Archive for July, 2020

$75K Payment Settles EEOC Suit Against UPS Freight Over Iffy Temporary Assignment Policy

Final terms were entered this week in a settlement of an ADA suit against UPS Freight.

A federal judge in the U.S. District Court for District of Kansas entered an order Wednesday formalizing a settlement resolving the final dispute between UPS Freight and the U.S. Equal Employment Opportunity Commission (EEOC) in a three-year old lawsuit.

The EEOC filed suit in August 2017 (Equal Employment Opportunity Commission v. UPS Ground Freight, Inc., Civil Action No. 2:17-cv- 02453) under the Americans with Disabilities Act (ADA). According to the suit, Thomas Diebold worked as a road driver for UPS Freight from 2006 until his retirement in 2015, at its Service Center in Kansas City, Kansas. After suffering a minor stroke in 2013, Diebold sought temporary non-driving work. But company policy at the time allowed such reassignments only for drivers whose licenses were suspended for nonmedical reasons. In the suit, the EEOC also challenged a later collective bargaining agreement (CBA) between UPS Freight and the Teamsters, under which drivers with disabilities could be reassigned to non-driving work for medical reasons but were paid 10% less than drivers reassigned for non-medical reasons, such as DWI convictions.

In July 2018, the EEOC obtained an order from Chief Judge Julie A. Robinson that UPS Freight’s then-existing CBA violated the ADA. UPS Freight and the union then entered into a new CBA that eliminated the unlawful disparate pay clause. Today’s settlement, approved by Judge Robinson, resolves the EEOC’s claim for damages for Mr. Diebold. UPS Freight will pay him $75,000 for wage and non-wage damages.

Grant Doty, senior trial attorney assigned to this case, said, “The amicable resolution to this case allows both parties to finally move on.”

Andrea G. Baran, EEOC’s regional attorney in St. Louis said, “Employers need to know that disparate treatment of qualified, disabled workers – whether because of a company’s policy or a collective bargaining agreement – is prohibited under the ADA.”

“Workplace policies that discriminate against qualified individuals with disabilities are unlawful and bad business,” said L. Jack Vasquez, Jr., director of the EEOC’s St. Louis District office. “The EEOC encourages workers to report these types of practices.”

The EEOC is responsible for enforcing federal laws prohibiting employment discrimination. The St. Louis District Office oversees Missouri, Kansas, Nebraska, Oklahoma, and a portion of southern Illinois.

Handle With Care: OSHA Ups Standards for Agency Access to Employee Medical Records

Federal workplace safety officials upgraded their procedures for handling employee medical records obtained during compliance investigations.

OSHA may need to review employee medical records during a compliance inspection to determine whether an employer is in compliance with OSHA standards and regulations, or to verify that an employer has taken steps to correct existing violations. Access to employee medical records may also be necessary during inspections to determine the effectiveness of voluntary employer safety and health programs. OSHA also reviews medical records when gathering information during agency rulemaking to develop or revise occupational safety and health standards.

The U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) has revised the Rules of Agency Practice and Procedure Concerning Occupational Safety and Health Administration Access to Employee Medical Records. The rule describes internal procedures that OSHA personnel must follow when obtaining and using personally-identifiable employee medical information.

OSHA has identified and amended several provisions of the regulation in order to improve efficiency in implementing these internal procedures. The final rule:

  • Transfers the approval of written medical access orders (MAOs) from the Assistant Secretary of Occupational Safety and Health to the OSHA Medical Records Officer (MRO). The MRO is responsible for determining the transfer and public disclosure of personally-identifiable employee medical information in OSHA’s possession;
  • Clarifies that a written MAO does not constitute an administrative subpoena; and
  • Establishes new procedures for the access and safeguarding of personally-identifiable employee medical information maintained in electronic form.

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.

OSHA Recovers $220K for Fired Trucker Who Blew Whistle on Employer’s Safety Violations

This should be a cautionary tale for other companies contemplating acting against whistleblowers in their ranks.

The U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) has ordered JHOS Logistics and Transportation Inc. to reinstate an employee terminated for refusing to drive what the employee reasonably believed to be an overweight vehicle at the company’s Wilmington, California facility. OSHA also ordered the company to pay more than $190,000 in back wages, $25,000 in punitive damages, $5,000 in compensatory damages and attorney’s fees.

OSHA investigators determined JHOS Logistics and Transportation Inc. violated the whistleblower provision of the Surface Transportation Assistance Act (STAA) when the company terminated the employee. Two months prior to the termination, the employee received a violation for operating an overweight commercial motor vehicle. The size of the previous load was similar to the size of the current load, which led the employee to reasonably believe the commercial motor vehicle was overweight.

In addition to the monetary penalties, the company must also train managers and post a notice informing their employees about workers’ rights under the STAA. JHOS Logistics and Transportation Inc. may appeal the order to the Department’s Office of Administrative Law Judges.

“This order underscores the U.S. Department of Labor’s commitment to protect employees who report violations under Surface Transportation Assistance Act,” said OSHA Regional Administrator Barbara Goto. “OSHA enforces the legal provisions of the act, which protects employees who exercise their right to report health and safety concerns with commercial motor vehicles.”

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, securities, and tax laws and for engaging in other related protected activities. For more information on whistleblower protections, visit OSHA’s Whistleblower Protection Programs 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 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.

Software Publisher to Reform Training Practices, Pay $200K in ADA Hiring Settlement With EEOC

As the nation marks the 30th anniversary of the ADA, a reminder we have a ways to go to make sure qualified applicants can compete fairly for jobs.

Foster City-based software publisher Guidewire Software, Inc. will pay $200,000 and hire a consultant to facilitate changes to its policies and training practices to settle a disability discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency announced today.

According to the EEOC’s suit, Guidewire invited a qualified applicant to participate in a phone screening for a position at the company based on her online application and resume. The applicant asked to have an in-person interview to accommodate her limited ability to clearly hear sounds via telephone and computer. But after briefly discussing potential accommodations with the applicant, and despite internally approving her request for an in-person interview, Guidewire never contacted her again, the EEOC said.

Such alleged conduct violates the Americans with Disabilities Act (ADA), which pro­hibits employers from discriminating based on disability or perceived disability. The EEOC filed suit on Oct. 22, 2019 in U.S. District Court for the Northern District of California, San Francisco Division, Case No. 5:19-cv-06878-LHK, after first attempting to reach a pre-litigation settlement through its voluntary conciliation process.

The consent decree settling the lawsuit provides $200,000 in lost wages and compensa­tory damages to the applicant. Guidewire will also implement policies and procedures regarding reasonable accommodations, including permitting applicants to appeal denials of requests for accommodation. The company will also provide annual training to certain managers and human resource personnel, and report to the EEOC during the decree’s three-year term.

“This individual just wanted the chance to compete fairly with the other applicants for the job,” said EEOC Trial Attorney James H. Baker. “The law requires that employers provide appli­cants with disabilities with the reasonable accommodations needed to do just that.”

EEOC Director for the San Francisco District Office William Tamayo added, “Elimin­ating barriers in recruiting and hiring for individuals with disabilities is a top priority for the EEOC. We commend Guidewire’s willingness to promptly resolve this lawsuit and to imple­ment robust ADA policies and procedures.”

In fiscal year 2019, the EEOC recovered over $116,000,000 stemming from alleged violations involving the ADA.

Guidewire is a software publisher for property and casualty insurers. Founded in 2001, it employs more than 2,200 employees at dozens of locations around the world.

Get Comfortable Talking About Mental Health at Work; Here’s How Employers Can Help Make It So

Get Comfortable Talking About Mental Health at Work

by Robin Paggi

Employers can help their employees deal more forthrightly with their mental health issues, explains our regular guest blogger Robin Paggi. Robin is the training coordinator at Worklogic HR. She is the author of a forthcoming Gen Z – Managing the Newest Generation in the Workforce that is going to be published and on sale on April 6, 2021.

Let’s talk about mental health. I’ll go first.

I was diagnosed with Obsessive Compulsive Disorder about 30 years ago and, thanks to doctors, medicine, insurance, and the love of my family and friends, it has largely been a non-issue since then. I’m revealing this information because we’ve got to become more comfortable talking about mental health issues at work for three primary reasons.

#1: Mental illness is prevalent in America. According to the National Association of Mental Illness, 1 out of 5 adults experience some form of mental illness every year. This includes anxiety disorders, posttraumatic stress disorder, major depressive episodes, schizophrenia, bipolar disorder, borderline personality disorder, and OCD. Unfortunately, nearly 60 percent of people with a mental illness do not receive treatment for it.

#2: Because of the pandemic and everything it brought with it (isolation, massive job losses, economic downturn, school closures, etc.), the authors of the article “The Mental Health Consequences of COVID-19 and Physical Distancing: The Need for Prevention and Early Intervention,” predict we’re in store for an “overflow of mental illness.”

#3: Even before COVID-19, studies showed that adolescents and young adults (known as Generation Z) were more depressed than previous generations at this age.

What was causing this depression for Gen Z prior to the pandemic? Global warming, mass shootings, sexual harassment and assault, family separations, work, finances, and health-related concerns were cited as sources in the study “Stress in America: Generation Z” by the American Psychological Association.

Social media is another cause. “I think a lot of people in my generation struggle with (depression) due to the fact that we are so connected via the internet and social media, which brings a lot of pressure,” 21-year-old Margo Joel was quoted in the article “Gen Z: Studies Show Higher Rates of Depression” by Emily Seymour. Ironically, despite the ability to connect with people around the world, a study conducted by Cigna suggests that Gen Z is the loneliest generation of all.

Unfortunately, there is still such a stigma about mental illness for people my age that we are reluctant to talk about it. However, that’s not the case for younger people. In a 2019 poll conducted by the American Psychiatric Association, 62 percent of people ages 20 – 37 said they feel comfortable talking about their mental health at work. Not surprisingly, only 32 percent of people over 50 said the same thing.

What can employers do about mental health issues at work?

First, help reduce the risk of work contributing to mental illness by implementing these strategies from the article “The Boss’ Guide to Creating a Mentally Healthy Workplace” by Amy Morin:

  1. Promote a work/life balance (insist employees take vacations, encourage a life outside of work)
  2. Discuss mental health in the workplace (train supervisors on signs of mental health problems and how to respond)
  3. Discuss free screening tools (Mental Health America offers them)
  4. Contract with an Employee Assistance Program and remind employees to use it if you already have one
  5. Make wellness a priority (offer wellness incentives)
  6. Provide in-service events (such as workshops on stress management)
  7. Support employees’ efforts to get help (allow mental health days off and flexible schedules)
  8. Reduce the stigma (don’t punish employees for speaking up about their mental health issues by calling them “crazy” or disciplining them for taking time off for treatment)
  9. Make strides one step at a time.

Regarding #7 above: about a decade ago, I was in a class with other HR professionals, most of who were much younger than I. The instructor asked whether we thought employees should be able to take a paid “mental health day” off. Another woman my age and I were the only students who said employers should not allow it. As a Baby Boomer, I was taught that you go to work unless you’re physically incapable of doing so. Because of numerous workplace shootings by stressed out employees, I’ve since changed my mind.

Next, talk to employees when:

Their mental health issues are interfering with their work performance. I suggest following a format like this one (based on “How to Talk to a Depressed Employee” by Joni E. Johnston, Psy.D.):

  • State your concern for the employee. “Robin, I want to talk to you because I’m concerned about you.”
  • Talk about observable behavior. “You missed several important deadlines over the past two weeks.”
  • Acknowledge the change in behavior. “That’s just not like you.”
  • Encourage action. “If things in your personal life are affecting you, we have a confidential employee assistance program that you can call.” Or, if your company doesn’t have an EAP, “you might want to talk to a professional about it.”
  • Be sympathetic but limit the conversation if the employee begins to reveal personal information.
  • Reinforce your concern. “I really want to help you get back on track.”
  • Reinforce the need for performance improvement. “It’s up to you whether you seek professional help or not, but I still need for you to meet your deadlines.”

While the last line above might sound harsh, it is important that employees know that having a mental illness does not excuse them from having to meet performance standards. It also might be the impetus they need to seek help.

They need an accommodation. Because the Americans With Disabilities Act requires employers with fifteen or more employees to accommodate employees with a mental disability, when employees indicate they need an accommodation, you should:

  • Analyze the essential duties of their job,
  • Identify any job-related limitations the employee has,
  • Identify possible reasonable accommodations,
  • Consider the preference of the employee,
  • Select and implement the accommodation most appropriate for both parties, and
  • Document all the above.

For applicants and employees, please know that it is illegal for employers with fifteen or more employees to discriminate against you for having a mental illness or retaliate against you for asking for an accommodation (some states have a lower employee count because of state discrimination laws). Additionally, you are not required to reveal your mental illness unless you ask for an accommodation for it.

We shouldn’t be ashamed or afraid to talk about mental health issues at work. After 30 years, I’m finally comfortable talking about it. I hope you will be too.

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

EEOC: McDonald’s Manager Harassed Teen

Teenagers are entitled to the law’s protections against sexual harassment just like their older peers.

Par Ventures, Inc., a North Carolina corporation which operates a chain of seven McDonald’s fast food restaurants, will pay $12,500 and provide other relief to settle a sexual harass­ment lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency announced July 17. The EEOC had charged that Par Ventures violated federal law when it subjected a teenaged female employee to a sexually hostile work environment.

According to the EEOC’s lawsuit, a male “people manager” at Par Ventures’ Parmlee Drive McDonald’s in Fayetteville sexually harassed the employee, who was only 16 years old at the time. The EEOC charged that she was subjected to sexual comments, sexual requests, and unwanted touching from her male supervisor. The complaint alleged that the supervisor offered her money for nude pictures of herself, asked her explicit sexual questions, and ultimately sexually assaulted her.

Sexual harassment is a form of sex discrimination, which violates Title VII of the Civil Rights Act of 1964. The EEOC filed suit in U.S. District Court for the Eastern District of North Carolina, Western Division (EEOC v. Par Ventures, Inc. d/b/a McDonald’s, Civil Action No 5:19-cv-00341-FL) after first attempting to reach a pre-litigation settlement through its voluntary con­ciliation process.

In addition to the $12,500 in monetary relief for the discrimination victim, the five-year consent decree settling the lawsuit requires Par Ventures to revise its policy on sexual harassment and to post a notice concerning the lawsuit and employee rights under federal anti-discrimination laws. Par Ventures must also conduct annual training for all employees on the requirements of Title VII and its prohibition against sexual harassment in the workplace, and on the company’s sexual harassment policy. The decree also requires Par Ventures to report all employee complaints about sex-based conduct or comments to the EEOC.

“Employers must especially heighten their awareness of the harassment of teenage workers – one of the most vulnerable segments of the labor force – and actively take steps to prevent it,” said Kara Gibbon Haden, acting regional attorney of the EEOC’s Charlotte District Office.

The EEOC’s Youth@Work website (at http://www.eeoc.gov/youth/ ) presents information for teens and other young workers about employment discrimination, including curriculum guides for students and teachers and videos to help young workers learn about their rights and responsibilities.

Cop on the Beat: OSHA Cites Nursing Homes for Respiratory Safety Violations Amid Coronavirus

Finally, some bite to OSHA’s actions to protect workers from the coronavirus.

The U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) has cited healthcare company OHNH EMP LLC for violating respiratory protection standards following an inspection initiated after the company reported the coronavirus-related hospitalization of seven employees.

OSHA inspected three OHNH EMP facilities in Ohio: Pebble Creek Healthcare Center in Akron, and Salem West Healthcare Center and Salem North Healthcare Center in Salem. OSHA cited each location for a serious violation of two respiratory protection standards: failing to develop a comprehensive written respiratory protection program and failing to provide medical evaluations to determine employees’ ability to use a respirator in the workplace. OSHA also issued a Hazard Alert Letter regarding the company’s practice of allowing N95 respirator use for up to seven days and not conducting initial fit testing. The agency has proposed $40,482 in penalties.

“It is critically important that employers take action to protect their employees during the pandemic, including by implementing effective respiratory protection programs,” said Principal Deputy Assistant Secretary for Occupational Safety and Health Loren Sweatt. “OSHA has and will continue to vigorously enforce the respiratory protection standard and all standards that apply to the coronavirus. As Secretary Scalia has said, ‘the cop is on the beat.'”

“OSHA’s investigation found that, although the company was making efforts to protect its employees from the coronavirus, it had not fully implemented an appropriate respiratory protection program,” said OSHA Cleveland Area Office Director Howard Eberts. “Employers are and will continue to be responsible for providing a workplace free of serious recognized hazards. In issuing this citation, OSHA relied on one of its preexisting standards that protect workers from the coronavirus.”

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.

Employers with questions on compliance with OSHA standards should contact their local OSHA office for guidance and assistance at 800-321-OSHA (6742). OSHA’s COVID-19 response webpage offers extensive resources for addressing safety and health hazards during the evolving coronavirus pandemic.

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.

EEOC: Buddhist Pilot Was Due Accommodation To Attend Non-AA Alcohol Treatment Program

An employer’s insistence that an employee must attend AA treatment program has got it into trouble with the feds.

United Airlines discriminated against a Buddhist pilot on the basis of his religion when it refused to modify its addiction treatment program to change a requirement that conflicted with his religious beliefs, the Equal Employment Opportunity Commission (EEOC) charged in a lawsuit it filed Monday.

According to the EEOC’s lawsuit, the pilot was diagnosed with alcohol dependency and lost the medical certificate issued by the Federal Aviation Administration (FAA). United operates a program for its pilots with substance abuse problems that provides them treatment and sponsors them to obtain new medical certificates from the FAA. One of the requirements of United’s program is that pilots regularly attend Alcoholics Anonymous (“AA”). The pilot, who is Buddhist, objected to the religious content of AA and sought to substitute regular attendance at a Buddhism-based peer support group. United refused to accommodate his religious objection and, as a result, the pilot was unable to obtain a new FAA medical certificate permitting him to fly again, the agency charged.

Title VII of the Civil Rights Act of 1964 prohibits discrimination based on religion, which includes the requirement to make a reasonable accommodation for an employee’s sincerely held religious beliefs, as long as doing so does not impose an undue hardship on the employer’s business. The EEOC filed suit in U.S. District Court for the District of New Jersey (EEOC v. United Airlines Inc., Civil Action No. 20-cv-9110) after first attempting to reach a pre-litigation settlement through its conciliation process. The agency’s litigation effort will be led by Senior Trial Attorney Sebastian Riccardi.

“Employers have the affirmative obligation to modify their policies to accommodate employees’ religious beliefs,” said EEOC New York Regional Attorney Jeffrey Burstein. “Despite this obligation, United was inflexible and refused to make a modest change its program that would have caused them no hardship.”

EEOC New York District Director Judy Keenan added, “The EEOC stands ready to protect employees against discrimination on the basis of their religion.”

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

Bad Odor: Septic Tank Co. Owner Harassed, Retaliated Against Male Employee, EEOC Alleges

The stench from this situation hopefully will be abated by this lawsuit.

Shelley’s Septic Tank, Inc, a Zellwood, Fla. company, violated federal law when a driver was sexually harassed by the company’s owner and discharged in retaliation for complaining to the sheriff’s office about the harassment, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit filed yesterday.

According to the EEOC’s lawsuit, the company’s owner, David Shelley, repeatedly made sexually charged comments to a male employee and engaged in unwelcome physical contact with the employee. After repeatedly objecting to the harassment, the employee reported it to the sheriff. The EEOC said that owner found out about it and, four days after the employee’s complaint, retaliated against the employee by firing him.

Such alleged conduct violates Title VII of the Civil Rights Act of 1964, which prohibits employers from retaliating against workers who object to such discrimination.

The EEOC filed suit in U.S. District Court for the Middle District of Florida (EEOC v. Shelley’s Septic Tank, Inc., Case No. 6:20-cv-01285) after first attempting to reach a pre-litigation settlement through its conciliation process. The agency seeks back pay, front pay, compensatory and punitive damages for the discrimination victim, and injunctive relief.

“Both men and women are protected from sexual harassment under Title VII,” said Robert E. Weisberg, regional attorney for the EEOC’s Miami District Office. “Sexual harassment will not be tolerated by the EEOC regardless of the sex of the victim or harasser.”

“The EEOC also will not tolerate retaliation against harassment victims,” added Evangeline Hawthorne, director of the EEOC’s Tampa Field Office. “Protecting victims’ right to oppose discrimination by reporting inappropriate conduct in the workplace is paramount to EEOC’s mission.”

The EEOC’s Miami District Office is comprised of the Miami, Tampa, and San Juan offices and has jurisdiction over most of Florida, Puerto Rico and the U.S. Virgin Islands. The EEOC’s Miami District employs multiple bilingual investigators who speak English, Spanish, Haitian Creole, French and Portuguese.

High Wire Act: Fiber Optic Installer Fined $58K by OSHA Following Fatality From a Trench Collapse

With a little planning and effort, trench collapses can be prevented–and workers’ lives saved.

The U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) has cited Triple S Communications Inc. for violations of OSHA’s trenching and excavation standards after an employee was fatally injured in a trench collapse at a De Soto, Georgia, worksite. The Moultrie, Georgia, telecommunications installation contractor faces $58,025 in penalties.

The employee was fatally injured while performing fiber optic connections. OSHA initiated the inspection as a result of the incident and as part of the National Emphasis Program on Trenching and Excavation.

OSHA cited the company for failing to train employees on how to recognize trench safety hazards, have a competent person conduct trench inspections, provide a safe means of egress from the excavation and prevent water accumulation inside the excavation. OSHA also cited the employer for allowing employees to work in the 10-foot excavation without shoring, sloping or shielding trench walls, and failing to report a fatality within eight hours, as required.

“Excavation collapses are among the most dangerous hazards in the workplace. Employers must be vigilant in identifying and mitigating these hazards,” said OSHA Savannah Area Office Director Margo Westmoreland. “Training employees to recognize and control hazards can minimize serious and fatal injuries. OSHA encourages employers to contact the agency for compliance assistance with trenching and excavation requirements.”

OSHA’s trenching and excavation webpage provide additional information and resources on hazards and solutions, including a trenching operations QuickCard and a “Protect Workers in Trenches” poster.

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 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.