Archive for October, 2014

EEOC Catches Employer for Not Having Dialogue With Employee on ADA Accommodation

“Let’s talk about it.” These words should be displayed prominently in every HR department as a reminder that employers must enter into a dialogue with employees about their need for a reasonable accommodation for disabilities.

Not heeding that requirement can land the employer in hot legal waters. As witnessed what happened at a Minneapolis-based home health care provider, which the EEOC asserted failed to reasonably accommodate an employee who needed to use a cane because her walking was restricted because of several medical conditions.

As alleged by the EEOC, when supervisors at Baywood Home Care saw the employee using a cane, they informed the owner, who promptly fired her. The home never  engaged the employee in the “interactive process” to obtain information from her about her disability and the need for information, the EEOC charged.

The EEOC announced yesterday that Baywood had decided to settle the case, paying $30,000 and submitting to other relief, including training its managers on the ADA’s reasonable accommodation provisions and the interactive process requirement.

Which should stand as an object lesson to employers to take the ADA’s requirements seriously.

Or to put it in Halloween terms on this October 31-the trick is not overlooking the ADA requirements; the treat is not being sued by the EEOC.

Read more about the case and settlement.


NLRB Affirms Norton Ruling, Declaring Employers Can’t Bar Employees From Filing Suit

If your company is attempting to enforce a mandatory arbitration clause that makes employees give up their right to file a lawsuit, expect continued resistance from the National Labor Relations Board.

Earlier this week the full board affirmed a 2012 ruling, known as the D.R. Horton case, that such clauses violate employees’ rights under the National Labor Relations Act, which protect employees’ rights to take collective action.

Subsequent to that 2012 ruling, the Fifth Circuit held that such arbitration agreements were enforceable, as the NLRB “did not give proper weight to the Federal Arbitration Act” in holding the agreement unenforceable.

In a 3-2 vote, the full board this stuck to the D.R. Horton principle going forward.

You can access the board’s ruling here.

EEOC Settles Lawsuit on Behalf of Women at Construction Project; $215K Owed in Damages

How not to treat women: The way that a construction contractor on a project in New York City did, according to the Equal Employment Opportunity Commission.

The EEOC announced today that Vamco Sheet Metals, Inc. would pay $215,000 to settle a Title VII lawsuit challenging its treatment of female sheet metal workers on the massive John Jay College of Criminal Justice expansion in Manhattan from 2009 through 2011. According to the lawsuit, female sheet metal workers were fired for pretextual reasons, some after just a few days of work.

The suit also alleged that the women were treated unfavorably compared to men, including being assigned menial tasks like fetching coffee and having their breaks monitored. One new mother was denied a clean private place to pump breast milk.

This kind of behavior should have gone out of fashion long ago, but industries like the construction trade where men still dominate haven’t fully shed themselves of this plague.

Read more about the case and the settlement.

DOJ: Training Key to ADA Compliance

I commend for your reading a blog post on the U.S. Department of Justice website. The subject: The perils of not training your supervisors on employers’ duty of reasonable accommodation under the Americans With Disabilities Act.

The post by Deputy Assistant Attorney General Eve Hill for the Civil Rights Division recounts the experiences of a former Parks Maintenance Crew Leader with the city of North Las Vegas.

The condensed version of the story is that the ex-city employee, dubbed Mr. D. in the blog, has limited vision in one eye. The employer reasonably accommodated him for years, but then his new supervisor “unreasonably withdrew the long-time accommodation Mr. D needed to do his job and, as a result, he was forced out of work.”

Subsequent to his promotion to crew leader, even though the actual duties of the job didn’t change, the licensing requirements for the job were changed to include a commercial driver’s license. Except that Mr. D., because of his impairment, couldn’t qualify for a commercial driver’s license.

That was no problem at first as the city granted Mr. D an exemption from the requirement.

But eight years later, a new manager took over and told Mr. D. that he had to get a commercial driver’s license or face disciplinary action.

From the blog: “Mr. D. told the new manager about his accommodation because of his visual disability, and even got a new letter from his doctor to give to the manager.  In response, Mr. D. alleged, the manager again told Mr. D. he had to get the commercial driver’s license or face disciplinary action.  Fearing that he would lose his job and his pension, which he would be entitled to after only one more year of working for the city, Mr. D. felt forced to take an early retirement and paid out of pocket into the retirement system for his last year.”

The story had a happy ending, as the city, learning it faced a DOJ lawsuit, agreed to pay Mr. D. back the money he paid into the retirement system and compensate him for his emotional distress.  The city also agreed to train its supervisors so they understand their obligations under the ADA to help ensure that all employees with disabilities will be treated fairly.

This is a story about how a public employer strayed from the correct ADA path–but there is a lesson here for all employers.

Train your supervisors on the ADA!

Read the entire blog entry.

Half Million Dollar Award in Sexual Harassment Suit Against Physician Outsourcing Company

Sexual harassment can be costly–not just for the victims but also for the perpetrators.  A federal jury made this last point emphatically when it awarded the victims of harassment at a physician outsourcing company almost half a million dollars for harm they suffered as the result of a hostile work environment and retaliation.

According to evidence in the case, the victims not only were subject to a hostile work environment, but their complaints to HR went unanswered and they were fired for complaining.

The jury awarded $250,000 to a former executive assistant for sexual harassment committed by the division CEO, while two other fired workers were awarded $82,000 and $167,000 respectively as compensation for wages lost when the fired in retaliation for their complaints.

Read more about the verdict and damages.

EEOC: Walmart Violated ADA in Not Allowing Applicant to Take Alternate Drug Detection Test

The Americans With Disabilities Act permits employers to make a job offer conditional on the applicant submitting to a drug screen, but employers must provide an alternative screening if the applicant can’t do the screening the employer prefers.

A Wal Mart store in Cockeysville, Maryland, that insisted that a job applicant take a urinalysis is now on the hook for $72,500 because of its stubbornness in not allowing the applicant–who suffered from end renal diseases and thus could not produce urine–to take another type of drug screening that would have achieved the same ends of making sure that the applicant was drug-free.

After learning of her disease, the assistant store manager told her to ask the designated drug testing company about alternate tests, the EEOC said. According to the complaint, Jones went to the drug testing facility the same day and learned that the facility could do other drug tests if the employer requested it. Jones relayed this information to the Walmart assistant store manager, but management refused to order an alternative drug test. Jones’s application was closed for failing to take a urinalysis within 24 hours.

In addition to the monetary relief, Walmart also agreed to revise it applicant drug screen form to advise applicants that alternate drug screens will be available as a reasonable accommodation for applicants to whom a conditional offer of employment has been made in the Cockeysville store, whose physical condition prevents them from producing urine and how to request a reasonable accommodation. Wal-Mart also will provide training on the ADA and the revised drug screen form to its market and regional human resources directors, as well as to people with hiring responsibility at the Cockeysville store.

So an important lesson for all employers–don’t back yourself into a legal deadend when testing for drugs, or it will cost you in the end.

Read more.


D.C. Suburb Considering Law to Restrict Employers From Asking About Criminal Records

Employers would have to wait until after the initial interview to ask a job applicant whether he or she has a criminal record, under legislation that a large Washington, D.C. suburb is considering.

Prince George’s County–a suburb in Maryland east of the nation’s capital–could become the latest local government to pass “ban the box” legislation giving applicants with a criminal record a better shot at being hired.

Some 13 states and 60 local have instituted similar laws.

Under the law that the PG Council is considering, emergency management and public safety agencies would be exempt. The restrictions also would not apply to jobs that require care or services to minors or vulnerable adults. Employers also could make more extensive inquiries about criminal background where the employee has access to money or personal or proprietary information.

Illinois has a similar law under which employers can’t ask applicants about any criminal convictions until after the initial interview.