Archive for September, 2016

Rotten Smell: Shellfish Producer Let Black Employee Be Harassed, EEOC Alleges in Suit

The workplace at the largest producer of shellfish in the United States was anything but hospitable to a black worker, according to a lawsuit filed on Wednesday by the Equal Employment Opportunity Commission.

According to the EEOC, Jeremy Daniels, hired as a maintenance technician at Taylor Shellfish Company’s Samish Bay Farm in Washington State, faced demeaning comments and stereotypes about his race and was regularly called variations of the “N word” as well as “spook” and “boy.”

The lawsuit under Title VII of the 1964 Civil Rights Act also charges that his supervisor retaliated against Daniels by assigning him less desirable jobs, publicly screaming profanities at him and writing him up for insubordination. Despite being notified of incidents, Taylor management failed to take any action and simply told Daniels to just get thicker skin and “put his head down and do what he was told,” so that he felt he had no choice but to quit in order to escape the harassment.

“My supervisor ‘welcomed’ me to the job with the information that I was the first black person to work at Taylor for a long time, and that his father used to run ‘my kind’ out of town,” Daniels said. “In the military, when I traveled around the world for my country, I never encountered anyone who made me feel that I was less than them simply because of the color of my skin. But when I went to work for Taylor, I was constantly robbed of my dignity for simply being black.”

DOL Final Rule on Contractor Paid Sick Leave

The U.S. Labor Department today filled in the details of the paid sick leave requirement of an executive order President Obama issued last year requiring that federal contractors extend paid sick leave to their workers.

Executive Order 13706, signed a little more than a year ago, requires that government contractors offer employees up to seven paid days of sick leave each year.

Employees would earn one hour of leave for every 30 hours worked, with a maximum of 7 days a year. Eligible workers could use their paid leave if they are sick or are caring for a sick relative. The leave also could be used for absences resulting from domestic violence or sexual assault.

According to the DOL press release, when fully implemented, the final rule:

  • Provides up to 56 hours of paid sick leave per year to an estimated 1.15 million employees of federal contractors, including an estimated 594,000 employees who currently receive no paid sick leave.
  • Ensures that employers have choices in how to best adapt the paid sick leave requirement to their businesses. For example, employers can choose to allow workers to accrue leave over time, or to frontload leave for ease of administration.
  • Includes flexibilities related to integration with employers’ existing paid time off policies and leave provisions in existing collective bargaining agreements.
  • Improves the health and performance of employees of covered federal contractors and brings benefits packages offered by those federal contractors in line with leading firms, ensuring they remain competitive in the search for dedicated and talented employees.
  • Protects the public health by ensuring that covered federal contractors’ employees, customers and clients are able to stay home when they are sick.

The final rule applies to all covered contracts solicited and awarded on or after Jan. 1, 2017.

Interesting side note to this development: Labor Secretary Tom Perez blogged today making the case for mandatory paid sick leave for workers on federal contracts.

He received two comments, one by a supporter who thinks that all employers should have to provide paid sick leave–not just federal contractors–the other an opponent who said she saved her earned paid time off when she was raising her children for those days when she needed to be out from work. “FMLA and other leave is designed for situations when you need to take leave and protect your job. I am not in favor of mandatory paid leave. Bankrupting small employers is not the solution,” she wrote.

Interesting point-counterpoint.

EEOC: Baseless Fear Motivated Physicians’ Practice to Boot Doctor Taking Prescribed Meds

Certainly a medical practice needs to be vigilant of any staff members who are taking prescribed medications, but that doesn’t give them license to ignore the Americans With Disabilities Act.

Two physician groups in Atlanta, Georgia, are charged by the Equal Employment Opportunity Commission with doing exactly that.

In an ADA lawsuit filed today, the EEOC alleges that Georgia Hospitalists Group, LLC and ApolloMD Business Services, LLC, violated the ADA by firing a doctor because he was taking legally prescribed narcotic medications.

The suit alleges that in 2013, Dr. Alunda Hunt provided ApolloMD with a note from his doctor indicating that he was being treated for a medical condition with narcotic pain medications. According to the doctor’s note, Dr. Hunt was compliant with his treatment and was not experiencing any negative side effects.

However, within days of providing the note to ApolloMD, Dr. Hunt was removed from the work schedule and his contract was terminated. EEOC charged that Dr. Hunt was unlawfully fired because of an actual disability and because he was perceived to be disabled due to his use of legally prescribed narcotic medications.

“Employers have an obligation to conduct individualized assessments when they have a concern about an employee’s ability to safely perform his or her job duties,” said Bernice Williams-Kimbrough, director of EEOC’s Atlanta District Office. “EEOC will continue to hold employers accountable when they summarily dismiss employees based on unsubstantiated fears about a perceived disability.”

EEOC Sues Manufacturer, Alleging Questionable Medical Exam Cost Applicant a Permanent Job

Be careful when requiring a job applicant to undergo a pre-offer physical examination not to use the test results to invent a reason to deny the person a job. You might wind up being sued under the Americans With Disabilities Act.

That’s the situation that UPCO, Inc., a manufacturer based in Claremore, Oklahoma, finds itself in.

The Equal Employment Opportunity Commission announced today that it has filed suit against the company alleging to hire a temporary worker for a permanent job on the basis of a supposed disability that emerged during a “questionable” medical exam.

According to the EEOC, Lydia Summers began working at UPCO as a temporary receptionist at the front desk and assisting in the accounting department. After five successful months on the job, UPCO made Summers a conditional offer of full-time, permanent employment as a receptionist/accounts payable clerk. The offer was conditioned on Summers passing a pre-employment medical exam conducted by a third-party vendor called OneSource.

Following the exam, a physician for OneSource, who did not examine or question Summers, refused to approve her for employment with UPCO because of the supposed side effects of her prescription medications. Summers provided UPCO a letter from her physician stating that she did not suffer ill effects or impairments from her medications; however, without additional inquiry into her condition, the company rescinded its job offer.

“While pre-employment medical exams may be lawful under certain circumstances, using information obtained in such exams to discriminate against qualified applicants who are able to perform the job is not,” said James R. Neely, Jr., director of EEOC’s St. Louis District Office.

 

Silicon Valley Tech Company Sued by US DOL For Discriminating Against Asian Americans

A Silicon Valley high tech company didn’t give fair consideration to Asian American job applicants, the U.S. Department of Labor charged in a recent lawsuit.

The lawsuit filed with the department’s Office of Administrative Law Judges alleges that Palantir Technologies, a Palo Alto technology company, discriminated systematically against Asian job applicants in its hiring process and selection procedures.

Palantir provides software and data analysis services under federal contract to the U.S. Department of Justice’s Federal Bureau of Investigation, the U.S. Special Operations Command and the U.S. Department of the Army.

The suit follows a compliance review by the department’s Office of Federal Contract Compliance Programs, which found that from January 2010 to the present, Palantir violated Executive Order 11246 by:

  • Using a hiring process and selection procedures that discriminated against Asian applicants for software engineering positions on the basis of their race.
  • Maintaining a hiring process in which Asian applicants were routinely eliminated in the resume screen and telephone interview phases despite being as qualified as white applicants.
  • Hiring a majority of applicants from a discriminatory employee referral system. The overwhelming preference for referrals, combined with the contractor’s failure to ensure equal employment opportunity for all applicants without regard to race, resulted in discrimination against Asian applicants.

Read the complaint here.

EEOC: Bank Fired Female Manager Rather Than Accommodate Her Pregnancy-Related Disability

Some employers continue to twist themselves into knots as to how to treat a pregnant employee’s request for accommodation.

M&T Bank’s alleged failure to accommodate a female bank manager after she gave birth and received medical clearance to return to work got the attention of the Equal Employment Opportunity Commission, which announced on Friday that is suing the bank for violating the Americans With Disabilities Act.

According to EEOC’s suit, Candace McCollin had worked as a branch manager for M&T Bank for several years, most recently at M&T’s Edmonson Village location in Baltimore, when she told the bank’s administrative vice president that she was pregnant and suffered from a medical condition that had caused her prior miscarriages.

McCollin said that she would need surgery to prevent another miscarriage. Following the vice president’s instructions, McCollin went on leave under the Family Medical Leave Act and filed for short-term disability benefits. While she was on leave, however, M&T advised McCollin that the bank would fill her position unless she was medically cleared to return to work within ten days, EEOC said.

After giving birth months later and receiving medical clearance to return to work, M&T forced McCollin to apply for vacant positions for which she was qualified. However, M&T failed to reassign McCollin to vacant positions for which she was qualified, including to 24 vacant branch manager or assistant branch manager positions in the greater Baltimore region because of her disability or record of a disability, EEOC charged.

“The ADA requires employers to provide a reasonable accommodation such as unpaid leave or transfer to a vacant position,” said EEOC Regional Attorney Debra M. Lawrence.  EEOC will take robust action if an employer blatantly refuses to meet its legal obligations.”

Last year the EEOC provided updated guidance regarding the Pregnancy Discrimination Act and the Americans with Disabilities Act as they apply to pregnant workers.

 

Deloitte Breaks Mold on Paid Family Leave

The family leave policy instituted by Deloitte is pushing the envelope–and just might inspire other companies to be more generous in this benefit.

Unlike policies that limit family leave to new parents, the Deloitte policy applies to everyone in the workforce. Any employee with family caregiving responsibilities may take up to 16 weeks of paid family leave, including for taking care of an elderly relative, caring for a spouse or family member who is ill, or the birth or adoption of a child.

New mothers also can take six to eight weeks of paid short-term disability in addition to the family-leave.

Employees have access to the benefit each year, meaning they could be absent for a child’s birth one year and take a few weeks to care for an elderly parent the next year.

The policy also allows maximum flexibility in how it is used. Employees can use the benefit as they need it, working three or four days a week for several months, taking the full 16 weeks at one time, or taking a few weeks at different points in the year.

Paid family leave is also a topic of discussion in the presidential campaign. Republican nominee Donald Trump would mandate 6 weeks of paid leave for women following the birth or adoption of a child. There is some dispute as to whether same-sex couples would automatically receive the six weeks of paid leave, and the policy also leaves out fathers and parents who adopt. But the fact that a Republican nominee for president is calling for leave guaranteed under federal law is a breakthrough in itself from Republican Party orthodoxy.

If elected president, Democratic Party nominee Hillary Clinton is promising a federally-mandated guarantee of 12 weeks of paid family and medical leave to care for a new child or a seriously ill family member, and up to 12 weeks of medical leave to recover from a serious illness or injury of their own. Employees taking this leave would be guaranteed receiving at least two-thirds of their current wages, up to a ceiling, while on leave.

We’ve come aways in our presidential campaigns when the candidates would show up at  a day care center, read the children a book, and then depart.

Now we are actually getting some substance on which to make comparisons between the candidates on their leave policies.