Archive for November, 2017

Foul Fish: Wash. Seafood Company Unwraps $75K to Settle EEOC Sexual Harassment Lawsuit

With the media fixated on sexual harassment by celebrities, it’s wise to remember that this illegal behavior also occurs in less reknowned settings.

Northwestern Washington-based Trans Ocean Seafoods, Inc., doing business as New England Shellfish, will pay $75,000 to three female former employees and implement other relief to settle a federal lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC), the agency announced today.

According to the EEOC’s suit, a male employee made sexually explicit comments about and in front of female workers, including a 17-year-old and her mother. He targeted them on a near-daily basis despite numerous requests to stop, the agency alleges, and his words caused some of the women to fear he would sexually assault them.

One of the women reacted to the male employee’s conduct with nightmares and problems sleeping, and said that even years later, “I am not the same person as before.” Another said, “I just had to fight a lot to be me again. And I feel like Trans Ocean, they took away part of me…It’s something that I have to live with.”

Sexual harassment violates Title VII of Civil Rights Act of 1964. The EEOC filed the lawsuit in U.S. District Court for the Western District of Washington (EEOC v. Trans Ocean Seafoods, Inc., dba New England Shellfish, 2:15-CV-01563-RAJ), after an investigation by EEOC Investigator Annalie Greer and after first attempting to reach a voluntary settlement through its conciliation process.

Under the consent decree resolving this case, Trans Ocean Seafoods has also agreed to implement new policies, conduct extensive training for employees and management, post an anti-discrimination notice at the workplace, and report compliance to the EEOC for a two-year period.

“We have seen how hard it can be even for women with education, celebrity and power to speak out against sexual harassment,” said EEOC Senior Trial Attorney Carmen Flores. “Imagine how difficult it was for these women, two of whom do not read or write and can only speak Mixtec. No one should have to endure sexual harassment just to feed and shelter themselves and their families.”

Nancy Sienko, Seattle field director for the EEOC’s San Francisco District, added, “Protecting vulnerable workers and addressing systemic harassment are both top priorities for the EEOC. We hope that this case sends a clear message that the EEOC will hold accountable employers who fail to protect their employees from workplace harassment.”

Trans Ocean Seafoods has a business office in Bellingham, Wash., and a processing plant in Mt. Vernon, Wash.

EEOC Recovers $50K for Female Employee Barred From Returning to Work Following Birth

Manhattanites pride themselves on their sophistication, but this clothing company evidently had a simplistic view of a new mother’s rights.

Manhattan-based apparel company R. Siskind & Company, Inc., doing business as Siskind Group, will pay $50,000 and implement revised anti-discrimination policies and procedures to settle a pregnancy discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency announced today.

According to the EEOC’s lawsuit, Siskind Group fired a customer service employee because of her pregnancy, childbirth and related medical conditions that included the effects of an emergency caesarean section. Although Siskind Group purported to grant the employee maternity leave, when she tried to return to work, she was informed that she no longer had a position for reasons that the EEOC said were pretexts for discrimination.

Such alleged conduct violates Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act, which prohibits employers from discriminating based on pregnancy, childbirth or related medical conditions. The EEOC filed suit in July in the U.S. District Court for the Southern District of New York (EEOC v. R. Siskind & Company, Inc., Civil Action No. 17-cv-5175), after first attempting to reach a pre-litigation settlement through its conciliation process.

The consent decree resolving the suit was entered by U.S. District Judge Katherine B. Forrest on Nov. 27. It provides that Siskind pay $50,000 in lost wages and damages to the former employee. The decree also requires multiple steps to prevent future discrimination, including anti-discrimination policies, training, and leave and accommodation procedures, which will be monitored by the EEOC for three years.

“We are pleased that because of this settlement, Siskind Group will institute policies and provide training so that its management will better recognize and protect the rights of women in the workplace going forward,” said EEOC Regional Attorney Jeffrey Burstein.

EEOC New York District Director Kevin Berry added, “This case exemplifies the EEOC’s commitment to enforcing the law’s protections for women in the workplace, including pregnancy and childbirth.”

OSHA Gives Company Go-Ahead to Test More Equipment and Materials for Safety Standards

The Occupational Safety and Health Administration gave the thumbs-up today to a company to test more equipment and materials used in workplaces.

The announcement in today’s Federal Register recognizes. Intertek Testing Services NA, Inc. (ITSNA), as a Nationally Regulated Testing Laboratory for 7 additional products.

OSHA recognition of a NRTL signifies that the organization meets the requirements specified by 29 CFR 1910.7. Recognition is an acknowledgment that the organization can perform independent safety testing and certification of the specific products covered within its scope of recognition and is not a delegation or grant of government authority. As a result of recognition, employers may use products properly approved by the NRTL to meet OSHA standards that require testing and certification of the products.

OSHA’s recognition of any NRTL for a particular test standard is limited to equipment or materials for which OSHA standards require third-party testing and certification before using them in the workplace. Consequently, if a test standard also covers any products for which OSHA does not require such testing and certification, a NRTL’s scope of recognition does not include these products.

Check the announcement for a list of appropriate test standards for inclusion in the company’s recognition as an NRTL.

Thanks to Jon Hyman for referencing this blog post in his weekly compilation of must-read blogs.


Vegetable Processor Dinged $100K in DOJ Investigation of INA Work Permit Violations

Washington Potato Company  might want to retain the services of an immigration attorney–or if it has one it got some bad advice.

The Justice Department announced Nov. 16 that it has reached a settlement agreement with Washington Potato Company, which operates the Freeze Pack vegetable processing plant located in Pasco, Washington.  The agreement resolves the department’s investigation into whether Washington Potato discriminated against work-authorized immigrants when verifying their employment authorization, in violation of the Immigration and Nationality Act (INA).

The department’s investigation revealed that Washington Potato routinely requested that work-authorized non-U.S. citizens present specific documents to confirm their citizenship status, such as Permanent Resident Cards or Employment Authorization Documents, while verifying their authorization to work at the Freeze Pack plant, but did not subject U.S. citizens to such requests.  The anti-discrimination provision of the INA prohibits employers from subjecting employees to different or unnecessary documentary demands based on employees’ citizenship, immigration status, or national origin.

Under the settlement, Washington Potato will pay a civil penalty of $100,000 to the United States, train its staff, post notices informing workers about their rights under the INA’s antidiscrimination provision, and be subject to departmental monitoring and reporting requirements.  An earlier settlement between the department and Washington Potato Company in May 2017 resolved litigation concerning similar discriminatory conduct by Washington Potato  in its management of another facility located in Pasco, Washington.

“Employers must ensure that they do not impose unnecessary and unlawful barriers to employment based on citizenship status,” said Acting Assistant Attorney General John M. Gore of the Civil Rights Division.  “We look forward to working with Washington Potato Company to fulfill the terms of this agreement and ensure compliance with the law at all the facilities it operates.”

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 sends e-mail); or visit IER’s English and Spanish websites.

Applicants or employees who believe they were subjected to 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.

DOL Gives Employers Until Dec. 15 to Electronically Report Injury and Illness Data

This day after Thanksgiving, employers can give thanks too. That they have been given more time for electronic filing of workplace injury data with the U.S. Labor Department.

To allow affected employers additional time to become familiar with a new electronic reporting system launched on August 1, 2017, the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA)  has extended the  date by which employers must electronically report injury and illness data through the Injury Tracking Application (ITA) to December 15, 2017.

That’s an additional weeks from a previously announced postponement of the rule until Dec. 1, 2017.

OSHA’s final rule to Improve Tracking of Workplace Injuries and Illnesses sets December 15, 2017, as the date for compliance (a two-week extension from the December 1, 2017, compliance date in the proposed rule). The rule requires certain employers to electronically submit injury and illness information they are already required to keep under existing OSHA regulations.

Unless an employer is under federal jurisdiction, the following OSHA-approved State Plans have not yet adopted the requirement to submit injury and illness reports electronically: California, Maryland, Minnesota, South Carolina, Utah, Washington, and Wyoming.  Establishments in these states are not currently required to submit their summary data through the ITA. Similarly, state and local government establishments in Illinois, Maine, New Jersey, and New York are not currently required to submit their data through the ITA.

OSHA is currently reviewing the other provisions of its final rule to Improve Tracking of Workplace Injuries and Illnesses, and intends to publish a notice of proposed rulemaking to reconsider, revise, or remove portions of that rule in 2018.

Under the Occupational Safety and Health Act of 1970, employers are responsible for providing safe and healthful workplaces for their employees. OSHA’s role is to ensure these conditions for America’s working men and women by setting and enforcing standards, and providing training, education and assistance. For more information, visit

EEOC Gets $150K for Underpaid Chinese Technicians Working at NJ Car Dealership

Chinese car technicians at a New Jersey dealership should give thanks this Thanksgiving Day that the Equal Employment Opportunity Commission fought for their right to equal pay.

Chas. S. Winner, Inc., doing business as Winner Ford of Cherry Hill and Winner Ford, will pay $150,000 and furnish significant equitable relief to settle a federal pay discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC), the agency announced yesterday.

The EEOC charged that since 2010, Winner Ford paid its Chinese emergency and accessory installation (EAI) technicians a lower starting wage and hourly wage than non-Chinese EAI technicians at its Cherry Hill, NJ location. Winner Ford paid starting Chinese EAI technicians up to $3 less per hour than non-Chinese EAI Technicians, even though they did the same work and some of the non-Chinese technicians had less or no relevant experience. The EEOC said that when a Chinese EAI technician complained about the wage disparity, he was reprimanded, and told that if he sought legal advice, he would be out of a job.

Such alleged conduct violated Title VII of the Civil Rights Act of 1964 which makes it illegal to discriminate against employees on the basis of national origin or to retaliate against individuals who complain about discrimination. The EEOC filed suit (EEOC v. Chas. S. Winner, Inc. d/b/a Winner Ford of Cherry Hill d/b/a Winner Ford, Civil Action No. 1:16-06137) in U.S. District Court for the District of New Jersey after first attempting to reach a pre-litigation settlement through its conciliation process.

In addition to the $150,000 in lost wages and other damages to the class members, the three-year consent decree prohibits Winner Ford from discriminating based on national origin, including in compensation, or engaging in retaliation.  Winner Ford will implement and disseminate an anti-discrimination policy to all employees, applicants and new hires. Winner Ford will also provide training on federal EEO laws to all managers and employees involved in setting wages or handling discrimination complaints. It will also post a notice regarding the settlement.

EEOC Regional Attorney Debra M. Lawrence said, “Workers deserve equal pay for equal work. We are pleased that Winner Ford worked with us to address these pay disparities and that it will take affirmative measures to ensure that no workers are paid less based on national origin.”

EEOC District Director Kevin Berry said, “Strong enforcement of the pay laws is one of the Commission’s priority issues. The EEOC provides resources, including outreach and training, to assist employers in abiding by these laws, but we will litigate when an employer makes unlawful employment decisions.”

Judge: Manufacturer Violated ADA by Nixing Workers With Positive Carpal Tunnel Tests

Employers violate federal law when they sweep with too broad a brush and bar anyone with particular medical conditions from employment. The proper approach is to assess each applicant’s ability to do the job.

A federal judge ruled in favor of the U.S. Equal Employment Opportunity Commission (EEOC) on Nov. 16 in its discrimination charge against Amsted Rail Co., Inc., the federal agency announced on Monday. The judge ruled that Amsted, a leading manufacturer of steel castings for the rail industry, violated federal disability law when it disqualified job applicants based on the results of a nerve conduction test for carpal tunnel syndrome rather than conducting an individualized assessment of each applicant’s ability to do the job safely.

According to the ruling in EEOC v. Amsted Rail Co., Inc., No. 14-cv-1292-JPG-SCW (S.D. Ill.), the court found that Amsted’s practice screened out job applicants based on a small statistical risk that they might develop carpal tunnel syndrome, violating the Americans with Disabilities Act (ADA). The court also ruled that Amsted violated the ADA when it refused to hire Montrell Ingram because he previously had successful surgery for carpal tunnel syndrome.

In motions filed with the court last year, the EEOC asked the court to rule that Amsted’s use of the nerve conduction test was discriminatory as a matter of law, as well as its policy not to hire applicants who had previously had carpal tunnel syndrome surgery. The EEOC argued that Amsted regarded applicants as disabled because it unreasonably perceived them as at risk to develop carpal tunnel syndrome based upon previous surgery for the condition or the results of the nerve conduction test. Amsted argued that its nerve conduction test and previous surgery rule were justified to identify persons with an enhanced risk for the development of carpal tunnel syndrome.

The court rejected the majority of Amsted’s arguments and ruled that the company’s conduct was unlawful because it discriminated on the basis of disability, finding that the nerve conduction test had little to no value in predicting the likelihood of future injury.

“While Amsted would like to claim it was protecting workers, its practice denied employment opportunities to workers who were ready and able to do the job,” said Andrea G. Baran, regional attorney of the EEOC’s St. Louis District. “Employment decisions, including hiring decisions, must be based on a person’s ability to perform the job, not on stereotypes, assumptions or conjecture. An individualized assessment of the applicant’s present ability to safely perform the job duties is required before an employer may screen out an applicant based on medical tests or exams in the hiring process.”

The case is pending in U.S. District Court for the Southern District of Illinois in Benton, Ill., and will now proceed with determining damages and remedies for the applicants who were harmed by Amsted’s discriminatory conduct.

Wheels Up: Airline Forks Over $9.8M in Stock to Settle ADA Reasonable Accommodation Lawsuit

An airlines’ rigid policy of requiring all employees returning from medical leave to have no restrictions came back to bite them under the Americans With Disabilities Act.

American Airlines and Envoy Air will pay $9.8 million in stock, which is worth over $14 million if cashed in today, and provide other significant relief to settle a nationwide class disability discrimination lawsuit filed by the Equal Employment Opportunity Commission (EEOC), the agency announced yesterday. The EEOC’s suit said the airlines unlawfully denied reasonable accommodations to hundreds of employees.

“This matter highlights the critical role of the Americans with Disabilities Act in getting people back to work as quickly as possible,” said EEOC Acting Chair Victoria A. Lipnic. “The parties deserve credit for working diligently to bring this matter to resolution.”

According to the EEOC’s suit, American and Envoy violated federal law by requiring their employees to have no restrictions before they could return to work following a medical leave. Under this policy, if an employee had restrictions, American and Envoy refused to allow them to return to work and failed to determine if there were reasonable accommodations that would allow the employee to return to work with restrictions.

Such alleged conduct violates the Americans with Disabilities Act (ADA), which prohibits discrimination based on disability and also requires an employer to provide reasonable accommodation to employees with disabilities unless doing so would cause significant difficulty or expense for the employer. If employees with disabilities are not able to do their current job, even with a reasonable accommodation, employers are obligated to look for a reassignment to another position for those employees.

The EEOC filed suit in U.S. District Court for the District of Arizona, Civil Action No. 17-cv-04059-SPL, after first attempting to reach a pre-litigation settlement through its conciliation process and continued negotiations prior to filing suit. The consent decree resolves the EEOC’s lawsuit and several charges of discrimination filed by individuals with the EEOC. The systemic investigation was conducted by the EEOC’s Phoenix District Office.

In addition to the $9.8 million in stock, the two-year decree includes injunctions against engaging in any future discrimination or retaliation based on disability, and requires the companies to adopt policies that ensure reasonable accommodations are provided to persons with disabilities. American and Envoy will provide mandatory periodic training on the ADA to employees. The settlement applies to all American and Envoy employees throughout the country.

EEOC Deputy General Counsel James L. Lee said, “We are pleased the parties were able to resolve this important case without resorting to prolonged and expensive litigation, and we are proud of the Commission’s long record of protecting people with disabilities from workplace discrimination.”

Elizabeth Cadle, district director for the Phoenix office, added, “This settlement demonstrates the need for employers to have good ADA policies. That means policies which consider employers’ obligations to provide reassignment without competition as a reasonable accommodation for employees with disabilities who become unable to do their current job even with accommodations.”

EEOC Regional Attorney Mary O’Neill added, “This consent decree is the result of productive and thoughtful negotiations with American. We appreciate American and Envoy working with the EEOC to reach a settlement. In addition to providing meaningful monetary relief for hundreds of former employees, the settlement contains important equitable relief, including company policy changes and training designed to provide people with disabilities equal opportunities in the workplace.”

According to its website,, American Airlines, headquartered in Fort Worth, Texas, is an airline that operates an average of nearly 6,700 flights per day to nearly 350 destinations in more than 50 countries, and employs over 120,000 people.

$45K Settlement in Pregnancy Bias Suit For Employer That Put Worker on Involuntary Leave

You can’t force a pregnant employee to go on leave rather than try to find her an accommodation for her condition.  That lesson was brought home in a costly way recently to a California company.

Exeter, Calif.-based Peninsula Packaging will pay $45,000 and provide other relief to settle a charge of pregnancy discrimination filed with the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency announced on Oct. 31.

The charge made to the EEOC alleged that a packer required a modification to her job due to her pregnancy, which Peninsula Packaging refused to do. Instead, the company placed the employee on an involuntary leave of absence. The EEOC investigated the allegations and found reasonable cause to believe that Peninsula Packaging discriminated against the employee due to her pregnancy, in violation of Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act.

Without admitting liability, Peninsula Packaging agreed to enter into a three-year conciliation agreement with the EEOC and the alleged victim, thereby avoiding litigation. In addition to the monetary relief, the company agreed to hire an outside equal employment opportunity consultant to develop and conduct effective training for all employees on discrimination with an emphasis on pregnancy discrimination, develop reporting procedures, and assist the company with revising and modifying its current discrimination policies. The EEOC will monitor compliance with this agreement.

“Employers have an obligation to provide an accommodation to a pregnant employee, particularly if they are providing the same accommodation to other employees,” said Melissa Barrios, director of the EEOC’s Fresno Local Office, which includes San Benito County in its jurisdiction. “We commend Peninsula Packaging for working with the EEOC to resolve this charge and for implementing measures intended to prevent discrimination in the workplace.”

According to the company’s website,, Peninsula Packaging provides design, development, and the production of packaging for consumer-ready produce, bakery, deli, and other on-the-go food items.

Here’s an EEOC primer on the do’s and dont’s regarding pregnant workers.

Against the Grain (Company): OSHA Dings Wisc. Facility for Safety Violations, $1.8 Million in Fines

It’s bad to allow workplace conditions to be unsafe, but worse to compound the safety problems once they are brought to your atttention.

The U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) announced on Friday announced proposed $1,837,861 in fines against Didion Milling Inc. following a May 31, 2017, explosion that killed five workers and injured 12 others, including a 21-year-old employee who suffered a double leg amputation after being crushed by a railcar.

OSHA found that the explosion likely resulted from Didion’s failures to correct the leakage and accumulation of highly combustible grain dust throughout the facility and to properly maintain equipment to control ignition sources. OSHA cited Didion’s Cambria facility with 14 willful – including eight willful per-instance egregious– and five serious citations, most involving fire and explosion hazards. The company has been placed in OSHA’s Severe Violator Enforcement Program.

“Didion Milling could have prevented this tragedy if it had addressed hazards that are well-known in this industry,” said OSHA Regional Administrator Ken Nishiyama Atha, in Chicago. “Instead, their disregard for the law led to an explosion that claimed the lives of workers, and heartbreak for their families and the community.”

The egregious willful citations were issued for violating OSHA’s Grain Handling standard by failing to perform required maintenance on operating equipment and implementing a housekeeping program to control dust accumulations. Willful citations were issued for failure to shut down ignition sources, prevent static electricity discharge, provide adequate personal protective equipment to employees, correct malfunctioning dust collection systems, maintain equipment safety controls, and have an emergency alarm system. Serious citations addressed hazards associated with fires and explosions, and the lack of employee training.

The company has 15 business days from receipt of its citations and 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.

Under the Occupational Safety and Health Act of 1970, employers are responsible for providing safe and healthful workplaces for their employees. OSHA’s role is to ensure these conditions for America’s working men and women by setting and enforcing standards, and providing training, education, and assistance. For more information, visit