Archive for November, 2016

EEOC Comes to Aid of Truck Driver Shunned Because He Took Medication for Bipolar Disease

The lull over Thanksgiving week with no new lawsuits filed by the Equal Employment Opportunity Commission ended today as the agency announced it has sued a trucking company for allegedly refusing to hire a job applicant because of his bipolar disorder.

According to the EEOC, Stevens Transport violated the Americans With Disabilities Act in its denial of employment to Bill Brown, a U.S. Air Force Veteran.

The lawsuit charges that Stevens, the largest refrigerated trucking company in Texas and one of the top four largest temperature-controlled carriers in the United States, told  Brown that he could not be hired as a truck driver for Stevens “per company policy” because of the medication he takes to control his bipolar disorder.

Brown presented a report from his medical provider indicating that he was safe to drive, but the physician with whom the company contracted to do medical examinations told him he could not be hired while on those medications.

However, there are no U.S. Department of Transportation (DOT) regulations prohibiting people on these medications from commercial truck driving, and Brown had completed an advanced truck driver training course and passed the DOT physical that is required to hold a commercial driver’s license (CDL). However, despite Brown’s qualifications to perform the job safely, Stevens refused to hire him, EEOC said.

Here’s the lawsuit in a nutshell: “The trucking company unlawfully refused to hire this qualified candidate, disregarding his physical exam results, his completion of training, his CDL and the positive report from his medical provider,” said EEOC Regional Attorney Robert A. Canino. “The company put up an unnecessary roadblock to Mr. Brown’s employment by discounting his skills and abilities as a driver when it turned him away.”

For more on the lawsuit, go here.

And for answers to common questions on how the ADA protects job applicants, click here.

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Fitness Company Throws In Towel, Settles DOL Findings It Overdeducted for Employee Uniforms

As post-election debate ensues about raising the minimum wage, the enforcement of the current minimum wage proceeds on a case-by-case basis.

There will be a little something extra in the paychecks of more than 15,000 employees of Minnesota-based Life Time Fitness Inc. after the company agreed to settle U.S. Department of Labor findings that the company took deductions for employee uniforms that resulted in them earning less than the minimum wage.

15,909 employees nationwide will split  total of $976,765 – $488,229 in back wages and an equal amount in liquidated damages, DOL announced todaytoday.

Here’s the important distinction the case makes: Employers are allowed to take deductions for the cost of uniforms, but those deductions cannot bring an employee’s earnings below the federal minimum wage (currently $7.25 an hour).

Under the settlement, the company also has to pay civil money penalties of $99,825 for violating the Fair Labor Standards Act.

Investigators found violations at the following locations:

  • Fridley, Minnesota: back wages of $2,757 due to 87 employees.
  • Lakeville, Minnesota: back wages of $7,895 due to 240 employees.
  • Roseville, Minnesota: back wages of $1,247 due to 36 employees.
  • Corporate-wide: back wages of $476,329 due to 15,546 employees at locations in 26 states.

Based in Chanhassen, Minnesota, the Healthy Way of Life Company is a privately held, health and lifestyle company. As of October 2016, the company operates 122 centers in 26 states and 35 major markets in the U.S. and Canada under the Life Time Fitness and Life Time Athletic brands.

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Safeway Store Must Re-Hire, Accommodate Disabled Worker Under Terms of ADA Settlement

Had a Safeway store in Westminster, Md., done a little bit more to accommodate an employee with a lifting restriction, maybe it would have avoided being sued for disability discrimination by the Equal Employment Opportunity Commission.

And the $27,000 settlement that ensued–and the other court-imposed conditions that attached.

According to the suit, Patricia Bonds worked as a food clerk at Safeway’s Westminster, Md., store when she sustained a work-related injury that substantially limited her in her lifting ability. Although Safeway initially accommodated Bonds’ disability by reassigning her to work at the customer service desk, the store abruptly placed her on indefinite unpaid leave, claiming that she had exhausted her time limits for modified duty. EEOC charged that Safeway refused to observe its legal duty to provide a reasonable accommodation and then unlawfully fired Bonds because of her disability.

In addition to the $27,000 in monetary relief, the three-year consent decree resolving the suit requires Safeway to rehire Bonds with her continued seniority status and to provide her with a hand scanner or other reasonable accommodation to allow her to perform the food clerk job duties.

An accommodation would have been less costly for the company.

As was pointed out in the settlement announcement, acording to the Job Accommodation Network (JAN), a service from the U.S. Department of Labor’s Office of Disability Employment Policy, a high percentage (59%) of accommodations cost absolutely nothing to make, while the rest typically cost only $500. Available resources to learn about reasonable accommodations include http://askjan.org and www.eeoc.gov.

Cultural Diversity Workshops

Thanksgiving weekend–when families of diverse origins gather around the festive table–seems the ideal moment to explore cultural diversity. Our resident blogger HR expert Robin Paggi discusses how employers and employees can get the most out of cultural diversity workshops.

Cultural Diversity Workshops

I participated in my first cultural diversity activity when I was in the fourth grade. Our teacher had all the students with brown or dark eyes stand on one side of the room, then had all the students with blue or light eyes stand on the other side. I stood in the middle of the two groups not knowing where to go because I have a brown eye and a blue eye. Everyone stared at me and the teacher, unprepared for this little snafu, fumbled around trying to figure out what to do. I don’t remember what happened next, but I do remember learning that I didn’t like cultural diversity activities.

Ironically, one of the things I do now is teach cultural diversity workshops. And, I would venture to guess that most of the participants in those workshops are initially unhappy their employers made them attend. “Why do we have to listen to some lady drone on about respecting other cultures?” they probably wonder. “We already learned that in fourth grade!”

One reason such workshops are beneficial is because we often don’t understand what culture is or what it does to us. Culture, according to dictionary.com, is the sum total of ways of living built up by a group of human beings and transmitted from one generation to another. In other words, we are taught how to behave, what to value, and how to celebrate by the elders of our group.

My culture taught me that it’s ok to talk about money, that pets are valued family members that are welcome on the furniture, and that Christmas presents are to be opened on Christmas morning. My husband’s culture taught him that it is uncouth to talk about money, that pets are animals that live outside, and that Christmas presents are opened on Christmas Eve while eating pizza (heathens!).

I’m only partly kidding about calling them heathens. That’s what our culture does to us. It teaches us that our way is the right way and people who do things differently are doing them wrong.

One workshop participant challenged me about that last statement a few years ago. She said she didn’t think her way of doing things was right and others were wrong for doing things differently because she was very open-minded. I asked whether she thought everyone should be open-minded. She answered “yes.” I pointed out that thinking everyone should be open-minded like her was essentially a “my way is the right way” mentality too.

I ran into that participant about a year ago. She told me that conversation was a mind-altering experience for her. That’s what cultural diversity workshops can do.

Author Charles F. Glassman said, “In a few seconds, we judge another person and think we know them. When, the person we’ve lived with the longest, we still don’t know very well—ourselves.”

We know that we’re supposed to treat people of other cultures with respect (or at least not harass or discriminate against them). But do we realize the impact our own culture has had on our worldview? Do we realize how often we tend to disparage others for doing things differently (even when they’re married to us)? The answer to those questions is usually “no.”

Cultural diversity workshops should mostly help us learn about ourselves. If you’re not inclined to attend one, just have a conversation about the things your culture taught you that differs from what others were taught. Be prepared though, because it could alter your mind.

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 Work and 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.

Don’t Pass the Salt: Diversifying Effort Gone Awry Costs Employer $50K in EEOC Settlement

A car detailing business in Oklahoma should have “held the salt” rather than attempt to sprinkle a little on its workforce by diversifying it.

According to the Equal Employment Opportunity Commission, sprinkling the salt for this company meant firing African American employees and replacing them with white and Hispanic employees.

The EEOC’s lawsuit charged that the area manager of On Sight K.C. LLC,  which performed automobile detailing services for Joe Cooper Ford in Midwest City, Okla., told Douglas Williams, the African-American manager of its detailing crew at Joe Cooper Ford, that On Sight wanted to “sprinkle a little salt” at the worksite.

The area manager explained that he meant terminating black employees and replacing them with “whites and Mexicans.” Within a few days, Williams was demoted and replaced by a Hispanic manager, who then fired three African-American detailers and hired one Hispanic and two Caucasian employees.

On Site is paying $50,000 to settle this race discrimination lawsuit, the EEOC announced on November 15.

After EEOC began its investigation, On Sight dissolved its business and divided its clients between OnSite Solutions, LLC and two other related entities. The three companies shared a combination of owners, employees, and clients with the original On Sight. EEOC’s claims against the other two defendants – Dealership Management Services, Inc., and DMS-OK, Inc. – are still pending and were not resolved by this consent decree.

“After decades of civil rights law enforcement, racism in the workplace remains a persistent problem,” said James R. Neely, Jr., director of EEOC’s St. Louis District Office. “Regardless of an employer’s personal beliefs, or the preferences of their clients, they may not make employment decisions based on race.”

Andrea G. Baran, regional attorney for EEOC’s St. Louis District, said, “The Civil Rights Act of 1964 remains as relevant today as when it was enacted. And when employers violate the law, they may not evade liability for their discriminatory conduct by corporate restructuring.”

Spike in Trench Collapse Deaths This Year

Most workers can be thankful on this Thanksgiving Day that they work in safe workplaces.

It’s another story, however, for employees who work in trenches. This year is notable for a lack of safety.

The Occupational Safety and Health Administration earlier this week its Cleveland office has opened an investigation after learning a 28-year-old employee of W.F. Hann & Sons was injured while installing sewer lines in an 8-foot trench in Seven Hills on Nov. 19, 2016.

While working in the trench at approximately 1:30 p.m., the soil suddenly shifted, and the trench walls around him collapsed – burying him in an estimated 14,000 pounds of dirt. The force of the soil was so great that it shattered a piece of 4 x 8 inch thick strand board the company used for shoring. A co-worker dug him out of the trench quickly and saved the man’s life. The Seven Hills Fire Department responded to the 911 call and transported the employee to Metro Hospital.  His condition is unknown.

Since January, trench collapses have killed 23 workers and injured 13.

In a related incident, OSHA reported that an agency inspector saw a worker in a 15-foot deep unprotected trench in Berea today and ensured he was removed from danger. The agency has opened an investigation of the man’s employer – Trax Construction Co. of Wickliffe – as a result.

I pray workplace safety will be a priority of the incoming Trump Administration.

Here’s OSHA’s announcement of the investigation.

DOL’s New Overtime Rule Blocked For Now

That sigh of relief that many companies were breathing today was from the news that a federal judge in Texas has blocked the Labor Department’s new overtime rule.

The ruling issued by U.S. District Judge Amos Mazzant in the Eastern District of Texas on Tuesday prevents the rule from going into effect December 1 (next week). But it may not be the last word. It merely buys the court some breathing room to consider the merits of the lawsuit to jettison the rule.

The rule would double the salary exemption from overtime from $23,660 a year to $47,476, meaning that executive, professional and administrative employees who make below that salary and will be entitled to overtime if they work more than 40 hours a week.

DOL would update the salary threshold every three years; the proposed rule had called for the threshold to be indexed annually depending on the inflation rate.

Employer could adapt to the rule by:

  1. pay time and a half for overtime work;
  2. raise workers’ salaries above the new threshold;
  3. limit workers’ hours to 40 per week; or
  4. some combination of the above.