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.”

 

 

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.

 

Trench Cave-Ins Bedevil Missouri Contractor

The federal government’s workplace safety watchdog is shining a light on the unprotected trenches in use by a Missouri plumbing contractor.

A month after a 33-year-old worker died while working in an unprotected trench, U.S. Department of Labor Occupational Safety and Health Administration inspectors found another employee of the same Missouri plumbing contractor working in a similarly unprotected trench at another job site, the agency announced on June 19.

OSHA determined that, in both cases, Arrow Plumbing LLC of Blue Springs failed to provide basic safeguards to prevent trench collapse and did not train its employees to recognize and avoid cave-in and other hazards. Trench collapses are among the most dangerous hazards in the construction industry. In 2016, OSHA received reports of 23 deaths and 12 injuries nationwide in trench and excavation operations. In the first five months of 2017, 15 deaths and 19 injuries have been reported nationwide.

“We call on all employers involved in excavation work to review their safety procedures, and to ensure that all workers are properly protected and trained on the job,” said Kimberly Stille, the U.S. Department of Labor’s Occupational Safety and Health Administration’s Regional Administrator in Kansas City, Missouri. “We support the efforts by the National Utility Contractors Association  to raise awareness of trenching hazards in the U.S.”

OSHA opened its first investigation of Arrow Plumbing after a 33-year-old employee died on Dec. 15, 2016, when a 12-foot trench collapsed at a home construction site in Belton. A second investigation began on Jan. 20, 2017, at a Kansas City work site where inspectors found the contractor’s employees working in an unprotected trench at another residential work site. No employees were injured there.

OSHA found similar violations at both work sites, and they included the company’s failure to install a support system to protect employees in an approximate 12-foot-deep trench from caving-in; training workers on how to identify hazards in trenching and excavation work, and providing a ladder at all times so employees could leave a trench.

Overall, OSHA cited Arrow Plumbing for six willful and eight serious violations of workplace safety standards and proposed $714,142 in penalties.

The citations for the Dec. 15, 2016, fatality inspection may be viewed here. Citations for the Jan. 20, 2017, inspection can be viewed here. Learn more about the OSHA inspection process here.

NUCA, with the support of OSHA, is sponsoring a Trench Safety Stand-Down Week from June 19 to 24, to educate and encourage employers and workers on  precautions. NUCA is requesting all contractors, municipalities, military and others involved with trenching operations to hold a stand-down. Resources and more information are available at www.nuca.com/tssd. A poster for the event is also available.

OSHA provides the construction industry and others with guidance on trenching and excavations. Trenching standards require protective systems on trenches deeper than 5 feet, and soil and other materials kept at least 2 feet from the edge of trench. An e-tool covering safety procedures is available here.

OSHA also provides “Recommended Practices for Safety and Health Programs” advice to the business community. In addition, the agency offers compliance assistance, tips, consultation for small- and medium-sized businesses, educational materials, training and other information to employers and workers on common workplace safety hazards and how to prevent illness and injury.

Each state has its own On-site Consultation Program. This confidential safety and health consultation program is targeted toward smaller businesses primarily; employers can find out about potential hazards at their workplace, improve programs already in place and even qualify for a one-year exemption from routine OSHA inspections. Information is available at www.osha.gov/consultation.

To ask questions, obtain compliance assistance, file a complaint, or report amputations, eye loss, workplace hospitalizations, fatalities or situations posing imminent danger to workers, the public should call OSHA’s toll-free hotline at 800-321-OSHA (6742) or one of the federal offices including: Des Moines at (515) 284-4702, Kansas City at (816) 502-0312, Omaha at (402) 553-0174, St. Louis at (314) 425-4255, Wichita at (316) 269-6646.

 

Labor Department Initiative Aims to Reduce Fatalities Among Less Experienced Coal Miners

A new initiative announced by the U.S. Labor Department’s Mine Safety and Health Administration on Monday seeks to reduce the number of workplace deaths of less experienced coal miners.

On June 12, the agency began informing mine operators of the Training Assistance Initiative’s planned launch, and encouraged them to participate and provide information about miners hired within the previous 12 months, and those in their current job for 12 months or less. With this information, MSHA can better focus its resources on the greatest fatality and injury risks.

“Of the eight coal mining fatalities so far in 2017, seven involved miners with one year or less experience at the mine, and six involved miners with one year or less experience on the job,” said Patricia W. Silvey, deputy assistant secretary of labor. “We at MSHA will be working closely with mine operators and miners to eliminate these fatalities.”

Staff from the agency’s division of Coal Mine Safety and Health and training specialists from Educational Field and Small Mine Services will conduct these visits to coal mines. Among their objectives are the following:

  • Review the approved training plan posted at the mine to ensure that all information is up to date, and the most recently approved plan is posted.
  • Talk to and observe work practices of miners with one year or less experience at the mine to evaluate the effectiveness of the mine operator’s new miner and experienced miner training program.
  • Talk to and observe work practices of miners with one year or less experience performing their current job to evaluate the effectiveness of the mine operator’s task training program.
  • Identify deficiencies and offer suggestions in training.
  • Work with mine operators to improve their training programs.

MSHA personnel may ask operators to allow miners with more experience at the mine to accompany agency personnel during interactions with miners who have less experience.

The initiative runs through Sept. 30, 2017.

Employer’s “Primary Caregiver” Leave Policy Is Title VII Violation, Dad Argues in EEOC Complaint

JP Morgan Chase’s parental leave policy violates Title VII of the 1964 Civil Rights because it disadvantages new fathers, according to a complaint filed last week with the Equal Employment Opportunity Commission.

The policy in question offers more generous leave for the parent designated as the “primary caregiver.” This is presumed to be the mother, unless the father can show that the mother has returned to work or is medically unable to care for the baby.

Chase’s policy gives up to 16 weeks of paid parental leave to the primary caregiver, but only 2 weeks to the secondary caregiver.

Derek Rotondo, an employee of Chase, wanted the longer leave following the birth of his second child. But he couldn’t convince Chase that the primary caregiver, his wife, either was back at work or incapable of caring for the newborn.

As a teacher, she has the summer off, so clearly wasn’t back at work. Nor was she incapable of caring for the baby.

Rotondo’s complaint argues that under U.S. Supreme Court and EEOC rulings, employers must make caregiving leave available on equal terms to men and women.

The American Civil Liberties Union and the employment law firm Outten & Golden filed the complaint on Rotondo’s behalf.