Archive for August, 2014

EEOC, Mexico Ink Agreement on Cooperation

Our neighbor to the south is now officially on board with working with the U.S. Equal Employment Opportunity Commission to combat employment discrimination against Mexican nationals working in this country.

And that can mean one thing for sure: Expect the EEOC to be more vigilant about working conditions of immigrant, migrant and other Mexican workers and to file lawsuits where the facts suggest a Title VII violation has occurred.

From the EEOC’s announcement at the signing of the “Memorandum of Understanding”:

“This national MOU exemplifies the overall intent of the EEOC and the Mexican Embassy to continue the efforts to assist the Mexican community.  Under the national framework of the MOU, the two entities will cooperate to provide outreach and training, as well as assist with enforcement efforts as needed.”

Read more about the Aug. 29 agreement and what it means for U.S.-Mexico cooperation to eradicate employment bias based on national origin.

Company Settles With EEOC Over Leave Policy

Another employer has become caught in the snare of an apparent ADA violation by not allowing an injured employee to return to work.

In this case, the Equal Employment Opportunity Commission alleged that RockTenn CP, LLC formerly known as Smurfit-Stone Container Corporation, erroneously placed a supervisor on short-term disability leave and then after informing him of its mistake, fired him. The supervisor had been hospitalized with a severe back condition but had a doctor’s note giving him permission to return to work.

“Smurfit-Stone refused to allow Fraley leave as a reasonable accommodation for his disability for the period from around July 29, 2009 [when HR informed him he had been mistakenly been given short-term leave] until he was released to return to work around August 4, 2009. Rather, the company discharged Fraley because he could not return to work because of his disability,” the EEOC said.

To avoid a trial, the South Carolina-based RockTenn agreed to pay $20,000 to settle the EEOC’s suit and provide other appropriate relief.

“This case is a reminder to employers that they must always consider whether their leave policies and practices for granting leave are in alignment with the requirements of the ADA,” the EEOC announcement said.

Read more about the case.

Fed Ex Drivers Are Employees, Court Holds

Federal Express has a problem on its hand regarding its drivers in California and Oregon. In separate rulings, the U.S. Court of Appeals for the Ninth Circuit  has ruled that the drivers are employees under the respective states’ wage and hour laws.

The court ruled that under the economic realities test used in both states’ wage and hour laws, the drivers are employees, even though they might have “significant entrepreneurial opportunities” to make or lose money.

So now the delivery giant will have to decide whether to keep this case going or settle.

The rulings were Alexander v. FedEx Ground Package Systems Inc. and Slayman v. FexEx Ground Package Systems Inc.

EEOC Files Suit on Behalf of Pregnant Waitress Fired Because She Was “Starting to Show”

I’ve been sounding the alarm bells for months that employers need to shape up when it comes to dealing with pregnant employees, respecting their rights to work in jobs that they see fit–and not imposing stereotypical or patriarchal views of what is good for pregnant women.

A Dallas restaurant is but the latest establishment to feel the EEOC’s wrath for mistreating a pregnant worker.

This week the EEOC charged that Arthur’s Restaurant and Bar, located in Addison, Texas, violated Title VII of the 1964 Civil Rights Act by pressuring a pregnant waitress to leave her job because she was “starting to show.”

According to the EEOC, the restaurant’s owner complained that waitress Jennifer Todd was starting to show, and “the company claimed that her baby’s health was at risk because Arthur’s is a smoking establishment.” Five days later  the company forced her to begin her maternity leave early, and never assigned her another shift thereafter, effectively discharging her, the EEOC charged.

From the EEOC’s announcement of the lawsuit:

“Employers should be well beyond archaic prejudices against women who are pregnant,” said Robert Canino, EEOC Dallas District Office Regional Attorney. “Too many employers have continued to deny female workers equal opportunity to earn a living for their families and themselves, simply because they are pregnant or ‘showing.’ The EEOC continues to combat such prejudices and practices as part of its efforts to educate the public about the rights of women in the workplace – everyone should be free from this obvious form of sex discrimination.”

Read more about the case.

EEOC: Costco Allowed Stalking of Employee

Allowing one of your customers to sexually harass your employees is just as illegal as when the employee’s co-worker or supervisor does it.  So warehouse retail giant Costco finds itself in hot water with the Equal Employment Opportunity Commission, which charges in a Title VII lawsuit that the company fostered a sexually hostile environment in which it failed to protect a female worker from being stalked by a male customer.

According to the lawsuit, the alleged stalking occurred at the company’s Glenville, Illinois store. The women complained to store managers about being pursued, approached and confronted by the man. She even got a protective order against him.

“The employee’s efforts weren’t enough for Costco,” said EEOC’s John Rowe, director of its Chicago office .  “One of her managers apparently told the young woman that he agreed the man was ‘not right’ and that Costco would monitor the situation.  But what actually happened was that when the situation persisted and the employee complained to the police, Costco management allegedly yelled at her and told her to be friendly to the customer.”

“No employer gets a pass because it is a customer targeting its employee, rather than a manager or fellow employee, said John Hendrickson, EEOC’s regional attorney in Chicago. “That’s particularly true when the harassment is especially egregious.  If the employer permits the harassment to continue, it’s compounding its liability and troubles.”

Read more about the case.

And here’s information from the EEOC’s website about preventing sexual harassment of workers by customers. Scroll down to the bottom of the page under the heading Employer Liability for Harassment.

OSHA Issues Safety Tips for Temporary Workers

The Occupational Safety and Health Administration today issued a set of recommended practices to ensure that workplaces are safe for temporary employees. The agency emphasized that all workers are entitled to a safe workplace, regardless of where they work and whether the job is permanent or temporary.

Cooperation and collaboration between temporary staffing agencies and the employer hosting the worker is key to ensuring a safe workplace, the document says.

The recommendations include:

  • evaluate the host employer’s worksite;
  • train staffing agency staff to recognize safety and health hazards; and
  • ensure the employer meets or exceeds the other employer’s standards.

Read the document here.

Food Lion Sued by EEOC for Religious Accommodation Violation Under Title VII

Seems that Food Lion has experienced a problem that dogs many companies that operate in more than one location; uneven application of workplace policies.

Latest case in point: The EEOC sued the company this week for allegedly denying a reasonable accommodation to an employee in its meat cutting department who needed Sundays and Thursday nights off to pursue his duties as a minister and elder in Jehovah’s Witness.

No problem at the first store he worked in–Food Lion’s Market No. 1044 in Winston Salem. The store manager there granted his accommodation no questions asked. But when the worker transferred to Market 334 in  Kernersville, N.C., “the store manager there told Bailey that he did not see how Bailey could work for Food Lion if he could not work on Sundays,” the EEOC said.

So when he refused to work on Sundays, the store fired him.

Here comes the EEOC to the rescue, suing Food Lion for religious discrimination and seeking the fired employee’s reinstatement with full benefits.

“Employers need to ensure that their supervisors and managers who are called upon to make decisions on employees’ requests for religious accommodations are fully knowledgeable of their obligations under federal law,” said Lynette A. Barnes, regional attorney for the EEOC’s Charlotte District Office.  “Many decision makers seem to forget that unless providing a reasonable accommodation would impose an undue hardship on the company, the accommodation must be provided.  No person should ever be forced to choose between his religion and his job.”

But there’s another lesson here, too. If you operate in more than one location, make sure everyone at each location is on the same page on the company’s policies and legal obligations under federal and state employment laws.

That might have kept Food Lion from its current predicament, looking at the short end of an EEOC lawsuit.

Here’s the EEOC’s announcement of the lawsuit.

Two Firms Docked for Firing Whistleblowers

Firing an employee who blows the whistle on safety issues is a violation of federal law and will invariably come back to bite the employer.

That’s what happened to two companies this week that fired workers because they had raised safety concerns.

In one case, the U.S. Labor Department ordered Washington River Protection Solutions, a subsidiary of URS Corp. and Energy Solutions, to reinstate and pay $220,000 in back pay and other expenses to a worker allegedly fired for voicing concerns about nuclear and environmental safety. According to DOL, the worker first blew the whistle on nuclear and environmental safety and permit and recordkeeping violations in 2009. He was fired two years later and reapplied for the job in 2012. The company cited “poor performance” as the reason for the initial firing. WRPS is a contractor at the Handford, Washington nuclear reservation.

In the second case Asphalt Specialists Inc., headquartered in Pontiac, Michigan, was ordered by DOL to reinstate a trucker and two foremen who were fired for raising safety concerns. In addition to reinstating the employees, the company must pay a total of $953,916 in damages: $243,916 in back wages to the drivers, $110,000 in compensatory damages and $600,000 in punitive damages.

Given these outcomes, ask yourself if it is ever worth it to fire someone because they raised safety concerns. Even if you think the firing was for some other reason, make sure you document that well and avoid any suggestion that their complaints were the issue.

Here’s DOL’s announcement in the trucking company case.

And here’s the announcement in the nuclear plant case.


EEOC Says Wellness Program Violates ADA

An employer can have a program that rewards employees for attaining positive health goals, but it must remain voluntary and not penalize workers who decline to participate, the EEOC said yesterday in announcing its first Americans With Disabilities Act lawsuit over such programs.

According to the EEOC, Orion Energy Systems, based in Manitowoc, Wisconsin, violated the ADA by requiring an employee to submit to medical examinations and questions that were not job-related or consistent with business necessity as part of its wellness program. And when the employee refused to participate in the program, the company allegedly transferred responsibility for paying the entire health premium to her.

A majority of employers now offer some sort of wellness program — 94 percent of employers with over 200 workers, and 63 percent of smaller ones, according to Karen Pollitz of the Kaiser Family Foundation. So employers with these programs need to be especially mindful of not crossing the line into an ADA violation.

“Employers certainly may have voluntary wellness programs — there’s no dispute about that — and many see such programs as a positive development,” said John Hendrickson, regional attorney for the EEOC Chicago district.  “But they have to actually be voluntary.  They can’t compel participation by imposing enormous penalties such as shifting 100 percent of the premium cost for health benefits onto the back of the employee or by just firing the employee who chooses not to participate.  Having to choose between responding to medical exams and inquiries — which are not job-related — in a wellness program, on the one hand, or being fired, on the other hand, is no choice at all.”

Orion seems bent on arousing the commission’s ire. Earlier this year it was sued by the EEOC for allegedly refusing to install a door opener for a wheel-chair bound employee.

Read more about the case.

Gender ID Bias Included in Fed Contractor Order

Federal contractors must not discriminate against employees based on gender identity or transgender status. The Office of Federal Contract Compliance Prgrams made that clear yesterday in Directive 2014-02.

It’s a follow-up to Executive Order 13672 issued earlier this year by President Obama, which prohibits federal contractors from discriminating against lesbian, gay, bisexual and transgender employees and applicants.

But that latest order didn’t specify gender identity and transgender status as types of sex discrimination.

The new directive clears that up.