Archive for April, 2017

Mass. Companies Were Single Employer at Dangerous Worksite, OSHA Judge Rules

Two Massachusetts contractors are a single employer responsible for their employees’ safety, an administrative law judge at the Occupational Safety and Health Administration ruled.

The ALJ issued the ruling against A.C. Castle Construction Co. Inc. and Daryl Provencher, doing business as Provencher Home Improvements – were operating as a single employer.

Three employers were injured at a worksite in Wenham, Mass., operated by the companies in October 2014.  A.C. Castle contended that, as general contractor, it was not responsible for the safety of the workers on the jobsite, asserting that they were employed by Provencher.

But the ALJ, Sharon Calhoun found differently. Factors she cited for her ruling were:

  • A.C. Castle’s checking to ensure that workers were tied off,
  • its responsibility for safety on its worksites;
  • its ability to fire or discipline workers;
  • its directions to Provencher concerning the size of the crew;
  • the presence of A.C. Castle signs and the lack of Provencher signage at worksites, and
  • A.C. Castle’s representing that it had no subcontractors when applying for building permits.

Judge Calhoun’s decision upheld the bulk of the citations and determined that A.C. Castle is responsible for paying $173,500 in penalties. The claims against Provencher were extinguished due to his death in December 2016.

Read more about the ruling here.

EEOC Rips Employer Under ADA for Firing Employee Who Wouldn’t Cancel Overseas Trip

How’s this for acting on fear rather than evidence? The Equal Employment Opportunity Commission is suing an employer it says fired an employee because she wouldn’t cancel her trip to Ghana.

According to the EEOC, officials at STME LLC, which operates a Massage Envy franchise in south Tampa,  insisted Kimberly Lowe cancel her approved vacation plans because they feared her travel would lead to a potentially catastrophic outbreak of Ebola in the United States, and fired her when she refused to do so. The EEOC said that the company discharged Lowe because it regarded her as disabled based on its unfounded fears and beliefs about Ebola in Ghana and the risk that she would contract Ebola on her trip.

“Making employment decisions based on perceptions of disability clearly violates federal civil rights law,” said the EEOC’s Tampa Field Director Evangeline Hawthorne. “All employers need to be aware that the EEOC will continue to enforce the ADA vigorously.”

“In passing the Americans with Disabilities Act, Congress sought to protect people from being discriminated against based on unsubstantiated fears, myths, and unfounded stereotypes about actual or perceived disabilities,” added Robert Weisberg, regional attorney for the Miami District Office. “The employer conduct which the EEOC found in this case flouts the fundamental purpose of that very important law.”

Bad Breaks: Car Parts Manufacturer Hit Reverse on Religious Accommodation, EEOC Suit Alleges

A change in supervisors at a car parts manufacturer led to the pulling of a religious accommodation for a Sabbath-observant employee–and that led to the Equal Employment Opportunity Commission getting involved.

The EEOC announced yesterday that it has filed a religious discrimination lawsuit under Title VII of the 1964 Civil Rights Act against Decostar Industries, Inc., a manufacturer and supplier of automotive parts based in Carrollton, Ga.

According to the EEOC’s suit filed yesterday, Decostar violated federal law by firing Dina Lucas Velasquez rather than accommodating her religious beliefs. Sometime in 2010, Decostar required all employees to work mandatory overtime hours on designated Saturdays.

Line worker Velasquez requested that she be excused from working Saturdays due to her religious belief that she cannot work during her weekly Sabbath, which she observes from sundown Friday until sundown Saturday. The EEOC said that Decostar initially granted Velasquez’s request until January 2014, when a new supervisor took over her department and denied her ongoing request for a religious accommodation. Decostar subsequently discharged Velasquez on Oct. 27, 2014.

“The EEOC remains vigilant in enforcing the mandates of federal law requiring employers to properly consider all requests and to grant accommodations to sincerely held religious beliefs,” said Antonette Sewell, regional attorney for the EEOC’s Atlanta District Office.

Bernice Williams-Kimbrough, district director for EEOC’s Atlanta District Office, added, “Unfortunately, employers refusing time off for religious observances has become an increasingly common issue affecting the workforce. We hope that suits like this will help educate employers on their responsibilities to respect workers’ religious needs.”

Here’s a refresher from the EEOC on the do’s and dont’s of religious discrimination and accommodation.

EEOC Recovers $60K for African American Employees Fired Over Time Card Dispute

Workplace rules–and the consequences for violating them–must be applied to all employees without regard to race.

A Midwest cabinetmaker learned that this week when the Equal Employment Opportunity Commission announced it had settled a racial discrimination lawsuit against the company under Title VII of the 1964 Civil Rights Act.

According to the EEOC, at Profile Cabinet and Design, a Kansas City, Mo., custom cabinetmaker, violated federal law by discriminating against two employees, Brandon Fitzpatrick and Theopilis Bryant, because of their race.  The EEOC charged that the company fired both men, who are African-American, for allegedly falsifying Bryant’s time card, even though there was evidence that a white employee, who was not fired, was the one responsible for the time card issue.

Employers must take affirmative steps to ensure that workplace decisions are made without respect to race,” said James R. Neely, Jr., director of EEOC’s St. Louis District Office. “Holding employees to different standards of conduct based on race is unlawful, and the EEOC will continue to combat it.”

The price of the settlement? $60,000 in back wages to the victims of the racial discrimination.

Employer Settles Retaliation Suit Alleging It Wouldn’t Rehire Harassment Complainers

Here’s a timely reminder: It’s against the law to retaliate against employees for complaining about discrimination even if you weren’t the employer that did the discriminating.

A school meals provider in Phoenix learned that lesson as the Equal Employment Opportunity Commission announced yesterday it had settled a Title VII retaliation suit against the company.

According the lawsuit, Better 4 You Breakfast violated Title VII of the Civil Rights Act of 1964 by retaliating against five Phoenix employees who had opposed unlawful sexual harassment and participated in an EEOC investigation of that harassment.

Better 4 You Breakfast had no role in the harass­ment against these employees; however, the EEOC charged that the company refused to rehire the five emp­loyees because they had engaged in the protected activity.

So for $62,500, the provider puts this lawsuit behind it.

“Retaliation for participating in protected activity in the workplace cannot be allowed,” said EEOC Phoenix District Office Regional Attorney Mary Jo O’Neill. “In this case, these employees were not allowed to return to work because they asserted their right to oppose harassment in the workplace. We are pleased that Better 4 You worked cooperatively with us to resolve the claims against them and to evaluate its policies and training on retaliation.

Squishy Boxspring: Matress Co. to Pay $175 to Settle Racial Harassment Charges Filed by EEOC

It’s going to cost a major mattress manufacturer a bundle of money to put allegations of racial harassment behind it.

That’s the word from the Equal Employment Opportunity Commission, which charged Sealy of Minnesota with subjecting African American and Hispanic employees to a racially hostile environment.

The offensive actions included  noose, a Ku Klux Klan hood and racist epithets and jokes. Despite complaints by employees to Sealy’s senior management, the offensive conduct did not cease, the EEOC charged.

The company agreed to pay $175,000 to settle, the commission announced on Friday.

“Sealy now understands that it is not enough for an employer to have an anti-harassment policy,” said Julie Schmid, acting director of the EEOC’s Minneapolis Area Office. “An employer must have an effective policy, respond to allegations promptly, and take immediate and appropriate corrective action to end the discrimination.”

A Real Pain: Dental Trade Association Shells Out $1.95M to Settle Title VII, ADA Retaliation Charge

Ouch! The American Dental Association might need to take an anesthetic for this one.

The association will pay $1.95 million to resolve charges that it violated Title VII of 1964 Civil Rights Act and the Americans With Disabilities Act by retaliating against its former chief legal counsel and HR director because they complained about discrimination to the association’s board of directors, the Equal Employment Opportunity Commission announced on Friday.

The statement on the settlement from the association read:

The American Dental Association is pleased to be able to reach this amicable resolution of the allegations raised by Tamra Kempf and the former director of HR, and sincerely regrets the events that led to this dispute. Ms. Kempf and the former director of HR were dedicated and loyal employees whose primary motivation was the protection and furtherance of the interests of the association. As sometimes happens in business, differences arose between them and other members of the management team as to how various issues should be approached and handled, but this does not diminish the value of the many contributions that each made to the American Dental Association during their tenure. The associ­ation regrets that its actions led them to believe that they were retaliated against, and apologizes for any conduct that they may have construed as retaliation.

“The position of EEOC is that human resources professionals and in-house lawyers who advise their employers to abide by anti-discrimination laws are engaged in protected activities, and any retaliation against them for doing so is illegal,” said Julianne Bowman, director of EEOC’s Chicago’s District Office which oversaw the investigation.