Archive for June, 2017

EEOC: ‘Gentlemen’s’ Club Violated Title VII

Maybe real men don’t patronize clubs women perform provocative dances and shimmy up a poll, but if they want to work there they have every right to fair consideration under our employment laws.

A gentlemen’s club in Alabama that allegedly didn’t do that is in some hot water with the Equal Employment Opportunity Commission.

Gold, Inc., d/b/a Sammy’s Gentlemen’s Club, a gentlemen’s club in Fort Walton Beach, Fla., violated federal law by refusing to hire a male applicant because of his gender and by failing to maintain federally required employment records, the EEOC charged in a lawsuit filed on Thursday.

According to the EEOC’s lawsuit, on Oct. 5, 2015, James Sharp attempted to apply for a position as a bartender at Sammy’s Fort Walton Beach location after seeing an advertisement online. Sharp went to Sammy’s to apply in person, but the manager allegedly stated that Sammy’s did not hire male bartenders. Although Sharp had bartending and management experience, he was not allowed to apply for the position. Sammy’s subsequently hired at least two females for bartending positions at that location. According to the suit, during 2015 Sammy’s employed 17 females and no males in bartender positions at its Fort Walton Beach location.

Such alleged conduct violates Title VII of the Civil Rights Act of 1964, which prohibits employers from discriminating against any job applicant because of his or her sex. Also, the EEOC charged the company with failing to maintain employment applications and other records, as required by Title VII.

The agency seeks monetary damages, including back pay, compensatory and punitive damages, and injunctive relief to prevent further discrimination.

“Although sex-based discrimination against women may be more common than against men, employers must realize that no person, male or female, can be denied employment based on sex, except in the rare instances when gender is a bona fide occupational qualification,” said EEOC Regional Attorney Marsha L. Rucker. “When hiring decisions are made based on an applicant’s sex, the EEOC will act to enforce the federal laws that were enacted to prohibit such discrimination.

District Director Delner Franklin-Thomas added, “Gender discrimination in the workplace continues to be a major problem, even more than 50 years after Congress passed Title VII, which made it illegal nationwide. All job applicants deserve to be considered based on their qualifications and not their gender.”

 

 

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Labor Secretary, Franken Agree on Skills Gap

Perhaps amid the din of conflict in Washington, D.C., there is at least agreement on the need to better match skills to the jobs that need filling.

Labor Secretary Alexander Acosta and Senator Al Franken (D-Minn) are singing from the same song sheet.

On Twitter yesterday, this tweet from Acosta: Despite low unemployment, there are currently 6M open jobs. Demand-driven training is key to closing the

Acosta referenced a U.S. Chamber of Commerce study showing employers struggling to find qualified candidates for open jobs.

Right below is this treet from Franken: Traveling around MN, I’ve seen ground-breaking partnerships between schools & businesses that work to address , & they work well.

I’d say they are onto something. And it’s a conversation that HR and top company movers and shakers should be having also.

Read more on the topic here.

Overtime Rule on Standby Pending OMB Review

Looks like the U.S. Labor Department’s overtime rule is on thin ice.

The DOL yesterday sent a Request for Information related to the overtime rule to the Office of Management and Budget for its review. When published, the RFI offers the opportunity for the public to comment.

The rule, which increases the threshhold income for qualifying for overtime to $47,476, was to have gone into effect on December first of last year.

But there’s a new sheriff in town–President Trump, aided and abetted by his Labor Secretary Alexander Acosta, neither of whom have expressed much sympathy for the rule.

The rule focuses primarily on updating the salary and compensation levels needed for Executive, Administrative and Professional workers to be exempt. Specifically, the Final Rule:

  1. Sets the standard salary level at the 40th percentile of earnings of full-time salaried workers in the lowest-wage Census Region, currently the South ($913 per week; $47,476 annually for a full-year worker);
  2. Sets the total annual compensation requirement for highly compensated employees (HCE) subject to a minimal duties test to the annual equivalent of the 90th percentile of full-time salaried workers nationally ($134,004); and
  3. Establishes a mechanism for automatically updating the salary and compensation levels every three years to maintain the levels at the above percentiles and to ensure that they continue to provide useful and effective tests for exemption.

Additionally, the Final Rule amends the salary basis test to allow employers to use nondiscretionary bonuses and incentive payments (including commissions) to satisfy up to 10 percent of the new standard salary level.

The initial increases to the standard salary level (from $455 to $913 per week) and HCE total annual compensation requirement (from $100,000 to $134,004 per year) were to be effective on December 1, 2016. Future automatic updates to those thresholds will occur every three years, beginning on January 1, 2020.

For my prior posts on the overtime rule, start here.

DOL Seeks Second Postponement of Rule Requiring Electronic Reporting of Injuries

The Labor Department has proposed kicking the proverbial can down the road again for the Obama-era rule requiring electronic reporting of workplace injuries.

DOL’s  Occupational Safety and Health Administration today proposed a delay in the electronic reporting compliance date of the rule, Improve Tracking of Workplace Injuries and Illnesses, from July 1, 2017, to Dec. 1, 2017. The proposed delay will allow OSHA an opportunity to further review and consider the rule.

The agency published the final rule on May 12, 2016, and has determined that a further delay of the compliance date is appropriate for the purpose of additional review into questions of law and policy.  The delay will also allow OSHA to provide employers the same four-month window for submitting data that the original rule would have provided.

The rule originally was to have gone into effect on Jan. 1.

OSHA invites the public to comment on the proposed deadline extension. Comments may be submitted electronically at www.regulations.gov, the Federal e-Rulemaking Portal, or by mail or facsimile. See the Federal Register notice for details. The deadline for submitting comments is July 13, 2017.

Here’s some background on the final rule.

Six Figure FLSA Award Against Building Co.

A building company in Idaho is paying the price of not paying its workers overtime pay and taking money from their paycheck to pay for the cost of work tools, according to an announcement today from the U.S. Department of Labor.

U.S. Department of Labor Wage and Hour Division investigators found that Boise, Idaho-based Forge Building Company violated the Fair Labor Standards Act’s minimum wage and overtime provisions. The company – a provider of customized manufactured galvanized steel structures and storage facilities – failed to pay workers overtime at time-and-one-half for hours worked beyond 40 in a work week. In addition, the employer made illegal deductions from workers’ paychecks to recoup the cost of tools it required them to purchase. These deductions had the effect of lowering the workers’ pay below the federal minimum wage of $7.25 per hour.

In an agreement with the department, Forge will pay minimum wages to eight employees and overtime premium to 97 employees, with total back wages calculated at $358,601. The company also agreed to pay an equal sum of $358,601 in damages, totaling $717,202 for the workers.

Our investigation has discovered violations resulting in wages that these workers had rightfully earned,” said Wage and Hour Division District Director Thomas Silva. “This case allows us to level the playing field for all of the employers who play by the rules. We are dedicated to protect both workers and employers.”

Information: For more information about federal wage laws administered by division, call the agency’s toll-free helpline at 866-4US-WAGE (487-9243). Information also is available at http://www.dol.gov/whd.

Good Dough: $50K Settlement Closes EEOC National Origin Lawsuit Against NY Pizzerias

It’s a safe bet that conditions will improve for Hispanic employees at two mid-state pizzerias in New York.

A small group of pizzeria restaurants based in Wappinger Falls and Fishkill in Dutchess County, N.Y., will pay $50,000 and provide other relief to settle a national origin discrimination lawsuit, the Equal Employment Opportunity Commission (EEOC) announced on Thursday.

According to the EEOC’s lawsuit, Antonella’s Restaurant & Pizzeria, Inc., JTA, Inc., and Dellicap, LLC, doing business as Grand Centro Grill (collectively Antonella’s) discriminated against Hispanic employees by subjecting them to name calling, slurs, and creating and maintaining a hostile work environment because of their national origin. Antonella’s also unlawfully demanded that the workers speak only English in the workplace without a business reason for this requirement, the EEOC said.

The consent decree settling the suit, entered by U.S. District Judge Kenneth M. Karas on June 22, 2017, provides that Antonella’s will pay $50,000 for the discrimination victims. Also, the decree provides for extensive safeguards to prevent future discrimination by implementing anti-discrimination policies, training and problem-solving procedures.

“We are pleased that because of this settlement, Antonella’s will institute policies that were previously missing and may assist in preventing future discrimination,” EEOC Regional Attorney Jeffrey Burstein said.

EEOC New York District Director Kevin Berry added, “This case exemplifies the EEOC’s commit­ment to enforcing our laws when employers discriminate against any employees, including especially vulnerable, low-wage workers in a restaurant kitchen.”

Eliminating discriminatory policies affecting vulnerable workers who may be unaware of their rights under equal employment laws or reluctant or unable to exercise them is one of six national priorities identified by the agency’s Strategic Enforcement Plan. These policies can include disparate pay, job segregation, harassment and trafficking.

Can’t Take the Heat? Here’s OSHA’s Advice on Staying Safe While Working in Hot Weather

If your job requires you work outdoors, the Occupational Safety and Health Administration has advice on staying safe in extreme heat conditions such as much of the United States is experiencing now.

Follow this link for OSHA’s list of heat-related tips:

https://twitter.com/hashtag/HeatSafety?src=hash&ref_src=twsrc%5Etfw&ref_url=https%3A%2F%2Fwww.osha.gov%2F

The advice includes how to recognize the onset of heat-related illness; keeping water handy at all times to ward off dehydration; and being a buddy and recognizing heat illness in others.