Heavy Lifting: Care Center Pays $170K to Settle Pregnancy Bias Suit Over Denial of Light Duty

Here’s another resolution for employers as we enter 2020. Know the rules on light-duty assignments for pregnant workers!

Geriatric care giant Life Care Centers of America, Inc. and its affiliate, South Hill Operations, LLC, doing business as “Life Care Center of South Hill,” will pay $170,000 to a former employee to settle a pregnancy discrimination lawsuit brought by the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency announced yesterday.

The employee worked as a Certified Nursing Assistant (CNA) for Life Care Centers in Puyallup, Washington. According to the EEOC’s suit, Life Care refused to accommodate her request not to lift anything heavier than 15lbs. for the last part of her pregnancy.  Stating that Life Care only provided light duty to employees injured on the job, the company placed her on involuntary, unpaid leave.  The EEOC also alleged Life Care supervisors told her to reapply for a CNA job once she was ready to return to unrestricted duty, which she understood to mean that she was fired.

Denying light duty to a pregnant employee while providing it to similarly-abled non-pregnant employees may violate Title VII of the Civil Rights Act of 1964, as amended (Title VII) and The Pregnancy Discrimination Act (PDA).  The EEOC filedsuit (EEOC v. Life Care Centers of America, Inc. and South Hill Operations LLC d/b/a Life Care Center of South Hill in Puyallup, No. 2:18-cv-01411-RAJ) in U.S. District Court for the Western District of Washington, after first attempting to reach a voluntary settlement with Life Care through conciliation.

Under the three-year consent decree, Life Care agrees to pay the employee $170,000 in lost wages and compensatory damages and provide training on Title VII and the PDA to all employees, including management and supervisors at its Washington state facilities, and human resources staff that advise them.

“An employer may not reject an employee’s request for pregnancy-related work restrictions if the same employer is granting the light duty request of a non-pregnant employee,” said Nancy Sienko, director of the EEOC’s Seattle Field Office. “This suit serves to remind employers of that obligation.”

“One of the six national priorities identified by the EEOC’s Strategic Enforcement Plan (SEP) is to address emerging and developing issues in equal employment law, including accommodating pregnancy-related limitations,” noted EEOC Supervisory Trial Attorney John Stanley.  “We are encouraged that Life Care will take affirmative steps to implement policies and training that ensure employees with pregnancy-related work restrictions have their light duty requests properly considered.”

According to company information, Life Care Centers is a nationwide network of over 236 geriatric health care service providers with operations in over 35 states, and had over $10.3 million in net sales in 2015, the year in which the employee last worked for the co-defendants in Puyallup.

OSHA Issues Warning on Fraudulent Training

Here’s a New Year’s resolution for worker safety training: Do your due diligence to avoid fraudulent trainers and courses. Here is the rest of what to watch out for, straight from OSHA’s website.

The Facts About Obtaining an OSHA Card

Many job creators ask their workers to obtain an OSHA card. This often refers to the Occupational Safety and Health Administration’s (OSHA) Outreach Training Program’s 10-hour and 30-hour safety courses. Unfortunately, there has been an increase in fraudulent activity related to these courses over the past several years. Knowing the facts can help workers avoid fraudulent trainers and courses.

FACT: Only OSHA-authorized trainers may teach 10- and 30-hour safety courses and issue OSHA student course completion cards.

The 10-hour safety course covers general safety and health hazards for entry-level workers. The 30-hour safety course provides a greater variety of safety subjects and in-depth, industry-specific training and is intended for supervisors and workers with safety and health responsibility. While fraudulent actors may advertise OSHA 10-hour training, only OSHA-authorized trainers can issue course completion cards at the end of the training.

FACT: OSHA publishes a public list of authorized trainers to help workers find legitimate training and avoid fraud.

OSHA provides a list of authorized trainers to find instructors for the 10- and 30-hour safety courses. The list provides trainer names and contact information, and denotes which course each trainer is authorized to teach (i.e., construction, general industry, maritime, disaster site worker). Courses are also available in Spanish and online from the appropriate authorized trainer.

FACT: Taking the course does NOT guarantee employment.

While OSHA believes this training is an important first step towards workplace safety, beware of advertisements “guaranteeing” jobs after taking the course.

FACT: OSHA does not require completion of these courses, but may require other training for workers that encounter certain workplace hazards. Although some states, cities, and job creators have mandated Outreach Training Program courses as a prerequisite to employment, OSHA does not require the training. In other cases, jobs may include workplace hazards that require training to meet OSHA standards, such as training on common chemical hazards encountered in the workplace, or operator training for specific powered industrial trucks on the jobsite. Be sure to check your local requirements and consult the relevant OSHA regulations.

Keep these facts in mind when searching for courses and trainers to ensure proper safety training and avoid fraudulent courses. If you come across any fraudulent actors, please contact the Department of Labor’s Office of Inspector General. For more information, visit the Outreach Training Program website.

Meat Processor Hit With $213,000 Fine by OSHA For Myriad Safety Violations at New Jersey Plant

Let’s hope 2020 brings improved safety conditions for workers at this plant in the Garden State.

The U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) has reached a settlement with Thomas Foods International after issuing citations for workplace safety and health violations at the company’s meat processing facility in Swedesboro, New Jersey. As part of the settlement, Thomas Foods International will pay $213,000 in penalties for violations involving noise and bloodborne pathogens hazards, and ineffective machine guarding following a May 2019 investigation initiated as part of OSHA’s Site-Specific Targeting program.

Under the terms of the settlement, Thomas Foods International will hold monthly meetings with an in-house safety and health committee for a minimum of one year, develop a safety checklist to ensure proper use of equipment, and develop and implement a written safety and health program. The employer will also ensure management attend a 30-hour OSHA safety course, and utilize consultation services to conduct at least one audit of the workplace.

“Employers are legally responsible for complying with workplace health and safety requirements, and ensuring workers’ safety and health,” said Principal Deputy Assistant Secretary of Labor for Occupational Safety and Health Loren Sweatt.

“This settlement confirms that Thomas Foods will correct the violations identified during the investigation to prevent employee exposure to serious injuries and disabilities,” said OSHA Marlton Area Director Paula Dixon-Roderick.

OSHA has resources on protecting workers from hearing loss, amputations, and bloodborne pathogens hazards.

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 https://www.osha.gov.

$20K Settlement With EEOC Paves Way for Man to Get Work at Florida Adult Entertainment Club

Down in the Florida Panhandle, what’s a guy got to do to get hired at an adult entertainment venue? Get the government involved.

Gold, Inc., doing business as Sammy’s Gentlemen’s Club, an adult entertainment establishment based in Fort Walton Beach, Fla., has agreed to pay $20,000 and furnish significant equitable relief to settle a sex discrimination lawsuit brought by the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency announced Dec. 10.

According to the EEOC’s lawsuit, Sammy’s refused to consider James Sharp for a bartender position because of his gender. When he attempted to apply at Sammy’s Fort Walton Beach location, Sharp was refused a job application. Sammy’s general manager told Sharp that Sammy’s does not hire male bartenders.

Such alleged conduct violates Title VII of the Civil Rights Act of 1964, which prohibits discrimination based on a person’s sex. The EEOC filed its lawsuit (Civil Action No. 3:17-cv-00439-RV-HTC) in U.S. District Court for the Northern District of Florida, Pensacola Division on June 29, 2017 after first attempting to reach a pre-litigation settlement through its conciliation process.

In addition to monetary relief, the two-year consent decree settling the lawsuit requires Sammy’s to provide training to its employees on its obligations under the law and review its anti-discrimination policy. The decree also prohibits Sammy’s from engaging in discrimination or retaliation because of sex in the future and requires the company to post notices on its bulletin boards informing employees of their right to contact the EEOC if they feel they have been discriminated or retaliated against.

“Federal law prohibits employment discrimination based on sex,” said Bradley Anderson, district director of the EEOC’s Birmingham District Office. “An employer that makes hiring decisions based on a person’s gender violates the law, except in very limited circumstances. Barring an entire gender – half the population – from a bartending job is certainly not one of those exceptions.”

EEOC regional attorney Marsha Rucker added, “A customer’s or coworker’s supposed pref­erence for an employee of a certain gender does not justify sex discrimination. This lawsuit is a reminder that employers who cater to such preferences, real or imagined, risk liability for themselves.”

The EEOC’s Birmingham District Office has jurisdiction over Alabama, Mississippi (all but 17 counties in the northern part of Mississippi) and the Florida Panhandle.

Out of the Woodwork: Cabinetry Maker Doles Out $25,000 to Settle ADA Suit Over Denial of Leave

This employer’s refusal to budge from its rigid attendance policy cost it not only money but the services of a long-term employee. Naturally, it got sued over this, and earlier this month made the best of a bad situation by settling the matter.

American Woodmark Corporation, a wood cabinetry manufacturer, will pay $25,000 to settle a disability discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency announced Dec. 13.

According to the EEOC’s suit, American Woodmark denied Erica Grier’s request for an accommodation in the form of two days of unpaid leave in order to visit a doctor for treatment of her disabilities. Instead, American Woodmark assessed attendance infraction points to Grier, a 16-year employee of the company, under its rigid attendance policy. American Woodmark fired Grier for exceed­ing the permissible number of attendance points, despite her providing a doctor’s note and updated Family Medical Leave Act forms showing she was absent for purposes of treatment and recovery relating to her disabilities.

Such conduct violates the Americans with Disabilities Act (ADA), which prohibits employers from making employment decisions based on an individual’s disability. The EEOC filed suit (Civil Action No. 5:19-CV-381-TES) in U.S. District Court for the Middle District of Georgia, Macon Division, after first attempting to reach a pre-litigation settlement via its conciliation process. In addition to the monetary relief, American Woodmark agreed to create and implement an ADA policy, provide employment discrimination training to its employees, and to post anti-discrimination notices at its Jackson facility. In addition, the decree subjects American Woodmark to reporting and monitoring requirements.

“The use of intermittent medical leave for treatment of a medical condition deemed to be a disability under the ADA is widely recognized as a reasonable accommodation,” said Antonette Sewell, regional attorney for the EEOC’s Atlanta District Office. “The EEOC is pleased that American Woodmark agreed to resolve this case and also that it agreed to implement an ADA policy and train its employees on its obligations under the ADA. The discrimin­ation victim in this case has been compen­sated and the employer will be better equipped to respond the next time an applicant or employee seeks leave as an accommodation for a disability.”

Darrell E. Graham, district director of the Atlanta office, said, “The EEOC is committed to ending disability discrimination in Georgia and across the country. An employee should not be forced to risk termination for seeking medical leave as a perfectly reasonable accommodation under the ADA.”

In Online Newsletter, OSHA Reminds Employers of Jan. 2 Deadline for EIN Numbers for Injury Data

Here’s some light holiday reading for you, courtesy of federal workplace safety regulators at the Occupational Safety and Health Administration.

OSHA publishes a Quick Takes newsletters. The latest OSHA QuickTakes newsletter includes stories on Reporting Requirements, Working Safely in Cold Weather, Walking-Working Surfaces, and more.

Of immediate concern, the deadline for employers who electronically submit OSHA Form 300A to provide an Employer Identification Number is approaching fast–Jan. 2, 2020. March 2, 2020, is the deadline for electronically reporting your OSHA Form 300A data for calendar year 2019. Collection will begin January 2, 2020.

You can launch the interactive injury tracking application here.

OSHA’s online newsletter provides the latest news about enforcement actions, rulemaking, outreach activities, compliance assistance, and training and educational resources.

Check back with QuickTakes for the most recent news on workers safety.

 

EEOC Recovers $63K for Officer Manager Fired Because She Needed Medical Leave for Disability

There’s a lesson in this case on how not to treat an employee who needs leave for a medical condition and then seeks to return to her old job.

Pest control and landscaping company Massey Services, Inc. will pay $63,000 and provide other significant relief to settle an employment discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency announced Dec. 19

The EEOC charged in its lawsuit that the company violated federal law when it denied an employee’s request for medical leave, fired her after learning of her medical condition, and subsequently failed to rehire her for the position that she previously held that remained vacant.

According to the EEOC’s lawsuit, Massey denied former employee Annie Mitchell’s request for leave after she became hospitalized due to her disability and instead discharged her from her position. The EEOC’s suit further alleges that Massey actively recruited other candidates for Mitchell’s office manager position and refused to rehire Mitchell–even though she sought to return to her prior job–in retaliation for her accommodation request, said the EEOC.

Such alleged conduct violates the Americans with Disabilities Act (ADA). The EEOC filed suit (EEOC v. Massey Services, Inc., Civil Action No. 2:19-cv-00263) in U.S. District Court for the District of South Carolina, Charleston Division after first attempting to reach a pre-litigation settlement through its conciliation process.

In addition to paying $63,000 in monetary relief, the two-year consent decree resolving the lawsuit enjoins Massey from violating the ADA in the future and requires it to report to the EEOC on its compliance with the decree, including how it handles any future discrimination or retaliation complaints. Massey will modify its policies and make exceptions to any leave provisions by providing unpaid medical leave as a form of reasonable accommodation. The company will provide training on the ADA, with an emphasis on its obligations to provide reasonable accommodations and not to retaliate against employees who request those accommodations.

“This is a meaningful settlement,” said Antonette Sewell, regional attorney for the EEOC’s Atlanta District Office. “In addition to providing just compensation to Ms. Mitchell, the decree will serve as a reminder to employers that they have an obligation to make policy or practice exceptions and provide leave as a form of reasonable accommodation unless doing so would result in an undue hardship.”

EEOC Atlanta District Director Darrell E. Graham added, “The ADA requires employers to assess each employee’s request for an accommodation on an individualized basis, rather than having blanket policies that apply across the board.”

Orlando, Fla.-based Massey Services, Inc. operates service centers throughout Florida, Georgia, Louisiana, Texas, South Carolina, North Carolina and Oklahoma.

Indiana Company Incurs $195K Fine From OSHA For Multiple Safety Lapses at Its Georgia Factory

Frequently it takes the federal government stepping in to make sure that unsafe working conditions don’t persist. Here’s an example from last week. Hopefully other employers will learn from it and mend their ways.

The U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) has cited Wright Metal Products Crates LLC – based in South Bend, Indiana, and operating as WMP Crates – for exposing employees to amputation, chemical and other safety hazards at a worksite in Lavonia, Georgia. The company faces $195,034 in penalties.

OSHA cited the metal container manufacturer for failing to train employees on lockout/tagout procedures, require employees to apply their own locks when performing die changes on machinery, and provide appropriate eye and face protection. OSHA also cited the company for exposing employees to hazardous paint fumes, failing to separate propylene and oxygen cylinders, and not properly labeling hazardous chemicals. OSHA conducted the inspection in accordance with the National Emphasis Program on Amputations and the Regional Emphasis Program for Powered Industrial Trucks.

“Effectively implementing comprehensive safety and health programs that include steps for identifying and eliminating hazards protects workers, and prevents injuries and illnesses,” said OSHA Area Director William Fulcher, in Atlanta-East.

OSHA provides resources on requirements for labeling hazardous chemicals, machine guarding, and eye and face protection.

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.

Soft Landing: United Puts Down $321K to Settle EEOC Suit Over Pilot’s Posting of Racy Pictures

I hope this pilot didn’t take his eyes off of the controls as he was musing over his latest posting of explicit images of a flight attendant.

United Airlines, Inc., a Chicago-headquartered international airline operating in over 300 airports across five continents, has agreed to pay $321,000, plus attorney’s fees, to settle a sexual harassment lawsuit brought by the U.S. Equal Employment Opportunity Commission, the federal agency announced Friday.

The EEOC’s lawsuit alleged that, over the course of many years, a United captain frequently posted explicit images of a flight attendant to multiple websites, without her consent, making reference to her name, home airport, and the airline’s tagline “Fly the Friendly Skies.” The EEOC’s suit asserted that the images were seen by co-workers of the flight attendant, as well as untold numbers of potential passengers, causing her humiliation and embarrassment and adversely affecting her work environment.

The EEOC maintained that United failed to prevent and correct the pilot’s behavior, even after the flight attendant made numerous complaints and provided substantial evi­dence to the airline of the pilot’s conduct.  The EEOC asserted that the pilot was allowed to retire with benefits despite initiation of a criminal prosecution by the U.S. attorney’s office under federal internet stalking laws.

Such alleged inaction when an employer is aware of sexual harassment violates Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination based on sex, including harass­ment that creates a hostile environment. The EEOC filed suit in U.S. District Court for the Western District of Texas, San Antonio Division (EEOC v. United Airlines, Inc., Civil Action No. 5:18-cv-817) after first attempting to reach a voluntary settlement through its conciliation process.

“Employers are best served when they fulfill their obligation to be diligent in preventing and correcting sexual harassment, whether the offensive conduct takes place in the workplace or involves misconduct by an employee on the internet that affects the work environment,” said Philip Moss, a trial attorney in the EEOC’s San Antonio Field Office. “This resolution can serve to send a message to employers that they should have robust anti-harassment policies that are vigorously self-enforced.”

The consent decree resolving this case, approved by U.S. District Judge Xavier Rodriguez, requires the company to pay monetary damages of $321,000, plus attorney’s fees for the flight attendant and to provide notice to company employees of their protections under Title VII. The decree further requires the airline to revise its sexual harassment policies explicitly to include harassing conduct perpetrated through the internet or social media and affecting the work environment – whether on or off duty.

EEOC Supervisory Trial Attorney Eduardo Juarez of the EEOC’s San Antonio Field Office explained, “Employers must not ignore harassment complaints simply because the harasser holds a position of authority.”

Robert A. Canino, regional attorney of the EEOC’s Dallas District, added, “This case highlights the issues of employer accountability for harassment in the modern workplace. Employee workdays and jobsites are no longer defined by timecards and the walls of a building, but by the breadth of a digital day and the reach of electronic communications. The policy United has agreed to implement can perhaps serve to provide ideas for other companies adapting to the increased risks posed by employee misuse of technology.”

The flight attendant who intervened in the EEOC’s federal lawsuit was individually represented by attorney Colin Walsh of the Austin, Texas office of Wiley Walsh, P.C.

The San Antonio Field Office is part of the EEOC’s Dallas District Office, which is responsible for processing charges of discrimination, administrative enforcement, and the conduct of agency litiga­tion in Texas and parts of New Mexico.

OSHA Steps Up Amputation Prevention Program

The federal government is revving up its program to protect workers from losing a limb while working.

The U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) recently issued an updated National Emphasis Program (NEP) to focus agency inspections on amputation hazards in manufacturing industries. This directive updates the 2015 NEP on amputations.

The NEP targets industrial and manufacturing workplaces where employees are injured by unguarded or improperly guarded machinery and equipment. NEPs focus agency enforcement activity and do not create any new obligation to employers.

The updated NEP:

• Revises targeting methodology to include data from amputation reporting requirements;
• Revises coding requirements for amputation inspections in the OSHA Information System; and
• Adds new appendices on amputations targeting methodology and North American Industry Classification System codes.

The emphasis program includes a three-month period of education and prevention outreach, which will run until March 10, 2020. During this period, OSHA will continue to respond to complaints, referrals, hospitalizations and fatalities. Enforcement activities will begin after the outreach period and remain in effect until canceled. OSHA-approved State Plans are expected to have enforcement procedures that are at least as effective as those in this instruction.

Employers are already responsible for ensuring machines are properly safeguarded to prevent worker amputations and other fatal injuries. OSHA’s Machine Guarding webpage provides compliance assistance resources to help employers identify amputation hazards, and follow required procedures to properly guard stationary and portable machines.

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.