Archive for October, 2016

Settlement Reached Between EEOC, N.C. Phone Company in Same-Sex Harassment Lawsuit

$50,000 is how much it will cost ABC Phones of North Carolina to a lawsuit filed against by the Equal Employment Opportunity Commission alleging that a female sales consultant working for the company was subjected to same-sex harassment.

The EEOC announced the settlement today, bringing to a conclusion this suit that it filed in March

The EEOC charged that in 2013, Fredarika Bowden was sexually harassed by a female co-worker during her employment with A Wireless. Bowden worked as a sales consultant at the company’s store in Lumberton, N.C.

The suit charged that the harassment included inappropriate touching and sexual comments. EEOC’s complaint further claimed that although much of the offensive conduct was witnessed by a member of management and Bowden reported the harassment to management several times, the company failed to promptly stop the harassment.

Sexual harassment is illegal, regardless of whether the harasser is the same or the opposite gender as the victim,” said Lynette A. Barnes, regional attorney of EEOC’s Charlotte District Office. “When employees report a manager’s or co-worker’s inappropriate behavior, employers must immediately investigate the claims and take steps to stop the misconduct.”

DOL Webinar Monday on Helping Veterans, Their Spouses in Transition to Civilian Employment

Before welcoming the trick or treaters tomorrow on Halloween, come listen to a U.S. Department of Labor webinar to share employment resources with military spouses.

DOL is presenting this free webinar as part of National Work and Family Month.

The aim of the program is to help “military spouses get the employment assistance they need to connect with meaningful employment and training resources to achieve their personal career goal,” according to the DOL announcement.

The Transition Assistance Program run by the Veterans’ Employment and Training Service is aimed to equip transitioning service members with the knowledge and skills they need to attain and retain civilian employment, such as writing a resume, interviewing well and negotiating a salary. Military spouses are also eligible to take this workshop and can register through the family support office on their installation.

Other ways in which DOL provides help to veterans, transitioning service members and their spouses include:

  • free employment and training services at nearly 2,500 American Job Centers across the country;
  • partnersjip the National Labor Exchange− used in all 50 states plus the District of Columbia, Guam, and Puerto Rico by tens of thousands of employers. On an average day, it contains 2.1 million job listings collected from corporate job postings, state job banks, and the federal government’s USAJOBS website;
  • works with states and local employers to recognize the skills of veterans and military spouses when it comes to licensing and credentialing by encouraging them to recognize the credentials earned by military spouses;
  • promote on-the job training opportunities like registered apprenticeship;
  • proactively engage employers about hiring veterans and military spouses, and partner with national efforts such as the White House’s Joining Forces initiative, the U.S. Chamber of Commerce Foundation’s Hiring Our Heroes program and the Defense Department’s Military Spouse Employment Partnership.

In Conciliation Agreement With EEOC, Employer Agrees To Rein in Criminal Background Checks

A logistics services company won’t be quite so free and easy about conducting criminal background checks of its workers anymore.

The Equal Employment Opportunity Commission announced on Wednesday that Schenker, Inc., a global leader in the field of contract logistics services, has agreed to pay $750,000 to conciliate several charges of discrimination filed with the commission.

Under the agreement, the company will change its criminal background check policy, making sure that background checks are no conducted on prospective employees until after an offer of employment is made.

“Moreover, criminal records will be reviewed on a case by case basis, with consideration given to the nature and gravity of the offense, the time elapsed, and the specifications of the position,” the EEOC announcement said.

The EEOC had issued a finding of reasonable cause that the company had violated Title VII of the 1964 Civil Rights Act, hindering the employment opportunities for African American and Hispanic applicants nationwide.

Association, OSHA Team Up Again to Protect Temporary Workers From Workplace Hazards

The Occupational Safety and Health Administration has renewed its alliance with an advocacy group to protect temporary employees from workplace hazards.

During the five-year agreement, OSHA and the American Staffing Association will continue to educate workers about their rights, and train staffing firms and their clients on their responsibilities to protect workers under the Occupational Safety and Health Act. The partners will work together to distribute information on how to recognize and prevent workplace hazards, and to further develop ways of communicating such to staffing firms, host employers and temporary workers.

Previous accomplishments include a webinar that discussed the safety and health obligations of host employers or clients using the services of staffing firms. Additionally, ASA provided their members with webinars focused on: the shared responsibility of host employers and staffing agencies to workplace safety; Ebola-related liability challenges for staffing and recruiting firms; and how to handle workplace incident investigations.

ASA, founded in 1966, has served as the voice of the U.S. staffing and recruiting industry. With more than 1,800 members, ASA advances the interests of staffing and recruiting firms through advocacy, public relations and education.

Read more about this development announced on Tuesday here.

Kentucky City Settles DOJ Lawsuit Alleging Denial of Light-Duty Work to Pregnant Cops

Female police officers in Florence, Kentucky, won’t have to worry anymore that they will be denied light-duty jobs if they want them when they become pregnant.

That’s thanks to a settlement of a Title VII and Americans With Disabilities Act lawsuit announced today by the U.S. Department of Justice.

It’s the department’s first lawsuit challenging a discriminatory light duty policy since the U.S. Supreme Court’s ruling regarding light duty policies and pregnant employees in Young v. United Parcel Service.  It is also the department’s first lawsuit challenging disability-related “no restrictions” policies in the workplace.

In its March 2015 ruling in Young, the high court held that Title VII requires that employers that accommodate workers with temporary disabilities also do so for pregnant employees unless it has a legitimate, nondiscriminatory reason for doing so other than cost or convenience.

According to the department’s complaint, Florence discriminated against two pregnant police officers by denying both officers’ requests for light duty.  The department alleges that Florence previously assigned light duty positions to employees who were temporarily unable to perform their regular job duties, regardless of why the employee needed light duty.  In April 2013, within months of a police officer’s pregnancy-related light duty request, Florence limited light duty to employees with on-the-job injuries.  Florence also required that employees with non-work-related illnesses, injuries or conditions demonstrate that they had “no restrictions” before they could return to work.

In 2014, according to the department’s complaint, Police Officers Lyndi Trischler and Samantha Riley requested light duty when they were unable to perform their duties as patrol officers due to their pregnancies.  Officer Trischler, who was diagnosed with a high-risk pregnancy and suffered complications, also requested light duty as a reasonable accommodation for her pregnancy-related disability.  Florence denied the requests and required each to take leave.  After placing Officers Trischler and Riley on leave, Florence continued to grant light duty to other employees who were similar in their ability or inability to work.

 

W. Va. Hospital Changes Same-Sex Benefit Policy Under Agreement Settling EEOC Sex Bias Charge

No longer will employees at a Morgantown, West Virginia hospital be denied benefits because they are in same-sex marriages.

The Equal Employment Opportunity Commission announced today that Mon General Hospital located in Morgantown will pay $8,900 and change its policy on same-sex spousal benefits. The terms were agreed to by the hospital and the EEOC in an agreement settling a charge of sex discrimination under Title VII of the 1964 Civil Rights Act.

The EEOC filed the charge on behalf of hospital employee Kathy McIntire, alleging that she was denied spousal medical benefits for the sole reason that she is a female married to another female.

At the time, McIntire was seeking spousal coverage for her wife while working in the Morgantown, W.V., medical facility, but Mon General’s policy provided for spousal medical coverage only to opposite-sex spouses. As a result, McIntire and her wife sustained losses when they had to pay for medical care and services that would have been covered had McIntire’s wife been eligible for consideration as a beneficiary under Mon General’s benefits policy.

Under the agreement, which will be in effect for one year, Mon General must affirm and communicate to its employees that it has eliminated its former policy and instituted a new policy that includes making same-sex spouses eligible for employer-sponsored benefits. Mon General will also provide a report semi-annually to EEOC regarding any employees who have requested employer-sponsored benefits for their same sex spouse, and whether or not such requests were granted.

No one should be denied access to medical benefits simply because of who they are or whom they love,” said EEOC Chair Jenny Yang. “EEOC will continue to advance opportunity for all and protect the rights of workers to be free from discrimination, as our civil rights laws require.”

OSHA Fingers Ohio Auto Parts Company for Repeat Violation of Machine Hazard Rules

Maybe in some future presidential campaign the issue of workers’ safety on the job will take its rightful place among the pressing concerns of the day. There’s simply no excuse for companies not observing fundamental safety rules.

Latest case in point: today’s announcement from the Occupational Safety and Health Administration citing an Ohio auto parts manufacturer from failing to protects its workers from machine hazards.

OSHA said it has imposed penalties of $536,249 to Milark Industries Inc. for three willful egregious, one willful, and three serious violations of safety standards stemming from multiple investigations of injuries as well as complaints received alleging unsafe working conditions. The agency has placed Milark in its Severe Violator Enforcement Program.

The absence of adequate machine safe guards led to an amputation and other machine-related injuries at a Mansfield manufacturer of parts used by automobile, motorcycle and appliance brands, OSHA said. One of these injuries involved a 22-year-old temporary employee who suffered the partial amputation of two fingers on his left hand on his first day of work.

OSHA’s May and June investigations cite the company for hazards at both its Baird Parkway and Rupp Road facilities in Mansfield. OSHA found the company:

  • Failed to lock-out robotic welding cells and tube bender.
  • Bypassed safety interlocks in order to maintain the production rate.
  • Bypassed safety devices while conducting maintenance activities.
  • Failed to train workers in procedures to prevent unintentional machinery operationduring service and maintenance, a process known as lockout/tagout.

Protecting Whistleblowers Helps Employers

Employers do themselves a favor by taking seriously the complaints of their employees blowing the whistle on illegal or unethical conduct, says HR expert Robin Paggi.

Protecting Whistleblowers

by Robin Paggi

When you hear the word “whistleblower,” you probably think of someone like Edward Snowden, the former National Security Agency subcontractor who leaked top-secret information about NSA surveillance activities. Or, you might think of Sherron Watkins, who warned Enron founder Kenneth Lay that the company faced financial doom if it didn’t clean up its disastrous accounting practices a few months before it came crashing down.

These well-known examples suggest that whistleblowing only happens in the government or in big, nationally recognized companies. That isn’t so. If you own a small company, one of your employees could become a whistleblower and, if that happens, you need to protect that employee in order to protect yourself.

A whistleblower is an employee who discloses any kind of information or activity about its employer that is deemed illegal, unethical, or not correct. The disclosure may be to a government or law enforcement agency, person with authority over the employee, or to another employee who has the authority to investigate, discover, or correct the situation. Employees who provide information or testify in an investigation, hearing, or inquiry are also considered whistleblowers.

Information that is disclosed by an employee working in a small company often includes not being paid properly, being made to work in unsafe conditions, or being harassed. This information is often provided to employers and supervisors or to government agencies, such as the Labor Commissioner, OSHA, or the Equal Employment Opportunity Commission. These kinds of complaints (whether provided internally or externally) might not seem like examples of whistleblowing, but they are.  Therefore, employers need to take them seriously and respond appropriately.

Unfortunately, employers often respond inappropriately when employees make complaints. Tom Devine, legal director with the Government Accountability Project, says that employers often view complaining employees “the same way that any animal views a threat” and respond defensively by taking adverse action against complainants such as terminating, demoting, relocating, or disciplining them.  In case you’re wondering, that’s considered to be retaliation and is illegal.

Think I’m exaggerating about employers often retaliating against complainants? Here are just a few examples of workplace retaliation in my home state of California:

Mark Ramijak, an account executive for FileNet Corp. in Costa Mesa, filed a claim with the Labor Commissioner for unpaid commissions. Shortly thereafter, his sales territory was reduced. Ramijak sued for retaliation and was awarded $2.7 million by the jury.

Herbert Alexander, a trucker with Skyway Inc., complained to his employer that his rig was leaking oil, had bald tires, and was infested with bedbugs. His employer then docked his pay for the cost of repairs and refused to give him more work. Alexander filed a Cal OSHA whistleblower lawsuit against the company, which settled for an undisclosed amount.

Regina Venegas, a dishwasher with The Good Fork restaurant in Morgan Hill, told the restaurant owner that a supervisor had flashed his buttocks at her. Venegas was subsequently told that the restaurant no longer had work for her. The EEOC sued on her behalf and the owner paid $20,000 to settle the suit.

What can employers do to prevent such lawsuits? Instead of getting back at employees for complaining, employers should encourage employees to voice their concerns to them, thank them for coming forward, and fix whatever problems they revealed as soon as possible.

Additionally, when employees inform employers about the misdeeds of their co-workers (such as working unsafely, theft, being under the influence, etc.), employers need to protect the identity of complainants as well as protect them from being retaliated against by other employees. A warning that getting back at the complainant in any way will result in disciplinary action is usually necessary.

Our DNA encourages us to fight when we feel threatened. However, the real way to survive in the working world is to protect complaining employees, not punish them.

Robin Paggi is the Training Coordinator at Worklogic HR.

She last wrote for us on  Managing Five Generations at Work, before that on Accommodating Religious Beliefs and before that on Politics and Workand before that on Emojis-A Workplace Communications Menace and before that on Alcoholism and the ADA in Employment. To read her previous columns, search Paggi in the search box at the top of this home page.

OSHA Updates Recommended Workplace Safety and Health Practices For First Time Since 1989

It’s been more than a quarter of a century since the federal government updated its recommended practices for workplace health and safety.

To reflect changes in the economy, workplaces, and evolving safety and health issues, the Occupational Safety and Health Administration on Tuesday released an updated set of recommendations. The agency said they  feature a new, easier-to-use format and should be particularly helpful to small- and medium-sized businesses.

Also new is a section on multi-employer workplaces and a greater emphasis on continuous improvement. Supporting tools and resources are included.

Key principles include: leadership from the top to send a message that safety and health is critical to the business operations; worker participation in finding solutions; and a systematic approach to find and fix hazards

The press release announcing the new recommendations is here.

Click here to read the new recommendations.

Agencies Warn HR About Hiring, Compensation Practices that Run Afoul of U.S. Antitrust Laws

HR has alot on its plate. Now add one more item: Whether their company’s hiring and compensation practices violate antitrust law.

I’ve taken the liberty here of quoting nearly verbatim today’s announcement from the Antitrust Division of the U.S. Justice Department and the Federal Trade Commission, since when these agencies speak it pays to listen.

“HR professionals are often in the best position to ensure their companies’ hiring practices comply with the law and this guidance will help educate and inform them about how the antitrust laws apply to the employment arena,” the agencies said.

Workers are entitled to the benefits of a competitive market for their services.  They are harmed if companies that would ordinarily compete against each other to recruit and retain employees agree to fix wages or other terms of employment or enter into so-called “no-poaching” agreements by agreeing not to recruit each other’s employees.

Naked no-poaching or wage-fixing agreements that are unrelated or unnecessary to a larger legitimate collaboration between the employers, DOJ threatens.  These types of agreements eliminate competition in the same irredeemable way as agreements to fix the prices of goods or allocate customers, which have traditionally been criminally investigated and prosecuted as hardcore cartel conduct.  Agreements that do not constitute criminal violations may still lead to civil liability under statutes enforced by both agencies.

“Antitrust violations in the employment arena can greatly harm employees and impact earnings over the course of their entire careers,” said Acting Assistant Attorney General Renata Hesse of the Justice Department’s Antitrust Division.  “HR professionals need to understand that these violations can lead to severe consequences, including criminal prosecution.  The newly released joint guidance provides HR professionals with information to prevent violations and report potentially unlawful activity, furthering the Justice Department’s commitment to protect workers from harmful conduct that stifles competition.”

“Competition is essential to well-functioning markets, and job markets are no exception,” said Chairwoman Edith Ramirez of the Federal Trade Commission.  “These guidelines will help ensure that employers understand how to comply with the antitrust laws and will help employees reap the benefits of a competitive market for their services.”

The guidance also discusses how the antitrust laws apply to firms’ decisions to share sensitive information, such as compensation information, with competing employers, either directly or through third party entities.  Information sharing may violate antitrust law unless the information exchange is carefully designed to prevent harm to competition.

The agencies’ joint guidance includes a Q&A section that explains how antitrust law applies to various scenarios that HR professionals might encounter in their daily work lives.  The agencies also urge HR professionals and others who have information about possible antitrust violations to contact the Justice Department Antitrust Division’s Citizen Complaint Center or the Federal Trade Commission’s Bureau of Competition.

The agencies have also issued a quick reference card that encapsulates some of this information in a convenient, index-card-sized format.  The card provides a list of antitrust red flags that HR professionals should look out for during their day-to-day work.  The listed situations are not exhaustive, and the existence of a red flag does not necessarily imply an antitrust violation.  Still, HR professionals should proceed with particular caution if they are confronted with any of the scenarios listed on the card.  By doing so, HR professionals can play an important role in protecting employees and consumers and ensuring the competitiveness of the employment marketplace.