cause. The settlement includes a lump sum payment of $45,000 to King, for back pay and liquidated damages. USERRA requires employers to reemploy a service member returning from military duty to a position the employee would have attained had they not been called to military service. After reemploying a service member the employer must also retain the service member in employment for a year unless there is good cause to terminate the employment, which thereby alters the “at will” status under which many individuals are usually employed. Lowe’s hired King in April 2008. In September 2008, King provided Lowe’s a copy of his military orders deploying him to Iraq. King spent approximately one year in Iraq and returned in May 2010 after being honorably discharged. Upon his return, King initially sought unemployment benefits on the basis of his federal military discharge, although he did not receive benefits. He then sought reemployment with Lowe’s and was rehired. Soon thereafter, Lowe’s human resource department received notice of King’s initial application for unemployment benefits and summoned him to a meeting. Although King explained to the human resources personnel that he had applied for unemployment before being reemployed by Lowe’s, due to the fact that he had been discharged by the military, Lowe’s terminated King, allegedly without further investigating the matter, even though King attempted to provide information from Oregon’s unemployment office to Lowe’s that would have clarified the matter. According to Thomas E. Perez, Assistant Attorney General for the DOJ’s Civil Rights Division, “Our service members need to know we will have their backs at home, including the right to have their job restored with their former employer when they return home after serving our country...The Justice Department will vigorously enforce the law to ensure that an individual who has sacrificed so much to serve this country has a fair opportunity to be reemployed as the law provides.” Read More.

OSHA Announces Interim Final Rules on Sarbanes-Oxley Whistleblower Procedures

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Published on Thursday, 03 November 2011 16:40

The U.S. Department of Labor's Occupational Safety and Health Administration (OSHA) will publish interim final rules in the Nov. 3 Federal Register. The rules revise the regulations governing whistleblower complaints filed under the Sarbanes-Oxley Act of 2002. The Act protects employees of publicly traded companies, and of certain other employers, from retaliation for reporting mail fraud, wire fraud, bank fraud, securities fraud, violations of SEC rules or regulations, or violations of any provision of federal law relating to fraud against shareholders. OSHA would like public comment on the interim final rule. OSHA Assistant Secretary Dr. David Michaels commented that "Fraudulent practices by publicly held corporations have contributed to the economic difficulties currently facing our nation…The best way to prevent this from happening in the future is on ensure that workers feel free to blow the whistle on corrupt corporate practices without fear of retaliation, and OSHA is committed to protecting the rights of those workers to speak out." The interim final rule can be viewed at http://s.dol.gov/JN. Comments, which must be received by Jan. 3, 2012, may be submitted electronically via the federal rulemaking portal at http://www.regulations.gov, or by mail or fax. Faxed submissions, including attachments, must not exceed 10 pages and should be sent to the OSHA Docket Office at 202-693-1648. Comments submitted by mail should be addressed to the OSHA Docket Office, Docket No. OSHA-2011-0126, U.S. Department of Labor, Room N-2625, 200 Constitution Ave. NW, Washington, D.C. 20210. Read More.

Court Rules Employer Violated NLRA for Terminating Employee Who Engaged in Protected Activity

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Published on Wednesday, 02 November 2011 05:40

In an unpublished opinion (National Labor Relations Board v. White Oak Manor) the 4^th Circuit upheld a National Labor Relations Board (“NLRB”) decision which found that White Oak Manor (a long term care facility) violated Section 8(a)(1) of the National Labor Relations Act (“NLRA”) by terminating an employee allegedly for protected concerted activity because she took cell phone photographs of employees to document White Oak Manor’s perceived unfair enforcement of its dress code. The controversy arose when the employee, Nichole Wright-Gore, wore a hat to work to conceal an unattractive haircut. White Oak Manor’s personnel director advised Wright-Gore that hats violated the dress code and issued her a written warning for insubordination. Wright-Gore then noticed that other employees—particularly men—wore hats, displayed tattoos, and otherwise breached the dress code. Wright-Gore allegedly raised her concerns to management to no avail and discussed them with (mainly female) co-workers who agreed with her. She then used her cell phone camera to document dress code violations, including taking photographs of a male employee whose attire violated the company’s dress code. The company’s administrator confronted Wright-Gore about the photographs. When she objected to the uneven application of the dress code, the administrator asked if she was “going to let a hat come in between the food on [her] kids’ table.” The administrator then approached the male employee and asked if he knew that he had been photographed; he said he was not aware of it. The next day, White Oak Manor terminated Wright-Gore for photographing the employee without his permission. The NLRB filed suit against the company alleging that Wright-Gore had engaged in protected concerted activity in protesting the perceived unfair enforcement of the dress code. It rejected White Oak Manor’s argument that Wright-Gore acted only in her self-interest because she wanted to wear her hat, finding instead that “[e]quitable enforcement of a dress code definitionally benefits all.” On appeal, the 4^th Circuit agreed with the NLRB that Wright-Gore’s photography was not egregious conduct that caused her to lose the protection of the NLRA. It focused on the company’s past “utter failure to enforce its picture-taking policy.” This case clearly demonstrates how important it is for employers to consistently and even handedly enforce workplace policies. Read More. 

OSHA Forms Alliance With Restaurant Industry Organization

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Published on Tuesday, 01 November 2011 17:06

The Occupational Safety and Health Administration (OSHA) recently formed an Alliance with the RestaurantOpportunities Centers United (ROC-United) to focus on reducing and preventing worker exposures to slip, trip and fall, and cut and burn hazards, in addition to addressing  workplace safety issues related to young workers and small businesses. ROC-United is a national restaurant workers organization that represents approximately 7,500 members. Founded in 2008, the organization is committed to improving working conditions for restaurant workers and coordinating national campaigns for workers in this industry. The Alliance will develop products such as fact sheets and a safety and health booklet on issues including cuts and burns, and slips, trips and falls. The Alliance will also create case studies on lessons learned, and provide workers and employers with training on hazards and best practices within the restaurant industry. According to David Michaels, Assistant Secretary of Labor for Occupational Safety and Health, "Restaurants and other eating and drinking businesses employ 11.6 million people in the United States. Nearly 30 percent of these workers are under 20 years of age…Many teens' first work experience is in the restaurant industry, so this Alliance is a great opportunity to reach these and other restaurant workers and employers to raise awareness of ways to promote safer, more healthful workplaces." OSHA’s Alliance Program is centered on working with groups, such as unions, consulates, and trade or professional organizations, that are committed to worker safety and health to prevent workplace fatalities, injuries and illnesses. Read More.

Employers Should Enact Policies to Protect Against Cybercrime

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Published on Tuesday, 01 November 2011 08:24

Cybercrime is a growing concern for employers, particularly in light of the highly confidential information that may be contained on an employer's electronic systems. The U.S. Department of Justice (DOJ) recently issued an article regarding the importance of protecting against cybercrime. U.S. Attorney Jenny Durkan, who chairs the Justice Department’s Cybercrime and Intellectual Property Enforcement advisory group, has made combating cybercrime a top priority. This includes “working with companies and individuals to enforce federal laws when systems are hacked, personal information is compromised, payroll and banking information is misused, electronic commerce is disrupted or trade secrets are stolen.” In response to a grand jury indictment of three individuals who allegedly hacked into computer systems to steal personal and business information, U.S. Attorney Durkan said: “These defendants combined ‘old school’ methods such as burglary, with high tech methods such as using unprotected wireless networks to hide their identities while draining bank accounts and committing fraud. The victims in this case quickly reported the hacking to law enforcement — a key step to bringing these defendants to justice.” According to the DOJ, their successful effort to solve the crime, which is alleged to have victimized more than 50 area businesses, was due in large part to the fact that companies came forward to report the crimes. As a result, members of the U.S. Secret Service Electronic Crimes Task Force were “able to connect the dots on what looked like unrelated incidents.” The DOJ offers business (and employers) the following tips for preventing cybercrime: (1) Businesses should review their wireless encryption and confirm that they are using the appropriate level of encryption (WPA2 Personal or WPA Enterprise); (2) Businesses should keep a record of all laptop computers and ensure that any computers with remote access are encrypted. Any missing laptop computers should have passwords and credentials replaced immediately; (3) Businesses should be aware of hacking that can occur from physical access to the server room as well as from external hacking; (4) Employees should never click past security certificate warning screens and should notify their IT staff immediately; (5) Managers should be aware of “watercooler” talk among employees that may indicate a breach has occurred. This includes numerous employees complaining of fraud on personal accounts; (6) Businesses should ensure that they have a security response plan prepared in the event that some kind of incident does occur; (7) If a business/employer notices suspicious activity, local law enforcement should be contacted. Read More.

Air Canada Must Pay $325,000 for Alleged Disability Discrimination

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Published on Monday, 31 October 2011 23:59

The California Department of Fair Employment and Housing (DFEH) announced that Air Canada must pay more than $325,000 in damages after the company allegedly terminated one of its customer service representatives on the basis of her disability. The Fair Employment and Housing Commission (FEHC) found that Air Canada allegedly failed to accommodate the employee’s disability and then terminated her because she could not lift cargo – a job function customer service representatives apparently rarely perform. The employee, Caroline Messih Zemaitis, worked as a customer service agent for Air Canada at Los Angeles International Airport from 1993 to 2007. Starting in 2004, she performed clerical duties in the cargo division, which did not involve physical labor. In 2005 and 2006, Ms. Zemaitis injured her back, shoulder, knee and wrist, and her physician restricted her from performing such tasks as heavy lifting and repeated bending. However, Ms. Zemaitis was able to keep working in the cargo division with minor accommodations provided by Air Canada such as provision of a telephone headset and heating pad, and time off for physical therapy. When Ms. Zemaitis became pregnant, her back condition worsened and she went out on a medical leave of absence for approximately one year. She then tried to return to work in 2007 when released by her physician with restrictions similar to those she had before, but Air Canada allegedly refused to respond to her many communications regarding returning to work. Instead, Air Canada allegedly terminated Ms. Zemaitis’s because she could not lift cargo. DFEH Director Phyllis Cheng commented that “Employers must attempt to find reasonable modifications that allow employees with disabilities to keep working…Using non-essential job functions as a pretext to deny employment to persons with disabilities is unlawful in California.” In addition to the monetary damages, Air Canada must reinstate Ms. Zemaitis, post a notice about their liability, and develop a policy and train management on reasonable accommodations necessary to allow disabled employees to continue working. Read More.

USCCR Recommends That Title VII be Amended to Permit “English Only” Policies

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Published on Monday, 31 October 2011 15:18

The U.S. Commission on Civil Rights (“USCCR”) has issued a report (English Only Policies in the Workplace )
which recommends that English-only policies in the workplace should  be lawful unless the policy is intended to harass, embarrass, or exclude employees and/or applicants based on their national origin. The report notes that in recent years some employers have specified English as the common language of the workplace, meaning that their employees are required to speak English rather than another language while on the job, for a variety of reasons including (1) the need for more effective supervision; (2) the need to ensure optimal communication so as to ensure safety, quality, etc.; and, (3) the need to show respect for customers who may be put off by conversations then may not understand. However, the Equal Employment Opportunity Commission (EEOC) has taken the position that these “English Only” policies violate the law (section 1606.7 of the EEOC Guidelines). The USCC disagrees. After conducting extensive briefings on the matter, the USCCR suggests that “The EEOC should withdraw section 1606.7. Instead, employers and employees should be informed that 'English-only' policies are prohibited only when it can be shown by a preponderance of evidence that the policy was adopted for the purpose of harassing, embarrassing, or excluding employees or applicants for employment on account of their national origin.” Further, the USCCR recommends that “Congress should amend Title VII to clarify the meaning of discrimination on the basis of national origin. At minimum, that clarification should make it clear that an ‘English-only’ policy is prohibited only when it can be shown by a preponderance of the evidence that the policy was adopted for the purpose of harassing, embarrassing or excluding employees or applicants for employment on account of their national origin.” Read More.  

EEOC Issues Guidance Letter on Use of Criminal History Information in Hiring Process

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Published on Thursday, 27 October 2011 18:20

In response to an inquiry by the Peace Corps, the Equal Employment Opportunity Commission (EEOC) has issued a guidance letter regarding the use of conviction and arrest records in the hiring process. The EEOC sets forth its position in the letter, stating, in pertinent part, “A pre-employment inquiry concerning criminal records does not in itself violate Title VII because Title VII does not regulate inquiries by employers. However, an employer’s use of criminal record information in its selection process may violate Title VII in certain circumstances. Thus, an employer must not use criminal history information to engage in unlawful disparate treatment (e.g., excluding African American applicants with certain criminal charges while accepting White applicants with the same charges). Moreover, because disproportionate numbers of African Americans and Hispanics are arrested and convicted, the use of conviction and arrest records to make employment decisions is likely to have a substantial disparate impact on those groups. Where there is such an impact, an employer must not use criminal history information in a manner that is not job related and consistent with business necessity. As set forth below, the standard of “job related and consistent with business necessity” is applied differently for a conviction and for an arrest or charge…Excluding individuals from employment because they have arrest or conviction records may disproportionately exclude African-Americans and Hispanics, thereby creating a disparate impact. Accordingly, the Peace Corps should ensure that its criminal history policies and practices are “job related and consistent with business necessity.” For exclusions based on convictions, the legal standard is that the criminal conduct is recent enough and sufficiently job-related to be predictive of performance in the position sought, given its duties and responsibilities.” Read More.

AT&T Settles Age Discrimination Lawsuit Filed by EEOC

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Published on Thursday, 27 October 2011 16:52

AT&T has agreed to settle an age discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC). The EEOC charged that AT&T discriminated against a class of retired AT&T workers by denying them the opportunity for reemployment because they retired under certain early retirement programs. The EEOC claimed that this practice violated the Age Discrimination in Employment Act (ADEA). According to the EEOC’s lawsuit, individuals who participated in the early retirement programs were restricted by AT&T from being reemployed or engaged as contractors because they took one of these retirement packages. The EEOC filed suit after first trying to reach a pre-litigation settlement through its conciliation process. AT&T denied the allegations in the lawsuit, but agreed to change its policies related to the reemployment of retirees. The consent decree prohibits AT&T from maintaining any policy that excludes from reemployment employees who left AT&T under one of the early retirement plans. The decree also prohibits AT&T from requiring a different process for selecting retirees than any other former employees. Anna M. Pohl, an EEOC trial attorney, commented that “Many former employees who took an early retirement package years ago still need work, and will now have an equal opportunity to apply for new jobs at AT&T…AT&T is to be commended for changing its policies and working with the EEOC to resolve this case.” Read More.

Proposed Bill Would Amend FLSA to Modify Computer Professional Exemption

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Published on Wednesday, 26 October 2011 20:11

A proposed bill would amend the Fair Labor Standards Act of 1938 (FLSA) to modify provisions relating to the federal exemption for computer systems analysts, computer programmers, software engineers, or other similarly skilled workers. Specifically, The proposal would amend the FLSA to include the following language: Any employee working in a computer or  information technology occupation (including, but  not limited to, work related to computers, information systems, components, networks, software, hardware, databases, security, internet, intranet, or websites) as an analyst, programmer, engineer, designer, developer, administrator, or other similarly  skilled worker, whose primary duty is—(A) the application of systems, network or database analysis techniques and procedures, including consulting with users, to determine or modify hardware, software, network, database, or system functional specifications; (B) the design, development, documentation, analysis, creation, testing, securing, configuration, integration, debugging, modification of computer or information technology, or enabling continuity of systems and applications; (C) directing the work of individuals per forming duties described in subparagraph (A) or (B), including training such individuals or leading teams performing such duties; or (D) a combination of duties described in subparagraphs (A), (B), and (C), the performance of which requires the same level of skill and who is compensated at an hourly rate of not less than $27.63 an hour, or who is paid on a salary basis at a salary level as set forth by the Department of Labor. Read More.  

Employers Must Be Careful About Employees Performing Pre-Shift Work

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Published on Wednesday, 26 October 2011 19:23

A recent case highlights the fact that employers must be careful about employees performing work before clocking in at the start of the day. The case involves Hilton Reservations Worldwide LLC, which is doing business as Hilton Reservations and Customer Care in Carrollton. The company has agreed to pay $715,507 in minimum and overtime back wages to 2,645 current and former customer service employees following an investigation by the U.S. Department of Labor's Wage and Hour Division (DOL). The investigation apparently revealed alleged violations of the Fair Labor Standards Act (FLSA), including that the company failed to pay employees for work performed prior to clocking in at the start of their scheduled shifts, such as booting up a computer, opening programs required to assist customers and reading pertinent emails. Thus, the employees did not receive at least the minimum wage for this time, as required by the FLSA. Further, since the time was not included in the employees' total hours worked, which is used to calculate overtime wages, they did not receive the correct overtime rate of pay. Finally, according to the DOL, the employer failed to maintain the required records. Cynthia Watson, regional administrator for the DOL’s Wage and Hour Division in the Southwest commented that, "This company profited by not paying its customer care workers for hours spent conducting pre-shift work…We look at big companies with a multitude of resources, such as Hilton reservations Worldwide, as businesses that can model what it means to be a good employer. For that reason, we are pleased that the company has made the necessary changes to comply with the law and pay its workers all the wages they have earned." Hilton Reservations Worldwide has “agreed to fully comply with the FLSA in the future.” Payment of the back wages by the company is ongoing. The FLSA (federal law) requires that covered employees be paid at least the federal minimum wage of $7.25 for all hours worked, plus time and one-half their regular rates of pay, including commissions, bonuses and incentive pay, for hours worked beyond 40 per week. Employers must also maintain accurate time and payroll records. Read More. 

Court Finds Employee Failed to Prove a Hostile Work Environment

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Published on Tuesday, 25 October 2011 16:34

Hostile work environment claims are a common form of sexual harassment. In a recent case, Brennan v. Townsend & O’Leary Enterprises, Inc., the court found that the employee failed to prove a hostile work environment. The court reviewed the type of evidence required to establish a hostile work environment, reaffirming that in order to establish such a claim, the accuser must prove that the harassment was sufficiently pervasive or severe so as to alter the conditions of employment. The case involves Stephanie Brennan (Brennan) who in 1991was hired by Townsend & O’Leary Enterprises (Company) to work as an assistant media planner; she eventually became manager of marketing services. In 2005, Brennan left the company and filed a sexual harassment claim alleging a hostile work environment based on conduct that included the following: Brennan alleged that Steve O’Leary (O’Leary) the company’s owner, asked about her relationships “quite often.”  She also claimed that O’Leary would ask “if [she] got any of that” and use a hand gesture, described as clapping both palms together multiple times, when he talked to her about her sex life. In 2000, Brennan helped plan a bachelorette party for a company employee, Disbro. One of the other planners of the party brought a wedding veil that had a plastic penis attached to it for Disbro to wear. The veil was later brought into the office and Brennan alleged that at a staff meeting, O’Leary asked Disbro to put on the veil, which she did, and then apparently appeared embarrassed. Brennan also alleged that she attended an offsite Christmas party for the agency, at which a management employee dressed as Santa Claus asked a female employee to sit on his lap and then asked her about not having a man in her life. In another incident, O’Leary wore a red-and-white Santa hat which had the word “bitch” across the brow. In August of 2004, a company employee forwarded an email to Brennan, which stated, in response to an employee’s departure from the company, “Three down, one big-titted, mindless one to go.” Brennan accurately understood that the statement referred to her. The company reprimanded and warned the employee who sent the email about violating company policy against sexual harassment. The company also brought in an outside investigator to investigate sexual harassment in their workplace. However, Brennan refused to speak with the investigator. Read more.

IRS Announces Pension Plan Limitations for 2012

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Published on Tuesday, 25 October 2011 04:09

The Internal Revenue Service (IRS) has announced cost of living adjustments affecting dollar limitations for pension plans and other retirement-related items for Tax Year 2012. Highlights include: (1) The elective deferral (contribution) limit for employees who participate in 401(k), 403(b), most 457 plans, and the federal government’s Thrift Savings Plan is increased from $16,500 to $17,000; (2) The catch-up contribution limit for those aged 50 and over remains unchanged at $5,500; (3) The deduction for taxpayers making contributions to a traditional IRA is phased out for singles and heads of household who are covered by a workplace retirement plan and have modified adjusted gross incomes (AGI) between $58,000 and $68,000, up from $56,000 and $66,000 in 2011. For married couples filing jointly, in which the spouse who makes the IRA contribution is covered by a workplace retirement plan, the income phase-out range is $92,000 to $112,000, up from $90,000 to $110,000. For an IRA contributor who is not covered by a workplace retirement plan and is married to someone who is covered, the deduction is phased out if the couple’s income is between $173,000 and $183,000, up from $169,000 and $179,000. Read More.

Incidence Rates for Nonfatal Workplace Injuries and Illnesses Continue to Decline

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Published on Monday, 24 October 2011 16:51

According to a U.S. Bureau of Labor Statistics (BLS) report, although nearly 3.1 million nonfatal workplace injuries and illnesses were reported among private industry employers in 2010, which resulted in an incidence rate of 3.5 cases per 100 equivalent full-time workers, this is down from 3.6 cases in 2009. This continues an eight year decline (beginning in 2002) for the injury and illness incidence rate among private industry employers, when estimates from the Survey of Occupational Injuries and Illnesses (SOII) were first published using the current OSHA requirements for recording occupational injuries and illnesses. Incidence rates for injuries and illnesses combined among private industry establishments declined significantly in 2010 for total recordable cases and for other recordable cases. However, the incidence rates for cases with days away from work; for cases of job transfer and restriction; and for cases of days away from work, job transfer, or restriction together each remained unchanged from 2009. Manufacturing was the sole private industry sector to experience an increase in the incidence rate of injuries and illnesses in 2010--rising to 4.4 cases per 100 full-time workers from 4.3 cases in 2009. The incidence rate of injuries only among private industry workers remained unchanged between 2009 and 2010 at 3.4 cases per 100 full-time workers. Read More.

Employer to Pay $135,000 for Alleged Failure to Accommodate a Disabled Employee

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Published on Monday, 24 October 2011 16:20

The Industrial Company Wyoming, Inc. (TIC.), a heavy construction company, has agreed to pay $135,000 to settle a disability discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC). According to the EEOC’s lawsuit, TIC terminated Matthew Gilkey, a millwright, even though he performed satisfactorily, allegedly because the company did not want to accommodate his physical impairments, which included a leg amputation. The EEOC also charged that TIC Wyoming refused to allow Gilkey to return to work unless he provided medical documentation that he could perform his job duties without medical restrictions. Further, the EEOC alleges that TIC refused to engage Gilkey in good-faith discussions (an interactive process) about accommodations he had requested and that TIC had previously provided but then withdrew. In addition to the monetary settlement, TIC agreed to provide its employees, supervisors, and managers with annual training for two years on the Americans with Disabilities Act, and to furnish periodic reports to the EEOC. Regional Attorney for the EEOC, Mary Jo O’Neill, commented that “We commend TIC Wyoming for addressing this case head-on, for being willing to work with our Denver Field Office to resolve it, and for its commitment to better educate its management team and work force...We believe this resolution will help foster a discrimination-free workplace going forward.” Read More.

California Supreme Court Denies Seabright’s Petition for Rehearing

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Published on Friday, 21 October 2011 20:24

Seabright Insurance Company filed a petition for rehearing on September 6, 2011, in the case of Seabright
Insurance Company v. US Airways, Inc. 52 Cal. 4th 590, which the California Supreme Court denied on October 19, 2011. The case involved an independent contractor’s employee who sustained a work related injury while working on the hirer’s facilities, and then filed a workers’ compensation claim under the independent contractor’s policy. The workers’ compensation provider, Seabright Insurance Company (who accepted the claim), sought indemnification from the hirer of the independent contractor, US Airways, on the theory that the company breached a non-delegable duty under Cal-OSHA to ensure that a conveyor (which allegedly caused the employee’s injury) had the requisite safety guards, and was thus liable for the employee’s injuries even though the employee worked for the independent contractor. However, the California Supreme Court disagreed, emphasizing that there is a strong policy “in favor of delegation of responsibility and assignment of liability  to independent contractors…an independent contractor‘s hirer implicitly delegates to that contractor its tort law duty, if any, to provide the employees of that contractor a safe workplace…we reject the premise that the tort law duty, if any, that a hirer owes under Cal-OSHA and its regulations to the employees of an independent contractor is nondelegable.”  Read More.

New Legislation Adds “Gender Identity and Expression” as a Protected Class to FEHA

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Published on Thursday, 20 October 2011 02:26

Governor Brown has signed into law AB 887, which amends the Fair Employment and Housing Act (FEHA), in addition to various other laws, to provide that discrimination on the basis of “gender identity” and “gender expression” is prohibited. Currently, the FEHA contains various provisions that define sex as including gender, and define gender. as including a person’s gender identity and gender-related appearance and behavior whether or not stereotypically associated with the person’s assigned sex at birth. AB 887 makes changes to those provisions by refining the definition of gender to also mean a person’s “gender identity” and “gender expression,” in addition to defining gender expression as meaning a person’s gender-related appearance and behavior whether or not stereotypically associated with the person’s assigned sex at birth. Further, although the FEHA contains various provisions that require equal rights and opportunities in employment, regardless of gender, and it prohibits discrimination based on specified characteristics, including sex and gender, “gender identity and expression” is not included. AB 887 adds “gender identity” and “gender expression” to the enumerated protected characteristics. The new legislation also requires an employer to allow an employee to appear or dress consistently with the employee’s gender expression. Read More.

American Laser Centers Will Pay $125,000 to Settle Sexual Harassment Lawsuit

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Published on Thursday, 20 October 2011 00:17

American Laser Centers (ALC), the largest laser hair removal company in the United States has agreed to pay $125,000 to settle claims of alleged sexual harassment and retaliation at its site in Fresno, California. According to a lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC), female staff at the company’s clinic in Fresno charged that they were sexually harassed since at least 2006 by the landlord for the facility. The women, including a clinic manager, allegedly faced frequent harassment which included leering, unwelcome touching, sexual advances and appearances in their work area by the visibly aroused landlord. One female employee even felt compelled to bring her brother to work as a measure of protection. The clinic manager and others allegedly reported the harassment to ALC district management in 2006, expressing their fear of working with the landlord. However, according to the EEOC, the women’s complaints were met with a superficial internal investigation with no finding of wrongdoing on the part the landlord and continued exposure to the alleged harasser. Further, the female clinic manager was fired just a week and a half after reporting the misconduct. Melissa Barrios, director of the EEOC’s Fresno Local Office, commented that “Workers absolutely have the legal right to report harassment or discrimination suffered at work without repercussion. Employers who encourage such open communication can tackle civil rights abuses earlier on, thereby creating a more harmonious workplace and minimizing liability." Read More.

Employer Who Sues Employee Does Not Have to Indemnify Employee for Attorney Fees

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Published on Tuesday, 18 October 2011 04:37

Nicholas Laboratories, LLC sued its former employee, Christopher Chen, alleging seven theories of liability (breach of contract, breach of the implied covenant of good faith and fair dealing, conversion, negligence, money had and received, unjust enrichment, and constructive trust). The basis for the lawsuit, according to Nicholas Lab, was that when Chen was hired by Nicholas Labs as its director of information technology he agreed to work full time and exclusively on behalf of Nicholas Labs; instead, Chen allegedly engaged “in a business that made him a competitor of Nicholas Labs” and he allegedly “diverted business opportunities away from Nicholas Labs.” Nicholas Labs subsequently filed a lawsuit against Chen seeking compensatory damages, punitive damages, reasonable attorney fees, and other relief in excess of $2 million. The parties resolved the case and Chen sought reimbursement of his attorney fees under Labor Code Section 2802, which states that "An employer shall indemnify his or her employee for all necessary expenditures or losses incurred by the employee in direct consequence of the discharge of his or her duties, or of his or her obedience to the directions of the employer, even though unlawful, unless the employee, at the time of obeying the directions, believed them to be unlawful."  Chen claimed that his attorney fees were a business expense that arose as a result of his work for Nicholas Labs. On appeal, the court held that “Labor Code section 2802 does not require an employer to reimburse its employee for attorney fees incurred in the employee’s successful defense of the employer’s action against the employee.” The court emphasized that the “attorney fees incurred by Chen do not fall within the domain of section 2802. We are not persuaded that the Legislature, in drafting section 2802, intended to depart from the usual meaning of the word ‘indemnify’ to address ‘first party’ disputes between employers and employees. The Legislature could have specifically provided in section 2802 that attorney fees incurred defending an action by the employer were recoverable by a prevailing employee. The fact that the Legislature did not do so suggests disputes between employers and employees are subject to the ordinary rules applying to the recovery of attorney fees in California litigation.”  Read More.

Bill Introduced to “End Misclassification of Employees as Independent Contractors”

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Published on Tuesday, 18 October 2011 03:46

Rep. Lynn Woolsey (D-CA) has introduced a bill, the Employee Misclassification Prevention Act (EMPA) (H.R. 3178) intended to “end the misclassification of employees as independent contractors, a practice that strips workers of benefits and protections, puts responsible employers at a competitive disadvantage, and cheats taxpayers.” According to Rep. Woolsey, “Misclassification undermines workers’ rights by denying them access to important benefits and protections like workers’ compensation coverage, minimum wage and overtime protections, family and medical leave, and the right to organize and collectively bargain. This unscrupulous practice has gone unchecked long enough.”  According to the IRS, misclassification deprives the federal treasury of about $2.7 billion a year in unpaid tax revenue. In addition, the General Accountability Office (GAO), estimates that least 10 million workers in the U.S. are classified (rightly or wrongly) as independent contractors. The Department of Labor (DOL) estimates that approximately 30 percent of companies nationwide misclassify their employees. The EMPA would do the following: (1) Require that employers keep records reflecting the accurate status of each worker as an employee or non-employee and clarify that employers violate the Fair Labor Standards Act when they misclassify workers; (2) Increase penalties on employers who misclassify their employees and are found to have violated employees’ overtime or minimum wage rights; (3) Require employers to notify workers of their classification as an employee or non- employee; (4) Create an “employee rights web site” to inform workers about their federal and state wage and hour rights; (5) Provide protections to workers who are discriminated against because they have sought to be accurately classified; (6) Mandate that states conduct audits to identify employers who misclassify workers and require that DOL monitor states’ efforts to identify misclassification; (7) Direct states to strengthen their own penalties for worker misclassification; and, (8) Permit the DOL and IRS to refer incidents of misclassification to one another. The full text of the EMPA is available at:: http://hdl.loc.gov/loc.uscongress/legislation.112hr3178. Read More. 

Legislation Introduced To Expand FMLA To Include "Domestic Violence Leave"

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Published on Friday, 14 October 2011 19:47

Rep. Lynn Woolsey (D-CA) has reintroduced the Domestic Violence Leave Act (H.R. 3151), which expands leave  options for victims of domestic abuse, sexual assault, or stalking. Currently, the Family and Medical Leave Act (FMLA) allows employees to take unpaid leave from work for birth, adoption, caring for children, and other benefits, but it does not provide this option for domestic violence victims or their families. The proposed legislation applies to domestic violence, sexual assault, or stalking of an employee, or the employee’s family member (which also includes an adult son or daughter) who is addressing those issues. The terms ‘domestic violence,’ ‘sexual assault,’ and ‘stalking’ have the same meanings as under the Violence Against Women Act, and the term ‘domestic violence’ includes dating violence. Under the bill, the worker can use leave in a variety of ways including seeking medical attention for injuries; seeking legal assistance or remedies, including participating in a legal proceeding; attending support groups; obtaining counseling; participating in safety planning; and any other activity necessitated by domestic violence, sexual assault or stalking. The bill also provides that the employer must keep all evidence of domestic violence, sexual assault, or stalking in the strictest confidence, except with the consent of the employee to protect the safety of the employee or family member or to assist in documenting the domestic violence, sexual assault or stalking for a court or law enforcement agency. In addition, the bill extends all FMLA protections and benefits – not just those related to domestic violence -- to domestic partners and children of a domestic partner. Rep. Woolsey, commented that “Domestic violence is a widespread problem affecting millions of people in the United States, men and women…My bill ensures that those who have suffered abuse have the time to recover, physically and emotionally, without losing their job or forfeiting the income that supports them and their family…Our primary goal must be to stamp out domestic violence altogether. But until then, we need to help those who need time off to deal with its effects.” Read More. 

Governor Brown Signs Legislation Intended To Prevent “Wage-Theft”

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Published on Thursday, 13 October 2011 19:55

Governor Jerry Brown has signed Assembly Bill 469 (AB 469), an anti-“wage-theft” measure (similar to a New York law) which contains significant employment related provisions. The new legislation, which goes into effect January 1, 2012, requires that private employers (public employers are exempt) provide non-exempt new hires with a written notice which includes (a) the rate and the basis, whether hourly, salary, commission, or otherwise, of the employee's wages; (b) any allowances claimed as part of the minimum wage; (c) date of the regular payday;  (d) the name of the employer (including any “doing business as”);  and, (e) main address and telephone number of the employer. The Labor Commissioner will be preparing a template for use by employers. In addition, the employer must notify each employee of any changes to information in the notice within 7 calendar day of the change, unless such changes are reflected on a timely wage statement or other writing. The legislation requires that employers keep employee wage statements for three years. It also makes certain wage violations a felony and increases penalties for violations. Finally, the legislation increases the statute of limitations for the Department of Labor Standards Enforcement (DLSE) to collect penalties from one to three years. Read More. 

CA Labor Commissioner Issues $499,000 Citation For Alleged Failure To Provide Itemized Wage Statements

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Published on Thursday, 13 October 2011 18:37

The California Department of Industrial Relations’ (DIR) Division of Labor Standards Enforcement headed by
the State Labor Commissioner, Julie A. Su, apparently uncovered multiple labor law   violations, after conducting an inspection of certain warehouses in Riverside County. Schneider Logistics runs the warehouse where over 200 hundred people work, some of whom were hired by other entities, including Premier Warehousing Ventures, LLC and Impact Logistics, Inc. Impact Logistics, Inc. was issued a $499,000 citation for alleged failure to provide itemized wage statements to employees. They were also issued a Notice to Discontinue labor law violations for failure to maintain time records. Premier Warehousing Ventures was issued a Notice to Discontinue reporting time violations and other violations. “Our investigation is ongoing,” said California Labor Commissioner Julie A. Su. “We will assess all wages owed to the workers and work with the employers to ensure compliance going forward.” Labor Commissioner Su added “[i]n this case, workers were paid piece rate to unload containers [and] … must receive at least minimum wage and overtime for all hours worked. California law also requires that all employees receive wage statements that explain the basis for their paycheck...Proper wage statements were not provided to these workers.” Complaints about abuses of warehouse workers, particularly in the Inland Empire area, are not uncommon, according to Labor Commissioner Su who also stated  “This Administration is committed to meaningful investigations of workplaces to protect employees and those employers who are playing by the rules. Our investigation today confirmed stories of abuses in the warehousing industry that must stop.”  Read More.

EEOC Sues Employer For Allegedly Discriminating Against American Workers

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Published on Wednesday, 12 October 2011 23:52

According to a recent lawsuit filed by the Equal Employment Opportunity Commission (EEOC) Hamilton Growers, Inc., doing business as Southern Valley Fruit and Vegetable, Inc., subjected American workers to discrimination based on their national origin at its Norman Park, Ga., location. The EEOC charges that the company terminated virtually all American workers and retained workers from Mexico during the 2009 and 2010 growing seasons. The agency also alleges that the employer terminated at least 16 African American workers in 2009 based on race and/or national origin; their terminations were allegedly coupled with race-based comments by a management official. The lawsuit also alleges the company provided better job opportunities to their Mexican workers, while subjecting the American workers to different terms and conditions of employment, including less desirable job positions. Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating against employees on the basis of national origin and race. Bernice Williams-Kimbrough, district director for the EEOC’s Atlanta District Offices stated that “The EEOC has reason to believe that the practices alleged in the lawsuit are relatively common in the industry….[and] the EEOC is committed to protecting American workers from arbitrary firings and disparate treatment due to national origin.” Read More.

Judge Rules Cascom Misclassified Employees As Independent Contractors; DOL Now Seeks Over $1.6 Million In Wages And Damages

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Published on Wednesday, 12 October 2011 04:40

In Solis v. Cascom Inc. et al. Civil Action Number 3:09-cv-00257, Judge Thomas M. Rose of the U.S. District Court, Southern District of Ohio, Western Division at Dayton ruled that Cascom, Inc., which provides residential cable television, Internet and telephone installation services for Time Warner in the Dayton area, violated federal labor laws by misclassifying its employees as independent contractors and, consequently, not compensating them for overtime work, as required under the Fair Labor Standards Act (FLSA).  Further proceedings  will be held on November 22, 2011 to determine the amount of overtime back wages owed to approximately 250 installers. The Labor Department filed its suit two years ago seeking to recover back wages in excess of $800,000, with an equal amount in liquidated damages. "The misclassification of employees as independent contractors is an alarming trend. The practice is a serious threat to both workers, who are entitled to good and safe jobs, and to employers who obey the law and are undercut when others use illegal practices," said Secretary of Labor Hilda L. Solis. "The Department of Labor is committed to remedying employee misclassification and ensuring compliance to protect and enhance the welfare of the nation's workforce."  This determination is on the heels of a memorandum of understanding Secretary Solis signed with the Internal Revenue Service on September 19, 2011, intended to improve the Labor Department's efforts to end the business practice of misclassifying employees in order to avoid providing employment protections.  Read More.

CUIAB Adopts a New Precedent Board Decision Redefining “Domestic Quit”

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Published on Tuesday, 11 October 2011 19:32

The California Unemployment Insurance Appeals Board (CUIAB) adopted a new precedent board decision, P-B-497, related to the issue of a “domestic quit.”  A “domestic quit” involves situations in which the individual who applies for unemployment insurance benefits (claimant) quits his or her job because their significant other is moving to a location from which it would be  impractical to commute. Historically, the Employment Development Department (EDD) and the CUIAB have treated the “domestic quit” as exclusively applying to a spouse or a domestic partner.  In this case, the claimant had a same sex partner, but they were not married or registered as domestic partners because although they wanted to get married, and were planning to do so, the passage of Proposition 8 prevented the marriage. Further, they believed that the status of registered domestic partners was inadequate.  The circumstances of the claimant’s significant other changed due to her ailing mother in Rhode Island, which required that the couple move in order to care for the mother. As a result, the claimant quit her job.  Since their partnership did not fall under traditional application of a "domestic quit” (i.e. a married person or domestic partner) the Unemployment Insurance Administrative Law Judge (ALJ) denied benefits, specifically referring to the California Supreme Court’s decision in Norman v. Unemployment Insurance Appeals Board (1982) 131 Cal. App. 946, which precluded such a claimant from receiving benefits. Further, the ALJ noted that although the Supreme Court created an exception in McGregor v. California Unemployment Insurance Appeals Board (1984) 37 Cal. 3d. 205, for unmarried claimants who have children with a significant other, this claimant and her partner did not have children, thus the ALJ ruled that the exception did not apply. The claimant appealed, and in P-B-497, the CUIAB explicitly adopted a different interpretation of Norman which held, in pertinent part, that “[w]hen a spouse or domestic partner of a claimant moves to a place from which it is impossible or impractical for the claimant to commute to his or her job, there is a presumption that the claimant has good cause to resign from work to follow the spouse or partner.  In the case of other people who make such a move, there is no such presumption, but a claimant in this situation might still be able to demonstrate a prima facie case of good cause for resigning by showing that the legal, financial, emotional and other ties between those involved are so imperative and compelling as to make the voluntary leaving involuntary.”  Therefore, according to the CUIAB, “[a] rule requiring consideration of the totality of the circumstances surrounding a claimant’s decision to resign is also more faithful to the language of section 1256 than fixed rules based on the claimant’s status…[and also] furthers the fundamental purpose of the unemployment insurance laws, which is to provide benefits to those who are unemployed through no fault of their own. “ The CUIAB remanded the case back to the ALJ to analyze the facts in light of their decision.  Read More.

Governor Brown Signs AB 22 Restricting Use Of Employee Credit Information

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Published on Tuesday, 11 October 2011 18:26

Effective January 1, 2012, employers or prospective employers in California – with the exception of certain financial institutions – will be prohibited from obtaining consumer credit reports for use in the hiring and promotion pursuant to Assembly Bill 22 (AB 22) which Governor Jerry Brown recently signed into law. In general, AB 22 restricts the use of consumer credit reports for employment purposes. California now joins Connecticut, Hawaii, Illinois, Maryland, Oregon, and Washington as U.S. states that limit the use of credit checks by employers. Assembly member Tony Mendoza (D-56th District), introduced AB 22; it was his third attempt at similar legislation. In a press release, Rep. Mendoza commented that “This bill has the ability to put countless unemployed Californians back to work and will end the needless catch-22 that occurs when those seeking work to pay their bills cannot find it due to poor credit.” AB 22 bans the use of pre-employment credit checks for many employers. The bill also prohibits employers or prospective employers from obtaining a consumer credit report for employment purposes unless the individual is seeking employment in one of the following categories: (1) A managerial position; (2) A position in the state Department of Justice; (3) A sworn peace officer or other law enforcement position; (4) A position for which the information contained in the report is required by law to be disclosed or obtained; (5) A position that involves regular access to specified personal information for any purpose other than the routine solicitation and processing of credit card applications in a retail establishment; (6) A position in which the person is or would be a named signatory on the employer’s bank or credit card account, or authorized to transfer money or enter into financial contracts on the employer’s behalf; (7) A position that involves access to confidential or proprietary information; or (8) A position that involves regular access to $10,000 or more of cash. In addition, AB 22 also requires the written notice employer informing the individual for whom a consumer credit report is sought for employment purposes to also inform that individual of the specific reason for obtaining the report. Read More.

Employer Allegedly Fired Employee After Receiving EEOC Charge

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Published on Monday, 10 October 2011 19:12

The U.S. Equal Employment Opportunity Commission (EEOC) has charged Sterling and Sterling, a Woodbury, N.Y., insurance broker, with violating Title VII of the Civil Rights Act of 1964 anti-discrimination law for allegedly suspending and then terminating a sales telemarketer for filing an EEOC questionnaire and charge.  The EEOC alleges that in September 2009, while Rochelle Legette  was on maternity leave, she filled out an EEOC questionnaire alleging race and sex discrimination, which was sent to Sterling and Sterling. Upon returning to work on February 1, 2010, Sterling and Sterling allegedly began scrutinizing Legette’s work and counseled her for poor performance only three days later. Sterling and Sterling then allegedly suspended her on February 19 for making allegations to the EEOC and then fired her two weeks later. “Federal law protects persons who file EEOC charges, and the Supreme Court has said that an EEOC questionnaire is the same as a charge,” said Elizabeth Grossman, regional attorney of the EEOC New York District Office. "Employers cannot retaliate against employees simply because they come to the EEOC.”  Read More.

Employers Must Continue Health Benefits For Employees On Pregnancy Disability Leave

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Published on Monday, 10 October 2011 03:30

California Governor Jerry Brown recently signed into law SB 299 (effective as of January 1, 2012), which requires California employers to continue group health insurance benefits for employees on pregnancy disability leave for up to four months. Under the law prior to SB 299, California employers with five or more full-time or part-employees were required to provide up to four months of leave pregnancy disability leave. However, employers were not required to provide health insurance benefits for an employee on pregnancy disability leave unless the employee was also eligible for leave pursuant to the Family and Medical Leave Act (FMLA) and the employer was covered by the FMLA, in which case the employer was required to provide continuation of health benefits for 12 weeks. Now that SB 299 is in effect, employers with five or more employees must provide continuation of group health benefits for employees disabled by pregnancy for four months, even if the employer is not covered by the FMLA. In pertinent part, the legislation provides that it shall be unlawful “For an employer to refuse to maintain and pay for coverage for an eligible female employee who takes leave pursuant to paragraph (1) under a group health plan, as defined in Section 5000(b)(1) of the Internal Revenue Code of 1986, for the duration of the leave, not to exceed four months over the course of a 12-month period, commencing on the date the leave taken under paragraph (1) begins, at the level and under the conditions that coverage would have been provided if the employee had continued in employment continuously for the duration of the leave. Nothing in this paragraph shall preclude an employer from maintaining and paying for coverage under a group health plan beyond four months.” As specified in the legislation, employers may require employees to continue paying their portion of the group health insurance premium. SB 299 also specifies that the “employee shall be entitled to utilize any accrued vacation leave during this period of time.” California employers should review their employee handbooks and any other policies to make sure they are compliant with the new law by January 1, 2012.  Read More.

DOL Launches Economic And Employment Statistics Mobile Application

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Published on Friday, 07 October 2011 04:35

The U.S. Department of Labor (DOL) has launched a new mobile application which will enable users to view “the most up-to-date employment data and economic news releases from the U.S. Department of Labor's Bureau of Labor Statistics and its Employment and Training Administration.” The application is free and it displays real-time updates to the unemployment rate, Unemployment Insurance initial claims, the Consumer Price Index, payroll employment, average hourly earnings, the Producer Price Index, the Employment Cost Index, productivity, the U.S. Import Price Index and the U.S. Export Price Index as they are published each week, month or quarter. News releases which provide context for data will also be available through the application. According to Secretary of Labor Hilda L. Solis, "We know that people around the world are interested in labor statistics…The Labor Department is continuously exploring how to share important information using the fastest, simplest, most wide-reaching means available, and this app allows us to increase the accessibility of our statistical data." The application is available for the iPhone and iPod Touch, in addition to Android phones.  Go to: http://m.dol.gov/apps/ to download this and other mobile applications. Read More.

HR Practice Pointer: Drafting Social Media Policies

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Published on Friday, 07 October 2011 04:17

Employers remain confused about what their employees can and cannot post on social networking sites such as Facebook and Twitter regarding their employment/employer. To make matters worse, the National Labor Relations Board (NLRB) has taken a strong stance against social media policies that in their opinion are overly broad. Lafe Solomon, general counsel for the NLRB, recently commented that “Most of the social media polices that we’ve been presented with are very, very overbroad…They say you can’t disparage or criticize the company in any way on social media and that is not true under the law.” Thus, employers must be careful about polices that infringe on “protected activity.” However, it seems unlikely that the NLRB, and/or the courts would hold that all information posted by an employee on a social networking site is considered “protected activity”; for example, if an employee posts privileged and confidential employer information or if an employee posts comments that are harassing/discriminatory against a co-worker or anyone else in the workplace. In any event, employers should recognize that this is an evolving and unclear area of law at this point. Thus, the best practice is to take a conservative approach when drafting social media policies, make sure they are not overly broad, and consult with an employment law specialist before implementing a social media policy to ensure it is properly drafted and appropriate for the workplace.

NLRB Extends Deadline For Posting Of Employee Rights Notice

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Published on Friday, 07 October 2011 03:10

The Employment Law Weekly recently reported that the National Labor Relations Board (NLRB) is requiring that that most private sector employers post a notice advising employees of their rights pursuant to the National Labor Relations Act (NLRA) by November 14, 2011. The notice is to advise employees that they have the following rights under the NLRA: (1) to act together to improve wages and working conditions, to form, join and assist a union, to bargain collectively with their employer, and (2) to refrain from any of these activities. The notice also provides examples of unlawful employer and union conduct and advises employees on how to contact the NLRB with any questions or complaints. According to the NLRB, the “11-by-17-inch notice should be posted in a conspicuous place, where other notifications of workplace rights and employer rules and policies are posted. The posters are available below for download and printing. Copies also are available from any of the agency’s regional offices. In addition, employers should publish the notice on an internal or external website if other personnel policies or workplace notices are posted there.” Recently, the NLRB announced that the date for posting the notices has been extended. The new effective date of the rule is January 31, 2012. The decision to extend the deadline followed queries from businesses and trade organizations indicating uncertainty about which businesses fall under the NLRB’s jurisdiction. The NLRB advises that no other changes in the rule, or in the form or content of the notice, will be made. Read More.

EEOC Alleges Texas Roadhouse Restaurant Chain Refused to Hire Older Workers Nationwide

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Published on Friday, 07 October 2011 02:30

The U.S. Equal Employment Opportunity Commission has filed a lawsuit against Texas Roadhouse, a national, Kentucky-based restaurant chain, alleging that the company has engaged in a nationwide pattern or practice of age discrimination against job applicants over the age of forty. Specifically, the EEOC charges that since at least 2007, the restaurant chain has been discriminating against elderly job applicants for “front of the house” and other public more visible positions, including servers, hosts and bartenders, by failing to hire them due to their age.  Further, the EEOC alleges that the restaurant chain instructed its managers to hire younger job applicants and all of the images of employees in the company’s training and employment manuals were of young people. Jacqueline A. Berrien, Chair of the EEOC, commented that “The number of age discrimination charges filed with the EEOC has risen significantly over the years, which prompted the Commission to conduct a meeting on the subject last December…Denying jobs to qualified applicants who are over 40 years old on account of their age is illegal, and as we heard during the Commission meeting, it can have devastating consequences for older workers and their families.” P. David Lopez, General Counsel of the EEOC also commented that “It is important in this difficult economic climate that we redouble our nation’s commitment to the principle of nondiscrimination in the workplace…As a national law enforcement agency, the EEOC will vigorously protect the rights of job applicants to ensure that hiring decisions are based on abilities, not age.” Read More.

Employee Allegedly Subjected to Derogatory Comments and Treatment, Then Fired

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Published on Friday, 07 October 2011 02:05

AT&T d/b/a Southwestern Bell Telephone Company (AT&T) allegedly violated Title VII by discharging Antonnett Johnson because of her sex (female), race (black), and in retaliation for her complaints of discriminatory treatment by co-workers and customers according to, the U.S. Equal Employment Opportunity Commission (EEOC).  The EEOC’s lawsuit asserts that AT&T subjected Antonnett Johnson, a technician who repaired and installed telephones in Jonesboro, Arkansas, to unequal terms and conditions of employment because of her sex and race when the company allegedly reprimanded Johnson on several occasions and then discharged her, but did not terminate a white male co-worker who committed the same offenses.  Further, the EEOC charges that AT&T retaliated against Ms. Johnson, allegedly, when she complained that customers and co-workers subjected her to discriminatory comments and treatment based on her sex and race. Katharine W. Kores, the EEOC’s District Director in Memphis, said, "It is a serious violation of Title VII to discharge an employee based on sex and race. Further, retaliation is an issue of special concern to the EEOC.  It is simply illegal to fire someone for reporting unlawful discrimination.  Employees must be able to complain about practices which they believe violate the law without fear of retribution.” The EEOC seeks back pay, compensatory and punitive damages, reinstatement, and an injunction against future discrimination, among other items. Read More.

EEOC Alleges Worker Subjected To Name Calling, Denied An Accommodation, Then Fired

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Published on Wednesday, 05 October 2011 05:08

Adams Jeep of Maryland, Inc. , an auto dealership in Aberdeen, Md., was charged by the U.S. Equal Employment Opportunity Commission (EEOC) with violations of the Americans with Disabilities Act of 1990 (ADA) and the  ADA Amendments Act of 2008 (ADAAA), when it allegedly fired an office worker soon after she disclosed that she had been diagnosed with bipolar disorder. In its lawsuit, the EEOC claims that Adams Jeep denied Amy Smith a reasonable accommodation of medical leave, then harassed and discharged her due to her disability/record of disability. According to the lawsuit, the EEOC says that Smith had been diagnosed with bipolar disorder around March 2010, and after Smith disclosed her disorder to the office manager and assistant manager, she was called a “pill popper” and “psycho” by the assistant manager. The EEOC further alleges that while out on a medical leave of absence and under doctor’s care, Smith was fired. “The greatest barrier to employment for people with psychiatric disabilities is employers’ myths and fears about their condition, not the disabilities themselves,” said Regional Attorney Debra M. Lawrence. Ms. Lawrence further commented that “We brought this lawsuit because the underlying purpose of the ADA is to eliminate employment discrimination for individuals who are qualified to do the job.”  In fiscal year 2010, private sector workplace discrimination charge filings with the EEOC reached a record-high number of disability charges of 25,165 – an increase of 17.3 percent over the prior fiscal year.  Read More.

California Supreme Court Schedules Oral Argument in Brinker

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Published on Wednesday, 05 October 2011 04:36

The long awaited decision in Brinker Restaurant  v. S.C. (Hornbaum) Case: S166350,  regarding meal and rest periods, draws closer as the California Supreme Court placed the Brinker case on calendar to be argued on Tuesday, November 8, 2011 at 9:00 a.m. in San Francisco. The Brinker case involves, among other issues, the significant question of whether an employer must ensure that its employees take their requisite meal and rest breaks or whether the employer must simply make them vailable.  This is an important decision for employers as it means the difference between employers becoming “clock watchers” because they have to micromanage employees to ensure that they take their mandated meal and rest periods, as opposed to only requiring that employers provide the meal and rest periods and relying upon employees to exercise diligence and take their meal and rest breaks as required by law. More information will be provided following oral arguments. Read More.

NLRB Holds Car Dealership Did Not Wrongfully Terminate Employee For Facebook Postings

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Published on Tuesday, 04 October 2011 18:17

A National Labor Relations Board (NLRB) Administrative Law Judge, Joel P. Biblowitz, has ruled that Knauz BMW, a Chicago area car dealership, did not wrongfully terminate an employee for his Facebook postings. However, the judge also held that the dealership had an overly broad employee policy regarding social media, and therefore ordered that the employer post a notice informing employees of their right to engage in protected concerted activity. The case involved the employee’s posting to Facebook of two incidents, one involving a sales event and another involving an accident at an adjoining dealership. In the first incident, the employee (a car salesman), and his coworkers were unhappy with the quality of food served at a dealership event promoting a new BMW model. Although they did not complain to their employer, the employee and his coworkers thought that the food served, which included hot dogs and bottled water, would affect their commissions because it was not of a high enough quality for customers. They discussed their concerns with each other and the employee then posted photos and commentary on his Facebook page, criticizing the car dealership for only serving the hot dogs and bottled water to customers. Other employees commented on the Facebook posts. On the same day, the employee posted photos of an accident that occurred earlier involving a vehicle from another dealership that was accidently driven into a pond. Both dealerships belong to the same ownership group. Judge Biblowitz found that the postings involving the sales event and exchange of comments with other employees was protected activity. However, Judge Biblowitz held that the postings involving the accident were not protected activity. In addition, the judge found that the salesman was terminated for the accident postings, and therefore not protected under the National Labor Relations Act. In terms of the employer’s policy on social media, Judge Biblowitz found that certain paragraphs were overly broad and tended to “chill” employee rights by prohibiting employees from participating in interviews with or answering inquiries concerning employees. The employer had changed the policy prior to the hearing. However, the judge ordered that a notice be posted at the dealership informing employees of their right to engage in protected concerted activity. Read More.

Weight Watchers Sued for Allegedly Refusing to Hire Pregnant Job Applicant

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Published on Monday, 03 October 2011 05:32

The Equal Employment Opportunity Commission (EEOC) has charged that the WW Group, Inc. d/b/a Weight Watchers violated federal law when the company allegedly refused to hire an applicant as a group leader necause she was pregnant.  The job seeker, a long term member who had successfully met and maintained her weight goal with Weight Watchers, was encouraged by her own group leader to apply for a group leader position with Weight Watchers. However, Weight Watchers, after learning she was pregnant, allegedly told her that it did not hire pregnant women and refused to consider her further for the job.  Refusing to consider a woman for a job because she is pregnant violates Title VII, as amended by the Pregnancy Discrimination Act.  EEOC Trial Attorney Nedra Campbell commented that “Maintaining a blanket policy against hiring pregnant women is a clear violation of the law. The EEOC will vigorously enforce a pregnant woman’s right to be considered for a job.” The EEOC is seeking injunctive relief intended to prevent further instances of pregnancy discrimination as well as back pay, compensatory and punitive damages on behalf of the applicant. Read More.

OSHA Reopens Comment Period For “Injury and Illness Recording and Reporting” Proposal

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Published on Monday, 03 October 2011 05:10

The Office of Safety and Health Administration (OSHA) is reopening the rulemaking record to allow interested persons to comment on OSHA’s proposal to update its Injury and Illness Recording and Reporting regulation and the proposed requirement to report to OSHA, within eight hours, all work-related fatalities and all work-related in-patient hospitalizations; and within 24 hours, all work-related amputations. The docket is being reopened in response to a request made by the National Automobile Dealers Association. The rulemaking record will remain open for 30 days. Read More.

Bill Introduced To Reduce and Restrict Funds For DOL and NLRB

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Published on Monday, 03 October 2011 04:44

Rep. Dennis Rehberg (R-MT) introduced (H.R. 3070), a bill that reduces funds, and places conditions on the receipt of funds, for numerous government agencies including the Departments of Labor (DOL), the Occupational Health and Safety Administration (OSHA) and the National Labor Relations Board (NLRB), for fiscal year 2012. The bill appears to be aimed at restricting rulemaking by certain government agencies such as the DOL and the NLRB that has become overly burdensome on businesses; most of the bills funding reductions/conditions will likely face Senate opposition. Read More.

IRS Offers New Voluntary Worker Reclassification Settlement Program

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Published on Sunday, 02 October 2011 23:45

The Internal Revenue Service (IRS) has launched a new program, the “Voluntary Classification Settlement Program” (VCSP), which is intended to provide some relief to employers who have misclassified employees as independent contractors and, according to the IRS, “achieve certainty under the tax law at a low cost by voluntarily reclassifying their workers.” The new program affords employers with the opportunity to become compliant by making a minimal payment covering past payroll tax obligations as opposed to waiting for an IRS audit. The program is designed to increase tax compliance and reduce burden for employers by providing greater certainty for employers, workers and the government. Under the program, eligible employers can obtain significant relief from federal payroll taxes they may have owed for the past, if they prospectively treat
workers as employees. The VCSP is available to many businesses, tax-exempt organizations and government entities that currently erroneously treat their workers or a class or group of workers as nonemployees or independent contractors, and now want to correctly reclassify these workers as employees. To be eligible, an applicant/employer must: (1) Consistently have treated the workers in the past as nonemployees; (2) Have filed all required Forms 1099 for the workers for the previous three years; (3) Not currently be under audit by the IRS;  and, (4) Not currently be under audit by the Department of Labor or a state agency concerning the classification of these workers. According to IRS Commissioner Doug Shulman,  “This settlement program provides certainty and relief to employers in an important area…This is part of a wider effort to help taxpayers and businesses to help give them a fresh start with their tax obligations.” Interested employers can apply for the program by filing Form 8952, Application for Voluntary Classification Settlement Program, at least 60 days before they want to begin treating the workers as employees. Employers accepted into the program will pay an amount effectively equaling just over one percent of the wages paid to the reclassified workers for the past year. No interest or penalties will be due, and the employers will not be audited on payroll taxes related to these workers for prior years. Participating employers will, for the first three years under the program, be subject to a special six-year statute of limitations, rather than the usual three years that generally applies to payroll taxes. Read More.

Employer To Pay Nearly $500,000 For Alleged Sexual Harassment

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Published on Sunday, 02 October 2011 23:06

Aqua Tri, a pool supply company will pay $462,500 to resolve a sexual harassment, retaliation and constructive discharge lawsuit filed by the Equal Employment Opportunity Commission (EEOC). The EEOC’s lawsuit charged Aqua Tri with subjecting female Hispanic employees to sexual harassment and retaliation for opposing it, including forcing some of them out of their jobs for complaining.  According to the EEOC, two Hispanic male supervisors subjected Hispanic female employees to a sexually hostile work environment which included inappropriate touching, pressuring them for dates and sex, and making sexually explicit remarks. Allegedly, when reported, one of the reporting employes was demoted and forced to resign, while another was denied overtime work, isolated from her coworkers and required to do tasks outside of her job description such as cleaning the bathroom.  Additionally, the EEOC alleged that several male Hispanic employees were either laid off or discharged for supporting the victims. The settlement also requires Aqua Tri to: (1)establish and hire a Spanish-speaking human resources specialist and Equal Employment Opportunity (EEO) consultant to assist with revising the company’s complaint policies and procedures in both English and Spanish; (2) establish a hotline to accept complaints from employees via telephone; (3) train all employees regarding their rights pursuant to Title VII in both English and Spanish, with specialized training for supervisors; (4) include compliance to EEO policies as a factor in the performance evaluations of supervisors, and (5) report all complaints of harassment, discrimination and harassment to the EEOC.  The district director for the EEOC’s Los Angeles District Office commented, “All too often small businesses fail to have an effective policy, procedures or training in the language of the employees. I encourage small business owners to take advantage of the EEOC’s Small Business Initiative, wherein the EEOC provides resources for small businesses to understand their legal obligations with respect to harassment and discrimination in the workplace.”  Read More.

Labor Commissioner Files $17 Million Lawsuit Against ZipRealty For Alleged Wage Violations

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Published on Thursday, 29 September 2011 16:37

The California State Labor Commissioner has filed a lawsuit seeking in excess of $17 million against ZipRealty, alleging that over a four year period, the company was paying its real estate agent employees less than the minimum wage and no premium for overtime hours worked. The lawsuit comes on the heels of an appeal by ZipRealty, of an award by the Labor Commissioner of $75,000 for wage claims filed by four former agents in Bakersfield, which ZipRealty not only lost, but the judge quadrupled the award to over $330,000 in damages and interest. “We learned in the course of the Bakersfield case that ZipRealty real estate agents frequently received no pay at all. As employees, these agents were entitled to payment of at least the minimum wage for all hours worked each pay period,” stated Julie Su.  She further commented, “In times like these, enforcement of the minimum wage is critical to maintaining a floor that allows workers to survive…We want the message to be clear: for employers who play by the rules we are on your side; employers who don’t play by the rules should be prepared to face the consequences of paying twice the amount of wages owed, as well as penalties and interest.” Division of Industrial Relations (DIR) Acting Director Christine Baker stated “This lawsuit involving career real estate agents highlights a rapidly changing economy and labor market. Wage compression and violations of the minimum labor standards are now occurring in a wide variety of occupations even affecting employees outside traditional low-wage occupations.” The DIR is seeking wages in excess of $7,500,000, overtime of $1,250,000, as well as damages and penalties in excess of $9,000,000. Read More.

In Age Discrimination Case Proper Inquiry Is Whether Co-Worker Receiving More Lenient Treatment Is “Significantly Younger”

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Published on Thursday, 29 September 2011 16:05

Christine Earl began working for Nielson Media Research, Inc. as a recruiter starting in 1994 at age 47. Beginning in August 2005, Earl allegedly violated various company policies on several occasions, for which she only received a non-disciplinary review. However, when Earl allegedly violated a company policy in October 2006, which Nielsen learned of in December 2006,  Nielsen allegedly did not give Earl any disciplinary warning, but instead terminated her in January 2007, for violating company policy. She was 59 years old at the time. Earl subsequently filed an age discrimination lawsuit pursuant to the Fair Employment and Housing Act and presented evidence that: (1) Nielsen’s policy was not to terminate an employee who only received a non-disciplinary review; and (2)other recruiters,between the ages of 36 to 42, who also violated similar company policies, were treated more favorably and not terminated. The district court granted summary judgment in favor of the employer on the age discrimination and wrongful termination claims and Earl appealed. The Ninth Circuit found Earl had presented sufficient and compelling evidence to raise a triable issue on whether Nielsen’s proffered reason for the termination, specifically that Earl was fired for violating company policy, was a pretext for age discrimination. Significantly, the court quoted the United States Supreme Court in O’Connor v. Consolidated Coin Caterers Corp., which stated that “[The ADEA] does not ban discrimination against employees because they are aged 40 or older; it bans discrimination against employees because of their age… [T]he fact that a replacement is substantially younger than the plaintiff is a far more reliable indicator of age discrimination than is the fact that the plaintiff was replaced by someone outside the protected class.” Thus, noting that age was relative, the court stated that the proper inquiry is not whether the other recruiters are outside of a protected class, but whether they are significantly younger than Earl. The Nninth Circuit found that Earl had provided specific and substantial evidence that significantly younger recruiters who repeatedly violated similar policies received more lenient treatment from the company, and thereby raised a triable issue that Nielsen’s proffered reason for Earl’s termination was a pretext for age discrimination. Read More.

Woman Arrested For Collecting WC Disability While Employed With DMV

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Published on Tuesday, 27 September 2011 16:01

The California Department of Insurance (CDI), Fraud Division Detectives and the DMV Internal Affairs Investigators arrested Mia Rachel Brown on three felony counts of alleged insurance fraud. The charges involve a workers’ compensation claim filed with her former employer, Dean Foods.  According to the detectives, the CDI Fraud Division received an anonymous tip that Brown had filed a workers' compensation claim against Dean Foods for which she was collecting disability benefits while working for the DMV Office in Compton. The CDI Fraud Division’s investigation revealed that, on October 15, 2009, while employed with Dean Foods, Brown slipped on a wet floor in the dairy and injured her left knee and left hand and allegedly sustained an additional injury on November 16, 2009. In May 2010, Brown started working for the DMV, but during her sworn deposition she denied working since November 16, 2009. She also told two physicians she had not worked since 2009. Brown collected workers' compensation disability checks from Liberty Mutual Insurance Company from October 2010 through June 2011 while she was employed at the Compton DMV Office. The loss due to Brown's fraudulent activities is $14,831.00.  The case is being prosecuted by the Los Angeles County District Attorney's Office and, if convicted on all counts, Brown faces a maximum of seven years in state prison.  Read More.

Spike In Whistleblower Cases

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Published on Tuesday, 27 September 2011 15:40

Since 2005, there has been an increase in whistleblower cases apparently because employees are more willing to report workplace fraud, corruption and general unlawful behavior related to their employers. As reported by msnbc.com, “It’s a trend that labor and shareholder advocates applaud, but corporations dread, and it’s intensified in recent months for a host of reasons, according to legal experts. A new law providing monetary rewards for whistleblowers kicked in last month (in addition to scores of federal and states whistleblower protections put in place in recent years). There’s also a growing desire on the part of citizens to step up when they see wrongdoing following an economic downturn largely caused by malfeasance in corporate America. And there has been a beefing up of government enforcement to protect citizens who come forward with their accounts of misconduct from retaliation. Indeed, just last week OSHA announced it had ordered Bank of America to pay a whistleblower $930,000 in interest and back wages and reinstate the employee.” Read More.

Superintendent Frequently Used Racially Derogatory Terms, Hanging Noose Found At Worksite, EEOC Alleges

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Published on Tuesday, 27 September 2011 15:31

The Equal Employment Opportunity Commission (EEOC) charged AA Foundries, Inc., a company which manufactures ferrous castings and produces foundry mold machines, with racial harassment related to its black employees in violation of Title VII.  The allegations are that black employees at AA Foundries routinely experienced racial harassment from their superintendent, which included intimidation, insults and ridicule, such as racially offensive pictures, posters and other types of literature, including a hanging noose, as well as the frequent use of  the “N” word and “boy” when addressing or talking about black employees. The EEOC also alleges that such conduct rises to the level of a hostile work environment. EEOC senior trial attorney Eduardo Juarez said, “What happened to these workers was disgraceful and illegal. Rather than taking steps
to stop the harassment, the company’s officials simply shrugged their shoulders and allowed the conduct to continue.”  EEOC supervisory trial attorney Judith G. Taylor added, “It’s hard to imagine that in the 21st century workers are still finding nooses on the job. The unwanted, intrusive and demeaning behavior… has no place in an American workplace, and the EEOC will aggressively seek to make things right for the victims.”  The EEOC is seeking compensatory and punitive damages for the victims, as well as injunctive relief. Read More.

Restaurant Allegedly Violated Title VII/Pregnancy Discrimination Act By Requiring Expectant Mothers To Stop Working

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Published on Friday, 23 September 2011 05:24

The Equal Employment Opportunity Commission (EEOC) filed charges against Taqueria Rodeo de Jalisco, a Houston-based Mexican restaurant, for violating Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act, which prohibits employers from discriminating against employees on the basis of sex or pregnancy.  According to the EEOC, the restaurant manager told Blanca Esparza, a bus person, as well as another waitress, that they could not work beyond the seventh month of pregnancy, despite Esparza never stating that she was unable to do her job nor did her doctor put any restrictions on her ability to work. The manager admitted to EEOC investigators that he asked the women to resign, but contended that it was to look out for their best interests and protect them and their unborn children from injury. Jim Sacher, EEOC regional attorney in Houston, stated “the Supreme Court has made clear that the decision whether a pregnant woman should work rests with her. She alone, and not the employer, is responsible for making decisions that affect her safety and that of her child.”   The EEOC seeks injunctive relief, back pay with pre-judgment interest, reinstatement or front pay, compensatory damages and punitive damages, in amounts to be determined at trial. Read More. 

New Procedural Regulations For DFEH To Take Effect October 7, 2011

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Published on Friday, 23 September 2011 04:59

California's Department of Fair Employment and Housing (DFEH) proposed procedural regulations in 2010, which have now been approved and will go into effect on October 7, 2011, The regulations have been codified at Title 2, California Code of Regulations, sections 10000 through 10066.  The purpose of these new  regulations is to codify into regulations existing procedures the DFEH had been following and provide “duly noted and vetted procedures” for processing complaints of discrimination.  Initially, the stated purpose by the DFEH was to capture and formally adopt their current procedures, but was later amended to state that “in most cases” the regulations will capture existing procedures. The amended purpose is significant as these regulations change the DFEH's administrative procedures in key respects. The regulations now make it easier for applicants to file a complaint and obtain a “right to sue notice,” thereby essentially bypassing the requirement that complainant “exhaust” their administrative remedies first.  The new procedures appear to be part of a broader effort by the head of the DFEH, Phyllis Cheng, to redirect the department's limited resources away from individual complaints and towards cases of discrimination involving multiple egregious acts by an employer. Read More.

Bill Introduced To Eliminate NLRB

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Published on Thursday, 22 September 2011 17:11

Representative Trey Gowdy (SC-04) has introduced to Congress the National Labor Relations Reorganization Act. The proposed legislation seeks to eliminate the National Labor Relations Board (NLRB) and permit the Department of Justice Department (DOJ) and Department of Labor (DOL) to oversee the functions and responsibilities previously delegated to the NLRB in the National Labor Relations Act (NLRA). According to Rep. Gowdy, “The National Labor Relations Board has become a sycophant for labor unions and has lost all pretense of objectivity. The NLRB has outlived its usefulness and needs to be dissolved. The Department of Justice oversees a wide variety of civil, criminal, and administrative issues including anti-trust, voting rights, and major mergers and acquisitions; the DOJ can surely handle disputes between employers and employees and claims of unfair labor practices and do so without the bias and partisanship endemic to the NLRB.” Read More.

Blind Applicant Denied Accommodation in Hiring Process, EEOC Charges

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Published on Thursday, 22 September 2011 16:42

A national for-profit educational provider, ITT Technical Institutes, has been charged by the Equal Employment Opportunity Commission (EEOC) with violating the ADA/ADAAA when it allegedly refused to accommodate a blind applicant during the hiring process and denied him a job. As part of ITT’s job application process Kerry Kirksey was required to take a timed on-line assessment. According to the EEOC, Kirksey knew the answers to the questions, but his screen-reading software was too slow and would not enable him to complete the assessment on time. The EEOC states that Kirksey contacted the ITT Tech, explained that he is blind, and requested a reasonable accommodation in the assessment process, suggesting a reader or additional time, but the ITT Tech allegedly said there was nothing they could do. EEOC Regional Attorney William R. Tamayo stated “the ADA clearly requires employers to provide accommodations to disabled applicants who need them during the hiring process and specifically addresses the area of testing. In this case, a simple accommodation of additional time or a reader would have enabled Mr. Kirksey to complete the application process and would not have cost a dime.” The suit seeks monetary damages, including back pay, compensation for emotional distress and punitive damages and an injunction prohibiting further discrimination and mandating corrective action. Read More.

Bass Pro Outdoor World Allegedly Engaged In Racial and National Origin Discrimination and Retaliation

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Published on Thursday, 22 September 2011 16:34

The Equal Employment Opportunity Commission (EEOC) has filed a lawsuit against Bass Pro Outdoor World, LLC. (Bass Pro), a nationwide retailer of sporting goods, alleging Bass Pro engaged in a pattern or practice of failing to hire African-American and Hispanic applicants for positions in its retail stores nationwide, and retaliated against employees who opposed the discriminatory practices, violating Title VII of the Civil Rights Act of 1964. According to the EEOC, since November 2005, qualified African-Americans and Hispanics were routinely denied retail positions, managers made overtly racially derogatory remarks such as, “hiring black candidates did not fit the corporate profile.” Further, to cover-up their actions, Bass Pro allegedly destroyed or failed to keep records and documents related to employment applications and internal discrimination complaints and punished employees who opposed the company’s practices, in some instances firing them or forcing them to resign.  Jacqueline A. Berrien, Chair of the EEOC stated “[e]xcluding qualified individuals from employment because of their race or ethnicity or in retaliation for exercising protected rights are fundamental violations of the laws we enforce”, and P. David Lopez, General Counsel of the EEOC stated that “the EEOC will vigorously pursue such cases and require companies to reform their hiring practices and make victims of the discrimination whole.”  Read More.

Bank Of America Allegedly Failed To Accommodate Blind Employee

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Published on Thursday, 22 September 2011 05:21

According to the Equal Employment Opportunity Commission (EEOC) Bank of America Corporation violated federal law by failing to accommodate a legally blind data entry worker and terminating him after one day’s work because of his disability. The EEOC has filed a lawsuit against Bank of American for the alleged failure to accommodate. The EEOC alleges that although the Bank of America was aware of the vision impairment of the employee at the bank’s 540 West Madison Street facility in Chicago, the company did not offer an accommodation. According to John P. Rowe, the EEOC’s district director in Chicago, “When a worker’s disability is obvious or apparent, the ADA requires employers to engage in an interactive process with the employee to identify possible accommodations…Here, our pre-suit administrative investigation indicated that Bank of America was aware of this worker’s vision impairment and allegedly failed to consider whether it would be reasonable to provide him with a bigger monitor, font-enlarging software, or any other accommodation.”  John C. Hendrickson, the EEOC’s regional attorney in Chicago, commented that, “Visually impaired individuals are fully capable of performing data entry work when appropriate accommodations are provided. Indeed, as long as typewriters have been around -- not to mention all the kinds of keyboards, monitors, and talking terminals now available -- this is a kind of work at which people with impaired sight have long excelled. Our contention is that a banking giant like Bank of America could have accommodated the charging party and kept him on the job. There was no need to put him on the street.” Read More.

Employer Will Pay $2.5 Million To Settle Alleged Sex Discrimination

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Published on Thursday, 22 September 2011 05:13

The U.S. Department of Labor’s (DOL) Office of Federal Contract Compliance Programs (OFCCP) announced that Tyson Fresh Meats Inc. (Tyson) will pay a total of $2.25 million in back wages, interest and benefits to more than 1,650 qualified female job applicants who were allegedly rejected for employment at one of their facilities. This settlement represents one of the largest in OFCCP’s history. According to the OFCCP, Tyson’s hiring practices discriminated against female applicants on the basis of their sex. Secretary of Labor Hilda L. Solis commented that “Companies that profit from federal contracts must not discriminate in employment decisions…Today’s settlement, one of the largest in OFCCP’s history, means that women who were unfairly denied job opportunities will be compensated.” In addition to the settlement amount, Tyson has agreed to offer jobs to at least 220 of the affected women as positions become available at the facilities involved with the alleged discriminatory practices. Tyson has also agreed to take “extensive self-monitoring and corrective measures to ensure that its employment practices fully comply with the law.” Tyson Foods Inc. has received federal contracts totaling more than $200 million in each of the past three years and recently was awarded another $8 million contract to provide beef and pork products for resale at two commissary stores in Guam. The company is a major supplier for the U.S. Departments of Defense and Agriculture. Read More.

Court Rules Employer Properly Terminated Disabled Employee For Performance Issues

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Published on Tuesday, 20 September 2011 04:35

Robert Dickerson, who suffers from a mental disability, worked as a part-time janitor for a community college. Due to his disability, Dickerson had difficulty acquiring, retaining, and processing information. Dickerson allegedly applied for a full-time position and was rejected by the community college. Dickerson claimed that the employer refused to promote him because he was mentally disabled. Further, Dickerson claimed that he was discriminated against by his employer because of his personal traits and a speech defect.  However, the school had evaluated Dickerson's job performance, and he was rated "Unsatisfactory" in three of seven categories. Moreover, in a performance review, the employer noted that Dickerson was allegedly consistently late for work, in need of constant supervision, and did not take the initiative to meet his job requirements. Dickerson refused to sign the performance review. Eventually due to poor performance, the school decided to terminate him. Dickerson filed charges with the Equal Employment Opportunity Commission (EEOC) alleging disability discrimination pursuant to the Americans with Disabilities Act (ADA); he subsequently added a retaliation claim and then filed suit in federal district. A summary judgment motion was granted in favor of the school and Dickerson appealed. On appeal, the court concluded that the district court was correct in granting summary judgment for the school because the evidence was insufficient to show that Dickerson was meeting his employer's legitimate employment expectations. His retaliation claim also failed because Dickerson could not present sufficient evidence that he was performing his job satisfactorily. In reaching its decision, the court held that “his mental impairments, including his recorded IQ of 67, substantially limit his major life activities such that he qualifies as a disabled person under the ADA.” However, the court also looked carefully at all of the employer’s performance evaluations (which Dickerson disagreed with) noting that the “question is not whether the employer's performance ratings were right but whether the employer's description of its reasons is honest." Further, to survive summary judgment Dickerson needed to establish a genuine issue of material fact as to whether he was a satisfactory employee who was meeting his employer's legitimate employment expectations. This case demonstrates how important it is for employers to consistently document disciplinary/performance issues. Read More.

DOL and IRS Sign Memorandum Of Understanding Regarding Employee Misclassification

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Published on Tuesday, 20 September 2011 03:01

Secretary of Labor Hilda L.Solis hosted a ceremony at U.S. Department of Labor (DOL) headquarters to sign a memorandum of understanding with the Internal Revenue Service (IRS) which is intended to “improve departmental efforts to end the business practice of misclassifying employees in order to avoid providing employment protections.” The memorandums of understanding will enable the DOL to share information and coordinate law enforcement with the IRS “in order to level the playing field for law-abiding employers and ensure that employees receive the protections to which they are entitled under federal and state law.”  According to Secretary Solis "We're here today to sign a series of agreements that together send a coordinated message: We're standing united to end the practice of misclassifying employees…We are taking important steps toward making sure that the American dream is still available for all employees and responsible employers alike." IRS Commissioner Doug Shulman also commented on the memorandum of understanding, stating that "This agreement takes the partnership between the IRS and Department of Labor to a new level…In this new phase of our relationship, we will work together more efficiently to address worker misclassification issues, and better serve the needs of small businesses and employees." These memorandums of understanding emerged as part of the DOL’s Misclassification Initiative, which was launched to prevent, detect and remedy employee misclassification. Read More.

Employer Sued For Allegedly Demoting Employee Due To Disability

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Published on Friday, 16 September 2011 15:44

According to the Equal Employment Opportunity Commission (EEOC), Alia Corporation, a property management company and owner of a McDonald’s in Oakhurst, California, demoted a supervisor due to his cerebral palsy and forced him to quit. The EEOC has filed a disability discrimination lawsuit against the company. The case involves Derrick Morgan who worked for a prior owner of the Oakhurst McDonald’s allegedly without problems since 2006. The EEOC charges that Morgan was promoted from crew member to floor supervisor in 2008 and was generally known to be a good employee. In January 2009, Alia Corporation – which operates over 20 McDonald’s franchise locations throughout central California – assumed control of the restaurant. Within a couple of months, new management allegedly demoted Morgan to a janitorial position, cut his hours nearly in half and reduced his hourly wages. Due to the steep reduction in income, Morgan was allegedly forced to quit by June 2009. According to Anna Y. Park, regional attorney for the EEOC’s Los Angeles District Office,  “Employers must let go of their stereotypes and fears about employing people  with disabilities...This is a case where the company illegally stripped a well-qualified worker of his ability to earn a living due to misperceptions about his disability.”  Melissa Barrios, director of the EEOC’s Fresno Local Office, commented that, “People with disabilities have the same right to work as the rest of us. In recent years, the laws against disability discrimination have become more flexible to cover most all individuals who
suffer bias as a result of a physical or mental condition.” Read More.

NLRB Issues Employee Rights Poster For Workplace

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Published on Friday, 16 September 2011 02:53

As of November 14, 2011, most private sector employers are required to post a notice advising employees of their rights pursuant to the National Labor Relations Act (NLRA). Specifically, the notice advises employees that they have the following rights under the NLRA: (1) to act together to improve wages and working conditions, to form, join and assist a union, to bargain collectively with their employer, and (2) to refrain from any of these activities. The notice also provides examples of unlawful employer and union conduct and advises employees on how to contact the NLRB with any questions or complaints. According to the National Labor Relations Board (NLRB) the “11-by-17-inch notice should be posted in a conspicuous place, where other notifications of workplace rights and employer rules and policies are posted. The posters are available below for download and printing. Copies also are available from any of the agency’s regional offices. In addition, employers should publish the notice on an internal or external website if other personnel policies or workplace notices are posted there.” Poster Downloads: Employee Rights Under the NLRA poster, 11 x 17 version (pdf); Employee Rights Under the NLRA poster, two-page 8.5 x 11 version (pdf).  Congressman Ben Quayle (R-AZ-03) has introduced legislation intended to reverse this rule. Read More.

IRS Provides Additional Guidance On Employer-Provided Cell Phones

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Published on Friday, 16 September 2011 02:28

The Internal Revenue Service (IRS) has issued additional guidance on employer-provided cell phones. The IRS recognizes that many employers provide employees with cell phones for noncompensatory business reasons. Therefore, according to the IRS Guidance “the value of the business use of an employer-provided cell phone is excludable from an employee’s income as a working condition fringe to the extent that, if the employee paid for the use of the cell phone themselves, such payment would be allowable as a deduction under section 162 for the employee. An employer will be considered to have provided an employee with a cell phone primarily for noncompensatory business purposes if there are substantial reasons relating to the employer’s business, other than providing compensation to the employee, for providing the employee with a cell phone. For example, the employer’s need to contact the employee at all times for work-related emergencies, the employer’s requirement that the employee be available to speak with clients at times when the employee is away from the office, and the employee’s need to speak with clients located in other time zones at times outside of the employee’s normal work day are possible substantial noncompensatory business reasons. A cell phone provided to promote the morale or good will of an employee, to attract a prospective employee or as a means of furnishing additional compensation to an employee is not provided primarily for noncompensatory business purposes. This notice provides that, when an employer provides an employee with a cell phone primarily for noncompensatory business reasons, the IRS will treat the employee’s use of the cell phone for reasons related to the employer’s trade or business as a working condition fringe benefit, the value of which is excludable from the employee’s income.”  Read More.

OSHA Finds Employer Violated Whistleblower Protection Laws

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Published on Friday, 16 September 2011 02:04

The U.S. Department of Labor's Occupational Safety and Health Administration (OSHA) has found Bond Laboratories Inc. and its former CEO in violation of the whistleblower protection provisions of the Sarbanes-Oxley Act for allegedly improperly firing an employee. The DOL has ordered the company to re-hire the employee and pay approximately $500,000 in back wages, interest and compensatory damages. OSHA conducted an investigation after receiving a complaint from the employee. Bond Laboratories allegedly terminated the employee, an officer, for allegedly objecting to the manipulation of sales figures that
misrepresented the company's value to potential investors. According to OSHA, the employee repeatedly objected to this practice between March and October 2008, and that the objections contributed to the decision to terminate the employee. OSHA enforces the whistleblower provisions of the Sarbanes-Oxley Act and 20 other statutes protecting employees who report violations of various airline, commercial motor carrier, consumer product, environmental, financial, food safety, health care reform, nuclear, pipeline, public transportation agency, railroad and maritime laws. Pursuant to these laws, employers may not retaliate against employees who raise various protected concerns or provide protected information to the employer or to the government. Employees who believe they have been retaliated against for engaging in protected conduct may file a complaint with the secretary of labor to request an investigation by OSHA's Whistleblower Protection Program. According to Assistant Secretary of Labor for OSHA, Dr. David Michaels, "This corporate officer tried to do the right thing when asked to break the law…It is essential that America's workers do not have to fear retaliation when reporting wrongdoing. The Labor Department will continue to protect whistleblowers from retaliation by holding corporations, and when appropriate, CEOs, accountable." Read More.

Employer Must Pay $846,300 for Firing Cancer Survivor

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Published on Wednesday, 14 September 2011 03:58

The California Department of Fair Employment and Housing (DFEH) announced its largest-ever administrative award of $846,300 against Acme Electric Corporation for allegedly terminating an employee because he had cancer. The employee, Charles Richard Wideman, worked for Acme Electric as a regional sales manager for the company’s largest territory. He developed kidney and prostate cancer which required two surgeries and numerous cancer-related outpatient appointments. The company immediately granted his two requests for time off for surgery and post surgery recovery. However, Mr. Wideman then requested that the company grant him an additional accommodation for the travel limitation caused by his cancers. Acme Electric allegedly refused to grant or even acknowledge these accommodation requests. In December 2007, Mr. Wideman’s supervisor gave him an unfavorable performance evaluation, criticizing him for insufficient travel. On February 28, 2008, even though Mr. Wideman had allegedly improved his job performance, Acme Electric terminated Mr. Wideman, based on the insufficient travel issue. After a three-day hearing, the State’s Fair Employment and Housing Commission found Acme Electric violated the FEHA by: (1) allegedly failing to accommodate Mr. Wideman's known travel limitation due to his cancers; (2) allegedly failing to engage in a good faith interactive process; (3) allegedly discriminating against Mr. Wideman because of his disability; and, (4) allegedly failing to take all reasonable steps necessary to prevent discrimination from occurring. The Commission awarded Widerman $748,571 for lost wages, $22,729 for out-of-pocket expenses and $50,000 for emotional distress. In addition, Acme Electric must pay $25,000 to the State’s General Fund as an administrative fine. Acme Electric must also comply with posting, policy changes, and training requirements ordered by the Commission. According to DFEH Director Phyllis Cheng, "This historic administrative victory underscores the Department’s commitment to vindicating the rights of Californians victimized by workplace discrimination.”

Proposed Legislation Expands USERRA Rights Of Veterans On Medical Leave

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Published on Wednesday, 14 September 2011 03:48

U.S. Rep. Lloyd Doggett has reintroduced the Wounded Veteran Job Security Act (H.R. 2875), legislation which he authored that expands the rights of veterans under the Uniformed Services and  Reemployment Rights Act (USERRA) who are on service-related medical leave. In general, the proposed legislation protects veterans against discrimination in the workplace for time spent receiving treatment for injuries and disabilities caused by their service. According to Congressman Dogget, “This legislation is the result of problems that local veterans raised during discussions with me...They said, 'Wounded veterans should not be fired after they exhaust their sick and vacation days to receive care for injuries suffered while defending our Nation.' I agreed. They said, ‘There ought to be a law supporting our veterans.’ I agreed. And, I said that when my colleagues learn what some of our veterans are facing, they will agree with us too.” Over 45,000 Americans have been wounded as a result of their military service in Iraq and Afghanistan. The Wounded Veteran Job Security Act would: (1) Entitle veterans to protected leave for the treatment of service-related medical conditions; (2) Grant these service members the seniority and other rights and benefits they had prior to receiving treatment; and (3) Ensure these service members receive the same rights and benefits as other employees who are on furlough or a leave of absence. The Wounded Veteran Job Security Act has been endorsed by the American Legion, the Reserve Officers Association, Disabled American Veterans, and Veterans for Common Sense.  Read More.

HR Practice Pointer: Is Severance Pay Required?

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Published on Wednesday, 14 September 2011 03:29

There is no general statutory or common law obligation for an employer to provide severance pay to an employee. However, where it is provided by the employer, it must be administered in a non-discriminatory manner and should comply with any applicable labor agreement, employee handbook, policy manual or any other relevant employer document. In certain situations, employers may provide severance pay in exchange for a release of claims the employee may have against the employer. A properly drafted severance agreement will release the employer from claims such as wrongful termination, discrimination, harassment and/or retaliation. All such severance agreements should be reviewed (and/or drafted) by an employment law attorney. In general, severance agreements should be clearly worded, specifically identify the claims being released, be supported by adequate consideration and, as indicated above, be reviewed by counsel for the employer and employee. Civil Code section 1542 provides that a general release does not extend to claims which the creditor does not know or suspect to exist, although a severance agreement can contain a waiver of this provision. A waiver of claims regarding age discrimination contained in a severance agreement must comply with the Age Discrimination Act (ADEA) which requires, in part, that the waiver specify the rights being waived under the ADEA, that the employee was advised in writing to consult an attorney, that the employee was afforded at least 21 days in which to considered the agreement, and that the agreement provides for a seven day period following execution of the agreement in which the employee may revoke the agreement. Read more.

HR Practice Pointer: What is the Sarbanes-Oxley Act?

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Published on Monday, 12 September 2011 22:03

The Sarbanes-Oxley Act (SOA) is federal legislation intended to protect employees (“whistleblowers”) who report certain federal law violations that have occurred in the workplace, or that the employee reasonably believes have occurred. Specifically, pursuant to the SOA, an employer may not terminate, demote, suspend, harass or retaliate against an employee who reports a violation of federal law or who is cooperating in a federal investigation regarding the employer’s alleged wrongful conduct. An employee who prevails in an SOA action is entitled to restatement (if applicable) back pay (if applicable) and compensation for special damages such as litigation costs and attorney fees. Further, the SOA imposes criminal liability on anyone who knowingly retaliates against a whistleblower. Read More.

9th Circuit Holds Social Workers Did Not Meet Overtime Exemption

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Published on Monday, 12 September 2011 21:27

The Secretary of Labor (DOL) filed a complaint against the State of Washington, Department of Social and Health Services (DSHS), alleging that DSHS failed to pay overtime to certain social workers in violation of the Fair Labor Standards Act of 1938 (FLSA). The DSHS employs social workers in forty-four field offices who identify the needs of children and families and arrange for services to assure their safety and well-being. The DSHS asserts that it has established “rigorous educational qualifications” for its social workers including that candidates for Social Worker 2 must have at least a bachelor’s degree or higher in social services, human services, behavioral sciences, or a related field as well as eighteen months as a Social Worker 1 or two years’ experience in an equivalent position, and thus these workers met the “learned professional” exemption for overtime. In 2006, DOL initiated an investigation of DSHS after receiving an employee complaint about overtime. The DOL investigator concluded that the social worker positions did not qualify for the “learned professional” exemption and subsequently filed suit against the DSHS. The district court held that the social worker positions required a sufficient amount of specialized intellectual instruction to qualify for the “learned professional” exemption and the DOL appealed. The 9th Circuit Court of Appeal reversed,  holding that “to avail itself of the ‘learned professional’ exemption, an employer must show that a position requires advanced knowledge customarily acquired by a prolonged course of specialized intellectual instruction. Because the social worker positions at issue here require only a degree in one of several diverse academic disciplines or sufficient coursework in any of those disciplines, we conclude that DSHS has not met its burden of showing that its social worker positions ‘plainly and unmistakably’ meet the regulatory requirement.” Read More.

OSHA Issues Compliance Directive Regarding Workplace Violence

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Published on Friday, 09 September 2011 05:22

The Occupational Safety and Health dministration (OSHA) issued a directive titled Enforcement Procedures for Investigating or Inspecting Incidents of Workplace Violence. The directive establishes uniform procedures for OSHA field staff on responding to complaints of workplace violence and conducting inspections in industries that are vulnerable to workplace violence, such as healthcare, social service settings, and late-night retail establishments. Workplace violence is a serious recognized occupational hazard. In the past 15 years, it has ranked among the top four causes of death in the workplace.  The Bureau of Labor Statistics (BLS) reports that more than 3,000 people died from workplace homicide between 2006 and 2010. Further, according to the BLS, an average of more than 15,000 nonfatal workplace injury cases were reported per year during this time. According to OSHA’s website, “A recent OSHA inspection of a Maine psychiatric hospital found more than 90 instances in which workers were assaulted on the job by patients from 2008 through 2010. The hospital was cited for not providing its workers with adequate safeguards against workplace violence and a fine of more than $6,000 was proposed. OSHA has also recently cited facilities in New York and Massachusetts where employees have been killed as a result of assaults.”  Assistant Secretary of Labor for Occupational Safety and Health, Dr. David Michaels, commented  "These incidents and others like them can be avoided or decreased if employers take appropriate precautions to protect their workers…We have accompanied this directive with a new Web page on Preventing Workplace Violence to help employers address workplace violence issues."

Congressman Introduces Legislation To Reverse NLRB Rule On Workplace Notices

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Published on Friday, 09 September 2011 04:45

Congressman Ben Quayle (R-AZ-03) has introduced legislation intended to reverse a new rule announced last week by the National Labor Relations Board (NLRB) that requires private-sector employers to display notices describing the National Labor Relations Act. Mr. Quayle issued the following statement regarding his bill, HR 2833, The Employee Workplace Freedom Act: "Over the past two and a half years, American businesses—both small and large—have dealt with an onslaught of new mandates, regulations and taxes. The National Labor Relations Board piled on another rule last week when it announced that employers must display 11 by 17 inch signs outlining the 76-year-old National Labor Relations Act. This needless requirement--which falls outside the NLRB's statutory authority — opens the door for legal action by the NLRB against companies that don’t comply…This new rule is further evidence that the Obama Administration puts the interests of union bosses ahead of individual workers. This pattern of behavior was on full display when the NLRB filed an egregious complaint against Boeing. Our federal agencies should work with American companies to reduce the regulatory burdens that inhibit growth. They should not enact nonsensical rules that add unnecessary costs. The Employee Workplace Freedom Act stops one of these foolhardy rules in its tracks.” 

The Scooter Store Sued For Disability Discrimination

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Published on Tuesday, 06 September 2011 23:41

he Scooter Store, a nationwide, Texas-based retailer, allegedly violated federal discrimination laws when it refused to accommodate an employee's request for a temporary leave of absence due to a knee injury and then terminated him from its store in Farmingdale, New York. More specifically, according to a lawsuit filed by the Equal Employment Opportunity Commission (EEOC), The Scooter Store allegedly failed to accommodate an employee's request for a reasonable accommodation for his disability, psoriatic arthritis, after he sustained a knee injury that required a temporary absence from work. The EEOC’s further alleges that the employee informed the company in a timely manner that he was incapacitated until further notice and that he required a leave of absence to seek treatment for his disability. However, The Scooter Store allegedly refused his request and instead terminated the employee, claiming that the employee abandoned his job, although he had presented medical documentation. According to Adela Santos, trial attorney for the EEOC,  “Granting a temporary leave of absence to this employee would have posed no undue hardship on this company and would have allowed the employee to recuperate and return to work.” Elizabeth Grossman, regional attorney for the EEOC’s New York District, commented that, “Employers are obligated to engage in an interactive process with employees and provide reasonable accommodations for their disabilities. Refusing to even consider an employee's request for a reasonable accommodation is tantamount to a clear violation of the ADA.”

DOL Proposes Revisions To Child Labor Regulations

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Published on Friday, 02 September 2011 20:12

The U.S. Department of Labor (DOL) is proposing revisions to child labor regulations intended to “strengthen the safety requirements for young workers employed in agriculture and related fields.” The agricultural hazardous occupations orders pursuant to the Fair Labor Standards Act, which bars minors from performing certain tasks, have not been updated since they were promulgated in 1970. According to the DOL’s website, “The department is proposing updates based on the enforcement experiences of its Wage and Hour Division,  recommendations made by the National Institute for Occupational Safety and Health, and a commitment to bring parity between the rules for young workers employed in agricultural jobs and the more stringent rules that apply to those employed in nonagricultural workplaces. The proposed regulations would not apply to children working on farms owned by their parents…The proposal would strengthen current child labor regulation prohibiting agricultural work with animals and in pesticide handling, timber operations, manure pits and storage bins. It would prohibit farm workers under age 16 from participating in the cultivation, harvesting and curing of tobacco. And it would prohibit youth in both agricultural and nonagricultural employment from using electronic, including communication, devices while operating power-driven equipment…The department also is proposing to create a new nonagricultural hazardous occupations order that would prevent children under 18 from being employed in the storing, marketing and transporting of farm product raw materials. Prohibited places of employment would include country grain elevators, grain bins, silos, feed lots, stockyards, livestock exchanges and livestock auctions.” The proposal also prohibits minors under the age of 16 from operating almost all power driven equipment. Read More.

Applebee’s To Pay $1 Million For Alleged Sexual Harassment And Retaliation

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Published on Thursday, 01 September 2011 19:46

Food Management Investors, Inc. (FMI) and Apple Core Enterprises, Inc., Minot, N.D.-based companies, have agreed to resolve a lawsuit brought by the U.S. Equal Employment Opportunity Commission (EEOC) regarding allegations of sexual harassment and retaliation at their Bismarck, N.D. Applebee’s Neighborhood Grill & Bar. According to the EEOC, Applebee’s allegedly violated federal civil rights laws by permitting a former store general manager to engage in a pattern and practice of sexual harassment and retaliation against employees. More specifically, according to the EEOC, the former general manager allegedly “regularly groped female employees, solicited sexual relations, and exposed himself. He also allegedly exposed employees to pornography, told sexually explicit stories and jokes and made highly personalized sexual comments designed to demean and humiliate female employees.” Further, the EEOC’s investigation revealed that that on at least one occasion, Cordova allegedly coerced an employee into giving him oral sex in exchange for a raise. The EEOC also charged that even though Applebee’s received repeated complaints by employees and, on occasion, customers, the company allegedly failed to discipline or stop the manager’s behavior. Five women previously employed at that Applebee’s location filed charges of discrimination with the EEOC, which led to the EEOC investigation and lawsuit. In addition to the settlement amount, which will be paid out to 17 female former employees, the company must implement a comprehensive training program aimed at helping its employees to identify sexual harassment and to properly investigate internal complaints. Read More.

Same Evidence May Be Used To Assess Sufficiency of Harassment and Retaliation Claims

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Published on Tuesday, 30 August 2011 17:54

A Wal-Mart store in Humacao, Puerto Rico, must defend a lawsuit alleging sexual both sexual harassment and retaliation even though the evidence regarding sexual harassment and retaliation overlaps. The case involves Jorge Pérez-Cordero, who worked at Wal-Mart as a butcher beginning in 1998. In 2000, Madeline Santiago became his supervisor and soon began “sharing details about her private life, leading him to believe she was interested in pursuing a romantic relationship with him.”  On one occasion Santiago allegedly told Pérez-Cordero that she was a single mother seeking a man and she asked Pérez-Cordero if he was interested. According to Pérez-Cordero, "it was clear that she was talking about was [sic] a sex partner." Pérez-Cordero explicitly rejected these advances. However, allegedly, when it became apparent to Santiago that Pérez-Cordero was not interested in pursuing a romantic relationship, his working conditions began to change. For example, he was often scheduled to work the closing shift, which required more work than other shifts. He then complained to management about the conduct and asked to be separated from Ms. Santiago. However, Wal Mart allegedly did not take any action. Perez-Cordero subsequently filed suit alleging sexual-based discrimination and retaliation. On appeal, the court found for Perez-Cordero holding that “Santiago's harassment of Pérez-Cordero involved nonconsensual physical contact, embarrassing sexual remarks, public scolding, exclusion from meetings and training opportunities, threats of discipline, and assignment to him of the task generally regarded as least desirable…Although Pérez-Cordero did not suffer a tangible employment detriment in response to his protected activity, such as a retaliatory firing, we have previously held that the escalation of a supervisor's harassment on the heels of an employee's complaints about the supervisor is sufficiently adverse action to support a claim of employer retaliation.” On the overlapping evidence issue as between the claims for sexual harassment and retaliation, the court noted that “There is admittedly some overlap between Pérez-Cordero's discrimination claim, which depends on proof that the hostile work environment was ‘because of sex,’ and his retaliation claim, which seeks to characterize the same hostile work environment as caused by his protected activity…However, where, as here, the evidence can reasonably be viewed as demonstrating either discriminatory animus or retaliatory animus, we may consider the same evidence in assessing the sufficiency of both of the plaintiff's claims.” Read More.

NLRB Issues Rule Requiring Employers To Post Union Notice

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Published on Tuesday, 30 August 2011 16:18

The National Labor Relations Board (NLRB) has issued a  Final Rule requiring employers to post an 11 by 17-inch notice advising employees about their rights pursuant to the National Labor Relations Act (NLRA). The notice must be posted as of November 14, 2011. Private-sector employers (including labor organizations) whose workplaces fall under the NLRA must post the notice where other workplace notices are typically posted. Employers who usually post notices to employees about personnel policies on an internet or intranet site must post the notice on those sites. Employers are not required to distribute the notice via email, voice mail, text messaging or related electronic communications even if they typically communicate with their employees in that manner. In addition, employers may post the notice in black and white as well as in color. The final rule also addresses posting in foreign languages and specifies that if a workforce is comprised of significant numbers of employees who are not proficient in English, the poster must be displayed in the applicable language. Copies of the notice will be available from the NLRB’s regional offices. The notice may also be downloaded from the NLRB website. The notice, which is similar to one required by the U.S. Department of Labor for federal contractors, advises that employees have the following rights: (1) to act together to improve wages and working conditions, to form, join and assist a union, to bargain collectively with their employer, and (2) to refrain from any of these activities. The notice also provides examples of unlawful employer and union conduct and advises employees on how to contact the NLRB with any questions or complaints. A fact sheet with further information about the rule is available here.  Read More.

Employer Not Liable For Alleged Breach Of Fiduciary Duty Where Reasonable Mix Of Investment Options Offered In 401(k) Plan

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Published on Monday, 29 August 2011 16:44

Mark Renfro and Gerald Lustig (plaintiffs) alleged that their employer, Unisys Corporation, violated the fiduciary duties imposed upon them by the federal Employee Retirement Income Security Act ("ERISA") because their 401(k) plan caused plaintiffs to pay excessive fees for investments in the retirement savings plan. Under a 401(k) plan, employees contributing to the plan receive certain tax advantages and partial matching contributions from their employer. Plaintiffs alleged that their employer and the plan administrators were responsible for monitoring the selection, retention and removal of investment options to ensure compliance with their fiduciary obligations under ERISA. Plan participants had more than 70 investment options, including mutual funds, although the funds come with varying degrees of risk, reward opportunity, and fees. However, plaintiffs alleged that Unisys breached its fiduciary duties by causing plan participants to pay excessive administrative and investment management fees. In particular, plaintiffs complained that Unisys did not take advantage of the plan’s large size to negotiate lower fees or increased services for plan participates. The Third District Court found for Unisys, holding that the 401(k)  “‘offered a sufficient mix of investments for their participants’ and that no rational trier of fact could find, on the basis of the facts alleged in the operative complaint, that the Unisys Defendants breached an ERISA fiduciary duty by offering this particular array of investment vehicles.” The court also noted that “Plaintiffs' Second Amended Complaint lists the more than 70 funds offered by the Plan. The fees associated with these investment options were disclosed to plan participants via prospectuses and ranged from 0.1% for the Spartan Index Fund to 1.21% for the Southeast Asia Fund…a plan fiduciary need not select the cheapest fund available…Rather, a plan fiduciary need only act solely in the interest of plan participants and beneficiaries, and select funds ‘with the care, skill, prudence, and diligence’ of a prudent person acting in a similar role.” Read More.

Anti-Retaliation Provision Of FLSA Does Not Apply To Job Applicant

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Published on Friday, 26 August 2011 17:33

Natalie Dellinger sued her former employer, CACI, Inc., in July 2009 for alleged violations of the Fair Labor Standards Act’s (FLSA) minimum wage and overtime provisions. During this time, she also applied for a job with Science Applications International Corporation (Science Applications). In late August 2009, Science Applications offered Dellinger a job, contingent on passing a drug test, completing specified forms, and verifying and transferring her security clearance. Dellinger accepted the offer. On the security clearance form, Science Applications asked Dellinger to list any pending noncriminal court actions to which she was a party. She listed the FLSA lawsuit against CACI.  Dellinger then submitted her completed form to Science Applications, but the company withdrew the offer of employment. Subsequently, Dellinger filed suit against Science Applications, alleging that the company's motive for withdrawing its offer was “retaliation and unlawful discrimination based on Ms. Dellinger's exercise of her protected right to file an FLSA lawsuit.”  Science Applications filed a motion to dismiss the complaint under Federal Rule of Civil Procedure 12(b)(6), contending that Dellinger's complaint did not state a claim for which relief could be granted because the FLSA's anti-retaliation provision protects only employees, not prospective employees/applicants. The district court agreed and dismissed Dellinger's complaint. On appeal, the court noted that this case “presents the question of whether an applicant for employment is an ‘employee’ authorized to sue and obtain relief for retaliation under § 216(b). Consistent with the FLSA's purpose to regulate the employer-employee relationship and the relevant text of the Act, we conclude that only employees can sue their current or former employers for retaliation under the FLSA and that an applicant is not an employee.” Read More.

Employee Allegedly Abused FMLA Leave By Taking It Around Holidays

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Published on Friday, 26 August 2011 16:30

Douglas Rydalch (Rydalch) worked as a reservations sales agent for Southwest Airlines at its Salt Lake City location. In 2004, Southwest closed the Salt Lake City center and transferred Rydalch to the Houston center. However, Mr. Rydalch’s family remained in Utah and he continued to reside in Utah during his time off. Further, because of his limited seniority, Rydalch had difficulty getting time off around the holidays. In 2004, Rydalch injured his back in a car accident and requested leave pursuant to the Family and Medical Leave Act (FMLA). Southwest granted all of the leave that he requested. However, in 2007, Southwest began to question whether Rydalch was taking FMLA leave around other previously scheduled time off, such as holidays. Southwest conducted an investigation and discovered that Rydalch had used FMLA leave thirty-five times for leave on days just before or after previously scheduled time off, and around important dates and holidays such as July 4, his birthday, Labor Day, his wedding anniversary, Thanksgiving, Christmas and New Year’s Eve. A Southwest staff administrator then met with Rydalch and advised that Southwest’s Attendance Program states “Using sick leave or sick pay for a purpose other than that intended constitutes abuse. Abuse of sick leave or sick pay shall warrant immediate termination.” Southwest did not take any further action against Rydalch at that time. Subsequently, Rydalch used FMLA leave around July 4, 2007, and Southwest conducted another investigation in which it determined that Rydalch had a pattern of taking flights to and from Salt Lake City on the days he requested FMLA leave. The staff administrator again met with Rydalch to advise that Southwest’s policy prohibited misuse of FMLA leave.  On December 24, 2007, the staff administrator learned that Mr. Rydalch did not report to work and had requested FMLA leave for that day; the staff administrator also learned that Rydalch had purchased round trip tickets from Salt Lake City to Houston during the leave period, and the flights had been booked in June of 2007. Subsequently, Southwest terminated Rydalch and he sued alleging violations of the FMLA and the Americans with Disabilities Act (ADA). The court found for Southwest noting that “Mr. Rydalch has not provided any evidence that Southwest interfered with his exercise of FMLA leave in any way apart from terminating his employment… the cause of Mr. Rydalch's termination was Southwest's honest belief that he violated the Attendance Program.” Read More.

HR Practice Pointer: What Is “ERISA”?

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Published on Thursday, 25 August 2011 19:36

The Employee Retirement Income Security Act of 1974 (ERISA) is a federal law that sets minimum standards for most voluntarily established pension and health plans in private industry in order to provide protection for employees in these plans. A pension plan is an employee benefit plan established or maintained by an employer or by an employee organization (such as a union), or both, that provides retirement income or defers income until termination of covered employment or beyond. There are a number of types of retirement plans, including the 401(k) plan and the traditional pension plan, known as a defined benefit plan. ERISA requires plans to (1) provide participants with plan information including important information about plan features and funding; (2) provide details about  fiduciary responsibilities for those who manage and control plan assets; and (3) establish a grievance and appeals process for participants to get benefits from their plans. ERISA also gives participants the right to sue for benefits and breaches of fiduciary duty. Read More.

EEOC Pledges “Rigorous Enforcement” Of Equal Pay Laws

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Published on Thursday, 25 August 2011 18:33

The U.S Equal Employment Opportunity Commission (EEOC) and the Office of Personnel Management (OPM) have pledged "rigorous enforcement" of equal pay laws for federal employees. According to EEOC Chair Jacqueline A.Berrien, "We cannot achieve our national commitment to equal employment opportunity until women are included as equal partners in every workplace, including the federal government. The federal government should be a model employer in every regard—including equal pay.” OPM Director John Berry commented that “Equal pay for equal work is the law, it's right, and its time has come. OPM and the EEOC are working together to ensure that federal equal pay laws are vigorously enforced in the federal workplace...Ensuring equal pay for equal work without regard to gender, or any other prohibited basis helps us recruit and retain the most talented workforce to serve the American people. While this wage gap is smaller in the federal government than in other sectors, much work remains to be done to ensure that the federal government is a model employer." A 2009 report from the Government Accountability Office (GAO) reported that the gender wage gap for federal employees declined from 28 cents on the dollar in 1987 to 11 cents in 2007. However, in terms of the 11 cent gap, seven cents could not be accounted for by differences in education, years of service, or other non-discriminatory factors. Read More.

HR Practice Pointer: What Is “HIPAA”?

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Published on Thursday, 25 August 2011 16:22

The Health Insurance Portability and Accountability Act (HIPAA) regulates the privacy of medical records and is in effect as of April 14, 2003. In general, HIPAA protects against the involuntary disclosure of an individual’s medical records. The Standards for Privacy of Individually Identifiable Health Information (“Privacy Rule”) established, for the first time, a set of national standards for the protection of certain health information. The U.S. Department of Health and Human Services (“HHS”) issued the Privacy Rule to implement the requirements of HIPAA. The Privacy Rule standards address the use and disclosure of an individual's health information—called “protected health information” by organizations subject to the Privacy Rule — called “covered entities,” as well as standards for an individual's right to understand and control how their health information is used. A major goal of the Privacy Rule is to assure that an individual's health information is properly protected while allowing the flow of health information needed to provide health care. Entities regulated by the Privacy Rule must comply with all of its applicable requirements. The Privacy Rule applies to health plans, health care clearinghouses, and to any health care provider who transmits health information in electronic form. The Privacy Rule protects all "individually identifiable health information" held or transmitted by a covered entity or its business associate, in any form or media, whether electronic, paper, or oral. The Privacy Rule calls this information "protected health information (PHI)." “Individually identifiable health information” is information, including demographic data, that relates to: (1) an individual’s past, present or future physical or mental health or condition; (2) the provision of health care to the individual; or (3) the past, present, or future payment for the provision of health care to the individual, and that identifies the individual or for which there is a reasonable basis to believe can be used to identify the individual. Individually identifiable health information includes many common identifiers (e.g., name, address, birth date, Social Security Number). The Privacy Rule excludes from protected health information employment records that a covered entity maintains in its capacity as an employer, and education and certain other records subject to, or defined in, the Family Educational Rights and Privacy Act. Read More.

HR Practice Pointer: What Is An “EAP”?

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Published on Thursday, 25 August 2011 15:47

Employee Assistance Plans (EAPs) are  programs offered by many employers to help employees and their dependants deal with certain types of problems that may adversely affect their work performance such as substance abuse, emotional distress or family/personal relationship issues. An EAP is usually offered as part of the employee’s benefits package and often is a part of the group health insurance plan. The EAP may include services for an initial assessment and short-term counseling. The services are usually free to the employee and typically consist of between 3 and 10 sessions. Often an employer will contract with a third party to manage the EAP. Employers must be careful to maintain the employee’s privacy if the need for an EAP arises. Employers may require mandatory referrals to the EAP when an employment issue arises that may be resolved through the EAP, such as a situation in which an employee is under the influence on the job. In general, EAPs are not regulated by state or federal law. However, in California, behavioral therapy providers are required to have a Knox-Keene license offered through the California Department of Managed Health Care. The license is issued pursuant to Section 1353 of the Knox-Keene Health Care Service Plan Act of 1975, as amended. This license ensures that certain minimum standards are met and gives the behavioral therapists the right to conduct business in the state of California. Employers must also comply with the Health Insurance Portability and Accountability Act of 1996 (HIPAA) when administering an EAP program. HIPAA protects the confidentiality of personal health information, including information obtained through an EAP. Thus, EAP providers and employers cannot disclose any personal health information, including who has used EAP services, without the employee’s consent. The terms and conditions of an employer’s EAP program should be set forth in the employee handbook.

HR Practice Pointer: What Is The "DLSE"

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Published on Thursday, 25 August 2011 02:29

The Division of Labor Standards Enforcement (DLSE) enforces minimum labor standards in California, such as wage and hour laws, in “order to ensure employees are not required or permitted to work under substandard unlawful conditions, and to protect employers who comply with the law from those who attempt to gain competitive advantage at the expense of their workers by failing to comply with minimum labor standards.” Read More. 

HR Practice Pointer: What Is A “CBA”?

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Published on Thursday, 25 August 2011 02:10

A “CBA” refers to a collective bargaining agreement which occurs as the result of negotiation (collective bargaining) between a union (representatives of a unit of employees) and an employer. Such agreements typically regulate working conditions specifying such things as wages, working hours, training, health and safety, overtime, and grievance procedures. Thus, a CBA functions as a labor contract between an employer and the union. 

HR Practice Pointer: Bulletin Boards In The Workplace

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Published on Thursday, 25 August 2011 01:11

Employers commonly use bulletin boards as a means of posting information for employees, and as a place where employees can post information. Bulletin boards are typically located in lunch/break areas in the workplace. An employer is not required to have a bulletin board, although some union contracts require bulletin board space for use by the union. Employers should address the use of bulletin boards in the employee handbook, and in particular should require that items posted on the bulletin board are approved prior to posting by a supervisor to ensure that discriminatory/harassing/inappropriate items are not posted. In addition, employers/supervisors should check bulletin boards on a regular basis to ensure that inappropriate/unlawful items have not been posted.

CA Supreme Court Holds Cal-OSHA Requirements Are Delegable To Independent Contractor

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Published on Wednesday, 24 August 2011 22:39

In general, if an employee of an independent contractor is injured in the workplace the employee cannot sue the party that hired the contractor to do the work. (Privette v. Superior Court (1993) 5 Cal.4th 689 (Privette).) In a recent case, Seabright Ins. v. US Airways (SC S182508 8/22/11) the California Supreme Court considered whether the Privette rule applies when the party that hired the contractor (the hirer) failed to comply with workplace safety requirements (for example, Cal-OSHA standards) and the injury is alleged to have occurred as a result of that failure. According to the Court, the Privette rule applies in this particular situation because the “hirer” implicitly delegates to the contractor any tort law duty it owes to the contractor’s employees to ensure the safety of the specific workplace that is the subject of the contract. That implicit delegation includes any tort law duty the hirer owes to the contractor’s employees to comply with applicable statutory or regulatory safety requirements, such as those required by Cal-OSHA. However, such delegation does not include the tort law duty the hirer owes to its own employees to comply with such safety requirements. The Seabright case involved US Airways, which uses a conveyor to move luggage. Although US Airways hired independent contractor Lloyd W. Aubry Co. to maintain and repair the conveyor, it did not direct or have its employees participate in Aubry‘s work. The conveyor lacked certain safety guards required by Cal-OSHA. When Aubry’s employee, Anthony Verdon Lujan (Verdon), was inspecting the conveyor, his arm got caught in its moving parts. SeaBright Insurance Co., Aubry‘s workers‘ compensation insurer, paid Verdon benefits based
on the injury and then sued US Airways, claiming the airline caused Verdon‘s injury due to its failure to implement Cal-OSHA requirements. Verdon intervened as a plaintiff, seeking damages for negligence and premises liability. US Airways then sought summary judgment based on the Privette case. The trial court found for US Airways and plaintiffs appealed. The appellate court held that under Cal-OSHA, US Airways had a nondelegable duty to ensure that the conveyor had the requisite safety guards, and thus the question of whether the airline failed to perform this duty remained a triable issue of fact, precluding summary judgment. The California Supreme Court disagreed, emphasizing that there is a strong policy “in favor of delegation of responsibility and assignment of liability  to independent contractors…an independent contractor‘s hirer implicitly delegates to that contractor its tort law duty, if any, to provide the employees of that contractor a safe workplace…we reject the premise that the tort law duty, if any, that a hirer owes under Cal-OSHA and its regulations to the employees of an independent contractor is nondelegable.”  Read More.

3M To Pay $3 Million To Settle Age Discrimination Claim

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Published on Tuesday, 23 August 2011 23:23

 3M has agreed to pay $3 million to a class of former employees to resolve a nationwide age discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC). The EEOC alleged that “3M unlawfully laid off hundreds of employees over the age of 45 during a series of reductions in force (RIFs) from July 1, 2003 through Dec. 31, 2006.” Further, according to the EEOC, the layoff included many highly paid older employees, including the level of director. The EEOC also alleged that 3M did not provide older employees with leadership training and laid off older workers to make way for younger workers. The EEOC’s investigation revealed an e-mail from a 3M employee describing then-CEO Jim McNerney’s “vision for leadership development” as “we should be developing 30 year olds with General Manager potential” and “He wants us to tap into the youth as participants in the leadership development.” Age discrimination is prohibited pursuant to the Age Discrimination in Employment Act (ADEA), which protects people aged 40 and older from employment discrimination. Pending approval, 3M will pay $3 million in monetary relief to approximately 290 former employees. In addition, 3M will implement a review process for termination decisions and training on how to prevent age bias. 3M will report on its compliance, provide RIF information to the EEOC over the next three years, and post a notice about the settlement. Michael Baldonado, district director of the EEOC’s San Francisco office, stated that “The law requires employers to base employment decisions upon each person’s strengths and talents instead of relying upon generalized assumptions calculated around an employee’s age…This consent decree is the result of productive and thoughtful negotiations with 3M. In addition to providing meaningful monetary relief for hundreds of former 3M employees, the settlement contains important preventive measures, including company policy changes and training designed to provide older people equal opportunities in the workplace.” Read More.

Reinstatement To Comparable Position Not Required After More Than 12 Weeks Of CFRA Leave

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Published on Tuesday, 23 August 2011 20:12

Katrina Rogers worked for the County of Los Angeles (LA County). She had been employed with LA County for 36 years in various positions, most recently as a personnel officer. In April of 2006, Ms. Rogers took a medical leave pursuant to the California Family Rights Act (CFRA) due to work-related stress. The CFRA entitles eligible employees to take up to 12 unpaid workweeks in a 12-month period for family care and medical leave to care for their children, parents, or spouses, or to recover from their own serious health condition. CFRA also guarantees that taking such leave will not result in a loss of job security or other adverse employment actions. Further, upon an employee’s timely return from CFRA leave, an employer must generally restore the employee to the same or a comparable position. In this case, Ms. Rogers took 19 weeks of leave. However, upon her return she was not reinstated to her former position due to the fact that during her medical leave, LA Country reorganized their executive department which resulted in Ms. Rogers’ being transferred to another position and department, specifically the Internal Service Department (ISD). LA County stated that the reorganization was due to business needs. Thus, when Ms. Rogers returned to work, she received written notification of the transfer. Ms. Rogers became “visibly upset” when she learned of the transfer as she considered it a demotion because she would no longer be supervising or managing. She subsequently sued LA County pursuant to the CFRA alleging that LA County (1) interfered with her CFRA rights by transferring her to a noncomparable position, and (2) retaliating against her for exercising her right to take CFRA leave. A jury awarded her damages in the amount of $356,000, and LA County appealed. The appellate court reversed holding that Rogers was not entitled to reinstatement when she failed to return to work at the end of her 12-week protected CFRA leave. “CFRA’s reinstatement right only applies when an employee returns to work on or before the expiration of the 12-week protected leave.”  Employers should still exercise caution when making return-to-work/reinstatement decisions as they must still comply with other laws regarding medical leave such as the Fair Employment and Housing Act/Americans with Disabilities Act. 

NLRB Issues Report On Social Media

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Published on Monday, 22 August 2011 14:34

The laws involving social media policies in the workplace are rapidly involving. Employers must therefore exercise caution when creating, implementing and enforcing such policies. The National Labor Relations Board’s Acting General Counsel has released a report detailing the outcome of investigations into 14 cases involving the use of social media and employers’ social and general media policies which provides some helpful information. Acting General Counsel Lafe Solomon commented on the report noting that, "I hope that this report will be of assistance to practitioners and human resource professionals." Each case in the report was submitted by regional offices to the NLRB’s Division of Advice in Washington, DC. In four cases involving employees’ use of Facebook, the Division held that the employees were engaged in "protected concerted activity" because they were discussing terms and conditions of employment with fellow employees. In five other cases involving Facebook or Twitter posts, the Division found that the activity was not protected. In one case, it was determined that a union engaged in unlawful coercive conduct when it videotaped interviews with employees at a nonunion jobsite about their immigration status and posted an edited version on YouTube and the Local Union’s Facebook page. In five cases, some parts of the employers’ social media policies were found to be unlawfully overly-broad. A final case involved an employer’s lawful policy restricting its employees’ contact with the media. An analysis of the report reveals that employers must be careful about overly broad language in social media policies, such as a policy that prohibits employees from posting any pictures about themselves in media, including the internet, which contains company information such as a logo. In addition, the report suggests that the NLRB will probably consider employee comments that contain offensive or disparaging remarks about the employer’s clients to be unprotected activity. Read More.

Employment Relationship Must Exist When Employee Requests FMLA Leave

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Published on Monday, 22 August 2011 13:51

A recent case emphasizes that the employment relationship must exist at the time an employee requests leave pursuant to the Family and Medical Leave Act (FMLA). Kerry Walls worked as a bus driver for the Central Contra Costa Transit Agency (“CCCTA”); he was terminated from employment with CCCTA on January 27, 2006. Subsequently, Walls filed a union grievance. On March 1, 2011, during a final conference between Walls, his union representative, and CCCTA, Walls signed an employment agreement (Last Chance Agreement) reinstating his employment as of March 2, 2006. At that time, Walls also verbally requested leave pursuant to FMLA until April 10, 2006. However, on March 3, 2006, Walls incurred an unexcused absence that violated the attendance requirements of the Last Chance Agreement. As a result, CCCTA again terminated Walls on March 6. After filing another union grievance, for which he was not granted reinstatement, Walls filed a lawsuit alleging that his March 6 discharge violated the FMLA because he had notified CCCTA of his need for a leave of absence on March 1. The district court granted summary judgment against Walls. The Ninth Circuit upheld the summary judgment against Walls on the FMLA claim holding that FMLA rights and benefits are contingent upon the existence of an employment relationship at the time that the employee gives notice of the need to take family and medical leave. The court determined since Walls provided the FMLA notice on March 1, and the agreement did not create an employment relationship until March 2, Walls did not meet the requisite contingency for an employment relationship under the FMLA. Furthermore, the court rejected Walls’ argument that even if he was not an employee at the time he gave the verbal notice, CCCTA had actual notice of his need for FMLA and thus still was in violation of FMLA. The court reasoned that since Walls made an informed decision to sign the Last Chance Agreement, thereby indicating that he was ready to start work pursuant to the terms of the agreement on March 2, he effectively retracted his request for leave. Thus, since Walls did not restate his need for FMLA leave subsequent to signing the agreement and returning to work, Walls did not provide CCCTA with notice sufficient notice to invoke the rights and benefits of FMLA. Read More.

Court Rules Law Clerk Not Entitled To Overtime

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Published on Friday, 19 August 2011 16:44

Matthew Zelasko-Barrett (Barrett), a former law clerk at the personal injury law firm of Brayton-Purcell, LLP (Brayton) filed a lawsuit claiming that the firm failed to pay him overtime wages and provide other benefits. Following Barrett’s graduation from law school, and prior to passing the California State Bar, Brayton employed Barrett as a “Law Clerk II.” In that capacity, he performed tasks typically completed by junior associates. Although he was supervised by a licensed attorney, Barrett drafted pleadings and discovery demands, conducted research, drafted points and authorities and interacted with opposing counsel on discovery matters. Brayton classified Barrett as exempt pursuant to the learned professional exemption to overtime, which provides, in part, that an employee is exempt from overtime who is “(3) (a) primarily engaged in the practice of one of the following recognized professions: law, medicine, dentistry, optometry, architecture, engineering, teaching, or accounting; or (b) Who is primarily engaged in an occupation commonly recognized as a learned or artistic profession. For the purpose of this subsection, learned or artistic profession means an employee who is primarily engaged in the performance of: (1) Work requiring knowledge of an advanced type in a field or science or learning customarily acquired by a prolonged course of specialized intellectual instruction and study, as distinguished from a general academic education and from an apprenticeship, and from training in the performance of routine mental, manual, or physical processes...” However, Barrett alleged that that the law firm incorrectly classified him as exempt because he was not yet licensed to practice law in California, as specified in section (3)(a) of the above code section, and therefore did not fall within the parameters of the learned professional exemption to overtime. Barrett argued that the firm was thus obligated to pay him overtime wages and provide other benefits. However, the court held that Barrett was a law school graduate and performed duties that brought him within the exemption for those engaged in the learned professional exemption for overtime. Specifically, the court noted that the code section that “the federal regulations…condition the learned professions exemption under federal law upon completion of an advanced course of education, not licensure,” as set forth in section. Therefore, the fact that Barrett had graduated from law school and was now a “learned professional,” even though he had not yet obtained his license to practice law, was persuasive to the court on the classification issue. Read More.

NLRB Holds It Lacks Authority To Award Backpay To Undocumented Workers

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Published on Friday, 19 August 2011 14:31

The National Labor Relations Board (NRLB) has ruled that a 2002 U.S. Supreme Court decision compels the conclusion that the Board lacks remedial authority to award backpay to undocumented immigrant workers whose rights have been violated under the National Labor Relations Act (NLRA), even in cases where the employee’s illegal status was known to the employer at the time of hire. The NLRB cited language in the Supreme Court decision, Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137(2002), which states, in part, that “awarding backpay to undocumented workers lies beyond the scope of [the Board’s] remedial authority, regardless of whether the employee or employer violated” the Immigration Reform and Control Act of 1986 (IRCA). In addition, the NLRB noted that, “in addition to the obvious failure to make employee-victims whole[,] the Act’s enforcement is undermined, employees are chilled in the exercise of their Section 7 rights, the workforce is fragmented, and a vital check on workplace abuses is removed…We would be willing to consider in a future case any remedy within our statutory powers that would prevent an employer that discriminates against undocumented workers because of their protected activity from being unjustly enriched by its unlawful conduct.” The seven employees in question worked for Mezonos Maven Bakery for up to eight years, and were apparently not asked for documentation when they were hired. The employees were subsequently terminated, allegedly after complaining about their supervisor. Unfair labor practice charges were filed, the parties settled, and the NLRB issued an unpublished Decision and Order. The NLRB ordered Mezonos to offer reinstatement and to make the employees whole for lost wages and benefits. That order was enforced by the United States Court of Appeals for the Second Circuit. However, Mezonos later argued that it could not offer reinstatement or backpay under the Hoffman decision because the workers were undocumented. However, the Administrative Law Judge decided against the employer, finding that in this case (unlike Hoffman), it was not the workers but the employer who violated IRCA by failing to verify their work authorization status. That decision was appealed to the Board, resulting in the current decision. Read More.

HR Practice Pointer: May An Employer Deduct “Cash Shortages” From An Employee’s Wages?

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Published on Friday, 19 August 2011 14:18

In general, pursuant to California and federal law, employers cannot deduct from either an exempt or nonexempt employee’s wages (or require reimbursement), for “cash shortages,” or other losses incurred by the employee while performing their job (See Labor Code sections 221/224). The  theory is that such losses are not the employee’s fault and are thus  a “normal” cost of doing business. However, if the cash shortage or loss is caused by a dishonest, willful, or grossly negligent act of the employee, the employer may deduct the loss from the employee’s wages or seek reimbursement from the employee. It is generally agreed among “employment law experts” that employers should be extremely careful when making any such deductions or requiring reimbursement, as it is often difficult to prove the requisite level of dishonesty, willfulness or gross negligence. Although an employee may be responsible for the cash shortage/loss, if the employee’s conduct does not rise to the level of dishonesty, willfulness, or gross negligence required (for example, the employee was merely negligent), then the cash shortage/loss is considered a business risk the employer assumes as a part of doing business. An employer can lawfully withhold amounts from an employee’s wages only: (1) when required or empowered to do so by state or federal law, or (2) when a deduction is expressly authorized in writing by the employee to cover insurance premiums, benefit plan contributions or other deductions not amounting to a rebate on the employee’s wages, or (3) when a deduction to cover health, welfare, or pension contributions is expressly authorized by a wage or collective bargaining agreement. Wage garnishments are lawful deductions from wages pursuant to Labor Code section 224. Common payroll deductions that employers often make which are unlawful include: (1) gratuities; (2) photographs; (3) bonds; (4) uniforms; (5) business expenses; and, (6) medical or physical examinations. Employers should consult with legal counsel before making any wage deduction based on “losses” caused by an employee. Read More.

DOL Considers Development Of Data Tool To Combat Pay Discrimination

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Published on Tuesday, 16 August 2011 13:48

The U.S. Department of Labor's (DOL) Office of Federal Contract Compliance Programs is considering the development of a new data tool to collect information on salaries, wages and other benefits paid to employees of federal contractors and subcontractors. According to the DOL, “the tool would improve OFCCP's ability to gather data that could be analyzed for indicators of discrimination, such as disparities faced by female and minority workers.” Executive Order 11246 prohibits companies that do business with the federal government from discriminating in employment practices — including compensation — on the basis of sex, race, color, national origin or religion. The data tool would provide OFCCP investigators with “insight into potential pay discrimination warranting further review” and the data tool would “provide a self-assessment element to help employers evaluate the effects of their compensation practices.” According to Secretary of Labor Hilda L. Solis, "Today, almost 50 years after the Equal Pay Act became law, the wage gap has narrowed, but not nearly enough…The president and I are committed to ending pay discrimination once and for all." The Labor Department's Bureau of Labor Statistics reported that in 2010 women earned an average of 77 cents for every dollar paid to men. Public comment on the proposal is encouraged. Read More. 

Terminated Employees Are Not Required To Go To School For Retraining

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Published on Tuesday, 16 August 2011 13:25

A federal court has held that terminated employees have no obligation to go to school for retaining. The case involved Dresser-Rand Company, which attempted to limit damages in a long-standing lawsuit between the U.S. Equal Employment Opportunity Commission (EEOC) and the company. In 2004, the EEOC sued Dresser-Rand for terminating Harry Davis, a Jehovah’s Witness and a manual machine tool operator at one of the company’s facilities, because Davis allegedly refused to work on a part intended for use in a submarine. Dresser-Rand attempted to limit Davis’s back pay damages, arguing that he could have gone to Corning Community College for retraining as a computer machinist. However, the court denied the motion, holding that although employees who are terminated for discriminatory reasons must seek other employment, they are not required to go to school for retraining.  The court held that since Davis had sought and found other  employment, the fact that he did not go to school was irrelevant. The court prevented a defense expert from testifying about the fact that Davis did not go to school. According to EEOC regional attorney, Elizabeth Grossman, “This decision makes the important point that an employee fired for a discriminatory reason is not required to seek retraining or additional education…An employer cannot turn around and argue that its former employee somehow harmed the employer by not seeking retraining after being fired.”  Read More.

Undocumented Worker Cannot Pursue Refusal To Rehire Claim

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Published on Monday, 15 August 2011 08:10

In recent case likely to generate a lot of discussion, the California Court of Appeals, 3rd District, decided the significant question of whether an undocumented worker is entitled to pursue a refusal to rehire claim based on disability discrimination under the Fair Employment and Housing Act (FEHA). The case involves Vicente Salas who worked for Sierra Chemical as a seasonal worker. Sierra Chemical is in the pool chemical business. While working for Sierra Chemical, Salas sustained several injuries to his back and ultimately filed a workers' compensation claim. Salas alleges that when Sierra Chemical recalled him back after a layoff, he was advised that he would have to produce a full release (no restrictions) to work from his physician as Sierra Chemical had a "100% healed policy."  Subsequently, Salas filed suit alleging that Sierra Chemical discriminated against him because of his disability; specifically, the company allegedly failed to engage in the interactive process and to consider a reasonable accommodation, and then retaliated against him for filing a workers' compensation claim. However, subsequent to Salas filing the lawsuit, Sierra Chemical discovered that Salas was using a Social Security number that belonged to a North Carolina resident, and he used the Social Security number on the I-9 and W-4 documents he completed. As part of its defense, Sierra Chemical argued that the company would not have hired Salas if it had known about his undocumented status. The lower court granted a motion for summary judgment filed by the employer, holding that Salas' refusal to hire/disability discrimination lawsuit was barred for two reasons: (1) The "after-acquired evidence" doctrine barred his claim since he had no right to be rehired since Sierra Chemical had a policy of refusing to hire applicants who provided false Social Security numbers; and, (2) the "unclean hands" doctrine because Salas knowingly presented false information about his immigration status in order to secure the job (the case might have been decided differently if Sierra Chemical knew that Salas was an undocumented worker). Salas argued that SB 1818, barred application of after-acquired evidence and the unclean hands doctrine based on his immigration status. SB 1818 provides that undocumented workers are entitled to "all protections, rights, and remedies available under state law." However, on appeal, the court analyzed the facts within the framework of a refusal to hire case, distinguishing it from situations involving harassing or discriminatory conduct that occurs during the course of employment. Significantly, the court held that SB 1818 does not protect undocumented workers who are pursuing a refusal to rehire claim in situations where the worker is undocumented and the employer has a policy of refusing to hire undocumented workers. Interestingly, the case was settled via a compromise and release and it does not appear that a 132a claim was filed. The case may provide a defense to some 132a claims and alleged discriminatory hiring cases, if the employer has a policy of refusing to hire undocumented workers and the employee provided false information about his or her immigration status. It is likely that the case will be appealed to the California Supreme Court. Read More.

Court Holds “Me Too” Evidence Should Have Been Admitted

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Published on Wednesday, 10 August 2011 09:34

In a recent case involving sexual harassment and racial discrimination, an appellate court ruled that the lower court erred in not allowing the jury to hear “me too” evidence, which consists of evidence that the employer engaged in dscriminatory/harassing activity against employees other than the employee who has filed suit alleging the discriminatory/harassing conduct. This case involved a woman who alleged that her employer (an attorney) improperly touched her (including touching her leg while offering her $200), referred to employees as “stupid Mexicans” and called her a “stupid bitch,” and eventually terminated her. The “me too” evidence related to discriminatory/harassing conduct, including the use of profanity, yelling and screaming, and inappropriate touching, which occurred outside the complaining employee’s presence, and at times other than when the employee was employed. At issue was whether the lower court properly excluded this evidence as propensity or character evidence or whether it should have been admitted as evidence of a discriminatory or biased intent or motive. On appeal, the court reversed the lower court, concluding that “the evidence should have been admitted and the failure to do so was prejudicial…we fully recognize and agree that the FEHA is not a civility code and is ‘not designed to rid the workplace of vulgarity’…Attempting to impose a civility code, human nature being what it is, would be an exercise in futility. The plaintiff’s evidence in this case, however, if believed, would be more than “vulgarity” in the workplace.” Read More.

HR Practice Pointer: Employers Must Provide Breaks For Breastfeeding

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Published on Wednesday, 10 August 2011 09:24

Pursuant to California Labor Code section 1030, every employer “shall provide a reasonable amount of break time to accommodate an employee desiring to express breast milk for the employee's infant child. The break time shall, if possible, run concurrently with any break time already provided to the employee. Break time for an employee that does not run concurrently with the rest time authorized for the employee by the applicable wage order of the Industrial Welfare Commission shall be unpaid.” In addition, section 1031 provides that employers must “make reasonable efforts to provide the employee with the use of a room or other location, other than a toilet stall, in close proximity to the employee's work area, for the employee to express milk in private. The room or location may include the place where the employee normally works if it otherwise meets the requirements of this section.” However, an employer is not required to provide this break time if doing so would “seriously disrupt the operations of the employer.”  On a federal level, Rep. Carolyn Maloney (D-NY) and Senator Jeff Merkley (D-OR) recently introduced legislation, the Breastfeeding Promotion Act of 2011 (H.R. 2758; S. 1463),  which would provide civil rights protections to employees who are breastfeeding. The legislation amends both the Fair Labor Standards Act (FLSA) and Title VII of the Civil Rights Act to prohibit employers from discriminating against an employee who breastfeeds while taking a rest or meal period. In a statement regarding the legislation, Maloney commented that: “Public opinion and awareness of the benefits of breastfeeding continue to grow, and the momentum we’ve recently gained presents the perfect
opportunity to build on that progress in achieving our goals,” adding, “The health and economic benefits of breastfeeding cannot be ignored, and the reintroduced Breastfeeding Promotion Act would further encourage and promote breastfeeding by ensuring working moms who choose to breastfeed have the support they need to do so.” Read More.

Court Rules Employer Did Not Commit “Associational Discrimination”

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Published on Tuesday, 09 August 2011 20:53

Associational discrimination is found in a section of the Americans with Disabilities Act, which states that an employer may not exclude or otherwise deny “equal jobs or benefits to a qualified individual because of the known disability of an individual with whom the qualified individual is known to have a relationship or association.” For example, if an employer refuses to hire someone who the employer assumes will have to miss a lot of work or have to leave work early to care for a child suffering from a disability, that constitutes associational discrimination. However, employees are not entitled to a reasonable accommodation based on association discrimination. There are three theories into which “association discrimination” plaintiffs generally fall: (1) expense (the disabled individual associated with the employee is covered under the employer’s health plan and is thereby creating an additional “expense”; (2) disability by association (the employer fears the employee may contract the disease of the person he or she is associated with, such as HIV); and (3) distraction (the employee may be somewhat inattentive at work because of the disability of the person with whom they are associated). However, as a recent case emphasizes, if an employee with a disabled spouse, for example, is hired and “violates a neutral employer policy concerning attendance or tardiness, he or she may be dismissed even if the reason or the absence or tardiness is to care for the spouse.” The case involved Eugene Stansberry, who was terminated by his employer, Air Wisconsin Airlines Corporation, allegedly for poor performance based on Stansberry’s failure to stay within budget, failure to report security violations and
improper supervision of employees. Stansberry claimed that he was terminated because his wife suffered from a rare and debilitating autoimmune disorder, Polyarteritis Nodosa, which required costly medical treatment. The court disagreed, holding that “his discharge was based on actually not performing his job satisfactorily, and not fears that his wife’s disability might prevent him from performing adequately…” Read More.

Employers Must Prevent Sexual Orientation Harassment In The Workplace

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Published on Friday, 05 August 2011 22:29

A recent case involving the California Department of Fair Employment and Housing (DFEH) and Bath & Body Works highlights the fact that employers must implement policies and procedures to prevent discrimination, harassment and retaliation in the workplace, including the prohibition of sexual orientation harassment. In the case, the DFEH announced a $70,000 settlement pertaining to Bath & Body Works, LLC. According to the DFEH, a manager of a Bath & Body Works store harassed her co-manager because of his sexual orientation. The DFEH filed an accusation with the Fair Employment and Housing Commission (FEHC) after investigating a complaint from the co-manager, who alleged that from his first day on the job, “his female supervisor referred to him multiple times a day using slurs based on his sexual orientation, drew pictures of male genitals, which she hung in the store’s back room, told his co-workers that he liked kissing boys, and falsely claimed that his attitude was affecting the work environment.” The DFEH also alleged that even though another store manager witnessed the harassment and the co-manager complained to the district manager, the company failed to stop the harassment, thereby forcing the co-manager to eventually quit. In addition to the $70,000 settlement,  Bath & Body Works, LLC has agreed to provide discrimination and harassment prevention training to its supervisors and managers, and provide training to all new hires within 60 business days of hire, display posters informing employees of their right to report discrimination to the DFEH, and retain copies of all complaints of discrimination and harassment made by employees alleging a violation of the Fair Employment and Housing Act. Bath & Body works denies any wrongdoing. According to DFEH Director Phyllis Cheng, “This compelling case should remind employers that they must have policies in place to prohibit discrimination and harassment against employees—and employ managers who can enforce those policies.” Read More. 

EEOC Alleges Employer Failed to Provide Medical Leave Accommodation

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Published on Wednesday, 03 August 2011 18:53

As demonstrated by a recent case, medical leaves of absence can be a reasonable accommodation depending on the particular situation. The case involves Pepsi Bottling Group, Inc. (Pepsi), and their agreement to pay $120,000, in addition to implementing preventive measures, to settle a disability discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC). The agency alleged that  Pepsi terminated Eldridge Davis, a driver at one of its facilities, for alleged job abandonment and violation of Pepsi’s attendance policy,  even though Davis had allegedly followed proper procedure to inform his supervisor and the company that he could not finish his route due to his disability and needed to take medical leave. According to EEOC San Francisco Regional Attorney William R. Tamayo, “Medical leave is a widely recognized accommodation, and in Mr. Davis’s case, could easily have been granted, avoiding the loss of a valuable and experienced employee...Since recent amendments to the ADA have broadened the definition of disability, forward-thinking employers may want to re-evaluate their policies on workplace accommodations. Studies show that  reasonable accommodations are frequently no-or low-cost, with the added benefit of improving productivity and morale, reducing turnover and building a diverse and loyal work force.” Read More.

OSHA Announces Measures to “Improve Whistleblower Protection Program”

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Published on Tuesday, 02 August 2011 19:50

Employers should take note that the U.S. Department of Labor's Occupational Safety and Health Administration (OSHA) announced it is “implementing additional measures to strengthen the program and is releasing an internal report detailing a recent top-to-bottom review of the program.” OSHA enforces the whistleblower provisions of various statutes protecting employees who report violations of workplace safety, airline, commercial motor carrier, consumer product, environmental, financial reform, food safety, health care reform, nuclear, pipeline, public transportation agency, railroad, maritime and securities laws. According to OSHA Assistant Secretary Dr. David Michaels, "The ability of workers to speak out and exercise their legal rights without fear of retaliation is crucial to many of the legal protections and safeguards that all Americans value…The new measures will significantly strengthen OSHA's enforcement of the 21 whistleblower laws that Congress charged OSHA with administering."  The changes include holding a national “whistleblower training conference” in addition to several other training events; issuing a new edition of the “Whistleblower investigation Manual” that updates current procedures and has information on new laws; and, modifying its data collection system. The whistleblower laws prohibit employers from retaliating against employees who raise various protected concerns or provide protected information to the employer or to the government. Twenty-one whistleblower statutes are enforced by OSHA. Read More.

EEOC Files Multiple Disability Discrimination Lawsuits

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Published on Tuesday, 02 August 2011 19:23

The Equal Employment Opportunity Commission (EEOC) recently filed the following disability discrimination lawsuits: (1) According to the EEOC, J.A. Thomas & Associates, a health care consulting company violated the Americans With Disabilities Act (ADA) when it refused to rehire an employee for a position she previously held because of a disability. The EEOC alleges that the woman, who is a double amputee, was forced to resign her position with the company because she was unable to relocate to Georgia due to her disability. However, the EEOC contends that the woman would have been able to perform her job from home, as she requested. After nearly six months of leaving the position unfilled, the company allegedly made the position a remote/at-home position, which was what the woman had requested before resigning. When the woman inquired about rehire, she was allegedly advised by the company, that because they were concerned about her disability, they had hired another candidate. (2) In the next lawsuit, the EEOC alleges that the Area IV Senior Citizens Planning Council, Inc., violated the law by allegedly regarding an employee suffering with cancer as disabled and terminating her for that reason. According to the EEOC’s complaint, Area IV terminated the woman in 2008 when she sought to return to work after surgery for colon cancer. The EEOC alleges that the woman was fully able to perform her duties as a kitchen assistant. According to the EEOC, in terminating the woman, Area IV cited possible symptoms that could result from her course of chemotherapy treatments. (3) In the final case detailed here, the EEOC charged that JES Personnel Consultants, Inc., committed disability discrimination when it allegedly refused to allow an employee to return to work because of his epilepsy. The EEOC’s pre-suit investigation indicated that Genie, a temp agency, had placed the employee with Clover Technologies Group, LLC, where he unpacked and sorted ink cartridges. After he had a brief epileptic seizure on his first day of work, according to Rowe, Clover allowed him to work the rest of the day, but asked him to provide a note from his doctor authorizing him to return to work after that. The EEOC said that the employee provided the note to Genie the next day, and Genie neither advised him that the note was inadequate nor forwarded the note to Clover, but the employee was not permitted to return and was effectively terminated. Read More.

EEOC Issues Guidance on Impact of GINA on Employer Wellness Program

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Published on Monday, 01 August 2011 17:07

The Equal Employment Opportunity Commission (EEOC) has issued an opinion letter regarding the impact of the Genetic Information Nondiscrimination Act (GINA) on employer wellness programs. GINA restricts the ability of heath care insurers and employers to request, require or purchase genetic information about employees, although there are six exceptions. The question presented to the EEOC was whether health surveys and other types of questionnaires which seek information about an employee’s family medical history as part of an employer wellness program violate GINA. In response to the inquiry, the EEOC noted that one exception to GINA allows employers to “acquire genetic information about an employee or his or her family members when it offers health or genetic services, including wellness programs, on a voluntary basis. The individual receiving the services must give prior voluntary, knowing, and written authorization. While individualized genetic information may be provided to the individual receiving the services and to this or her health or genetic service providers, genetic information may only be provided to the employer or other covered entity in aggregate form.” The EEOC also noted that employers may not offer financial inducements for employees to provide genetic information as part of a wellness program. However, the final rule specifies that an employer may offer a financial inducement for completing a health risk assessment as part of a wellness program which contains questions about genetic information as long as the employer identifies such questions and informs the employee that he or she does not have to provide genetic information in order to receive the financial inducement. Read More.

HR Practice Pointer: What is a Domestic Partnership?

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Published on Friday, 29 July 2011 22:42

Pursuant to California law, certain legal rights are granted to same-sex partners and opposite-sex seniors who are not married. These couples are called registered domestic partners. A domestic partnership is established in California when both persons file a Declaration of Domestic Partnership with the Secretary of State, provided, at the time of filing, all of the following requirements are met: (1) Both persons share a common residence; (2) Neither person is married to someone else or is a member of another domestic partnership with someone else that has not been terminated, dissolved, or adjudged a nullity; (3) The two persons are not related by blood in a way that would prevent them from being married to each other in this state; (4) Both persons are at least 18 years of age; (5) Either of the following: (A) Both persons are members of the same sex. (B) One or both of the persons meet the eligibility criteria under Title II of the Social Security Act as defined in 42 U.S.C. Section 402(a) for old-age insurance benefits or Title XVI of the Social Security Act as defined in 42 U.S.C. Section 1381 for aged individuals. Notwithstanding any other provision of this section, persons of opposite sexes may not constitute a domestic partnership unless one or both of the persons are over the age of 62; (6) Both persons are capable of consenting to the domestic partnership. Registered domestic partners shall have the same rights, protections, and benefits, and shall be subject to the same responsibilities, obligations, and duties under law, whether they derive from statutes, administrative regulations, court rules, government policies, common law, or any other provisions or sources of law, as are granted to and imposed upon spouses. Read More. 

May A Defendant Employer Recover Attorney’s Fees in a Discrimination Case?

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Published on Friday, 29 July 2011 22:01

Pursuant to 42 U.S.C. Section 1988, in cases alleging discrimination, harassment, retaliation and violations of civil rights, a court may award attorney fees to a defendant employer upon a finding that the plaintiff’s action was “frivolous, unreasonable, or without foundation.” In a recent case, the U.S. Supreme Court decided the question of whether the defendant employer can recover attorney fees under Section 1988 if just some of the claims are frivolous, in other words the case involves both frivolous and non-frivolous claims. Addressing this point, the Court observed that “When a plaintiff’s suit involves both frivolous and non-frivolous claims, a court may grant reasonable fees to the defendant, but only for costs that the defendant would not have incurred but for the frivolous claims. The Court emphasized “But if the defendant would have incurred those fees anyway, to defend against non-frivolous claims, then a court has no basis for transferring the expense to the plaintiff. Suppose, for example, that a defendant’s attorney conducts a deposition on matters relevant to both a frivolous and a non-frivolous claim—and more, that the lawyer would have taken and committed the same time to this deposition even if the case had involved only the non-frivolous allegation. In that circumstance, the work does not implicate Congress’s reason for allowing defendants to collect fees. The defendant would have incurred the expense in any event; he has suffered no incremental harm from the frivolous claim. In short, the defendant has never shouldered the burden that Congress, in enacting §1988, wanted to relieve. The basic American Rule thus continues to operate.” Read More.

Taco Bell Restaurant Sued For Religious Discrimination

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Published on Thursday, 28 July 2011 19:20

A chain of Taco Bell restaurants in eastern North Carolina has been sued by the Equal Employment Opportunity Commission (EEOC) for allegedly failing to accommodate an employee’s religious beliefs and then subsequently terminating him because of his religion. According to the EEOC’s lawsuit, Christopher Abbey is a practicing Nazirite who, due to his religious beliefs, has not cut his hair since he was 15 years old. Abbey had worked at a Taco Bell restaurant in Fayetteville, N.C., since 2004. However, around April 2010, Taco Bell informed Abbey, who was 25 at the time, that he had to cut his hair in order to comply with its grooming policy. When Abbey explained that he could not cut his hair because of his religion, the company allegedly advised Abbey that unless he cut his hair, he could no longer continue to work at the restaurant. Title VII of the Civil Rights Act of 1964, requires employers to attempt to make reasonable accommodations to sincerely held religious beliefs of employees as long as doing so does not pose an undue hardship on the employer. The EEOC is seeking back pay, reinstatement, compensatory damages and punitive damages for Abbey, as well as injunctive relief. According to Lynette A. Barnes, regional attorney for the EEOC, “Many decision makers seem to forget that they must work with an employee to agree upon a reasonable accommodation that will suit everyone’s needs and rights...This case once again demonstrates the EEOC’s commitment to fighting religious discrimination in the workplace.” Read More.

Employer Will Pay $335,000 to Settle Age Discrimination Lawsuit

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Published on Wednesday, 27 July 2011 13:00

Rsource Real Estate Management, Inc., (Resource Residential), will pay $335,000 to settle an age discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC). According to the EEOC, Resource Residential, a property management company that manages over 12,000 units at multi-family properties in at least 15 states, allegedly terminated three management-level employees, ages 53, 60 and 64, due to their age, and subsequently hired “14 employees under the age of 40 to support its effort to create a younger image.” Discrimination based on age is a violation of the Age Discrimination in Employment Act (ADEA). In addition to the monetary relief of $335,000, the company must provide equal employment opportunity training, reporting, and anti-discrimination postings. Resource Residential denies any liability or wrongdoing. Bernice Williams-Kimbrough, director of the EEOC’s Atlanta District Office, stated that “We are glad to see this matter settled without protracted litigation...Employers should expect that whenever an employee's civil rights are violated, the EEOC will protect those rights.” Read More.

EEOC Examines Implications of Workplace Background Checks

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Published on Wednesday, 27 July 2011 12:24

The Equal Employment Opportunity Commission (EEOC) conducted a meeting regarding the implications of background checks, particularly those related to arrest and conviction records, on employer hiring practices. The meeting was intended to identify and highlight employers’ best practices, including the ways in which arrest and conviction records have been used appropriately, in addition to examining current legal standards. The EEOC reported that experts at the meeting emphasized that “Employers often refuse to hire people with arrest and conviction records even years after they have completed their sentences, leading to recidivism and higher social services costs.” The EEOC also reported that “Victoria Kane, an attorney with the hospitality group Portfolio Hotels & Resorts, related best practices that her company has initiated to increase the hiring and retention of people with arrest and conviction records. She urged employers to develop and implement a ‘responsible business plan’ and overcome ‘fears, biases and hiring challenges’ in order to facilitate hiring people with arrest and conviction records. Robert H. Shriver, III, Senior Policy Counsel for the Office of Personnel Management, told the Commission that, contrary to what some believe, having an arrest or conviction record does not automatically mean that a person cannot work for the federal government. Federal regulations permit agencies to consider each applicant’s unique situation...Barry A. Hartstein, a shareholder in the law firm of Littler Mendelson, who has extensive experience counseling companies in employment law, detailed to the Commission the confusing and often contradictory pressures on businesses when using arrest and conviction records in making employment decisions, including conflicting laws. Hartstein urged the Commission to consider these constraints on businesses, especially small businesses, in developing guidance or in deciding whether to pursue litigation in certain cases.” Read More.

Legislation Approved to Prevent NLRB From Dictating Location of Jobs

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Published on Friday, 22 July 2011 05:47

On July 21, 2011, the House Committee on Education and the Workforce approved a bill (the Protecting Jobs from Government Interference Act) by a vote of 23-16 along party lines. The bill prohibits the National Labor Relations Board (NLRB) from ordering where a private business can and cannot locate jobs in the United States. The bill was proposed in response to a complaint filed by the NLRB against the Boeing Company for creating work in South Carolina. The NLRB has demanded that the work be transferred to Puget Sound, Qashington. Sponsors of the bill noted that According to Rep. Scott, sponsor of the legislation,  “If the NLRB is allowed to continue down this path, not only will the economy in my home state of South Carolina be affected, but the entire national economy as well…We must encourage companies to create jobs at home here in America and not overseas, and my legislation will remove the ability of an unelected government board to stand in the way of American job creation.” The legislation amends the NLRB to prohibit agency from ordering any employer to relocate, shut down, or transfer an employee. Read More.

HR Practice Pointer: What is a BFOQ?

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Published on Thursday, 21 July 2011 10:04

A BFOQ is an acronym for Bona Fide Occupational Qualification. The term is explained in Title VII, which provides that in very limited situations an employer may discriminate on the basis of “religion, sex, or national origin in those instances where religion, sex, or national origin is a bona fide occupational qualification reasonably necessary to the normal business operation of the particular business or enterprise” [emphasis added], and the employer will have the burden of proof on this issue. The exception does not include race but has been extended to age pursuant to the Age Discrimination in Employment Act (ADEA).  Whether a workplace policy is sufficient to establish a BFOQ must be determined on a case by case basis. A careful review of the job’s particular nature and the duties it involves will be required. For example, the Equal Employment Opportunity Commission (EEOC) was asked to provide an opinion regarding whether sex can be a BFOQ for a psychotherapist when “[a] treating clinician/psychiatrist strongly recommends as patient treatment, that the patient be cared for by female staff, due to multiple mental disability diagnoses and abuse (patient’s negative reaction to males is believed to be a factor that will hinder her treatment program).” In response to this inquiry, the EEOC noted that although Title VII permits a gender based assignment if it is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business, the “BFOQ exception is very narrow and applies only in limited circumstances…Under this standard, an individual cannot be excluded because of sex unless that individual’s sex prevents him or her from being able to safely or efficiently perform job-related activities that fall within the ‘essence’ of the employer’s business.” Read More.

HR Practice Pointer: Holiday Pay

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Published on Tuesday, 19 July 2011 09:24

Hours worked on holidays, Saturdays, and Sundays are treated like hours worked on any other day of the week. California law does not require that an employer provide its employees with paid holidays, that it close its business on any particular holiday, or that employees be given the day off for any particular holiday. If an employer chooses to close its business on holidays and gives its employees time off from work with pay, such practice is pursuant to the employer's own policy, the terms of a collective bargaining agreement, or the terms of an employment agreement between the employer and employee, as there is nothing in the law that requires such a practice. Further, there is nothing in the law that requires an employer to pay an employee a special premium for work performed on a holiday, Saturday, or Sunday, other than the overtime premium
required for work performed in excess of eight hours in a workday or 40 hours in a workweek. If an employer decides to provide paid holidays, the employer selects the holidays to be offered, in addition to eligibility requirements. Exempt employees are entitled to compensation if they are ready, willing and able to work on a holiday, but no work is available (i.e. the company is closed for the holiday). Employers typically grant the following holidays: New Year's Day; President's Day; Memorial Day; Fourth of July: Labor Day; Thanksgiving; Friday after Thanksgiving; and, Christmas. The employer's policy on holidays should be set forth in the employee handbook. Read More.

HR Practice Pointer: An Overview of Meal Period Requirements

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Published on Tuesday, 19 July 2011 09:18

In California, an employer may not employ an employee for a work period of more than five hours per day without providing the employee with a meal period of at least thirty minutes. However, if the total work period per day of the employee is no more than six hours, the meal period may be waived by mutual consent of both the employer and employee. The waiver should be in writing and signed by both the employer and employee. A second meal period of at least thirty minutes is required if an employee works more than ten hours per day. However, if the total hours worked is no more than 12 hours, the second meal period may be waived by mutual consent of the employer and employee only if the first meal period was not waived. This waiver should also be in writing and signed by both the employee and employer. If the employee is not relieved of all duty during his or her meal period, then the meal period shall be considered an "on duty" meal period, which is counted as hours worked and must be compensated at the employee's regular rate of pay. On duty meal periods are permitted only when the nature of the work prevents an employee from being relieved of all duty and when by written agreement between the employer and employee an on-the-job paid meal period is agreed to. The written agreement must state that the employee may, in writing, revoke the agreement at any time. An employer and employee may not agree to an on-duty meal period unless, based on objective criteria, any employee would be prevented from being relieved of all duty based on the necessary job duties. Some examples of jobs that fit this category are a sole worker in an all-night convenience store, and a security guard stationed alone at a remote site. Finally, if an employer requires an employee to remain at the work site during a meal period, the meal period must be paid, since the employee remains under the employer's control. This is true even if the employee is relieved of all work duties during the meal period. Bono Enterprises, Inc. v. Bradshaw (1995) 32 Cal.App.4th 968. Read More.

HR Practice Pointer: Split-Shift Pay

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Published on Tuesday, 19 July 2011 09:12

A "shift" refers to designated hours of work by an employee with a specific beginning and ending time. A "split-shift" refers to a work schedule which is interrupted by non-working periods established by the employer other than bona fide meal and rest periods. For example, an employee who is scheduled to work 8 to noon and 3 to 7, is working a split shift. If there is more than one hour between the shifts, the employee is entitled to at least one hour's pay at no less than the minimum wage. If the employee earns more than the minimum wage, then any amount above minimum wage can be used to offset the split shift pay. Further, as confirmed by a recent California appellate court decision, employees who are working consecutive overnight shifts that are not interrupted by unpaid, nonworking periods are not working a split shift, as defined in the Industrial
Wage Commission's Wage Order No. 4-2001 (Cal. Code Regs., tit. 8, § 11040). In that case, security guards worked night shifts that began one calendar day and ended the next, sometimes in excess of eight hours. They filed a class action against their employer, Securitas, alleging that the company failed to pay mandatory split-shift pay. However, Securitas argued that an uninterrupted work shit that continues through midnight and thus falls in two calendar days and two workdays is not a split shift. On appeal, the court agreed emphasizing that "the fact that a single continuous shift happens to begin during one 'workday' and end in another does not result in a 'split shift.'" Read More.

Cavalier Telephone Will Pay $1 Million to Settle Age Discrimination Lawsuit

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Published on Tuesday, 19 July 2011 08:55

Cavalier Telephone Company Inc. has agreed to pay $1 million to settle an age discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC). According to the EEOC, from around May 2003 and continuing, Cavalier Telephone’s mid-Atlantic region engaged in a practice of not hiring applicants age 40 or older for sales account executive positions. The EEOC alleged that Cavalier indicated both verbally and in writing that the company was looking for candidates for its sales positions who were “recent college graduates,” and in their “early 20s or 30s.” Cavalier also allegedly offered its employees a $500 bonus for referral of a “friend’s younger brother and sister.” The EEOC charged that as a result of the recruitment and hiring practices, Cavalier’s work force underrepresented people age 40 or older in its sales positions within its
mid-Atlantic region. The EEOC’s complaint also included the claims of two individuals who claimed that they were retaliated against for complaining about the alleged discriminatory hiring practices. According to the  EEOC, one of the demoted employees resigned from Cavalier while the other continued to complain about age discrimination, but was eventually terminated. EEOC General Counsel P. David Lopez commented that  “Cavalier Telephone’s hiring practices penalized older applicants simply because of their age and that is illegal...I am pleased that we were able to work out a resolution of this suit that provides relief for the victims of discrimination and brings the company’s practices into compliance with the law.” Read More.

Court Finds Abercrombie & Fitch Committed Religious Discrimination

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Published on Monday, 18 July 2011 19:58

A federal court has agreed with the U.S. Equal Employment Opportunity Commission (EEOC) that Abercrombie & Fitch committed religious discrimination against a 17-year-old Muslim girl. According to the EEOC, Abercrombie Kids failed to hire Samantha Elauf for a sales position because she wore a hijab (head scarf) in observance of her religious beliefs. More specifically, the EEOC alleged that Abercrombie Kids refused to hire Elauf for a position at one of its stores because she was wearing the hijab when she was interviewed, and this apparently violated the company’s “look policy” which prohibits the wearing of any head coverings. Abercrombie asserted that permitting Elauf to wear a hijab would cause an undue burden on the conduct of its business. Title VII of the Civil Rights Act of 1964, as amended, protects workers from discrimination based upon religion. This includes disparate treatment, harassment and segregation of employees based on religion. Title VII requires employers to provide reasonable accommodations for the religious practices of its applicants and employees unless doing so would pose an undue hardship. Barbara A. Seely, regional attorney for the EEOC, commented that “Samantha is a typical American teenager who has a sincere religious belief that she must wear a head scarf. Employers need to understand their obligation to balance employees’ needs and rights to practice their religion with the conduct of their business. Where there is a minimal impact on the business, those religious needs must be accommodated.” Read More.

Court Denies Plaintiff/Employee’s Request for Information About Co-Workers

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Published on Monday, 18 July 2011 19:53

Timothy Joyce filed a lawsuit against his former employer, Life Technologies Corporation (LTC) for wrongful termination alleging that he was discriminated against on the basis of his age and then retaliated against because he complained about such discrimination. During the discovery phase of his lawsuit, Joyce successfully moved to compel further answers to special interrogatories which sought detailed information about other employees/former employees. Joyce argued that he needed this information to prove his disparate treatment and disparate impact claims. LTC refused to answer the questions arguing that the information sought by the plaintiff was irrelevant, unlikely to lead to admissible evidence, and infringed upon the privacy rights of the third party employees/former employees. On appeal from an order requiring LTC to answer the questions, the appellate court concluded that the “trial court did not adequately consider, or provide procedural protections for, the
substantial privacy interests of the third party employees/former employees. Accordingly, we will issue a peremptory writ directing the court to vacate its order compelling further answers to the challenged interrogatories and reconsider Joyce’s motion in light of our opinion.” In his complaint, Joyce, who is a patent attorney, alleged that his supervisor instructed him to “manage out” two women who were over forty by documenting them with negative performance reviews, but he refused to do so. Subsequently, Joyce was allegedly told by a co-worker that he was on a “hit list” for termination and that performance issues would be fabricated. Eventually Joyce was terminated for alleged “poor performance.”  Read More.

Subcommittee Examines Impact of the FLSA on the Modern Workforce

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Published on Friday, 15 July 2011 18:22

On July 14, 2011, the Subcommittee on Workforce Protections, chaired by Rep. Tim Walberg (R-MI), held a hearing entitled, “The Fair Labor Standards Act: Is It Meeting the Needs of the Twenty-First Century Workplace?” The Education and the Workforce Committee is charged with examining federal laws, rules, and regulations, including looking at their impact on the economy, job creation, and taxpayers. These laws include the Fair Labor Standards Act (FLSA), which covers federal employment rules such as minimum wages,  maximum hours, and overtime pay. According to the Department of Labor (DOL), more than 130 million workers are impacted by the FLSA. However, the subcommittee conducted the hearing due to growing concern that the FLSA is “largely outdated and does not accurately reflect the realities of modern technology or today’s economy. The law has also created an environment of uncertainty with employers facing a patchwork of conflicting interpretations of the law and employees facing difficulty understanding their rights under the law.” During the meeting, Rep. Walberg commented that “In recent years, the law has caused a number of challenges for employers. A long history of regulations and judicial rulings has created ambiguity and uncertainty for employers who attempt to follow its every detail. This burden falls especially hard on small business owners, who typically lackthe expertise needed to understand the full scope of the law. As a result, an employer’s good intentions could leave him susceptible to costly legal challenges.”

Employer Must Comply With EEOC Subpoena in Sex Bias Case

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Published on Thursday, 14 July 2011 21:30

The U.S. Court of Appeals for the Eighth Circuit has ordered a Minnesota-based frozen food delivery company, Schwan’s Home Service, to comply with a subpoena issued by the U.S. Equal Employment Opportunity Commission (EEOC). The EEOC issued the subpoena in order to obtain information in a sex discrimination case. Specifically, the subpoena requested that the employer provide the basic categories of personnel information regarding employees who manage its facilities nationwide. The EEOC has been investigating charges of sex discrimination against the employer for four years. The charges were filed by a former employee who alleged that she was discriminated against on the basis of gender and subjected to sexual harassment and retaliation during her employment. In opposing the subpoena, Schwan’s has accused the EEOC of conducting a “fishing expedition” and has even suggested the EEOC may be engaging in  misconduct. John Rowe, who is director of the EEOC’s Chicago District, commented that “Today’s events signal, once again, that we do not issue subpoenas unless we are prepared to make them stick. The court has said, just as the two before it did, that the EEOC is on solid legal footing in going after information it deems relevant during an investigation of systemic job bias—even if the entire matter began with a single individual discrimination charge.” Read More.

Retaliation Complaints Increase Among Federal Employees

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Published on Friday, 08 July 2011 19:35

According to the Equal Employment Opportunity Commission (EEOC) federal employees and applicants filed 17,583 complaints of employment discrimination during fiscal year 2010, a 3.75 percent increase over the previous year. This information is part of the EEOC’s Annual Report on the Federal Work Force Part I: EEO Complaints Processing for Fiscal Year 2010. The report assesses federal agencies’ equal employment opportunity complaints program statistics. Similar to private sector charges of discrimination, retaliation remains a significant problem in the federal workplace and was the most common allegation of discrimination, registering a 2.7 percent increase over the prior fiscal year. Age and race (African-American) discrimination were the next most frequently alleged complaints with each registering 5.1 percent increases. Part II of the
report, which assesses equal employment opportunity throughout the federal work force, including trends in work force composition, will be published by the EEOC later this year. Read More.

Target Will Pay $160,000 For Disability Discrimination

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Published on Wednesday, 06 July 2011 07:38

Target Corporation (Target) has agreed to pay $160,000 to settle a disability discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC). The EEOC alleged that Target refused to provide a reasonable accommodation for a cart attendant with cerebral palsy at one of its stores in Orange County, California. According to the EEOC, Target hired Jeremy Schott in 2002 as a part-time stocker. By 2003, Schott was referred to as the “Target Hero of the Month” and transferred to a cart attendant position at his request. Schott suffers from cerebral palsy, limited intellectual functioning and a seizure disorder. His disabilities require that he be reminded to perform certain tasks and that a job coach assist at times with his duties and job-related meetings. However, the EEOC asserted that Schott was able to perform the essential functions of the job with the accommodation of a job coach. The EEOC also charged that although Schott succeeded early on with the assistance of a job coach and task reminders, Target later allegedly failed to ensure the presence of a job coach during work-related and job performance meetings. In addition the EEOC alleged that following a 2004 medical leave of absence due to a seizure, Schott’s work hours were decreased dramatically, sometimes down to only eight hours per week. Read More.

A Brief History of Title VII

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Published on Tuesday, 05 July 2011 02:21

At 7:40 on the evening of June 19, after the longest debate in its nearly 180-year history (534 hours), the U.S. Senate passed the Civil Rights Act of 1964. The vote in favor of the bill was 73 to 27. Thirteen days later, on July 2, the U.S. House of Representatives passed the bill and President Lyndon B. Johnson signed it into law that evening. Five hundred amendments were made to the bill. The Civil Rights Act of 1964 was a landmark piece of legislation in that it prohibited discrimination against blacks and women. It also ended unequal application of voter registration requirements and racial segregation in schools, at the workplace and by facilities that served the general public. One significant section of the Act, referred to as Title VII, prohibits employment discrimination based on race, sex, color, religion and national origin. Title VII applies to private employers, labor unions  and employment agencies. The Act prohibits discrimination in recruitment, hiring, wages, assignment, promotions, benefits, discipline, discharge, layoffs and almost every aspect of employment. Title VII of the Civil Rights Act of 1964 also created the U.S .Equal Employment Opportunity Commission (EEOC), a five-member, bipartisan commission formed to ensure equal opportunity in the workplace. The law provides that the Commissioners, no more than three of whom may be from the same political party, are appointed to five-year terms by the President and confirmed by the Senate. The Chairman of the agency appoints the General Counsel. The EEOC began operating on July 2, 1965 --one year after Title VII's enactment into law. Read More.

Choosing Between “Accommodation” Leave and Other Types of Accommodations

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Published on Tuesday, 05 July 2011 01:09

In general, employers may need to offer a reasonable accommodation to a disabled employee who is having  difficulty performing the essential functions of his or her job. A medical leave of absence is one type of accommodation that may be required (hereinafter referred to as “accommodation” leave). When more than one reasonable accommodation is possible, although an employer should give primary consideration to the disabled employee’s choice of accommodation, the employee may ultimately choose the accommodation that is less costly or burdensome to implement, provided it is effective. The Equal Employment Opportunity Commission (EEOC) states that an employer may offer an accommodation that enables an employee to work in lieu of leave, if the accommodation allows the employee to meet their medical needs. Thus, in its Reasonable Accommodation Guidance, the EEOC provides an example of a situation in which an employee asked for ten weeks of leave for surgery and recuperation related to a disability, but said that he could return after seven weeks if, during his first three weeks back, marginal functions that required excessive walking were removed. The EEOC concluded that this accommodation would be effective. However, alternatively an employer’s proposal to provide certain equipment for an employee as an alternative to granting her leave to have surgery for a disability that has worsened would not be effective. Nor may an employer require an individual who is entitled to leave under the Family and Medical Leave Act to accept an accommodation in lieu of leave. Read More.

U.S. Supreme Court Holds California Overtime Laws Apply to Non-Residents

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Published on Saturday, 02 July 2011 10:21

In a much anticipated decision, with far reaching implications, the U.S. Supreme Court has ruled in Sullivan v. Oracle, that California employers must follow the state's laws on overtime pay for out-of-state residents. California requires overtime of time-and-a-half for all hours worked above eight in a workday, and forty in a week. Oracle, a software company located in the San Francisco Bay area, argued that it should be able to pay employees under the less-generous overtime laws of their home states for work done in California. The decision affects thousands of nonresident employees, and could be expanded to include out-or-state companies that operate in California. The unanimous decision may also subject multistate employers to wage and hour class actions under California law. Although the ruling only refers to overtime requirements, it could be read to cover other wage and hour requirements in California such as state-mandated minimum wages and break periods. The lawsuit was filed by three employees who are residents of Colorado and Arizona. Their job duties for Oracle require traveling between states to conduct training for customers on using Oracle products. Arizona does not have a daily overtime requirement and Colorado requires overtime after 12 hours in a workday. In its decision, the Court emphasized that California’s overtime laws apply to “any work” beyond eight hours in a day performed by “all individuals” who are employed in the state. Justice Kathryn Mickle Werdegar commented that California’s overtime laws "serve important public policy goals, such as protecting the health and safety of workers and the general public, protecting employees in a relatively weak bargaining position from the evils associated with overwork, and expanding the job market." Read More. 

Court Holds Employer May Not Interfere With Employee’s First Amendment Rights

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Published on Monday, 27 June 2011 14:58

An employer may not interfere with the First Amendment rights of an employee unless there is evidence that the employee’s actions have actually disrupted the workplace or are reasonably likely to do so in the future. In a recent case, Kathleen Nichols, a former employee of the Washoe County School District (“District”), was allegedly forced to take early retirement after attending a school board meeting at which her boss was fired. The District claimed it was concerned that her association with her former boss would create conflicts in the office. Apparently, the triggering factor in the District’s action was Nichols’s decision to sit next to her boss at the public board meeting, even though she did not speak to him. Nichols subsequently sued the District for a violation of her First Amendment rights. The district court granted summary judgment in favor of the District and Nichols appealed. On appeal, the court reversed holding that “because the District produced no evidence that Nichols’s association with her boss actually disrupted the office or her performance, or reasonably threatened to cause future disruption, the District has failed to show that its interests in workplace efficiency outweigh Nichols’s First Amendment interests.” Read More...

What is “Paid Family Leave”?

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Published on Friday, 24 June 2011 18:21

The California Paid Family Leave law is essentially an “insurance” program that provides up to six (6) weeks of paid benefits to eligible workers who suffer a wage loss when they take time off work to care for a seriously ill child, spouse, parent or domestic partner, or to bond with a new child. The program is administered by the California Employment Development Department (EDD) and financed by worker contributions through mandatory payroll taxes (Family Temporary Disability Insurance (FTDI)). However, the right to receive Paid Family Leave does not guarantee workers with the right to take time off, nor does it guarantee reinstatement. Thus, this type of leave is different than leave pursuant to the Family and Medical Leave Act/California Family Rights Act which allow eligible workers to take up to 12 workweeks of unpaid leave from their jobs in a 12-month period to care for themselves or family members who are ill. Paid Family Leave is completely separate from either of these laws. Employers are required to provide the Paid Family Leave, DE 2511 brochure, to new employees and employees who request leave to care for a seriously ill family member or bond with a new child (available at:www.edd.ca.gov). However, employers are not required to provide the Paid Family Leave insurance claim forms to their employees. Read More...

Employer Must Pay More Than $467,000 For Age Discrimination

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Published on Monday, 11 April 2011 07:00

A federal judge has entered a consent decree requiring the Minnesota Department of Human Services (DHS) to pay $467,165 to resolve an age discrimination case filed by the U.S. Equal Employment Opportunity Commission (EEOC). The consent decree entered by District Court Judge David S. Doty requires DHS to pay $467,165 to 29 employees who were allegedly denied employer contributions for retiree health and dental insurance because they were older than age 55 at the time that they retired. The DHS must also offer to pay future premium costs for persons who would still be entitled to receive them but for the unlawful early retirement provision. In its lawsuit against DHS, the EEOC charged that the incentive plans contained in collective bargaining agreements for certain DHS employees violated the Age Discrimination in Employment Act (ADEA) because the incentive plan denied the employer contributions for premiums to persons over a certain age. In an earlier lawsuit involving the same incentive plans, U.S. District Court Judge Paul A. Magnuson held that the early retirement incentives are "facially discriminatory, and, as such, violate the ADEA." According to John Hendrickson, the EEOCs regional attorney in Chicago, "The EEOC litigated and won on the issue of the illegality of this incentive plan...We will continue to be on the lookout for similar plans, which essentially end up punishing people who want to work after a certain age."...

OSHA Seeks Comments on Proposed Updates to Reporting Requirements

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Published on Friday, 24 June 2011 18:18

The Occupational Safety and Health Administration (OSHA) is seeking public comment on proposed rulemaking update and revision of two aspects of the agency's recordkeeping and reporting requirements for work-related injuries and illnesses. Dr. David Michaels, Assistant Secretary of Labor for Occupational Safety and Health, commented that "These proposed recordkeeping updates will better enable OSHA, employers and workers to identify hazards in high-risk worksites…The proposed reporting revisions will enable OSHA to more effectively and efficiently target occupational safety and health hazards, preventing additional injuries and fatalities." Pursuant to the proposal, employers must report to OSHA any work-related fatalities and all in-patient hospitalizations within eight hours, and work-related amputations within 24 hours. Reporting amputations is not required under the current regulation. OSHA is also proposing to update Appendix A of the recordkeeping rule (Part 1904 Subpart B). Appendix A lists industries that are partially exempt from the requirements to maintain work-related injury or illness logs. These industries are entitled to partial exemption because of their relatively low injury and illness rates. Read More...

Senator Reintroduces Arbitration Bill

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Published on Tuesday, 21 June 2011 18:41

U.S. Senator Jeff Sessions (R-AL), a senior member of the Senate Judiciary Committee, has reintroduced the Fair Arbitration Act (S. 1186), a bill which would add certain due process rights to pre-dispute arbitration agreements. For example, the agreement must clearly state whether it is binding or not, provide that the parties have the right to their own counsel (at their own expense) and allow for each party to conduct discovery, present evidence and cross-examine witnesses. In introducing the legislation, Sessions made the following comment: "Arbitration is a quick and cost-effective means of resolving disputes, but the process could be further improved to address some recent cases where individuals claimed that arbitrations were not conducted under fair conditions. My legislation would establish reforms to make absolutely certain that arbitration is as fair as possible for all parties involved." Read more...

DOL Will Offer $20 million to Fund Disability Programs

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Published on Tuesday, 31 May 2011 18:53

The U.S. Department of Labor (DOL) announced that it will make $20 million dollars available to fund state programs aimed at improving education, training and employment opportunities for disabled adults and youth. Titled the "Disability Employment Initiative" the program is a joint project of the Labor Department's Employment and Training Administration and its Office of Disability Employment Policy. The disability programs to be funded will serve individuals who are unemployed, underemployed and/or receiving Social Security disability benefits. The stated goals of the project are: (1) "to improve coordination and collaboration across multiple service delivery systems" (2) "build effective partnerships that leverage public and private resources to better serve people with disabilities" and, (3) "ultimately, improve employment outcomes of people with disabilities." According to Secretary of Labor Hilda L. Solis, "Workers with disabilities suffer from one of the lowest employment rates of any group in the American population, even in times of prosperityIt is vital that state and local agencies work together with private sector partners to improve these statistics."...

Disparate Treatment in Hiring Remains a Significant Problem

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Published on Friday, 24 June 2011 18:20

According to a number of experts at a recent U.S. Equal Employment Opportunity Commission (EEOC) meeting, intentional discrimination against job seekers based on their race, sex, age, national origin or other prohibited class continues to be a significant problem. At the meeting, EEOC General Counsel P. David Lopez described a hiring case he litigated against WalMart, which arose out of a charge by two deaf applicants who were allegedly denied employment by the company because they were deaf. As part of a negotiated settlement with the EEOC, WalMart agreed to air a commercial on Arizona television stations featuring the two applicants, who told viewers in sign language, with a voiceover, their story in addition to providing information about the nation’s equal employment laws. Lopez commented that “Unfortunately, discriminatory hiring practices such as conformity to discriminatory customer preferences, employing prohibited stereotypes about jobs, and targeted recruitment procedures aimed at only attracting certain racial or national origin group member applicants, continue to exist...Where necessary, the EEOC will use litigation to stamp out these practices and provide relief to the victims of discrimination.” Read More...

Lenscrafters To Pay $192,500 To Settle Sexual Harassment Suit

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Published on Friday, 24 June 2011 18:14

LensCrafters, an eyewear company, will pay $192,500 to settle a sexual harassment lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC). The EEOC charged that LensCrafters subjected a male lab technician to sexual harassment and then failed to address his complaints that a female co-worker was abusing him. Specifically, the EEOC alleged that the harassment included the female employee touching the male and making inappropriate comments about his appearance. Further, the EEOC charged that LensCrafters “fostered the hostile climate by disregarding the male technician’s complaints because he was a man.” According to EEOC attorney Nedra Campbell, “This is a favorable resolution for everyone...Sexual harassment is always unjust and illegal, regardless of the gender of the perpetrator or the victim. LensCrafters’s willingness to resolve this case early in the litigation process is commendable.” Read More...

Supreme Court Dismisses Gender Bias Case Against Wal-Mart

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Published on Monday, 20 June 2011 22:35

The U.S. Supreme Court has dismissed the largest gender discrimination case in history, thereby overturning a U.S. appeals court decision which held that the lawsuit could proceed as a class action. The lawsuit involved 1.6 million current and former Wal-Mart employees who alleged that Wal-Mart subjected them to gender discrimination by passing them over for promotions in favor of male employees and by paying them less than male employees. However, in a unanimous decision, the Court held that the women could not establish proof of commonality, especially since the women hold (or formerly held) different jobs at over 3.400 different Wal-Mart facilities, with different supervisors at each location. And, in a Title VII claim, the plaintiff must show the reason for a particular adverse employment action, which would be difficult to do in this case given the size of the class action. The Court essentially held that the lawsuit was too large and varied to proceed, noting that "Their claims must depend upon a common contention of such a nature that it is capable of classwide resolution...Without some glue holding together the alleged reasons for those decisions [adverse employment actions] it will be impossible to say that examination of all the class members' actions will produce a common answer to the crucial discrimination question." Justice Scalia wrote the decision.

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$600,000 Verdict for Failure to Accommodate

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Published on Thursday, 09 June 2011 17:05

A federal court jury returned a verdict of $600,000 against AutoZone, Inc. for allegedly failing to provide a reasonable accommodation to a disabled sales manager, the U.S. Equal Employment Opportunity Commission (EEOC) announced. An additional claim for $115,000 in back pay will be decided at a later date. According to the EEOC, AutoZone required a sales manager to perform certain cleaning tasks, including mopping floors, which violated his medical restrictions related to permanent back and neck impairments. At trial, the EEOC presented evidence that mopping floors was a non-essential function of the sales manager position that could have been reassigned to other employees, and that the employee could perform all of the essential functions of his job. The sales manager testified that the disabled employee had asked not to be assigned mopping and supported his request with documentation of his impairment. The EEOC also presented evidence that in 2003, new store management refused the request and required the employee to mop, leading to further injury and necessitating a medical leave. EEOC regional attorney in Chicago, John Hendrickson, commented that "Any employer who thinks that the EEOC is reluctant to take cases to trial or that ordinary juries in courts across the country will shy away from returning big verdicts in ADA cases ought to readjust his thinking in a hurry."...

Experts Give Opinions on Leave as Reasonable Accommodation

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Published on Thursday, 09 June 2011 17:03

At a June 8 meeting, the U.S. Equal Employment Opportunity Commission (EEOC) received a range of perspectives from a panel of experts concerning the use of leave to provide reasonable accommodations for workers with disabilities. The good news is that although the witnesses differed as to employer and employee obligations, they "agreed on the need for clear and uniform guidance from the EEOC." Both the Fair Employment and Housing Act (FEHA) and the Americans with Disabilities Act (ADA) require reasonable accommodations when appropriate. And, leaves of absenceincluding those beyond an employer's permitted number of days offcan constitute reasonable accommodations. EEOC Commissioner Victoria Lipnic observed that, "Managing situations where employees need leave for medical conditions is one of the most vexing issues for both employers and employees. Today's meeting should educate employers about complying with the law and educate us at the EEOC about making these difficult situations more manageable, ultimately making us all more successful in keeping people with disabilities engaged in the workforce." Offering the view of large employers, Ellen E. McLaughlin, a partner in the law firm Seyfarth Shaw LLP, requested that the EEOC provide "more detailed and defined examples of situations where maximum leave policies are called into question and provide examples of times when additional leave will be deemed necessary and when it will not."

Employee Files Suit Against U.S. Bank for Disability Discrimination

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Published on Wednesday, 08 June 2011 07:00

Robert Quinn is a former senior vice president of U.S. Bank, who suffers from type 2 diabetes. He was terminated by his supervisor and subsequently filed a lawsuit against U.S. Bank alleging disability discrimination in violation of the Fair Employment and Housing Act (FEHA) and state common law against U.S. Bank and the supervisor. The bank and supervisor moved for summary judgment, arguing that Quinn's causes of action were preempted by section 24 of the National Bank Act, which grants national banks the power to dismiss officers "at pleasure." The trial court agreed that plaintiff's causes of action were preempted and granted summary judgment. On appeal, the court reversed, concluding that section 24's "at pleasure" clause was impliedly amended by the Americans With Disabilities Act (ADA. Specifically, the court noted that "As amended, section 24 preempts FEHA only to the extent that FEHAs disability provisions exceed the requirements of the ADA. Because the bank has not demonstrated that plaintiff's FEHA claims are preempted in their entirety by section 24, we reverse the grant of judgment for the bank as to those claims. Plaintiff concedes that his claim against his former supervisor is preempted, and we affirm the grant of summary judgment in his favor."...

OSHA Establishes New Recordkeeping Advisor

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Published on Tuesday, 07 June 2011 07:00

The Occupational Safety and Health Administration (OSHA) has announced the formation of the "OSHA Recordkeeping Advisor," a website designed to help employers determine: (1) Whether an injury or illness (or related event) is work-related; (2) Whether an event or exposure at home or on travel is work-related; (3) Whether an exception applies to the injury or illness; (4) Whether a work-related injury or illness needs to be recorded; (5) Which provisions of the regulations apply when recording a work-related case. The OSHA Recordkeeping Advisor also "presents questions and relies on responses to determine the appropriate course of action." Some employers may be exempt from OSHA's recordkeeping rules, for example those with 10 or fewer employees during the previous calendar year and those classified in specific industries. If an employer is unsure about whether it is covered by the requirements, the employer may refer to 29 CFR 1904.1. The OSHA Recordkeeping Advisor is "written in plain language and intended to assist employers, especially small business employers, in understanding their recordkeeping requirements under OSHA regulations."...

EEOC Proposes To Extend Recordkeeping Requirements to GINA

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Published on Tuesday, 07 June 2011 07:00

The Equal Employment Opportunity Commission (EEOC) proposes to extend its recordkeeping requirements under Title VII of the Civil Rights Act and the Americans with Disabilities Act (ADA) to employers covered by Title II of the Genetic Information Nondiscrimination Act (GINA) which prohibits employment discrimination based on genetic information. More specifically, GINA prohibits the use of genetic information in making employment decisions, it limits the disclosure of genetic information, and it prohibits retaliation against employees who complain about genetic discrimination. Pursuant to the EEOC's proposal, its current Title VII and ADA recordkeeping regulations would be amended to add GINA, thereby requiring that employers maintain any workplace records that are created pursuant to GINA. Title VII regulations require those employers who are subject to Title VII to retain any personnel records that they create for one year from the date the record is made or one year from the date of any personnel action, whichever date occurs later. Pursuant to the Fair Employment and Housing Act (FEHA) employers must retain such records for at least two years from when they are created, or from the date of a personnel action, which ever date occurs later....

EEOC to Examine Use of Leave As Reasonable Accommodation

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Published on Monday, 06 June 2011 09:08

Pursuant to both the Fair Employment and Housing Act (FEHA) and the Americans with Disabilities Act (ADA) disability leave can be a reasonable accommodation. However, employers often grapple with how much time off they must provide to an employee who is on a disability leave of absence as an accommodation. Thus, it is interesting to note that the EEOC will hold a public meeting on Wednesday, June 8, at 9:30 a.m. (Eastern Time), at agency headquarters, 131 M Street, N.E., "to examine the use of leave as a reasonable accommodation. In accordance with the Sunshine Act, the meeting is open for public observation of the Commission's deliberations. The Commission will hear from invited panelists on the appropriate use of disability leave as a reasonable accommodation and on complying with relevant regulations." The meeting agenda includes the following topics (1) "EEOC's Current Position and Policy Statements and (2) "How to Comply with the Law and Appropriately Permit Leave to Employees." A brief question-and-answer session with EEOC Commissioners will follow each panel discussion....

Rep. Shuler Reintroduces Mandatory E-Verify

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Published on Monday, 06 June 2011 07:00

Section 226.7 Permits Up to Two Premium Payments Per Workday

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Published on Monday, 06 June 2011 07:00

Labor Code section 226.7 provides that "(a) No employer shall require an employee to work during any meal or rest period mandated by an applicable order of the Industrial Welfare Commission. (b) If an employer fails to provide an employee a meal period or a rest periodthe employer shall pay the employee one additional hour of pay at the employee's regular rate of compensation for each work day that the meal or rest period is not provided." In a recent case, United Parcel Service (UPS) was the defendant in 32 coordinated actions by employees seeking compensation for a variety of issues including the failure of UPS to provide meal and rest periods. UPS argued that the employees were only entitled to one hour of premium pay per work day regardless of the number or type of breaks not provided. The employees argued that section 226.7 and IWC Wage Order No. 9-2001, allow up to two premium payments per work day, one for failure to provide meal periods and one for failure to provide rest periods. On appeal, the court concluded that "section 226.7 permits up to two premium payments per work day."...

NLRB Issues Advisory Memo in Twitter Case

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Published on Thursday, 02 June 2011 18:26

According to an advisory memo issued by the National Labor Relations Board (NLRB) in a case involving social media, an Arizona newspaper, the Arizona Daily Star, did not violate the National Labor Relations Act when it terminated a reporter for "unprofessional and inappropriate tweets" made via the reporter's Twitter account, even though the newspaper had encouraged reporters to set up Twitter accounts for news reporting purposes. The NLRB decided that the reporter's termination did not violate the NLRB provision of the National Labor Relations Act that protects communications by employees provided the communications relate to the employee's working conditions or employment terms. Specifically, the NLRB decided that posts on the reporter's Twitter account, which included: (1) "You stay homicidal, Tucson. See Star Net for the bloody deets" (2) "What?!?!? No overnight homicide? WTF? You're slacking Tucson" and (3) "Suggestion for new Tucson-area theme song: Droening [sic] pool's 'let the bodies hit the floor'" (which the employer deemed to be unprofessional and a violation of its policies) were not protected by the law. Although the NLRB arrived at this decision even though the employer did not have a social media policy, it is prudent for employers to have such policies in place....

9th Circuit Rules CDCR Did Not Commit Religious Discrimination

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Published on Thursday, 02 June 2011 04:14

In a recent decision, the 9th Circuit has ruled that the California Department of Corrections and Rehabilitation (CDCR) did not commit religious discrimination. In the case, a small group of inmates and a volunteer chaplain sued the CDCR alleging a failure to properly accommodate their religion, specifically the Wiccan religion. This religion honors the "cycles of nature with rituals and new and full moons and on eight seasonal festivals." As of 2007, there were 183 Wiccans inmates in the CDCR, compared to 42, 666 Protestant inmates, and 23, 160 Catholic inmates. In an effort to accommodate the religious needs of inmates, the CDCR has a paid chaplaincy program that employs Protestant, Catholic, Jewish, Muslim and Native American clergy. They serve all inmates, but other religions, such as the Wiccans, are served by volunteer chaplains. The inmates alleged that prison practices failed to provide for certain general Wiccan religious needs and free exercise. The court found that the inmates failed to exhaust their remedies or bring their claim in a timely fashion. As for the chaplain, who claimed a violation of Title VII and FEHA because the CDCR failed to hire him in a paid chaplain position, the 9th Circuit agreed with the district court that a bona fide occupational qualification existed which defeated the chaplain's claim. Specifically, the job descriptions of the paid chaplain positions required that the chaplain be from one of the five denominated faiths in the chaplaincy program....

SEC Formalizes Whistleblower Rules

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Published on Thursday, 02 June 2011 00:15

Employees Are Entitled To Inspect Their Personnel Files

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Published on Wednesday, 01 June 2011 23:48

Employees are entitled to inspect their personnel files at reasonable times and intervals. To facilitate the inspection, employers must either (1) keep a copy of the employee's personnel records at the place where the employee reports to work; or, (2) make the employee's personnel records available to the employee at the place where the employee reports to work within a reasonable period of time following the request to inspect the personnel file records; or (3) allow the employee to inspect his or her personnel file at the location where the records are stored, provided the employee does not suffer a loss of compensation in traveling to that location. The request does not have to be in writing, although an employer may use a form for such requests. However, information requested on such a form must be solely for the purpose of identifying the employee who is making the request so as to "avoid disclosure to ineligible individuals." Employers are not required to provide an employee with copies of his or her personnel file although the law does specify that, upon request, an employee must be given a copy of any document that the employee signed relating to his or her employment. During an inspection of a personnel file an employee may take notes regarding any document in the personnel file....

Wells Fargo Will Pay Up to $16 Million for Disability Discrimination

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Published on Wednesday, 01 June 2011 23:44

On May 31, 2011, the U.S. Justice Department's Disability Rights Section and Office of the United States Attorney for the Northern District of California entered into a settlement agreement with Wells Fargo in which the company has agreed to pay up to $16 million to compensate individuals who allegedly experienced discrimination in violation of Title III of the Americans with Disabilities Act (ADA) when attempting to call Wells Fargo, access Wells Fargo's services, or visit one of Wells Fargo's retail stores. The Justice Department began an investigation after receiving complaints from individuals who are deaf, hard of hearing, or have speech disabilities that Wells Fargo allegedly "would not do business with them over the phone using a telecommunications relay service. Instead, the individuals were directed to call a TTY/TDD line that asked them to leave a message, which went unanswered." According to the Justice Department, these actions constituted a violation of the ADA....

Dunkin Donuts to Pay $290,000 for Alleged Sexual Harassment

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Published on Tuesday, 31 May 2011 18:17

Dunkin' Donuts will pay $290,000 to settle a sexual harassment lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC). According to the EEOC, the manager of a Dunkin' Donuts store in Wynantskill, N.Y., allegedly sexually harassed female employees, some of whom were only 16 and 17 years old. The EEOC charged that "the manager engaged in unwanted touching and hugging and made lewd sexual comments to the female employees." Further, according to the EEOC, Dunkin' Donuts allowed the manager's illegal conduct to continue even though two employees complained about the harassment a year before. Dunkin' Donuts finally terminated the manager after the employees reported his conduct to the police and he was arrested. In addition to paying $290,000 to the former employees, Dunkin' Donuts will be subject to a six-year consent decree enjoining it from engaging in further discrimination or retaliation....

Legislation Introduced to Increase Employer Penalties for Hiring Undocumented Workers

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Published on Friday, 27 May 2011 21:06

Rep. Sue Wilkins Myrick (R-NC) has reintroduced legislation, the 10K Run for the Border Act (H.R. 1698) that would amend the Immigration and Nationality Act to significantly increase employer penalties for violations. Specifically, the proposed legislation raises fines on employers who knowingly hire or recruit undocumented workers to between $10,000 and $80,000 for each violation (an increase from the current $250 to $2,000 range) and it gives eighty percent of the fine to local law enforcement to help combat illegal immigration, if law enforcement offers material assistance in investigating or prosecuting employers who are violating the law. For those employers who are repeat offenders, the fines range from $120,000 to $1.6 million (the current fine for repeat offenders is between $3000 and $10,000). Prior versions of the legislation have been previously introduced, but failed to pass....

EEOC Files Sexual Harassment Class Action

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Published on Friday, 27 May 2011 20:08

The Equal Employment Opportunity Commission (EEOC) has filed a class action based on alleged sexual harassment against Four Amigos Travel, Inc. and Top Dog Travel, Inc. (related Florida-based travel telemarketing firms) for allegedly violating federal law when they allowed five female employees at one of their locations to be sexually harassed by supervisors. According to the EEOC's lawsuit, several of the firms' male supervisors, including the general manager, allegedly conducted daily sales meetings which were "sexually charged and raised sexually explicit discussions and propositioned female employees for sex. The harassers also inappropriately touched themselves and the female employees, made other aggressive sexual advances towards them and used derogatory terms such as 'b-----s.' One male supervisor is alleged to have presented a female employee with a picture of his private parts and asked, 'Impressive, arent I?'" The EEOC also contends that the women found this conduct offensive and they were "intimidated by the harassment and were mocked for objecting and complaining."...

OSHA Announces Final Rule Streamlining Standards

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Published on Thursday, 26 May 2011 18:41

The U.S. Department of Labor's Occupational Safety and Health Administration (OSHA) has announced the release of a final rule that "streamlines and simplifies standards while reducing employer burdens." According to OSHA, "The rule, which soon will be published in the Federal Register, will help keep OSHA standards up-to-date and better enable employers to comply with their regulatory obligations." The final rule is the third in a standard improvement initiative that examines OSHA regulations with the objective of improving and/or eliminating regulations that are confusing, outdated, or inconsistent. For example, the new rule makes several changes to OSHA's existing respiratory protection standard, updates the definition of the term "potable water" to be consistent with the Environmental Protection Agency standards, and it deletes a number of requirements for employers to transmit exposure and medical records to NIOSH....

Pre-Leave Discussion of Job Elimination May Defeat FMLA Retaliation Claim

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Published on Thursday, 26 May 2011 18:17

In general, the Family and Medical Leave Act (FMLA) allows eligible employees working for covered employers to take up to 12 weeks of unpaid leave for medical reasons, for the birth or adoption of a child, and for the care of a child, spouse, or parent who has a serious health condition. When the employee returns from FMLA leave, the employer has a duty to reinstate the employee to the same position that the employee held before taking leave, or an equivalent position. An employer's failure to do so gives rise to an entitlement claim. Further, an employer may not discriminate or retaliate against an employee for exercising his or her FMLA rights. In a recent case, a female employee filed a FMLA retaliation case after the employer refused to reinstate her following a FMLA leave of absence, on the basis that her position had been eliminated due to nondiscriminatory business reasons, specifically a decline in economic conditions. The court sided with the employer, convinced in part, by evidence that discussions regarding the elimination of her position had taken place prior to the FMLA leave of absence....

Supreme Court Upholds Arizona Immigration Law

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Published on Thursday, 26 May 2011 18:15

Six Employees Obtain $260,000 for Sexual Harassment by Supervisors

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Published on Wednesday, 25 May 2011 01:40

In a recent case filed by the Equal Employment Opportunity Commission (EEOC) High-Tech Institute, Inc., doing business as Anthem College Online, will pay $260,000 to settle a sexual harassment lawsuit. The EEOC charged that six female admissions representatives working for the company were frequently sexually harassed by three supervisors. The harassment included alleged unwanted sexual touching and comments, writing sexually suggestive e-mails and soliciting sex from employees during unwelcome visits to the employees' homes in the early morning hours. Some of behavior was witnessed by other Anthem College employees. According to the EEOC, Anthem College knew or should have known about the harassment. Further, the EEOC alleged that the company's former human resource manager stated that Anthem College employees were fearful to come forward because an alleged harasser was seen drinking and socializing with upper management, and that there was blatant disrespect to employees, in addition to rampant poor management....

NLRB Files Complaint Against Employer in Social Media Case

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Published on Tuesday, 24 May 2011 05:56

The National Labor Relations Board (NLRB) recently announced that it filed a complaint against a nonprofit organization (Hispanics United of Buffalo) for terminating five workers for Facebook postings that criticized their working conditions. The NLRB also disclosed that it has more than two dozen pending cases involving worker complaints posted on the social media site. In the latest NLRB complaint involving social media, the NLRB alleges that an employee of Hispanics United, who was scheduled to meet with management about working conditions, posted on the employee's Facebook page, a co-worker's allegation that employees of the organization did not help the nonprofit's clients enough. The employee's post drew responses from other employees who defended their work and blamed conditions such as work loads and staffing issues. When Hispanics United learned about the postings, it discharged the five employees who participated, claiming their comments were harassment of the employee originally mentioned in the post. The NLRB said the Facebook discussion was "protected concerted activity" under the National Labor Relations Act....

The Impact of a WC Disability Rating on FEHA Obligations

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Published on Tuesday, 24 May 2011 04:42

The recent California appellate court decision, Cuiellette v. City of Los Angeles, No. B224303 (Cal. Ct. App. Apr. 22, 2011) is an important case for employers because it highlights the fact that a workers' compensation permanent disability rating (even one as high as 100%) does not mean that an employee cannot work in terms of an employer's obligations under the Fair Employment and Housing Act (FEHA)/Americans with Disabilities Act (ADA). Significantly, under the workers' compensation system, the focus is on whether the employee can perform the usual and customary duties of the "job of injury." However, pursuant to the FEHA and ADA, the focus is on what the employee can do in terms of their original job, or any other vacant, alternative position. In essence, workers compensation looks at what the employee can no longer do while FEHA/ADA analyze what the employee can still do. Therefore, employers must exercise caution when considering return to work requests from injured workers, and avoid summarily denying the request based upon the disability alleged in the workers' compensation case....

OSHA Launches National Survey on Employers' Safety and Health Practices

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Published on Monday, 23 May 2011 18:29

The U.S. Department of Labor's Occupational Safety and Health Administration (OSHA) recently launched a survey of private employers to gather information in an effort to design better workplace rules, compliance assistance and outreach efforts. Approximately 19,000 employers around the nation will receive the "Baseline Survey of Safety and Health Practices," which asks employers questions about their workplace safety and health management practices. OSHA is sending the survey to private employers of all sizes and in all industries that are under OSHA's jurisdiction. The survey will include questions on whether the employer already has a safety management system, whether the employer performs annual inspections, who manages the safety program at their establishment and what types of hazards the employer encounters at their facilities. Participation in the survey is voluntary and it is accompanied by a cover letter from Assistant Secretary of Labor for OSHA Dr. David Michaels. In addition, contact information for OSHA and its contractor, Eastern Research Group (ERG), is included for those employers who may have questions about the survey. OSHA will provide employers with a paper copy of the survey that can be filled out and returned to ERG and the option to complete it online. Only those employers who receive a paper copy of the survey from OSHA will be able to complete the online version. OSHA expects that ERG will complete the data collection phases of the survey by August. The information collected by ERG will be anonymous and cannot be used by OSHA for enforcement purposes. OSHA has published a notice of its intent to conduct the survey in the Federal Register on Aug. 12, 2010. After a 60-day comment period, as required by the Regulatory Flexibility Act, OSHA will publish a second Federal Register notice for comments on Nov. 3, 2010, and received clearance from the Office of Management and Budget to conduct the survey. OSHA conducted a pre-test with a sample of employers in April 2011.For additional information, and to view a copy of the survey, go to: http://www.osha.gov/national-survey/national-survey-announcementbaseline-survey.html....

Arbitration Fairness Act Reintroduced to Congress

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Published on Thursday, 19 May 2011 07:00

U.S. Sens. Al Franken (D-Minn.) and Rep. "Henry" Hank Johnson (D-Ga.) and Richard Blumenthal (D-Conn.), have reintroduced the Arbitration Fairness Act, which would prohibit mandatory arbitration provisions in employment, consumer, and civil rights cases. This is in response to the recent Supreme Court decision in Concepcion v. AT&T, in which consumers brought a claim against AT&T for alleged false advertising. The case was consolidated into a class action and AT&T sought to block the lawsuit by compelling arbitration pursuant to a clause in the service contract. However, the lower courts invalidated the arbitration clause because it banned class actions entirely. In a 5-4 decision, the Supreme Court overturned the lower court decisions, holding that the Federal Arbitration Act allows companies to compel arbitration of mass consumer claims. Plaintiffs had argued that class actions provide the only practical recourse for those with relatively small claims. According to Rep. Johnson, "Forced arbitration agreements undermine our indelible Constitutional right to trial by jury, benefiting powerful businesses at the expense of American consumers and workers Americans with few choices in the marketplace may unknowingly cede their rights when they enter contracts to buy a home or a cell phone, place a loved one in a nursing home, or start a new job. We must fight to defend our rights and re-empower consumers." Many employers and their counsel believe that arbitration agreements can provide a more cost effective and efficient means of resolving workplace disputes, and it is estimated that approximately one-third of employers utilize arbitration agreements. However, such agreements must be carefully drafted and implemented to ensure that the employee clearly understands the nature and scope of the agreement, particularly that the agreement requires giving up the right to a trial by jury....

Starbucks Sued by EEOC for Disability Discrimination

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Published on Thursday, 19 May 2011 04:03

According to the Equal Employment Opportunity Commission (EEOC), Starbucks Coffee Company violated federal law by allegedly denying a reasonable accommodation to a barista (Elsa Sallard) with dwarfism, and subsequently terminated her because of the disability. Specifically, the EEOC has filed suit against Starbucks for disability discrimination charging that Sallard has a physical impairment (dwarfism), and that Starbucks hired her to work in a customer service position, but only allowed her to train for 3 days before she was terminated. The job description for the barista position did not require prior experience. Apparently, soon after being hired by Starbucks, Sallard requested the use of a stool or small stepladder to perform the essential functions of preparing orders and serving customers at the counter. However, according to the EEOC, Starbucks disregarded Sallard's request and refused to consider her use of a stool or stepladder. On the same day that Sallard requested the accommodation, Starbucks allegedly terminated her employment, asserting that she might pose a danger to customers and employees. According to Robert A. Canino, regional attorney for the EEOC, "Starbucks has become a virtual icon of modern American culture, appealing to an incredibly diverse customer baseWe'd hope that when considering hiring a person with a disability, Starbucks would choose to enhance its brand with the mark of equal opportunity and access." The EEOC is seeking injunctive relief, including the formulation of policies to prevent and correct disability discrimination. The suit also seeks lost wages and compensatory damages for Sallard and punitive damages against Starbucks Coffee Company....

Employers Must Avoid Retaliatory Conduct

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Published on Wednesday, 18 May 2011 07:00

Retaliation claims continue to be a significant problem for employers and they constitute one of the most frequent charges filed by the Equal Employment Opportunity Commission (EEOC) against employers. Pursuant to state and federal law, retaliation occurs when an employer fires, demotes, harasses, or otherwise "retaliates" against an employee because the employee filed a charge of discrimination/harassment, or complained to his/her employer about discrimination/harassment, or participated in an employment discrimination/harassment proceeding (such as an investigation or lawsuit). The law forbids retaliation when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits, and any other term or condition of employment. In a recent case, the EEOC charged that a golf club company violated federal law by allegedly retaliating against a male employee who reported the sexual harassment of female employees. Specifically, the EEOC, alleges that the employee submitted an internal complaint to the company's general manager which stated that several female employees felt they had been sexually harassed by the head chef. According to the EEOC, the employee was terminated the day after filing the complaint. After the employee reported the retaliation to the EEOC, the company offered to rehire the employee, but conditioned the offer upon withdrawal of the EEOC charge. The employee insisted on pursuing the EEOC charge, and the company refused to rehire him. Subsequently, the company rehired the employee, but terminated him several weeks later. The EEOC also alleges that the company then provided negative information on the employee to other employers....

Healthy Families Act Reintroduced to Congress

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Published on Wednesday, 18 May 2011 07:00

Congresswoman Rosa L. DeLauro (CT-3), Ranking Member on the Labor, Education, Health, and Human Services Appropriations Subcommittee, and Senator Tom Harkin (D-IA), Chairman of the Health, Education, Labor and Pensions Committee, have reintroduced the Healthy Families Act to both the Senate and House of Representatives. The proposed legislation provides for paid sick days to eligible employees. The legislation, which was first introduced in 2004 by Congresswoman DeLauro and Senator Edward M. Kennedy, enables workers to earn up to 1 hour of paid sick leave for every 30 hours worked, up to a total of 7 days of paid leave. According to Congresswoman De Lauro, "everyone should be able to take care of themselves and their families if they are sick without having to worry about losing their jobs. Too many of our workers, especially those who work in the food service industry, where health is so critical, are unable to do this. And simply showing up to work when you are sick, known as 'presenteeism,' costs employers a staggering $160 billion a year in lost productivityIt is in the best interests of our nation, and especially our families, to ensure American workers have access to paid sick days." Some of the legislations specifics are (1) Workers can earn up to 56 hours (7 days) of paid sick time. Workers earn 1 hour of paid sick time for every 30 hours worked; (2) Workers can use this time to stay home and recover when they are ill, to care for a sick family member, to obtain preventative or diagnostic treatment, or to seek help if they are victims of domestic violence; (3) Small employers, that is those with fewer than 15 employees, would be exempt from the Act; (4) Employers that already provide this leave will not have to change their current policies at all, as long as their existing leave can be used for the same purposes described in the Act; (5) Employers can require workers to provide documentation supporting any request for leave longer than 3 consecutive days....

Understanding Pregnancy Discrimination in the Workplace

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Published on Monday, 16 May 2011 18:43

Pregnancy discrimination involves treating a woman unfavorably because of pregnancy, childbirth, or a medical condition related to pregnancy or childbirth. The law forbids discrimination when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits, such as leave and health insurance, and any other term or condition of employment. If a woman is temporarily unable to perform her job due to a medical condition related to pregnancy or childbirth, the employer must treat the pregnant employee the same as any other temporarily disabled employee. For example, the employer may have to provide modified tasks, alternative assignments, disability leave or unpaid leave. It is also unlawful for someone in the workplace to harass a woman because of pregnancy, childbirth, or a medical condition related to pregnancy or childbirth. The law does not prohibit "simple teasing, offhand comments, or isolated incidents that are not very serious," however, harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the employee being fired or demoted). The person engaging in the harassing conduct might be the employee's supervisor, a supervisor in another area, a co-worker, or someone who is not an employee of the employer, such as a client or customer. Pregnant employees may also have additional rights under the Family and Medical Leave Act (FMLA)/California Family Rights Act (CFRA) if the employee is temporarily unable to perform her job due to pregnancy or for baby bonding time following the birth....

As Summer Approaches Employers Should Review Their Vacation Time Policies

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Published on Monday, 16 May 2011 17:51

As summer approaches, many employees will be requesting vacation time. Therefore, now is a good time for employers to review their vacation time policies to make sure they are compliant with the law. Pursuant to California and federal law, an employer is not required to offer employees either paid or unpaid vacation time. However, if an employer does have an established policy, practice, or agreement to provide vacation time to employees, then the law has certain requirements on vacation time. For example, under California law, earned vacation time is considered wages, and vacation time is earned, or vests, as an employee performs work for the employer. Thus, for example, if an employee is entitled to two weeks (10 work days) of vacation per year, after six months of work he or she will have earned five days of vacation. Vacation pay accrues (adds up) as it is earned, and cannot be forfeited, even upon termination of employment, regardless of the reason for the termination (Suastez v. Plastic Dress Up (1982) 31 C3d 774). Therefore, "use it or lose it" polices are prohibited in California, although an employer can place a reasonable cap on vacation benefits that prevents an employee from earning vacation over a certain amount of hours (Boothby v. Atlas Mechanical (1992) 6 Cal.App.4th 1595). In addition, unless otherwise stipulated by a collective bargaining agreement, upon termination of employment all earned and unused vacation must be paid to the employee at his or her final rate of pay (Labor Code Section 227.3). An employer may provide for a specific amount of time at the beginning of the employment relationship during which an employee does not earn any vacation benefits. This can apply to a probationary or introductory period, and can even apply to the whole first year of employment. However, such a provision in a vacation policy will only be recognized by the Division of Labor Standards Enforcement, "if it is not a subterfuge (phony reason) and in fact, no vacation is implicitly earned or accrued during that first year or other period."...

EEOC Conducting Equal Pay Day Outreach Events

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Published on Thursday, 12 May 2011 18:13

The Equal Employment Opportunity Commission (EEOC) has scheduled a series of outreach events, specifically, "Equal Pay Day Outreach Events" around the country. All of the events are free and open to the public. The EEOC commented on the events stating that it "is working to improve interagency coordination and strengthen enforcement of wage discrimination laws, and to increase outreach, education and public awareness concerning compensation discrimination. Beginning today, EEOC offices across the country will be holding public education and outreach events - free and open to all - to raise awareness of this issue." The following is an article summarizing the recent event held in Phoenix, Arizona as reported by the Arizona Republic. "An attorney with the 'reinvigorated' U.S. Equal Employment Opportunity Commission says that it is becoming more aggressive in looking into claims of sex discrimination in pay and that the agency doesn't need a formal complaint by a woman to begin an investigation. Andrea Baran, supervisory attorney in the agency's district office, spoke Tuesday at a seminar, Phoenix Fair Pay Day, attended by dozens of employers and employees at the EEOC offices, 3300 N. Central Ave. in Phoenix. More enforcement will happen as part of the Obama administration's commitment to fair pay, she said. 'Things were put in place years ago, but they fell by the wayside,' Baran said. 'We're reinvigorated now.'"...

Wage Disparity Can Be Costly For Employers

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Published on Thursday, 12 May 2011 17:21

A recent case demonstrates that wage disparity can be costly for employers. The case involves Hyundai Ideal Electric Company (HIEC), which must pay $188,000 to settle a sex discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC). The EEOC charged that an employee trained as "an experienced female drafter," was hired by HIEC for a job preparing drawings and sketches for batteries and engines, but at a lower salary than that of a similarly situated male who was hired only months later. When the employee learned about the disparity in wages, she complained to HIECs then human resources manager, and allegedly was subsequently fired in retaliation for her complaint. Wage discrimination and retaliation for complaining about the discrimination are in violation of the Equal Pay Act of 1963 and Title VII of the Civil Rights Act of 1964. In addition to the settlement amount, HIEC has agreed to provide training for all human resources personnel and employees at the facility where the incident occurred; in addition, it will post an anti-discrimination notice to all employees. The training must focus on compliance with federal anti-discrimination laws, including Title VII and the EPA, in addition to an emphasis on preventing discrimination in pay and terms and conditions of employment as well as retaliation. According to Debra Lawrence, regional attorney for the EEOCs Philadelphia District, "The EEOC will not tolerate discriminatory pay practices...To help build public awareness of this continuing problem, EEOC offices are holding Fair Pay Day events throughout the country." According to its website, Hyundai Ideal Electric Co. is the leader in medium power generators for gas, steam and hydro turbines, and diesel engines....

DOL Launches Phone APP For Tracking Hours Worked

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Published on Tuesday, 10 May 2011 05:38

The U.S. Department of Labor (DOL) has launched a smartphone application to help employees independently track the hours worked and wages owed. The application is available in English and Spanish. Users can track regular work hours, break time and any overtime hours for one or more employers. Glossary, contact information and materials about wage laws are also accessible through links to the Web pages of the DOL's Wage and Hour Division. Users will also be able to add comments on any information related to their work hours; view a summary of work hours in a daily, weekly and monthly format; and email the summary of work hours and gross pay as an attachment. The new technology is significant because rather than relying on an employers' records, workers can keep their own records. According to Secretary of Labor Hilda L. Solis, 'I am pleased that my department is able to leverage increasingly popular and available technology to ensure that workers receive the wages to which they are entitledThis app will help empower workers to understand and stand up for their rights when employers have denied their hard-earned pay.' The free application is currently compatible with the iPhone and iPod Touch. The DOL is exploring updates that could enable similar versions for other smartphone platforms, such as Android and BlackBerry, in addition to and other pay features not currently provided for, such as tips, commissions, bonuses, deductions, holiday pay, pay for weekends, shift differentials and pay for regular days of rest....

Employer Will Pay $300,000 For Sexual Harassment

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Published on Tuesday, 10 May 2011 04:48

An employer, Dave's Supermarket, will pay $300,000 to four women to settle a sexual harassment lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC). The EEOC alleged that a former meat department manager at a Dave's market made repeated and unwanted sexual advances to female employees, and that even though upper management was aware of his behavior, they failed to stop it. The EEOC charged that the sexual harassment included an incident during which the manager allegedly exposed himself to a newly hired female employee. The EEOC alleged that the female employee complained to upper management about the incident, but that management did not investigate or discipline the employee. Further, according to the EEOC, Dave's Supermarket eventually terminated the manager after another female employee complained that the manager sexually harassed her. In addition to the monetary amount, Dave's Supermarket must also provide mandatory training to all staff on sexual harassment and the company's obligations under Title VII, the definition of sexual harassment, how to maintain a harassment-free workplace, and a review of the laws prohibiting unlawful retaliation. EEOC Regional Attorney Debra Lawrence commented that "The decree here sends the same signal to employers that the EEOC has been sending for some time: sexual harassment is prohibited and the EEOC will move swiftly to stop itEmployers must promptly and thoroughly investigate sexual harassment complaints and must take effective steps to eliminate such harassment."...

Disciplining Employees Who Suffer From Mental Disabilities

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Published on Monday, 09 May 2011 07:42

A growing number of employees suffer from mental disabilities such as anxiety, panic disorder and depression. Employers often struggle with how to discipline such employees for misconduct, especially when the misconduct involved arises from the disability itself. A recent case, Wills v. The Superior Court of Orange County, which sheds light on this complicated issue, is particularly insightful because it involves the added component of misconduct based on threats of violence. Linda Wills was diagnosed with bipolar disorder in 1997, which is a mental disability characterized by mood swings ranging from depression to manic episodes. In 1999, Ms. Wills began working for the Superior Court of Orange County (the OC Court) as a court processing specialist; she later became a court clerk. Although Ms. Wills took several medical leaves of absence while employed with the OC Court, she never advised the OC Court of her bipolar disorder. However, Ms. Wills did mention to some of her supervisors that she suffered from depression. In July 2007, OC Court assigned Ms. Wills to the Anaheim Police Department's lockup facility to help arraign criminal suspects by video. On July 3, 2007, Ms. Wills reported for work and rang the buzzer to be admitted, as it was a secure facility. To her dismay, she had to wait several minutes outside before being admitted. When she was final admitted, Wills swore and yelled at the Anaheim Police Department employees, accusing them of intentionally leaving her outside in the summer heat. Ms. Wills then told one officer that she added him and another police department employee to her "Kill Bill" list (a reference to the movie in which the main character put people on a list that she intended to kill). Many employees within the facility witnessed her outburst and viewed it as threatening. Ms. Wills disputed that these comments were meant to be threatening, and claimed that she was joking and that the other employee laughed at her comment....

OSHA Offers Free Consultation Service on Workplace Hazards

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Published on Friday, 06 May 2011 17:57

The U.S. Occupational Safety and Health Administration (OSHA) offers a free consultation service in which employers can find out about potential hazards at their worksites, and as a result hopefully improve their occupational safety and health management systems, and even qualify for a one-year exemption from routine OSHA inspections. The service is delivered by state governments using staff trained by OSHA. Most consultations take place on-site, although limited services are available away from the worksite. The program is primarily designed for smaller businesses, and is completely separate from the OSHA inspection effort. In addition, it is important for employers to note that no citations are issued or penalties proposed. Further, the process is confidential. The employer's name, firm's name, and any other information provided about the workplace, in addition to any unsafe or unhealthful working conditions that the OSHA consultant uncovers, will not be reported routinely to the OSHA inspection staff. The employer's only obligation is to correct serious job safety and health hazards in a timely manner. The program is particularly helpful in that it provides managers with an increased understanding of workplace hazards and remedies for those hazards. It also helps insure compliance with federal and state safety and health requirements. Further, some employers may be eligible for participation in OSHA's Safety and Health Achievement Recognition Program (SHARP), which is a program that "recognizes small employers who operate an exemplary safety and health management system..." and exempts the employers worksite from OSHA programmed inspections during the period that the SHARP certification is valid....

Proposal Revealed for Calculating Full-time Employees Under PPACA

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Published on Thursday, 05 May 2011 16:32

The U.S. Treasury Department unveiled a proposal on how to determine whether an employee is full-time pursuant to the health care reform law requirement that employers offer full-time employees coverage or pay a penalty if they do not. Beginning in 2014, pursuant to the Patient Protection and Affordable Care Act, employers with at least 50 full-time employeescurrently defined as employees who work an average of at least 30 hours per weekmust offer coverage or pay an annual assessment of $2,000 for each full-time employee not offered. The Treasury Department is now seeking public comment on determining whether an employee meets the 30-hour threshold. Under one plan suggested by the Treasury Department in Notice 2011-36, an employer would calculate each employee's full-time status by looking back "at a defined period of not less than three but not more than 12 consecutive calendar months" to determine if the employee worked an average of 30 hours per work during this "measurement" period. If the employee met the 30-hour standard by that measurement, the employee would be considered full-time during a subsequent "stability" period, regardless of the number of hours worked by the employee during that subsequent period. For an employee meeting this threshold, the stability period would be at least six consecutive months after the measurement period. If an employee did not meet the criteria for full time status during the measurement period, the employer would be able to exclude the individual in calculating its full-time employees during a stability period....

Court Finds Tenured Teacher Engaged In Immoral Conduct

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Published on Wednesday, 04 May 2011 07:00

Frank Lampedusa, a tenured teacher with the San Diego Unified School District (District) appealed his notice of termination as a permanent certificated teacher by the District to the Commission on Professional Competence (Commission). The District based Lampedusa's termination on the allegation that he showed evident unfitness for service under Education Code section 44932, subdivision (a)(5); immoral conduct under section 44932, subdivision (a)(1); and persistent refusal to follow State Board of Education guidelines or the law under section 44932, subdivision (a)(7). Specifically, the District's alleged that Lampedusa's posting on Craigslist of an ad soliciting sex under the "men seeking men" section that contained graphic photos of his genitalia and other body parts, as well as obscene written text, which was discovered by a parent and reported to the District, violated the above code sections. The Commission determined that cause for the dismissal did not exist and reinstated Lampedusa's employment with the District. The District filed a petition for writ of mandate with the Superior Court of San Diego County. The court denied the petition, finding the District failed to show the Commission's findings were not supported by the weight of the evidence. The District appealed, asserting there was no substantial evidence to support the Commission's reinstatement of Lampedusa regarding the charges of immoral conduct and evident unfitness. On appeal, the court reversed, concluding that "there is no substantial evidence to support the Commission's decision as the evidence shows both evident unfitness to serve as a teacher and that Lampedusa engaged in immoral conduct, either of which constituted grounds for termination."...

DOL Recovers Nearly $2.9 million in Back Wages From Employer

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Published on Wednesday, 04 May 2011 07:00

The U.S. Department of Labor (DOL) has recovered nearly $2.9 million in back wages for more than 500 employees of Stanley Associates Inc. and several subcontractors. Stanley Associates and its subcontractors employed workers at one of its locations under a service contract subject to the McNamara-O'Hara Service Contract Act's prevailing wage provisions, as well as the overtime requirements of the Fair Labor Standards Act (FLSA). The DOL conducted an investigation and determined that the employers had allegedly improperly classified several hundred of their employees, as the actual duties and nature of work being performed did not match the proper SCA classifications listed in the contract's wage determination. As a result, according to the DOL, these workers were paid less than the prevailing wage rates guaranteed them under the terms of the federally-funded contract and many were denied proper overtime compensation in violation of the FLSA. Secretary of Labor Hilda L. Solis commented that "The Labor Department is committed to ensuring that taxpayer dollars are being used properly and workers on publicly funded projects are paid their full wagesI am pleased that these workers will be appropriately compensated for the work they performed for Stanley Associates and its subcontractors. The laws governing prevailing wages on federal contracts provide important protections for workers, and the Labor Department will continue to ensure companies performing work for the federal government are held to these standards."...

Employer to Pay $120,000 For Gender and Disability Discrimination

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Published on Wednesday, 04 May 2011 07:00

An employer, the Timken Company will pay $120,000 to settle a gender and disability discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC). According to the EEOC, Timken denied a full-time position to part-time employee Carmen Halloran. Specifically, when Halloran applied for the full-time position, she had worked for the company as a part-time process associate for four years. The EEOC further alleged that the company refused to hire Halloran because one or more managers for the company believed that Halloran, who is the mother of a disabled child, would be unable to work full time and care for her disabled child. The EEOC charged that although Timken employed men who were the fathers of disabled children, Timken refused to give Halloran the full-time position due to the companys "unfounded gender stereotype that the mother of a disabled child would necessarily be the primary caregiver for the child and therefore would not be a reliable employee." In addition to the $120,000 settlement amount, Timken must also provide anti-discrimination training to the managers, supervisors, and employees of the company, and post a notice regarding employees rights under federal anti-discrimination laws. The company must also provide periodic reports to the EEOC on its hiring practices. According to Lynette A. Barnes, regional attorney for the EEOC, "The EEOC is committed to fighting discrimination in the workplaceEmployers must be careful not to apply stereotypes against women based on perceptions that they must always be the primary caregivers and therefore are unreliable employees."...

OSHA Launches Heat-Related Illnesses Campaign

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Published on Tuesday, 03 May 2011 06:10

Secretary of Labor Hilda L. Solis announced a national campaign by the U.S. Department of Labor's Occupational Safety and Health Administration (OSHA) to educate workers and their employers about the hazards of working outdoors in the heat and steps needed to prevent heat-related illnesses. According to OSHA, each year thousands of outdoor workers experience heat illness, which often manifests as heat exhaustion. If not quickly addressed, heat exhaustion can become heat stroke. More than 30 workers died from this last year. Heat is particularly dangerous for workers in jobs ranging from agriculture and landscaping to construction, road repair, airport baggage handling and even car sales. According to OSHA Assistant Secretary Dr. David Michaels, "As we move into the summer months, it is very important for workers and employers to take the steps necessary to stay safe in extreme heatDrinking water often, taking breaks and limiting time in the heat are simple, effective ways to prevent heat illness." OSHA has developed heat illness educational materials in English and Spanish, as well as a curriculum to be used for workplace training. In addition, a new Web page provides information and resources on heat illness including how to prevent it and what to do in case of an emergency for workers and employers. The page is available at http://www.osha.gov/SLTC/heatillness/index.html....

The ADA's Requirements on Service Animals in Places of Business

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Published on Tuesday, 03 May 2011 05:57

Experts Contend Gender-Based Wage Gaps Persist

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Published on Tuesday, 03 May 2011 04:52

Court Finds No FEHA Violation Because Employer Properly Engaged in the Interactive Process

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Published on Friday, 29 April 2011 19:15

The Department of Fair Employment and Housing ("DFEH") and Steven J. Carauddo appealed a district court's grant of summary judgment in favor of Lucent Technologies, Inc. ("Lucent"), Carauddo's former employer. Carauddo claimed that Lucent terminated him in violation of the California Fair Employment and Housing Act ("FEHA"). In addition, the DFEH challenged the district court's finding of diversity jurisdiction. Carauddo worked as a telecommunications installer for Western Electric, Lucent's predecessor. An installers duties consist mostly of physical functions such as running cable, drilling holes, setting frames and wiring cell cabinets. These activities require an installer to be able to lift and maneuver items over 30 pounds. While performing his job, Carauddo suffered a back injury and took a medical leave of absence beginning in January of 2005. In these situations, Lucent requires that a member of their medical department, usually a nurse, stay in communication with the employee throughout the disability period. Over the next few months, Lucent received varied work restrictions from Carauddo's health care provider that ranged from no bending, twisting and lifting over 10 pounds to occasionally lift or carry weights from 21 to 50 pounds. Lucent sought clarification from the medical provider and then advised Carauddo that the work restrictions could not be accommodated. Eventually, Carauddo was terminated on January 25, 2006. In March of 2006, Carauddo was cleared by his physician to return to work with no restrictions. When Lucent did not reemploy Carauddo, he filed a complaint with the DFEH. The district court held that during the disability period Lucent communicated frequently with Carruddo, that "Lucent reasonably accommodated Carruddo, and that DFEH failed to establish that Lucent's legitimate reason for terminating him was merely pretextual."...

9th Circuit Upholds Decertification of Class in Overtime Case

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Published on Friday, 29 April 2011 18:23

Michael Marlo and United Parcel Service, Inc. (UPS) both appealed a jury verdict awarding Marlo unpaid overtime, meal, and rest-period wages. UPS had classified Marlo as an executive and administrative employee under California's Industrial Welfare Commission (IWC) Wage Order No. 9. Therefore, UPS did not pay Marlo overtime or provide meal and rest periods. Marlo worked for UPS as a "hub supervisor." His job duties included supervising and training hourly employees, and part-time supervisors engaged in unloading, sorting, and loading packages. He also assigned employees tasks, provided training to ensure safety and efficiency, monitored the performance of employees and coordinated delivery times and volume. Marlo filed a class action, asserting that UPS had misclassified 1200 supervisors as exempt. The district court initially certified a class comprised of full-time supervisors employed by UPS from 2000 to 2004, who also allegedly were misclassified, and appointed Marlo as class representative. In 2008, however, the court decertified the class on the ground that Marlo failed to prove that common issues of law or fact predominated over individual ones. Specifically, the court held that Marlo failed to prove that the class members were engaged in nonexempt work, and that misclassification was the "rule rather than the exception." On appeal from that decision, the court held that the district court did not abuse its discretions in decertifying the class. In particular, the court held that the district court did not err in requiring a "week by week showing of work the [supervisors] actually performed," to determine whether any of the supervisors spent more than 51% of their time on managerial tasks....

EEOC Files Three Lawsuits Charging Labor Trafficking

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Published on Thursday, 28 April 2011 07:00

DOL Obtains Judgment for $1.76 Million in Overtime Violations

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Published on Thursday, 28 April 2011 03:59

The U.S. Department of Labor (DOL) obtained a partial summary judgment requiring Hill Country Farms, to pay more than $1.76 million in back wages and other damages for allegedly violating the minimum wage and overtime provisions of the federal Fair Labor Standards Act (FLSA). The court concluded that the defendants willfully violated the FLSA by failing to properly pay 31 workers with disabilities. Henry's Turkey Service supplied the workers to a turkey processing plant, where most worked on the plant's processing line. According to Secretary of Labor Hilda L. Solis, "Working on a poultry processing line is a particularly difficult and dangerous jobHenry's Turkey Service exploited vulnerable employees who have a right to, and deserve, every penny that they earned." The DOL alleged that Henry's Turkey Service paid the disabled workers $65 a month in cash wages even when company time sheets reflected that the employees worked more than 40 hours a week. In addition to employing the workers, the company "provided in-kind care, room and board, serving as the workers' caretaker as well as the designated representative payee of their Social Security benefits. Henry's Turkey Service claimed credit for the food, housing and care against its wage obligation; however, the company also reimbursed itself for those expenses using the workers' Social Security benefits." The court found that the company failed to show that it incurred any costs above the amount received from the Social Security benefits and denied the credit toward the employees' wages....

Failure to Evenhandedly Apply Workplace Policy May Create Inference of Discrimination

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Published on Tuesday, 26 April 2011 05:56

Names of Job Applicants With Marijuana Convictions to Remain Confidential

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Published on Tuesday, 26 April 2011 04:37

The City Of Los Angeles Must Pay $1.5 Million For Disability Discrimination

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Published on Monday, 25 April 2011 22:52

The City of Los Angeles ("City") filed an appeal from a judgment of $1,571,500 in favor of plaintiff, Rory Cuiellette ("Cuiellette"), a Los Angeles Police Department (LAPD) officer, on his claims of disability discrimination and failure to accommodate a disability under the California Fair Employment and Housing Act (FEHA). Specifically, on appeal, the City argued that substantial evidence did not support the trial court's liability finding because the evidence showed that Cuiellette was unable to perform the essential functions of a police officer with or without a reasonable accommodation. Cuiellette suffered a workers' compensation injury and was placed on disability leave. After his workers' compensation case was resolved with a finding of "100% disability," the City accepted his request to return to work. Cuiellette returned to work with a note from his physician authorizing him to perform "permanent light duty-administrative work only." The note did not specify any particular work restrictions. The City then assigned Cuiellette to the "court" or "renditions" desk in the fugitive warrants division, a purely administrative position requiring no field duty. The City had a long standing practice of accommodating police officers by placing them into light-duty positions that did not require many of the essential functions of a sworn police officer such as making arrests, taking suspects into custody and operating vehicles in emergency situations. Although there was no dispute that Cuiellette could not perform these essential functions of this position, Cuillette's disability did not prevent him from performing the essential functions of the light-duty administrative position. However, Cuiellette worked less than five days when the City realized that he had a 100% disability rating in the workers' compensation case, and thus sent him home. Significantly, on appeal the court held that whether or not a worker with a 100% disability rating can perform light duty is "beside the point because workers' compensation and FEHA require separate inquiries...the question is whether Plaintiff's medical restrictions prevented him from performing the essential functions of the position that he held or desired to fill."...

Auto Dealership Will Pay $300,000 For Race Discrimination

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Published on Friday, 22 April 2011 19:17

An employer, Ganley Lincoln of Bedford, Inc. (an auto dealership) will pay $300,000 to four African-Americans to settle a racial harassment lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC). According to the EEOC, Ganley's general manager at the time of the incident, routinely used derogatory terms to refer to blacks, customers as well as employees, including the epithet "n----r." In addition, the general manager, when referring to an older African-American employee, stated that he wished the "old n----r ... would hurry up and die." Further, the EEOC alleged that the general manager utilized a compensation system which disadvantaged black salespeople with regard to their sales opportunities and commissions. Racial discrimination is a violation of Title VII of the Civil Rights Act of 1964. The EEOC filed suit after attempting to reach a pre-litigation settlement through its conciliation process. In addition to the monetary amount, the two-year consent decree settling the suit requires the employer to provide training on employee rights and employer obligations under Title VII, as well as "supervisor accountability with regard to racial discrimination." The employer must also post a notice to employees about the lawsuit that provides the EEOCs contact information. According to EEOC Regional Attorney Debra Lawrence, "Racial harassment is utterly unacceptable and illegal...It demeans the entire workplace as well as the direct victims. This settlement both the monetary relief and the training -- will help ensure that African-Americans at this company will never have to face such abuse again."...

Employers Continue to Face Difficult and Costly Litigation

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Published on Wednesday, 20 April 2011 18:28

Recent cases, involving both jury trials and settlements, demonstrate that employers continue to face difficult and costly litigation in employment law disputes. Fortunately, in two of the cases described below, the employers obtained a defense verdict, although most likely still incurred significant defense costs. The defense costs of a single plaintiff case, taken through trial, are estimated by some to be in the $300,000 range, for reputable defense firms. Moreover, the significant amount of actual defense costs does not begin to address the immense time commitment these cases require from an employer in preparing a defense. For example, the typical production of documents in a wage and hour case often involves compiling volumes of payroll records that cover significant periods of time. In addition, the depositions of supervisors, managers, human resources personnel, co-workers and many others may be required as part of the lawsuit. Thus, because of the substantial amount of time and expenses associated with employment law litigation, and because of the continuing barrage of these types of case, employers must understand and follow the law, properly train their staff, and document as needed, particularly in regards to personnel matters. Employers should also consider "Employers Practices Liability Coverage" (EPLI). This is a type of insurance which provides coverage for most employment related matters. Some policies even cover wage and hour disputes, which many employers unfortunately must contend with, particularly in regards to misclassification of employees and overtime compensation claims. The following cases, which involve age discrimination, harassment, sexual orientation discrimination, exempt/overtime claims and failure to accommodate disputes are only a small sampling of the employment law cases that continue to plague employers....

Shareholder's Control Over Employees is Not Determinative of Employer Status

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Published on Wednesday, 20 April 2011 06:02

Employees of a corporate-owned car dealership sued the corporation and its sole shareholder, alleging causes of action for age discrimination and violation of the California Family Rights Act. The trial court granted the shareholder's motions for summary judgment on the ground that only the corporation as the employer could be held liable for discrimination, and an alter ego theory was not pleaded in the complaint. The employees claimed that the sole shareholder was an employer under the statutes, the proper test for determining who is an employer being the degree to which that person controls the employee. They also claimed that the shareholder was liable for the wrongdoing of the corporate employer under an alter ego theory. On appeal, the court concluded that the shareholder's control over the employees was not the proper test to determine whether he was the actual employer. The court emphasized that "The essence of the alter ego doctrine is not that the individual shareholder becomes the corporation, but that the individual shareholder is liable for the actions of the corporationThe proper method for determining whether the sole shareholder of a corporate employer is liable for the wrongdoing employer/corporation, is by the application of an alter ego theory. We agree with the trial court that plaintiffs did not adequately plead an alter ego theory of recovery in their complaint. This being the case, defendant Cooper was under no duty to negate an alter ego claim."...

Class Certification Denied in Wage and Hour Case

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Published on Wednesday, 20 April 2011 05:59

A group of employees who worked as store managers for Big Lots Stores, Inc., and its affiliate, PNS Stores, Inc. (collectively Big Lots) filed a lawsuit on behalf of themselves and others similarly situated alleging that Big Lots failed to pay overtime compensation and various other wage-and-hour, meal and rest-time claims, as well as a claim for unfair business practices. Big Lots operates 178 closeout retail stores in California. The employees asserted that Big Lots uniformly misclassified its store managers as exempt employees based on their job description alone rather than on consideration of actual work performed, which allegedly involved a significant amount of time on nonexempt tasks. The store managers asserted that Big Lots classified store managers as exempt based on their job description and not on the actual work they performed in the stores. Further, the store managers alleged that they spent a significant amount of their time performing non-managerial tasks such as stocking shelves, unloading delivery trucks, packing boxes, assembling merchandise and displaying merchandise. One store manager alleged that he spent approximately "75%" of his time performing such non-managerial tasks, and that when doing so he was not directing the work of others, as required by the exemption criteria. The trial court denied their motion to certify a class of present and former Big Lots store managers holding that the company does not operate its stores in a standardized manner and has no systematic practice of misclassification of managers. On appeal, the court affirmed emphasizing that "there was insufficient evidence of a uniform corporate policy requiring store managers to engage primarily in non-managerial duties."...

Bill Would Make OSHA Voluntary Support Protection Program Permanent

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Published on Monday, 18 April 2011 15:58

Senator Michael B. Enzi (R-Wyo.), Ranking Member on the Senate Health, Education, Labor and Pensions (HELP) Committee, joined with Senator Mary Landrieu (D-La.), Chair of the Senate Small Business Committee, to introduce legislation, the Voluntary Support Protection Program (VPP) Act (S.807 and H.R. 1511), which would make one of the most successful workplace health and safety programs for both public and private employers permanent. The proposed VPP Act codifies a popular OSHA program which encourages employers to incorporate voluntary programs to improve the health and safety of their worksites. Created in 1982, the VPP now incorporates more than 2500 worksites that cover approximately one million employees. A 2007 report noted that federal VPP worksites saved the government more than $59 million by avoiding injuries, and that private sector VPP participants saved more than $300 million. Participating workplaces have an illness and injury rate that average 50 percent below that of their industry. According to Senator Enzi, "The Voluntary Protection Programs have encouraged a culture of health and safety in the workplace that saved the government and private sector millions of dollars by avoiding injuries and illnessAnd in this economy every little bit helps. As a former small business owner myself, I understand that maintaining a safe workplace is just as important as turning a profit. This bipartisan bill would ensure that these successful programs continue while helping expand the program to include more of Americas small businesses. I hope my colleagues will support this crucial legislation because preserving these programs that make worksites safer is something both parties should agree on." To participate in the VPP, employers must submit an application to OSHA and undergo a rigorous onsite evaluation by a team of safety and health professionals. Union support is required for applicants represented by a bargaining unit. VPP participants are re-evaluated every three to five years to remain in the programs. VPP participants are exempt from OSHA programmed inspections while they maintain their VPP status. The exemption does not apply to inspections resulting from employee complaints, fatalities or catastrophic events....

Distinguishing Between Disability Caused Misconduct and Disability Itself

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Published on Monday, 18 April 2011 15:56

Plaintiff Linda Wills worked for the OC Court until it terminated her employment for allegedly violating its written policy against verbal threats, threatening conduct, and violence in the workplace. Wills sued the OC Court, alleging it terminated her for conduct related to her mental disability (she suffered from bi-polar disorder). Wills argued the Fair Employment and Housing Act (FEHA) prohibits an employer from terminating or disciplining an employee for workplace misconduct caused by a disability in the same manner as it prevents an employer from discriminating against an employee for having a disability. The trial court granted the OC Court's summary judgment motion on the grounds that (1) Wills failed to exhaust her administrative remedies on the six FEHA causes of action relating to discrimination and harassment she alleged in her complaint and (2) Wills's misconduct provided a legitimate, nondiscriminatory basis for terminating her employment. On appeal, the court agreed concluding that Wills failed to exhaust her administrative remedies as to five of her six causes of action, and the remaining cause of action fails because Wills's misconduct provided a legitimate, nondiscriminatory reason for her termination. The court specifically held that Wills's disability discrimination claim should fail because an employer may reasonably distinguish between disability caused misconduct and the disability itself when the misconduct includes threats or violence against coworkers. In these circumstances, terminating the employee based on the misconduct does not amount to discrimination prohibited by FEHA. However, the court emphasized that "we interpret FEHA as authorizing an employer to distinguish between disability-caused misconduct and the disability itself in the narrow context of threats or violence against co-workerswe are not presented with a situation involving misconduct impacting an employee's job performance the employer could potentially address through accommodation" [emphasis added]. Thus, the court made an important distinction between disability related misconduct that involves threats or violence versus misconduct involving job performance....

Proposed Legislation Would Expand FMLA

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Published on Friday, 15 April 2011 07:28

Rep. Carolyn Maloney (D-NY) has introduced legislation, the Family and Medical Leave Enhancement Act (H.R. 1440), which would expand the Family and Medical Leave Act (FMLA) to allow both private and federal employees to take parental involvement leave in addition to leave to care for elderly relatives. H.R. 1440 allows employees to take time off work to participate in their children's or grandchildren's school or community organization activities (such as parent/teacher conferences, scouting or sports events), attend regular medical/dental appointments, or attend to the needs of an elderly relative, such as visiting them in a nursing home. The legislation also expands who would be considered an employee "eligible" to take FMLA leave. Further, pursuant to the proposed legislation, the FMLA would apply to employers with 25 or more employees within the prescribed radius, not 50 as is the current law. This is a significant expansion of the employers who would be covered by FMLA. Those employees eligible for FMLA leave under the legislation would be able to take up to 4 hours of leave in any 30-day period of time, not to exceed 24 hours in any 12-month period. The leave is in addition to the other types of FMLA leave that are available. California law currently requires employers to provide "School Activities Leave." Specifically, employers must provide parents, guardians, or custodial grandparents of a child or children in kindergarten through grade 12, or a child in a licensed child day-care facility, with up to 40 hours per year of unpaid leave to participate in school activities. The leave cannot exceed more than eight (8) hours in a calendar month. The employee must provide his or her supervisor/manager with reasonable notice of the required leave....

Walmart to Pay $440,000 for Harassment of Latinos

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Published on Friday, 15 April 2011 06:50

Proposed Legislation Targets Misclassification of Employees