Archive for April, 2013

Goodwill Toward Men: Charity to Pay $130K on Allegations Its Hiring System Favored Women

If you start seeing more men staffing entry-level positions at Goodwill Industries of Southern California, you can credit the U.S. Department of Labor, which recently announced it has settled a complaint that the organization unfairly favors women in hiring for those jobs.

Goodwill Industries has contracts with several branches of the U.S. military and government agencies in California, which subjects it to nondiscrimination requirements under Executive Order 11246.

DOL’s Office of Federal Contract Compliance Programs, which enforces those requirements through complaint investigations and enforcement actions, “determined that Goodwill’s hiring process favored female applicants for entry-level positions as attendants at local donation centers, in part because of perceptions that women have better customer service skills. The investigation concluded that 200 qualified men were denied the opportunity to advance to the offer stage.”

Under the terms of the settlement Goodwill will pay $130,970 in back wages to the affected individuals and as openings occur will make 18 job offers to qualified men who were not previously offered positions, OFCCP said. Goodwill also has agreed to undertake extensive self-monitoring measures and training to ensure that all hiring practices fully comply with Executive Order 11246, the federal law that prohibits federal contractors and subcontractors from discriminating in employment decisions on the basis of race, color, religion, sex or national origin.

Read more from the OFCCP.

Prison Operator Settles Sexual Harassment Suit For $140,000; EEOC and Arizona Civil Rights Division Co-Litigated

When there’s employment discrimination in one part of an organization, it often seeps into other parts. A prison is no different. Unlawful conditions at one institution may be replicated at others.

A lawsuit bringing these conditions to light can be a forcing mechanism for change.

So prison operators should heed a settlement announced today between the Equal Employment Opportunity Commission and Florida-based GEO Group in a sexual harassment lawsuit over behaviors at the company’s prison facility in Florence, Arizona. According to the EEOC, “male managers at GEO sexually harassed numerous female employees and fostered an atmosphere of sexual intimidation and harassment. The sexual harassment included serious verbal harassment and physical harassment of the female employees.”

This suit went to trial, where last Friday U.S. District Court Judge Susan R. Bolton signed a consent decree ending the litigation.

Under the terms of the decree, GEO will pay $140,000 to two victims of the harassment, and take other actions, including training its managers, to make sure that the harassment doesn’t recur.

The Arizona Civil Rights Division co-litigated the case with the EEOC.

Read more.

High Today, Gone Tomorrow: Colo. Appeals Court Says OK to Fire Employee Who Uses Pot Off-Duty

It’s legal in Colorado to smoke marijuana for medicinal or recreational purposes, but that doesn’t mean an emnployee can’t be fired for marijuana use, even when it’s off-duty.

The Colorado Court of Appeals last Thursday upheld an employee’s firing for testing positive for using marijuana for medicinal purposes. The court determined that there is no employment protection for medical marijuana users in the state because the drug remains barred by the federal government.

Colorado, like many states, has a statute that protects employers from taking adverse action against employees because of off-duty activities. But that didn’t help the employee avoid discharge in this case.

“While we agree that the general purpose of (the Lawful Off-Duty Activities Statute) is to keep an employer’s proverbial nose out of an employee’s off-site off-hours business,” Court of Appeals Chief Judge Janice Davidson wrote in the opinion, “we can find no legislative intent to extend employment protection to those engaged in activities that violate federal law.”

Here’s the court’s ruling in full.

Settlement Nets EEOC $230,000 in Racial Harassment, Retaliation Suit Under Title VII

A Utah-based construction company will pay big time for allowing its site superintendent to run roughshod over the rights of African-American employees. The EEOC announced earlier this month that it has pried $230,000 from Holmes & Holmes Industrial Inc., whose site superintended subjected the African American employees to a string of racial epithets–which in the interests of good taste I will not repeat here.

The company’s anti-harassment policy was also deficient under Title VII of the 1964 Civil Rights Act, because it required the offended employees to complain to the perpetrator without any means of going around him.

Ultimately a lose-lose proposition for the company.

Read more.

Rhode Island Poised to Become Last State in New England to Enact Same-Sex Marriage

Don’t look now, but by summer time gay couples may be flocking to New England to get marriage licenses. If, as expected, Rhode Island follows through on allowing same-sex marriage, companies in the region will find it easier to administer same-sex benefits across state lines.

This morning came the news that the Rhode Island senate passed a same-sex marriage bill yesterday. The bill had already passed the state house, and the senate was considered the tougher of the two chambers when it came to this issue.

Governor Lincoln Chafee, an independent, is expected to sign the bill when it arrives on his desk, which is expected to happen next week. The law is expected to take effect August 1.

Until now, Rhode Island, a heavily Catholic state, was the last holdout in the New England region to approve same-sex marriage.

But starting this summer, if all goes according to plan, Massachusettws, Vermont, Rhode Island, Connecticut, Maine and New Hampshire all will allow same-sex couples to marry.

Four other non-New England states (Maryland, Washington, Minnesota, and Iowa) plus the District of Columbia also allow same-sexc marriage.

Staffing Agency Retaliated Against Recruit, EEOC Suit Alleges

It’s no less retaliation under Title VII of the 1964 Civil Rights Act for a recruitment agency to refuse to send someone out on assignment because he or she has filed an employment discrimination against it than it would be for the company where the person is assigned to do so.

The Equal Employment Opportunity Commission made that point clear yesterday when it announced it has filed a Title VII lawsuit agianst Hire Dynamics, a major staffing and professional recruitment agency headquartered in Duluth, Georgia. According to the commission’s suit, Hire withheld job assignments from a qualify auditor whom it had orginally assigned to one of the agency’s clients.

However, the EEOC charged, after the auditor was suspended for one week, following which he sued Hire for employment discrimination. Hire gave him no further work opportunities or assignments. The EEOC says that retaliation was the reason.

Of course, the proof is in the pudding. But still let this be a reminder to staffing agencies that the EEOC has them within its sites.

“When an employee files a discrimination charge with the EEOC, an employer has no right to punish him for exercising his rights,” said EEOC District Director Bernice Williams Kimbrough. “In today’s employment climate, the importance of protecting workers who utilize the charge filing process is greater than ever.”

HR, often the first line of defense for employers in these matters, should also note that preventing retaliation is one of EEOC’s six national priorities identified by its Strategic Enforcement Plan.

Read more.

Comp Time Substitution Bill Pending in Congress

A bill introduced in this sesson of Congress would allow employers in the private sector to substitute unpaid compensatory time off instead of overtime, ostensibly to give employees more flexibility in scheduling their working hours around their family responsibilities.

The Working Families Flexibility Act of 2013 would amend the Fair Labor Standards Act, which right now allows only public sector employers to make the comp time-overtime substitution.

Under the legislation, individual employers could choose whether to offer option for comp time, and then it would be up to individual employees to choose time or pay. The agreement would have to be writing, and employees would be limited to using the comp time “within a reasonable period after making the request if the use of the compensatory time does not unduly disrupt the operations of the employer.”

If the workforce is under a collective bargaining agreement, then comp time would have to be included in the agreement.

Anytime someone proposes to substitute time off for paid time under the Fair Labor Standards Act, it is sure to ignite debate. Expect this to be no different.

The bill, H.R. 1406, was introduced by Rep. Martha Roby, a Republican from Alabama.

Here’s one less-than-flattering analysis of the proposed law.

Appeals Court: NLRB Overstepped in Ordering Casino to Reinstate Workers Fired During Union Organizing

Six employees discharged by a casino during a union organizing campaign will have to wait a while to get their jobs back. The U.S. Court of Appeals ruled this week that a lower court was correct in finding that the National Labor Relations Board overstepped its discretion in ordering the employees to be temporarily reinstated pending the conclusion of an unfair labor practices proceeding.

The dispute between the board and the casino, in part, is about whether the employees were fired because they were involved in the union organizing campaign.

In ordering the former employees’ reinstatement, the board reasoned that letting their firing go unremedied would chill the union’s organizing campaign by making other employees fearful that they might get fired if they took part in the campaign.

The board does have authority to order “just and proper” relief pending a final ruling on whether an unfair labor practice occurred. But the lower court found–and the appeals court affirmed–that the union organizing campaign was already faltering when the discharges happened.

Also, the courts noted, the NLRB had waited many months to file its unfair labor practice charge, undermining the board’s argumement that relief for the ex-employees is needed right now.

Here’s the court’s full ruling in NLRB v. Hartman and Tyner, Inc., doing business as Mardi Gras Casino.

Hispanic Employees Owed $250,000 By Restaurant in National Origin Case, EEOC Says

Few employers are brazen enough to pay some workers less than others because of their national origin, but a Japanese restaurant in Edgewater, N.J. crossed that forbidden line under Title VII of the 1964 Civil Rights Act, according to the Equal Employment Opportunity Commission.

The commission announced this week that Mitsuwa Corporation, which does business as Mitsuwa Marketplace, a large Japanese market in Edgewater, N.J., will pay $250,000 to settle a national origin discrimination lawsuit.

The commission charged the restaurant with paying its Hispanic employees less than nonHispanic employees for doing the same work.

A definite no-no under Title VII.

EEOC is definitely on the watch for these kinds of cases. From the press announcement: “Eliminating discriminatory policies affecting vulnerable workers who may be unaware of their rights under equal employment laws, or who may be reluctant or unable to exercise their rights, is a national priority identified in EEOC’s Strategic Enforcement Plan. These policies can include disparate pay.”

Read more.

This blog post featured at