Archive for February, 2014

$125K Payment Closes Same-Sex Harassment Suit Against Boh Brothers Construction Co.

At long last, Boh Brothers Construction and ex-employee Kerry Woods can put their case of man-on-man sexual harassment behind them.  The EEOC first brought the suit against the company in 2009 and through various legal twists and turns that saw the case go up on appeal to the Fifth Circuit and then back to the district court, the company has folded its tent and decided to settle.

The EEOC announced this week that the company has agreed to pay Woods $125,000 to settle the case once and for all.

The case was noteworthy as one of the first Title VII lawsuits to test the parameters of the idea that same-sex harassment is as much a violation of Title VII as when an employee is harassed by a member of the opposite sex.

That Title VII reaches same-sex harassment is pretty much accepted law now.

The lesson for employers is don’t let your supervisors engage in behavior that could lead to a sexual harassment charge. And that includes him or her creating a sexually-charged or hostile environment.

Here’s the EEOC’s announcement, and here’s the EEOC’s web page on sexual harassment do’s and dont’s.

D.C. Mayor: Health Insurers Must Cover Treatments Related to Gender Identity Disorder

Health plans in the nation’s capital won’t any longer be allowed to deny coverage for treatments associated with gender identity disorder.

Washington, D.C. Mayor Vincent Gray announced today that henceforth health plans in the city will have to cover gender identity disorder as a medical condition.

The coverage extends to all insured city residents — including the roughly  one-third of residents receiving Medicaid benefits — who are diagnosed by a  doctor with the condition and for whom treatment is deemed medically.

The action culminates a move last March by officials issued a bulletin notifying health insurers to remove language that discriminated on the basis of gender  identity and expression from their policies in order to allow transgendered  individuals to obtain medical benefits.


Racist Display Costs Wisc. Restaurant

Allowing racist displays in the workplace can be costly. Latest case in point was this month’s announcement by the EEOC that Sparx Restaurant of Menomonie, Wisconsin was ordered by a federal district court to pay back pay with interest to an employee who was the victim of just such a practice.

In its lawsuit, the EEOC had charged that Sparx fired Dion Miller because he complained about an offensive display in the restaurant, which included a dollar bill with a noose around George Washington’s neck, and drawings of a man on horseback and a hooded figure with “KKK” written on his hood. Miller, who was a cook in the restaurant, was fired three weeks after he complained about the figure, the EEOC said.

Most employers know better than to tolerate such offensive displays in the workplace.

And before I go, hats off to Arizona Governor Jan Brewer for her decision today to veto a bill that would have allowed businesses in the state to deny service to gay residents.

Had the bill become law, it would have codified discrimination against gays and maybe lots more people whose beliefs or way of life a business owner found offensive. There’s no room for that kind of bigotry under our laws.

Here’s more on the EEOC’s lawsuit and monetary recovery in the Wisconsin restaurant case.

OSHA Pledges Action on Tower-Related Deaths

If you employ communications tower workers, take note of remarks today by Assistant Secretary of Labor for Occupational Safety and  Health Dr. David Michaels in which he pledged his agency will beef up safety inspections to reduce the number of deaths in that industry.

A graph accompanying his announcement laid bare the unsettling truth- there were 13 communication-tower related worker deaths in 2013, more than in 2011 and 2012 combined. And four more tower-related deaths have occurred so far in 2014.

Speaking to the National Association of Tower Erectors, Michaels said:

“We are very concerned  about this sharp rise.  The  fatality rate in this industry is extremely high — and tower workers have a risk of  fatal injury perhaps 25 to 30 times higher than the risk for the average  American worker. This is clearly unacceptable.”

“At OSHA, we are reaching out to educate  industry and workers and providing free small businesses consultations. We’ve  also increased our enforcement in this industry.

While on site, safety inspectors will collect more complete data about the job and the incident that caused the fatality, and pay close attention to contracts and subcontracts to determine who is doing tower work and what their qualifications are. OSHA will also take “a hard look at the safety requirements that flow down through  the contracts and how owners and contractors ensure that everyone involved  meets those requirements.”

“I sincerely hope that, together, we can turn this  tide and get the message out that these tragedies should not be written off as  the cost of doing business.”

To learn more, go here.

Carefully Word At-will Disclaimer

It’s my pleasure once again to turn over this page to HR consultant and writer Robin Paggi, who has some advice for employee handbook writers about what words not to include in these company documents.

 Carefully Word At-will Disclaimer

By Robin Paggi, MA, SPHR-CA, CPLP, CPC

Choose your words wisely, lest they come back to bite you. That’s the message the National Labor Relations Board (NLRB) seems to be sending with two recent rulings its representatives made on the wording of at-will disclaimers in employee handbooks.

The NLRB is an independent federal agency responsible for safeguarding employees’ rights to organize and form unions. Additionally, it acts to prevent and remedy unfair labor practices committed by private sector employers and unions. In doing so, the NLRB investigates complaints of unfair labor practices, and its administrative law judges make decisions on those complaints.

Evidently, someone complained about the at-will disclaimer in a Hyatt Hotels employee handbook and, according to the article “NLRB’s Challenge of At-Will Language ‘a Terrible Stretch’” on, an NLRB regional director found fault with the company for having an “overly broad and discriminatory acknowledgment form in its employee handbooks,” which seemed to him to violate the employees’ right to organize. Similar language was in a handbook of the American Red Cross in Arizona and an NLRB administrative law judge also told that organization that their at-will disclaimer was unlawful.

What’s the problem with the disclaimers? NLRB Acting General Counsel Lafe Solomon explained that they seemed to encourage employees to believe that nothing could change their at-will status, not even union representation, and that union organization would then be futile. Discouraging union organization is a violation of the National Labor Relations Act.

What language does the NLRB allow? The agency recently approved this disclaimer in Rocha Transportation’s handbook: “Employment with Rocha Transportation is employment at-will. Employment at-will may be terminated with or without cause and with or without notice at any time by the employee or the Company. Nothing in this Handbook or in any document or statement shall limit the right to terminate employment at-will. No manager, supervisor, or employee of Rocha Transportation has any authority to enter into an agreement for employment for any specified period of time or to make an agreement for employment other than at-will. Only the president of the Company has the authority to make any such agreement and then only in writing.”

Solomon concluded the Rocha disclaimer was lawful because it didn’t require employees to agree that their at-will status could never be changed or to refrain from seeking to change it.

So, a word to the wise: check your handbooks, applications, offer letters, and anything else that includes an at-will disclaimer to see if it differs greatly from the one above because this is now a potential area of concern and you don’t want to get bitten.

SF Limits Criminal History Use in Job Applications; D.C. Could Be Next to Act

Thousands if not millions of people in this country have a criminal history, including arrests and convictions for questionable “crimes” such as possession and use of marijuana. Nevertheless, having a criminal record can be a serious obstacle to the person getting hired. Employers may rationally conclude that hiring these individuals is too great a risk.

The issue of whether a criminal history should disqualify an applicant has gotten the attention of the EEOC, which  in 2012 issued guidance recommending that employers not ask about convictions in employment applications.

Now some local governments are entering the fray. One is San Francisco, where last week the city council amended the San Francisco Police Code, Article 49, and Administrative Code, Article 12, restricting an employer’s use of criminal records. San Francisco’s Mayor signed off on (enacted) the new rules on February 14, 2014. The new rules go into effect on August 13, 2014.

The attorneys at Mintz Levin have written an excellent piece for the National Law Review on the changes and which businesses in San Francisco have to comply.

In my opinion the two biggest restrictions for employers subject to these rules is they will not be able to ask, inquire, or consider for any employee or applicant an arrest not leading to a conviction–unless the arrest is “unresolved”– or a conviction that is more than seven years old from the date of sentencing.

There are some exceptions to these restrictions, like when these types of inquiries are required by federal or state law or a government agency.

The other locality to watch on this issue is the District of Columbia, where Council Member Tommy Wells (D-Ward 6), recently introduced a bill that would prevent employers from asking about criminal records during the initial stages of hiring for a job. Employers would be able to ask about convictions only after an applicant has been conditionally offered a job.

Employers could still conduct criminal background checks and would still be able to take an applicant’s criminal history into account before making a final offer.

The bill addresses a significant obstacle to employment in our nation’s capital, where some 60,000 residents, or 10 percent of the population, have a criminal history.

Check back here for further developments on this issue in D.C. and elsewhere.

EEOC: Owner Harassed Female Employee

Employers shouldn’t let their company owners harass their workers. That may go without saying, but it needs saying because owner harassment puts the employer in a particular legal bind.

Employers can be held automatically liable for owner harassment, the EEOC said yesterday in announcing it has filed suit against a South Carolina propane company and affiliated companies because its owner allegedly harassed a female employee.

According to the complaint the harassment included asking the woman for sex, unwelcome touching and other behaviors that created a hostile work environment. The woman eventually resigned her employment with the company.

Owner harassment is especially egregious because it leaves the harassed party with no one senior in the company to address her complaint, the EEOC said.

The EEOC’s complaint alleges that the affiliated companies operate as an integrated business enterprise, making them all subject to Title VII liability.

Read more about the case.

Sports Bar in $6.8 Million Settlement Over FLSA Violations; Tipped Wages at Heart of DOL’s Case

Maybe at long last past time for Congress to update the Fair Labor Standards Act’s “tipped wage” rule that allows restaurant to pay their servers less than the federal minimum wage provided the $2.13 minimum wage plus the tips received amount to the regular $7.25 minimum wage.

The tipped wage has been $2.13 since 1991, and plenty of employers have abused that privilege over the years. The latest to be caught with its hands in the cookie jar is Chickie’s and Pete’s, a chain of sports bars located in Philadelphia, other parts of Pennsylvania and Southern New Jersey.

The Department of Labor announced today that the restaurant and its owner, Peter Ciarrocchi, Jr. will pay $6.8 million in back pay and liquidated damages to 1,159 employees at nine locations to settle allegations that the defendants skimmed money from the servers to line the owner’s pocket.

That’s an impolite way of describing what the DOL alleges went on. According to DOL, the owner imposed what came to be known as “Pete’s Tax,” where he illegally retained 60 percent of the combined tip pool of his servers.

This “Pete’s Tax” had to be paid at the end of each shift, even if the server received all tips and credit cards and had no cash on hand.

DOL also alleged another long laundry list of violations, including the payment of a flat $15 per shift , failure to pay required overtime wages, and failure to pay for time spent in mandatory meetings, and requiring servers to pay for their uniforms.

As part of the settlement, the owner has agreed to publish an article for a restaurant trade publication that addresses an employer’s obligations under the FLSA.

Read more about the case and the settlement.

Hotel Settles Pay Equity Suit With EEOC

Pay equity–the requirement to pay men and women the same for doing equal work–has been the law of the land since 1963. Yet some employers continue to pay women less than men for doing the same work.

Advocates of pay equity have argued Congress should pass tougher laws outlawing the practice, but in the meantime we have to make do with the laws we have. Those laws, Title VII and the Equal Pay Act, prohibit employers from discriminating in compensation because of a person’s gender.

The Equal Employment Opportunity Commission made a small stride in the direction of pay equity with today’s announcement that Extended Stay Hotels will pay $75,800 and provide significant equitable relief to settle a pay discrimination lawsuit brought by the commission on behalf of a female worker.

The EEOC charged that Extended Stay Hotels paid Latoya Weaver less than male guest services representatives, including some newly hired male guest services representatives, at the hotel’s Lexington Park, Md., location.  The EEOC further charged that Extended Stay Hotels unlawfully paid other female employees lower wages than those paid to male employees for performing equal work.

“Wage discrimination has a pernicious effect on all workers, and often has a profound impact on the economic security of lower-income workers,” said District Director Spencer H. Lewis, Jr. of the EEOC’s Philadelphia District Office.  “This settlement addresses pay disparities and includes equitable provisions that should prevent pay discrimination in the future.”

To read more on the settlement, click here.

And here’s a refresher from the EEOC on equal pay rules under Title VII and the Equal Pay Act.

NFL Reaffirms Nondiscrimination Policy

The National Football League is an employer like any other, albeit one that draws from a limited candidate pool of highly skilled athletes. Still, like any other employer, it is subject to the nation’s employment discrimination laws.

NFL Commissioner Roger Goodell actually went the law one further when the league sent each of the 32 teams a memorandum reaffirming the league’s policy not to discriminate against players based on a variety of factors.

Chief among those factors at the present time is sexual orientation, which some believe could became an issue now that a leading college player–Missouri defensive end Michael Sam-has announced that his is gay.

With the league’s scouting combine beginning this week, the NFL front office in New York evidently felt the league needed a reminder of its antidiscrimination policy.

This is a teachable moment outside the world of professional sports, naming that candidates for jobs should be judged solely on their qualifications and not on extraneous factors such as their sexual orientation that have no bearing on that performance.