Archive for August, 2015

DOL Recovers $945K for Workers Denied Prevailing Wage by Calif. Drone Manufacturer

A company that manufactures drones for the U.S. Air Force has agreed to make up for lost wages due its workers under prevailing wage laws, the U.S. Department of Labor announced last Friday.

The company, General Atomics Aeronautical Systems, Inc., based in San Diego, produces unmanned aircraft systems and tactical reconnaissance radars as well as advanced high resolution surveillance systems. As suppliers that furnish military testing services and logistical support under contract with the Air Force, General Atomics is subject to the requirements of the McNamara-O-Hara Service Contract Act.

That law requires that contractors and subcontractors performing services on covered federal contracts in excess of $2,500 must pay their service workers no less than the wages and fringe benefits prevailing in the locality, or rates contained in a predecessor contractor’s collective bargaining agreement.

General Atomics didn’t comply with the law in paying 901 employees at job sites throughout the U.S., including the China Lake Naval Weapons Center in Ridgecrest, Calif., DOL investigators found.

To make up for that shortfall, the company has paid $945,000 in back wages to these workers, DOL said.

General Atomics agreed to pay its employees the highest prevailing wage among all of its job sites going back for a six-year period.

Read more about the DOL action and contractor response here.

EEOC Sues Bar for Pregnancy Discrimination

The owners of the Moonshine Whiskey Bar in Tempe, Arizona, have some explaining to do about their treatment of a pregnant waitress, according to the Equal Employment Opportunity Commission.

In a just-filed lawsuit, the commission alleges that the bar violated Title VII of the 1964 Civil Rights Act after one of its managers removed a female waitress from her job after she confirmed to him that she was pregnant (He had asked her). He never scheduled her for work again, nor did he respond to her text messages seeking work.

“Discrimination against pregnant employees is a serious problem and results in women being afforded fewer career opportunities,” said EEOC Phoenix regional attorney Mary Jo O’Neill. “Women must be allowed to work and start families while remaining in their careers without fearing for their jobs.”

Read more about the lawsuit, and here are the EEOC’s do’s and dont’s when it comes to pregnancy discrimination.

EEOC: Employer Violated ADA in Making Disabled Worker’s Return to Work Conditional

Employers need to let their workers with disabilities decide when it’s the right time to come back to work, and not impose overprotective rules as a condition of employment.

That’s the lesson from a recent Americans With Disabilities Act lawsuit filed by the Equal Employment Opportunity Commission against a Michigan company.

The suit filed today charges that Neenah Paper, a manufacturer of various types of premium paper with a paper mill in Munsing, Mich., forbad an employee with a seizure disorder from returning to work without confirmation from his doctor that he no longer had the condition.

And also as  a condition of employment, the company forbade the worker from returning unless he took his medication at work under observation, either in the presence of the plant nurse or designated co-workers, the EEOC alleges.

The ADA doesn’t allow that, the EEOC charged.  “An employer cannot single out an employee who has a disability and impose an over-protective rule on that person as a condition of employment,” said EEOC Detroit Field Office Trial Attorney Omar Weaver. “Such actions represent the kind of differential treatment toward disabled individuals that the ADA was enacted to prohibit.”

Read more about the lawsuit.

NLRB Expands Joint Employer Doctrine

One employer’s exercise of indirect control over working conditions at another employer, or even its reserving the right to exercise that control, is enough to make the two companies joint employers, a divided National Labor Relations Board ruled today.

The 3-2 ruling means that companies that use franchises or subcontractors can be held liable for labor violations by those companies and also be forced to negotiate collective bargaining agreements with unions representing those companies’ workers.

Before this ruling, joint employer required that that one company exercise direct control over the other’s operations. But the board majority said that standard no longer reflects today’s changing economy.

The board decision stems from a 2013 election petition by the Teamsters union, which sought to represent workers at a Browning-Ferris Industries recycling facility in Milpitas, Calif. The workers were employed by Leadpoint, a Browning Ferris subcontractor, to sort out recyclable items and clean the facility.

The petition triggered the question of whether Browning Ferris and Leadpoint were joint employers. An NLRB regional director found that they were not joint employers because they did not share direct and immediate control over conditions of employment, such as hiring, firing and discipline workers.

The union appealed the decision, which led to the board decision on Thursday. Thursday’s ruling means that Browning Ferris and Leadpoint are considered joint employers, and ballots cast in a union election will now be unsealed and counted.

Next on the NLRB’s radar screen: McDonald’s Corporation, which is resisting the board’s effort to find it liable for labor law violations at its local restaurants, arguing that those restaurants operate independent of the main corporation.

Republicans in Congress won’t like this ruling one bit. Expect them to mount a repeal of this rule by legislation. A court challenge to the rule is also possible.

EEOC: Company Didn’t Stop National Origin, Color Harassment of Puerto Rican Employee

Politicians who cry “political correctness” when they use offensive language wouldn’t get away with that dismissive stance in the workplace. Just last Friday the Equal Employment Opportunity Commission sued a Chicago-area company for national origin and color harassment, based on allegations that foremen and co-workers harassed a worker because of his national origin and color by referring to him as “spic,” “n_____,” “Mexican n______,” “wetback,” “Puerto Rican n______,” and “n______ slave.”

The EEOC’s pre-suit administrative investigation found the company, King-Lar, was aware of the harassment because managers witnessed some of the offensive comments and the employee complained to management, but the company did nothing to stop the harassment, the commission said in announcing the suit.

Harassment based on color or national origin violates Title VII of the Civil Rights Act of 1964, the EEOC reminds employers and employees.

Read more about the lawsuit.

EEOC: Blind Advocacy Group Violated Sabbath Observer’s Rights by Denying Accommodation

The National Federation for the Blind allegedly was blind to the need of a Sabbath-observant bookkeeper, and as a result finds itself in court having to defend its actions in a Title VII lawsuit brought by the Equal Employment Opportunity Commission.

According to the EEOC, the Federation hired the bookkeeper, a practicing Hebrew Pentecostal, to work in its Baltimore office in 2013. In 2014 he was told he would have to work some Saturdays, which would conflict with his observance of the Sabbath.

He suggested alternatives such as working on Sundays or working late on week nights other than Fridays, the EEOC said. But instead the organization refused to provide any reasonable accommodation and instead fired the bookkeeper because he could not work Saturdays due to his religious beliefs.

Title VII forbids requiring an employee to choose between his or her religious observance and the job, unless the employer can show the accommodation would unduly burden others.

So if this goes to court, the burden will be on the federation to make that case.

Read more about the lawsuit.

Target Drops Pre-Employment Tests in $2.8M Settlement With EEOC Over Title VII, ADA Charge

Applicants for exempt-level professional jobs at Target Corp. can now expect to get a fair shake at those jobs without regard to their race or gender. Nor will they have to pass a pre-employment medical examination prior to an offer of employment.

That’s the result of a $2.8 million settlement announced Friday by the Equal Employment Opportunity Commission of a charge filed by one of the commissioners against the Minneapolis headquartered retailer.

Three employment assessments formerly used by Target disproportionately screened out applicants for exempt-level professional positions based on race and sex.  The tests were not sufficiently job-related and consistent with business necessity, and thus violated Title VII of the Civil Rights Act of 1964, EEOC found.

In addition, EEOC found that one of the assessments Target formerly used in its hiring process also violated the Americans with Disabilities Act (ADA).  The EEOC determined that this particular assessment performed by psychologists on behalf of Target was a pre-employment medical examination.

That’s a violation of the ADA, which prohibits from subjecting applicants to medical examinations prior to an offer of employment.

Target discontinued use of those tests during the EEOC’s investigation.

This outcome ought to be cautionary tale to other employers that use or want to use pre-employment tests. Make sure they are job-related and consistent with business necessity under Title VII. And if they involve medical examinations, don’t impose them until after you have determined that the applicant is qualified and have offered him or her the job.

Read more about the settlement.


Eighth Circuit: Status of Fed Ex Drivers in Missouri Must Be Decided by Jury, Not Court

queA jury–not the court–will get to decide whether drivers for Federal Express are employees or independent contractors under Missouri law, the U.S. Court of Appeals for the Eighth Circuit ruled on Friday.

The case has big financial implications for the drivers and Fed Ex. If the drivers are employees, they would be entitled to wage and hour protections; if they are independent contractors, they would not qualify for those protections.

There’s a large federal class action lawsuit against the company that is pending in Indiana, but this case was split-off from that one and sent back to federal district court in Missouri in favor of a “driver-by-driver, terminal-by-terminal, supervisor-by-supervisor analysis.”

That determination under Missouri law is a question of fact that only a jury applying Missouri law can make, the appeals court ruled Friday in Gray v. Fed Ex Ground Package System.

You can access the ruling through the Eighth Circuit’s website.

Federal Express is facing lawsuits from all parts of the country over this matter. Last August, the Ninth Circuit ruled that its drivers are employees under California and Oregon law

Wage Hour Rules Upheld for Home Care Workers

It’s all systems go for the U.S. Department of Labor’s regulations guaranteeing overtime and minimum-wage protection to nearly 2 million home-health-care workers.

Since 1974, the Fair Labor Standards Act, the premier wage and hour law, has exempted home-care workers hired through third-party staffing agencies from wage and overtime requirements.

The home health care industry filed suit in federal district court to block the new regulations, arguing that they went beyond DOL’s authority under the law.

In a ruling last December, the court bought that argument.rotections

But today the U.S. Court of Appeals for the District of Columbia backed the DOL, emphasizing changes in the industry in the last four decades.

In his opinion for the 3-judge panel, Judge Sri Srinivasan cited a “dramatic transformation” in the industry. Most caregivers used to be directly employed by individual households, he pointed out. But today, most workers are employed by staffing companies that service hundreds or thousands of companies.

This isn’t necessarily the end of the story. If the industry wants to challenge the law further, it could seek review from the entire appeals court, or see if  the U.S. Supreme Court would accept the case.

Either way, score one now for DOL in its efforts to modernize the 1930s- era FLSA.

You can access the full opinion in Home Care Association v. Weil here.

White House Hires Openly Transgender Woman

If it is true that change starts at the top of the organization, then the Obama Administration has made a bold statement with its hiring of the first openly transgender staff member.

Raffi Freedman-Gurspan will serve as an outreach and recruitment director for personnel in the White House Office of Presidential Personnel.

She also happens to be African-American.

So a win for diversity in several respects.

Before being hired by the White House, Freedman-Gurspan worked at the National Center for Transgender Equality as a policy advisor for the Racial and Economic Justice Initiative.