Archive for September, 2013

EEOC Will Accept Charges During Shutdown

The clock is ticking toward a shutdown of the federal government in just a couple of hours.  The EEOC, like any agency that depends on congressional appropriations, will have to curtail some of its activities. But not all of them. The basic work of enforcing Title VII and other employment discrimination laws will go on.

The EEOC says it will take actions necessary “for the safety of human life or the protection of property.”

That includes the following: docketing new charges in order to preserve the rights of a claimant during a shutdown, litigate lawsuits where a continuance has not been granted, examine charges and seek prompt judicial action if necessary to protect life or property.

On the other hand, the EEOC says its won’t investigate charges, or answer questions from the public, conduct mediations, hold federal sector hearings, or decide federal employees’ appeals in discrimination complaints.

Here’s the full contingency plans as posted on the EEOC’s website.

Court: IBM’s Accommodations Allowed Deaf Employee to Perform Essential Job Functions

An employer does not have to provide accommodations that go beyond what’s necessary to permit a disabled employee to perform the essential functions of the job, a U.S. District Court in New York ruled on September 24.

In this case, a deaf employee working in IBM’s Poughkeepsie office wanted contemporaneous posting of captioned video and transcribed audio recordings whenever training or other video or audio files were posted on the company’s internal network.

But IBM had already provided the plaintiff and other deaf and hard-of hearing employees in its office with access to on-site and on-demand American Sign Language interpreters, video remote intepreting and similar services.

No further accommodation is required under the Americans With Disabilities Act or New York state law, the court held.

Those laws require only those accommodations that are reasonable under the circumstances, the court said. In the first quarter of 2013, as many as 4,000 files were added to IBM’s video library on the company’s intranet, it pointed out.

The case is Noll v. IBM Corporation.


Nevada Law Protecting Employees’ Social Media Accounts From Prying Employers Effective Oct. 1

What happens in Vegas will stay in Vegas,  and that includes access to employees’ and applicants’ social media accounts and credit information.

Make that the entire state of Nevada, which has a new law effective October 1 that prohibits employers from demanding access to this information.

Under the law, employers cannot employees or applicants for their user names, passwords, or other information that provides access to their personal social media accounts. The law also prohibits employers from taking action or threatening to take action against employees or applicants for not providing access to their accounts.

Employers can require employees to disclose user names, passwords, or other information to nonpersonal accounts or services in order to access the employer’s internal computer or information systems. Also,  employers are not prohibited from complying with any state or federal law or regulation or with any rule of a self-regulatory organization.

Regarding credit information, the law bars employers from:

  • asking employees and applicants to submit consumer credit reports or other credit information as a condition of employment;
  • using, accepting, referring to, or inquiring about consumer credit reports or other credit information

The law also contains the standard protections found in most employee-friendly laws against retaliation for filing a complaint or otherwise asserting one’s rights under the law.

Other states that have similar social media and credit score protection laws include Utah and Michigan.

The Society for Human Resource Managment website has a list of other states that have such laws and others where similar legislation has been introduced.

Bad Deal: Auto Franchise Forced Employee With MS Out Because of His Disability, EEOC Says

Car dealerships put on a happy face for their customers, but sometimes their treatment of one of their own can bring tears. They are not known for the strength of their HR departments.

A general manager at a dealership in Lubbock, Texas has an ally in the Equal Employment Opportunity Commission, which today announced it has sued the dealership for denying him him a partnership becaus eof his multiple sclerosis.

Instead, the EEOC charged, the dealership, Benny Chevrolet-Chrysler-Dodge-Jeep, Ltd., d/b/a Benny Boyd Lubbock subjected the general manager to a hostile work environment because of his disability, and forced him to quit and lose pay as a result of the harassment.

According to the lawsuit, the general manager’s compensation package included a promise to make partner, but once the company’s top management learned of his multiple sclerosis, it failed to honor its promise and told him his MS was the reason.

Comments such as “What’s wrong with you? Are you a cripple?” and telling him, “You are on your last quarter, buddy, since you have MS,” eventually resulting in the general manager being forced to resign, according to the complaint.

The EEOC said this conduct violated the ADA, and it is seeking relief on the general manager’s behalf.

Read more about the case.

DOJ, Company Owners Argue Legality of Contraceptive Mandate in Obamacare

Amid all the talk of “defunding” Obamacare, the legal question of whether employers may be forced to provide access to contraceptives in their employee health plans if it violates their religious beliefs is winding its way through the federal judiciary.

The D.C. Circuit Court of Appeals heard arguments yesterday in a case brought by the owners of a Freshway Foods produce company who object to the contraception mandate. The owners say that the requirement would cause them to violate their beliefs; the Obama Administration counters that the mandate applies to the company, not its owners, and that the company doesn’t have the same religious rights that individuals have.

The administration also argued that the requirement is a valid use of government authority and that the burden on the owners’ religious beliefs is not substantial.

There are other cases percolating through the federal courts on this question. In perhaps the best known, a federal court granted a company called Hobby Lobby an injunction against the mandate.

DOL: Bank of America Must Pay $2M for Discrimination Against Black Applicants

Nearly 20 years after the U.S. Department of Labor uncovered systemic hiring discrimination by the Bank of America, a DOL administrative law judge yesterday ordered monetary relief to the victims.

The judge ordered the bank to pay $2,181,593 in back wages and interest to 1,147  African American job applicants victimized by this discrimination.

According to the DOL, Bank of America unfairly closed job opportunities to African Americans applying for entry-level teller and administrative jobs at its Charlotte, North Carolina facility.

The ruling awards $964,033 to  1,034 applicants who were rejected for jobs in 1993 and $1,217,560 to 113  individuals who were rejected between 2002 and 2005,

In addition, when vacancies become available, Bank of America will have to extend job offers, with appropriate seniority, to 10 class members, the judge ruled.

Judge Linda Chapman issued her ruling under the authority of Executive Order 11246, which prohibits discrimination in employment by federal contractors. As a federally-insured financial institution that provides a variety of services and products, Bank of America is subject to the executive order, the DOL said.

Read more.

Monday, Monday: EEOC Sues Two Companies Under ADA, Settles With Third

A trio of ADA cases got the EEOC off to a fast start this week. The commission announced that it filed ADA lawsuits against two companies today and settled an ADA complaint against a third employer.

The companies on the receiving end of the two ADA actions are:

  • Norfolk Southern Railroad Company, which the EEOC alleged violated the ADA by not allowing a laborer who had degenerative disc order to return to work after receiving treatment for his disability and being cleared by his treating physician to return to work with no restrictions. EEOC claimed that the company’s medical director disregarded the treating physician’s opinion as to the employee’s ability to work and determined he was medically disqualified from working without ever examining him.
  • Mont Brook, Inc., doing business as The Cleaning Authority of Plainfield. The lawsuit charged that the Illinois-based company harassed an employee because of her disability and unlawfully inquired about her disability. The defendant, based in Plainfield, Ill., provides residential house cleaning services in the southwest suburbs of Chicago. According to the lawsuit, the company’s president referred to an employee who walks with an abnormal gait as a result of a stroke as “a cripple,” mockingly imitated the way she walks, and told her that she was being a “hysterical basket case” when she objected to that treatment. According to the investigation, the president also acknowledged asking the employee, “Are you crippled?”

In the settled lawsuit, the EEOC announced Creative Networks, LLC, which  provides services to disabled clients and is a Phoenix-based subsidiary of ResCare, Inc., has settled an alleged ADA violation for $57,500. According to the lawsuit, the company had a “rigid policy” of denying deaf and hearing-impaired applicants’ requests for American Sign Language (ASL) interpreting services costing more than $200 to complete its pre-employment orientation and training. The EEOC brought suit on behalf of Rochelle Duran, a deaf applicant, to redress Creative Network’s denial of her request for ASL interpreting services necessary to complete the company’s mandatory 24-hour pre-employment orientation and training program.

Read more about the cases by clicking on the links on the left side of the EEOC’s home page under newsroom.

Feds: Employers Must Allow Employees To Choose Bank for Direct Deposit

Direct deposit of paychecks has become ubiquitious in the workplace, with many employees not giving the practice much thought after they sign off on it.

But how many employees know that there are consumer protections enforced by the federal government and the state to make sure employers don’t abuse the practice of direct deposit?

That’s where a recent bulletin issued by the Consumer Financial Protection Bureau comes in. The bulletin, issued on September 12, reaffirms that although employers can require employees to receive their paychecks by direct deposition, they cannot require the employees to deposit their paychecks at a bank of the employer’s choosing.

CFPB issued Bulletin 2013-10 to reiterate the application of the Electronic Fund Transfer Act (EFTA) and Regulation E, which implements the EFTA, to payroll card accounts. Payroll card accounts are accounts that are established directly or indirectly through an employer, and to which transfers of the consumer’s salary, wages, or other employee compensation are made on a recurring basis.

Employees whose wages are deposited onto a payroll card are entitled to the protections of the EFTA generally, and Regulation E’s provisions applicable to payroll cards specifically, the bulletin said.

In addition to these protections for holders of payroll cards, Regulation E states clearly that no
“financial institution or other person” can mandate that an employee receive direct deposit into
an account at a particular institution.

In other words, Regulation E prohibits employers from mandating that employees receive wages only on a payroll card of the employer’s choosing.

An employer may,however, offer employees the choice of receiving their wages on a payroll card or receiving it by some other means. Permissible alternative wage payment method(s) are governed by state law, but may include direct deposit to an account of the employee’s choosing, a paper check, cash, or other evidence of indebtedness.

The CFPB was established under the Dodd-Frank Wall Street Reform Act to bolster protections for consumers vis-a-vis banks and other financial institutions.

EEOC, Construction Company Settle Suit Alleging Nonaccommodation Under ADA

It ought to go without saying that when an employee suffers an injury requiring surgery, he or she may need a reasonable accommodation to be able to get to work. When an employer doesn’t provide an accommodation in these circumstances, it risks being sued for an ADA violation.

That’s how Caddell Construction, a general construction contractor, found itself on the wrong end on an ADA lawsuit filed by the EEOC. According to the complaint, the company refused to provide a wheelchair ramp to enable an employee returning from leg surgery to enter the office. Instead, the EEOC charged, the company fired the employee several days after her request.

To settle the lawsuit, Caddell agreed to pay $125,000, and be subject to a consent decree, including training its employees on its ADA obligations and posting a notice informing the employees about the lawsuit.

Read more.

Facebook ‘Like’ Is Free Speech, Appeals Court Holds, Upholding First Amendment Claim

If you are a public official and tempted to act against a subordinate employee because he “likes” your opponent on Facebook, think again. A federal appeals court has just ruled that that activity is free speech protected under the First Amendment of the U.S. Constitution.

The case involves six former employees of the Hampton, Va. sheriff’s office, who claimed that they were not reappointed to their jobs when the sheriff won reelection in 2009 because they supported his opponent in the election.

Two of the plaintiffs argued that their support for the sheriff’s opponent on Facebook was the reason they were not rehired. One “liked” the opponent’s page and posted an encouraging comment, while the other posted a supportive comment to the page.

“Liking” someone on Facebook is substantive speech, amounting ot a digital yard sign, the appeals court ruled.

“In sum, liking a political candidate’s campaign page communicates the user’s approval of the candidate and supports the campaign by associating the user with it. In this way, it is the Internet equivalent of displaying a political sign in one’s front yard, which the Supreme Court has held is substantive speech,” the judges wrote.

The case is Bland v. Roberts.