Archive for the ‘Uncategorized’ Category

OSHA: Civil Penalties to Increase in 2019

Employers will have to pay more in fines this year for violating workplace safety rules, according to inflation adjustments issued today. But the increases are not official yet.

The Federal Civil Penalties Inflation Adjustment Act of 1990 as amended by the
Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (Inflation Adjustment Act) requires the U.S. Labor Department to annually adjust its civil monetary penalty levels for inflation no later than January 15 of each year. Adjustments are made by issuing a final rule that is effective on its date of publication in the Federal Register.

Due to a lapse in appropriations funding for certain government agencies, including the Office of the Federal Register, publication of the Department of Labor Final Civil Penalties Inflation Adjustment Act Annual Adjustment for 2019 Final Rule has been delayed. The Department of Labor is making the prepublished version of the Final Rule available on its website for informational purposes only until the official version is published in the Federal Register. The unofficial version of the Final Rule is subject to review and revision by the Office of the Federal Register. The Final Rule will not go into effect until it is published in the Federal Register. The effective date will be the date of publication, and the increased penalty levels will apply to any penalties assessed after the effective date of the increase. After publication, the Final Rule can be accessed through the Federal Register website at http://www.federalregister.gov. To the extent that there are discrepancies between this unofficial version and the official version published in the Federal Register, the latter version controls.

The new penalties are:

Serious
Other-Than-Serious
Posting Requirements

$13,260 per violation

Failure to Abate

$13,260 per day beyond the abatement date

Willful or Repeated Violation

$132,598 per violation

Same-Sex Harassment Alleged at Senior Center

Employees who work with patients have enough to worry about without having to worry that their supervisors will make unwanted sexual advances.

Olympia, Wash.-based Koelsch Senior Communities, LLC, which provides assisted living and other care facilities for seniors, violated federal law by allowing a female supervisor to sexually harass a female employee, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit filed Friday, September 28.

The EEOC’s investigation found that from very early on, employee Rebecca Flores was made uncomfortable by the conduct of her female supervisor at The Hampton at Salmon Creek, a Koelsch assisted care facility in Vancouver, Wash. This included comments about Flores’s clothing and appear­ance; a request to be friends on Facebook; repeatedly asking for foot massages; and discussions of the supervisor’s interest in extramarital affairs and sexual bondage.

In particular, Flores was disturbed by an incident where her supervisor stood close behind her and expressed a desire to rub her buttocks. When Flores reported the unwelcome behavior to upper management, Koelsch failed to investigate properly and quickly sided with the supervisor, which emboldened the woman to continue harassing Flores with sexually charged comments and unwanted touching.

Workplace sexual harassment violates Title VII of the Civil Rights Act of 1964. The EEOC filed suit in U.S. District Court for the Western District of Washington (EEOC v. Koelsch Senior Commu­nities, LLC, Case No. 3:18-cv-05792) after first attempting to reach a pre-litigation settlement through its conciliation process. The EEOC seeks compensatory damages for Flores and injunctive relief, which typically includes training on anti-discrimination laws, posting of notices at the worksite, and compli­ance reporting.

“Whether committed by a female or male against someone who is the same sex or opposite sex, the law is very clear–employers must take action to stop and prevent sexual harassment,” said EEOC Seattle Field Director Nancy Sienko. She noted that sexual harassment prevention is one of six national priorities identified by the Commission’s 2017-21 Strategic Enforcement Plan (SEP).

EEOC Senior Trial Attorney Carmen Flores (no relation to Rebecca Flores) added, “As we know all too well in the #MeToo era, employers who fail to investigate harassment allegations or make ex­cuses for ‘high-value’ workers accused of harassment do so at their own peril. Employers who want to avoid such pitfalls should consult the checklists for employers compiled by the EEOC’s Select Task Force on Workplace Harassment.”

According to its website, http://koelschseniorcommunities.com, Koelsch operates senior care facilities at 34 locations in Washington, California, Idaho, Montana, Arizona, Colorado, Texas and Illinois.

EEOC Knocks Trucking Co. Over Job Screening

This employer allegedly relied too slavishly on a third party’s assessment of assessment of whether job candidates could do the job, rather than make its own evaluation.

Trucking firm JBS Carriers, based in Greeley, Colo., violated federal law by using pre-employment screening procedures that improperly screen out truck driving job applicants on the basis of disability, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit filed on Friday, Sept 28.

EEOC’s lawsuit alleges that JBS Carriers contracts with a third-party, ErgoMed Work Systems, Inc., to administer pre-employment screening of applicants for truck driving jobs, which process, as administered and used, unlawfully screened out individuals with disabilities who were qualified for the truck driving jobs they sought. Cindy Divine applied to JBS Carriers to work as a truck driver. JBS Carriers required her to travel from her home in Lake Elsinore, Calif. to Greeley to complete the ErgoMed screening. But, after making the trip, ErgoMed concluded that Divine had issues with her shoulders. Although Ms. Divine told ErgoMed she did not have shoulder problems and was merely sore from carrying heavy luggage from the bus stop to her motel, ErgoMed prevented her from completing the physical abilities testing that was required by JBS Carriers. ErgoMed recommended that JBS Carriers should not hire Ms. Divine, and JBS Carriers accepted that recommendation. In its suit, (EEOC v. JBS Carriers, Civil Action No. 1:18-cv-02498-RPM), the EEOC alleges that JBS Carriers unlawfully denied truck driving jobs to applicants because of their disabilities, by subjecting applicants to a medical and physical screening process which excludes applicants with disabilities.

As it did with Ms. Divine, JBS Carriers relied on and uniformly accepted ErgoMed’s recommendations regarding job applicants. By requiring and relying on ErgoMed’s screening without giving individual consideration to job applicants, the EEOC alleges JBS Carriers discriminated against its job applicants based on disability. The EEOC also alleges that JBS Carriers failed to provide reasonable accommodations to these applicants and discriminated against applicants who it regarded as disabled.

According to the EEOC’s lawsuit, the pre-employment screening required by JBS Carriers and administered by ErgoMed violates the Americans With Disabilities Act of 1991, as amended, which prohibits employment discrimination based on disability, including the perception of a disability, and makes it illegal for employers to impose standards or criteria for job applicants that have the effect of discriminating based on disability. The EEOC filed suit in U.S. District Court for the District of Colorado after first attempting to reach a voluntary settlement through its conciliation process.

The EEOC’s lawsuit asks the court to order JBS Carriers to provide Cindy Divine and other aggrieved individuals appropriate relief, including back wages, compensatory and punitive damages, and a permanent injunction prohibiting the company from continuing to use the screening procedures provided by ErgoMed and from engaging in any further discriminatory practices based on job applicants’ disabilities, including the perception of a disability. The EEOC also asks the court to order JBS Carriers to institute and carry out policies and practices that eradicate and prevent disability discrimination in the workplace.

“A job candidate should be evaluated based on his or her ability to do the job, not based on the ability to pass an arbitrary medical exam or onerous physical testing that is not related to the actual job requirements,” said Regional Attorney Mary Jo O’Neill of the EEOC’s Phoenix District Office. “This arrangement operates to outsource disability discrimination. The EEOC will continue to be vigilant of these types of contracting arrangements.”

EEOC District Director Elizabeth Cadle said, “Employers unnecessarily restrict the pool of eligible candidates when these kinds of medical screens are used. If a candidate is qualified and able to do the job, that candidate should be given every opportunity to compete for the job.”

JBS Carriers is the transportation affiliate of multinational meat processor JBS USA. JBS Carriers is based in Greeley and operates throughout the United States, with terminals in Wisconsin, Utah, Texas, and Georgia.

Pa. Company Fined $106K for Trench Violations

A construction company in Pennsylvania learned there’s a cost to be paid for exposing its workers to unsafe trenches.

The U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) has cited Spear Excavating LLC – based in Pennsburg, Pennsylvania – for exposing employees to trenching hazards at a worksite in Malvern, Pennsylvania. The company faces $106,057 in proposed penalties.

OSHA initiated an inspection on August 2, 2018, after receiving a complaint alleging the hazards. Inspectors determined that employees were working in an excavation that was accumulating water and did not have proper protection from cave-ins.

“Spear Excavating LLC willfully exposed its employees to cave-in hazards by putting production ahead of safety,” said OSHA Philadelphia Area Office Director Theresa Downs. “Trench collapses and cave-ins continue to be among the greatest risks to construction workers’ lives.”

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.

Clothing Store Fired Woman After She Revealed Pregnancy, EEOC Alleges in a Title VII Lawsuit

Somewhere over the rainbow this employer used an employee’s pregnancy against her.

Rainbow USA Inc., a specialty apparel chain, violated federal law when it terminated a manager upon becoming aware of her pregnancy, the U.S. Equal Employment Opportunity Commission (EEOC) alleged in a lawsuit on September 28.

The EEOC contends that the charging party, who was employed as a junior assistant manager, was in her first trimester of pregnancy when she was fired just days after the company learned of her pregnancy-related restrictions. Initially, the company suspended the junior assistant manager indefinitely, then two days after the suspension, she was effectively terminated.

Such conduct violates Title VII of the Civil Rights Act of 1964. Title VII prohibits an employer from “discriminat[ing] against any individual with respect to…compensation, terms, conditions, or privileges of employment, because of such individual’s sex.” 42 U.S.C. § 2000e-2(a)(1). The Pregnancy Discrimination Act of 1978 (PDA) amended Title VII to include discrimination based on pregnancy.

The EEOC filed suit in the U.S. District Court for the Eastern District of Louisiana (EEOC v. Rainbow USA, Inc. Case No: 2:18-cv-09007) after first attempting to reach a pre-litigation settlement through its conciliation process. The EEOC’s suit seeks back pay, along with compensatory and punitive damages from the employer.

“This lawsuit reminds employers that Title VII protects the rights of pregnant workers to be free from discrimination in the workplace” said Rudy Sustaita, regional attorney for the EEOC’s Houston District.

Alexandra Navarre-Davis, trial attorney, added “the EEOC will continue to work tirelessly toward its mission of eradicating discrimination in the workplace.” The EEOC advances opportunity in the workplace by enforcing federal laws prohibiting employment discrimination. More information is available at http://www.eeoc.gov. Stay connected with the latest EEOC news by subscribing to our email updates.

Dollar Store Liable for ADA Violation, EEOC Says

The discount retailer seemingly went out of its way to find excuses for not hiring an applicant with a disability. Federal civil rights enforces aren’t buying its explanations.

Family Dollar Stores of Michigan, LLC, a Michigan-based discount retailer which has discount stores throughout the state, violated federal law by failing to employ a man because of his disability, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit it filed in a lawsuit filed on September 28.

According to the EEOC’s lawsuit, Family Dollar refused to employ a man who suffers from left-sided paralysis and wears a brace on his left arm. The man applied for a position at a Family Dollar store in Detroit. After being interviewed, he was offered the position but was told that he could not start work until a few weeks later. However, he was never placed on the schedule and never actually worked for the company, despite his efforts to pursue a start date, the EEOC said. During this same time, the company continued to hire other non-disabled individuals to work as customer service representatives at the same store. Family Dollar claimed that budget constraints played a part in its refusal to hire the man.

Such alleged conduct violates the Americans with Disabilities Act (ADA). After attempting to reach a pre-litigation resolution through its conciliation process, the EEOC filed suit in the U.S. District Court for the Eastern District Court of Michigan (EEOC v. Family Dollar Stores of Michigan, LLC, Case No. 4:18-cv-13030). The EEOC is seeking monetary relief for the applicant and an injunction prohibiting the company from engaging in this type of conduct in the future.

“There is no excuse for disability discrimination, and that includes Family Dollar’s excuse that it had budget constraints – especially given that it continued to hire customer service representatives,” explained EEOC Trial Attorney Nedra Campbell.

Family Dollar of Michigan, LLC is a subsidiary of Family Dollar Stores, Inc., which is a national retailer with headquarters in a suburb of Charlotte, N.C. It operates approximately 7,000 stores throughout the United States.

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

State Agency Dinged $300K in ADA Settlement

Ouch. Not complying with federal civil rights law during hiring and medical reviews was costly for this California state agency.

The State of California Human Resources Department (CalHR) will settle a federal charge of disability discrimination by paying $300,000 to the victim and class members, along with other general relief, the U.S. Equal Employment Opportunity Commission (EEOC) announced October 1.

The charge made to the EEOC alleged that CalHR violated federal law when it failed to comply with the Americans with Disabilities Act (ADA) during the hiring and medical review process. The EEOC investigated the allegations and found reasonable cause to believe that CalHR violated the ADA.

Without admitting liability, CalHR agreed to enter into a two-year conciliation agreement with the EEOC and the alleged victims. Aside from the monetary relief, CalHR agreed to appoint an equal employment opportunity (EEO) consultant, a medical consultant, and an EEO officer to revise its current medical evaluation policies. The revised policy would include a comprehensive reasonable accommodation policy and an appeals process, and effective training for all employees across California on the ADA. The EEOC will monitor compliance with this agreement.

“We commend CalHR for their commitment to the ADA and for putting in place measures that will have a positive impact on applicants and employees throughout California,” said Melissa Barrios, director of the EEOC’s Fresno Local Office. “We encourage other employers to follow the lead of CalHR and review their hiring policies and practices to make sure they are in compliance with federal law.”

According to its website, www.calhr.ca.gov, CalHR is responsible for all issues related to employee salaries and benefits, job classifications, civil rights, training, exams, recruitment and retention for the State of California.