Archive for June, 2019

EEOC: Health Facility Crossed Legal Line By Rescinding Job Offer After Positive Job Screen

You can’t legally yank a job offer from an applicant simply because he or she is taking a prescribed medication.

An Oconomowoc, Wis., inpatient residential health facility violated federal law when it rescinded an applicant’s job offer because she tested positive for a prescribed medication, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit it filed June 27. Rogers Behavioral Health provides treatment for various conditions including addiction, anxiety, depression, mood disorders and general mental health.

The EEOC’s investigation revealed that Rogers offered the applicant a position as an intake specialist. As part of her pre-employment requirements, Rogers instructed her to have a physical and a drug screen. At her physical, she disclosed that she had a prescription for Alprazolam, the generic form of Xanax, a medication commonly prescribed for anxiety. She also disclosed other medical impairments that she had. She also provided a sample for her drug screen.

Noble Diagnostics, a third-party administrator of workplace drug and alcohol tests, performed the drug screen, which showed that the applicant tested positive for Alprazolam. The doctor who performed the physical indicated on the physical examination form that she had reviewed the applicant’s drug screen and found her medically acceptable for work as an intake specialist.

Rogers failed to contact the applicant or give her the opportunity to provide additional prescription information to contest the drug screen. Rogers withdrew the job offer from the applicant by email without explaining the decision was related to her drug screen. The EEOC said that Rogers rescinded the offer because it regarded the applicant as disabled, a conclusion it reached because of her drug screen.

Such alleged conduct violates the Americans with Disabilities Act and Title VII of the Civil Rights Act of 1964, which prohibit discrimination on the basis of actual or perceived disability. The EEOC filed suit (EEOC v. Rogers Behavioral Health, Civil Action No. 19-cv-00935) in U.S. District Court for the Eastern District of Wisconsin on June 27 after first attempting to reach a pre-litigation resolution through its conciliation process.

The case has been assigned to Magistrate Judge Nancy Joseph. The EEOC is seeking full relief, including reinstatement, back pay, compensatory and punitive damages, and non-monetary measures to correct Rogers’s practices going forward.

“Rogers Behavioral Health cannot hide its discriminatory intent behind a complicated pre-employment process,” said Gregory Gochanour, regional attorney for the EEOC’s Chicago District Office. “The plain fact is that Rogers knows Alprazolam is a common prescription medication, and that rather than acknowledging the prescription information already disclosed or giving the applicant the opportunity to correct her drug screen, it chose to rescind her job offer because it did not want to hire an employee whom it regarded as disabled.”

Julianne Bowman, district director of the EEOC’s Chicago District Office, said “When employers like Rogers Behavioral Health reject qualified candidates who they believe have disabilities, they not only harm those candidates, they deprive the national economy of the valuable contributions those candidates can make.”

The EEOC’s Chicago District is responsible for investigating charges of employment discrimination, administrative enforcement, and the conduct of the agency litigation in Illinois, Wisconsin, Minnesota, Iowa, North Dakota, and South Dakota, with area offices in Milwaukee and Minneapolis.

Falling Down: Collapse at Florida Worksite Kills Worker; Contractor Pays $87K in OSHA Fines

Some employers still aren’t doing enough to protect their workers from falls–with sometimes deadly results.

The U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) has cited GA&L Construction Corp. Inc. and The Rinaldi Group of Florida LLC for failing to protect employees from fall hazards at a construction worksite in Miami, Florida. The two companies face $87,327 in penalties.

An employee was fatally injured after falling from an elevated work platform. OSHA inspectors determined that workers were exposed to fall, struck-by, and impalement hazards. OSHA cited the employers for failing to provide fall protection, and conduct regular inspections of the worksite, and permitting workers to use an unsecured extension ladder.

“Workplace safety standards exist to ensure that workers return to their families at the end of each day free from harm,” said OSHA Fort Lauderdale Area Director Condell Eastmond. “Disregarding legal obligations to identify and eliminate hazards can cause tragedies.”

Read the citations for GA&L Construction Corp. Inc. and The Rinaldi Group of Florida.

OSHA offers compliance assistance resources on fall protection in construction at https://www.osha.gov/Publications/OSHA3146.pdf.

The companies have 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.

EEOC: Deaf Applicant Was Denied Fair Shot at Limousine Driver Job by Company in Illinois

There’s no good reason why a deaf person who is qualified to drive a limousine shouldn’t be given the job, says the federal government.

Des Plaines, Ill.-based M&M Limousine Service violated federal law when it refused to hire or consider potential accommodations for a qualified deaf job applicant, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit filed Monday.

According to the EEOC’s lawsuit, the applicant applied for the position of limousine driver, but M&M refused to hire him and failed to consider whether he could do the job, with or without reasonable accommodations. The EEOC said that M&M told the applicant that it could not hire him because he is deaf, despite the fact that he met the qualifications for the position.

Such alleged conduct violates violate the Americans with Disabilities Act (ADA), which prohibits discrimination based on disability and requires an individualized assessment of whether an applicant with a disability can perform the job, with or without reasonable accommodation.

The EEOC filed suit (EEOC v. M&M Limousine, 19-CV-4213) in U.S. District Court for Northern District of Illinois after first attempting to reach a pre-litigation settlement through its conciliation process. The lawsuit asks the court to issue an injunction against M&M prohibiting the company from engaging in employment practices that discriminate on the basis of disability in the future and ordering M&M to carry out policies, practices and programs that provide equal opportunities for people with disabilities. The lawsuit also asks M&M to provide back pay and front pay as well as compensatory and punitive damages to the affected applicant.

“It is regrettable the M&M refused to hire the applicant based on unfounded assumptions that a deaf person cannot do the job rather than engaging in an individualized assessment of whether he could do the job with or without a reasonable accommodation, as required by the ADA,” said Greg Gochanour, the regional attorney for the EEOC’s Chicago District Office.

Julianne Bowman, the EEOC’s district director in Chicago, added, “The ADA was enacted to combat the type of unsubstantiated assumption which M&M made that a person with a disability is incapable of performing work.”

Hospital Coughs Up $74K to Settle EEOC Suit Alleging Bias Against Woman Who Refused Shot

Why this hospital wouldn’t let a receptionist wear a mask during flu season is bewildering–and triggered a religious discrimination lawsuit.

Memorial Healthcare, which operates a hospital in Owosso, Mich., will pay $74,418 and furnish other relief to settle a religious discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency announced Tuesday. The EEOC alleged that Memorial violated federal law by refusing to hire a medical transcriptionist because of her religious beliefs against receiving flu shots and refusing to accommodate those beliefs.

According to the EEOC’s suit, Memorial refused to accommodate the sincerely held religious requirement of the transcriptionist, whose Christian beliefs require her to forgo inoculations. The transcriptionist offered to wear a mask during flu season. This was an acceptable alternative under hospital policy for those with medical problems with the flu shot, but Memorial refused to extend it to her. It then rescinded her offer of employment.

Such actions violate Title VII of the Civil Rights Act of 1964, which requires employers to provide reasonable accommodations for religious observances and beliefs, absent undue hardship. The EEOC filed its suit (Civil Action No. 2:18-cv-10523) in U.S. District Court for the Eastern District of Michigan) after first attempting to reach a pre-litigation settlement through its conciliation process.

Under the consent decree settling the suit, Memorial confirms that it now permits those with religious objections to wear masks in lieu of having a flu vaccine. The hospital will also train managerial staff participating in the accommodation process on the religious accommodation policy. In addition, the transcriptionist will receive $34,418 in back pay, along with $20,000 in compensatory damages and $20,000 in punitive damages.

“Employees should not have to check their religious beliefs at the workplace door,” said Dale Price, the EEOC attorney who handled the case. “The transcriptionist’s objection could have been easily accommodated by allowing her to use the mask option utilized by other employees. Nevertheless, Memorial’s revision of its policy is a welcome change that will provide broader accommodations for applicants and employees.”

The Indianapolis District Office of the EEOC oversees Indiana, Michigan, and parts of Kentucky and Ohio.

Plastics Co. Sued for Hostile Work Environment

Firing an employee for filing a harassment complaint only compounds the employer’s legal mess.

Element Plastics Mfg., LLC, a plastics manufacturer based in Sugar Land, Texas, violated federal law by creating a hostile work environment which resulted in the sexual harassment of a female employee, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit it filed on June 20th. According to the EEOC’s lawsuit, the employee was subsequently fired in retaliation for complaining about the abuse, also in violation of federal law.

The EEOC’s lawsuit charges that an Element Plastics employee was subjected to sexual comments, unwelcome touching and other improper and sexually hostile conduct by an employee or supervisor of the company beginning in December 2016. Within several weeks of her complaining about the harassment to her direct supervisor and a manager, the female employee was fired on or about April 27, 2017 in retaliation for her complaints.

Such alleged conduct violates Title VII of the Civil Rights Act of 1964. The EEOC filed suit (Civil Action No. 4:19-cv-02218) against Element Plastics Mfg., LLC in U.S. District Court for the Southern District of Texas, Houston Division, after first attempting to reach a pre-litigation settlement through its conciliation process. The EEOC seeks an injunction prohibiting such actions in the future, as well as back pay with pre-judgment interest, compensatory damages and punitive damages for the employee, in amounts to be determined at trial.

“Federal law mandates that employees be free of sexual harassment in the workplace and protected from adverse employment actions as a result of complaining about such behavior,” said Rayford O. Irvin, district director of the EEOC’s Houston District Office. “Such conduct deprives employees of equal employment opportunities and therefore violates Title VII.”

Rudy Sustaita, the EEOC’s regional attorney in Houston, explained, “Sexual harassment in the workplace cannot be tolerated. Further, an employee must have proper recourse for complaining about sexual harassment without fear of losing her job.”

The EEOC’s senior trial attorney in charge of the case, Connie Gatlin, added, “Title VII protects employees from sexually abusive and hostile working environments. Allowing sexual harassment to flourish unchecked and punishing an employee for complaining about it constitutes workplace dis­crimination.”

According to the Texas Secretary of State, Element Plastics Mfg., LLC is a manufacturing company in existence since January 2015.

The EEOC’s Houston District Office is located on the sixth floor of the Leland Federal Building at 1919 Smith St. in Houston.

Broken Arm Sets Back Employer $106K

Hopefully this fine sends a message to other employers to step up the safe operations of their machinery.

The U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) has cited Silgan Containers Manufacturing Corp. after an employee suffered a broken arm while servicing a machine at its Napoleon, Ohio, facility. The company faces proposed penalties of $106,080 for one repeat and three serious safety violations.

OSHA’s investigation found the aluminum can manufacturer failed to lockout the machine that caused the employee’s injury. The Agency cited the company for its failure to train employees on energy control procedures, perform periodic inspections of energy control procedures, and guard the machine’s pinch point. OSHA cited Silgan Containers for similar violations at its Menomonee Falls, Wisconsin, plant in 2015.

“Employers are required to train their employees on proper lockout/tag out procedures to prevent the release of stored energy or unexpected startup of equipment,” said OSHA Area Director Kimberly Nelson in Toledo, Ohio.

OSHA offers compliance assistance resources on lockout-tagout hazards on OSHA’s Control of Hazardous Energy page and the interactive eTool.

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 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/.

Safety Violations Cost Employer $183K in Fines

The revival of American manufacturing mustn’t come at the expense of employees’ safety and health.

The U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) has cited Ohio Gratings Inc. – a manufacturer of aluminum, stainless steel, and carbon products based in Canton, Ohio – for exposing employees to respiratory, chemical, and other hazards. OSHA cited the company for 17 serious and five other-than-serious safety and health violations, and faces penalties of $183,748.

OSHA initiated a December 2018 inspection after receiving a formal complaint alleging poor ventilation, and lack of training on chemicals used at the facility. OSHA inspectors determined that the company operated a dip tank containing flammable liquid without using proper drainage, overflow piping, adequate ventilation, and fire protection. The Agency cited Ohio Gratings for failing to ensure employees used personal protective equipment, inadequate machine guarding, recordkeeping deficiencies, struck-by hazards, and exposing workers to flammable liquids.

“OSHA standards require employers to regularly conduct hazard analyses of the worksite, train workers to recognize hazards, and provide appropriate personal protective equipment to minimize exposure to materials that can cause long-term health issues,” said OSHA Area Director Howard Eberts, in Cleveland, Ohio.

OSHA offers compliance assistance resources on controlling exposure to chemical hazards and toxic substances.

The company has contested the citations and penalties, and the case will now go 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.

Extended Leave Case Goes EEOC’s Way

The EEOC got this Illinois nonprofit to pay up for denying extended leave to a cancer survivor and to change its personnel practices so such denials don’t happen again.

Illinois Action for Children (IAFC), a large Illinois child care and childhood education-related nonprofit, has agreed to pay a former employee $60,000 and provide other relief to settle a disability discrimination lawsuit brought by the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency announced yesterday.

According to the EEOC, IAFC violated federal anti-discrimination law when it fired an employee who was on leave receiving treatment for breast cancer rather than granting her request for additional leave for more treatment.

Such alleged conduct violates the Americans with Disabilities Act (ADA), which requires employers to provide reasonable accommodations to qualified employees with disabilities. The EEOC filed the case, EEOC v. Illinois Action for Children, Civil Action No. 17-cv-6224, on Oct. 28, 2017, in U.S. District Court for the Northern District of Illinois, Eastern Division, after first attempting to reach a pre-litigation settlement through the agency’s conciliation process. EEOC Trial Attorneys Kelly Bunch and Ethan Cohen and Supervisory Trial Attorney Diane Smason litigated the case against IAFC.

The consent decree settling the suit, entered by Judge Rebecca Pallmeyer on June 18, 2019, prohibits disability discrimination and retaliation at IAFC in the future. In addition to monetary relief of $60,000 for the former employee, over the next two years, the consent decree requires IAFC to provide annual in person training on the ADA to IAFC’s officers, supervisors, managers, and HR personnel, and online training on the ADA to all other employees. Over the next two years, IAFC will also keep a record and provide reports every seven months to the EEOC containing information related to the processing of medical leave requests (other than FMLA) for continuous leave in excess of one week.

“The EEOC brought this case after making every attempt at informal conciliation,” said Chicago District Director Julie Bowman. “This employer spent over a year in litigation after it terminated an employee less than a month before she would have been able to return to work from a medical leave of absence. Conciliation gives employers the chance to resolve charges of discrimination without taking on the burdens and expense of going to court. It is unfortunate when employers let this opportunity slip by them.”

EEOC Regional Attorney Gregory Gochanour noted that this is the second ADA leave-of-absence case the Chicago District Office has settled in recent months.

Gochanour said, “These cases should serve as a reminder to employers that they need to consider their obligation to provide reasonable accommodations under the ADA when acting on an employee’s request for extended medical leave.”

The EEOC’s Chicago District Office is responsible for processing charges of discrimination, administrative enforcement and the conduct of agency litigation in Illinois, Wisconsin, Minnesota, Iowa and North and South Dakota, with Area Offices in Milwaukee and Minneapolis.

Store, Owner Retaliated Against Manager Who Reported Harassment, EEOC Alleges in New Suit

Ridding the workplace of sexual harassment isn’t possible if those who report it do so at the risk of being fired or disciplined.

Hat World, Inc. d/b/a “Lids” and Genesco, Inc., former owner of Hat World, violated federal law by retaliating against a store manager who reported sexual harassment and filed a discrimination charge with the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency charged in a lawsuit filed June 13.

According to the EEOC’s lawsuit, in early 2016 and early to mid-2017, Jalesa Staton, store manager of the Greenbrier Square “Lids” location, made written complaints to corporate human resources for Hat World and Genesco that she was being sexually harassed by her district manager. Following the 2017 complaints, Staton was disciplined and involuntarily transferred to the Military Circle “Lids” location. In May 2017, Staton made another discrimination complaint and filed a dis­crimination charge with the EEOC. The EEOC’s complaint charges that the companies fired Staton shortly after she filed the EEOC charge because she filed the charge.

Such alleged conduct violates Title VII of the Civil Rights Act of 1964, which prohibits employers from retaliating against employees who engage in activity protected under Title VII, including complaining about alleged discrimination or filing EEOC charges. The EEOC filed suit in U.S. District Court for the Eastern District of Virginia, Norfolk Division (EEOC v. Hat World, Inc. d/b/a Lids, et al., Civil Action No. 2:19-cv-00314) after first attempting to reach a pre-litigation settlement through its conciliation process. The EEOC seeks back pay, compensatory damages and punitive damages, as well as injunctive relief.

“A company’s ability to provide a work environment free of unlawful harassment is absolutely dependent on its employees being able report harassment or file an EEOC charge without hesitation,” said EEOC Regional Attorney Lynette Barnes. “Every time an employee complaint about harassment, be it formal or informal, leads to discipline and discharge, the entire work environment is placed at risk.”

OSHA Inspection Uncovers Safety Violations at Pa. Natural Gas Plant; Companies Fined $98,000+

Natural gas is an American success story as we export it around the world. Let’s not tarnish it with unsafe working conditions for workers in the natural gas industry.

The U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) has cited Energy Transportation LLC and MW Logistics Services LLC for serious safety violations after a fatal fire at a natural gas processing plant in Houston, Pennsylvania.

OSHA inspected Energy Transportation LLC, the company contracted to clean lines and vessels at the plant, after four of the company’s employees suffered burns and needed hospitalization. One of the employees later died. OSHA cited the company for violations of the process safety management (PSM) standard, and exposing employees to flammable vapor and liquid while they off-loaded waste material from a vessel into a mobile tank.

OSHA also inspected MW Logistics Services LLC, the host employer that operates the natural gas processing plant. The Agency cited the company for violations of PSM standards, and for failing to inspect the facility’s energy control procedures at least annually.

Energy Transportation LLC faces penalties totaling $51,148.  MW Logistics Services LLC faces $47,360 in penalties.

“Providing workers with a safe and healthful workplace is required of every employer,” said OSHA Area Director Christopher Robinson, in Pittsburgh, Pennsylvania. “This tragedy could have been prevented if the employer had followed safety processes to control the release of gases from highly hazardous chemicals.”

OSHA offers employers compliance assistance resources related to process safety management.

Both companies have 15 business days from receipt of the citations (view the citations herehere, and here) 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.