Archive for May, 2020

OSHA Touts Its Pandemic Response

You be the judge. Most of this is guidance, not mandatory

As the nation faces the coronavirus pandemic, the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) is dedicated to keeping the American workforce safe and healthy. Today, Principal Deputy Assistant Secretary for Occupational Safety and Health Loren Sweatt testified before the House Education and Labor Committee’s Workforce Protections Subcommittee about the agency’s role during the crisis.

“Throughout the ongoing pandemic, OSHA’s work is continuing uninterrupted,” said Principal Deputy Assistant Secretary Loren Sweatt. “From conducting thousands of investigations to issuing critical guidance aimed at protecting workers in high-risk industries, OSHA is on the job protecting America’s workers against the coronavirus.”

Sweatt’s written testimony is posted at

The Department is highlighting OSHA’s continued work to keep American workers safe during these unprecedented times. OSHA has released many public statements related to the coronavirus pandemic including:

Respirator Guidance:

Protecting Workers in High-Risk Industries

Enforcing Safety in the Workplace

Offering Clear Direction for Employers:

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

$98K Later, Hospital Settles ADA Lawsuit Over Firing of Deaf Worker Denied Accommodation

This hospital was smart to settle this ADA lawsuit.

St. Vincent Hospital (SVH), doing business as Christus St. Vincent Regional Medical Center in Santa Fe, will pay $98,000 and furnish other relief to settle a disability discrimination and retaliation lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency announced May 20.

According to the EEOC’s lawsuit, a St. Vincent Hospital supervisor subjected Asheley Coriz to a hostile work environment because she is deaf. The lawsuit also charged that St. Vincent Hospital failed to provide reasonable accommodations for Coriz’s deafness and fired her because of that disability, her request for reasonable accommodation, and her complaints about her supervisor’s conduct.

Such alleged conduct violates the Americans with Disabilities Act (ADA), which prohibits employment discrimination based on disability. The EEOC filed its suit (EEOC v. St. Vincent Hospital, d/b/a Christus St. Vincent Regional Medical Center, Civil Action No. 1:19-cv-00764-KWR-GBW) in U.S. District Court for the District of New Mexico after first attempting to reach a pre-litigation settle­ment through its conciliation process.

The three-year consent decree settling the suit was signed and entered by Judge Kea W. Riggs yesterday. Under its terms, Coriz will receive $98,000 in back pay and compensatory damages. In addition, Coriz’s personnel records will be expunged, and she will receive a letter of acknowledgment from a Christus St. Vincent Medical Center manager expressing his regret that she did not feel supported concerning issues with her supervisor and her disability.

The decree also enjoins SVH from engaging in disability discrimination and retaliation and requires the hospital to revise its equal employment opportunity and reasonable accommodation policies. SVH will provide annual training to all employees at the Christus St. Vincent Regional Medical Center and report to the EEOC on any complaints of disability discrimination during the decree’s term. The decree also makes the supervisor who allegedly discriminated against Coriz ineligible for rehire.

“Employers are responsible for preventing and remedying harassment of emp­loyees, including harassment because of an employee’s disability,” said Regional Attorney Mary Jo O’Neill of the EEOC’s Phoenix District Office, which has jurisdiction over Arizona, Colorado, Wyoming, New Mexico and Utah. “Employers will be held responsible when they retaliate against employees because they complain of discrimination or make accommodation requests.”

EEOC’s District Director Elizabeth Cadle added, “We appreciate this employer’s work toward reaching an agreement that will improve its training, policies and procedures. We also appreciate the second-level manager’s decision to formally acknowledge his regret that Ms. Coriz felt unsupported when she raised concerns with the employer.”

EEOC Retrieves $75K in ADA Settlement With Device Maker Over Firing of Temporary Worker

Temporary workers with disabilities have rights, too.

Medtronic, Inc., a Minneapolis-based company that develops and manufactures medical devices, will pay $75,000 and provide other relief to settle a disability dis­crimination lawsuit filed by the Equal Employment Opportunity Commission (EEOC), the federal agency announced yesterday. The EEOC had charged that Medtronic violated federal law when it fired a temporary employee from its Greenwood, S.C., facility because of her disability-related absences. The EEOC further charged that Medtronic failed to provide a reasonable accommodation to the employee and refused to hire her into a permanent position because of her disability.

According to the EEOC’s lawsuit, a staffing agency assigned the employee to a temporary position at Medtronic’s Greenwood facility as a forklift driver and waste hauler. The employee, who was born with one kidney and an under-formed bladder, missed a few days of work due to health issues caused by her disability. The EEOC said that the employee returned to work and presented a doctor’s note. Medtronic claimed she was in violation of its attendance policy and terminated her assign­ment at the end of her shift. The EEOC further alleged Medtronic did not hire the employee permanently because of her disability, despite having started the process of doing so.

Such alleged conduct violates the Americans with Disabilities Act (ADA), which prohibits employers from discharging qualified individuals with disabilities. The EEOC filed suit in U.S. District Court for the District of South Carolina (EEOC v. Medtronic, Inc., Civil Action No. 8:19-cv-02100-HMH-TER) after first attempting to reach a pre-litigation settlement through its voluntary conciliation process.

In addition to the monetary relief, the two-year consent decree settling the suit requires that Medtronic maintain and distribute a workplace accommodations policy; provide ADA training to all staff responsible for implementing Medtronic’s attendance and leave policies; and provide the EEOC with periodic reports during the decree’s duration.

“We are pleased that Medtronic has agreed to educate its workforce about the requirements of the ADA and its application to temporary and permanent employees,” said Kara Haden, acting regional attorney for the EEOC’s Charlotte District Office. “The EEOC is here to protect the rights of employees with disabilities.”

EEOC Suit Alleges Desert Maker Barred Non-Hispanic Applicants From Entry Level Jobs

Hiring practices mustn’t favor a particular minority over other applicants.

Helados La Tapatia, Inc., violated federal law when they failed to hire non-Hispanic applicants for entry-level positions because of their race/national origin, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit filed yesterday.

According to EEOC’s lawsuit, the Fresno, California-based company favored less-qualified Hispanic job applicants over all other applicants of a different race or national origin (including black, white and Asian applicants) in entry-level positions, such as Route Sales Driver. EEOC further contends that Helados not only failed to hire, but also discouraged and deterred non-Hispanic applicants from applying.

Such alleged conduct violates Title VII of the Civil Rights Act of 1964. EEOC filed its suit against the company in U.S. District Court for the Eastern District of California (EEOC v. Helados La Tapatia, Inc., et al., Case No. 1:20-cv-00722-DAD-JDP) after first attempting to reach a pre-litigation settlement through its conciliation process. EEOC’s suit seeks back pay, benefits, and compensatory and punitive damages for a class of non-Hispanic applicants, as well as injunctive relief intended to prevent further discrimination by Helados.

“EEOC’s core mission is to ensure equal employment opportunity for all,” said Anna Park, regional attorney for EEOC’s Los Angeles District Office, whose jurisdiction includes Fresno County.

Melissa Barrios, director of EEOC’s Fresno Local Office, added, “Employers must be aware of their responsibility under the law to provide employment opportunities to everyone, regardless of race or national origin.”

According to its website,, Helados produces Mexican-style deserts such as frozen fruit bars and ice cream products.

Individuals who know about Helados’ hiring practices or who believe that they were not hired by the company because of his or her race/national origin, can contact the EEOC at (855) 725-4456 for more information.

Eliminating barriers in recruitment and hiring, especially class-based recruitment and hiring practices that discriminate against racial, ethnic and religious groups, older workers, women, and people with disabilities, is one of six national priorities identified by the Commission’s Strategic Enforcement Plan (SEP).

What Happened to the First Amendment?

What Happened to the First Amendment?

by Robin Paggi

Free speech protections in the workplace are not absolute, explains resident blogger Robin Paggi. Robin is the training coordinator at Worklogic HR.

A Kern County court commissioner was recently censured for his anti-Muslim, anti-immigration, and anti-gay marriage Facebook posts, according to an article in The Bakersfield Californian.

In a letter to the editor (“What happened to the First Amendment?”) in response to the article, the writer stated that he was angered by it and that the court commissioner was simply exercising “his First Amendment rights to express his views on social media.” Furthermore, the court commissioner “resigned his position as a result of his ‘violation’ of his First Amendment rights.”

This situation presents an excellent opportunity to discuss the protection that the First Amendment provides and how it affects the employer/employee relationship.

Among other things, the First Amendment prevents the government from making any law that prohibits our freedom of speech. Therefore, the protection that the First Amendment provides us is from our government, not from our employers.

Of course, there are some exceptions to that rule. For example, it is illegal for us to make false statements that damage a person’s reputation, threaten others, or say things to incite violence.

The First Amendment does not prevent employers from restricting the speech of their employees – at work or away from it – and, numerous employers have legally fired employees for comments they posted on Facebook and other social media that the employers disapproved of.

For example, Juli Briskman lost her job as a marketing analyst at Akima LLC last October, days after she was photographed flipping off President Trump’s motorcade as it passed by while she rode her bike. The photo went viral, but didn’t identify Briskman as the bike rider. However, she posted the photo on her Twitter and Facebook pages and was subsequently fired for violating the company’s social media policy. She then sued for unlawful termination.

In June, the company’s attorney argued that private employers don’t have to abide by free speech provisions of the Constitution and that “the company found out about a rude and profane act and…decided it wasn’t interested in continuing with that particular person.” The judge agreed and dismissed the wrongful termination count, according to an article in the American Bar Association Journal.

In addition to courts, the National Labor Relations Board often rules on terminations based on social media postings. This independent federal agency enforces the National Labor Relations Act (which protects the rights of employees to discuss the terms and conditions of their workplace) and has ruled in favor of employers who terminated employees for their social media postings outside of that scope.

For example, the Board ruled in favor of an employer who fired a BMW salesman for photos and comments he posted of an embarrassing accident at a nearby Land Rover dealership, also owned by the employer. Because his photos and comments were not about his working conditions, his speech was not protected.

However, the Board has consistently ruled against employers who fired employees for posting discussions about work and for having overly broad social media policies.  Check out for more information about the NLRB’s social media guidelines.

California employees are protected from being fired (and other adverse actions) when they engage in lawful conduct away from work during off-duty time, except when it creates a conflict of interest for their employer. This normally occurs when an individual’s personal interests are at odds with the professional interests they owe to those who employ them.

For example, if I posted that most bosses are stupid and deserve to be sued, it could financially hurt the organization that employs me–a human resources outsourcing company whose customers are employers. My personal interest in expressing my opinion would conflict with the professional interest I owe my employer to generate revenue.

That’s essentially what the Kern County court commissioner did with his anti-Muslim, anti-immigration, and anti-gay marriage posts.

According to TBC, “The commission said in its decision that (the former court commissioner) violated multiple judicial canons by, among other things, failing to uphold the integrity and independence of the judiciary, failing to act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary and failing to avoid impropriety and the appearance of impropriety.”

If your job is to be fair and impartial, you have to appear to be fair and impartial, even on your Facebook page.

The First Amendment protects us from the government, not our employer. But what happens, like in the court commissioner’s case, when your employer is the government? According to an article on, the speech of government employees can be restricted when it is incompatible with their status as a public official, i.e. when it creates a conflict of interest.

The First Amendment does not give us the right to say whatever we want to without consequences. The court commissioner learned that the hard way.

For other columns by Robin Paggi, search “paggi” in the blog search box.

Memorial Day Chance to Reflect on Fallen, Also How to Help Jobless Vets Once Pandemic Fades

Part of how we honor the dead this Memorial Day is to make sure the living also aren’t forgotten.

The economic pullback because of Covid-19 is taking its toll on the nation’s veterans.

One in eight veterans, or nearly 12 percent, were unemployed in April, according to the Bureau of Labor Statistics. All this as the country’s total jobless rate rose to its highest levels since the Great Depression because of the ongoing coronavirus pandemic.

The pandemic won’t be with us for ever, and when it recedes, and when the economy reopens, veterans will be in the mix to re-fill the workforce.

The Labor Department has resources to help with that, at And there’s this teaser at the bottom of the page: Employer Guide to Hiring Veterans Coming Soon!


Taking Care: EEOC Prys $80K Settlement From Cal. Senior Living Facility in Retaliation Lawsuit

If the government’s case is to be believed, this employer wisely took a short-term financial hit in order to avoid a trial.

Nationwide senior care provider Brookdale Senior Living Communities, Inc. will pay $80,000 and provide other relief to settle a retaliation discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency announced Friday.

According to the EEOC’s lawsuit, an African American caregiver working at Brookdale’s Auburn, Calif., facility overheard co-workers use a phrase with racial connotations offensive to the caregiver. Soon after the caregiver complained about the comments and alleged discrimination, Brookdale suspended and ultimately fired her. According to settlement documents approved today by the federal district court, Brookdale denies all allegations of wrongdoing.

Under Title VII of the Civil Rights Act of 1964, it is illegal for an employer to discipline or fire an employee who engages in statutorily protected activity, including opposing actions perceived to be discriminatory. After first attempting to reach a pre-litigation settlement through its conciliation process, the EEOC filed the lawsuit (EEOC v. Brookdale Senior Living Communities, Inc, Case No. 2:20-cv-00993-TLN-AC in U.S. District Court for the Eastern District of California.

The two-year consent decree settling the lawsuit provides $80,000 in monetary relief to the caregiver. The decree also requires Brookdale to train its personnel on compliance with federal anti-discrimination laws, with an emphasis on retaliation under Title VII. The company will also implement anti-retaliation policies and post a notice describing employee Title VII rights and its obligations under the consent decree.

“The law protects your right to speak up and oppose workplace language that you reasonably believe to be racially offensive,” said William Tamayo, director of the EEOC’s San Francisco District Office. “If an employee explains that a certain term evokes a painful racial stereotype, this is an opportunity to demonstrate respect and understanding and conduct a careful investigation into the allegations.”

EEOC Supervisory Trial Attorney John Stanley said, “This settlement compensates the caregiver for all the consequences of being fired and charts a positive path for Brookdale. We commend the com­pany for its commitment to equal employment opportunity.”

According to the company website, Brookdale Senior Living owns and operates over 1,000 senior living and retirement communities in the United States. Learn more about the company at

Special Delivery: FedEx Out $3.3M in ADA Settlement With EEOC Over Deaf Packagers

It’s a new day for applicants for FedEx delivery jobs who are deaf and hard-of-hearing.

FedEx Ground Package System, Inc. will pay $3.3 million and provide programmatic relief to resolve a companywide disability discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency announced Tuesday.

The EEOC charged that FedEx Ground denied deaf and hard-of-hearing package handlers reasonable accommodations and that it discriminated against deaf and hard-of-hearing applicants to the package handler position. Package handlers are responsible for loading, unloading, scanning and routing packages at the company’s distribution facilities.

Under the Americans with Disabilities Act (ADA), employers must make reasonable accom­­modations to the known limitations of qualified individuals with disabilities to enable them to perform the essential functions of their jobs and to enjoy equal benefits and privileges of employment.

The EEOC litigated the case, Civil Action No. 15-cv-00256, in U.S. District Court for the Western District of Pennsylvania. Prior to filing suit, the EEOC attempted to reach a pre-litigation settlement through its conciliation process. The agency had conducted a nationwide systemic investigation after numerous deaf and hard-of-hearing package handlers filed ADA discrimination charges with EEOC offices throughout the country.

The two-year consent decree settling the suit identifies 229 individuals who may receive payment as part of the settlement. It also requires FedEx Ground to provide deaf and hard-of-hearing package handlers with access to live and video remote American Sign Language interpreting, captioned videos, and scanning equipment with non-audible cues such as vibration.

Pursuant to the decree, FedEx Ground will also take steps to protect the safety of deaf and hard-of-hearing package handlers. Going forward, the company will ensure that all tuggers, forklifts and similar motorized equipment have visual warning lights, and it will provide personal notification devices to alert deaf package handlers of an emergency. FedEx Ground will also train managers and human resources representatives on ADA compliance and create written resources to assist them in identifying and providing accommodations for deaf and hard-of-hearing package handlers. A FedEx Ground vice president will oversee the company’s implementation of the consent decree and reporting to the EEOC.

Maria Luisa Morocco, a supervisory trial attorney in the EEOC’s Washington, D.C. Field Office, and Thomas D. Rethage, a senior trial attorney in the EEOC’s Philadelphia District Office, were the lead EEOC attorneys on the case, under the supervision of Philadelphia Regional Attorney Debra M. Lawrence.

“We are pleased that FedEx Ground was willing to work with the EEOC to achieve this resolu­tion,” said Morocco. Rethage added, “The consent decree promotes effective and consistent accommodations for deaf and hard-of-hearing package handlers, including for safety, equipment and communication of job-related information.”

Jamie Williamson, director of the EEOC’s Philadelphia District Office, said, “We are grateful to the numerous individuals throughout the country who filed the charges that led to the EEOC’s systemic investigation and ultimately this resolution in federal court. It is very powerful when multiple employees come forward to notify the agency of the same issue.”

The EEOC Philadelphia District Office 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 Official Touts Agency’s Covid-19 Actions

The official was prepared to pat the agency on the back–until the hearing was cancelled.

Principal Deputy Assistant Secretary Loren Sweatt of the Occupational Safety and Health Administration (OSHA) was scheduled and prepared to testify at the House of Representatives Education and Labor Committee hearing this morning. But only yesterday, the committee postponed the hearing. Sweatt remains available and willing to inform the committee of the important work the men and women of OSHA have been doing to keep workers safe and healthy in this critical time. For months, OSHA has been preparing workplaces for the effects of the coronavirus. Had the hearing been held as planned, Sweatt would have informed the committee of the following facts, which are included in her submitted written testimony:

“OSHA operates every hour of every day, as it has for nearly half-a-century following the enactment of the Occupational Safety and Health Act. I am proud of the work this agency has done during the Trump Administration, but I am particularly proud of the work it is performing right now as it responds to the worldwide health crisis. I welcome this opportunity to update you on all of the agency’s efforts.”

“OSHA’s efforts to address COVID-19 have been its top priority since February. Our world changed with the arrival and spread of the coronavirus. Although the pandemic has changed the way OSHA completes its mission, it has never faltered in its commitment to ensure employers provide a workplace free of hazards. OSHA quickly pivoted to focus intensely on giving employers and workers the guidance they need to work safely in this rapidly changing situation; where appropriate, OSHA has also enforced safety and health requirements.”

“While extensive guidance is important as the rapidly changing dynamic of this pandemic continues, it is important to recognize OSHA also has existing standards that serve as the basis for its COVID-19 enforcement. Those standards include rules regarding respiratory protection, personal protective equipment (PPE), eye and face protection, sanitation, and hazard communication.”

“OSHA is also an active participant in ten federal task forces focused on the COVID-19 response and as always, continues its collaborations with its federal partners to share information and develop tools to meet the challenges of fighting this disease and protecting workers.”

“The work of the agency continues uninterrupted even as we respond to this pandemic. Since February 1, 2020, and through May 14, 2020, OSHA has received 5,500 non-COVID-19 complaints and conducted 4,575 investigations based on these complaints. During this time, OSHA has received 2,290 non-COVID-19 whistleblower complaints, which are being evaluated along with the COVID-19 whistleblower complaints.”

“During Fiscal Year (FY) 2019, OSHA conducted 33,401 inspections—more inspections than in each of the previous three fiscal years.”

“OSHA also provided a record 1,392,611 workers with training on safety and health requirements in FY 2019.”

“The Department’s goal each day is to ensure OSHA protects the safety and health of America’s workforce. Before, during, and after the pandemic, my goal is for OSHA’s efforts to prevent workers from ever becoming ill or injured because they are doing their job.”

“Where there are safety issues, OSHA remains, as always, shoulder to shoulder with America’s workers.”

A full, updated testimony transcript will be available when the hearing is rescheduled.

OSHA’s New Get Tough Policy on Coronavirus Includes Stepped-up Inspections, Recordkeeping

Prepare to open your doors to more safety expectations as the nation emerges from the pandemic.

The U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) has adopted revised policies for enforcing OSHA’s requirements with respect to coronavirus as economies reopen in states throughout the country.

Throughout the course of the pandemic, understanding about the transmission and prevention of infection has improved. The government and the private sector have taken rapid and evolving measures to slow the virus’s spread, protect employees, and adapt to new ways of doing business.

Now, as states begin reopening their economies, OSHA has issued two revised enforcement policies to ensure employers are taking action to protect their employees.

First, OSHA is increasing in-person inspections at all types of workplaces. The new enforcement guidance reflects changing circumstances in which many non-critical businesses have begun to reopen in areas of lower community spread. The risk of transmission is lower in specific categories of workplaces, and personal protective equipment potentially needed for inspections is more widely available. OSHA staff will continue to prioritize COVID-19 inspections, and will utilize all enforcement tools as OSHA has historically done.

Second, OSHA is revising its previous enforcement policy for recording cases of coronavirus. Under OSHA’s recordkeeping requirements, coronavirus is a recordable illness, and employers are responsible for recording cases of the coronavirus, if the case:

Under the new policy issued today, OSHA will enforce the recordkeeping requirements of 29 CFR 1904 for employee coronavirus illnesses for all employers. Given the nature of the disease and community spread, however, in many instances it remains difficult to determine whether a coronavirus illness is work-related, especially when an employee has experienced potential exposure both in and out of the workplace. OSHA’s guidance emphasizes that employers must make reasonable efforts, based on the evidence available to the employer, to ascertain whether a particular case of coronavirus is work-related.

Recording a coronavirus illness does not mean that the employer has violated any OSHA standard. Following existing regulations, employers with 10 or fewer employees and certain employers in low hazard industries have no recording obligations; they need only report work-related coronavirus illnesses that result in a fatality or an employee’s in-patient hospitalization, amputation, or loss of an eye.[1]

For further information and resources about the coronavirus disease, please visit OSHA’s coronavirus webpage.

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