Company Sued for Allegedly Requiring Employees to Disclose Medical Condition When Requesting Sick Leave

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Published on Friday, 01 August 2014 Written by Editor

The Erie Strayer Company, an Erie-Pa.-based construction equipment supplier, has been sued by the U.S. Equal Employment Opportunity Commission  (EEOC) for allegedly violating disability discrimination laws. According to the EEOC, the company required Thomas Young, and other employees, to reveal the specific nature of their medical illness in order to have necessary sick leave count as an excused absence. The EEOC has charged that this is an unlawful disability-related inquiry under the ADA  and not justified by business necessity. The EEOC has also alleged that the company retaliated against employees for their refusal to comply with the company's request for medical information.

Read more: Company Sued for Allegedly Requiring Employees to Disclose Medical Condition When Requesting Sick Leave

Common Pitfalls of Work-Related Email

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Published on Friday, 01 August 2014 Written by Bernadette M. O'Brien, Esq., Floyd, Skeren & Kelly LLP

Work related communication is often via email. However, as an article in www.sfgate.com ("Work email etiquette dos and don'ts") suggests, work related email should not always be a substitute for conversation. The informative article follows: "Whether you work for a Bay Area tech leader or an early stage startup, writing emails is a part of your day. An email can sometimes substitute a conversation — but that doesn't mean it should. Some thoughts don't transfer well into an electronic message. Keep these dos and don'ts in mind before clicking the send button.

Read more: Common Pitfalls of Work-Related Email

CalChamber Opposes Legislation That "Publicly Shames" Employers With Employees Who Use Public Assistance

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Published on Thursday, 31 July 2014 Written by Editor

CalChamber and other employer groups are opposing AB 1792 (Gomez; D-Los Angeles); a hearing is set for August 4 in the Senate Appropriations Committee. According to CalChamber, AB 1792 unfairly exposes private sector employers with more than 50 employees who are beneficiaries of Medi-Cal, CalWORKS, or CalFresh to liability, to public protests and media attacks by creating a public list of those employers and the cost to the state of the benefits being provided to their workers. The bill asks the state Employment Development Department (EDD) and the state Department of Finance (DOF) to develop and publish the list  in consultation with the state Department of Health Services and the Department of Social Services.

Read more: CalChamber Opposes Legislation That "Publicly Shames" Employers With Employees Who Use Public Assistance

Number of Retaliation Complaints Continues to Increase

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Published on Thursday, 31 July 2014 Written by Editor

The Equal Employment Opportunity Commission (EEOC) is reporting that retaliation complaints continue to be the fastest-increasing type of complaint filed with the EEOC. In a recent case, Cardiac Science Corporation, an international manufacturer of diagnostic and therapeutic cardiology products based in Waukesha, Wisconsin, will pay $50,000 and furnish other relief under a consent decree entered by a federal court in a retaliation lawsuit brought by the EEOC. The case (EEOC v. Cardiac Science Corporation (Civil Action No. 2:13-cv-01079)), is also interesting because of the EEOC's position on severance agreements. Cardiac Science had offered severance agreements to Lashell Love and 56 other employees it had decided to lay off. The agreements were identical except for each employee's name and the monetary amount offered. When Cardiac Science learned that Love had previously filed an EEOC charge against it, the EEOC said, it refused to give her the severance payments and benefits she had been promised.

Read more: Number of Retaliation Complaints Continues to Increase

Fast-Food Workers Advocate for $15.00-An-Hour Wage

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Published on Monday, 28 July 2014 Written by Editor

Approximately 1,200 workers, from McDonald's, Burger King, and other fast food chains, arrived in Chicago on charter buses, from numerous cities from around the United States, to attend a conference calling for a $15.00-an-hour wage floor for the nation's 4 million fast-food workers. The gathering was largely underwritten by the Service Employees International Union (SEIU) which has 2 million members known for unionizing hospital workers, home care aides, and custodians. According to Mary Kay Henry, the union's president, the SEIU has adopted the fast food workers' cause to combat income inequality. The SEIU is seeking to unionize fast-food workers, although the efforts may prove difficult, as fast-food employees are scattered around the country among thousands of different franchised restaurants and their effort would likely be met with fierce opposition from franchisees and fast-food chains.

Read more: Fast-Food Workers Advocate for $15.00-An-Hour Wage

Democrats Introduce the Family Friendly “Schedules That Work Act”

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Published on Friday, 25 July 2014 Written by Editor

Democratic members of both Houses of Congress have introduced the "Schedules that Work Act" (H.R. 5159, S. 2642) which is a "family friendly" bill enabling employees to request flexible and/or regular schedules without the fear of retaliation. According to the sponsors, "While salaried workers often point to long hours and rigid schedules as serious workplace problems, hourly workers face a different problem: unpredictable and irregular work schedules in which they have minimal input...These practices can wreak havoc on working families. The Schedules That Work Act helps families balance their responsibilities at work with their responsibilities at home, while respecting the needs of employers. The bill provides that employees are protected from retaliation for requesting a more flexible, predictable or stable schedule; it creates an interactive process for employers to consider requests that is responsive to the needs of both employees and employers; and provides that employees who make a request must be granted the schedule change, unless the employer has a bona fide business reason for denying it; and, retail, food service, and cleaning employees must receive work schedules at least two weeks in advance.

Read more: Democrats Introduce the Family Friendly “Schedules That Work Act”

Apple Faces Class Action for Alleged Failure to Provide Meal and Rest Periods

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Published on Thursday, 24 July 2014 Written by Editor

San Diego Superior Court Judge Ronald S. Prager has certified a class action lawsuit, which includes almost 21,000 current and former hourly retail and corporate Apple employees. The lawsuit, which seeks a jury trial, covers the period from December 2007 to August 2012, exposing the tech company to potentially millions of dollars in damages. According to Judge Prager, a class action "is the only feasible method to fairly and efficiently adjudicate these claims." The plaintiffs allege that Apple's policy provided workers with a meal break after the first five hours of working, as opposed to the time period required by California law, which is that the meal period be provided by the fifth hour of work or the employee is owed an extra hour of pay. The plaintiffs also claim that Apple's scheduling policy made taking meal and rest periods "extremely difficult"; that employees were not compensated with the required extra hour of pay for missed meal periods and breaks; and that employees were given inaccurate itemized wage statements. Further, according to the lawsuit, employees who resigned or were terminated were not given final paychecks in a timely manner as required by law.

Read more: Apple Faces Class Action for Alleged Failure to Provide Meal and Rest Periods

President Obama Signs Order Prohibiting Federal Contractors From Engaging in LGBT Discrimination

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Published on Tuesday, 22 July 2014 Written by Editor

President Obama has signed an Executive Order, amending the 1965 Executive Order 11246, which prohibits federal contractors from engaging in discrimination based on sexual orientation and gender identity. The President's Executive Order also amends Executive Order 11478, which covers the federal civilian workforce, by adding "gender identity" as a new protected status.

Read more: President Obama Signs Order Prohibiting Federal Contractors From Engaging in LGBT Discrimination

President Obama Signs the “Workforce Innovation and Opportunity Act” Into Law

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Published on Tuesday, 22 July 2014 Written by Editor

President Barack Obama signed the Workforce Innovation and Opportunity Act (WIOA) into law on July 22, 2014. According to the Department of Labor (DOL) the WIOA is "by far the most significant reform of federal job training programs in more than 15 years and a critical step toward helping workers and employers succeed in the 21st century economy." WIOA is a job training program designed to help job seekers access employment, education, training, and support services to succeed in the labor market and to match employers with skilled workers. Congress passed the WIOA by a wide bipartisan majority; it is the first legislative reform in 15 years of the public workforce system. WIOA supersedes the Workforce Investment Act of 1998 and amends the Adult Education and Family Literacy Act, the Wagner-Peyser Act, and the Rehabilitation Act Amendments of 1998. In general, the Act takes effect on July 1, 2015, the first full program year after enactment. The DOL will issue further guidance on the timeframes for implementation of these changes and proposed regulations reflecting the changes in WIOA soon after enactment.

Read more: President Obama Signs the “Workforce Innovation and Opportunity Act” Into Law

Goodwill to Pay $100,000 for Alleged Retaliation

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Published on Tuesday, 22 July 2014 Written by Editor

Goodwill Industries has agreed to pay $100,000 and provide other relief to settle a long-standing lawsuit for alleged retaliation filed by the U.S. Equal Employment Opportunity Commission (EEOC). In its lawsuit, the EEOC charged that Goodwill retaliated against a worker, Mary Goulet, at its Lawton, Oklahoma, store. Specifically, Goodwill allegedly terminated Ms. Goulet after she testified on behalf of another Goodwill employee in a prior federal sex and age discrimination lawsuit. The consent decree also provides for injunctive relief intended to prevent future discrimination, including notification to employees, revision and dissemination of anti-discrimination policies, and live training on anti-retaliation law, in addition to the $100,000 monetary award.

Read more: Goodwill to Pay $100,000 for Alleged Retaliation

Governor Brown Signs Bill for Small Businesses Authorizing Continuation of PRE-ACA Health Coverage

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Published on Monday, 21 July 2014 Written by Editor

Governor Edmund G. Brown Jr. has signed legislation (SB 1446-DeSaulnier; D-Concord) that allows a small employer health care service plan contract or a small employer health insurance policy that was in effect on December 31, 2013, and that is still in effect, and that does not qualify as a grandfathered health plan under Affordable Care Act (ACA) to continue to be in effect until December 31, 2015. The bill thus provides California's small employers with additional time to prepare for full compliance with the ACA. Employers with less than 50 full-time employees are considered "small employers" under the ACA. Small employers should note that the ACA may count multiple part-time employees as a full-time employee. The ACA counts a combination of employees working 120 hours per month (around 30 hours per week) as one employee. If the total number of full-time equivalent employees exceeds 49, that employer would be required to provide insurance or pay a penalty for each employee. A business that employs variable-hour workers who may work 40 hours one week and not at all in other weeks, must add up the total hours those employees worked in a year. Divide that number by 2,080 (which represents 40 hours/week multiplied by 52 weeks in a year) for the number of FTEs.

Read more: Governor Brown Signs Bill for Small Businesses Authorizing Continuation of PRE-ACA Health Coverage

Employer to Pay $1,660,438 for Alleged Overtime Violations

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Published on Wednesday, 16 July 2014 Written by Editor

B & D Contracting Inc., a labor recruiting and staffing agency that caters to oil field services and maritime fabrication facilities along the Gulf Coast, has agreed to pay $1,660,438 in back wages to 1,543 current and former employees. An investigation by the U.S. Department of Labor (DOL) found that the company allegedly engaged in improper pay and record-keeping practices that resulted in employees being denied overtime compensation in violation of the Fair Labor Standards Act (FLSA). The employees were assigned to client work sites throughout Louisiana, Mississippi and Alabama to work as welders, pipe fitters and shipfitters. Investigators from the Wage and Hour Division's New Orleans District Office found the company had allegedly mischaracterized certain wages as per diem payments and impermissibly excluded these wages when calculating overtime premiums, denying employees earned overtime compensation.

Read more: Employer to Pay $1,660,438 for Alleged Overtime Violations

EEOC Issues Updated Enforcement Guidance on Pregnancy Discrimination

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Published on Tuesday, 15 July 2014 Written by Bernadette M. O'Brien, Esq., SPHR, Floyd, Skeren & Kelly LLC

For the first time in more than 30 years, the Equal Employment Opportunity Commission (EEOC) has issued new pregnancy guidelines, which emphasize that failing to accommodate pregnant workers is a violation of federal law. The guidelines were issued on Monday, July 14, after a 3 to 2 vote along partisan lines on the commission. They are intended to clarify an array of federal laws, including the Pregnancy Discrimination Act of 1978 (PDA) which has been interpreted in different ways by employers and the courts. A fact sheet for small businesses and a question and answer document was also released.

Read more: EEOC Issues Updated Enforcement Guidance on Pregnancy Discrimination

Female Yahoo Executive Sued for Alleged Sexual Harassment

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Published on Tuesday, 15 July 2014 Written by Editor

A female Yahoo executive has been sued for sexual harassment and wrongful termination by another female employee. The lawsuit involves Nan Shi, a principal software engineer, who has accused her direct supervisor, Maria Zhang, a senior engineering director for Yahoo Mobile, of allegedly pressuring Shi on multiple instances into having oral and cyber-sex in exchange for a "bright future" at Yahoo. Shi's lawsuit, filed on July 8 in a California court, accuses Zhang of unfairly downgrading her performance reviews in 2013. The complaint also alleges that Yahoo's human resources department did not conduct an investigation into the alleged harassment and instead placed Shi on unpaid leave and eventually terminated her. Yahoo is also a named defendant. Yahoo denies the allegations.

Read more: Female Yahoo Executive Sued for Alleged Sexual Harassment

Ninth Circuit Affirms FLSA Anti-Retaliation Verdict in Favor of Los Angeles Police Officer

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Published on Friday, 11 July 2014 Written by Editor

Leonard Avila, a police officer, periodically worked through his lunch break but did not claim overtime. According to his commanding officer, Avila was a model officer. The Los Angeles Police Department (LAPD), however, considered Avila insubordinate for not claiming overtime and fired him. The termination occurred after Avila had testified in a Fair Labor Standards Act (FLSA) lawsuit brought by fellow officer, Edward Maciel, who claimed overtime pay for working through lunch. Avila then filed a lawsuit claiming he was fired in retaliation for testifying, in violation of the FLSA. The evidence presented at trial was that only the officers who testified against the LAPD in the Maciel suit, were disciplined for not claiming overtime, even though the practice was widespread in the LAPD. A jury returned a verdict in favor of Avila on his FLSA anti-retaliation claim. On appeal, the Ninth Circuit affirmed, holding that "The uncontested evidence in this case is that Avila would not have been fired had he not testified. Indeed, an LAPD official confirmed at trial that the only officers disciplined for the overtime violations were those who testified in the Maciel action, and that Avila would never have been disciplined had he not testified."

Read more: Ninth Circuit Affirms FLSA Anti-Retaliation Verdict in Favor of Los Angeles Police Officer

Refusal to Sign Disciplinary Notice Does Not Constitute Misconduct Barring UI Benefits in California

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Published on Friday, 11 July 2014 Written by Editor

The California Supreme Court has held that an employee's refusal to sign a disciplinary notice does not constitute misconduct for purposes of obtaining unemployment insurance benefits. The case involved Craig Medeiros (Claimant) who worked for Paratransit, Inc. (Employer) as a driver. Upon hire, Claimant was required to join a union and sign a collective bargaining agreement (CBA) which specified that "all disciplinary notices must be signed by a Vehicle Operator when presented to him or her." Subsequently, a passenger filed a complaint alleging that Claimant had harassed her. Employer investigated and concluded the alleged misconduct had occurred. The Employer then met with Claimant and asked him to sign a disciplinary notice; however, he refused to sign. Claimant filed for unemployment insurance benefits but his claim was denied by the Employment Development Department (EDD) On appeal, the California Supreme Court held that his "refusal to sign the disciplinary notice was not misconduct but was, at most, a good faith error in judgment that does not disqualify him from unemployment benefits." The Court also noted that "there is no dispute over whether the employer was within its rights to fire the employee for his insubordination. The only question is whether that single act of disobedience constituted misconduct" for purposes of UI.

Read more: Refusal to Sign Disciplinary Notice Does Not Constitute Misconduct Barring UI Benefits in California

EEOC Sues County Court for Terminating 70-Year-Old Because of Age

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Published on Thursday, 10 July 2014 Written by Editor

The Equal Employment Opportunity Commission (EEOC) has filed an age discrimination lawsuit against the Court of Common Pleas of Allegheny County, Fifth Judicial District of Pennsylvania. According to the EEOC, Carolyn J. Pittman, at age 70, was assigned to work at the Allegheny County Common Pleas Court by a staffing agency in February 2012. While Pittman was still in training with Lisa Moore, who was in charge of training and supervising her, Moore allegedly complained that Pittman was too old to work in the department, and Pittman was subsequently terminated. The Age Discrimination in Employment Act (ADEA) prohibits discrimination against job applicants and employees who are age 40 or older.

Read more: EEOC Sues County Court for Terminating 70-Year-Old Because of Age

House Approves Job Training Bill

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Published on Thursday, 10 July 2014 Written by Editor

On July 9, the U.S. House overwhelming approved the Workforce Innovation and Opportunity Act (H.R. 803) by a vote of 415-6 (with 11 not voting.) WIOA is a bipartisan federal job training bill intended to address unemployment. The bill is now headed to the President for signature. One of the bill's sponsors Patty Murray (D-WA) commented that,"Now more than ever, effective education and workforce development opportunities are critical to a stronger middle class. We need a system that prepares workers for the 21st century workforce, while helping businesses find the skilled employees they need to compete and create jobs in America." According to Murray, WIOA streamlines workforce development by eliminating 15 existing workforce programs; applying a single set of outcome metrics to every federal workforce program under the Act; creating smaller, nimbler, and more strategic state and local workforce development boards; integrating intake, case management and reporting systems while strengthening evaluations; eliminating the "sequence of services" and allowing local areas to better meet the unique needs of individuals.

Read more: House Approves Job Training Bill

Movement to Repeal Seattle’s Recently Enacted $15 Minimum Wage Clears Hurdle

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Published on Thursday, 10 July 2014 Written by Editor

A group of Seattle businesses ("Forward Seattle") has cleared one hurdle in the effort to repeal the city's recently enacted $15 minimum wage. The group has gathered 19,500 signatures, which is sufficient to put the issue on the November ballot, provided the signatures hold up as there are allegations of fraud. The group needed 16,510 signatures. Opponents to the group's efforts have initiated an online campaign including online boycott lists and negative comment posts to sites like Facebook and Yelp.

Read more: Movement to Repeal Seattle’s Recently Enacted $15 Minimum Wage Clears Hurdle

EEOC Charges That Wal-Mart Rescinded Accommodation, Then Fired Intellectually Disabled Employee

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Published on Monday, 07 July 2014 Written by Editor

The U.S. Equal Employment Opportunity Commission (EEOC) has filed a lawsuit against Wal-Mart Stores, Inc., alleging that the retailer fired an intellectually disabled employee at a Rockford Walmart store after it rescinded his workplace accommodation. According to the EEOC, Wal-Mart rescinded a long-standing practice of giving written job assignments to the employee, William Clark. That accommodation had enabled Clark to successfully perform his job during an 18 year career at Wal-Mart and to meet the company's performance expectations. The EEOC has also charged that shortly after rescinding the accommodation, Wal-Mart began disciplining Mr. Clark for supposed performance issues, and that ultimately lead to his termination.

Read more: EEOC Charges That Wal-Mart Rescinded Accommodation, Then Fired Intellectually Disabled Employee

Walgreens Pays $180,000 for Terminating Diabetic Employee Who Ate a Bag of Chips

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Published on Monday, 07 July 2014 Written by Editor

Walgreens has agreed to pay $180,000 to a longtime employee with diabetes and to implement revised policies and training to settle a federal disability discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC). The EEOC's lawsuit charged that former cashier Josefina Hernandez, who has Type II Diabetes, was terminated by a South San Francisco Walgreens because of her disability after she ate a $1.39 bag of chips, without paying for it at that time (the Hernandez claimed she intended to pay later). Hernandez claimed that she ate the chips during a hypoglycemic attack in order to stabilize her blood sugar level.  Hernandez had worked for Walgreen for almost 18 years with no disciplinary problems, and Walgreens knew of her diabetes.  Yet the company security officer testified that he did not seek clarification when Hernandez wrote, "My sugar low.  Not have time," in reply to his request for an explanation of why she took the chips before paying. According to EEOC San Francisco Regional Attorney William R. Tamayo, "Not only was this harsh and unfair, but it was illegal, and that's why the EEOC sued to correct this wrong."

Read more: Walgreens Pays $180,000 for Terminating Diabetic Employee Who Ate a Bag of Chips

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