Archive for December, 2013

Women to Collect $39M From Bank of America, Merrill Lynch in Settlement of Sex Bias Lawsuit

Thousands of women who worked as financial advisers or trainees for Bank of America or Merrill Lynch might want to raise their champagne glasses tonight to toast their good fortune in partaking of a large monetary settlement of their sex discrimination class action against those financial giants.

Last Friday U.S. District Court Judge Pamela Chen gave final approval to terms of a settlement that will oblige the companies to pay $39 million to resolve the womens’ claims. The plaintiffs alleged violations of Title VII of the 1964 Civil Rights Act, the Equal Pay Act, and state antidiscrimination laws in the companies’ pay practices.

A large chunk of the award–more than $12 million–will go to their attorney’s fees and costs. Still, it’s a substantial amount of money for the plaintiffs.

And speaking of pay, the minimum wage goes up in 13 states at the stroke of midnight. The largest increases will occur in New Jersey ($8.25 per hour); New York ($8); Connecticut ($8.70) and Rhode Island ($8).

The other states raising their minimum wages as of Jan. 1 are Washington ($9.32); Oregon ($9.10); Arizona ($7.90); Colorado ($8); Florida ($7.93); Missouri ($7.50); Montana ($7.90); Ohio ($7.95); and Vermont ($8.73).

Happy New Year everyone! Back blogging in 2014- tomorrow.

Pa. Pregnant Nurse Fired For Declining Flu Shot

Can an employer legally fire a pregnant employee for refusing to get a flu shot? That question could get an airing in Pennsylvania where a female registered nurse was recently fired by her employer because she refused a flu shot. The reason she gave was that she had had two miscarriages and didn’t want to risk a third one, fearing the shot is not safe enough for pregnant women.

The employer, Horizons Healthcare Services, located in central Pennsylvania, argues that it would be unconscionable for a health care worker not to be immunized.

From news accounts, the nurse is not interested in taking legal action against the employer.

But if she were interested, what legal route would she have? If she was an employee at will, probably none, unless she wants to argue that firing her was a violation of public policy because to do as the employer wanted would have exposed her fetus to an unacceptable risk.

I’ve written previously on employer policies requiring employees to get flu shots.  In Rhode Island, it’s the law that all health care workers be immunized from the flu.

On the other hand, a bill was introduced in the Wisconsin legislature to prohibit employers from forcing employees to get flu vaccines.

Near as I can tell, that bill is still pending in that body.

If anyone knows its status, or whether other states have enacted laws on mandatory flu vaccines, please leave me a comment.

Ingrown Hair Removal Request Enough to Keep Sexual Harassment Case Going, 8th Circuit Holds

Conduct does not have to be overtly sexual to form part of a charge of sexual harassment under Title VII of the 1964 Civil Rights Act if it puts the alleged victim in a position in which a supervisor can pressure an employee for sexual favors.

Especially, if the supervisor reminds the alleged victim that he holds the keys to her continued employment.

That’s the importance of a ruling last week by the U.S. Court of Appeals for the Eighth Circuit in a sexual harassment case brought by a female employee against her former employer, the Bi-State Development Agency of the Missouri- Illinois Metropolitan District (“Metro”).

Eartha McMiller alleged that her male supervisor created a hostile work environment by creating a workplace in which sexual conduct was severe and pervasive.

She also alleged that his behavior constituted “quid-pro-quo” harassment because it made her employment conditional on granting him sexual behaviors.

Specifically, she asserted that his request that she help him remove an ingrown facial hair from his chin put her in close physical proximity to him, giving him an opportunity gratify himself sexually at some point through her.

The appeals court ruled that she hadn’t established her hostile work environment claim, but she could pursue her  quid-pro-quo claim.

The court said that “a reasonable jury could conclude that Brown made a strange request for grooming assistance in an effort to bring McMiller into close physical proximity and to gratify himself sexually in exchange for protecting her job. During the encounter, after McMiller balked at removing the ingrown hair, Brown allegedly reminded McMiller that he could prevent her from being terminated, placed her in a locked position in which he kissed and touched McMiller, and assured McMiller that he would not let anything happen to her while she was on this job. Before that date, Brown already had kissed and touched or attempted unsuccessfully to touch McMiller and reacted angrily when rebuffed. ”

“A reasonable jury also could infer a causal relationship between McMiller’s refusal to indulge Brown and her termination,” the court ruled.

The case is McMiller v. Metro, No. 12-3536, 12/26/2013.

KFC Franchise Coughs Up $40K in Settlement of Religious Bias Suit Over Wearing Pants to Work

Tis the season-or at least the week–for the EEOC to settle religious discrimination cases against employers. Yesterday I wrote about its settlement with a Miami-based medical practice that forced its employees to perform rituals associated with the Church of Scientology.

In a second settlement this week, the EEOC said it has recovered $40,000 from a Kentucky Fried Chicken franchise in Rocky Mount, North Carolina. In this instance the dispute was over the franchise’s refusal to let a female employee wear pants to work, which she said was required by her Pentecostal beliefs.

But rather than let her wear pants, the franchise fired her because she refused to wear pants in conformity with the company’s dress code.

That’s a violation of Title VII of the 1964 Civil Rights Act, the EEOC alleged, because accommodating the employee’s religious beliefs would have not have caused the restaurant undue hardship.

Read more.

Doctor’s Office Pays $170K to Settle EEOC Suit Alleging It Forced Scientology On Employees

There’s an argument going on now about whether the government can force employers to provide employees with health insurance for contraceptive services when it violates the employers’ religious beliefs. But there should be no argument that an employer does not have the right to make an employee participate in particular religious practices to which the employee objects.

Which is why a Miami company that provides medical and chiropractic services made the right call in settling an Equal Employment Opportunity Commission lawsuit against it under Title VII for religious discrimination, including forcing its employees to conform to a particular religion, in this case Scientology.

According to the lawsuit, Dynamic Medical services, owned by Dr. Dennis Nobbe, required five complainants and other employees to spend at least half their work days in courses that involved  Scientology religious practices, such as screaming at ashtrays or staring at  someone for eight hours without moving.   The company also instructed employees to attend courses at the Church of  Scientology.  Additionally, the company  required one of the named employees to undergo an “audit” by connect­ing herself to an “E-meter,”  which Scientologists believe is a religious artifact, and required her to  undergo “purification” treatment at the Church of Scientology, the EEOC said.

The EEOC said that the company has agreed to settle the lawsuit for $170,000 and take other specified relief, including:

  • to accommodate  employees who complain about attending and/or participating in religious  courses or other religious work-related activities for religious reasons;
  • to notify EEOC if employees request a religious accommodation;
  • to adopt an  anti-discrimination policy that explains to employees their rights under Title  VII with respect to religious discrimination; and
  • to conduct training for DMS  employees covering Title VII, and specifically focusing on religious  discrimination.

This is about as thorough a laundry list of required changes an employer has had to make to its religious policies as I’ve seen, and it should be a warning to any other company that tries to impose its particular religious views on its workers without giving them the opportunity to opt out.

Read more about the settlement, and do’s and don’ts when it comes to religious discrimination and work situations.

Gas Mart Sued by EEOC For Retaliating Against Manager; Government Seeks Punitive Damages

An Indiana-based petroleum company got coal in its stocking this Christmas from the EEOC, which said it has sued the company for retaliating against a manager after he filed a charge against it.

The commission is charging Bright Petroleum–which operates the Bright Market  food market and gas station in Lawrenceburg, Indiana–with violating Title VII’s retaliation ban by subjecting the manager to additional scrutiny after learning of his charge and his refusal to drop it. For that, he was disciplined and terminated, the commission alleged.

The commission says that in all this the company was “recklessly indifferent” to the manager’s rights. That’s Title VII’s standard for an award of punitive damages, which the EEOC is seeking against the company.

The EEOC and the courts come down hard on companies that retaliate because of the chilling effect it can have in punishing the complaining employee. And if the EEOC lets the employer get away with it one time, other employees might think twice about filing complaints when they believe there’s discrimination.

Here’s more about the lawsuit, and here’s more on retaliation from the EEOC’s website.

$325K Settlement Closes DOL’s Employment Discrimination Case Against N.J. Dairy Company

Companies that supply U.S. government agencies with milk and other dairy products have to comply with federal contractor nondiscrimination rules just as anyone else doing business with the government.

Among those rules is to have nondiscriminatory hiring processes that give women and minorities an equal shake at being hired.

According to the Office of Federal Contract Compliance Programs, the division of the U.S. Department of Labor that enforces the federal contractor nondiscrimination rules, a dairy operating in New Jersey failed to live up to those obligations.

The OFCCP announced yesterday that federal contractor Cream-O-Land Dairy Inc. has resolved  claims of sex and race discrimination affecting 227 workers who applied for jobs  at the company’s dairy plant in Florence, N.J. An OFCCP review of the facility determined  that the dairy company used a hiring process that violated Executive Order  11246 because it discriminated against women, African Americans and Asian Americans  who applied for warehouse positions in 2010, the announcement said.

You could say that DOL milked this one for all it was worth, obtaining $325,000 in back pay, interest and benefits on behalf of the victims.

Cream-O-Land  Dairy Inc. delivers dairy products to grocery stores, supermarkets and schools  throughout New Jersey, New York, Pennsylvania, Delaware and Connecticut. In Fiscal  Year 2012, Cream-O-Land sold more than $1.5 million worth of products to federal  agencies such as the Federal Prison System, Department of Veterans Affairs,  Defense Commissary Agency, Defense Logistics Agency and Department of the Army.

McDonald’s Settles EEOC Suit Claiming It Wouldn’t Allow Muslim Employee to Wear Beard

It’s a minor incident but illustrative of a larger point. The EEOC has obtained a $50,000 settlement from McDonald’s Restaurants of California for its refusal to allow a Muslim employee to grow a beard.

The EEOC said that the refusal by the Fresno restaurant led to the employee’s constructive discharge, which means that the restaurant made working conditions so intolerable for him that he had no choice but to resign.

Besides the monetary settlement, McDonald’s committed to training its managers and staff and redistributing its policies on religious discrimination and accommodation.

The settlement directly affects only one employee and one employer, but is a reminder to all employers that Title VII of the 1964 Civil Rights Act requires a reasonable accommodation of employees’ religious observances and practices, unless an accommodation would cause undue hardship.

Multiple this incident at one McDonald’s times the thousands of fast-food franchises in the U.S. and you can see how the company would want to nip this problem in the bud before it spreads to other locations.

Here’s information from the EEOC’s website on handling these issues.

And here’s the text of the settlement announcement.


DOL Sues Ga. Restaurant For Alleged Misclassification of Workers Under FLSA

If you misclassify your employees as independent contractors and the U.S. Department of Labor gets wind of it, expect it to try to nail you in court or force a settlement.

Latest case in point: Last week DOL announced it filed a Fair Labor Standards Act lawsuit against a Jonesboro, Georgia restaurant and its owner, alleging they misclassified dozens of workers thereby depriving them of almost 2 million dollars in backwages.AC

According to the lawsuit, Wang’s Partner Inc.,  doing business as Hibachi Grill & Supreme Buffet in Jonesboro, and its  owner, Shu Wang, misclassified servers as independent contractors, failed to pay servers and kitchen staff at  least the federal minimum wage of $7.25 per hour and failed to pay overtime  compensation at time and one-half employees’ regular rates for hours worked  beyond 40 in a work week. Additionally, the employer did not maintain accurate  records of hours worked and wages paid, DOL said.

Here’s straight from the DOL’s announcement, in case you don’t take seriously the consequences of misclassification:

“The misclassification of  workers as something other than employees, such as independent contractors,  presents a serious problem for affected employees, employers and to the entire  economy. Misclassified employees are often denied access to critical benefits  and protections, such as family and medical leave, overtime, minimum wage and  unemployment insurance. Employee misclassification also generates substantial  losses to state and federal treasuries, and to the Social Security and Medicare  funds, as well as to state unemployment insurance and workers compensation  funds.”

There’s lot of good information on the web about the issue of proper classification of employees under the FLSA. Here’s just one possibility;

EEOC: Negative Stereotypes, Unfounded Assumptions Kept Applicant Off Police Force

The Maui, Hawaii County Police Department probably wishes it could take back the moment that one of its hiring personnel supposedly told a 45- year-old applicant for a police officer’s job that “I doubt someone your age could handle the stress of training.”

That comment may come back to haunt the police department, which is being sued by the EEOC for age discrimination.

The commission charged that the applicant met all the minimum requirements for the job, but was passed over for hiring by several other less qualified candidates.

The EEOC says that’s a violation of the Age Discrimination in Employment Act.

Read more.