Archive for November, 2014

Bakery Settles DOJ Lawsuit Alleging It Refused Valid Working Papers of Foreign-Born Worker

As the country debates immigration reform, employers must not overlook the requirement under current law that they accept valid working papers from job applicants. As every HR department knows, the federal form I-9 lists the documents an employer must accept from a worker as proof of eligibility to work in this country, including certain photo IDs.

An employer that refuses to accept these documents as proof of work authorization commits an unfair immigration-related practice under the Immigration and Nationality Act and is subject to suit by the U.S. Department of Justice.

Last Tuesday, the DOJ announced that it has settled unfair immigration-related employment practice charges against a San Francisco-area bakery that allegedly refused to accept valid working papers from a foreign worker.

As part of the settlement, La Farine Bakery agreed to pay $26,000 in back pay and other compensation to the victim of this discrimination.

“Employers should not make assumptions about the validity of their workers’ employment documents based on sterotypes or unfounded assumptions,” said Acting Assistant Attorney General Vanita Gupta for the Civil Rights Division.  “The department encourages employers to use the Civil Rights Division’s resources, including OSC’s hotline, if they have questions about accepting Form I-9 documentation in a non-discriminatory manner.”

Read more about the case.

Bills Introduced to Ease Thanksgiving, Christmas Impact on Employees of Retail Establishments

Yesterday on Thanksgiving I applauded those retailers that decided to close and give their employees  the day off for the holiday.

Today comes word that legislatures in two states have introduced bills to ease the impact on Thanksgiving and the Thanksgiving-Christmas shopping season on employees of these establishments.

A bill introduced in New Jersey would prohibit retail stores from opening before 9 p.m. on Thanksgiving Day. State Senator Richard J. Codey (D) said his bill would protect low-income employees from having to miss Thanksgiving dinner to work.

Similar laws have passed in Rhode Island, Maine and Massachusetts.

“We already have a Black Friday,” Codey said. “We don’t need a Black Thursday.”

Legislation recently introduced by California Assemblywoman Lorena Gonzalez (D) would allow stores in that state to open on Thanksgiving and Christmas but make them pay their employees double their normal wage for working on that day.

Whether these bills pass or die on the vine, it’s refreshing to see lawmakers looking out for the interest of workers.



Give Employees Thanksgiving Off

On this–my 1,300th blog entry since starting this blog four years ago–I want to commend those merchants who have resisted the siren call of continuous commerce and opted instead to close today so that their employees can spend Thanksgiving with their families.

(Not that there is only altruism to work: surveys show that 70 percent of holiday shopping will take place after Thanksgiving).

The roll of honor includes:

  • Costco;
  • Gamestop;
  • Nordstrom;
  • American Girl;
  • Barnes & Noble;
  • BJ’s Wholesale Club;
  • Burlington Coat Factory;
  • Crate and Barell;
  • Dillard’s;
  • DSW;
  • Hobby Lobby;
  • Home Goods;
  • Home Depot;
  • Jo Ann Fabrics;
  • Lowe’s;
  • Marshall’s;
  • Patagonia;
  • Petco;
  • Pier 1;
  • Publix;
  • REI;
  • Sam’s Club;
  • Sur La Table;
  • Talbots;
  • T.J. Maxx

And thank you to my loyal readers who have kept me going these last four plus years!

Check back here tomorrow for more HR news.

Deaf Employee’s Rights Violated, EEOC Says in Procuring Settlement From Michigan Nonprofit

Employers continue to stumble in what seems to be obvious situations crying out for a reasonable accommodation to permit employees with disabilities to continue to work.

Yesterday I wrote about how a hospital settled an Americans With Disabilities Act lawsuit brought on a cancer survivor’s behalf by the EEOC, the gist of which was that the hospital had failed to reasonably accommodate the individual by giving her more time off to complete her cancer treatments.

Now comes news of another settlement of an EEOC ADA lawsuit, this one by a nonprofit that allegedly failed to accommodate a deaf employee and instead fired him. The irony is that the nonprofit’s mission is to help disabled employees.

According to the EEOC, Disability Network denied a deaf employee, who worked as an independent living specialist for the non-profit, reasonable accommodations such as TTY equipment, a video phone and the ability to use text messaging. The complaint also alleged that Disability Network rejected the employee’s requests, failed to provide him with alternate accommodations, and finally fired him because he is deaf.

The EEOC said that Disability Network agreed to pay $38,500 to make the lawsuit go away.

“The hypocrisy of this non-profit – whose very mission is to help disabled individuals – disadvantaging and then firing someone because of a disability — is mind-boggling,” said EEOC Trial Attorney Nedra Campbell. “Disability Network, of all people, should understand the importance of working toward reasonable accommodations for a deaf employee. It only goes to show that the EEOC has its work cut out for it – and we will certainly continue our fight for the rights of the disabled.”

Use these two settlements as cautionary tales if you are not living up to your ADA obligations.

Read more about the lawsuit and settlement.

This post was retweeted by Mike McFall of  the blog  Michigander Nonprofit News.

EEOC Recovers $85K for Nurse Fired After Asking More Time Off for Cancer Treatments

Just because an employee has survived a bout with cancer doesn’t mean that he or she won’t need additional time off for cancer treatments. So employers need to remember that their duty of reasonable accommodation under the Americans With Disabilities includes giving a cancer survivor the time off necessary to complete those treatments.

The latest employer apparently to ignore that obligation is Angel Medical Center, Inc., a full-service critical access hospital located in Franklin, N.C., which the EEOC charged in a lawsuit had failed to accommodate a nurse undergoing cancer treatments and subsequently fired her because of her disability.

The EEOC said that the medical center had agreed to pay $85,000 to settle the ADA lawsuit it brought on behalf of Susan Williams, a full-time registered nurse at the facility.

“We hope that this case reminds employers that they must accommodate disabled employees’ requests for leave for medical treatment unless granting leave would pose an undue hardship,” said Lynette A. Barnes, regional attorney for the EEOC’s Charlotte District. “We are happy to have resolved this matter for Ms. Williams and hope that we have prevented similar situations from happening to other persons with disabilities.”

Read more about the lawsuit and settlement.

DOL Says New Rules Coming on LGBT Discrimination, Pay Secrecy in Contracting

Employers wanting to know what Washington, D.C. is up to next should pay attention to the regulators. They’re the ones who put the meat on the bones of congressional legislation and presidential declarations.

Case in point: The U.S. Department of Labor issued its semiannual regulatory agenda last week, and two items stand out among many.

One is a new rule implementing President Obama’s executive order on lesbian-gay-bisexual-transsexual (LGBT) discrimination in federal contracting.  Obama issued E.O. 13672 in August.

DOL also intends to issue a rule implement the requirement for the Equal Pay Report as part its crackdown on discriminatory pay practices. DOL promised action on that rule by next August.

A companion rule would implement the ban on pay secrecy so that workers could discuss their pay amongst each other without fear of contractor reprisal.  That prohibition is contained in Executive Order 13665, which Obama signed in September. DOL said it plans to issue that rule next September.

So everything now knows these are on the DOL’s rulemaking plate for 2015.

Cells phones at work

Do you have a cell phone policy for employees during working hours? If not, it might be in your interest to have one, as our resident columnist Robin Paggi explains.

Cells Phones at Work

In September, Iraq war veteran Omar Gonzalez scaled the fence, bolted across the lawn, and burst through a door at the White House before being apprehended by two secret service agents. According to a Department of Homeland Security review recently released, a Secret Service officer who was supposed to be stationed at the North Lawn with an attack dog could have stopped Gonzalez long before he reached the building. But, the officer wasn’t at his post; instead, he was sitting in his van making a personal call on his cellphone.

Evidently, some employees think that using their cellphone is more important than doing their job. Like the San Antonio bus driver that caused a wreck on Loop 410 in 2009 because of texting while driving. And, the trolley operator that caused a crash in Boston (also in 2009) because of texting, which resulted in about 50 people being injured.

The danger of employees injuring themselves and others because of the distractions caused by cellphones has led some employers, such as FedEx, to prohibit them at work. Of the ban, one FedEx employee was quoted on as saying, “I think it is infringing on everyone’s right.” Obviously, this employee does not know that it is a privilege – not a right – to have a personal cellphone at work. And, employers have the right to take that privilege away.

If you are an employer who has employees who are too distracted by their phones, consider implementing a policy on cellphone use at work. The policy could include things like no cellphone use while driving or operating machinery (yes, this is obvious, but some people need to be told); only taking important calls (such as from a child’s school) while working; returning calls and texts during breaks and away from the employee’s desk or workspace; requiring phones to be set on vibrate; not using phones during meetings; and anything else you’d like to put in it. If employees can’t adhere to the policy, discipline them. If they still can’t stay off of their phones, invite them to seek employment elsewhere.

Speaking of seeking employment elsewhere, I’m willing to bet the Secret Service officer who allowed his cellphone to distract him from protecting the President will be looking for a new job soon. I hope the call he was making was worth it.

Robin Paggi is the Training Coordinator at Worklogic HR.

Robin last wrote for us about rules for holiday parties at work and before that about preventing workplace bullying.  

Employer Owes $735K to African Americans Employees Victimized by Racial Slurs on Dock

If racial slurs are being directed against some of your workers, you’ll certainly want to put a stop to that. A Chicago-based wholesale grocer and manufacturer did just that, agreeing to resolve an EEOC lawsuit brought on behalf of African American workers who endured a barrage of slurs, including the N-word, from co-workers and managers while working on the company’s docks.

EEOC announced on Wednesday that the company, Battaglia, had agreed to settle the lawsuit for $735,000. Under terms of the settlement filed with the U.S. district court, the company must train its managers on Title VII of the Civil Rights Act of 1964, which prohibits racial discrimination on the job, and report regularly to the EEOC on any complaints it has received, as well as provide other data to demonstrate that it has not retaliated against any of the participants in the litigation.

“Resolutions of this nature are positive for both the employer and the employees,” the EEOC’s regional director said.

Amen to that.

Read more about the lawsuit and settlement.

EEOC Sues Rail Company for Use of Tests to Screen Applicants for Carpal Tunnel Syndrome

Employers can’t screen out job applicants on the suspicion, backed by dubious medical testing, that they might develop a disability.

That’s the gist of a lawsuit the EEOC filed today under the Americans With Disabilities Act against Amsted Industries Inc. and Amsted Rail Co. Inc., for alleging using physical tests and applicants’ history to weed out applicants with a history of carpal tunnel syndrome.

EEOC alleged that during the hiring process, the company asked applicants if they have a history of carpal tunnel syndrome and gives them a nerve conduction test, even though the most current relevant published medical literature does not support the use of such tests alone, or the use of prior medical history alone, to predict the development of carpal tunnel. Based on the results, Amsted refused more than 50 applicants  because they had a history of carpal tunnel syndrome, tested positive on the nerve conduction test, or both.

EEOC said that the ADA violations took place at the company’s Granite City, Ill., facility. It described the company as a leader in the manufacture of steel castings for the rail industry.

Read more about the lawsuit here.

Compliance With Labor Laws as Important as Enforcement, Wage and Hour Division Head Says

The U.S. Department of Labor’s Wage and Hour Division, responsible for enforcing a raft of laws affecting the workplace, wants employers to know that it views their compliance with the law as important if not more so than merely enforcing the law.

That’s the message that David Weil, administrator of the department’s Wage and Hour Division, stressed in a blog posting earlier this week on the DOL website., titled Employers Must Know the Rules.

Weil noted that since 2009 WHD has conducted more than 10,000 outreach events and presentations, providing information, help and distributing educational materials to thousands of employers, employees, community organizations, industry associations and other stakeholders nationwide.

The DOL website has materials covering everything from child labor laws to the Family and Medical Leave Act, Weil said.

Another critical resource are DOL’s Community Outreach and Resource Planning Specialists (CORPS), based in our offices around the country, who “engage communities in dialogue about local industry practices and labor concerns, and provide training and resources to employers, their associations, worker advocates and other stakeholders.”

And so on. Here’s a window into WHD’s thinking as the Obama administration enters its last two years.

If you’re an employer subject to DOL rules, it’s worth a read.