The Equal Employment Opportunity Commission (EEOC) has filed a lawsuit against FedEx Ground Package System, Inc., (FedEx Ground) alleging that the company discriminated against a large class of deaf and hard-of-hearing package handlers and job applicants for years. According to the EEOC, FedEx Ground failed to provide needed accommodations such as American Sign Language (ASL) interpretation and closed-captioned training videos during the mandatory initial tour of the facilities and new-hire orientation for deaf and hard-of-hearing applicants. The company also allegedly failed to provide such accommodations during staff, performance, and safety meetings. Package handlers physically load and unload packages from delivery vehicles, place and reposition packages in FedEx Ground's conveyor systems, and scan, sort and route packages.
The California Court of Appeal, 4th District has held that an arbitration agreement did not provide for class arbitration because it did not demonstrate a clear intent to arbitrate such claims. The case involved Network Capital Funding Corporation (Network Capital) (the employer) who filed a declaratory relief action alleging its arbitration agreement with Erik Papke (the employee) required Papke to arbitrate his wage and hour claims on an individual basis rather than the classwide basis as he sought in his pending arbitration proceeding. Papke petitioned the trial court for an order compelling the employer to submit its claims to arbitration, arguing that the broad language in the parties’ arbitration agreement required the arbitrator, not the court, to decide whether the agreement authorized class arbitration. The trial court disagreed, holding it must decide the issue of class arbitration. The trial court then held the agreement did not allow class arbitration.
The principal of Beverly Hills High School -- the inspiration for “90210”—has filed a lawsuit against the school board alleging race discrimination. Carter Paysinger alleges that the all-white Beverly Hills School Board has targeted him because he's Black and that one member told him, "One of the problems that you have is that you don't look like what a principal of Beverly Hills High School should look like." According to Paysinger, another member once said, "It would be easier if he had lighter skin ... and he looks more intelligent when he wears glasses." Paysinger has worked for the district for 4 decades, as a longtime football coach who became principal in 2010. However, Paysinger was investigated by the L.A. County D.A. for wrongfully taking money from students who attended a summer sports camp. The camp was privately funded but was held on campus. Paysinger said he had been taking a fee for 15 years and everyone knew and no one complained. Ultimately the D.A. rejected the case. Paysinger alleges that Board has made a decision to rid the school of all minorities. Read more here.
Walmart has cut health benefits to part-time employees who work less than 30 hours per week. The employees will receive a “personal letter” explaining their options, including the possibility of a government plan, private health insurance, or coverage through a spouse’s plan, if available. All current part-time health care benefits will remain intact until the end of the year. According to a Walmart spokesperson, “In 2012, after passage of the Affordable Care Act, we required new associates work 30 hours or more per week to be become eligible for our health care plan….At that time, we continued offering coverage to previously eligible associates who worked fewer than 30 hours. But today, the health care landscape has changed, there’s a much wider selection of affordable quality health care options in the marketplace.” Read more here.
Kaiser Permanente, the largest managed care organization in the United States, will pay $75,000 to settle a disability discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC). The EEOC alleged that a food service worker at Kaiser's San Diego facility suffers from hydrocephalus, a medical condition which causes difficulties with memory, dizziness and concentration. Upon hire, the worker requested additional training time and the assistance of a temporary job coach to effectively learn the job and perform the required job duties. A non-profit organization in San Diego specializing in assisting people with disabilities - Toward Maximum Independence (TMI) - was available to provide the temporary job coaching services free of charge to Kaiser. However, according to the EEOC, Kaiser terminated the worker rather than grant the reasonable accommodation request. Read more here.
HiLine Electric Co., a Dallas-based industrial supply business, will pay $210,000 and provide other relief to settle an age discrimination suit brought by the U.S. Equal Employment Opportunity Commission (EEOC). According to the EEOC's suit, an internal recruiter informed the agency that company executives provided her a form with a list of bulleted criteria/considerations for position candidates. This form included a printed text box, referred to as the "HiLine box," listing an age-based hiring consideration. Upon receipt of additional information regarding instructions for screening, the EEOC alleged that the criteria HiLine used resulted in the non-selection of applicants who were over 50 and who appeared to be qualified for the position. Eight applicants, who were over 50 years of age when they unsuccessfully sought employment as territory managers, were identified as having been affected by the company's practice. "Avoiding cookie-cutter workforces based on an age limit is something we hope all employers will guard against," said EEOC Supervisory Trial Attorney Suzanne Anderson. Read more here.
The City of Berkeley has increased its minimum wage as follows: October 1, 2014-$10.00; October 1, 2015-$11.00; October 1, 2016-$12.53. For nonprofit corporations, the minimum wage increase does not take effect until October 1, 2015, at which time the minimum wage will be $11.00 per hour. Read more here.
The U.S. Supreme Court has agreed to review EEOC v. Abercrombie & Fitch Stores, Inc., a case that involves 17-year-old Samatha Elauf, a Muslim who applied for a job with Abercrombie, but was allegedly turned down because she wore a hijab (religious head scarf). In 2008, Ms. Elauf applied for a job with Abercrombie and was granted an interview. She wore the hijab to the interview. Although Ms. Elauf performed well enough in the interview to be hired, the assistant manager who interviewed her asked the district manager about the hijab and was advised that it was not consistent with Abercrombie’s “look policy.” Ms. Elauf was not offered a job and the Equal Employment Opportunity Commission (EEOC) filed a lawsuit against Abercrombie. Elauf initially prevailed, however, the 10th Circuit reversed, on the basis that Elauf failed to advise Abercrombie prior to the hiring decision that she wore the headscarf due to her religious beliefs. Read more here.
Wells Fargo & Company has agreed to pay $295,000 to resolve a discrimination/retaliation charge filed by the U.S. Equal Employment Opportunity Commission (EEOC). According to the EEOC, Wells Fargo disciplined and terminated a Minneapolis Wells Fargo employee in retaliation for complaining of differential treatment based on her race and national origin. The employee allegedly reported to the Wells Fargo human resources department that she was being subjected to differential treatment and that her supervisor told her not to speak Spanish during her non-duty time. Shortly thereafter, Wells Fargo allegedly initiated discipline and ultimately terminated the employee for practices other employees regularly engaged in without discipline. In addition to the monetary relief, the conciliation agreement requires Wells Fargo to conduct four hours of annual training for all managers and supervisors in the personal insurance business division where the employee worked and to distribute to all employees annually an electronic mail message affirming its commitment to diversity, multilingual ability and the use of languages other than English in the workplace. Wells Fargo has all agreed to report to the EEOC all allegations of discrimination or retaliation annually during the term of the three-year agreement. Read more here.
Assembly Bill 1710, authored by Assembly members Roger Dickinson (D-Sacramento) and Bob Wieckowski (D-Fremont), has been signed into law by Governor Brown. AB 1710 is intended to “protect consumers in the event of a business data breach.” Recently, JP Morgan, Target, Neiman Marcus, Home Depot, and other large companies, have experienced massive data breaches that compromised millions of customers’ credit and debit card numbers. As a result, the consumers of these companies will need to monitor their personal information for years to come. To address this ongoing concern, AB 1710: (1) Requires the source of the breach to offer identity theft prevention mitigation services at no cost to the affected person for no less than 12 months if a SSN or driver’s license number is breached; (2) Prohibits the sale of social security numbers, except when part of a legitimate business transaction; (3) Provides that existing personal information data security obligations apply to businesses that maintain personal information, in addition to those who own or license the information. Read more here.
The U.S. Supreme Court has denied review of seven petitions arising from challenges to same-sex marriage bans. As a result, the lower-court decisions striking down bans in Indiana, Wisconsin, Utah, Oklahoma, and Virginia should go into effect shortly, thereby clearing the way for same-sex marriages in those states and any other state with similar bans in those circuits. Virginia Attorney General Mark Herring (who had declined to defend his state’s ban on same-sex marriage) indicated this morning on Twitter that, according to the U.S. Court of Appeals for the Fourth Circuit, the mandate in the Virginia cases would issue at 1 p.m., at which point “marriages can then begin.” The Supreme Court had issued the first round of orders from the September 29 Conference last Thursday, adding eleven new cases to its docket for the new Term. Many had anticipated that one or more of the same-sex marriage petitions might be on that list, but the Court did not act on any of them at the time. Read more here.
The U.S. Equal Employment Opportunity Commission (EEOC) has filed a lawsuit alleging that Flambeau, Inc., a based plastics manufacturing company, violated federal law by requiring an employee to submit to medical testing and assessment in connection with a "wellness program" or face dire consequences. Specifically, according to the EEOC, the "wellness program" allegedly required that employees submit to biometric testing and a "health risk assessment," or face cancellation of medical insurance, unspecified "disciplinary action" for failing to attend the scheduled testing, and a requirement to pay the full premium in order to stay covered. The EEOC also alleges that when an employee did not complete the biometric testing and health risk assessment, Flambeau cancelled the employee's medical insurance and shifted responsibility for payment of the entire premium cost to the employee. The EEOC contends that the biometric testing and health risk assessment constituted "disability-related inquiries and medical examinations" that were not job-related and consistent with business necessity as defined by the Americans with Disabilities Act (ADA). The EEOC brought suit after first attempting to reach a pre-litigation settlement through its conciliation process. Read more here.
Governor Jerry Brown has signed SB270, legislation which provides for the nation's first statewide ban on single-use plastic bags at grocery and convenience stores. A national coalition of plastic bag manufacturers immediately said it would seek a voter referendum to repeal the law, which is scheduled to take effect in July 2015. Pursuant to SB270, plastic bags will be phased out of checkout counters at large grocery stores and supermarkets and convenience stores and pharmacies in 2016. The law does not apply to bags used for fruits, vegetables or meats, or to shopping bags used at other retailers. It allows grocers to charge a fee of at least 10 cents for using paper bags. Read more here.
Governor Brown Signs New Legislation Regarding Employer Liability for Workers of Independent Contractors
Governor Brown has signed AB 1897, which holds employers liable for violations of law related to the employees of independent contractors hired by the employer, including violations related to workers’ compensation, wage and hour, and occupational health and safety requirements. Numerous industries will be impacted by the legislation including construction, agriculture, healthcare, technology, foodservice, manufacture and retailers. The bill creates new Labor Code section 2810.3, and applies to most companies with 25 or more employees (referred to as the “client employer”) which obtain workers from companies that provide workers (referred to as “labor contractors”). Employers are liable pursuant to the new legislation even if they are unaware that violations were occurring. Read more here.
The U.S. Employment Opportunity Commission (EEOC) has filed a lawsuit against Harrison Poultry, Inc. a poultry hatchery located in Bethlehem, Georgia, alleging that the company unlawfully terminated an employee with a disability who was on approved leave. According to the EEOC's lawsuit, Harrison Poultry terminated nightshift manager Ronnie Smith rather than granting his request for a reasonable accommodation after he was diagnosed with emphysema. Smith was terminated days after he requested a 12-day extension to his vacation leave in order to comply with his physician's medical restriction that he not work during that time. The agency alleges Smith was replaced by a person who was hired approximately three months after his discharge. The EEOC is seeking back pay, compensatory and punitive damages and injunctive relief. Read more here.
The U.S. Equal Employment Opportunity Commission (EEOC) has filed a disability discrimination lawsuit against the Kroger Company of Michigan, a grocery chain, for allegedly failing to provide a reasonable accommodation to an employee with a disability and then terminating her. According to the EEOC's lawsuit, Kroger allowed an employee, who was hired as a stock person, and who had a back impairment, to work as a cashier as a reasonable accommodation. However, a few months later, allegedly after the grocery chain found out the employee’s restrictions were permanent, the employee was terminated. The EEOC is seeking monetary compensation for the employee, including back pay and compensatory damages for emotional distress, in addition to punitive damages. The Americans with Disabilities Act (ADA) places an affirmative duty on employers to work with employees to find accommodations for their restrictions. Read more here.
Representatives from the California Chamber of Commerce and a coalition of businesses have raised concern to the Division of Occupational Safety & Health (Cal/OSHA) Standards Board on proposed regulatory changes to California’s unique heat illness prevention regulations. The group, known as the Heat Illness Prevention Coalition, is comprised of almost 100 organizations. It is concerned that the proposed changes are unnecessary, overly burdensome, and would be disruptive to employers already complying with the current requirements. According to the CalChamber, “Cal/OSHA has neither demonstrated the need for such a far-reaching revision of the heat illness prevention standard nor provided any evidence of necessity to justify these proposed changes. There is no supporting data from enforcement activities, citations, injuries, or illnesses. There is an absence of any indication that a problem has arisen that is directly related to each proposed rule change. The agency has not identified specific provisions of the existing regulation as deficient based on field experience or data where the current regulation was demonstrably inadequate to prevent a heat illness or fatality.” Read more here.
The U.S. Department of Labor (DOL) has published a final rule that reduces reporting requirements for federal contractors and subcontractors who hire and employ veterans under provisions of the Vietnam Era Veterans' Readjustment Assistance Act of 1974. The final rule revises the VETS-100A Report and renames it the VETS-4212 Report. The VETS-100 Report will no longer be used. The VETS-4212 Report requires contractors to report specified information on protected veterans in their workforce in the aggregate, rather than for each category of veterans protected under the statute, reducing the required reporting elements by almost half, from 82 to 42. Under VEVRAA, the term "protected veterans" includes: disabled veterans, veterans who served on active duty during a war or campaign for which a campaign badge was authorized, veterans who were awarded an Armed Forces Service Medal and recently separated veterans. Read more here.
The U.S. Equal Employment Opportunity Commission (EEOC) has sued VXI Global Solutions, a provider of call center services for major nationwide companies, for alleged “systemic sexual harassment” for failing to stop the “widespread sexual harassment of both female and male workers by company supervisors,” in its call center. According to the EEOC, a class of female and male call center staff endured an extremely hostile work environment perpetuated by a male floor manager and other supervisors. Females were allegedly subjected to “unsolicited groping and touching, constant sexual propositions, and grotesque comments of a sexual nature.” The EEOC also alleges that a “female assistant supervisor made repeated advances toward male staff with foul descriptions of proposed sexual activity, unwanted lap dances and physical rubbing. Male employees who refused to participate were subjected to unlawful gender stereotyping in that they were accused of being gay because of their objection to the harasser's behavior.” Attempts to report the harassment to human resources personnel were inhibited by their alleged lack of availability. When VXI Global's supervisors and/or human resources personnel were eventually advised of the harassment, several of the employees were allegedly disciplined and terminated. Read more here.
The U.S. Equal Employment Opportunity Commission (EEOC) has announced the latest edition of its federal sector Digest of Equal Employment Opportunity Law. This quarterly publication, prepared by the EEOC's Office of Federal Operations (OFO), features a wide variety of recent Commission decisions and federal court cases of interest. Additionally, it contains a special article entitled, Failure to State a Claim: An Overview of the Law & Three Areas of Concern. The spring 2014 edition of the Digest contains summaries of noteworthy decisions issued by the EEOC and features cases involving attorneys' fees, compensatory damages, dismissals, findings on the merits, remedies, sanctions, stating a claim, settlement agreements, summary judgment, and timeliness. Read more here.
The U.S. Equal Employment Opportunity Commission (EEOC) has filed the first lawsuits in its history alleging transgender discrimination. In the first lawsuit, the EEOC has charged that Detroit-based R.G. & G.R. Harris Funeral Homes, Inc. discriminated on the basis of sex by allegedly firing a funeral director/embalmer because she is transgender and was transitioning from male to female. The employee allegedly had satisfactorily performed her job duties but was terminated after notifying the employer that she was undergoing gender transition and would soon present as a female. In the other case, the EEOC has sued Lakeland Eye Clinic, a Lakeland, Florida-based organization of health care professionals, for allegedly violating Title VII, by firing an employee because she is transgender. According to the EEOC, Lakeland's employee had performed her duties satisfactorily throughout her employment; however, after informing them she was transgender and intended to start presenting as a female, she was terminated. Read more here.