Archive for March, 2014

Cleaning Service Sued by EEOC in Pregnancy Case; Fictitious “Health-Related” Issues Cited

I’d like to write about other topics than pregnancy discrimination, but the behavior of some employers gives me no choice. I see it as my mission to spare employers the ordeal of an employment discrimination suit.

A Merry Maids home cleaning franchise in Kenosha, Wisconsin became the latest employer to apparently misstep when it comes to the treatment of a pregnant woman. The EEOC announced that it has sued the company for allegedly firing one of its female team captains “because she suffered from pregnancy-related health issues.”

The alleged victim, Belinda Sternemann, a military veteran, worked for the franchise for two years, had a spotless work record (no pun intended) and her pregnancy didn’t prevent her from doing the job, according to the EEOC.

Sounds like from the EEOC’s statement that the employer got a little carried away.

“Sometimes employers overreact and base employment decisions on an employee’s pregnancy,” said EEOC’s Chicago District Director John Rowe, who supervised the agency’s investigation.  “Pregnant women have the same right as other individuals to earn a living.”

Read more about the case here.

Transgender Bias Soon To Be Unlawful in Md.

It will soon be as illegal in Maryland to deny employment on the basis of gender identity as on the basis of race or religion or gender, under a bill that clearest its last legislative hurdle last week in the general assembly.

The Senate Bill 212, otherwise known as the Fairness for All Marylanders Act of 2014, made it through the Democratic-controlled House by a vote of 82-57, after more than two hours of floor debate. It passed the state Senate earlier this month, 32-15.

The Democratically-controlled legislature defeat Republican-offered amendments to exempt public accommodations from the law’s protections, arguing that to allow transgenders to use opposite-sex bathrooms could pose a threat to women and children because it would allow possible predators and pedolphiles to use women’s restrooms.

But supporters of the bill said there’d been no such incidents in other states that have passed gender identity protections in their public accommodations laws.

Governor Martin O’Malley, who led the effort to pass same-sex marriage in Maryland, is expected to sign the bill soon.

Baltimore City, Baltimore County, Howard County, and Montgomery County already provide such protections.

Inability To Sit For Long Stretch Can Be ADA Disability, U.S. Second Circuit Appeals Declares


Can’t sit still for a long job on the job? You may have a disability under the Americans With Disabilities Act, depending the circumstances, according to a recent ruling by the U.S. Court of Appeals for the Second Circuit.

In this case a clerk for a Venezuelan bank fell on the sidewalk and sustained back and neck injuries that prevented her from sitting for a long time. Because her job was largely sedentary, this was a problem. She requested the bank supply her with a ergonomic chair, which the court said might have solved her problem.

But the bank was slow in responding, and after she was denied long-term disability leave, effectively fired her.

On her ADA claim, the court said it wouldn’t draw a bright line as to when the inability to sit would or would not be considered a disability.

The issue under the ADA is whether the impairment “substantially limits” a major life activity, the court said. It does if the impairment significantly restrict the employee as to the condition, manner or duration under which she can perform” the activity.

The ruling is Parada v. Banco Industrial de Venezuela C.A., No. 12-3525, 3/25/14.

You can download the full text of the opinion here.

Hotel Forks Over $20K in Settlement of EEOC’s Lawsuit on Behalf of Fired Pregnant Employee

Some employers still don’t get it when it comes to employment of pregnant women. Pregnancy is a protected characteristic under Title VII of the 1964 Civil Rights Act, and it is against the law to fire a woman because she is pregnant.

According to the EEOC, a hotel in Mississippi forgot that elemental truth. The commission announced it has settled a pregnancy discrimination lawsuit against a Holiday Inn franchise in Batesville, Mississippi. The hotel has agreed to pay $20,000 to resolve allegations that it fired a pregnant employee the day she started working,

The employee, T’Shawn Harmon, told the hotel management she was pregnant on her first day of work and they fired her that night.

Keep in mind also that a female employee is under no obligation to inform a prospective employer that she is pregnant. Perhaps the hotel in this case fell into the trap of thinking that because she hadn’t told it of her pregnancy, it was legal to fire him once it learned about it.

You can read more about the case here, and here is information on the EEOC’s website on the topic of pregnancy discrimination.

NLRB Regional Director OKs Right to Unionize by Athletes at Private Colleges and Universities

College athletes could soon be walking the picket line and striking against their employers if their wage and other demands are not met, courtesy of a ruling today in a landmark case brought before the NLRB’s Chicago regional office.

The office’s regional director ruled that athletes at private colleges and universities are employees who can form labor unions and bargain over terms and conditions of employment. It’s the first ruling extending the right to organize to student athletes at a college or university

The charge to unionize was led by Kain Colter, a former quarterback at Northwestern University in Evanston, Illinois, who testified before the board that playing football is a job, the labors from which colleges and universities make a bundle of money. Therefore, he urged, the athletes ought to have the right to collectively bargain over the terms of their employment.

The NLRB regional director agreed, writing: “It cannot be said the Employer’s scholarship players are “primarily students.”

This was just one stop in what promises to be a long legal odyssey. The National Collegiate Athletic Association (NCAA) has vowed to appeal, and the case will now go to the full board in Washington, D.C.

And for now the ruling applies only to student athletes at private universities like Northwestern–and not to public colleges such as state schools.

Another remaining question is what is the bargaining unit. Is it just the football players, or all athletes at Northwestern?

Stay tuned.

Fine Goes Up for Not Posting EEO Notices

Starting on April 18, not posting your required equal employment opportunity notices will set you back $210 a day rather than the current $110 a day.

In a final rule published in the Federal Register last week, the EEOC announced that the fine was being increased to adjust for inflation.

The monetary penalty applies to notice-posting requirements in Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, and the Genetic Information Non-Discrimination Act.

This is a no-brainer. Why would any employer want to pay the fine rather than post the notices. And they’re not hard to obtain.

You can obtain all the posters you need from the EEOC–right here.

 

Wal Mart Wrong Under ADA To Insist Job Applicant Undergo Urinalysis, EEOC Says

Employers cannot take a “my-way-or-the-highway” approach to drug testing under the Americans With Disabilities Act, insisting that only one kind of screening will do. If the EEOC gets wind of it, they’ll have a lawsuit on their hands

Because it didn’t give an applicant with kidney disease that choice, Wal Mart now has an ADA suit on its hands.

According to the lawsuit, the store insisted that an applicant submit to a urinalysis as a condition of being considered for a sales associate job at the store. When informed by the applicant that she couldn’t produce urine because she had end-stage renal disease, the store manager said she should talk to the drug testing facility about an alternative drug test. The facility told her there were alternatives, such as a mouth swab/saliva test. But it said that the store would have the order.

Meanwhile, according to the EEOC, the store manager supposedly was told by the corporate office that only a urinalysis would do and the store wound up pulling the job offer because the applicant was able to do the urinalysis within 24 hours. This conduct violated the ADA, the EEOC argues, because the store should have offered the applicant a reasonable accommodation of taking another type of drug testing.

“While an employer may require applicants to undergo a drug test, these lawsuits should send a strong message to all employers that they simply cannot have a blanket, inflexible policy or practice of requiring only a urinalysis test, regardless of the circumstances,” said Lawrence.  “Paying attention to federal disability law and making a minimal effort to accommodate this applicant would have saved everyone a lot of trouble.”

Read more about the lawsuit.

Just Say No to Workplace Negativity

It’s my pleasure again to give over today’s post to HR consultant and writer Robin Paggi, who has some words of wisdom on the negative impact that negativity in the workplace can have and offers practical ideas for dealing with employees who are expert in spreading it.

Negativity in the Workplace

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

“If you haven’t got anything nice to say about anybody, come sit next to me,” quipped Alice Roosevelt Longworth, daughter of President Theodore, who was renowned for her “brilliantly malicious” humor. Unfortunately for people with such a sense of humor, those on the receiving end tend not to be amused. Employers should not be amused either because employees who aim their malicious humor (brilliant or otherwise) toward their co-workers are helping to create a negative work environment that is costly to everyone involved.

Indeed, those who disparage others, as well as those who are disagreeable, gloomy, pessimistic, hostile, or just downright unpleasant cost employers about $3 billion annually, according to the Bureau of Labor Statistics. If you’ve ever worked with a disparaging, disagreeable, gloomy, pessimistic, hostile, or unpleasant person, you know why the cost is so high: persistent negativity drains the energy out of everyone, causing a decrease in motivation, creativity, productivity, and happiness.

Don’t just take my word for it. In their article “Words Can Change Your Brain,” Mark Waldman and Andrew Newberg, M.D. report that seeing the word “no” releases dozens of stress-producing hormones and neurotransmitters in one’s brain, and saying the word “no” releases even more. Hearing “no” causes stress for the listener because it activates his or her stress chemicals as well. If just hearing “no” causes a person to become stressed, imagine what being subjected to negativity on a regular basis does to people.

I’m not saying that employers should now ban the word “no” from the workplace.

Additionally, I’ve mentioned in previous articles that Section 7 of the National Labor Relations Act protects employees’ right to discuss their working conditions in an effort to improve them, so I’m definitely not suggesting that employers tell their employees they can no longer complain about work. What I am saying is that employers should not allow negative employees to spread their negativity to everyone else.

Address the issue by meeting privately with the employee and doing the following:

• Tell the employee about the negative behavior you have observed or heard

• Explore what might be causing the negativity. If it’s because of legitimate work-related issues, the conversation goes in a different direction. If the response is something  like “this is just the way I am” or “you’d be negative too if you had the life I have” then proceed to the next step.

• Explain the impact of the negative behavior on others and the need for

• Create and agree on some strategies for change.

• Follow up with the employee and provide feedback.

All of that would sound something like this: “Robin, I want to talk to you about something that is concerning me. I don’t know if you are aware of this, but you frequently make disparaging remarks about your co-workers. For example, in our staff meeting yesterday, you told Steve that his degree would mean something if he had gone to a real college, you told Don that the 1980s called and they want his suit back, and you mimicked the way Sally talks by saying the word “like” at the beginning of every sentence. And, that was just in one meeting! Are you upset with your co-workers about something? No? Then, you need to know that those kinds of remarks are causing your co-workers to not want to work with you, and I need everyone to work together. I’m not saying you need to change your personality; I am saying you need to refrain from making fun of your co-workers. Let’s meet next Friday to see how your week went.”

While most employers dread conversations like the above, addressing the issue will benefit them, the rest of their staff, and the employee on the receiving end as well because allowing someone to regularly express their negativity doesn’t do them any favors either.

The words we use create the world we live in. Addressing negativity will help to ensure that your working world is a positive one.

Robin Paggi is the Training Coordinator at Worklogic HR.

For prior columns by Robin appearing in my blog, click here and here.

Poultry Workers Not Entitled to Pay for Changing Into and out of Work Clothes, 7th Circuit Says

Employees at a poultry processing plant are bound by their union’s agreement with management not to pay them for time changing into and out of work clothing, the U.S. Court of Appeals for the Seventh Circuit ruled earlier this month.

The ruling tosses the employees’ claim that the denial of pay violated overtime provisions of the Fair Labor Standards and the Illinois Minimum Wage Law.

The employees are required prior to working to put on a sterilized jacket, plastic apron, cut‐resistant gloves, plastic sleeves, earplugs, and a hairnet. They must remove this sanitary gear at the start of their half‐hour lunch break and put it back on before returning to work. They are not compensated for the time spent changing.

Affirming a lower court’s dismissal of the lawsuit, the Seventh Circuit noted that a provision of the FLSA excludes compensation for “any time spent in changing clothes at the beginning or end of each workday which was excluded from measured working time … by the express terms of or by custom or practice under a bona fide collective‐ bargaining agreement applicable to the particular employee.” The cause of amicable labor relations would be impaired by reading broadly laws that remove wage and hour issues from the scope of collective bargaining, the court wrote. Employer and union in this case agreed not to count the tiny changing times as compensated work. The plaintiffs were trying to upend the deal struck by their own union, the court said.

The ruling is Mitchell v. JCG Industries and is available here.

Staffing Agency Sued by EEOC Over Pulling of Employment Offer to HIV-Positive Applicant

In the 1993 movie Philadelphia, Tom Hanks plays an attorney who is fired by his law firm because he has AIDS.  His portrayal won sympathy from the audience, and the hope was that by bringing cases like this to the surface, employment discrimination against AIDS and HIV sufferers might be relegated to the past.

But according to a Americans With Disabilities Act lawsuit filed this week by the Equal Employment Opportunity Commission, a health care provider in Pittsburgh allowed stereotypical ideas about HIV carrier to tarnish is hiring decisions.

The EEOC alleges that Maxim Healthcare Services Inc., a staffing service for nurses and other health care professionals, refused to hire a candidate for an assignment that involved sitting with patients at a U.S. Department of Veterans Affairs (VA) medical facility because that individual was HIV-positive. According to the lawsuit, the candidate had already received an offer of the position from Maxim that was contingent on later completion of a health status certification, which reflected his HIV-positive status but stated he was cleared to work.

The lawsuit does not allege any participation by the VA in Maxim’s decision.

 The EEOC is seeking lost wages and other relief on behalf of the individual, who is not identified in the complaint.

“Once again, an employer involved in the health care field has impermissibly allowed fear and bias to enter into the hiring process,” said Philadelphia Regional Attorney Debra M. Lawrence. “The ADA clearly prohibits covered employers, including those staffing health care positions, from refusing to hire someone based on disability.”

Read more about the lawsuit.