Archive for January, 2020

School Dist. Hit With $102K OSHA Fine For Firing Employee Who Reported Unsafe Work Conditions

A Michigan school district is paying up big for its retaliation against an employee who blew the whistle to regulators on unsafe working conditions.

The U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) has determined that the Dearborn Heights School District violated whistleblower statutes by unjustly disciplining, publicly discrediting and terminating an employee who reported unsafe working conditions to federal and state agencies. OSHA ordered the Michigan school district to reinstate the employee and pay a total of $102,905.78 in back wages, damages and other compensation.

Federal investigators determined that the Michigan school district violated the Clean Air Act. The terminated employee served as a key witness for federal investigators in a 2012 whistleblower complaint from an employee who alleged employee and student exposure to asbestos at the public school. In fall 2016, the employee also reported potential exposure of pesticide at the school to the Michigan Environmental Protection Agency.

OSHA’s investigation found the Dearborn Heights School District publicly disputed these employees’ complaints, as well as media reports of potential exposure to hazards. The district also maintained an information link on its website alleging that both employees had presented misinformation and caused a public health scare. In addition, the district stated on the public website that it was within its rights to terminate whistleblowers, a clear violation of federal law.

The employee assisted with the 2012 investigation after the worker objected when the director of operations and construction management told the worker to dry sand floor tiles that contained asbestos at Annapolis High School. The director failed to train the workers in asbestos hazards and provide protective equipment.

Within days of receipt of the Department of Labor’s June 2016 findings in the employee’s whistleblower case, the school district allegedly embarked on heightened surveillance of the second employee, a lengthy progressive discipline campaign against the individual, and eventually terminated their employment for actions including reporting unsafe conditions to state and federal agencies.

“All workers are entitled to a safe and healthful workplace without the fear of retaliation for voicing concerns,” said OSHA Acting Chicago Regional Administrator William Donovan. “No worker should be harassed, publicly defamed or punished for reporting unsafe working conditions, advocating for other employees and seeking assurances that they and students are not being exposed to carcinogenic materials.”

In the previous action, Dearborn Heights School District contested OSHA’s June 2016 findings in favor of the first whistleblower. An Administrative Law Judge ordered the district, through a settlement, to pay the former janitor $210,261 in back wages and damages on Feb. 14, 2018.

Both parties have 30 days from the receipt of OSHA’s findings to file objections and request a hearing before an administrative law judge.

OSHA’s Whistleblower Protection Program enforces the whistleblower provisions of more than 20 whistleblower statutes protecting employees from retaliation for reporting violations of various workplace safety and health, airline, commercial motor carrier, consumer product, environmental, financial reform, food safety, health insurance reform, motor vehicle safety, nuclear, pipeline, public transportation agency, railroad, maritime, and securities laws and for engaging in other related protected activities.

Under the Occupational Safety and Health Act, 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.

$35K Payment Concludes Harassment, Retaliation Lawsuit Against Plastics Maker

Hopefully, this Texas company–and employers elsewhere–get the message that they can’t turn a blind eye to sexual harassment and retaliation.

Element Plastics Mfg., LLC, a plastics manufacturer based in Sugar Land, Texas, has settled a sex harassment lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency announced Tuesday.

In its lawsuit, the EEOC alleged that Element Plastics violated federal law by subjecting a female employee to a hostile work environment and then firing her in retaliation for complaining about the sexual harassment.

Specifically, the EEOC’s lawsuit (Civil Action No. 4:19-cv-02218) charged that the employee was subjected to sexually harassing comments, unwelcome touching, and other improper and sexually hostile conduct. The EEOC further charged that a few weeks after she complained about the harassment to her direct supervisor and a manager, she was terminated in retaliation for making the complaint.

Such alleged conduct violates Title VII of the Civil Rights Act of 1964. The EEOC filed its suit (Civil Action No. 4:19-cv-02218) in U.S. District Court for the Southern District of Texas after first attempting to reach a pre-litigation settlement through its conciliation process.

“Sexual harassment and retaliation in the workplace cannot and will not be tolerated,” said Rudy Sustaita, the EEOC’s regional attorney in Houston. “The EEOC will continue to enforce federal law against such discriminatory and illegal misconduct.”

Connie Gatlin, the EEOC’s senior trial attorney in charge of the case, added, “We appreciate that Element Plastics was willing to come to the table to resolve this matter.”

The terms of the agreement were set forth in a consent decree signed and entered by U.S. District Judge David Hittner on Jan. 25. The settlement requires the company to pay $35,000 to compensate the discrimination victim and prohibits Element Plastics from engaging in similar discriminatory conduct in the future. In addition, the company must develop and implement policies and procedures to address illegal discrimination, harassment and retaliation, includ­ing com­plaint procedures and guidelines for investigating complaints of discrimination.

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

OSHA Dings Pa. Contractor $605K for Inadequate Fall Protection at 3 Residential Roofing Worksites

Another contractor has fallen for its lack of protecting its workers from falling.

The U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) has cited Webb Contractor Corp. for exposing employees to fall hazards at three separate worksites in the Lehigh Valley, Pennsylvania, area. The roofing contractor, based in Bala Cynwyd, Pennsylvania, faces $605,371 in penalties.

OSHA initiated an inspection on September 6, 2019, after a compliance officer observed employees performing residential roofing work without fall protection at a worksite in Macungie, Pennsylvania. The employer voluntarily agreed to remove employees from the hazardous condition. OSHA later responded to complaints of fall hazards, and initiated two additional inspections; one on October 1, 2019, at a worksite in Emmaus, Pennsylvania, and the other on October 11, 2019, at a worksite in Bethlehem, Pennsylvania.

Following the three inspections, OSHA cited the company for eight willful, two repeat, and three serious safety violations for failure to provide fall protection and exposing employees to safety hazards.

“Employers must ensure that employees working from heights are provided and wear proper fall protection,” said Principal Deputy Assistant Secretary of Labor for Occupational Safety and Health Loren Sweatt. “OSHA has educational resources readily available to help employers understand how to comply with the law.”

OSHA’s Fall Protection in Residential Construction webpage provides compliance assistance resources on reducing falls during residential construction.

The company has 15 business days from receipt of the citations and penalties (view herehere, and here) 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 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.

OSHA Docks N.J. Foundry $169K in New Fines

Is paying OSHA fines becoming a cost of doing business at this New Jersey company?

You might suspect as much given its recidivist behavior.

The U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) yesterday said it has cited Aluminum Shapes LLC for workplace safety and health hazards after a crane operator was injured in August 2019 at the aluminum manufacturer’s Delair, New Jersey, foundry. The company faces $169,524 in penalties for these violations.

The employee was hospitalized after a steel plate fell from an uninspected crane onto his foot. The agency cited the company for one serious and three repeat citations for failing to report the injury to OSHA within 24 hours of the employee’s hospitalization; conduct annual crane inspections with written certification; and failing to balance and secure the load properly.

OSHA placed the company in the Severe Violator Enforcement Program for repeated safety failures.

“Aluminum Shapes continues to disregard their legal responsibility to comply with safety and health standards,” said OSHA Area Director Paula Dixon-Roderick, in Marlton, New Jersey. “Employers have an obligation to provide a safe and healthful workplace for their workers.”

OSHA’s Cranes and Derricks in Construction standard provides information on required crane inspections. The agency also provides compliance assistance on reporting a severe injury.

The company has 15 business days from receipt of the 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.

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.

$20.5 Settlement Spells End to Bias, Retaliation by Big Insurer Against Women and Minorities

Let this massive financial settlement be a warning to the financial industry that the feds are watching how they treat their minority and female workers.

Jackson National Life Insurance Company, Jackson National Life Distributors, LLC, and Jackson National Life Insurance Company of New York (collectively, “Jackson”) will pay $20,500,000 to 21 complainants and furnish other relief to settle the EEOC’s claims in a race, national origin, and sex discrimination and retaliation lawsuit brought by the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency announced January 9.

The EEOC’s lawsuit, filed in September 2016, charged that Jackson tolerated a work environment hostile to female and African American employees in Jackson’s Denver and Nashville offices. EEOC alleged that African-American employees were referred to as “lazy,” had stress balls thrown at them, and were subjected to racially demeaning cartoons. EEOC further alleged a high-level manager referred to multiple African American female employees as “resident street walkers” and that female employees endured sexual comments and leering from male coworkers. EEOC alleged that at least one high-level manager kissed subordinate females on their lips, and much of the hostile work environment involved conduct by high-level managers and executives.

EEOC’s suit also alleged that Jackson discriminated against African American and female employees in the terms and conditions of employment, such as paying them inferior compensation and regularly passing them over for promotion, and selecting less-qualified, white male employees over the complainants. Finally, EEOC charged that Jackson retaliated against employees who filed charges of discrimination with the EEOC or otherwise opposed discrimination. In particular, Jackson fired a white vice president who refused to give a negative evaluation and a disciplinary warning to two African American female employees who had complained.

All this alleged conduct violates Title VII of the Civil Rights Act of 1964, which prohibits race, sex, and national origin discrimination and retaliation. The EEOC filed its lawsuit, EEOC et al. v. Jackson National Life Insurance Company et al., Civil Action No. 16-cv-02472-PAB-SKC, in United States District Court for the District of Colorado after first attempting to reach a settlement through its pre-litigation conciliation process.

The four-year consent decree, which provides $20,500,000 in damages, attorneys fees, and costs to 21 former Jackson employees, is the largest monetary settlement ever reached by the EEOC’s Phoenix District and Denver Field Offices. In addition to the monetary relief, the consent decree enjoins Jackson from engaging in future violations of Title VII, including creating or tolerating a hostile work environment based on race, color, sex, and/or national origin, and discrimination in promotion, compensation, and other terms and conditions of employment. The consent decree requires Jackson to designate an Internal Compliance Monitor and to retain an outside consultant to review its EEO policies, promotional and compensation practices and data, and future complaints of discrimination, harassment, and retaliation. Additionally, the decree requires that Jackson train employees on discrimination, harassment, and retaliation. Jackson managers and supervisors will be rated on their compliance with EEO policies and laws prohibiting discrimination and retaliation.

“We hope that the results in this case will send an important message to the financial industry that race and sex harassment and refusing to promote and pay employees based on sex, race, or national origin are illegal and will not be tolerated,” said EEOC Phoenix District Office Regional Attorney Mary Jo O’Neill. “We are gratified that this decree will provide significant compensation to former Jackson employees whose careers were thwarted by these discriminatory practices. These former employees have been very brave to stand up for their rights.”

Amy Burkholder, director of EEOC’s Denver Field Office, added, “Over 50% of EEOC charges contain a retaliation allegation. In this case, one white employee refused to write up black employees who had complained about discrimination, and he was fired the next day. Employers should bear in mind that retaliation is as illegal as race and sex discrimination.”

The EEOC’s Phoenix District Office has jurisdiction over Arizona, Colorado, parts of New Mexico, Utah, and Wyoming.

Indigestion: Women Victimized Repeatedly at Florida IHOP, EEOC Says as It Settles Lawsuit

The pancakes may be stellar at this IHOP franchise; the treatment of female employees far less so.

Swami Pancake, LLC, a franchise of the IHOP restaurant, agreed to pay $70,000 and provide equitable relief to settle a sexual harassment lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency announcedThursday.

The EEOC alleged that the IHOP franchise owner and manager sexually harassed female employees through unwelcome touching, stalking, and sexual comments.  Female servers were repeatedly asked to go out to dinner and groped in a back-storage room and suffered negative changes in their work schedule when they rejected the sexual advances.

The three-year consent decree requires the owner and manager of Swami Pancake, LLC to receive one-on-one training for sexual harassment.  The restaurant must develop and distribute a comprehensive anti-harassment policy to all its employees and provide anti-harassment training. It must also provide an employee hotline phone number operated by a third-party to report complaints.

The restaurant must notify its employees of the settlement, hire an independent EEO Consultant to monitor and investigate any future complaints, and submit reports twice a year to the EEOC.

Robert Weisberg, regional attorney for the EEOC’s Miami District Office said, “Sexual harassers that take advantage of their power over employees must be held accountable.  Requiring a third-party employee hotline and an independent EEO Consultant for employees should ensure that the conduct will not reoccur.”

“The EEOC will continue to fight for vulnerable workers, including low-wage earners in the restaurant industry, where sexual harassment continues to be so prevalent,” added Michael Farrell, the director of the EEOC’s Miami District Office.

EEOC Gets $125K Recovery for Harassment, Retaliation Victims at Michigan Pickle Plant

A temporary worker spoke up and as a result sexual harassment is coming to an end at this food processing plant.

Safie Specialty Foods Company, Inc., which pickles vegetables in Chesterfield Township, Mich., will pay $125,000 to settle a sexual harassment and retaliation lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency announced January 21.

According to the EEOC’s lawsuit, Safie Specialty Foods subjected two female production workers, one of whom was a temporary employee, to a sexually hostile work environment. The women were targets of sexual advances and comments by the lead food processing employee, who is also the husband of a manager at Safie. The temporary employee complained about the harassment to her shift supervisor, who then notified higher-level management and submitted a written report. The allegations of harassment were corroborated by the other victim and a male temporary employee. In response to the complaint, however, Safie fired the shift supervisor, the male temporary employee, and both victims. Then, after the temporary employee filed her discrimination charge, Safie terminated the lead food processor.

Such alleged conduct violates Title VII of the Civil Rights Act of 1964. The EEOC filed suit (EEOC v. Safie Specialty Foods Company, Inc., Case No. 2:18-cv-13270) against Safie in U.S. District Court for the Eastern District of Michigan after first attempting to reach a pre-litigation settlement through its conciliation process.

In addition to providing monetary relief to the former employees, the four-year consent decree settling the suit requires Safie to provide annual sexual harassment training to all employees, submit regular reports to the Commission regarding internal sexual harassment complaints and any action taken to address the complaints, and modify the company’s sexual harassment policy and procedure.

“It takes courage for a temporary employee to report sexual harassment by a superior or favorite of management,” said Miles Uhlar, trial attorney for the EEOC’s Detroit Field Office. “The EEOC understands this and will continue to protect the rights of such people, particularly against employers who fire the victim rather than addressing the behavior of the harasser.”

The Detroit Field Office is part of the Indianapolis District Office, which oversees Michigan, Indiana, Kentucky and parts of Ohio.

Construction Co. to Pay $100K to Settle ADA Lawsuit Over Firing of Worker With Epilepsy

Again, an employer has bungled its ADA responsibilities by assuming that an employee’s condition meant she couldn’t work safely.

A Bellingham, Wash.-based company formerly doing business as Diamond B Constructors, Inc. and its successor, Harris Companies, will pay $100,000 and provide other relief to settle a disability discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency announced.

According to the EEOC’s suit, Angela Watson was dispatched by her union to work on a project for Diamond B in Anacortes, Wash. Watson is a pipefitter by trade and holds an additional certifica­tion as a rigger. When Watson disclosed to her direct supervisor that she has epilepsy, he and other Dia­mond B supervisors unilaterally concluded that she could not safely work at heights and terminated her emp­loyment – even though Watson’s epilepsy was well controlled by medication and that she had not requested any accommodation and had no medical restrictions.

Terminating an employee based on her disability violates the Americans with Disabilities Act (ADA). The law also requires employers to make a case-by-case assessment of a worker’s actual ability to perform the job functions when potential safety concerns are raised. After first attempting to reach a pre-litigation settlement through its voluntary conciliation process, the EEOC filed suit in U.S. District Court for the Western District of Washington (EEOC v. BLI Northwest, Inc., f/k/a Diamond B Constructors, Inc. and Harris Pacific Northwest, LLC f/k/a Harris Acquisition IV, LLC, Case No. 2:18-CV-00926-RAJ).

The three-year consent decree settling the lawsuit provides $100,000 in compensatory damages to Watson. The decree also requires Diamond B and Harris Companies to train their personnel on compliance with federal anti-discrimination laws, with an emphasis on the ADA. The companies will also implement and disseminate an ADA policy and post a notice describing obligations under the consent decree and employees’ ADA rights.

“This employer concluded that Ms. Watson presented a significant safety risk without assessing the actual likelihood of her having a seizure,” EEOC Senior Trial Attorney May Che said. “Depriving a person of employment opportunities because of assumptions about conditions such as epilepsy strikes at the heart of the ADA, and the EEOC will defend the rights of such persons in the workplace.”

EEOC Seattle Field Director Nancy Sienko said, “Epilepsy reportedly affects 2.2 million Americans and affects each person differently. It is critical that employers not base job decisions on stereotypes, but instead carefully consider each individual’s abilities.”

According to www.dbnw.com, Bellingham, Wash.-based Diamond B Constructors provided commercial and industrial construction services in Washington, Oregon, Montana, and California and employed about 250 people year-round. The company was acquired in January 2018 by the St. Paul, Minn., corporation Harris Companies, one of the largest mechanical contractors in the United States,  with over 1,000 employees in nine locations through­out the country, according to www.hmcc.com.

Bank Pays $100K to Settle ADA Case Over Botched Handling of Pregnant Woman on Leave

This may be a great place to bank, but management didn’t have a clue on what the ADA requires for pregnant disabled workers.

Manufacturers and Traders Trust Company, doing business as M&T Bank, will pay $100,000 and provide significant equitable relief to resolve a federal disability lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency announced yesterday.

According to the EEOC’s suit, a M&T branch manager in Baltimore advised a vice president that she needed surgery for a pregnancy-related disability. While she was on approved leave, M&T informed the manager that it would fill her position unless she was medically cleared to return to work within 10 days. Months later, after giving birth and receiving medical clearance to return to work, M&T required the manager to apply for vacant positions for which she was qualified instead of simply reassigning her to one of them as a reasonable accommodation.

Further, the EEOC charged, there were at least 24 vacant branch manager or assistant branch manager positions available in the greater Baltimore region at the time the manager attempted to return to work. Ultimately, M&T discharged the manager because of her disability and record of disability.

The Americans with Disabilities Act (ADA) prohibits discrimination based on disability or a record of a disability. The ADA also requires employers to reasonably accommodate an individual’s disability unless the employer can prove that doing so would be an undue hardship. The EEOC filed suit (EEOC v. Manufacturers and Traders Trust Co., d/b/a M&T Bank., Civil Action No. 1:16-cv-03180-ELH) in U.S. District Court for the District of Maryland, Northern Division, after first attempting to reach a pre-litigation settlement through its conciliation process.

On Sept. 10, 2019, U.S. District Court Judge Ellen L. Hollander granted summary judgment on the EEOC’s reasonable accommodation claim, finding that the manager had a disability within the meaning of the ADA and that she was entitled to non-competitive reassignment to a vacant position for which she was qualified as a reasonable accommodation.

In addition to the $100,000 in lost wages and compensatory damages to the manager, the three-year consent decree resolving the case enjoins M&T Bank from engaging in disability discrimination in the future. The bank must create a non-competitive procedure so that a qualified employee returning from work after an extended leave of absence due to a disability and whose job has been replaced may be reassigned to a vacant position as a reasonable accommodation. M&T Bank will also provide training on Title VII, post an anti-discrimination notice, and report to the EEOC on how it handles any reassign­ment of employees whose jobs were replaced while on a medical leave of absence.

“We are pleased that in addition to the monetary relief to the employee, this settlement ensures that other qualified employees may get transfers to vacant positions as a reasonable accommodation as required by the ADA,” said EEOC Regional Attorney Debra M. Lawrence.

EEOC District Director Jamie R. Williamson added, “Everyone wins when employers provide a reasonable accommodation, such as a transfer to a vacant position, that allows a qualified worker to remain employed – the employee can continue earning a living and the employer retains the services of a trained and competent worker.”

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.

OSHA Fines Energy Company $132K for Safety Violations Following Explosion at Philly Refinery

There are some rules of the road when workers handle hazardous chemicals–and this refinery in Philadelphia didn’t follow them, federal safety regulators alleged.

The U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) has cited Philadelphia Energy Solutions for serious violations of safety and health hazards related to process safety management (PSM) following a fire and subsequent explosions at the company’s Girard Point Refinery Complex in Philadelphia, Pennsylvania, in June 2019. The company faces $132,600 in penalties.

PSM encompasses requirements and procedures employers must follow to address hazards associated with processes and equipment that use large amounts of hazardous chemicals. In this case, the chemicals were hydrofluoric acid and flammable hydrocarbons. OSHA’s inspection found deficiencies in the refinery’s PSM program, including failing to establish or implement written procedures, insufficient hazard analysis and inadequate inspection of process equipment for highly hazardous chemicals used in the process.

“When employers fail to evaluate and address potential hazardous conditions associated with chemical processes, catastrophic events such as this can occur,” said OSHA Philadelphia Area Director Theresa Downs. “OSHA’s Process Safety Management standard requires that employers conduct regular inspections to ensure process equipment meets industry standards.”

OSHA’s Process Safety Management webpage provides resources on recognizing, evaluating and controlling process hazards.

The company has 15 business days from receipt of the 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.

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 http://www.osha.gov.