Downhill Run: Vail Resort Condo Sued for Sexual Harassment of Mexican Female Employees

About the worst thing an employer can do when alerted to possible sexual harassment in the workforce is not take the allegations seriously. That’s a sure-fire ticket to liability under Title VII of the 1964 Civil Rights Act.

Apparently that’s what happened at Vail Run Resort Community Association, Inc., a condominium complex in Vail, Colo. In a just-filed lawsuit against the complex and its management company Global Hospitality Resorts, Inc., the Equal Employment Opportunity Commission alleged that management did nothing in response to alleged sexual harassment by a male housekeeper of female Mexican employees, including attempted rape.

According to EEOC’s suit, Omar Quezada, the housekeeping manager, repeatedly spoke about sex, propositioned female employees, showed them graphic pictures on his phone, and groped and physically assaulted his victims, including attempted rape. Quezada targeted Mexican immigrants who were particularly vulnerable, threatening them with job loss and deportation if they refused his advances, complained about him, or went to the police.

Workers who complained to management were met with anger and indifference, EEOC said. EEOC said the companies never undertook an internal investigation after the complaints, made no effort to reduce Quezada’s supervisorial powers, and did not discipline Quezada. Two victims were finally forced to go to the police for help, and both of these women were later fired. In 2013, an Eagle County jury found Quezada was guilty of unlawful sexual contact and felony extortion, and Quezada pled guilty to additional similar charges after the jury verdict.

So to court the defendants go, accused of sexual harassment, national origin discrimination, and retaliation under Title VII.

Read more about the lawsuit.

 

Rally Today at White House for ‘Ban-the-Box’; Supporters Want Exec Order on Criminal Queries

A planned rally today in front of the White House will urge President Obama to issue an executive order to ban federal agencies and contractors from requiring job applicants to answer whether they have ever been convicted of a crime.

Supporters say that checking this box on the job applications disqualifies many released prisoners (700,000 a year by some counts) from getting a job and reentering society as productive members.

Eighteen states, 100 counties, and major employers Starbucks, Walmart, Koch Industries, and Target already have banned the box, rally organizers say.

Rally organizers hope to build off of that momentum and put pressure on President Obama  to issue an executive order and presidential memo that will “ban the box” and implement fair hiring practices for jobs with federal employers and federal contractors.

Some 200 national organizations and 70 members of Congress also support “ban the box” laws, organizers said.

For more on the ban-the-box campaign, go here.

The fly in the ointment today could be thunderstorms that are forecast for most of the day in the Washington, D.C. metropolitan area.

Exam Kept Job Opportunities From African Emigres, EEOC Alleges in Title VII Lawsuit

It appears that a Colorado employer set up its African immigrant employees to fail, and that has landed it opposite the Equal Employment Opportunity Commission in federal court.

The EEOC announced July 27 that it has sued New Mercer Commons Assisted Living Facility and Columbine Health Systems for discriminating against “its small minority African workforce,” by among other things implementing a new employment exam that disparately affected their continuing employment opportunities.

In addition, the EEOC charged,  white supervisor was fired in retaliation after she refused to participate in discriminatory practices against African employees.

The commission’s complaint singled out the treatment of an Ethiopian émigré who worked at New Mercer Commons for nine years as a personal care assistant before she was fired. The key language from EEOC’s announcement of the lawsuit:

“After a change in management at the facility, her work conditions rapidly deteriorated. She was disciplined, her performance critiqued, her annual merit-based raise withheld for the first time, and management made hostile comments about her national origin and accent. On the day she was discharged, three other employees from Sudan were also fired. All four employees were told that they were being fired because they had not received passing scores on the newly implemented written exam.”

In the EEOC’s view, the defendants failed to validate the examination so that it accurately measures job-related functions. Rather, the examination tended to screen out minority candidates capable of performing the job.

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

 

 

In Latest ADA Suit, EEOC Accuses Employer of Firing Employee Because of Cancer Treatments

As the Equal Employment Opportunity Commission celebrated the 25th anniversary of the Americans With Disabilities Act, another employer finds itself in the legal crosshairs due to its alleged cavalier treatment of an employee diagnosed with cancer.

IDEX Corporation, a manufacturer and supplier of fluidics systems with locations nationwide, including multiple posts in Florida, now is in the legal hotseat, accused by the EEOC of firing a regional manager because he had cancer.

According to EEOC’s lawsuit filed July 22r, Gregorio Reyes successfully performed his regional manager position at IDEX Corporation, including during the six months in 2011 when he underwent chemotherapy to treat the cancer with which he was diagnosed the year before. During the period of his treatment, however, Reyes’s supervisors repeatedly asked invasive questions about his illness and questioned his ability to perform job tasks. On Dec. 8, 2011, IDEX fired Reyes because of his disability, EEOC says.

“A longtime employee who continues to successfully perform his or her job responsibilities should not be fired because he has been diagnosed with a medical condition such as cancer. The ADA prohibits such conduct, and EEOC takes seriously its responsibility to enforce the law,” said Robert Weisberg, regional attorney for EEOC’s Miami Office.

Read more about the lawsuit.

Manufacturer on Hook for $62K in Settlement of ADA Lawsuit Over Exercise of Bumping Rights

A senior employee’s right to bump a junior employee to avoid losing his or her job during a layoff is a much-coveted provision of many collective bargaining agreements. So when an employer allegedly refuses to allow bumping for discriminatory reasons, it’s sure to get the attention of the Equal Employment Opportunity Commission.

The commission announced last Thursday, July 23, that  Building Materials Manufacturing Corporation, a roofing materials manufacturer headquartered in Wayne, N.J., will pay $62,500 to settle an Americans With Disabilities Act lawsuit arising from its alleged refusal to allow a senior employee to exercise bumping rights–because he had a disability or record of disability.

According to the lawsuit, the employer’s contract with the United Steelworkers Union included a provision that allowed senior employees to remain employed by “bumping” less senior employees in any layoff situation. Bumping refers to a senior employee removing a less senior employee from a position and assuming the position for himself.  However, Irvin Carter, who had lost his right hand in an accident at the facility nine years earlier, was denied the right to bump junior employees when the company performed a reduction in force in 2012.

According to the EEOC, the reason was Carter’s disability and/or his record of disability. The lawsuit alleges that GAF refused to permit Carter to bump into other positions based on an 11-pound lifting restriction contained in his nine-year-old medical evaluation. The EEOC said that at the time of the layoff, Carter’s lifting restriction had been increased to 90 pounds, and he would have been able to perform the jobs which only had a 50-pound lifting requirement.

Read more about the lawsuit and settlement here.

Time Clock Punching: Not to Be Overlooked

There’s a price to be paid for not requiring hourly employees to clock in and out of work warns our resident columnist Robin Paggi. A recent lawsuit making its way through the federal court system is a cautionary tale for employers.

Should You Require Hourly Employees To Punch the Clock?

In the article “Pros & Cons of a Time Clock in the Workplace” on https://smallbusiness.chron.com, the author states, “Employees who are required to punch a time clock are likely to believe that their employers do not trust them to accurately report their hours, and consequently they may feel that they are not sufficiently valued.” Maybe so; however, if you’re an employer who doesn’t require your hourly employees to clock in and out, you’ll want to read this.

The federal Fair Labor Standards Act requires employers to keep accurate information with respect to each employee including, among other things, time records showing when the employee begins and ends each work period. In the absence of such records, the employee’s testimony as to hours worked is presumed to be correct and the employer has the burden of proving they are not.

Zain and Zohaib Syed, who own and operate two auto repair shops in Michigan, recently learned this the hard way. They employed Jeffrey Moran as a mechanic at one of the shops from summer 2011 until spring 2013. According to court documents on www.courthousenews.com, Moran said he and Zohaib Syed agreed he would receive $300 per week in addition to “bonus type profit sharing” for working 58 hours during a six-day work week. The Syeds said Moran was hired to work only 30 hours a week for $300 weekly pay.

Moran said he usually worked 65 to 68 hours each week but did not receive any overtime or bonuses and complained numerous times to Zain Syed about it. The last time he complained, he was told to “either hit the road or stay working like it is.” He hit the road and sued for two violations of the Fair Labor Standards Act: failure to pay overtime and retaliation for requesting overtime pay.

The Syeds said Moran never worked more than 30 hours a week and could prove it. Although Moran did not clock in and out, they monitored his arrival and departure times on a security camera. They provided the court with time sheets that included the total number of hours Moran worked each day along with a weekly total for every week he was employed, which is what they’re supposed to have on hand. However, the court noted that, according to the timesheets, in all but five of the ninety weeks Moran was employed, he worked exactly thirty hours a week, despite his schedule varying notably from week to week, which looked suspicious.

A district court found in favor of the Syeds. However, in June an appellate court reversed that decision saying that the timesheets did not amount to objective incontrovertible evidence of the hours that Moran worked. Additionally, while Moran’s testimony of his hours worked might lack precision, employees are not required to recall their schedules with perfect accuracy. The case was remanded for further proceedings.

So, should you require your hourly employees to punch the clock? Yes.

Robin Paggi is the Training Coordinator at Worklogic HR.

Robin last wrote for us on HR issues in entertainment news and before that on lessons learned from a recent high-profile retaliation lawsuit. Before that she wrote about a Facebook photo that promoted a firing and before that on making it OK for employees to ask for your help and before that on working in Family-Run Businesses. Before that she wrote on There’s More to Motivating Than Money;  Love at Work: How Should Employers Respond, and prior to that about lessons for employers in the Brian Williams matter.  Prior to that she wrote about giving employees a second chance. Before that she wrote about making sure the applicant is a good fit for the job and before that about  cure for inappropriate behavior at work. Before that she wrote about cyberloafing, on business lessons from a Christmas story and before that about cell phone policies at work. She has also written for us on rules for holiday parties at work and before that about preventing workplace bullying.

Online Training Tool Launched for Proper Reporting of Injuries, Illnesses in U.S. Mines

Federal regulators rely heavily on proper reporting of accidents in the nation’s mines to determine the effectiveness of mine operators’ health and safety programs.

The Mine Safety and Health Administration announced today the debut of an online tool for  mine operators and contractors to receive training on the proper reporting of those injuries.

The goal is to promote compliance with ToPart 50 of the Code of Federal Regulations,  which requires mine operators to notify MSHA of accidents, illnesses and injuries as well as report quarterly employment and production data.

“From the operator’s perspective, it can serve as a road map to pinpoint where they are having problems and where they need to concentrate their efforts,” said Joseph Main, assistant secretary for  mine safety and health “For miners, it will help them better understand the Part 50 requirements on reporting work-related injuries and illnesses. Finally, it will enhance MSHA’s ability to evaluate and develop mine safety and health initiatives which benefit the entire mining industry.”

Here’s the agency’s announcement.

EEOC Recovers $40K for Spurned Applicant Allegedly Regarded as Disabled by Employer

A supplier of a fastfood chain is $40,000 poorer because it allegedly refused to hire a job applicant whom it “regarded as” disabled.  The Equal Employment Opportunity Commission announced settlement of this Americans With Disabilities Lawsuit today against McLane Foodservice Inc., a Texas company that is supplier for fastfood restaurant chains.

According to the lawsuit, the company violated the ADA by refusing to hire an applicant because it regarded him as disabled and because the applicant had a record of a disability, having had heatstroke and renal failure.

McLane is a large-scale supplier to fast-food restaurant chains. Headquartered in Carrollton, Texas, McLane has over 18 distribution centers nationwide.

Here’s EEOC’s announcement of the settlement.

And here is information from the commission’s webpage on prohibited discrimination under the ADA, including “regarded as” disabled discrimination. Scroll down to the definition of disability section.

EEOC: Firing of Diabetic Driver Violated ADA

A Michigan company violated the Americans With Disabilities Act when it fired a truck driver because his pre-employment physical revealed he had diabetes, the Equal Employment Opportunity Commission charged in a lawsuit filed on July 16.

The suit alleges that Vita Plus Corporation, an agricultural company with a facility in Gagetown, Mich., violated federal law by discriminating against a truck driver because of his disability. According to the EEOC’s lawsuit, Vita Plus discriminated against Brian Kaczorowski because of his disability – non-insulin-dependent diabetes.

On Sept. 19, 2013, Vita Plus hired Brian Kaczorowski for a driver’s position, contingent on his passing a pre-employment physical, the EEOC alleges. Beginning on Sept. 24, Kaczorowski worked three full days for Vita Plus – in training while riding along with other drivers. On Sept. 27, Vita Plus received Kaczorowski’s pre-employment physical report, in which the examin­ing doctor wrongly assessed him as a direct threat due to his diabetes. As a result, Vita Plus fired Kaczorowski the following day.

“An employer cannot deny employment opportunities to an otherwise qualified applicant simply because a disability is discovered during a pre-employment physical,” said EEOC Detroit Field Office Trial Attorney Omar Weaver. “Nor can an employer dodge its responsibility to conduct an individualized assessment of an applicant’s ability to perform the job in question.”

To read more about the case, click here.

For more on do’s and dont’s under the ADA, here’s information from the EEOC’s web site.

Cheerleaders Now Employees Under Calif. Law

Cheerleaders for professional sports teams will never make as much money in their occupation as the men and women they root for, but California has set a good precedent requiring that they be treated as employees and not contractors.

Three cheers for California Governor Jerry Brown, who last Wednesday signed a bill making cheerleaders for the state’s professional sports teams employees entitled to many of the benefits of that status.

Under AB 202, sports teams must employ cheerleaders as workers instead of contractors. It provides them with sick leave and overtime pay, as well as other labor protections available to team staff.

The catalyst for the legislation was a wage-theft lawsuit filed by Oakland Raiders cheerleaders. Dozens of Raiderettes who worked for the team from 2010 to 2013 received a $1.25 million settlement last year as part of the lawsuit. Cheerleaders for the Tampa Bay Buccaneers also received a settlement.

The law, which will take effect in 2016, is believed to be the first of its kind in the nation. A similar bill in New York is pending.