Archive for February, 2013

OFCCP Ditches Compensation Discrimination Guidelines, Turns to Title VII Principles Instead

If a federal contractor’s compensation practices would violate Title VII of the 1964 Civil Rights Act, they also will be found to violate the federal government’s ban on contractor discrimination, the Office of Federal Contract Compliance Programs announced today.

The announcement came as the OFCCP rescinded pay discrimination guidelines and voluntary standards for contractors to self-evaluate their compensation practices, deeming them too narrow in focus and not clear enough on many details.

Instead, the OFCCP said, it will from now on follow principles developed under Title VII for analyzing pay discrimination claims. The OFCCP enforces Executive Order 11246, which prohibits pay discrimination against women and minorities in federal contracts.

Since women in this country still make on average 70 percent of what men make, this is an important development that contractors will want to take note of and adjust their pay practices if necessary to avoid any violation.

You can read the OFCCP’s document announcing the change here.




EEOC Charges Airline Crew Transport Company in “Pattern and Practice” Lawsuit

A “pattern or practice” charge of employment discrimination is about the most serious allegation the Equal Employment Opportunity Commission can bring against an employer. It basically means that the EEOC thinks that discrimination is the standard operating procedure for that employer. The bias is both wide and deep in that instance.

So it’s noteworthy that yesterday the EEOC charged a Florida-based employer with a pattern or practice of employment discrimination against African American job applicants. According to the EEOC’s suit, Prestige Transportation Service, LLC, a successor corporation to Airbus Alliance, Inc., refused to hire black applicants for employment, discriminated against a black employee, and retaliated against three employees for opposing race discrimination and/or filing a discrimination charge with the EEOC. Prestige primarily transports crew members of airlines between airports and their hotels

The details of the commission’s suit paint a very unflattering portrait of what went on at the company. The EEOC alleged that Prestige’s management regularly told its human resources manager that it would be a “waste of paper” to give black persons employment applications, advised her not to give applications to African-Americans, and stated that “black people were trouble and would sue the company.” In addition, EEOC said, Prestige singled out its one, non-Hispanic black employee by forcing her to leave early on a regular basis, while allowing Hispanic employees to work their full shifts.

And if that isn’t enough, the EEOC also claims that Prestige:

  • unlawfully destroyed or failed to keep records and documents related to employment applications, personnel records, and documents regarding rates of pay and other terms of compensation;
  • punished employees who opposed the company’s unlawful practices; and
  • fired three employees in retaliation for voicing their objections.

While this may be an extreme case, the lesson for employers is to institute nondiscriminatory hiring practices and make sure that requirement is communicated to HR and all hiring departments.

Read more.


U.S. Supreme Court To Decide Whether Employer Must Pay Employees for Putting On and Taking Off Protective Gear

“Donning and doffing” may sound like words from a Monty Python script, but it’s actually an important issue for businesses trying to figure out what pre- or post-work activities they must pay their employees for.

So when the U.S. Supreme Court agreed last week to hear a case involving “donning and doffing”  under the Fair Labor Standards Act, employers from around the country began paying attention. The outcome is particulary important in industries requiring the wearing of protective gear, such as the meal and poultry processing plants.

The specific issue before the court will be whether putting on and taking off protective gear constitutes the changing of clothes under Section 203(o) of the statute. Under that provision, an employer does not have to pay employees for time spent changing their employees at the beginning and ending of the workday, unless required by a collective bargaining agreement.

The case is Sandifer v. U.S. Steel, Corp., No. 12-417. It will be argued and decided in the court’s next term starting in October 2013.

For more background on the Seventh Circuit’s decision that the U.S. Supreme Court granted review on, see this posting from the Foley and Lardner law firm.

Washington Supreme Court OKs 20-Day Suspension for Noose Hanging in Workplace

Call it the Goldilocks solution: A 20-day suspension without pay for hanging a noose was just about right under Washington’s employment discrimination laws.

That’s what the Washington Supreme Court ruled last week in a case brought by the International Union of Operating Engineers Local 268 on behalf of a Port of Seattle employee who was given a 20-day suspension by the port.

The port had fired the employee for this offense, but the arbitrator found that the firing was excessive and without cause. So he reduced the penalty to a 20-day suspension without pay.

Both a state trial and appeals court vacated that award.

Reversing, the high court found the penalty to be “substantial” given that it amounted to a month without pay. It also pointed out that its review of arbitration awards is “extremely limited” and does not empower it to make its own separate findings in the case.

Here’s the court’s ruling.



Medical Practice Settles EEOC Suit Charging Its Attendance Policy Violated ADA

The Equal Employment Opportunity Commission signaled recently that it does not look kindly on attendance and absenteeism policies that make no exception for employees who need a reasonable accommodation to deal with their disabilities.

The signal came in the form of a lawsuit filed by the EEOC against a Maryland-based medical practice. The commission said that University of Maryland Faculty Physicians Inc. had violated the Americans With Disabilities Act by firing an employee instead of granting her request for one additional day of unpaid leave.

The employee, who suffered from Crohn’s disease, had taken two weeks off from work to deal with the condition. Following her discharge, the EEOC sued on her behalf to get her reinstated with back pay.

The EEOC said that the defendant settled the case for $92,500 and will submit to a three-year court-supervised consent decree. As part of the settlement, it will have to revise its no-exceptions attendance and absenteeism policy.

The faculty physicians group coordinates and supports the clinical activities of the University of Maryland School of Medicine and employs over 1,000 non-physician staff who support the clinical practices of the University of Maryland faculty.

HHS, OSHA Weigh in With New Affordable Care Act Rules

The hits keep on coming under the Affordable Care Act with two new pronouncements today. In the first, the U.S. Department of Health and Human Services issued a final rule detailing the ACA’s prohibition against charging discriminatory rates for health insurance for persons with pre-existing conditions.

In brief, the rule, which will be published in the February 27 federal register, implements five key provisions of ACA for nongrandfathered individual and small group plans:
• Guaranteed availability: Health insurers are required to sell policies to all consumers. No one can be denied health insurance because they have or had an illness.
• Health insurance premiums: Premiums can vary only based on age, tobacco use, family size, and geography.
• Guaranteed renewability: Health insurers cannot refuse to renew coverage because of illness.
• Single risk pool: Health insurers cannot charge higher premiums to higher-cost employees by moving them into separate risk pools. Single statewide risk pools must be maintained for the individual market and the small group market.
• Catastrophic plans: Young adults and people for whom coverage would be unaffordable will have access to catastrophic plans that have lower premiums in the individual market, with out-of-pocket cost protection and preventive services covered without cost-sharing.

Insurance companies must report all rate increases. In spite of pleas from health insurers and some state insurance regulators, the “age rating” requirement will not be phased in. Under that requirement, young people will have to pay more so that older enrollees can pay less.

In the second important development of the day, the U.S. Department of Labor’s Occupational Safety and Health Administration–the nation’s premier enforcer of workplace retaliation provisions–published an “interim final rule” concerning the filing of whisteblower complaints under section 1558 of the statute. That provision of the statute prohibits retaliating against individuals for pursuing their rights under the law.

That’s Washington D.C. speak for a rule that’s not yet final but definitely on the way there.  So here’s your chance to weigh in on the interim rule before a final rule is released. The interim final rule can be viewed at Comments, which will be accepted for 60 days, may be submitted electronically via the federal e-rulemaking portal at, or by mail or fax.

Finally, another shout-out to my blogging colleague Christine Roberts, who in her inimitable style, wrote a detailed analysis of the 12th set of the government’s frequently answered questions (FAQs) issued earlier this week.

EEOC Recovers $50,000 for Fired Stroke Victim Denied Additional Leave

An employer’s denial of a request for some additional leave to a stroke sufferer has set it back $50,000, the amount it agreed to pay to settle a lawsuit brought by the Equal Employment Opportunity Commission charging that its actions violated the Americans With Disabilities Act.

The EEOC had filed suit against REDC Default Solutions, based in Irvine, California, that provides third-party assistance in short sales and other real estate transactions. The EEOC filed suit on behalf of Asset Manager Terria Wiley, who it said had gone out on medical leave following a stroke and then submitted a note from her doctor asking for some additional leave.

She even provided a doctor’s note giving a specific date when she could return to work, but instead of granting her request for more leave, the company fired her, the EEOC said.

A simple accommodation might have avoided all the fuss, the EEOC suggested.

“Refusing to grant a reasonable accommodation to an individual with a disability violates the Americans with Disabilities Act (ADA), unless granting that accommodation would create an undue hardship for the employer,” EEOC said. “Reasonable accommodations can include adjustments as simple as providing a stool to sit on or granting extra sick leave.”

Read more.

Final Rule Fleshes Out “Essential Benefits” Under Affordable Care Act

Another milestone in implementation of the Affordable Care Act was reached today when the U.S. Department of Health and Human Services issued its final rule on what are the “essential benefits” that group health plans must start covering in 2014.

The 10 essential benefits that group health plans must cover are ambulatory patient services; emergency care; hospitalization; maternity and newborn care; mental health and substance use disorder services, including behavioral health treatment; prescription drugs; rehabilitative and rehabilitative services and devices; laboratory services; preventive and wellness services, and chronic disease management; and pediatric services, including dental and vision care.

The rule also states an insurer may not discriminate based on an “individual’s age, expected length of life, present or predicted disability, degree of medical dependency, quality of life or other health conditions.”

The final rule also assigns ratings to plans–ranging from platinum to bronze–giving consumers an idea of how generous or not the plan is.

I wrote about the proposed rule when it came out in this blog post.

In another ACA-related development, the U.S. Department of Labor today issued its 12th set of answersw to frequently asked questions under the law. This latest set addresses limitations on cost sharing and coverage of preventive services, including contraception.

You can read the text of the final rule here and the FAQs here.

DOL Lawsuit Demands Utah Company Return Overtime Wages to Employees

A company cannot demand back the wages it wrongfully withheld from employees. That truism apparently escaped the notice of a Utah tree trimming and stump removal company, which the U.S. Department of Labor took to court last week in an effort to refund the employees their money.

DOL said that an investigation by its Salt Lake City field office revealed that Diamond Tree Experts paid its workers who worked overtime straight pay rather than time and one half as required under the Fair Labor Standards Act.

The company paid the workers what they were owed, but then demanded the money back, the DOL charged. That’s a violation of the FLSA’s prohibition against retaliation for workers exercising their rights. According to the government’s complaint, the company required two employees to return $7,500 in back wages and when they refused to do so it fired them.

Sounds like a case of the company shooting itself in the foot and winding up in court, an outcome it apparently wanted to avoid in the first place when it paid the back ages due.

Here’s more on the DOL’s lawsuit.

Bar Tab Comes to $20,000 For Improperly Removing Pregnant Server From Work Schedule

Sometimes employers will trip over the easiest of Title VII’s requirements, like treating pregnant employees no differently than any employee with a temporary medical condition.

The last case in point came last week when the Equal Employment Opportunity Commission announced it had settled a Title VII lawsuit on behalf of a pregnant server in a Mississippi bar who was fired allegedly because of the “toll” her pregnancy was taking on her job performance.

Under the terms of the settlement, the server will received $20,000 in backpay and the bar will have to implement new policies and practices to prevent preggnancy discrimination from occurring.

Except that, according to the EEOC, server Melody McKinley, who was four months pregnant at the time, never cut back on her schedule and was no medical or working restrictions when she was fired.

In spite of that, EEOC said,  Reed Pierce’s bar in Byram, Miss., removed McKinley from her weekly schedule and fired her because of her pregnancy.

“The baby is taking its toll on you,” was the bar’s explanation for these actions.

But after the bar lost its second motion to dismiss and the lawsuit was slated for trial, it wised up and decided to settle.

Apparently the bar was ignorant of Title VII’s requirement that a pregnant employee be allowed to work just like anyone with a temporary medical condition would be–and that it is her decision, not the employer’s, as to when it is appropriate to take off.

The EEOC lays it out very well on its web page on pregnancy discriminaton under Title VII of the 1964 Civil Rights Act.