Archive for November, 2013

DOL Drops Mechanical Power Press Reporting Rules; Some Labor Certification Rules Also Gone

U.S. companies will no longer be subject to certain reporting requirements from the Occupational Safety and Health Administration, and they also obtained some relief last week when some obsolete immigration-related rules were rescinded.

All in a day’s work by the U.S. Department of Labor, which announced the changes on Nov. 20.

The OSHA reporting requirements concern the agency’s standard for mechanical  power presses, which punch, form or assemble metal or other materials. Workers  can be exposed to hand, finger or arm injuries — often resulting in amputation — if  parts of a press are worn, damaged or not operating properly. Under the new rule, employers will no longer have to document mandatory weekly inspections  of these presses while clarifying the responsibility of employers to perform  and document any maintenance or repairs necessary to protect the safety of  workers who operate them.

DOL boasts that removing the weekly inspection and test  certifications will reduce 613,600 hours of unnecessary paperwork burden on  employers.

The final rule will be effective Feb.18, 2014, unless OSHA receives  a significant adverse comment by Dec. 20, 2013.

On the immigration front, DOL announced it is rescinding these rules that it considered obsolete:

  • Direct Final Rule for the ETA Labor Certification Process for Logging  Employment and Non-H-2A Agricultural Employment;
  • Direct Final Rule for the ETA Attestation Process for Employers Using F-1  Students in Off-Campus Work; and
  • the Direct Final Rule for the ETA Removal of  Attestation Process for Facilities Using H-1A Registered Nurses Subparts D and  E Regulations.

You can read more about these developments and get more background information on the rules affected at the DOL’s website.

Translator for Haitian Employees to Receive $48K From Employer’s Settlement of Suit With EEOC

Count among those thankful this holiday for the Equal Employment Opportunity Commission one  Frantz Morette, who worked as a translator at Mountaire Farms, Inc., which operates a poultry processing plant in Lumber Bridge, North Carolina.

Mr. Morette was a translator for Haitian employees at the plant, and the EEOC alleged that when he reported the abuses that those employees were subject to–including having chicken parts thrown at them by their co-workers–he was fired in retaliation for his reports. He also complained to management that the Haitian employees were denied bathroom breaks and training for better jobs at the facility.

The EEOC announced Monday that Mountaire settled its Title VII suit by agreeing to pay Morette $48,000 in back pay and institute other relief to make sure these violations never occur again.

But maybe the real beneficiaries of this settlement are the Haitian employees whose rights will now be respected provided Mountaire lives up to its terms.

In addition to monetary damages, the two-year consent decree resolving the suit requires Mountaire Farms to revise its existing anti-discrimination policy to include procedures for reporting discrimination; give assurance that the company will protect the confidentiality of discrimination complaints to the extent possible; give further assurance that Mountaire Farms will not retaliate or take action against a person who makes a complaint about discrimination; and institute a procedure for investigating such complaints. Mountaire Farms will also post a copy of its anti-discrimination policy at all of its facilities and train its employees on anti-discrimination laws annually.

That’s straight from the EEOC’s announcement of the settlement.

Sounds like a Thanksgiving present for those allegedly abused Haitians.

And by the way, the EEOC seems to have taken aim at agricultural employers, as indicated by other recent settlement activity.

Wisc. Bill Would Prohibit Employers From Forcing Employees To Get Flu Vaccines

Add to the prohibited grounds of discrimination that some legislators in Wisconsin want to add–the right to refuse to get a flu shot.

The proposed legislation, 2013 Assembly Bill 247, would prohibit employers there–including those in the health care industry–from demoting, suspending, firing or discriminating against employees who refuse a seasonal influenza vaccination.

It also prohibits any employer from doing any of the following:

  • refusing to hire a prospective  employee or renew the contract of an employee or contractor on the basis of
    vaccination status for seasonal influenza or refusal to be vaccinated against seasonal
  • requiring any employee or contractor to receive a vaccination against
    seasonal influenza if the employee or contractor declines in writing after receiving
    certain information; and
  • requiring unvaccinated employees or contractors to wear masks  in retaliation for refusing the influenza vaccination; or requiring employees or
    contractors in a health care setting to wear masks in a manner that exceeds a certain  requirement.

Here’s the bill’s full text.

Justices to Hear Employers’ Cases Against ACA’s Requirement to Cover Contraception

Can the federal government compel employers to provide health insurance for their employees that includes birth control and related medical services if the employer objects on religious grounds?

That’s the question the U.S. Supreme Court agreed to decide today. The justices granted review in two cases challenging the so-called “contraception mandate” under the Affordable Care Act, President Obama’s health care reform law.

The law requires employers provide insurance policies covering 10 essential minimum services, one of which is contraception.

However, some 40 companies have challenged that edict in federal court, arguing that it unconstitutionally infringes on their religious beliefs.

The law’s defenders argue, in turn, that allowing these companies to avert the mandate would be imposing their religious views on their employees who want birth control services.

Today the court agreed to hear the case of Hobby Lobby Inc., an Oklahoma City-based arts and crafts chain with 13,000 full-time employees successfully challenged the mandate in lower court.

The challenge in the second case was brought by Conestoga Wood Specialties Corp., a Pennsylvania company that employs 950 people in making wood cabinets.

Court watchers expect the justices to hear the arguments in the case in March and issue a decision by June at the end of the court’s current term.

For more background on these cases, click here.

Court Tosses Muslim Employee’s Title VII Religious Accommodation Violation Claim

Just like the U.S.-Iran negotiations over nuclear weapons, there’s got to be some give and take when it comes to an employer and employee negotiating a reasonable accommodation for religious observance.

Religious accommodation is not a my-way-or-the-highway matter.

Which is why a Muslim employee came up short last week in his failure to accommodate and constructive discharge claims under Title VII.

The employee argued he should have been allowed to pray in the lobby of the employer’s building or in the employer’s HR department.

But the court said these suggested accommodations were unreasonable and would cause undue hardship.

Instead, under the circumstances, the company offered reasonable accomodations of allowing him to pray in his car during work breaks, or outside the building or at a mosque.

The case is Farah v. A-1 Careers, in the District of Kansas, decided Nov. 20.

New York Latest State to Ink Agreement With DOL To Fight Employee Misclassification

The U.S. Department of Labor has enlisted New York’s Attorney General and the state’s labor department in a stepped-up effort to fight employer misclassification of employees as independent contractors or other nonemployee status.

The parties signed a Memorandum of Understanding on Nov. 18 “to work together to protect the rights of employees  and level the playing field for responsible employers by reducing the practice  of misclassification,” according to US DOL’s announcement.

To show the agencies mean business, the announcement noted that such agreements have resulted in a 97 percent increase in the amount of back pay recovered compared to where these agreements were not present.

DOL has these memorandums with California,  Colorado, Connecticut, Hawaii, Illinois, Iowa, Louisiana, Maryland,  Massachusetts, Minnesota, Missouri, Montana, Utah and Washington.

What does this mean in practical terms? It means that more law enforcement eyes are trained on employers that misclassify workers in order to deny them wage and hour law protections.

So therefore it’s a shot across the bow warning employers to get their acts together on who is an employee and who isn’t.

It’s all part of a large misclassification initiative, see for more details.

Here’s more from DOL’s announcement.

Honololu Restaurant Settles Lawsuit by EEOC; Managers Allegedly Harassed Female Employees

Women who work at Señor Frog’s, a popular Mexican-themed restaurant and bar in Honolulu, won’t have to worry about being vicims of sexual harassment any more, provided the company that operated the business follows through on its commitment under a settlement the EEOC announced today.

According to the commission, 13 employees of the restaurant were either sexually harasssed or retaliated against between 2007 and 2012. The EEOC charged that male managers at the restaurant subjected the female workers to sexual comments, language and advances, and unwelcome physical contact.

If that wasn’t bad enough, the EEOC also charged that the restaurant passed women over for promotion, assigned them less favorable shifts and paid them less than male employees.

The restaurant at which these alleged violations occurred has since closed. Under terms of the settlement, if La Rana Hawaii LLC opens another Senor Frog’s restaurant, it must create and distribute an anti-harassment policy and train all of its supervisors to prevent any future harassment, discrimination, or harassment from occurring.

Here’s more on the settlement.

As an aside, anyone who’s been paying attention knows that today is the 50th anniversary of President Kennedy’s assassination. It’s interesting to recall that when he was killed, there was as yet no Civil Rights Act of 1964, Age Discrimination in Employment, Americans With Disabilities Act, no Executive Orders forbidding discrimination by government contractors.

The one major civil rights law that Kennedy signed–the Equal Pay Act–addressed unfair compensaton practices toward women.  An important, but small, slice of the civil rights pie.

Kennedy had at least rhetorically committed the federal government to enacting civil rights legislation prior to his death, and I’m sure he would very proud today-and astounded– to see the progress we’ve made since then. But he’d also acknowledge that there’s more work to be done.

New Law Transfers Davis-Bacon Prevailing Wage Claims Processing to U.S. Department of Labor

It’s news these days when President Obama and the Congress agree on anything, so the president’s signature today on a law transferring wage adjustment claims for federally-contracted workers from the Government Accountability Office to the U.S. Department of Labor is worthy of note.

The legislation has to do with the Davis-Bacon Act, which mandates that contracted workers be paid the “local prevailing wage” on government projects. Another law, the Contract Work Hours and Safety Standards Act (CWHSSA), requires federal contractors to pay workers one and one half times their basic rate of pay for hours worked in excess of 40 hours.

Until now, GAO processed claims of workers who did not receive the appropriate wage.

With the enactmen tof the Streamlining Claims Processing for Federal Contractor Employees Act (H.R. 2747), DOL will not be responsible for processing those claims.

Which makes sense, since DOL already enforces the main federal wage and hour law, the Fair Labor Standards Act.

Del Monte Agrees to Monitor Contractors’ Compliance With Title VII in EEOC Settlement

Agricultural labor makes up a small fraction of the workforce today compared to even several decades ago, even though we rely on them for much of the produce we consume at our kitchen tables. The battles that agricultural workers wage to ensure nondiscriminatory treatment rarely makes front page news.

That’s one reason this week settlement by Del Monte of employment discrimination charges brought by the EEOC is important. Under terms of the settlement, Del Monte Fresh Produce agreed to establish mechanisms for farm labor contractors–the middlemen between the workers seeking employment and employers such as Del Monte–to provide notice to workers about their rights under Title VII of the 1964 Civil Rights Act.

The EEOC said this “is the first effort of its kind for a farm to ensure farm labor contractor accountability for federal anti-discrimination laws.”

Del Monte also agreed to establish procedures to ensure that farm labor contractors (FLCs) disseminate policies and procedures prohibiting discrimination to their local work force and to H2-A guest workers in a language they understand.

The Thai workers who were the victims of employment discrimination by the company’s Hawaii subsidiary will receive $1.2 million under the settment.

But the long-term commitment by Del Monte to ensure that farm labor contractors who supply the manpower and womanpower to pick the fruits and vegetables will be the lasting legacy of this agreement provided the company carries through.

Read more about the settlement.

NLRB: ‘Merit’ in Some Charges Against Walmart Concerning Handling of Employee Protests

The general counsel of the National Labor Relations Board has found there is ‘merit’ to some charges filed against retail giant Wal Mart over its actions taken in response to employee protests in several states.

If the parties cannot reach a settlement of the allegations, complaints fill ensue, the General Counsel’s office said.

In particular, the general counsel found merit to allegations that:

  • During two national television news broadcasts and in statements to employees at Walmart stores in California and Texas, Walmart unlawfully threatened employees with reprisal if they engaged in strikes and protests on November 22, 2012.
  • Walmart stores in California, Colorado, Florida, Illinois, Kentucky, Louisiana, Maryland, Massachusetts, Minnesota, North Carolina, Ohio, Texas and Washington unlawfully threatened, disciplined, and/or terminated employees for having engaged in legally protected strikes and protests.
  • Walmart stores in California, Florida, Missouri and Texas unlawfully threatened, surveilled, disciplined, and/or terminated employees in anticipation of or in response to employees’ other protected concerted activities.

However, the general counsel found no merit in a set of other allegations against Walmart, including:

  • Walmart stores in Illinois and Texas did not interfere with their employees’ right to strike by telling large groups of non-employee protestors to move from Walmart’s property to public property, pursuant to a lawful Solicitation and Distribution policy, where the groups contained only a small number of employees who either did not seek to stay on Walmart’s property or were permitted to remain without non-employee protesters.
  • Walmart stores in California and Washington did not unlawfully change work schedules, disparately apply their policies, or otherwise coerce employees in retaliation for their exercise of statutory rights.

For more information from the NLRB’s announcement, click here.

This blog was highlighted in the Nov. 22 weekly round up for the Ohio Employer Law Blog.