Archive for November, 2015

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.

EEOC Gets $47K for Applicant Denied Job After Employer Learned He Took Prescription Drugs

You can bet that Hoeganaes Corporation won’t again make the mistake of rescinding a job offer to an applicant because he or she is taking prescription medication. Or at least without following up with a post-offer physical examination.

That alleged mistake cost the New Jersey-based company, which produces atomized steel and iron powders, $47,500 as the price for settling an Americans With Disabilities Lawsuit brought on the applicant’s behalf by the Equal Employment Opportunity Commission.

The EEOC alleged that Hoeganaes offered the applicant a maintenance mechanic position at its Gallatin, Tenn. location. However, according to the EEOC, the company did not follow through with the offer once it learned he took prescription drugs for an anxiety disorder and high blood pressure, after a pre-employment physical examination.

Hoeganaes immediately sent the applicant to his primary care physician (PCP) to obtain clearance. The PCP stated that the applicant “should” be able to perform the job functions.

Rather than accept this statement, Hoeganaes rescinded the job offer without ever allowing the applicant to undergo a physical examination. That meant the company regarded the applicant as a disabled individual incapable of doing the job, the EEOC concluded.

After a job is offered to an applicant, the ADA allows an employer to condition the job offer on the applicant answering certain medical questions or successfully passing a medical exam, provided that all new employees in the same type of job have to answer the questions or take the exam.

To read more about the laws settlement, click here.

Donut Hole: EEOC Extracts $45K Settlement Against Shop That Fired Pregnant Employee

A donut shop is out of some (green) dough because it allegedly forced a female employee to take unpaid leave after management found out she was pregnant.

The Equal Employment Opportunity Commission today said that D&S Shipley Donuts, dba Shipley’s Donuts, a Katy, Texas-area franchise, will pay $45,000 to settle the agency’s pregnancy discrimination lawsuit against it.

The suit filed on behalf of Brooke S. Foley charged that Shipley’s would not allow Foley to continue working unless she provided a doctor’s release indicating that her pregnancy was not “high-risk.” The lawsuit further alleged that when Foley failed to provide such a release, and after she and her mother complained that Shipley’s could not require her to do so, she was fired.

Under the Pregnancy Discrimination Act, reminded the EEOC, an employer cannot force a pregnant employee, or one the employer suspects of being pregnant, to provide medical documentation proving that the employee can continue working, unless the employee requests some pregnancy-related accommodation. Further, if an employee complains about pregnancy discrimination, the employer must investigate that complaint and must not take any retaliatory employment action against her.

“The Supreme Court decided many years ago that a pregnant employee is solely responsible for making decisions that affect her ability to continue her job, and any duties associated with her job,” said Jim Sacher, EEOC’s regional attorney in Houston. “An employer that imposes its own personal beliefs and concerns about an employee’s pregnancy on her violates federal law and invites legal action.”

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

EEOC: Kroger Allowed Harassment of Teen

The Equal Employment Opportunity Commission looks particularly askance when employers permit the sexual harassment of the most vulnerable members of society, such as teenagers.

A five-figure monetary settlement of the EEOC’s sexual harassment claim against major nationwide retail grocery store chain Kroger Limited Partnership I, Delta Division brought that point home.

The EEOC announced on Nov. 13 that Kroger would settle the case involving the alleged harassment of a teenaged employee by paying $42,500.

According to the lawsuit, Kroger violated Title VII of the 1964 Civil Rights Act when it subjected a teenaged employee to sexual harassment and failed to take effective action to prevent such abuse of the employee by a male co-worker. The harassment began shortly after the teen’s hire and continued throughout her employment, with Kroger taking no corrective action against the harasser until her final complaint, the complaint said.

To read more about the lawsuit and settlement, go here.

This post was picked up by Grande Communications.

EEOC Inks Agreement With Ecuador

Now count Ecuador among the South American countries to partner with the Equal Employment Opportunity Commission to combat employment discrimination.

The EEOC announced last Tuesday, Nov. 10, that it has signed a Memorandum of Understanding with Ecuador creating a partnership between local consulates and EEOC field offices nationwide.

Under the terms of this partnership:

  • EEOC will train consular staff on workers and employers’ rights and responsibilities under the equal employment opportunity statutes that the agency enforces.
  • Ecuadorian consulates will assist EEOC with simple translations, outreach to Spanish-speaking media, and notification to the Hispanic community of EEOC activities.
  • EEOC office and local Ecuadorian consulates across the country will act consistently in their joint efforts.

“This agreement will improve the defense and the effective exercise of those rights and raise the employment standard of many Ecuadorian citizens working in the United States.,” said Ecuadorian Ambassador Francisco Borja Cevallos.

Read more about this development.

I wrote previously about the EEOC’s agreement with Mexico.