EEOC Sues Furniture Store for Pregnancy Bias

I’ve written about pregnancy discrimination so much that I must sound like a broken record. But it’s because employers keeping making the same mistake, tripping all over themselves when a pregnant woman presents herself for hiring.

If you remember nothing else, remember this: You cannot refuse to hire a woman because she is pregnant.

Sounds simple, right? But according to the EEOC, a Manhattan-based office furniture store lost sight of that simple truth when it considered the application of a pregnant woman for a full-time controller position.

According to the EEOC, when Benhar Office Interiors LLC learned from the staffing company that arranged the applicant’s interview that she was pregnant, its president supposedly responded to that news by stating that “might be a deal breaker.”

The applicant was not hired, but about one week later, the store hired a non-pregnant applicant for the position, the EEOC said.

If the EEOC can prove its case, it will go after the store for back pay and other relief.

As a reminder, Title VII prohibits denying a woman a job because she is pregnant. In addition, after she is hired, or if a woman becomes pregnant while in employment, the employer must treat her the same in terms of leave and other benefits as any other employee, man or woman, with a temporary medical condition.

Here’s more information about the case.

Colo. Supreme Court to Rule on Employee’s Firing for Off-Duty Medical Marijuana Use

Does Colorado’s off-duty activities law prohibit an employer from firing an employee because the employee used marijuana off-duty for medicinal purposes?

Last year the state appeals court ruled that it does not, because even though state law protects from discharge for off-duty activities, marijuana use is still illegal under federal law.

This week the Colorado Supreme Court agreed to review that ruling

The Colorado Supreme Court this week agreed to review a ruling by the state appeals court that the state’s off-duty activities law does not prohibit the firing of an employee for off-duty medical marijuana use.

As I reported last year, the state appeals court had ruled against an employee of the Dish Network who used marijuana off duty for medicinal purposes.

The court determined that there is no employment protection for medical marijuana users in the state because marijuana use and possession is prohibited under federal law.

“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.”

As noted on the cannabis blog, the Supreme Court announced it would look not just  at whether a special Colorado law that protects legal off-the-clock activities covers marijuana, but also at whether Colorado’s constitution gives medical marijuana patients a right to cannabis.

Wal-Mart To Pay $87,500 in Suit Alleging Retaliation Against Complainant’s Relatives

Denying employment to an applicant because a relative has filed an employment discrimination complaint against the company is a Title VII violation, the EEOC re-affirmed in announcing a settlement of a lawsuit against a Wal-Mart Store in Albuquerque, New Mexico.

The EEOC accused the store of denying employment to Ramona Bradford by refusing to hire her adult son and daughter for entry-level positions at that location.

In the EEOC’s statement, the regional attorney who brought the lawsuit noted that “The United States Supreme Court in Thompson v. North American Stainless held that employers cannot take adverse actions against employees or their relatives or others close to them because the applicant or employee did the right thing and complained of unlawful conduct in the workplace.”

That alleged violation will cost the store $87,500, plus subjecting it to an injunction prohibiting retaliatory practices; training for managerial employees on retaliation; and the posting of a notice advising employees of their rights under Title VII.

Read more about the settlement.

Obama To Raise Gov’t Contractor Minimum Wage

Future government contracts will have to pay a $10.10 minimum wage, President Obama announced tonight in his annual State of the Union address.

Earlier in the day administration officials said the president will sign an executive order requiring the payment of a minimum wage by contractors performing services for the federal government.

Obama made his announcement as part of a general call on Congress to raise the minimum wage for all workers.

He said that workers who prepare meals for our troops and do other services for the government shouldn’t have to live in poverty. Hard to disagree with that.

By administration estimates, the guaranteed minimum wage for government contract employees will affect 2 million workers.

Interestingly, work on federal projects already must abide by several wage laws, so this latest executive order might be duplicative of current law in some respects.

Other wage and hour laws that apply on federal contract work are:

• the Davis-Bacon and Related Acts, which require payment of prevailing wage rates and fringe   benefits on federally-financed or assisted construction;
• the Service Contract Act, which requires payment of prevailing wage rates and fringe benefits on   contracts to provide services to the federal government;
• the Contract Work Hours and Safety Standards Act, which sets overtime standards for most   federal service contracts, federally funded construction contracts, and federal   supply contracts over $100,000; and
• the Walsh-Healey Public Contracts Act, which requires payment of minimum wage rates and overtime   pay on federal contracts to manufacture or provide goods to the federal  government.

Workers Not Entitled to Be Paid For Time Spent Donning Protective Gear, High Court Holds

For devotees of public television’s Downton Abbey, donning and doffing of clothing is something that the estate’s residences do–or more likely have the servants do for them.  Lord Grantham would never demand being paid for putting on his clothing. Nor would he need to.

The situation is somewhat different under the Fair Labor Standards Act, which has a provision excusing employers from having to pay their workers for “changing clothing” if it’s agreed on that provision with the workers’ union.

Today a unanimous U.S. Supreme Court ruled that steelworkers are not entitled to compensation for time putting on and taking off various pieces of protective clothing.

Writing for the unanimous court, Justice Anton Scalia went straight to the dictionary, specifically the definition of “clothes” as that term is used in FLSA Section 203(o).

Scalia said that clothes denotes items that are both designed and used to cover the body and commonly regarded as articles of dress.

So, putting on protective gear is still clothing, and so is substituting or altering one’s dress.

I wrote about the oral argument in the case in November, and when the court agreed to review the case last year.

You can download the text of today’s ruling in Sandifer v. U.S. Steel from the SCOTUS blog.

EEOC: N.J. Nursing Home Violated ADA By Reneging on Job Offer to Deaf Applicant

It’s generally bad form for an employer to offer someone a job, tell the applicant he or she has been hired, and then pull out the rug from under the applicant by saying the company is going to seek “more experienced candidates.”

When that person has a disability, you can be sure the EEOC will object if it finds out what happened.

Which explains why the EEOC this week sued a New Jersey-based nursing home that it says initially hired but then reneged on its offer of employment to a deaf applicant.

According to the lawsuit filed in U.S. District Court in New Jersey, Genesis HealthCare LLC, doing business as Holly Manor Center Nursing facility in Mendman, N.J. initially offered Stefan P. Denisiuk two-part time positions. The interviewing managers told him he was hired.

But, the EEOC says, he was later brought in for new interviews with other managers, and eventually told the home had “decided to pursue more experienced candidates.”

The EEOC says that this conduct violated the Americans With Disabilities Act.

“An employer cannot refuse to hire a qualified applicant because of a disability. Here, Mr. Denisiuk was qualified, experienced and ready to work, only to have Holly Manor pull back its job offer because of his disability. This violates federal law,” said Robert D. Rose, acting regional attorney for the EEOC’s New York District Office.

Read more about the case.

Meat Distributor Settles OFCCP Bias Complaint

Any day is a good day to review your company’s hiring practices, especially if you are a government contractor. You don’t want to be caught in a situation of the government rifling through your files if a gender or race bias claim is brought against you because you didn’t give minorities or women a fair chance at employment.

Unfortunately, that lesson came too late for a Midwest-based meat distributor.

Nearly 3,000 applicants rejected for production jobs at various facilities of Cargill Meat Solutions will partake in a two-million-dollar-plus settlement of race and gender discrimination charges brought by the U.S. Department of Labor’s Office of Federal Contract Compliance Programs.

The OFCCP, which enforces the nondiscrimination rules for government contractors under Executive Order 11246, among other rules, announced the settlement on Wednesday.

Under the agreement, Cargill will pay $2,236,218 in back wages and interest to 2,959 applicants who were rejected for production jobs at plans in Arkansas, Colorado and Illinois, between 2005 and 2009.

DOL said its investigators had found evidence that the company’s hiring processes and selection procedures discriminated on the basis of race, gender, and ethnicity. There also were widespread recordkeeping violations.

Cargill Meat Solutions, a wholly-owned  subsidiary of Minneapolis-based Cargill Inc., distributes beef, pork and turkey products. Since 2005, Cargill has held federal contracts worth more  than $1.4 billion.

Here’s more on the settlement.

NJ Adds Workplace Protections for Pregnant Women; Accommodations Mandated on Jobs

Not a moment too soon for his political fortunes, New Jersey Governor Chris Christie (R) has signed into law a bill prohibiting employment discrimination against pregnant women and requiring employer in the state to reasonably accommodate pregnant employees.

Christie, who is facing investigation over his aides’ apparent order to close some lanes of the George Washington Bridge to traffic in September, signed S. 2995 on Tuesday.

If he’s smart, he’ll certainly tout this latest bipartisan achievement on behalf of the state’s women.

Under the law, an employer must reasonably accommodate a pregnant employee’s request on the advice of her physician so she can continue working, provided the proposed accommodations don’t cause the business an “undue hardship.”

These accommodation may include things like bathroom breaks, permission to carry a water bottle, job restructuring or a temporary transfer to less physically demanding or hazardous work.

What’s an “undue hardship” under the law? Factors to consider include whether the accommodation involves waiving an essential job requirement.

The also protects women from being penalized by their employer because they requested or used a pregnancy-related workplace accommodation.

As a result of this law, you’ll now find the word “pregnancy” as one of the attributes under the New Jersey Law Against Discrimination against bias in employment, housing, public accommodation, union membership, contracts and lending.

Here’s a link to more information on the new law.

Don’t Neglect Making Pension Contributions When Your Employees Are on Military Leave

Active military members who claim they were denied the full pension they’re entitled to are taking to the courts for redress. Two actions that came down this week illustrate the peril to employers that don’t step up to the plate and make the required pension contributions for their employees during their period of military leave.

What these actions have in common is the alleged denial of pension contributions under the Uniform Services Employment and Reemployment Rights Act (USERAA).

In the first case, pilots have sued American Airlines in a federal district court, alleging that the airline violated USERRA by calculating individual pilot pension contributions for periods of military service without reference to the pilot’s average rate of compensation or flight hours prior to commencing military service. The pilots are asking the court to order the airline to pay them the full amount of contributions to which they were entitled under USERRA, the Employee Retirement Income Security Act, and the pension plan.

The second case is a settlement of a pension dispute between members of the New York City Police Department over the department’s contributions to their pensions during the time of military service. The U.S. Attorney for the Southern District of New York, Preet Bharara, announced that the department would make up for its alleged  illegal calculation of pensionable earnings, in violation of the USERRA of NYPD retired officers who were called up to active military service since September 11, 2001, and are collecting a pension from the City.

I wrote about this case in 2012 when the U.S. Attorney called on retired police officers to join the lawsuit.

Don’t make yourself an easy mark for plaintiffs’ attorneys. Use these two cases as object lessons in making sure that your employees on military are receiving the full contributions due them under USERRA, ERISA and the relevant plan.

Justices Grapple With Home Care Providers’ Right to Opt Out From “Fair Share” Union Dues

Did the state of Illinois have the right to declare home care providers to be state employees, thus making them subject to a collective bargaining agreement, including having to pay “fair share” dues in support of union activities with which they might disagree?

Those were the questions that the U.S. Supreme Court wrestled with today in the latest labor relations case to reach the justices.

Illinois sets the wages and other conditions of the providers’ employment, but the providers are hired by individual patients under the state’s Medicaid program.

Home care providers under the program work in either rehabilitation or disabilities services.

Former governor Rod Blagojevich had declared the workers as state employees, making them members of the Service Employees International Union, a major force in Democratic Party politics.

Workers in the program sued the state–naming current Gov. Pat Quinn as the defendant–arguing that they should not be compelled to pay the fair share dues.

They cited a 1977 high court ruling, Abood v. Detroit Board of Education, in which the court said that public employee unions could not compel their members to fund the unions’ political activities.

In the current case, the Seventh Circuit court of appeals ruled that the rehabilitation workers were rightly considered state employees and could be charged fees under Abood. But it dismissed the disabilities workers’ suit because they were not paying the dues.

The National Right to Work Committee, on behalf of the objecting rehabilitation workers, has asked the court to overrule Abood, arguing that the decision was a “radical expansion of the government’s ability to associate with a union.”

For its part, the state argues that the situation is a win-win because it results in increased pay and benefits for the employees, a unified and stable workforce for the state, and clients found that workers were more willing to stay in the demanding jobs.

Expect a ruling in Harris v. Quinn by the end of the current term in June.