Archive for April, 2017

DOL Recovers $3K for Fired Service Member

The U.S. Department of Justice came to the rescue of a member of the Air National Guard who was denied reemployment in her civilian job following her tour of duty.

Staff Sgt. Anber Ishmael’s military service was a motivating factor in BioFusion’s decisions to deny her request for remployment and to terminate her employment, the DOJ alleged.

Those actions were violations of the Uniformed Services Employment and Reemployment Rights Act, the DOJ charged. That law safeguards the rights of uniformed servicemembers to return to their civilian employment following absences due to military service obligations and protects servicemembers from discrimination on the basis of their military obligations.

DOJ said that the company agreed to pay $3,000 in backpay to settle the matter.

The DOJ’s announcement of the settlement was silent on whether Ishmael will get her job back.

“The United States has a solemn obligation to ensure that those selfless Americans who serve in the nation’s Armed Forces enjoy every opportunity to advance their civilian careers,” said Acting Associate Attorney General Jesse Panuccio.  “The Department of Justice will be unwavering in protecting the rights of our nation’s service members and we will continue to hold accountable employers who violate those rights.”

EEOC Recovers $380K for Regional Manager Fired by Employer Because He Had Cancer

An employer is paying big because it fired a regional manager who had cancer.

The Equal Employment Opportunity Commission announced yesterday the settlement of this Americans With Disabilities Act lawsuit against IDEX Corporation, a Lake Forest, Ill.-based manufacturer and supplier of fluidics systems with locations nationwide.

The commission filed this suit in 2015, alleging that during the period the regional manager was being treated for cancer of supervisors repeatedly asked the manager invasive questions about his illness and questioned his ability to perform job tasks.

Eventually they fired him because of his disability of cancer, the EEOC charged.

IDEX is paying $380,000 to settle the suit, the commission said.

“The conduct in this case is a shocking reminder of why the Americans With Disabilities Act is such a critical law,” said EEOC Miami District Director Michael Farrell. “Situations like this demonstrate why the EEOC’s law enforcement responsibilities are so important in today’s workplace.”

Bank of American Settlement With DOL Closes Books on Quarter-Century Old Race Bias Case

It took almost a quarter century, but Bank of America has settled a legacy race bias case that the U.S. Labor Department filed against its predecessor NationsBank.

The U.S. Labor Department on Monday announced that Charlotte-based BOA has agreed to pay $1 million in back wages and interest to 1,027 applicants for North Carolina clerical, teller and administrative positions a generation ago.

The U.S. Labor Department alleged that NationsBank systematically discriminated against black applicants for entry-level jobs. The jobs were for North Carolina clerical, teller and administrative positions.

NationsBank merged with the Bank of America, N.A. in 1998.

African-American job seekers who applied for an entry-level position at NationsBank’s Charlotte facility in 1993 and were not hired are invited to visit the DOL’s website at http://www.dol.gov/ofccp/CML/index.htm, where they can also find information about this and other recent OFCCP settlements, or call 855-216-0427.

The banks are subject to nondiscrimination requirements enforced by DOL because they handle federally-insured deposits.

For more on the settlement, click here.

Roadside Assistance Company Settles U.S. DOJ Allegations It Violated Work Authorization Rules

The debate in Washington, D.C. over immigration policy is at a standstill. However, the day-to-day grind of enforcing our current immigration laws continues. There’s a lesson here for employers not to impose paperwork requirements on employees that go beyond what current law allows.

The Justice Department announced on April 6 it had reached an agreement with Brickell Financial Services Motor Club, Inc., d/b/a Road America Motor Club, Inc. (Road America), headquartered in Miami, Florida. The settlement resolves the department’s investigation into whether the company violated the Immigration and Nationality Act (INA) by discriminating against work-authorized immigrants when verifying their work authorization.

The DOL said its investigation found that Road America routinely requested that lawful permanent residents show their Permanent Resident Cards to prove their work authorization but did not request specific documents from U.S. citizens. Lawful permanent residents often have the same work authorization documents available to them as U.S. citizens, and may choose acceptable documents other than a Permanent Resident Card to prove they are authorized to work. The investigation further revealed that Road America required lawful permanent resident employees to re-establish their work authorization when their Permanent Resident Cards expired, even though federal rules prohibit this practice. The antidiscrimination provision of the INA prohibits employers from subjecting employees to unnecessary documentary demands based on the employees’ citizenship or national origin.

“When verifying the work authorization of employees, employers may not erect unnecessary barriers based on employees’ citizenship or national origin,” said Acting Assistant Attorney General Tom Wheeler of the Civil Rights Division. “Employers must ensure they are aware of their legal obligations to avoid discrimination, and we applaud Road America for committing itself to do so through this settlement.”

Under the settlement, Road America will pay a civil penalty of $34,200 and pay $1,044 to compensate a worker who lost wages due to its unfair documentary practices. Road America has also agreed to post notices informing workers about their rights under the INA’s antidiscrimination provision, train their human resources personnel, and be subject to departmental monitoring and reporting requirements.

The division’s Immigrant and Employee Rights Section (IER), formerly known as the Office of Special Counsel for Immigration-Related Unfair Employment Practices, is responsible for enforcing the antidiscrimination provision of the INA. The statute prohibits, among other things, citizenship, immigration status, and national origin discrimination in hiring, firing, or recruitment or referral for a fee; unfair documentary practices; retaliation and intimidation.

EEOC: Car Wash Company Wouldn’t Promote Qualified Black Employees to Management Jobs

The Equal Employment Opportunity Commission is going to bat for black employees for a national car wash company who claim they were denied promotions to management positions in favor of less qualified and experienced white applicants.

According to the EEOC’s suit, Car Wash Headquarters, Inc. d/b/a Mister Car Wash d/b/a Mister Hot Shine Car Wash, repeatedly refused to advance qualified African-American employees to management positions at its Birmingham, Ala.-area locations. Antonio Purdom, Walter Gibson, Marcus Kidd, and Anthony Graham, along with a class of black employees, repeatedly expressed interest in management positions that became available from 2013 to the present. The men had been working in various positions at the company’s two Birmingham locations since as early as 2003 and were qualified for promotion, the EEOC said. However, despite their qualifications, the company rejected each of the black employees for management positions and instead promoted less qualified and less experienced whites.

“Employers cannot make personnel decisions based on an employee’s race,” said Marsha Rucker, regional attorney for the EEOC’s Birmingham District Office. “Employers who allow race to motivate their workplace decisions are violating their employee’s rights, and the EEOC will take action to enforce federal law and stop this harmful and self-defeating practice.”

The EEOC announced the filing of the lawsuit on March  30.

$1.4M in Penalties Sought Against Mass. Contractor for Worker Deaths in Trench Collapse

Their lives can’t be brought back, but at least their employer should be held accountable for the unsafe work conditions that led to their deaths.

That’s the lesson from an investigation by the Labor Department’s Occupational Safety and Health Administration into the October 2016 collapse of a construction trench in Boston.

Two employees–Robert Higgins and Kelvin Mattocks–died on Oct. 21, 2016, in Boston, when the approximately 12-foot deep trench in which they were working collapsed, breaking an adjacent fire hydrant supply line and filling the trench with water in a matter of seconds.

OSHA found that the employer Atlantic Drain Service Co. Inc., failed to provide basic safeguards against collapse and did not train its employees–including Higgins and Mattocks–to recognize and avoid cave-in and other hazards.

“The deaths of these two men could have and should have been prevented. Their employer, which previously had been cited by OSHA for the same hazardous conditions, knew what safeguards were needed to protect its employees but chose to ignore that responsibility,” said Galen Blanton, OSHA’s New England regional administrator.

OSHA’s inspection determined that Atlantic Drain and owner Kevin Otto, who oversaw the work on the day of the fatalities, did not:

  • Install a support system to protect employees in an approximately 12-foot deep trench from a cave-in and prevent the adjacent fire hydrant from collapsing.
  • Remove employees from the hazardous conditions in the trench.
  • Train the workers in how to identify and address hazards associated with trenching and excavation work.
  • Provide a ladder at all times so employees could exit the trench.
  • Support structures next to the trench that posed overhead hazards.
  • Provide employees with hardhats and eye protection.

As a result, OSHA has cited Atlantic Drain for a total of 18 willful, repeat, serious and other-than-serious violations of workplace safety standards and is proposing $1,475,813 in penalties for those violations. OSHA cited Atlantic Drain trenching worksites for similar hazards in 2007 and 2012. The full citations can be viewed here.

In February, a Suffolk County grand jury indicted Atlantic Drain and company owner, Kevin Otto, on two counts each of manslaughter and other charges in connection with the deaths. OSHA and the department’s Regional Office of the Solicitor worked with the department’s Office of the Inspector General, the Boston Police Department’s Homicide Unit and the Suffolk County District Attorney’s Office during the course of this investigation.

And here are the agency’s parting words on trenches and the hazards they pose:

The walls of an unprotected trench can collapse suddenly and with great force, trapping and engulfing workers before they have a chance to react or escape. Protection against cave-in hazards may be provided through shoring of the trench walls, sloping the soil, or by using a protective trench box. Employers must ensure that workers enter trenches only after adequate protections are in place to address cave-in hazards. More information about protecting employees in trenches and excavations can be found here and here.

“We want to emphasize to all employers that trenching hazards can have catastrophic consequences if they are not addressed effectively before employees enter a trench,” said Blanton.

The penalties were announced on April 12.

Employee Fired for Complaining of Harassment Receives $35K in Settlement of EEOC Lawsuit

Repeat after me: Thou shalt not fire an employee because he or she complained of sexual harassment.

That’s what ABL Management, Inc., a Baton Rouge, La.-based food management company, did when informed by a male employee that he’d been harassed by a male supervisor, the Equal Employment Opportunity Commission alleged.

According to the EEOC’s lawsuit, ABL assigned employee Duane Gatson to serve as a kitchen supervisor at the Bay County Jail Facility in Panama City, Fla. While working in an isolated food storage area, Gaston was approached and groped by a male kitchen manager, the EEOC said. Thereafter, Gatson reported the offending conduct to his immediate supervisor. Following his report, he was advised that the company would conduct an investigation regarding his charges. However, within several weeks of making his report of sexual harassment, ABL fired Gaston as retaliation for complaining, the EEOC said.

Rather than fight in court, the employer agreed to settle the lawsuit for $35,000, the EEOC announced on April 10.