Archive for August, 2018

Calif. Staffing Agency, NY Company Run Headlong Into EEOC Over Possible ADA Violation

This staffing agency and employer from opposite coasts are in trouble with the EEOC over their treatment of a temporary employee with a kidney condition.

Remedy Intelligent Staffing, LLC (Remedy), a California-based staffing firm, and Lornamead, Inc. (Lornamead), a manufacturer headquartered in New York City, violated federal law when they refused to provide reasonable accommodation to a long- term temporary employee that would have enabled him to continue to work after his kidney condition worsened and instead terminated his employment, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit filed August 1.

According to the EEOC’s suit, David Gaiser II was hired by Remedy and assigned to work as a general laborer at Lornamead, Inc.’s Tonawanda, New York facility in June 2013. During his employment, Gaiser was diagnosed with autosomal dominant polycystic kidney disease, a chronic condition characterized by the growth of multiple cysts in the kidneys. In June 2016, Gaiser was assigned to run a machine that required continual bending and twisting, which aggravated his kidney condition and caused him severe pain. Gaiser asked for a chair to minimize his bending and twisting, but Lornamead refused.

Gaiser then provided Remedy with a note from his doctor explaining that repeated bending and twisting could exacerbate Gaiser’s kidney condition and recommending he refrain from extreme bending, twisting, or lifting, which could predispose him to a cyst rupture. Gaiser suggested several accommodations that could enable him to perform his job duties, including allowing him to sit while operating manual machines, assigning him to a different machine, or assigning him to one of the assembly lines. Instead, Lornamead directed Remedy to end Gaiser’s three-year assignment at Lornamead. Remedy failed to place Gaiser at another job with a different client.

This alleged conduct violates the Americans with Disabilities Act. The EEOC filed suit (EEOC v. Lornamead, Inc. and Remedy Intelligent Staffing, Inc., Civil Action No. 1:18-cv- 00841) in the U.S. District Court for the Western District of New York, Buffalo Division, after first attempting a pre-litigation settlement through the EEOC’s conciliation process. The suit seeks back pay, compensatory damages, and punitive damages for Gaiser, as well as injunctive relief designed to prevent future discrimination.

“Employers have a legal duty to provide reasonable accommodations to people with disabilities,” said Jeffrey Burstein, regional attorney for the EEOC’s New York District Office. “As joint employers, Remedy and Lornamead both failed to comply with their obligations under the law, and unnecessarily deprived the employee of a job he enjoyed and performed successfully for three years.”

Kevin Berry, district director of the New York Office, said, “The ADA requires a two- way interactive process between the employer and the employee. Remedy and Lornamead rejected the options proposed by the employee and failed to offer any alternatives that would have allowed him to keep his job. Firing someone who needs an accommodation due to a disability is against the law and the EEOC will hold employers accountable.”

According to company information, Remedy is the franchise division of Employbridge, one of the largest staffing firms in the world with over 490 locations. Lornamead, part of the Li and Fung group, manufactures and distributes hair care, skin care, oral care, and bath products to retailers throughout North America.

The EEOC’s New York District Office is responsible for processing discrimination charges, administrative enforcement, and the conduct of agency litigation in Connecticut, Maine, Massachusetts, New Hampshire, New York, northern New Jersey, Rhode Island, and Vermont. The Buffalo Local Office conducted the investigation resulting in this lawsuit.

OSHA Crackdown on Fall Hazards Continues; Levies $177K in Fines Against Two Companies

Two more companies have come up against federal workplace safety regulators’ campaign to eliminate fall hazards.

The U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) has cited Hammers Construction Inc. and Montes Construction LLC after a fatal fall at a Greenwood Village, Colorado, worksite. The companies face proposed penalties of $177,893.

OSHA inspected the worksite in March 2018 after an employee fell while installing metal roofing panels on a storage unit building. OSHA cited the two construction companies for failing to use adequate fall protection and restrict employees from standing on the mid-rails of scissor lifts. OSHA also cited Montes Construction LLC in January 2018 for failing to provide fall protection, and now faces a willful citation.

“These employers failed to protect their employees from well-known and preventable fall hazards,” said OSHA Area Director David Nelson, in Englewood, Colorado. “This tragedy could have been prevented if they had met their obligations and provided the required fall protection.”

Hammers Construction Inc. and Montes Construction LLC have 15 business days from receipt of 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.

$3.5M Award Closes Sexual Harassment Suit

One million here, one million there–and soon it adds up to real money.

So said the legendary Senate Republican Leader Everett Dirksen.

And when a lawsuit is settled for millions of dollars, that’s a big deal, too.

The U.S. District Court approved a consent decree between Alorica, Inc. and the United States Equal Employment Opportunity Commission (EEOC) for $3.5 million and remedial measures to resolve a sexual harassment lawsuit, the federal agency announced August 1.

According to the EEOC, male and female customer service employees were subjected to harassment, including a sexually hostile work environment, by managers and coworkers. The EEOC further alleged that the onsite human resources staff failed to properly address the harassment despite repeated complaints by employees, which the EEOC contends violates Title VII of the Civil Rights Act of 1964.

The EEOC filed suit in the U.S. District Court for the Eastern District of California (U.S. EEOC v. Alorica, Inc., Case No.: 1:17-cv-1270-LJO-MJS) and reached an early settlement of the lawsuit. The court approved the consent decree that resolves the case, which remains under the court’s jurisdiction during the term of the decree.

The $3.5 million will be distributed among a class of victims of sexual harassment from the Fresno and Clovis, Calif. facilities, pursuant to a claims process set forth in the decree. In addition to the monetary relief, Alorica agreed to significant injunctive relief in the form of a three-year consent decree, which includes the hiring of a third-party monitor; the creation of an internal equal employment opportunity consultant and internal compliance officer; and, sexual harassment training, including incorporating civility and bystander intervention training, for its employees. The company also agreed to revise its anti-discrimination and retaliation policies and procedures as well as maintain records of any future sexual harassment and retaliation complaints, audits, and reporting.

“While no one should have to experience harassment on the job, I commend the women and men who bravely came forward in this case and brought their experience of harassment to the EEOC,” said EEOC Acting Chair Victoria A. Lipnic. “I also commend our enforcement and legal teams, and the parties involved, for coming to a resolution that both provides relief to these women and men, and makes positive changes to the company’s workplace practices.”

“Sexual harassment continues to be a pressing issue in our region and we urge employers to take more proactive measures to prevent such misconduct,” said Anna Park, regional attorney for the EEOC’s Los Angeles District, which includes Fresno County in its jurisdiction. “We commend Alorica for working with the EEOC to create and implement measures that will prevent future abuses.”

Rosa Viramontes, district director of the EEOC’s Los Angeles District, added, “Combatting systemic harassment is a top priority of the Commission. Employees have the right to file complaints against employers that fail to protect them from sexual harassment, without the fear of retaliation.”

According to Alorica’s website, http://www.alorica.com, the company provides customer management solutions in the form of third party call center and technology services. Alorica is based out of Irvine, Calif., employing 100,000 workers across 16 countries, in 140 locations.

Individuals who believe they were subjected to sexual harassment while working for Alorica at the Fresno and Clovis, Calif. facilities between August 2014 to the present, can contact the EEOC at 1-855-725-445.

EEOC Calls Balk on Maryland Private School; Alleges Male Coach Ousted Due to His Sex

In baseball, a balk occurs when a pitcher makes an illegal move. According to the EEOC, a private school in Maryland made such an illegal move against its male softball coach.

Park School of Baltimore Inc., a private school in Pikesville, Md., violated federal law when it refused to renew the employment contract of a male softball coach because it preferred female leadership, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit it announced July 30.

The EEOC charges that the Park School hired a male as a head softball coach in the spring of 2014, and renewed his employment contract as a head softball coach in 2015 and 2016.  In 2017, however, the Park School told him that it would not renew his contract for the 2017 softball season because of its “preference for female leadership.”  According to the suit, the Park School did not renew the coach’s employment contract, despite his satisfactory job performance, because he is a male.

Such alleged conduct violates Title VII of the Civil Rights Act of 1964 (Title VII), which prohibits discrimination based on sex. The EEOC filed suit (EEOC v. Park School of Baltimore Inc., Civil Action No. 1:18-cv-02319-RDB) in U.S. District Court for the District of Maryland, Baltimore Division, after first attempting to reach a voluntary, pre-litigation settlement through its conciliation process.

EEOC Regional Attorney Debra M. Lawrence said, “Title VII protects both men and women from discrimination based on sex. The law is clear–employers should make employment decisions based on the employee’s qualifications, not gender.”

The EEOC’s Baltimore Field Office is one of four offices in the EEOC Philadelphia District Office, which has jurisdiction over Pennsylvania, Maryland, Delaware, West Virginia and parts of New Jersey and Ohio. Attorneys in the EEOC Philadelphia District Office also prosecute discrimination cases in Washington, D.C. and parts of Virginia.

Court: Underpaying Disabled Drivers Illegal

You can’t discriminate against persons with disabilities, even if the action conforms to the terms of a union contract.

A federal judge in the U.S. District Court for District of Kansas ruled on July 27, 2018, that UPS Freight violated federal law by having a policy, contained in its current union contract with the International Brotherhood of Teamsters, of paying disabled drivers only ninety percent of what nondisabled drivers earn when they temporarily move to non-driving jobs, the Equal Employment Opportunity Commission (EEOC) announced  July 30.

The U.S. Equal Employment Opportunity Commission (EEOC) filed a lawsuit in August 2017 (Equal Employment Opportunity Commission v. UPS Ground Freight, Inc., Civil Action No. 2:17-cv-02453) to obtain relief for Mr. Thomas Diebold. Mr. Diebold worked for UPS Freight from 2006 to 2015 as a driver at its Service Center in Kansas City, Kan. After suffering a minor stroke in 2013, Diebold sought non-driving work, as allowed by the company when drivers are temporarily unable to drive, whether for medical or nonmedical reasons, such as convictions for driving while intoxicated. But under UPS policy, later formalized in a collective bargaining agreement (CBA) between UPS Freight and the union, drivers with disabilities like Mr. Diebold who were reassigned to non-driving work for medical reasons were paid 10% less than drivers who were reassigned for non-medical reasons.

Considering the issue of UPS Freight’s policy, Chief Judge Julie A. Robinson agreed with the EEOC and ruled the policy violates Title I of the Americans with Disabilities Act (ADA) because it “(1) limit[s], segregat[es], or classif[ies] drivers because of disability adversely affecting the opportunities or status of disabled drivers and (2) us[es] standards, criteria, or methods of administration that have the effect of discrimination on the basis of disability.” UPS Freight also violated the law “by participating in a contractual relationship with the [union] that expressly discriminates against medically disabled UPS Freight drivers.” In addition to declaring that the policy and union contract violated the law, the court issued an injunction order “permanently [preventing UPS Freight] from discriminating on the basis of disability in violation of [the ADA and preventing] UPS Freight and the [union] from negotiating and ratifying terms of the next collective bargaining agreement which would discriminate on the basis of disability in violation [of the ADA].”

Andrea G. Baran, EEOC’s regional attorney in the St. Louis District Office, said, “The ADA is a powerful legal tool to protect workers from unlawful discrimination based on disability, and the EEOC will vigorously challenge such discriminatory policies and practices. It is also important that the Court ruled UPS Freight’s claim of simply following the terms of its union contract is no defense to violating the law.”

“We are very pleased the Court recognized the gravity of UPS Freight’s illegal policy and granted our injunction,” said Grant R. Doty, an EEOC senior trial attorney in St. Louis. “This will have an immediate impact on thousands of UPS Freight’s drivers nationwide who are subject to the policy and union contract.”

The EEOC is responsible for enforcing federal laws prohibiting employment discrimination. The St. Louis District Office oversees Missouri, Kansas, Nebraska, Oklahoma, and a portion of southern Illinois.

Crop Yield: $300K Settlement Against Farm Labor Contractor in Harassment, Retaliation Lawsuit

Sexual harassment isn’t limited to offices, factory floors, and restaurants. It happens on farms also. And in this recent case harassed female farm workers obtained some measure of justice.

Bornt & Sons, Inc. and its former farm labor contractor Barraza Farm Service, LLC/ Barraza Farm Service, Inc. will pay $300,000 and furnish other relief to settle a sexual harassment and retaliation lawsuit filed by the U.S. Equal Employment Commission (EEOC), the federal agency announced July 25.

According to the EEOC, a farm manager sexually harassed a class of four female workers by leering at them; grabbing their private areas; making sexual comments; and subjecting them to unwanted touching and kissing. The EEOC contends that the manager retaliated against at least three women who refused his sexual advances, either by firing or refusing to rehire them — a tactic also employed against workers who reported or complained about the harassment. Bornt & Sons and Barraza also fired at least three male farmworkers for their familial association with the sexual harassment victims, according to the EEOC. The EEOC further charged that the companies failed to take corrective action when they became aware of the federal investigation into sexual harassment, instead moving the harasser to a different farm.

Such alleged conduct violates Title VII of the Civil Rights Act of 1964. The EEOC filed suit against the agribusiness in U.S. District Court for the Southern District of California in April 2017 (EEOC v. Bornt & Sons, Inc. dba Bornt Family Farms; Barraza Farm Service, LLC dba Barraza Farm Service and/or Barraza Farm Services; and Barraza Farm Service, Inc. dba Barraza Farm Service and/or Barraza Farm Services, Case No: 3:17-cv-00678-W-NLS). The court approved the consent decree that resolves this case, which remains under the court’s jurisdiction for the term of the decree.

As part of the three-year consent decree, Bornt & Sons and Barraza Farm Services will pay $300,000 to the sexual harassment and retaliation victims. The companies further agreed to immediate reinstatement for those workers previously denied reemployment, along with the assignment of an EEO compliance coordinator who will assist in regular EEO compliance audits. The companies also agreed to the creation of a new employee policy manual addressing harassment and its reporting procedures, sexual harassment and EEO training of all staff members, and the creation of a centralized record keeping log to track all harassment complaints. The EEOC will monitor compliance with this agreement.

“Sexual harassment continues to remain a persistent problem in the agriculture industry,” said Anna Park, regional attorney for the EEOC’s Los Angeles District, which includes San Diego in its jurisdiction. “Employers should take advantage of the EEOC’s harassment report recommendations to ensure a hostile free work environment.”

Rosa Viramontes, director for the EEOC’s Los Angeles District Office, added, “In this case, the farmworkers exhibited great courage in reporting the harassment and showing others that there are resources to combat such abuse. Employers should welcome reports of harassment as an opportunity to stop and correct inappropriate behavior. Retaliation against workers who exercise their right to complain is not only against the law, but also allows the hostile work environment to fester.”

Bornt & Sons, headquartered in Holtville, Calif., operates organic farms specializing in organic salad mix in Imperial County, Calif. Barraza Farm Service is a labor contractor that provides workers to area farms. Barraza Farm Service has locations in Calipatria and Holtville, Calif.

Eliminating discriminatory practices 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 EEOC’s Strategic Enforcement Plan (SEP).

OSHA Goes Viral With Silica Video

If you’re an employer or worker in the construction trade, the federal government’s safety watchdog has important information for you on its new silica dust exposure standard.

The U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) announced yesterday that new frequently asked questions (FAQs) and training videos on the Agency’s standard for respirable crystalline silica in construction are now available online.

Developed by OSHA in cooperation with industry and labor organizations, the FAQs provide employers and workers with guidance on the standard’s requirements. In addition, a series of six new videos instruct users on methods for controlling exposure to silica dust when performing common construction tasks, or using construction equipment. The videos cover topics including handheld power saws, jackhammers, drills, and grinders.

Visit OSHA’s silica standard for construction page for more information and resources on complying with the standard.

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 help 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 www.osha.gov.