Archive for June, 2015

Park Police Rescind Policy Requiring Immediate Notification of Pregnancy; Will Comply With PDA

It took a lawsuit and settlement to convince the U.S. Park Police that its pregnancy leave policy needed an overhaul.

The U.S. Park Police’s outdated pregnancy policy was a fitting casualty of a settlement of a lawsuit last week brought by a plainclothes detective who was made to stop working as soon as she told her supervisors about her pregnancy.

Under the policy, pregnant officers had to notify their supervisors as soon as they knew they were pregnant, and provide a doctor’s note authorizing them to keep working. If the doctor determines that the employee can no longer work, she is automatically placed on maternity leave.

After giving birth and taking maternity, Officer Renee Abt sued the Park Police, alleging that the policy violated the Pregnancy Discrimination Act by treating women differently than other employees with similar abilities and limitations. As part of the settlement, the Park Police agreed to pay her $300,000 for her pain and suffering–and as importantly, rescind its previous pregnancy policies.

Abt had informed her supervisor of her pregnancy as required under the policy and was then taken off fieldwork.

The Park Police had tweaked the original policy to allow women to notify their supervisors in their first trimester.

That policy was thrown out too as part of the settlement.

Don’t be like the Park Police! Make sure you allow female employees who become pregnant to call the shots on how long they want to work–rather than impose arbitrary rules that force them to the sideline before they are ready to stop working.


OSHA Issues Reminder on Fireworks Safety

What would the 4th of July be like without fireworks?

A lot less exciting for many spectators–but also less dangerous for the workers whose job it is to set off these explosives.

So here comes the Occupational Safety and Health Administration–the nation’s chief workplace safety watchdog–to remind employers and employees about the hazards of handling fireworks and ways to make the holiday safer for all involved in putting on fireworks displays.,

Earlier this year, the agency Lone Star Management, for nine serious safety violations arising from an incident at its firework storage facility in Pittsburg, Kansas. The company specializes in importing and distributing Class 1 fireworks.

In that instance, two employees were directed to use a gas-powered forklift to move pallets of fireworks and cardboard out of an explosives storage facility when the gas ignited, which caused an explosion and fire, killing one worker and critically injuring another worker, OSHA charged.

OSHA has several resources addressing safety issues and improvements, including:

  • OSHA’s Web page on the pyrotechnics industry, addressing retail sales of fireworks and fireworks displays;
  • Information on common hazards and solutions found in both areas of the industry, and downloadable safety posters for workplaces are available at It also includes a video, available at, which demonstrates best industry practices for retail sales and manufacturers based on National Fire Protection Association consensus standards.

Here’s today’s fireworks advisory.

Free to Get Married–But Also to Be Fired

Gay marriage is now legal everywhere in the United States–thanks to Friday’s U.S. Supreme Court ruling–but in most states it’s still legal to fire or refuse to hire or promote someone because they are gay.

According to, “22 states and the District of Columbia have laws explicitly protecting LGBT workers from being fired because of their sexual orientation. However, this means that there are still 28 states that allow an employee to be terminated on the basis of sexual orientation, and in those states legal remedies are often narrow for private sector employees.

On the federal law front, neither Title VII of the 1964 Civil Rights Act not any other federal antidiscrimination law, prohibits sexual orientation discrimination. However, the Equal Employment Opportunity Commission is of the view that discriminating against transgender individuals, or discrimination based on gender identity, is discrimination based on sex and therefore prohibited under Title VII.

Discrimination based on sex stereotypes, or sexual orientation, is also illegal, asserts the EEOC. It has instructed investigators and attorneys that lesbian, gay, and bisexual individuals may bring valid Title VII sex discrimination claims and the EEOC should accept charges alleging sexual orientation related discrimination.

Several executive orders prohibit sexual orientation and gender identity discrimination, but they only affect employees of government contractors. A bill to ban this discrimination has been introduced over the years in Congress (the Employment Nondiscrimination Act), but passage in the current Congress is very unlikely.

So it’s a mixed bag. Gays can marry but their employment is possibly still in jeopardy. There’s more work to be done to bring equality to all citizens regardless of their sexual orientation or gender identity.

EEOC: Unlawful Medical Questions Still Problem

An employer that allegedly forced its employees to answer questions about their medical conditions–or not be allowed to take excused sick leave, and risk other adverse employment actions–has thought better of it and decided to settle a lawsuit brought against it by the Equal Employment Opportunity Commission under the Americans With Disabilities Act.

According to the EEOC, Erie Strayer Company, a concrete product and services company, subjected Thomas Young and other employees to unlawful medical inquiries and adverse employment actions resulting from such inquiries including coercion, intimidation, threats, and retaliation for refusing to comply with Strayer’s inquiries.

“Requiring employees to reveal the specific nature of their medical illness in order to deem the use of sick leave an excused absence is an unlawful disability-related inquiry under the ADA not justified by business necessity,” said Regional Attorney Debra Lawrence of the EEOC’s Philadelphia District Office, which oversees Pennsylvania, Delaware, West Virginia, Maryland and portions of New Jersey and Ohio.  “Employees should not have to worry that their private and potentially harmful information will be used against them later to unfairly exclude them from jobs they could otherwise perform.”

The company agreed to pay $15,000 and take other steps to settle.

Read more from the EEOC’s announcement.

Accommodation Requirement Now Formally Part of EEOC Guidance on Pregnancy Discrimination

The U.S. Supreme Court’s ruling that employers must accommodate pregnant employees if it accommodate other employees, unless it has a strong reason for not doing so, is now an official part of EEOC guidance.

An updated Enforcement Guidance on Pregnancy Discrimination and Related Issues, issued today by the EEOC, reflects the high court’s ruling in Young v. UPS “that women may be able to prove unlawful pregnancy discrimination if the employer accommodated some workers but refused to accommodate pregnant women.”

Under that ruling, even “employer policies that are not intended to discriminate on the basis of pregnancy may still violate the Pregnancy Discrimination Act (PDA) if the policy imposes significant burdens on pregnant employees without a sufficiently strong justification,” the EEOC said.

Employers would be wise to consult the guidance, which contains all the do’s and dont’s on the rights of pregnant workers and employer obligations under the Pregnancy Discrimination Act and the Americans With Disabilities Act.

Here’s a link to the guidance in full.

Mont. County, Md., Enacts Paid Sick Leave Law

Guaranteed paid sick leave is now the law in one of the largest suburbs of Washington, D.C.

Employers in Montgomery County, Maryland will have to provide a minimum of one-hour paid time for workers for every 30 hours worked, under terms of paid sick leave legislation that passed by unanimous vote in the County Council yesterday.

The burden on small businesses is eased somewhat. Though not exempt from the law, they don’t have to provide as much leave as the big companies do.

The county joins 22 other locales that have passed paid sick leave legislation in the United States, joining among others, Washington, D.C., Portland Oregon and Philadelphia, and San Francisco.

Highlights of the law include:

  • Workers at Montgomery County businesses with 5 or more  employees will earn one hour of paid sick leave for every 30 hours worked, up to 56 hours (7 days) annually.
  • Workers in smaller businesses with less than 5 employees will also earn 7 days (4 paid + 3 unpaid).
  • The bill applies to part-time workers who regularly work at least 8 hours per week.
  • Workers can use their paid sick time to care for themselves or a member of their family.
  • The safe time provision ensures that victims of domestic violence or sexual assault can use paid leave to obtain medical attention and victims services.
  • Employees who are laid off will have their previously accumulated time reinstated if they are rehired within 9 months.

Employers will have some time to get used to prepare for the law, as it doesn’t go into effect until Oct. 1, 2016.

Staffing Agencies to Fork Over $3.5M to Settle DOL Case Over Illegal Payment of Per Diems

Be careful if you’ve been labeling part of your employees’ wages as “per diem” expense reimbursements. The U.S. Department of Labor is on the hunt to end what it calls an “illegal and alarming trend of employers labeling part of employee wages as per diem payments, often to avoid overtime, payroll taxes and other costs.”

Yesterday the DOL announced that six staffing agencies in the Gulf Coast region had agreed to pay $3.5 million in back wages to more than 3,000 workers  it said were owed back wages. The workers were welders, electricians, pipe fitters, and other craftspeople on maritime vessels and other oil and gas industry projects.

“Companies break the law when they label part of a worker’s regular wages as per diem expense reimbursement instead of wages to lower labor costs, avoid paying overtime, and avoid making payments toward federal and state taxes, workers’ compensation, unemployment insurance and Social Security payments,” said DOL. “By attempting to reduce these obligations illegally with this scheme, these employers also gain an unfair advantage over their competitors.”

“Per diem pay is intended as a way for employers to reimburse workers for lodging, meals and other travel expenses incurred on behalf of their employer. Regular wages mislabeled as per diem cheat workers out of correct overtime wages. The payments may prevent workers from receiving full benefits in the event of a lay-off or workplace injury, and do not make full contributions toward a worker’s Social Security benefits.”

And for you employers out there, you could be liable as a joint employer with a staffing agency “if investigations find workers employed jointly by the staffing agency, and the business that contracted them, received illegal per diem payments.”

To read the DOL’s announcement, and learn the names of the six staffing agencies caught engaging in this illegal practice, click here.


Plasma Center Violated ADA By Firing HIV-Positive Worker, EEOC Alleges in New Suit

Some employers continue to trip over themselves when it comes to dealing with applicants and employees who are HIV-positive. According to a just-filed lawsuit by the Equal Employment Opportunity Commission, a plasma collection center in Tennessee violated the Americans With Disabilities Act by discharging an employee it believed was HIV-positive.

The suit alleges that Plasma Biological Services placed the employee on a deferred donor list after an initial screening for a plasma donation showed a viral marker for human immunodeficiency virus (HIV). After the employee’s supervisor learned that he had been placed on the deferred donor list, the employee was immediately discharged. Subsequent tests showed the employee was actually negative for HIV, the EEOC said.

In addition, the EEOC charged, Plasma Biological Services maintained a policy of terminating any employee who tested positive for a viral marker. It also failed to maintain employee medical records separate from personnel files.

According to the EEOC, this is a case of discriminating against an individual because of a perceived disability.

Read more about the case here.

DOJ: Staffing Agencies Broke Law By Requiring Naturalization Papers From Puerto Ricans

If we’re ever going to solve the problem of undocumented workers in this country, we’re all going to have to be on the page in knowing who already is a citizen or not.  According to the U.S. Justice Department, three Memphis-area staffing agencies didn’t know that Puerto Ricans are U.S. citizens. And that led to abuse of the requirements that all workers present documentation of their right to work in this country.

The DOL had alleged that Prestigious Placement; PFSWeb Inc.; and its subsidiary, Priority Fulfillment Services Inc., violated the Immigration and Nationality Act by rejecting two Puerto Rican applicant s’ valid birth certificates and instead demanding valid nationalization certificates.

But if the agency had done its homework,  it would know that Puerto Ricans are U.S. citizens by birth and don’t need naturalization papers.

As DOJ reminded,  “Under the anti-discrimination provision of the INA, employers cannot discriminate in hiring or place additional documentary burdens on workers during the employment eligibility verification process based on their citizenship or perceived citizenship.”

Wisely, the agencies decided to settle the case. Under the settlement agreement, the companies will compensate the charging parties for lost wages; pay civil penalties to the United States; undergo training on the anti-discrimination provision of the INA; revise their employment policies and training materials; and be subject to monitoring of their employment eligibility verification practices for two years.

Read moreabout the case.

And here’s more information on the immigration laws enforced by DOJ’s Office of Special Counsel.


Calif. Agency: Uber Drivers Are Employees

Uber means ultimate or best in German. I imagine right now drivers of the popular on-demand ride service in California in particular feel pumped up about their odds of being treated as employees and enjoying the many benefits that go with that designation.

They’d be basking in the glow of a ruling by the California Labor Commission that an Uber driver was an employee, not a contractor.

The ruling issued June 3 directly involved Barbara Berwick, a San Francisco woman who drove for Uber, who filed her case against the company because it “maintained absolute control” over drivers.

The commission agreed, stating in its ruling that Uber “is involved in every aspect of the operation,” vetting drivers, setting standards and establishing nonnegotiable rates. The company also can fire drivers who receive low ratings from customers.

This isn’t the last word in the case; Uber has appealed. And it argues that the ruling only applies to Berwick-and not to all of its drivers.

Uber also faces legal challenges on other fronts. Florida’s unemployment agency ruled earlier this year that drivers are employees, and jury trials are pending in two San Francisco-area cases on the question of whether the drivers are employees or independent contractors.

And for on the independent contractor versus employee question generally, see Jon Hyman’s recent post titled The “Duck” Test for Independent Contractors.