Archive for February, 2015

NYC Council Might Curb Employee Credit Checks

Employers doing business in New York City may soon have to come up with some other job screening tool to evaluate job applicants’ honesty than a check on their credit.

A bill under consideration in the New York City Council would bans use of credit checks except where required by state or federal law. The bill sponsored by Brooklyn Councilmember Brad Lander has 41 sponsors all told on the council out of 51 council members.  Similar legislation stalled in the council in 2013.

The bill’s advocates argue that credit checks disproportionately harm minorities while being poor predictors of fraud or poor job performance.

California passed such a ban on using credit reports for employment purposes in 2011.

One problem with relying on credit histories is they may contain inaccuracies. One in five American consumers had errors in their credit report, the Federal Trade Commission found in 2012.

Bad Reception: EEOC Sues Cell Phone Co. for Refusing to Hire Hearing-Impaired Applicants

Employers have to make reasonable accommodation for applicants’ disability during the interview and orientation stages. That may seem obvious, but it has become the focal point of an Americans With Disabilities Act lawsuit the Equal Employment Opportunity Commission filed today against a cell phone company repair facility located in Fort Worth, Texas.

According to the EEOC, S&B Industry Inc. denied two hearing-impaired applicants a reasonable accommodation during the hiring process. During the hiring and orientation, the applicants used American Sign Language to communicate with each other, the EEOC said. The company realized the pair were hearing-impaired.

But here’s where things went awry, according to the EEOC:

“In a meeting with one of the supervisors, Baker and Rice requested that she provide written information about the positions for which they were applying.  The supervisor initially complied, but then refused to continue writing information for Baker and Rice, thereby refusing to provide them with a reason­able accommodation.  Baker and Rice were told that S&B Industry would not hire them, and their badges were confiscated.”

Said EEOC senior trial attorney Joel Clark, “Managers refused to discuss these applicants’ reasonable requests for accommodation, but instead just assumed they could not do the job.  The ADA was enacted to prevent that kind of misguided, fear-driven reaction.”

Read more about the suit.


Justices Hear Case on Religious Accommodation

Does a job applicant have to directly ask the employer for a reasonable accommodation of his or her religion, or does the employer have to take the lead from the circumstances at hand and inquire of the applicant whether he or she needs an accommodation?

Those were the questions that were debated before the U.S. Supreme Court today in a Title VII lawsuit brought by the Equal Employment Opportunity Commission against retailer Abercrombie & Fitch.

In this case, the EEOC filed suit against the retailer on behalf of Samantha Elauf, then 17, who applied for a job at the retailer in Tulsa, Oklahoma in 2008, but was rejected because she wore a headscarf, violating the company’s “look policy,” which outlines how store staff should be groomed and dressed.

A federal judge initially found Abercrombie & Fitch liable for discrimination, but the 10th U.S. Circuit Court of Appeals in Colorado reversed, ruling that the 1964 Civil Rights Act only protects employees who provide “explicit notice of the need for a religious accommodation.”

The appeals court said that the EEOC had failed to establish that there was any dispute over the fact that Ms. Elauf never informed Abercrombie prior to its hiring decision that her practice of wearing her hijab stemmed from her religious beliefs and that she needed an accommodation for this (inflexible) practice.

The EEOC has taken aim at the retailer’s policy over the years, filing several lawsuits.

The tenor of much of today’s questions from the justices put the company on the defensive. The company argues that it doesn’t want to have to be in the position of initiating a conversation with an applicant that raises issues of religious observance. But Justice Samuel Alito, who is usually sympathetic to business, suggested the company could avoid this by handing the applicant a copy of its dress and grooming rules, then asking whether the applicant had a problem with them. That way it would shift to the applicant the issue of introducing religion into the conversation.

A ruling on the issue is expected by the end of the court’s term in June.

Arkansas Law Bars Sexual Orientation, Gender Identity Protections by Local Governments

Call it Sam Brownback syndrome. Another state has followed in the Kansas governor’s footsteps by restricting the rights of gays and lesbians. Arkansas Governor Asa Hutchinson (R) yesterday allowed legislation to take effect that bars local governments from expanding anti-discrimination protections to include sexual orientation and gender identity.

You’ll recall that last week Brownback rescinded employment discrimination protections for gays and lesbians working for the Kansas state government.

In 2001, Tennessee passed a law effectively voiding a Nashville ordinance barring companies that discriminate against gays and lesbians from doing business with the city. Meanwhile, lawmakers in Texas are considering similar proposals to counteract anti-discrimination protections passed in Houston, Forth Worth, Austin and San Antonio.

I thought American was about expanding rights, not taking them away!

DOL Amends Definition of ‘Spouse’ Under FMLA to Encompass Employees in Same-Sex Marriages

From now on employers will have to grant requests for leave  under the Family and Medical Leave Act to employees in same-sex marriages to care for their ill spouses, on the same basis as they would grant leave to opposite-sex married couples, regardless of what state the couple live in.

The U.S. Department of Labor announced today that is changing the definition of “spouse” under the FMLA to include  a legally married same-sex spouse, even if the state doesn’t recognize their marriage. This is known as the “state of celebration” rule.

“With our action today, we extend that promise so that no matter who you love, you will receive the same rights and protections as everyone else,” said Labor Secretary Thomas E. Perez. “All eligible employees in legal same-sex marriages, regardless of where they live, can now deal with a serious medical and family situation like all families — without the threat of job loss.”

The decision isn’t really a surprise, since DOL had already adopted this rule for same-sex couples that participate in employer-sponsored retirement plans.

Still it’s a welcome evolution in FMLA regulations and is yet another indication of the acceptance of same-sex marriage under American law.

Here’s the DOL announcement.

OFCCP: Underpaid Female Housekeepers to Receive $190K to Settle Wage Bias Charges

Federal contractors, take note! The U.S. Department of Labor won’t tolerate even what may seem like a miniscule difference in pay for men and performing the same jobs on federal projects.

That’s the message from a settlement that DOL reached earlier this month with the Lahey Clinic in Boston.   DOL’s Office of Federal Contract Compliance Programs announced that Lahey Clinic Hospital, Inc. will pay $190,000 to resolve allegations of systemic pay discrimination at its medical center in Burlington, Massachusetts. The OFCCP said that its compliance review found that Lahey Clinic discriminated against 38 female housekeepers by paying the women 70 cents less per hour than their male counterparts.

“While 70 cents might not seem like much, over the course of a year it adds up to a $1,500 disparity,” said OFCCP Director Patricia A. Shiu, a member of President Obama’s National Equal Pay Task Force. “Workers don’t often know how their pay compares with that of their colleagues, and discrimination like this is often hidden. That’s why OFCCP’s ability to audit and review contractors’ pay practices is critical to closing the pay gap once and for all.”

Since 2012, the clinic–which has has more than 5,300 employees and serves almost 3,000 patients daily–has received $815,000 in federal contracts from the Health Resources and Services Administration at the U.S. Department of Health and Human Services, the DOL said.

Maryland, Sheriff’s Dept. on Hook for $250K in Settlement of Sexual Harassment Lawsuit

Who was the officer on the beat at the Queen Anne’s County, Maryland, sheriff’s department? Apparently no one when a female employee at the department was allegedly harassed by several supervisors, the sheriff’s brother among them.

Ultimately it took federal intervention by the U.S. Department of Justice to bring some measure of justice for the alleged victim, Kristy Murphy-Taylor, who will receive money under a settlement that DOJ reached with the county and the department.

Here’s straight from DOJ’s February 12 announcement that the lawsuit had been settled:

“According to the United States’ complaint, over a number of years, Ms. Murphy-Taylor was subjected to numerous acts of unwanted sexual conduct by multiple supervisors including repeated incidents of unwanted sexual touching by the Sheriff’s brother. Despite Ms. Murphy-Taylor’s complaints about the harassment, the complaint alleges that the defendants failed to take prompt and effective corrective action. Instead, they allegedly subjected her to intolerable working conditions intended to make her quit, and ultimately terminated her for complaining about the sexual harassment by the Sheriff’s brother.”

Under the settlement Murphy-Taylor will receive $250,000 in damages, in addition to $620,000 she received under a consent decree reached in 2014


EEOC Recovers $150K in Suit Against Wal-Mart

$150,000 is a drop in the bucket for a company the size of Wal-Mart, but it is enough to make a lawsuit go away that focused attention on how it treated one of its managers.

As I wrote when the case was filed in March 2004, the Equal Employment Opportunity Commission had accused the retail giant of violating the rights of a manager at its store in Keller, Texas. According to the lawsuit, David Moorman, the 54-year-old store manager, was ridiculed with frequent taunts from his direct supervisor including “old man” and the “old food guy.” The supervisor also derided Moorman with ageist comments such as, “You can’t teach an old dog new tricks.” After enduring the abusive behavior for several months, Moorman reported the harassment to Wal-Mart’s human resources department, the EEOC said. However, it charged, not only did Wal-Mart fail to take any corrective action, but the harassment got worse and the store ultimately fired Moorman because of his age.

As part of the same lawsuit, the EEOC alleged that the store also refused to discuss possible accommodations for his diabetes, either by making him a co-manager or assistant manager.

The settlement also commits Wal-Mart to provide training for employees on the ADA and the ADEA, to include instruction on the kind of conduct that may constitute unlawful discrimination or harassment, as well as an instruction on Wal-Mart’s procedures for handling requests for reasonable accommodations under the ADA.

So there’s a possible silver lining in the case.  If Wal-Mart is smart, it will use this settlement not just to correct conditions at this store but also to bring management up to speed at other stores at what types of conduct cross the legal line.

Read more from today’s settlement announcement.


EEOC: Restaurant Closed Jobs to Older Workers

Seasons 52, a national restaurant chain and one of the Darden restaurant brands, put out the unwelcome mat when it came to job opportunities for persons over age 40, the Equal Employment Opportunity Commission charged in an Age Discrimination in Employment Act  lawsuit filed last Thursday.

According to the EEOC’s suit, the restaurant refused to consider older persons for jobs in the front or back of the restaurant when opening new restaurants, including as hosts, servers and bartenders. (That pretty much leaves just jobs in the kitchen).

Older, unsuccessful applicants across the nation were given varying explanations for their failure to be hired, including “too experienced,” the restaurant’s desire for a youthful image, looking for “fresh” employees, and telling applicants that Seasons 52 “wasn’t looking for old white guys,” the EEOC charged.

Ouch! Unless the restaurant chain has a real good explanation for why it shunned older applicants, it had better find terms satisfactory to the EEOC to settle this case. If those comments really were made, they constitute what’s known as direct evidence of age discrimination, a difficult finding to rebut persuasively.

Read more about the case.

Philadelphia Latest City to Require Employers to Provide Workers Paid Time Off for Sick Leave

The city of brotherly love became the 17th U.S. city to require employers operating within its boundaries to provide paid sick leave for their employees. Philadelphia Mayor Michael Nutter–who previously vetoed two versions of a paid sick leave law–signed the new version, the Promoting Healthy Families and Workplaces Ordinance, last  Thursday the 12th of February.

Under the law, which takes effect May 13, 2015, any employer operating in the city with 10 or more employees will have to provide paid sick leave at the rate of one hour of paid leave for every 40 hours worked. No employee can accrue more than 40 hours  of sick leave in a calendar year unless the employer selects a higher limit.

Employees begin accruing sick leave as of May 13, 2015; for employees hired after that date, sick leave accrues at the beginning of his or her employment.

Under the law, employees can use the accrued sick leave beginning 90 days after they start working. After the 90th day, employees may use sick leave as it is accrued.

Employers with fewer than 10 employees will have to provide guaranteed unpaid sick leave under the law.

Here’s the text of the new ordinance.