Archive for November, 2015

Restrictive Attendance Policy Casualty of Food Concessionaire’s Settlement of ADA Lawsuit

The next time you’re wandering about the food court at Baltimore-Washington International Airport (BWI), rest assured the operators of the Dunkin Donuts’ store there have an attendance policy that respects disabled employees’ rights.

The Equal Employment Opportunity Commission announced today it has settled an Americans With Disabilities Act lawsuit against OHM Concessions Group LLC-the stores’ operator–for $151,000 stemming from its firing of a regional manager who was seeking additional time off to treat her breast cancer.

The lawsuit alleged that after Joan McMahon O’Donnell was diagnosed with breast cancer and requested unpaid leave for surgery, chemotherapy and radiation treatment, Dunkin’ Donuts refused to provide a reasonable accommodation and instead abruptly discharged her because of her disability.

With the lawsuit out of the way, OHM can re-direct its energies toward ADA compliance. Under the terms of the agreement, this includes implementing a new attendance policy which includes a provision for requesting reasonable accommodations for employees with disabilities. The restaurant will provide annual ADA training to all supervisors, managers and human resources employees. OHM will also post a notice about the settlement and will report to EEOC about how it handled any internal complaints of alleged disability discrimination.

“Providing a leave of absence for an employee who needs medical treatment related to a disability is not only the decent thing to do – it is required by federal law unless the employer can show it would pose an undue hardship,” said EEOC Philadelphia District Director Spencer H. Lewis, Jr.

I wrote about the lawsuit when it was filed last July.

Court: AutoZone Can’t Confine ADA Suit Over Attendance “Points” System to Three Stores

AutoZone cannot limit the scope of an Americans With Disabilities Act lawsuit to just three of its retail stores, but instead will have to defend against the alleged ADA violation at all of its stores, a federal district court ruled on Nov. 6.

The case centers on the auto parts company’s alleged policy of assessing employees attendance “points” for absences, without permitting any general exception for disability-related absences. In a lawsuit filed against the company in 2014, the EEOC alleged that the policy, at least from 2009 to 2011, caused the firing of qualified employees with disabilities with even modest numbers of disability-related absence, in violation of Title I of the ADA.

The district court rejected the company’s argument that EEOC did not conduct an adequate, “nationwide” investigation prior to filing suit.  The company requested that the suit be limited to just three of the company’s many retail stores as a result.  According to its website, the company operates several thousand stores in 48 states and Puerto Rico.

“[T]he Court may not inquire into the sufficiency of the EEOC’s pre-suit investigation in order to ‘limit’ the scope of the litigation,” the court stated in its order, which was written by U.S. District Judge Robert M. Dow, Jr.  The order also cited the recent decision in Mach Mining, LLC v. EEOC, in which the Supreme Court stated that courts should not impose additional procedural requirements on such litigation beyond those established by Congress.  The order explained, “this Court would be imposing extra procedural requirements if it required the EEOC to offer additional proof that ‘its investigation was … conducted on a nationwide basis.”

For more information on the lawsuit, click here.

Here’s more information on the Mach Mining ruling.

Landscape Co. Docked for Immigration Violations

It’ll cost a landscaping company in Fort Myers, Fla., $7,500 to settle allegations it discriminated against work-authorized non-U.S. citizens in violation of the Immigration and Nationality Act (INA), the U.S. Department of Justice announced on Nov. 23.

DOJ said that its of investigation of Sunny Grove  Landscaping & Nursery Inc. (Sunny Grove) found that Sunny Grove discriminated against lawful permanent residents by requiring them to produce permanent resident cards to prove their work authorization, whereas U.S. citizens were permitted to choose whatever valid documentation they wanted to prove their work authorization.

Lawful permanent residents do not have to show their permanent resident cards when they start working, DOJ reminds employers.  Like all workers, they can choose whatever valid documentation they want to establish their employment authorization, and many lawful permanent residents have the same work authorization documents as U.S. citizens.

Just last week McDonald’s USA LLP and its corporate affiliates and subsidiaries settled DOJ allegations putting an end to the company’s “long standing practice” of requiring lawful permanent residents to show a new permanent resident card when their original document expires

Read more about the Sunny Grove settlement here.

Report: U.S. Can Learn From World on Implementing Paid Family, Medical Leave

We have many things to be thankful for on this Thanksgiving Day, but unfortunately widespread access to paid family and medical leave isn’t one of them.

Only three states have paid family and medical leave laws, and some companies have adopted them. But the “United States’ lack of a national paid family medical leave program makes it an extreme outlier among all other advanced economies, according to a report issued last week by the Center for American Progress based in Washington, D.C.

We should look beyond our shores for answers, says the report, says the November 19 report, titled Administering Paid Family and Medical Leave, Learning from Domestic and International Examples.

While the United States lags behind the rest of the world on the issue of paid leave, there is no compelling reason why it couldn’t create a national paid family and medical leave program, the report says, citing examples and best practices from other countries that the United States can draw upon to develop and implement paid leave. The report outlines the three broad types of structures for ensuring access to paid leave that have been used by states and other countries, and explains how they could function in the U.S.

Those three structures are:

  • Employer requirement programs, in which businesses are responsible for providing paid leave;
  • Social insurance programs, in which risk and resources are pooled to provide a fund for wage replacement during leave;
  • Publicly funded programs, in which government resources are utilized to provide workers with paid leave.

You can download the report from this link.




Hiring Discrimination Victims to Receive $165K From Federal Contractor in Settlement, Says DOL

And speaking of money, Aramark, a federal contractor in Lubbock, Texas that provide its services and products to multiple federal departments and agencies, including much of the Defense Department, will pay $165,000 in backpay and benefits to settle systemic hiring discrimination claims.

The victims of this discrimination were 335 male and African-American applicants, the U.S. Department of Labor’s announcement of the settlement said.

Under the agreement, Aramark will pay $165,000 in back wages, interest, and benefits to the affected class members. The company, while not admitting liability, will also make 53 job offers to original applicants as positions become available. Finally, the company will review and revise its selection process and provide better training to its hiring managers to eliminate practices that result in gender and race stereotyping.

“There are no such things as ‘women’s work’ and ‘men’s work.’ There is only work, and federal contractors are well aware of their obligation to provide equal opportunities to all employees and job applicants,” said OFCCP Director Patricia Shiu. “This settlement is a reminder that it is up to the employee or job applicant to decide which positions to pursue, whatever their reasons. A contractor may only evaluate whether or not an individual has the ability to do the job.”

$525 Million Recovered for Employment Discrimination Victims This Year, EEOC Reports

Employers shelled out collectively more than $525 million to victims of employment discrimination in fiscal year 2015 in the private and public sectors, in actions initiated by the Equal Employment Opportunity Commission, the agency said in its annual Performance and Accountability Report published last Thursday, Nov. 19.

Anyway you slice the data, it’s an impressive haul.

More than half of that amount-$356.6 million-was obtained through mediation, conciliation, and settlements; $65.3 million was obtained for charging parties through litigation; and $105.7 million was obtained for federal employees and applicants.

In fiscal year 2015, EEOC resolved 268 systemic investigations before filing litigation, obtaining more than $33.5 million in remedies. In litigation, EEOC resolved 26 systemic cases, six of which included at least 50 victims of discrimination and 13 that included at least 20 victims.

EEOC filed 142 lawsuits alleging discrimination during fiscal year 2015, including 100 individual suits and 42 suits involving multiple victims or discriminatory policies (versus discriminatory treatment), of which 16 were systemic suits. Legal staff resolved 155 lawsuits alleging discrimination. At the end of the fiscal year, EEOC had 218 cases on its active docket, of which 48 (22 percent) involved challenges to systemic discrimination and 40 (18 percent) were multiple-victim cases.

You can download the report here.

OFCCP Recovers $1.8M From Contractor that Steered Women Into Light-Duty Laborer Jobs

Private sector employers can learn what not to do in their hiring practices rom companies that have federal contracts. In this case it’s not to steer women into lower-paying jobs while reserving the better paying jobs for men.

That’s what federal contractor G&K Services Inc. did, the U.S. Department of Labor charged, announcing it has recovered $1.8 million for 444 female employees in laborer positions. According to the DOL’s Office of Federal Contract Compliance Programs, which enforces the rules for nondiscrimination in federal contracts, the company disproportionately assigned the women to lower paying job duties while filling the higher paying job duties predominantly with men, even though female employees were qualified for and able to perform the higher paying jobs.

This unlawful steering of women into the lower paying “light duty” jobs led to unlawful sex-based pay discrimination at G&K facilities in Denver; Sacramento, California; Graham and Charlotte, North Carolina; Pleasant Hill, Iowa; Justice, Illinois; St. Paul, Minnesota; and Houston and Coppell, Texas. This practice also resulted in a lower hiring rate for 2,327 male applicants who were equally or more qualified for general laborer positions at the Sacramento, Pleasant Hill, Justice, St. Paul and Coppell locations, the OFCCP found.

OFCCP also found that G&K failed to provide equal opportunity to 456 African American and 111 Caucasian applicants at its Houston and Charlotte locations when hiring for general laborer positions.

Read more about the settlement.

DOL also has complied information on other recent settlements.

Retailer That Hired Referred Worker From Agency Was His “Employer” Under Title VII, CA3 Rules

Temporary workers got some help last week from the U.S. Court of Appeals for the Third Circuit, which ruled that an employee of a staffing agency who claimed he experienced racial discrimination at the work site where he was assigned could sue the operator of the site as his “employer” under Title VII of the 1964 Civil Rights Act.

The Third Circuit in this case applied the common-law test in finding that the company that operated the worksite was the “employer” of the referred individual. That test includes factors such as whether the company had the power to determine who could work at the store, assign him work, directly supervise him, provide site-specific training, equipment and materials, and keep track of his hours. Those factors were present here.

In addition, the store operator made payments to the temporary agency that were “functionally indistinguishable from direct employee compensation.”

Therefore, trial should proceed on the employee’s Title VII lawsuit against the operating company.

The ruling is Faush v. Tuesday Morning, Inc.  (No. 14-1452, November 11, 2015).

You can find the opinion here


McDonald’s Drops Illegal Paperwork Requests in Settlement of Immigration Bias Claim With DOJ

A settlement announced today between the U.S. Department of Justice and McDonald’s USA LLP and its corporate affiliates and subsidiaries puts an end to the company’s “long standing practice” of requiring lawful permanent residents to show a new permanent resident card when their original document expires.

The company did not make the equivalent request to its U.S. citizen employees who showed documents that later expired, DOJ charged. Those lawful permanent residents who were asked and could not provide a new card were not allowed to work, some even losing their jobs as a result.

Those actions violated the Immigration and Nationality Act, by placing additional documentary burdens on lawful permanent residents during the employment eligibility verification process because of their citizenship or immigration status, according to the DOJ.

The settlement agreement, which includes a $355,000 civil penalty, only address actions by McDonald’s, not its franchises.

The settlement announcement includes information on what INA allows and doesn’t allow regarding verification of employees’ status to work legally in the United States.

EEOC: Employer Violated ADA By Firing Disabled Employee Who Had Doctor’s Clearance To Work

Again, an employer is in trouble with the Equal Employment Opportunity Commission because it apparently wouldn’t let a disabled employee return to work despite getting clearance from her doctor.

The defendant in this case is Correct Care Solutions, LLC, a Kansas corporation that provides medical services to incarcerated people in correctional institutions nationwide.

According to the EEOC, after Correct Care learned about the employee’s disability, the company’s director of nursing required her to provide medical clearance in order to continue working for the company.  Later the same day, the employee  provided a note from her treating physician clearing her to return to work with certain restrictions related to her disability. According to the complaint, these medical restrictions did not affect her ability to perform her job duties. However, Correct Care did not allow her to return to work, but instead placed her  on unpaid medical leave and ultimately discharged her on Jan. 30, 2013, because of her disability.

These allegations are contained in an Americans With Disabilities Act lawsuit the EEOC filed against Correct Care today.

It’s never a good idea to ignore a doctor’s note pronouncing an employee fit to return to work–instead substituting the employer’s opinion for that of a medical professional.

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