Unwelcome: Loan Co. Violated Black Disabled Worker’s Civil Rights, EEOC Charges in Lawsuit

This employee had two strikes against her–she was Black and disabled.

Georgia-based Community Loans of America, Inc. and its subsidiary, Carolina Title Loans, Inc., violated federal law by subjecting an employee to a racially hostile work environment, by failing to accommodate her disability, and by firing her because of that disability, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit filed Tuesday.

According to the EEOC’s complaint, from approximately August 2019 through September 2019, the branch manager of the employer’s operations in Greenville, South Carolina subjected Shaneka Jenkins to unwelcome severe and pervasive comments based on Jenkins’ race, African American. Specifically, the branch manager made derogatory comments about Black customers in Jenkins’ presence. She routinely used the word n—-r and said things such as she “hated working with n—-rs” and “they never pay their bills.” Jenkins reported the racially offensive comments directly to two different managers, but no action was taken to stop the harassment. Jenkins also attempted to report the hostile working conditions through the employer’s employee hotline, but the company did not return her calls.  

Also, according to the EEOC’s complaint, the employer refused to allow Jenkins to return to work following unpaid leave for a disability-related surgery because she needed to return with the use of crutches or a wheelchair. The company told Jenkins that she could not return until she did not have any restrictions. By refusing to consider a reasonable accommodation or to allow Jenkins to return to work with the use of crutches or a wheelchair, the employer forced Jenkins to extend her unpaid leave. Ultimately, rather than accommodating Jenkins’ return to work, the company fired her.  

Title VII of the Civil Rights Act of 1964 protects employees from discrimination and harassment in the workplace. The EEOC filed suit in U.S. District Court for the District of South Carolina (Equal Employment Opportunity Commission v. Community Loans of America and Carolina Title Loans, Inc, Civil Action No.: 6:22-cv-01000-DCC-JDA) after first attempting to reach a pre-litigation settlement through its voluntary conciliation process. The EEOC seeks monetary relief for Jenkins, including compensatory and punitive damages. The EEOC also seeks injunctive relief against the company to end any ongoing discrimination based on race or disability and to take steps to prevent such unlawful conduct in the future. 

“Employers cannot tolerate a racially hostile work environment, even if the racial insults are directed at a customer rather than another employee,” said Melinda C. Dugas, regional attorney for the EEOC’s Charlotte District. “Additionally, an employer cannot impose a 100% healed policy to prevent disabled employees from returning to their jobs. An employer has an affirmative duty to engage in an interactive process with the disabled employee to determine whether the employee can return to work with a reasonable accommodation.” 

EEOC District Director Thomas Colclough said, “All employees deserve and should expect a workplace that is free of racial harassment and disability discrimination. The EEOC will continue to vigorously seek redress that ensures that racial harassment and disability discrimination are eradicated from the workplace.”  

For more information on race and color discrimination, please visit https://www.eeoc.gov/racecolor-discrimination. For more information on harassment, please visit https://www.eeoc.gov/harassment. 

EEOC Touts Achievements, Releases New Budget

The agency reflected and looked ahead this week.

The U.S. Equal Employment Opportunity Commission (EEOC) Monday released its report on the agency’s performance during the 2021 fiscal year and its proposed budget for fiscal year 2023.

Key fiscal 2021 performance metrics included higher recoveries through the administrative process; higher merit factor resolutions (resulting in nearly 1 in 5 charges resolved favorably to workers); rebuilding the litigation program, including by filing more lawsuits; and more successful mediations – both in number and benefits to charging parties. Federal sector recoveries saw increases as well.

During the pandemic there was a slight decrease in charge receipts and uptick in the pending charge inventory. Yet, despite historically low staffing levels, the agency was able to enhance technologies to ensure continuity of service, including through increased virtual mediations and online outreach events.

The President also released his 2023 Budget, which proposes $464.65 million for EEOC, including $31.5 million for state, local, and tribal programs. This represents a 10.6% increase over the 2022 enacted level. The 2023 Budget will allow the agency to continue rebuilding the agency’s capacity to meet its expanded responsibilities and the needs of the growing U.S. population.

The EEOC made a down payment on rebuilding the agency in fiscal year 2021 with the authorization of 450 hires – mostly front-line staff, including intake staff, investigators, mediators, and trial attorneys – and ended the year with over 2,100 employees. By comparison, the agency had just 1,939 employees in fiscal year 2020 and over 3,300 in fiscal year 1980. With the President’s Budget and robust workforce planning, the EEOC plans to add more full-time positions in fiscal year 2022 to bring our level up to 2,300 to improve our capacity to advance the agency’s mission and vigorously enforce the laws entrusted to the EEOC.

“Today, promoting equal employment opportunity and enforcing the nation’s federal workplace discrimination laws are as necessary as ever,” said Burrows. “We must strengthen and rebuild the agency to ensure the EEOC has the resources it needs to fulfill our mission and effectively enforce antidiscrimination laws. With the President’s Budget, the EEOC will focus on four broad areas: racial justice and combatting systemic discrimination on all protected bases, pay equity, addressing the civil rights impact of the COVID-19 pandemic, and further strengthening the agency.”

Burrows said the proposed budget also will help advance three initiatives launched in 2021: the Hiring Initiative to Reimagine Equity (HIRE), which aims to expand employment opportunities as the nation recovers from the pandemic; a joint anti-retaliation initiative with the U.S. Department of Labor and the National Labor Relations Board; and an initiative to ensure that employment-related artificial intelligence and algorithmic decision-making tools comply with federal civil rights laws.

“Since EEOC opened its doors more than 60 years ago, our country has made substantial progress toward the goal of equal opportunity in our nation’s workplaces,” said Burrows. “Yet there is still a great deal to be done to ensure that the basic promise of our nation and our constitution, equality and justice for all, truly becomes a reality in America’s workplaces. That’s why it is critical that the Commission has sufficient staff and resources to achieve our mission.”

OSHA Proposes Injury Info Reporting Update

A new proposal would up the requirements for certain high-hazard industries.

The U.S. Department of Labor’s Occupational Safety and Health Administration is proposing amendments to its occupational injury and illness recordkeeping regulation, 29 CFR 1904.41. The current regulation requires certain employers to electronically submit injury and illness information – that they are required to keep – to OSHA. The agency uses these reports to identify and respond to emerging hazards and makes aspects of the information publicly available.

In addition to reporting their Annual Summary of Work-Related Injuries and Illnesses, the proposed rule would require certain establishments in certain high-hazards industries to electronically submit additional information from their Log of Work-Related Injuries and Illnesses, as well as their Injury and Illness Incident Report.

As part of OSHA’s mission to protect workers and mitigate workplace hazards, this rule would improve OSHA’s ability to use its enforcement and compliance assistance resources to identify workplaces where workers are at high risk. The proposed rule would also advance the department’s mission to empower workers by increasing transparency in the workforce.

The proposed rule would:

• Require establishments with 100 or more employees in certain high-hazard industries to electronically submit information from their OSHA Forms 300, 301 and 300A to OSHA once a year.
• Update the classification system used to determine the list of industries covered by the electronic submission requirement.
• Remove the current requirement for establishments with 250 or more employees not in a designated industry to electronically submit information from their Form 300A to OSHA annually.
• Require establishments to include their company name when making electronic submissions to OSHA.

Establishments with 20 or more employees in certain high-hazard industries would continue to be required to electronically submit information from their OSHA Form 300A annual summary to OSHA annually.

Submit comments online using Docket No. OSHA-2021-0006 on the Federal eRulemaking Portal. Read the Federal Register notice for details. Comments must be submitted 60 days after the proposed rule is published in the Federal Register.

Learn more about OSHA’s Injury and Illness Recordkeeping and Reporting Requirements.

Court Hits Up Repeat Safety Violator for $2M

This employer will have to reach into his wallet to make good for his safety transgressions.

One of New Jersey’s most flagrant violators of federal workplace safety laws – who continually puts workers at risk of serious injuries or worse – is personally liable for $2 million in penalties assessed by the U.S. Department of Labor’s Occupational Safety and Health Administration, a federal administrative law judge has ruled.

The judge, with the independent Occupational Safety and Health Review Commission, granted the department’s motion for summary judgment against Palisades Park contractor Juan Quevedo-Garcia, owner and principal of BB Frame LLC, following five OSHA inspections at four Bergen County worksites beginning in December 2019. Violations found during these inspections led OSHA to propose $2,004,225 in penalties against BB Frame LLC, and Quevedo-Garcia individually.

Earlier in 2019, Quevedo-Garcia had dissolved his previous framing company, Frame Q LLC, after having racked up over $700,000 in unpaid OSHA penalties for similar prior violations; but he nonetheless continued to do business under the Frame Q trade name.

In December 2019, OSHA conducted two inspections of BB Frame LLC dba Frame Q. The first was in response to a complaint at a worksite in Cliffside Park that resulted in nine safety violations and a $520,860 penalty. The second, at a Fort Lee location, resulted in five citations and a proposed penalty of $426,785.

In January 2020, as part of the agency’s local emphasis program for fall hazards, OSHA opened an inspection at another Cliffside Park location and issued five safety citations with a $405,588 proposed penalty.

OSHA completed two additional inspections in February 2020 at a Palisades Park site. The agency initiated one as part of the local emphasis program for fall hazards and issued three citations with a proposed penalty of $274,892. The other inspection, initiated in response to a complaint, resulted in eight violations and a $369,000 proposed penalty.

From the five inspections, OSHA identified eight willful, 10 repeat, and 12 serious violations for hazards that included failure to use fall, head and eye protection; unsafe use of stepladders; scaffolding, housekeeping and fire safety deficiencies; lack of stair rails and lack of forklift training.

After Quevedo-Garcia contested the citations, the department filed complaints with the commission on Aug. 27, 2020. The judge granted summary judgment in a decision issued on Feb. 25, 2022, holding Quevedo-Garcia personally liable for the citations and for payment of a total combined penalty of $2,004,225 for all violations.

The judge’s decision found that Quevedo-Garcia “dominated BB Frame and abused its corporate form to circumvent the OSH Act,” and therefore holding Quevedo-Garcia “personally liable for the company’s violations and resulting penalties is necessary to prevent the continued or renewed circumvention of the OSH Act and avoidance of the Act’s expressed legislative purpose and policy.”

“Among construction industry employers, Juan Quevedo-Garcia and his shell companies have been the most prominent OSHA scofflaws in New Jersey in the past decade. The administrative law judge’s decision stops this employer from ignoring safety in the future and sets a critical precedent that the U.S. Department of Labor will use every enforcement and legal tool available against serial violators who attempt to evade federal safety laws with corporate shell games,” said Solicitor of Labor Seema Nanda.

“Juan Quevedo-Garcia deliberately failed to pay the fines, and displayed a total disregard for the safety of his workers and for the law. This ruling sends a clear message that business owners who abuse the system to avoid responsibility will be held legally accountable when they fail to uphold their obligation to provide a safe workplace and think they can ignore federal fines,” said Assistant Secretary of Labor for Occupational Safety and Health Doug Parker.

OSHA’s Hasbrouck Heights Area Office conducted the five inspections. Senior Trial Attorney Alexander Kondo, Trial Attorney Carina De La Paz and Senior Trial Attorney Andrew Karonis of the regional Office of the Solicitor in New York litigated the case for the department.

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 workers by setting and enforcing standards, and providing training, education and assistance.

OSHA Cites Chemical Co. for Flash Fire Injuries

Inattention to safety caused these serious injuries, the government concluded.

The U.S. Department of Labor’s Occupational Safety and Health Administration has issued citations with a combined 11 serious violations to four employers for lack of safe work practices; confined space permit violations; confined space training, exposure to airborne concentrations of benzene; struck-by hazards; flash fire and explosions hazards and not performing process equipment inspections, the agency announced on Thursday.

OSHA initiated an investigation following a flash fire and subsequent explosion that seriously injured six workers Sept. 27, 2021, at Westlake Chemicals in Sulphur, Louisiana. The incident occurred during preventive care and maintenance activities at Westlake Chemicals Sulphur facility.

Proposed penalties amount to $139,427.

“Employers are responsible for ensuring employees have a safe workplace by having the correct confined space permits and a plan in place to inspect equipment to prevent serious injuries,” said Area Director Roderic Chube in Baton Rouge, Louisiana. “Employers should also make sure that no employee is exposed to an airborne concentration of benzene in excess of the permissible exposure limits.”  

Links to citations: Turn2 Specialty Companies LLC, Westlake Chemical Lake Charles South, Leak Sealers Inc. and Wastewater Specialties LLC

EEOC: Farm Allowed Harassment of Employees

No one should have to abide by these working conditions.

Tres Hijas Berry Farm, LLC., an agricultural company that harvests and sells raspberries, violated federal law by allowing a class of employees, female and male, to be subjected to sex-based harassment and retaliation, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit filed yesterday.

According to the EEOC’s lawsuit, since at least October 2018, Tres Hijas Berry Farm allowed a class of employees to be subjected to sex-based harassment by a supervisor. The harassment included repeated, frequent and offensive sex-based remarks and unwelcome physical touching. The EEOC’s suit further alleges that Tres Hijas Berry Farm failed to monitor the workplace, failed to properly investigate and respond to complaints, and discouraged additional complaints from being filed. Employees were forced to continue working with the supervisor who harassed them, even after they complained, the EEOC contends.

Such alleged conduct violates Title VII of the Civil Rights Act of 1964, which prohibits discrim­ination on the basis of sex and retaliation. The EEOC filed suit in U.S. District Court for the Central District of California (Case No.: 2:22-cv-01919) after first attempting to reach a pre-litigation settlement through its conciliation process. The EEOC’s suit seeks compensatory and punitive damages for a class of employees, as well as injunctive relief intended to prevent and correct discrimination.

“The EEOC continues to see employers failing to properly investigate and correct harassment in the workplace,” said Anna Park, regional attorney with the Los Angeles district of the EEOC, which includes Camarillo in its jurisdiction.

Acting Los Angeles District Director Christine Park-Gonzalez added, “It is imperative that employers address complaints of harassment in a fair and timely manner. Chilling employees from reporting harassment creates a culture that allows harassment to flourish and negatively impacts all employees.”

Preventing systemic workplace harassment through strong enforcement is also one of the six national priorities identified by the Commission’s Strategic Enforcement Plan (SEP).

For more information on harassment, please visit https://www.eeoc.gov/harassment. For more information on sexual harassment in particular, please visit https://www.eeoc.gov/sexual-harassment. For more information on retaliation, please visit https://www.eeoc.gov/retaliation.

Roofer Fined Again Over Fall Hazard Violations

Another employer is cited for falling down in preventing fall hazards.

Despite the serious consequences of its actions, an Appleton-based contractor was again cited for exposing  workers to deadly fall hazards after a U.S. Department of Labor Occupational Safety and Health Administration inspector observed six roofers atop a two-story Algoma duplex on Nov. 2, 2021 – about six months after the contractor’s last citations in June 2021.

After OSHA found Apple Roofing Solutions LLC had again failed to provide fall protection equipment to workers, train them on its use and provide a ladder extended at least 3 feet above the landing surface, the agency issued one willful, one repeat and one serious violation. Proposed penalties total $49,722. 

In June 2021, OSHA cited the company for the same hazards, identified during an inspection at a Neenah job site, and proposed $21,140 in penalties.

The pair of recent inspections continues the company’s history of failing to protect its roofing workers. In 2017 and 2018, OSHA cited the company for similar hazards at other job sites. The company has neither paid OSHA penalties assessed in June 2021 nor complied with requirements to provide abatement information.

“Apple Roofing Solutions continues to show a flagrant disregard for the safety and well-being of its workers, and the law. Fall hazards make roofing work among the construction industry’s most dangerous jobs and among OSHA’s most frequently cited hazards,” said OSHA Area Director Robert Bonack in Appleton. “While this company seems willing to ignore the dangers of falls and the potential for serious injuries, debilitation or worse, OSHA will hold Apple Roofing Solutions, and other employers like them, accountable for failing to meet the legal requirements to provide safe working conditions.”

The Bureau of Labor Statistics reports in 2020 that 1,008 construction workers died on the job, with 351 of those falls from elevation.

OSHA’s stop falls website offers safety information and video presentations in English and Spanish to teach workers about hazards and proper safety procedures. Learn more about OSHA’s annual National Safety Stand-Down to Prevent Falls, set for May 2-6.

The company has 15 business days from receipt of its 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.

OSHA Resets Hearing on Covid Healthcare Rule

The pandemic may be easing, but health care workers remain on the front lines of exposure.

The U.S. Department of Labor’s Occupational Safety and Health Administration has reopened the rulemaking record partially and scheduled an informal public hearing to seek comments on specific topics that relate to the development of a final standard to protect healthcare and healthcare support service workers from workplace exposure to the COVID-19 virus.

Submit comments online, identified by Docket No. OSHA-2020-0004. Submit written comments by the deadline of April 22, 2022.

Individuals interested in testifying at the hearing must submit their notice of intention to appear no later than 14 days after the publication of the Federal Register Notice. The hearing will begin on April 27, 2022 and will take place online. If necessary, the hearing will continue on subsequent days. Learn more in the Federal Register notice.

On June 21, 2021, OSHA issued an emergency temporary standard to protect workers in healthcare settings from occupational exposure to COVID-19. The Emergency Temporary Standard – which also served as a proposed rule – focused on healthcare workers most likely to have contact with people infected with the virus.

The agency is reopening the rulemaking record to allow for new data and comments on topics, including the following:

• Alignment with the Centers for Disease Control and Prevention’s recommendations for healthcare infection control procedures.
• Additional flexibility for employers.
• Removal of scope exemptions.
• Tailoring controls to address interactions with people with suspected or confirmed COVID-19.
• Employer support for employees who wish to be vaccinated.
• Limited coverage of construction activities in healthcare settings.
• COVID-19 recordkeeping and reporting provisions.
• Triggering requirements based on community transmission levels.
• The potential evolution of SARS-CoV-2 into a second novel strain.
• The health effects and risk of COVID-19 since the ETS was issued.

As OSHA works towards a permanent regulatory solution, employers must continue to comply with their obligations under the General Duty Clause, Personal Protective Equipment and Respiratory Protection Standards, as well as other applicable OSHA standards to protect their employees against the hazard of COVID-19 in the workplace. More information, including compliance assistance materials, are available.

Learn more about the issue and obtain compliance assistance materials.

Burned: Plastic Maker Fined $369K by OSHA For Injury to Employee Caused by Hot Liquid Spray

Another instance in which following basic safety protocols would have spared an employee injury.

A U.S. Department of Labor investigation found that a plastic packaging manufacturer – with a history of workplace safety and health inspections – could have prevented a worker at its Sterling facility from suffering severe burns if they had complied with OSHA’s requirements for lockout/tagout and provided personal protective equipment.

Investigators from the department’s Occupational Safety and Health Administration determined that a worker for Berry Global Inc. was sprayed with hot liquid plastic as they changed a screen on a plastic bag extruder machine on Sept. 23, 2021.

In the last five years, OSHA has inspected Berry Global Inc. in various U.S. locations more than 40 times. These inspections include two fatality inspections in New Jersey and Wisconsin related to lockout/tagout violations. The company has contested both inspections.

Following its inspection in Sterling, OSHA found that the company failed to establish and use lockout/tagout procedures or eliminate employee’s exposure to protect workers from the extruder machine while they serviced or maintained it, did not train workers in lockout/tagout procedures, and did not conduct periodic inspections to ensure procedures were followed. OSHA also found that the company did not provide appropriate personal protective equipment to ensure that employees were protected when servicing the extruder.

OSHA cited Berry Global Inc. for two willful violations and one repeat violation and has proposed $369,815 in penalties. Read the citations issued to Berry Global Inc.

“Berry Global Inc. could have prevented this worker’s injuries if the company had followed required safeguards,” said OSHA Area Director Mary Hoye in Springfield, Massachusetts. “OSHA will hold employers accountable when they knowingly disregard their legal responsibility to provide workers a safe and healthful workplace.”

Berry Global Inc. meets the requirements for the Severe Violator Enforcement Program because one of the proposed willful, and the proposed repeat citation, are high emphasis standards of lockout/tagout.

Founded in 1967, Berry Global Group Inc. manufactures and supplies products for household, healthcare, personal care, food and beverage, and industrial markets in North and South America, Europe and Asia. Headquartered in Evansville, Indiana, the company has about 47,000 global employees at more than 295 locations, including its location in Sterling where plastic bags are manufactured.

Berry Global Inc. has 15 business days from receipt of its 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.

Learn more about OSHA and working safely in plastic products manufacturing.

OSHA: Mixing Safety Failures Fatal to Employee

This employee’s death was easily preventable, according to federal investigators.

A federal investigation by the U.S. Department of Labor’s Occupational Safety and Health Administration found that a Smithfield company could have prevented a worker from suffering fatal head injuries while the worker repaired a cement truck on Oct. 21, 2021.

OSHA determined that, as the worker installed a fabricated plate onto the chute into the drum on the cement truck, the drum began to turn. The mixing fins inside the drum caught the worker’s head and caused fatal injuries.

The agency found that Greenville Ready Mix Concrete Products Inc. did not establish a lockout/tagout program to prevent the cement truck drum from operating while employees serviced or maintained it, did not train employees in lockout/tagout procedures and did not conduct periodic inspections to ensure proper procedures were followed.

OSHA also found that the company did not evaluate the workplace for permit-required confined spaces, such as inside cement truck drums, failed to provide and ensure that employees used fall protection while working on cement truck platforms and exposed workers to both silica dust and rotating drums and augers. Read the citations issued to Greenville Ready Mix Concrete.

The agency issued citations for six serious safety and health violations and proposed $43,506 in penalties.

“This tragedy highlights the dangers of not ensuring lockout/tagout procedures are implemented before workers begin servicing machinery,” said OSHA Area Director Robert Sestito in Providence, Rhode Island. “Complying with OSHA standards is not optional. Employers have an obligation to abate all hazards to protect the safety and health of their workers.”

Since 1991, Greenville Ready Mix Concrete Products Inc. has specialized in ready mix concrete, sand and gravel, colored concrete products and masonry supplies. The company has 15 business days from receipt of its 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 workers by setting and enforcing standards, and providing training, education and assistance.

Learn more about OSHA and working safely in concrete products manufacturing.