Archive for January, 2019

OSHA Rescinds Requirement for Electronic Submission of Workplace Injury Logs, Reports

The Labor Department took another step last week to ease reporting requirements on workplace injuries and illnesses, citing protecting worker privacy as its main concern.

To protect worker privacy, the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) has issued a final rule that eliminates the requirement for establishments with 250 or more employees to electronically submit information from OSHA Form 300 (Log of Work-Related Injuries and Illnesses) and OSHA Form 301 Injury and Illness Incident Report) to OSHA each year. These establishments are still required to electronically submit information from OSHA Form 300A (Summary of Work-Related Injuries and Illnesses).

By preventing routine government collection of information that may be quite sensitive, including descriptions of workers’ injuries and body parts affected, OSHA is avoiding the risk that such information might be publicly disclosed under the Freedom of Information Act (FOIA). This rule will better protect personally identifiable information or data that could be re-identified with a particular worker by removing the requirement for covered employers to submit their information from Forms 300 and 301. The final rule does not alter an employer’s duty to maintain OSHA Forms 300 and 301 on-site, and OSHA will continue to obtain these forms as needed through inspections and enforcement actions.

In addition, this rule will allow OSHA to focus its resources on initiatives that its past experience has shown to be useful—including continued use of information from severe injury reports that helps target areas of concern, and seeking to fully utilize a large volume of data from Form 300A—rather than on collecting and processing information from Forms 300 and 301 with uncertain value for OSHA enforcement and compliance assistance.

The agency is also amending the recordkeeping regulation to require covered employers to electronically submit their Employer Identification Number with their information from Form 300A. The final rule’s requirement for employers to submit their EIN to OSHA electronically along with their information from OSHA Form 300A will make the data more useful for OSHA and BLS, and could reduce duplicative reporting burdens on employers in the future.

OSHA has determined that this final rule will allow OSHA to improve enforcement targeting and compliance assistance, protect worker privacy and safety, and decrease burden on employers.

Collection of Calendar Year 2018 information from the OSHA Form 300A began on January 2, 2019. The deadline for electronic submissions is March 2, 2019

Skirting the Law: Restaurant’s Insistence Female Employee Wear Pants Costs It $25K in Settlement

My-way-or-the-highway isn’t a good approach to complying with federal civil rights laws. A restaurant that made no exceptions to its “blue jeans” dress code has now learned that lesson.

GB Flowood Operations, LLC, which operates a Flowood, Miss., restaurant under the name “Georgia Blue,” will pay a former employee $25,000 and furnish other relief to settle a religious discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency announced November 7.

According to the EEOC’s lawsuit, in October 2015 Georgia Blue hired Kaetoya Watkins to work as a server. When she learned the company’s dress code required servers to wear blue jean pants, Watkins notified the manager of her Apostolic Pentecostal religious belief that women should wear only skirts or dresses and asked to be allowed to wear a blue jean skirt. According to the EEOC, GB Flowood denied the accommodation, advising Watkins that “the owner” would “not stray away from” the company dress code.

Title VII of the Civil Rights Act of 1964 prohibits religious discrimination and requires employers to make reasonable accommodations to employees’ and applicants’ sincerely held religious beliefs as long as this does not pose an undue hardship. The EEOC filed suit (Case No. 3:17-cv-00777-TSL-LRA in U.S. District Court for the Southern District of Mississippi) after first attempting to reach a pre-litigation settlement through its conciliation process.

“This case is a reminder that employers risk violating the law if they require an employee to choose between her job and her religion,” said EEOC Birmingham Regional Attorney Marsha L. Rucker, whose jurisdiction includes Mississippi. “We are pleased that GB Flowood Operations is willing to make changes to its policies to accommodate the religious practices of its employees and prospective employees.”

In addition to the monetary payment, the consent decree settling the suit requires the company to revise its written policies and procedures prohibiting employment discrimination and include procedures for reasonable accommodations based on religion, including making exceptions to the company’s dress code to accommodate employees’ religious beliefs and practices. The company will also provide training to its managers on the laws enforced by the EEOC and post a notice of non-discrimination on employee bulletin boards.

“This case emphasizes the EEOC’s commitment to enforcing the rights of employees to religious freedom in the workplace,” said Bradley Anderson, district director of the EEOC’s Birmingham District Office. “Employers should be on notice that the EEOC will act aggressively to protect employees from this type of discrimination,” he added.

EEOC Gets $125K for Fired Asthmatic Employee

This California hotel might wish it had been as accommodating to this disabled employee as it is to its guests.

The U.S. Equal  Employment Opportunity Commission (EEOC) announced November 29 the settlement of a  disability discrimination lawsuit against Merritt Hospitality, LLC and HEI  Hotels and Resorts, LLC, which have agreed to pay $125,000 and provide other  injunctive relief. This settlement was approved by the U.S. District Court of  Southern California.

According to the EEOC’s lawsuit, an  employee at the Embassy Suites hotel in San Diego was assigned to a workspace  that did not have ventilation or windows. These working conditions exacerbated  the employee’s disability, causing significant breathing issues. The employee  immediately informed the company that she needed an accommodation for her  disability. The company failed to provide her with an effective accommodation.  Within days of this request, the employee was forced to the emergency room  where she remained overnight due to the severity of her condition. Instead of  engaging in the interactive process with the employee, the company fired her,  the EEOC charged.

Such conduct violates the Americans  with Disabilities Act (ADA). The EEOC filed suit in the U.S. District Court for  the Southern District of California (U.S. EEOC v.Merritt Hospitality, LLC et al., Case No. 3:18-cv-0654 MMA-AGS)  after first attempting to reach a pre-litigation agreement through its  conciliation process. The court will maintain jurisdiction over this case for  the term of the five-year consent decree.

In addition to monetary relief, Merritt  Hospitality has agreed to retain an EEO monitor; appoint an internal ADA  coordinator; revise its written policies and procedures regarding compliance  with the ADA; create and maintain an accommodation log; implement training to  all employees on the ADA; develop a centralized tracking system for accommodation  requests and discrimination complaints; and submit annual reports to the EEOC  verifying compliance with the decree.

“The interactive process is an  integral part of the ADA and requests for accommodations must be taken  seriously,” said Anna Park, regional attorney for the EEOC’s Los Angeles  District Office, which includes San Diego in its jurisdiction. “We are  encouraged that Merritt Hospitality and HEI Hotels and Resorts have put in  place meaningful measures to address disability discrimination and create a  more inclusive workplace.”

Christopher Green, director of the  EEOC’s San Diego Local Office, added, “The EEOC strives to dispel the stereotype  that providing  reasonable accommodations  will have a negative impact on employers. The injunctive relief put in place by  this decree will have a long-lasting effect on the company and all its  employees.”

One of the six national priorities  identified by the Commission’s Strategic Enforcement Plan (SEP) is for the EEOC  to address emerging and developing issues in equal employment law, including  issues involving the ADA and pregnancy-related limitations, among other  possible issues.

Rescinded Job Offer Draws EEOC Lawsuit Under ADA; Safety Fears Unfounded, Agency Alleges

Another employer is learning that fears about a job applicant’s disability are not sufficient legal grounds for denying the person a job.

Exide Technologies, a global corporation headquartered in Milton, Ga., that manufactures, distributes and sells stored energy components, violated federal law when it rescinded its job offer to an applicant after it learned that he suffered from a medical condition, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit it filed November 15.

According to the EEOC’s suit, on May 12, 2015, Exide made Gregory Greene a conditional job offer as a machine operator at its manufacturing facility in Columbus, Ga. When Greene went for a post-offer company physical, Exide learned he has chronic kidney disease. As a result of unfounded fears about his ability to perform the job safely, Exide unlawfully rescinded its job offer to Greene three days later, the EEOC said.

Such alleged conduct violates the Americans with Disabilities Act (ADA). The EEOC filed suit (EEOC v. Exide Technologies Inc., Civil Action No. 4:18-cv-00229-CDL) in U.S. District Court for the Middle District of Georgia, Columbus Division after first attempting to reach a pre-litigation settlement through its conciliation process. The EEOC is seeking reinstatement, back pay and compensatory and punitive damages for Greene, as well as injunctive relief designed to prevent future discrimination.

“An employer cannot refuse to hire a qualified applicant simply because of fears about a disability,” said Antonette Sewell, regional attorney for the EEOC’s Atlanta District Office. “The employer is required to first do an independent analysis about whether the employee’s disability poses a direct threat of harm to himself or others. Rescinding a disabled applicant’s job offer based on assumptions about the person and his disability violates federal law, and the EEOC is here for the rights of victims of such baseless discrimination.”

Bernice Williams-Kimbrough, district director of the Atlanta office, said, “The EEOC is committed to stopping workplace disability discrimination in Georgia and across the country. Under the ADA, employers are not permitted to deny an employment opportunity to a person with a disability based on generalized fears and assumptions.”

EEOC Secures $65K For Kidney Disease Sufferer

This employee at a Whole Foods Market in North Carolina deserved better when it came to her seeking treatment for a kidney disorder, federal civil rights enforcers charged.

Whole Foods Market Group, Inc.,  doing business as Whole Foods Market, headquartered in Austin, Texas, will pay  $65,000 and provide other relief to settle a disability discrimination lawsuit  brought by the U.S. Equal Employment  Opportunity Commission (EEOC), the federal agency announced November 5.  The EEOC had charged that Whole Foods Market  violated federal law by failing to accommodate and firing an employee because  of her disability.

According  to the EEOC’s lawsuit, Whole Foods hired Diane Butler in 2005 as a cashier for  a facility in Raleigh, N.C. Butler has polycystic kidney disease, a genetic  disease causing uncontrolled growth of cysts in the kidney, eventually leading  to kidney failure. In 2009, while working for Whole Foods, Butler had a kidney  transplant. The EEOC said that in December 2015, Butler missed work on two  occasions because she had been hospitalized and needed to visit the doctor  because of her kidney. The EEOC further alleged that although Butler informed  Whole Foods that she needed time off due to her kidney impairment, the company  nonetheless fired Butler because of her absences.

Such  alleged conduct violates the Americans with Disabilities Act (ADA), which  protects employees from discrimination based on a disability and requires  employers to provide employees with disabilities with reasonable accommodations  unless it would be an undue hardship. The EEOC filed suit in U.S. District  Court for the Eastern District of North Carolina, Western Division (Equal  Employment Opportunity Commission v. Whole Foods Market Group, Inc. d/b/a Whole  Foods Market; Civil Action No 5:17-cv-00494-FL) after first attempting to reach  a pre-litigation settlement through its conciliation process.

In  addition to the $65,000 in damages, the two-year consent decree settling the  suit requires that Whole Foods Market develop a disability accommodation  policy. In addition, the company will provide annual training to its South  Region human resource employees, and to managers and supervisors at its Wade  Avenue store on the requirements of the ADA, including reasonable accommodation.  Whole Foods Market must also post an employee notice concerning the lawsuit and  employee rights under federal anti-discrimination laws.

“An  employer who is on notice that an employee’s absence is related to her  disability must comply with the ADA’s mandate to reasonably accommodate her by  making exceptions to its absenteeism policy if doing so doesn’t cause an undue  hardship,” said Lynette A. Barnes, regional attorney for the EEOC’s Charlotte  District. “Ignoring federal anti-discrimination law only makes things worse for  a company as well as employees.”

No Logic Here: Northwest Staffing Company Sued by EEOC for Not Hiring Deaf Applicant

The lawsuits against employers that refuse to give deaf applicants a fair shot at a job keep piling up.

A Western Washington staffing and recruiting company violated federal law when it refused to consider a qualified job applicant because he is deaf, the U.S. Equal Employment Opportunity Commission (EEOC) alleged in a lawsuit filed November 1.

According to the EEOC’s investigation, Keysi Severino-Gomez applied online for warehouse positions in Tacoma advertised by Logic Staffing. Work he was well-qualified to perform. Severino-Gomez, who is deaf, utilized Video Relay Service (VRS) to return a call left by a Logic Staffing recruiter regarding his application. Realizing Severino-Gomez is deaf, the recruiter immediately told him he could not do the warehouse job and that his inability to hear would pose a safety risk. Severino-Gomez repeatedly noted he had successfully performed similar work in the past without any safety issues. The recruiter then placed Severino-Gomez on hold to consult with her manager, but returned to state that Logic Staffing did not hire people who are deaf and ended the call.

Such alleged conduct violates the Americans with Disabilities Act (ADA) which prohibits rejecting a qualified applicant because of a disability. The EEOC filed suit (CIV# 18-CV-1594) in U.S. District Court for the Western District of Washington after first attempting to reach a pre-litigation settlement through its conciliation process.

The EEOC’s lawsuit seeks lost wages, front pay, compensatory and punitive damages and injunctive relief designed to prevent such discrimination in the future.

“Mr. Severino-Gomez was highly qualified for the position to which he applied and deserved the opportunity to be judged based on his abilities instead of Logic Staffing’s unfounded and discriminatory beliefs,” said William Tamayo, the EEOC’s San Francisco district office director. “Congress enacted the ADA to prevent employers from refusing to hire qualified applicants based on myths, fears or stereotypes concerning disability.”

EEOC Regional Attorney Roberta Steele said, “This is the third lawsuit we’ve filed this year on behalf of a qualified deaf applicant denied the opportunity to interview, and we recently announced a settlement obtaining $88,000 and a job position for another qualified deaf job seeker. These are candidates with valuable skills and experience, and it is wrong to shut them out of the workplace based on fears and stereotypes about being deaf.”

EEOC Trial Attorney Linda Ordonio-Dixon said, “Employers cannot make a blanket decision to exclude job applicants because of a disability. The EEOC will vigorously protect the rights of employees, and job applicants, to ensure they are given the same opportunities in the workplace as any other person.”

According to www.logicstaffing.com, Logic Staffing has offices in Tacoma, Sumner and Kent, and, in 2017, placed more than 900 temporary employees in Western Washington.

FAQs Explain Silica Exposure Requirements

Thankfully, the government shutdown hasn’t kept workplace safety regulators from doing their jobs.

The U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) yesterday posted new frequently asked questions (FAQs) on the agency’s standard for respirable crystalline silica in general industry.

Topics covered in the FAQs include Scope and Application; Definitions; Exposure Assessments; Regulated Areas; Methods of Compliance; Written Exposure Control Plan; Housekeeping; Medical Surveillance; Communication of respirable crystalline silica hazards to employees; Recordkeeping; and Temporary Employees.

OSHA developed the FAQs in consultation with industry and union stakeholders to provide guidance to employers and employees on the standard’s requirements, such as exposure assessments, regulated areas, methods of compliance, and communicating silica hazards to employees. The questions and answers are organized by topic, and include an introductory paragraph that provides background information about the regulatory requirements.

Visit OSHA’s silica standard for general industry webpage 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.