Archive for April, 2019

EEOC Gets $30K for Fired One-Eye Worker

There’s no reason per se why an employee with only one eye can’t continue on the job, as this employer has now learned.

Universal Diversified Enterprises, Inc. and Universal Diversified Solutions LLC, Miami-based sheet metal fabrication and installation companies, have agreed to pay $30,000 and furnish other relief to settle a disability discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency announced April 25.

According to the EEOC’s lawsuit, a sheet metal worker / installer lost his left eye in injury sustained outside of the workplace. After recovering from the injury and being cleared to return to work by his medical provider, his employer, without any assessment, refused to allow him to return to work.

Such alleged conduct violates the Americans with Disabilities Act (ADA). The EEOC filed suit in U.S. District Court for the Southern District of Florida (EEOC v. Universal Diversified Enterprises, Inc., Case No. 18-cv-23575-UU) after first attempting to reach a pre-litigation settlement through the EEOC’s conciliation process.

In addition to the $30,000 in damages, the five-year consent decree settling the suit requires Universal Diversified Solutions to adopt and distribute a comprehensive ADA policy; schedule yearly management and employee training on the ADA that the EEOC can attend; post a notice about the lawsuit; and report all complaints of disability discrimination or request for accommodation to the EEOC.

“Employers must understand that they cannot treat employees differently based upon stereotypes and unfounded fears,” said EEOC Miami District Director Michael Farrell. “We are glad to see this company will be taking steps to ensure its staff is educated about federal disability discrimination law.”

EEOC Regional Attorney Robert Weisberg added, “In the past year, the Miami District Office has brought enforcement actions on behalf of many people with visual, hearing and physical impairments who were unlawfully denied employment based on their disabilities. We will continue to protect the rights of perfectly capable workers who are denied opportunities on such an unfair and illegal basis.”

The EEOC’s Miami District Office is responsible for processing discrimination charges, administrative  enforcement, and conducting agency litigation in Florida, the Commonwealth of Puerto Rico, and the U.S. Virgin Islands.

Putting the Fire Out: Sprinkler Company Forks Over $407K to EEOC to Settle Harassment Case

It took the EEOC to the rescue to douse the flames of discrimination and harassment at this New York company.

A & F Fire Protection Co., Inc., a fire sprinkler and fire standpipe contractor located in West Babylon, N.Y., has agreed to pay $407,500 and take substantial non-monetary corrective action to settle a race discrimination, hostile work environment, and retali­ation lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC), the agency announced April 24.

In its lawsuit, the EEOC charged that A & F discriminated against a class of black and Hispanic employees, including subjecting them to the frequent use of slurs such as “n—-r” and “s–c” in the workplace. The EEOC also asserted that employees were retaliated against for complaining about or opposing unlawful discrimination. For example, after a supervisor refused to take retaliatory action against employees who had complained about discrimination, his job responsibilities were changed and his supervisory authority was reduced. Another employee who filed a charge of discrimination with the EEOC was later fired under pretextual circumstances.

Title VII of the Civil Rights Act of 1964 protects employees from race and national origin discrimination, including the creation of a hostile work environment, and from retaliation for speaking out about such conduct in the workplace. The EEOC filed suit in U.S. District Court for the Eastern District of New York (EEOC v. A & F Fire Protection Co., Inc., Civil Action No. 17-cv-04745) after first attempting to reach a pre-litigation settlement through its conciliation process. This case was litigated by EEOC trial attorneys Rosemary DiSavino, Kirsten Peters and Liane Rice.

On April 23, 2019, U.S. District Court Judge Denis R. Hurley entered a consent decree resolving the case. In addition to a $407,500 award for lost wages and other damages awarded to a class of black and Hispanic employees, the decree provides for robust injunctive relief, includ­ing annual training for employees and supervisors on federal laws prohibiting employment dis­crimination, with a focus on laws prohibiting race and national original discrimination and retali­ation; the appointment of an EEO (equal employment opportunity) coordinator; the obliga­tion to provide semi-annual reports to the EEOC; a revised anti-discrimination policy and pro­cedure; and the distribution to all employees of the revised policy, notice of the lawsuit, and a letter from A & F’s president affirming the company’s commitment to maintaining a workplace free of discrimination, hostile work environment and retaliation. The EEOC will monitor A & F’s compliance with the three-year decree.

“Even blatant displays of racism and retaliation have not been eradicated from today’s workplace,” said EEOC New York District Regional Attorney Jeffrey Burstein. “Faced with a hostile work environment infected by racial slurs, the victims in this case bravely spoke out against discrimination and filed charges with the EEOC. They successfully used the protections of federal law to help not only themselves, but also coworkers who were similarly harmed.”

Kevin Berry, the EEOC’s New York District director, added, “It is never easy for an employee to oppose discrimination at his or her current workplace, but federal protections are available, with serious consequences for employers who do not respect employees’ rights.”

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

EEOC Recoups $31,000 for Fired Epileptic

You can’t fire an employee because she can’t “control” her disability. Rather, you’ve got to work with her to see if she can continue in the job taking into account her disability.

A Golden Corral restaurant franchisee located in Augusta, Ga., will pay $31,000 and furnish significant equitable relief to settle a disability discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency announced April 23.

According to the EEOC’s lawsuit, B. Fehr, LLC, doing business as Golden Corral, fired Alicea Cruce in May 2016 after it accused her of “being unwilling or unable to control her epilepsy.”

This alleged conduction violates the Americans with Disabilities Act (ADA), which protects individuals from discrimination based on their disability or perceived disability.  The EEOC filed suit (EEOC v. B. Fehr, LLC d/b/a Golden Corral, Civil Action No. 1:18-cv-00145-JRH-BKE) in U.S. District Court for the Southern District of Georgia, Augusta Division after first attempting to reach a pre-litigation settlement through its voluntary conciliation process.

In addition to providing monetary damages to Cruce, the consent decree settling the lawsuit requires Golden Corral to implement and distribute a policy prohibiting discrimina­tion.  The decree also requires the company provide equal employment opportunity training to its management and non-management employees. The two-year decree further requires the restaurant to post a notice to its employees about the lawsuit and to provide semi-annual reporting to the EEOC about disability discrimination complaints.

“The agency is pleased that Golden Corral agreed to resolve this case quickly and to train its employees on its obligations under the ADA,” said Antonette Sewell, EEOC Atlanta District Office regional attorney.  “The EEOC will continue its efforts to eradicate discrimination suffered by employees on the frontlines,”  Darrell Graham, acting district director of the Atlanta District Office, said. “The employer apparently concluded Ms. Cruce’s condition posed a direct threat to herself or others in the workplace, however, that determination must be based on actual evidence and not mere speculation.”

The Atlanta District Office of the EEOC oversees Georgia and parts of South Carolina.

Our-Way-Or-the-Highway: Montana Contractor Fined for Safety Flaws at Asphalt Mixing Plant

You know those mobile machines that mix asphalt during highway construction? Turns out they can be hazardous for workers.

The U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) has cited Nelcon Inc. – a highway contractor based in Kalispell, Montana – for exposing workers to burns and falls at a mobile asphalt-mixing plant in Laurel, Montana. The company faces $261,418 in penalties for 23 serious violations.

Three workers suffered burns when ambient oil was poured into a larger hot oil tank. One of the workers was hospitalized after falling approximately 15 feet during the incident. OSHA inspectors determined that Nelcon Inc. failed to use fall protection systems; guard machinery; provide adequate personal protective equipment; control hazardous energy; and report a work-related incident leading to in-patient hospitalization within 24 hours, as required.

The company has 15 business days from receipt of the 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.

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 American working men and women by setting and enforcing standards, and providing training, education, and assistance. For more information, visit https://www.osha.gov.

Furniture Maker Fined $378K Penalty for Exposing Workers to Unsafe Conditions

Making a desk shouldn’t come at the price of worker safety, but federal enforcers say that’s just what happened at this New Hampshire facility.

The U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) has cited DCI Inc. for exposing employees to crushing and struck-by hazards at its Lisbon, New Hampshire, manufacturing plant. The furniture manufacturer faces a total of $378,488 in penalties after OSHA found 37 violations of workplace safety and health standards at the facility.

OSHA opened an inspection after an employee suffered serious injuries after being pulled into an automated woodcutting machine. Inspectors found that a supervisor had disabled a light curtain on the machine, preventing the machine from stopping when an individual comes too close to its point of operation. OSHA cited DCI for a willful violation for this hazard.

“Worker safety must always be an employer’s priority,” said OSHA Concord Area Office Director Rosemarie O. Cole. “Proactively addressing hazards achieves this goal.”

Concurrent comprehensive safety and health inspections identified other violations throughout the plant, including obstructed emergency exit routes; lack of eye, hand, and face protection; inadequate hearing and respirator safeguards; lack of procedures and training to prevent the unintended activation of machinery; amputation and laceration hazards; flammable and toxic hazards; untrained forklift operators; and electrical hazards.

View DCI’s citations herehere, and here. 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.

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 https://www.osha.gov.

Party Time: EEOC Recovers $155K for N.H. Autistic Applicant Denied Services of Job Coach

This employer may feel like partying because it didn’t have to go to court in this ADA case, but it still has to pay out.

Party City Corporation, a Rockaway, N.J.-based national discount and costume retailer, will pay $155,000 and provide other nationwide and regional relief to settle a discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC), the agency announced April 22.

The EEOC’s lawsuit, filed in September 2018, charged that Party City violated federal law by failing to hire a qualified employee with a disability at its Nashua, N.H., location after it became aware that she required a job coach as a reasonable accommodation for her disability.

According to the EEOC’s lawsuit, the applicant, who was on the autism spectrum and suffered from severe anxiety, had been receiving services from Easter Seals of New Hampshire to build up her self-confidence, including around working and applying for a job. One of these Easter Seals emp­loyees went with her in October 2017 to apply for a sales associate job with Party City. The applicant received a job interview, but when the hiring manager discovered that the woman accompanying her was a job coach, the hiring manager’s attitude changed dramatically.

The hiring manager told the job coach that Party City had hired people with disabilities with job coaches in the past and that it had not gone well, and made disparaging comments about those emp­loyees. Although both the applicant and the job coach explained to the hiring manager that the applicant had been successful shadowing others in previous retail jobs, the hiring manager was uninterested in either the applicant’s abilities or in the limited role the job coach would play, the EEOC said. The hiring manager tried to cut the interview short by telling the job coach in a patronizing tone, “Thank you for bringing her here,” while the applicant was still in the room. The hiring manager also stated, in the applicant’s presence, that the Party City employee who had encouraged the applicant to apply would hire anyone, and would “even hire an ant.”

The Americans with Disabilities Act (ADA) prohibits employers from discriminating based on disability and imposes a requirement that employees with disabilities be provided a reasonable accom­mo­dation, absent undue hardship on the employer. One of these accommodations can be the use of a job coach.

The EEOC filed its suit in U.S. District Court for the District of New Hampshire in Concord, N.H. (Civil Action No. 1:18-cv-00838-PB), after first attempting to reach a pre-litigation settlement through its conciliation process.

In addition to the monetary relief, the three-year consent decree settling the suit enjoins Party City from discriminating against qualified applicants with job coaches in the future. The decree also requires Party City to revise and improve its reasonable accommodation policy; train human resource employees on the new policy and distribute it to all employees; report to the EEOC on all denials of employment to applicants with job coaches; and provide a notice regarding the decree to employees within the New England region, where the store at issue is located.

“Federal law requires employers to consider disabled job applicants based on their abilities, not on demeaning stereotypes,” said Jeffrey Burstein, regional attorney for the EEOC’s New York District Office. “The EEOC will continue to prosecute violations of the law where we find them.”

Kevin Berry, director of the EEOC’s New York District Office, said, “Allowing this applicant to work with a job coach in her early weeks of employment would not have caused an undue burden on Party City. The ADA requires employers to make this type of reasonable accommodation so as to enable qualified people with disabilities to join the workforce, which is a win-win for everyone.”

Markus L. Penzel, senior trial attorney for the EEOC, added, “We commend Party City for agreeing to mediate this case so soon after the filing of the complaint and to take the steps necessary to prevent what occurred here from happening to any other applicant with a job coach.”

We All Stand Down: Week-Long National Fall Prevention Safety Event Runs From May 6-10

Readers of this blog know that falls are a persistent safety issue in the construction industry. The federal government’s upcoming annual safety stand-down seeks to bring renewed focus on fall prevention.

The U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) is joining with occupational safety organizations for the 6th annual National Fall Prevention Safety Stand-Down, May 6-10, 2019. The week-long event will focus attention on preventing falls in construction, the leading cause of fatalities in the industry.

The national stand-down encourages employers and workers to pause voluntarily during the workday for safety demonstrations, training in hazard recognition and fall prevention, and talks about hazards, protective methods, and the company’s safety policies, goals and expectations.

“Falls can be prevented when employers train and educate workers about these hazards properly and provide appropriate protection,” said Acting Assistant Secretary of Labor for Occupational Safety and Health Loren Sweatt. “This should be a priority during the first week of May and must be a priority every day. OSHA has tools readily available for employers and workers to address the prevention of fall hazards.”

OSHA anticipates thousands of work sites and millions of workers to observe the stand down worldwide in 2019. To help guide their efforts, the Agency’s fall prevention webpage provides information on how to conduct a successful event, and educational resources in English and Spanish, including:

  • series of fall safety videos that demonstrate how to prevent fall hazards from floor openings, skylights, fixed scaffolds, bridge decking, reroofing, and leading edge work.
  • OSHA’s Fall Prevention Training Guide that provides a lesson plan for employers, including several Toolbox Talks.
  • Fact sheets on ladders and scaffolding that describe the safe use of these types of equipment while performing construction activities.
  • A brief video, 5 Ways to Prevent Workplace Falls, encourages employers to develop a fall prevention plan, and to provide workers with fall protection and training.

Employers are encouraged to provide feedback after their events, and to obtain a personalized certificate of participation.

The national safety stand-down is part of OSHA’s fall prevention campaign, and was developed in partnership with the National Institute for Occupational Safety and Health, National Occupational Research Agenda, and The Center for Construction Research and Training (CPWR). To learn more about preventing falls in construction, visit OSHA’s Fall Prevention Campaign page.

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.