Labor Dept. OT Rule Due for Makeover

It doesn’t come as any great shock that President Trump’s Department of Labor is recalling the overtime rule for second look.

The U.S. Department of Labor yesterday announced plans to undertake new rulemaking with regard to overtime.

On July 26, 2017, the Department of Labor published a Request for Information (RFI) regarding the Overtime Final Rule, which was published on May 23, 2016, asking for public input on what changes the Department should propose. That comment period has ended and the Department is reviewing those submissions.

On August 31, 2017, U.S. District Court Judge Amos Mazzant granted summary judgment against the Department of Labor in consolidated cases challenging the Overtime Final Rule. The court held that the Final Rule’s salary level exceeded the Department’s authority, and concluded that the Final Rule is invalid.

On October 30, 2017, the Department of Justice, on behalf of the Department of Labor, filed a notice to appeal this decision to the U.S. Court of Appeals for the Fifth Circuit. Once this appeal is docketed, the Department of Justice will file a motion with the Fifth Circuit to hold the appeal in abeyance while the Department of Labor undertakes further rulemaking to determine what the salary level should be.

Here’s a post I did on the rule when it was proposed.

Texas Union Forks Over $30K in Settlement of EEOC Suit On Behalf of Fired Black Organizers

Local 100 of the United Labor Unions, a multi-state service workers’ union, has agreed to pay $30,000 in lost wages and damages to settle a race discrimination suit filed by the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency announced today.

According to the EEOC’s lawsuit, the union fired Maurice Roberts and Rosalind Holt because of their race. Both had been hired by the union in May 2014 to recruit public school employees in Houston. The EEOC said that they were terminated supposedly for not recruiting enough members, but a white organizer was not fired, despite his having recruited fewer people than they did.

Race discrimination violates Title VII of the 1964 Civil Rights Act. The EEOC filed suit (Civil Action No.4:17-1628) in U.S. District Court for the Southern District of Texas after first attempting to reach a pre-litigation voluntary settlement through its conciliation process.

On October 17, 2017, the court signed and entered a consent decree settling the suit agreed to by all parties. In addition to the monetary award for Holt and Roberts, the decree provides significant non-monetary relief, including an injunction prohibiting any future discrimination. Local 100 has further agreed to develop effective policies to protect employees against race discrimination. Additionally, the union will conduct training about Title VII’s prohibitions against race discrimination. Local 100 will report to the EEOC on its compliance with the consent decree and post an “EEO Is the Law” poster for employees and/or applicants to be aware of their rights.

“A union cannot make employment decisions that favor one race over another,” said Rudy Sustaita, regional attorney for the EEOC’s Houston and New Orleans offices. “Federal law obligates unions to follow the same non-discriminatory practices as any other employers.”

Local 100 is part of a system of numerous labor unions under the umbrella United Labor Unions. Its members are service workers at various entities. In this instance, Local 100 has been recruiting members from public and private school employees in Houston and other cities in the United States.

The EEOC’s Houston District Office has jurisdiction over parts of Texas and all of Louisiana.

Read my write up from the case last June.

Water Company Turned Blind Eye to Harassment, Retaliation Against Black Employees, EEOC Says

It’s going to take a concerted effort by all concerned–employees, managers, company executives–to extinguish racial harassment from the workplace. Here’s a case in point where management fell down on the job and the alleged harassment continued.

Aqua America, Inc., doing business as, Aqua Resources Inc., a Pennsylvania-based water company, violated federal law by subjecting black employees to a racially hostile work environ­ment and firing a foreman in retaliation for complaining about the harassment, the Equal Employment Opportunity Commission (EEOC) charged in a lawsuit it announced on Oct. 4.

According to the suit, Aqua hired Henry Blue, who is African-American, in January 2015 as a foreman at its Bear, Del., facility. The EEOC charged that his supervisor, a white superintendent, and other white foremen repeatedly made racially offensive jokes and derogatory comments, including calling Blue and other black employees racial slurs such as “n—-r,” “monkey” and “boy.” The superintendent also told a white employee “not to n—-r the truck up,” the EEOC said.

Blue complained to company management officials about the offensive racial comments to which he and other black employees were subjected. Aqua not only failed to stop the harassment, but it even promoted one of the wrongdoers and assigned Blue to work under his supervision on a project, the EEOC said.  In May 2016, Aqua fired Blue in retaliation for complaining about the racially hostile work environ­ment, the EEOC charged.

Title VII of the Civil Rights Act of 1964 makes it illegal to harass employees on the basis of race or to retaliate against individuals who complain about discrimination. The EEOC filed suit (EEOC v. Aqua America, Inc., d/b/a Aqua Resources, Inc., Civil Action No. 2:17-cv-04346) in U.S. District Court for the Eastern District of Pennsylvania after first attempting to reach a pre-litigation settlement through its conciliation process. As part of the suit, the EEOC is seeking back pay on behalf of Blue and compensatory and punitive damages on behalf of Blue and other class members, as well as broad injunctive relief.

“All employees have the right to earn a living without being subjected to racial epithets and derogatory comments,” said EEOC Philadelphia District Office Regional Attorney Debra M. Lawrence.

EEOC District Director Kevin Berry added, “Aqua was put on notice about the vile harassment but punished one of the victims instead of the wrongdoers. The EEOC has provided detailed recommendations and resources to assist employers in preventing workplace harassment, but will take strong enforcement action when employers choose to ignore their legal obligation to have a workplace free from harassment and retaliation.”

Texas Co. in Hot Seat With DOJ For Retaliating Against Worker Who Had Valid U.S. Work Card

The Justice Department reached a settlement with InMotion Software LLC (InMotion), a software developer and recruiter in Texas, resolving the department’s investigation into whether the company violated the Immigration and Nationality Act’s (INA) anti-discrimination provision, the DOJ announced on Oct. 11.

Based on its investigation, the department concluded that InMotion retaliated against a work-authorized job applicant after she protested InMotion’s requirement that she provide a Permanent Resident Card even though she had a valid employment authorization card issued by the U.S. Citizenship and Immigration Services.  After the worker complained that InMotion’s request constituted discrimination under the INA, InMotion removed her from its pool of candidates available for job placement.  The INA’s anti-discrimination provision prohibits employers from retaliating against or intimidating workers because they have opposed employer conduct that may violate that provision or have participated in the department’s activities to enforce it.

Under the settlement agreement, InMotion will pay the maximum civil penalty for an instance of retaliation, post notices informing workers about their rights under the INA’s anti-discrimination provision, train its staff, and be subject to departmental monitoring and reporting requirements for one year.

“Employees must be able to assert their rights without fear of reprisal,” said Acting Assistant Attorney General John M. Gore of the Civil Rights Division.  “Employers should familiarize themselves with the law and ensure that they do not engage in retaliatory conduct against workers who raise concerns about compliance.”

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 anti-discrimination provision of the INA.  Among other things, the statute prohibits citizenship status and national origin discrimination in hiring, firing, or recruitment or referral for a fee; unfair documentary practices; and retaliation and intimidation.

For more information about protections against employment discrimination under immigration laws, call IER’s worker hotline at 1-800-255-7688 (1-800-237-2515, TTY for hearing impaired); call IER’s employer hotline at 1-800-255-8155 (1-800-237-2515, TTY for hearing impaired); sign up for a free webinar; email IER@usdoj.gov; or visit IER’s English and Spanish websites.

Applicants or employees who believe they were subjected to retaliation, different documentary requirements based on their citizenship/immigration status or national origin, or discrimination based on their citizenship/immigration status, or national origin in hiring, firing, or recruitment or referral for a fee, should contact IER’s worker hotline for assistance.

Tooth Ache: Dentist’s Office Fired Long-Time Worker Because She Turned 65, EEOC Alleges

Karen Ruerat gave over three decades of her working life to a Michigan dental surgery practice, and what did she get for her troubles?

A pink slip just days after she turned 65, says the Equal Employment Opportunity Commission.

Professional Endodontics, P.C., a dental surgery practice based in Southfield, Mich., with three locations, violated federal law by firing an employee because of her age, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit filed today.

According to the EEOC lawsuit, Karen Ruerat had been employed as a receptionist for Professional Endodontics for over 37 years when she was fired four days after her 65th birthday due to a company policy that mandated retirement at age 65.

Such alleged conduct violates the Age Discrimination in Employment Act (ADEA), which protects individuals who are 40 years of age or older from employment discrimination based on age. The EEOC filed suit (Case No. 2:17-cv-13466 in U.S. District Court for the Eastern District of Michigan) after first attempting to reach a pre-litigation settlement through its conciliation process. The EEOC is seeking injunctive relief prohibiting Professional Endodontics from discriminating against other employees based on age, monetary relief including back pay and liquidated damages, and other affirmative relief for Ruerat.

“Terminating an employee because he or she turns 65 is illegal,” said Miles Uhlar, trial attorney for the EEOC’s Detroit Field Office. “The EEOC is pursuing this matter because federal law provides specific protection to members of our workforce, like Ms. Ruerat, who are age 40 or above.”

EEOC: Kaiser Alum. Will Reinstate Hiring Offer to Disabled Employee, Pay $175 to Settle ADA Suit

The Beatles had a song: All we are saying is give peace a chance.

Employers have to give persons with disabilities a fair chance at a job.

Kaiser Aluminum Corporation, the leading producer of fabricated aluminum products in the United States, will pay $175,000 and reinstate its hiring offer to a qualified production worker to settle a disability discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency announced today.

According to the EEOC’s suit, Kaiser withdrew its job offer for production work at its Trentwood mill in Spokane after Donald McMurray’s medical records showed a workplace injury from over 10 years ago. The EEOC found that McMurray, with a long history of construction work at the time, was a well-qualified candidate fully capable of meeting the job’s physical demands.

“All I ever wanted was for Kaiser to let me prove that I was physically able to do the job,” said McMurray. “My medical history didn’t paint the true picture of who I am today and what I can do. But that’s all behind me, and I am excited that my future is with an industry leader like Kaiser.”

Failing to hire a person based on a record of a prior disability or a perceived disability violates the Americans with Disabilities Act (ADA). The EEOC filed the lawsuit in U.S. District Court for the Eastern District of Washington (EEOC v. Kaiser Aluminum Washington, LLC, 2:16-cv-00343-SAB) after an investigation by EEOC investigator Toni Haley and after first attempting to reach a pre-litigation settlement through its conciliation process.

“EEOC and Kaiser worked hard together to resolve a tough case and further the objectives of the ADA,” said EEOC Senior Trial Attorney Teri Healy. “We are very pleased with the outcome of this lawsuit and appreciate Kaiser’s willingness to work with the EEOC to resolve this matter and its commitment to its obligations under the law.”

Seattle EEOC Field Director Nancy Sienko added, “Mr. McMurray will be a great addition to the Kaiser team. His reinstatement and Kaiser’s implementation of new hiring procedures are a win-win for all involved. Eliminating barriers in recruitment and hiring and enforcing the ADA are high priorities for the EEOC.”

Pa. Contractor Dinged on Electrical Hazards

Ignore repeated safety violations and federal safety watchdogs will eventually catch up with you.

The U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) has cited a Pittsburgh masonry contractor for exposing workers to serious dangers including fall and electrical hazards after an employee was fatally electrocuted in April.

On April 20, 2017, OSHA conducted an investigation of Ski Masonry LLC after a 21-year-old laborer doing restoration work at a Pittsburgh residence was electrocuted. The residential and commercial masonry contractor received two willful and five serious citations for violations, including knowingly allowing employees to work within 10 feet of overhead, energized, and uninsulated electrical lines, failing to provide fall protection, and using scaffolding without a secure base plate.

“Ski Masonry knowingly took unacceptable risks when performing masonry work close to overhead powerlines,” said OSHA Area Office Director Christopher Robinson, in Pittsburgh. “Companies must assess their worksites and follow all safety requirements to prevent such tragedies from recurring.”

OSHA has proposed penalties totaling $201,354, and has added the company to its Severe Violator Enforcement Program (SVEP).

The company has 15 business days from receipt of its citations and proposed penalties to comply, request an informal conference with OSHA’s area director, or contest the findings before the independent Occupational Safety and Health Review Commission.

Male Employee Denied Position in Maternity Home Program Has EEOC in His Legal Corner

The Children’s Home, Inc., a Tampa non-profit children’s organization, violated federal law when it refused to consider a male employee for a management position in a maternity home program based on his sex, the Equal Employment Opportunity Commission charged in a lawsuit it filed October 3. Further, after voicing his concerns about not be considered because he is a male, he was excluded from applying for any other positions with the organization, the EEOC said.

According to the EEOC’s lawsuit, Children’s Home’s upper management and human resources personnel discouraged a male manager, Luis Vasquez, from internally applying to a position in a newly created Adolescent Motherhood Program, which was similar to his then-existing position. The EEOC said that Vasquez was told that management “wasn’t sure if they would accept males to work at the new motherhood program,” and asked, “… can you imagine males changing pampers, working with babies and with pregnant girls?”

Vasquez sought a new position with the organization because the program where he was employed didn’t receive renewed funding. Soon after complaining about the refusal to consider him because of his sex, he was advised that there were no other positions available at the organization for him. Vasquez’s less-experienced female subordinate was selected for the newly created position, the EEOC said.

Such alleged conduct violates Title VII of the Civil Rights Act of 1964. The EEOC filed suit (EEOC v. The Children’s Home, Inc., Case No. 8:17-cv-02262-EAK-JSS) in U.S. District Court for the Middle District of Florida, Tampa Division after attempting to reach a pre-litigation settlement through its conciliation process.

“Just as Title VII protects women in the workplace from the gender-based assumption that they always have to be familial caretakers, it also protects men from the stereotype that they cannot hold positions viewed to have such caretaking functions,” said Evangeline Hawthorne, director for the Tampa Field Office.

Robert E. Weisberg, regional attorney for the Miami District Office, added, “Employees must not be prevented from work opportunities based on outdated stereotypes of ‘a man’s role’ in maternity and childcare matters. Employment decisions based on such stereotypes violate federal law and the EEOC will vigorously oppose them.”

The Children’s Home is a non-profit organization that provides programs and services to children-in-need and their families in Central Florida.

Employee Was Unlawfully Denied Leave of Absence for Medical Attention, EEOC Alleges

Here’s what appears to be a cut-and-dry case of discrimination against an employee with a disability.

Triton Management, LLC, a Carlsbad, Calif.-based company, violated federal law when it failed to accommodate an employee with a disability and instead fired her, the Equal Employment Opportunity Commission (EEOC), announced in a lawsuit filed Sept. 29.

According to the EEOC’s lawsuit, an employee required medical attention and needed a leave of absence for her disability. The EEOC charges that Triton failed to properly engage in the interactive process and instead terminated her employment.

Such alleged conduct violates the Americans with Disabilities Act (ADA). The EEOC filed suit in U.S. District Court for the Southern District of California (EEOC v. Triton, Inc., Case No.: 3:17-cv-02004-BAS-KSC) after first attempting to reach a pre-litigation settlement through its conciliation process. The EEOC’s suit seeks back pay, compensa­tory and punitive damages for the employee, as well as injunctive relief intended to prevent further discrimination in the workplace.

“We continue to see employers refusing to accommodate employees with disabilities, as they are required to do under the ADA,” said Anna Park, regional attorney for EEOC’s Los Angeles District Office, which includes San Diego in its jurisdiction. “The EEOC has a clear mission to fight for the rights of employees facing both disabilities and discrimination.”

Christopher Green, director of the EEOC’s San Diego Local Office, added, “Providing an accommodation is an essential part of the ADA. Failing to do so can lead to a violation of the law.”

EEOC: Teenager Groped by Restaurant Boss

Young victims of sexual harassment have an ally in the Equal Employment Opportunity Commission.

A Bluefield, Va., restaurant violated federal law by subjecting a female employee to a sexually hostile work environment and retaliating against her by reducing her hours, the EEOC charged in a lawsuit filed on September 29.

According to the EEOC’s suit, Alexus Dudeck was employed as a hostess at La Fiesta Fresh Mexican Grill and Cantina in 2015. The EEOC charged that Dudeck, then 18 years old, was subjected to unwelcome sexual comments and touching by a significantly older male manager. According to the EEOC’s complaint, the manager had pre­viously engaged in the same or similar sexual conduct with at least one other female emp­loyee of the company. At the time the alleged sexual harassment occurred, La Fiesta did not have a sexual harassment policy or employee complaint procedures in effect.

The EEOC’s complaint further charged that after Dudeck complained to La Fiesta’s general manager about the harassment, the company reduced Dudeck’s scheduled hours. The complaint alleges that the wife of the alleged harasser was responsible for scheduling Dudeck’s hours after her complaint of sexual harassment was made.

Such conduct violates Title VII of the Civil Rights Act of 1964. The EEOC filed suit in U.S. District Court for the Western District of Virginia, Abingdon Division (Equal Employment Opportunity Commission v. Price Ventures, LLC d/b/a La Fiesta Fresh Mexican Grill and Cantina, Civil Action No 1:17-cv-00041-JPJ-PMS) after first attempting to reach a pre-litigation settlement through its conciliation process. The agency seeks compensatory damages, punitive damages, back pay for Dudeck, as well as injunctive relief to prevent any future discrimination or harassment in the workplace.

“Sexual harassment is always unacceptable and unlawful in any workplace,” said Lynette A. Barnes, regional attorney of EEOC’s Charlotte District Office. “When a teenager is a victim, the abuse is all the more unconscionable.  Very young people are among the most vulnerable to this kind of misconduct, and the EEOC is committed to putting a stop to it.”