Archive for July, 2014

Physical Fitness Test for Pa. State Troopers Biased Against Women, DOJ Charges in Suit

A physical fitness test that the state of Pennsylvania uses for hiring entry-level state troopers discriminates against female applicants, the U.S. Department of Justice has charged in a just-filed lawsuit.

According to the DOJ, the test, which has been in use since 2003, disproportionately discriminates against women because they failed it at a statistically significantly greater rate than male applicants. The test included a 300-meter run, sit-ups, push-ups, a vertical jump and a 1.5-mile run.

More than nine in ten men (94 percent) passed the test compared with 71 percent of women, and even under a modified version of the test since 2009, 98 percent of men have passed versus only 72 percent of women.

In the government’s estimation, the test cost 119 women the opportunity for further consideration and 45 women would have been hired as entry level troopers if women had passed at the same ratio as women.

Here’s DOJ’s announcement of the lawsuit.

New OSHA Directive on Cell Tower Safety

The next time you look up at a cell phone or other communications tower, ponder for a moment the human toll that working on these structures has exacted.

According to the Occupational Safety and Health Administration, there were more fatalities in the cell tower industry in 2013 than in the prior two years combined and 9 worker deaths so far in 2014.

To bring down those numbers, the agency last week issued a new directive on communications tower safety. The new directive focuses on the use of hoist systems used to move workers to and from workstations on communication towers. It outlines the proper use of hoist and other fall arrest systems and includes detailed information on how to hoist people safely.

Under a 2002 enforcement policy, only the hoisting of workers to workstations during new tower erection activities was covered.

“The updated policy covers any work on a communication tower–including both maintenance and new construction–that involves the use of a hoist to lift workers from one elevated workstation to another,” the agency said.

To read more about the directive, click here.

Employer Docked $30K in Pregnancy Case

Maybe Triple T  Foods will think twice now before it fires a female employee because she is pregnant.

The Arkansas-based pet food processor agreed to pay $30,000 to settle an EEOC lawsuit alleging that it fired a female lab technician on the same day she informed it that  she was pregnant.

In the settlement announcement, the EEOC noted that just two weeks ago it issued new enforcement guidance on pregnancy discrimination and questions-and-answers on the guidance and a fact sheet for small businesses.

So maybe the employer in this case can be forgiven for not knowing about EEOC’s beefed up enforcement of Title VII’s ban on pregnancy discrimination.

Still, most employers know by now that they can’t fire a woman because she is pregnant. That’s been standard Title VII law since the 1970s.

“We are pleased Triple T has hired a human resources specialist to prevent pregnancy discrimination from occurring there in the future,” the EEOC’s regional attorney said.

Here’s more on the case and settlement.

Sweet Smell: Union Can Organize Cosmetic, Fragrance Department Employees at Macy’s

Unions scored a victory last week in their efforts to organize smaller groups of employees into separate bargaining units.

Forty one employees in the fragrance and cosmetics department at a Macy’s store in Saugus, Massachusetts can comprise a bargaining unit under the National Labor Relations Act,  the National Labor Relations Board ruled last week.

The board majority said that the workers shared “a community of interest” to be recognized for bargaining purposes, and that Macy’s hadn’t shown that they should be grouped with other employees in the store.

Macy’s and other retailers fought against recognition of these micro groups of workers and prefer that the entire store be recognized as one bargaining unit.

But the 3-1 board majority sided with the United Food and Commercial Workers, citing a 2011 board ruling, Specialty Healthcare, in which the board ruled that a union could try organizing a group that consisted only of nursing assistants at a long-term care facility.

You can access the full text of the board’s ruling here.

N.M. Court Okays Reimbursement of Injured Employee for Cost of Medical Marijuana

An employer must reimburse an injured employee for the cost of medical marijuana used to treat his condition, the New Mexico Court of Appeals has ruled.

The injured employee suffered severe back pain from a workplace injury and applied for approval of medical treatment for medical marijuana. He had been certified for the program by two physicians.  The workers’ compensation judge found that the worker was “entitled to ongoing and reasonable medical care,” including medical marijuana, and ordered the employer to pay for the care.

Under the New Mexico Workers’ Compensation Act, “services” are defined as “health care services, . . . procedures, drugs, products or items provided to a worker by an health care provider, pharmacy, supplier, caregiver, or freestanding ambulatory surgical center which are reasonable and necessary for the evaluation and treatment of a worker with an injury or occupational disease. . . “ 

Based on this definition, the court found that medical marijuana is a product from a supplier that may be reasonable and necessary for an employee’s treatment.

The court also said it doesn’t matter that a doctor does not “prescribe” medical marijuana, but rather the employee gets certified to the New Mexico program. It is unnecessary that each and every service must be provided by a health care provider, it said.

The ruling is Vialpando v. Ben’s Auto. Servs., 2014 N.M. App. LEXIS 50 (N.M. Ct. App. May 19, 2014),

Expect employees in other states that allow medical marijuana to make similar arguments that they should be reimbursed under those states’ workers’ compensation laws.

EEOC: Medical Inquiries Policy Violated ADA

If what the EEOC alleges actually happened at Erie Strayer Company, then the company messed up royally under the ADA and is facing serious damages.

According to a lawsuit the EEOC just filed against the Erie, Pa.-based construction equipment supplier, that company subjected its employees to unlawful questions about their medical conditions and retaliated against those employees who refused to comply with this policy.

It seems that the company coerced employees to disclose information about their specific medical conditions in order to have necessary sick leave count as an excused absence.

It subjected  the lead complainant  and “a class of similarly situated  employees to a policy and practice of unlawful medical inquiries and adverse  employment actions resulting from such inquiries,” the EEOC said.

“These actions included coercion, intimida­tion,  threats, and interference with the exercise and enjoyment of their protected rights,” it said.

That’s an unlawful disability-related inquiry not justified by business necessity, said Regional Attorney Debra Lawrence  of the EEOC’s Philadelphia District Office.

Read more about the lawsuit here.

No Fixed Start to Workweek, 8th Circuit Holds

It’s clear under the Fair Labor Standards Act that an employee is entitled to overtime for working more than 40 hours in a week. But who gets to decide when that workweek begins?

The employer does, according to the U.S. Court of Appeals for the Eighth Circuit, which ruled recently that the employer has the right to establish a workweek and was not required to begin the workweek on any given day, the U.S. Court of Appeals for the Eighth Circuit has ruled.

The plaintiffs in this case argued the workweek should be Thursday to Wednesday when they worked most of their hours. But the employer used a Monday through Sunday workweek.

So they get a lot less overtime doing it the employer’s way.

That’s acceptable under the FLSA, the court held.

The case is Johnson v. Heckmann Water Resources, No. 13-40824, July 14.

EEOC: Manager’s Firing to Satisfy Hispanic Customer “Preference” Violated Title VII

It’s a Title VII violation to base employment decisions on the real or imagined preferences of your customers for employees of a particular race. But that’s what the EEOC is alleging that an AutoZone Store in Chicago has done.

In a lawsuit filed this week in the U.S. District Court for the Northern District of Illinois, the agency says that the store’s managers decided in 2012 to limit or eliminate the number of non-Hispanics working there, on the belief that the store’s Hispanic customers would prefer to be served by Hispanic employees.

Ergo, in forcing a black manager to transfer out of the store and take an assignment at another store-and then firing him when he resisted– Autozone violated Title VII, the EEOC says.

“Fifty years after the adoption of the Civil Rights Act, a major employer transferring an employee simply because of his race and then firing him for not going along is unacceptable,” said John Hendrickson, the EEOC’s regional attorney in Chicago.  “When the employer is a major national brand and a leader in its industry, it’s even worse.  Everyone must understand that supposed customer preference is no excuse for discrimination – it’s still illegal, and the EEOC will step in to challenge it.”

Learn more about the case here.


LGBT Executive Order Signed by Obama

Executive action that President Obama promised to take on gay and lesbian and transgender discrimination has finally arrived.  On Monday the president signed an executive order forbidding federal contractors and the federal government from discriminating on the basis of sexual orientation and gender identity.

The new executive order amends Executive Order 11246, the cornerstone of the federal contracting program, which already forbids discrimination based on race, color, religion, sex, or national origin. Now it will include discrimination based on sexual orientation.

That change will affect some 30,000 companies employing 28 million Americans. Separately, Obama amended Executive Order 1478, signed by President Richard M. Nixon, which extends similar protections to federal employees.

Over the objections of religious leaders, the executive order does not include a broad exemption for contractors with religious affiliations. However, it does maintain a 2002 executive order signed by President George W. Bush, which allows employers to favor workers of their own faith for religious roles, such as members of the clergy.

Here’s the White House fact sheet on the new order.

New Illinois Law Forbids Criminal Background Checks Until Applicant Selected for Interview

A just-signed law in Illinois limits employers’ ability to conduct criminal background checks on job applicants. Under the new law, the Job Opportunities for Qualified Applicants Act, signed by Governor Quinn on July 19, companies can’t inquire or require disclosure of an applicant’s criminal record or history until the applicant is deemed qualified for hire and selected for an interview.

For jobs that don’t require an interview, it can’t do background checks until a conditional offer of employment is made.

The new law is similar to “ban the box” legislation, like the one passed in Washington, D.C. last week, that makes it illegal to make job applicants answer questions on the application as to whether they’ve ever been convicted of a crime.

The new Illinois law is H.B. 5701. It takes effect Jan. 1, 2015.