U.S. District Judge James B. Zagel of the Northern District of Illinois has issued an order denying a motion by Sony for a pre-trial judgment in its favor in a discrimination case brought by the U.S. Equal Employment Opportunity Commission under the Americans with Disabilities Act (ADA). (EEOC v. Staffmark Investment LLC and Sony Electronics, Inc.). The EEOC has charged that Sony violated the ADA when it terminated Dorothy Shanks, a temporary worker with a prosthetic leg who was assigned to inspect Sony televisions. The EEOC also alleges that Shanks was hired by Staffmark, a staffing agency, to work at a logistics facility to inspect Sony televisions on a temporary basis. But on Shanks's second day on the job, according to the EEOC, a Staffmark employee removed Shanks from the worksite. Evidence uncovered during an investigation by the EEOC indicated that it was Sony which made the original request to have Shanks removed and that Staffmark executed Sony's request. Thereafter, the EEOC sued both companies for violating the ADA. Staffmark settled with the EEOC for $100,000, but the case against Sony has been ongoing.
U.S. District Judge Leslie E. Kobayashi in Hawaii has approved settlements between the U.S. Equal Employment Opportunity Commission (EEOC) and four Hawaii farms totaling $2.4 million for about 500 Thai farmworker (EEOC v. Global Horizons). The EEOC charged that the workers had been subjected to national origin discrimination and retaliation, the EEOC announced today. The settlement includes monetary relief, options for jobs and benefits, housing, other reimbursements of expenses, and sweeping injunctive relief remedies. The EEOC filed suit against the four farms and farm labor contractor Global Horizons. In March 2014, the court ruled that Beverly Hills, Calif.-based Global Horizons was liable for the pattern or practice of harassing, discriminating against and retaliating against the Thai farmworkers based on their national origin and race. The EEOC named the farms in Hawaii as defendants, asserting that they were joint employers with the labor contractor, and liable due to the acts committed by Global Horizons. Global Horizons and Maui Pineapple Company remain as the only defendants left in the case.
A California appellate court, in Jimenez v. Allstate Insurance Company, has affirmed a district court’s grant of class certification to about 800 Allstate Insurance Company employees in California who allege that Allstate had a practice or unofficial policy of requiring its claim adjusters to work unpaid off the-the-clock overtime in violation of California law. The panel held that the district court did not abuse its discretion in applying Fed. R. Civ. P. 23(a)(2)’s commonality requirement. In 2005, Allstate shifted all of its California-based claims adjusters to hourly status from exempt, or salaried, positions. Before that reclassification, claims adjusters often worked more than 8 hours per day or 40 hours per week. Since the reclassification, claims adjusters’ workload has been substantially the same as it was before the reclassification, their compensation is still referred to as an annual salary, and hourly payment rates are not shared with current or prospective employees. In addition, claims adjusters do not keep time records.
A California appellate court has upheld the termination of an employee who refused a fitness-for-duty examination. The case, Kao v. University of San Francisco, involves John S. Kao, who sued the University of San Francisco (USF) for violations of the Fair Employment and Housing Act (FEHA) and other statutes, in connection with his termination as a professor at USF. The university had directed Kao to have a fitness-for-duty examination after faculty members and school administrators reported that his behavior, which allegedly included yelling, screaming, clenching fists and exhibiting uncontrollable rage in workplace meetings, was frightening them, particularly since he was an expert in martial arts. The university terminated Kao's employment when he refused to participate in the examination. Kao lost at the trial court level, and appealed, arguing that USF should have conducted an interactive process before requiring the fitness-for-duty. The appellate court disagreed, holding that the FEHA “ties the interactive process to disability accommodations, not FFDs…The requirement for an interactive process was not implicated here because Kao never acknowledged having a disability or sought any accommodation for one.”
Following an investigation by the U.S. Department of Labor's Office of Federal Contract Compliance Programs, Great Plains Coca-Cola Bottling Co. has agreed to pay $475,000 in back wages and interest to settle allegations of sex discrimination affecting 1,293 female job seekers. The OFCCP alleged that the Great Plains Coca-Cola Bottling unfairly rejected these qualified women for merchandiser, driver, driver trainee, production and warehouse positions at the company's bottling and distribution facility in Oklahoma City. Today's settlement stems from an OFCCP review of Great Plain Coca-Cola Bottling's hiring practices over a two-year period beginning in June 2007. Investigators found that female applicants were allegedly much less likely to be hired than similarly-situated male applicants. The OFCCP determined that the company had violated Executive Order 11246, which prohibits federal contractors from discriminating on the basis of sex when making employment decisions.
California Supreme Court Finds No Franchisor Liability in Sexual Harassment Case Involving Domino’s Pizza
In a significant case addressing franchisor liability for the sexual harassment of a franchisee’s employee, the California Supreme Court has ruled in favor of Domino’s Pizza, holding that there was no liability. The case, Patterson v. Domino’s Pizza, involves a female worker at a Domino’s Pizza franchisee, who alleged that a male supervisor subjected her to sexual harassment. She sued the franchisor, Domino’s Pizza, along with the harasser and franchisee, arguing that because the franchisor was the “employer” of persons working for the franchisee, and because the franchisee was the “agent” of the franchisor, the latter could be held vicariously liable for the alleged sexual harassment. The trial court granted summary judgment for the franchisor on the ground the requisite employment and agency relationships did not exist. The Court of Appeal disagreed, and reversed the judgment of the trial court. The California Supreme Court granted review to address the novel question dividing the lower courts in this case: Does a franchisor stand in an employment or agency relationship with the franchisee and its employees for purposes of holding it vicariously liable for workplace injuries allegedly inflicted by one employee of a franchisee while supervising another employee of the franchisee? According to the California Supreme Court, “The answer lies in the inherent nature of the franchise relationship itself.”
California legislators have approved the biggest expansion of employer-paid sick leave in the nation and sent the measure to Governor Jerry Brown, who is certain to sign the legislation. AB 1522, sponsored by Assemblywoman Lorena Gonzalez, D-San Diego, covers workers whether they work full- or part-time. Businesses with one or more employees must comply with the new regulations. The bill provides that employees who are not currently covered by a company plan, will earn one hour of paid sick time for every 30 hours worked. They could use sick leave after working 90 days on the job and "bank" three paid sick days a year. The California Assembly approved the bill on a 52-21 vote shortly after 1 a.m. Saturday.
The U.S. Equal Employment Opportunity Commission (EEOC) will sign a national Memorandum of Understanding (MOU) with the Ministry of Foreign Affairs of the United Mexican States on Friday, August 29, 2014. The MOU is designed to further strengthen their collaborative efforts to provide immigrant, migrant and otherwise vulnerable Mexican workers and their employers with guidance and information and access to education relative to their rights and responsibilities under the laws enforced by the EEOC. EEOC Chair Jacqueline A. Berrien and Mexican Ambassador Eduardo Medina Mora will sign the MOU in English and in Spanish.
Employers must implement policies and procedures to ensure that employees are not harassed by nonemployees such as clients, customers or vendors. In a recent case, the Equal Employment Opportunity Commission (EEOC) has filed a lawsuit against Costco alleging that at one of its locations, management failed to take steps to protect one of its female employees from unwelcome advances of one of its warehouse member-customers. According to the EEOC, the agency's administrative investigation revealed that the employee repeatedly complained to her managers at the Glenview, Ill., Costco location where she worked about being pursued, approached, and confronted in the Costco by the man. In addition, one of her managers apparently told the employee that he agreed the man was "not right" and that Costco would monitor the situation. However, when the situation persisted and the employee complained to the police, Costco management allegedly yelled at her and told her to be friendly to the customer. John Hendrickson, the EEOC regional attorney in Chicago, said, "All employers have a duty to protect employees from sexual harassment...No employer gets a pass because it is a customer targeting its employee, rather than a manager or fellow employee."
In its first lawsuit to directly challenge a wellness program pursuant to the Americans with Disabilities Act (ADA), the Equal Employment Opportunity Commission (EEOC) has charged that Orion Energy Systems violated the ADA by requiring an employee to submit to medical exams and inquiries that were not job-related and consistent with business necessity as part of a "wellness program," which was not voluntary, and then by allegedly terminating the employee when she objected to the program. The EEOC contends that Orion instituted a wellness program that required medical examinations and made disability-related inquiries. When an employee declined to participate in the program, Orion shifted responsibility for payment of the entire premium for her employee health benefits from Orion to the employee, and shortly thereafter, terminated the employee.
California Governor Brown has signed SB 1034 into law, which imposes a 90-day limit on eligibility waiting periods for group health insurance benefits issued by insurers. The federal ACA already had eligibility waiting periods limited to 90-days, effective January 1, 2014. In 2013, California had enacted AB 1083, which imposed a 60-day limit on eligibility waiting periods. SB 1034 conforms California law on waiting periods to federal law.
Asphalt Specialists Inc. has been found in violation of the Surface Transportation Assistance Act by the U.S. Department of Labor's Occupational Safety and Health Administration (OSHA) for allegedly wrongfully terminating a foreman and two truck drivers. The drivers allegedly raised safety concerns after being directed to violate U.S. Department of Transportation mandated hours of service for commercial truck drivers. Headquartered in Pontiac, the asphalt paving company was ordered to reinstate the three employees to their former positions with all pay, benefits and rights. The company was also ordered to pay a total of $953,916 in damages: $243,916 in back wages to the drivers, $110,000 in compensatory damages and $600,000 in punitive damages. The foreman, who was terminated from employment on June 30, 2012, had allegedly repeatedly raised concerns to the company's co-owner about exceeding hours of service when job assignments repeatedly failed to allow for the 10-hour rest period mandated by the Department of Transportation. At least twice, the foreman and the crew were expected to work more than 27 hours straight. The employee rightfully refused to operate a vehicle in an unsafe manner, which could potentially cause serious injury to the worker, co-workers or the public.
Bertolini Corporation, a stackable chair manufacturer, has agreed to pay $92,500 to settle a retaliation lawsuit brought by the U.S. Equal Employment Opportunity Commission (EEOC). The EEOC had charged Bertolini with unlawful retaliation against two employees. According to the EEOC's suit, the company retaliated against two employees, a maintenance mechanic and a human resources assistant, by firing them because they complained about unlawful discrimination at the company. In addition, to the monetary relief, the one-year consent decree settling the lawsuit enjoins the company from retaliating against any employee; requires it to provide in-person training regarding retaliation to its Tennessee employees and to maintain records of any complaints of retaliation. The company must also provide a report to the EEOC regarding any such complaints.
A federal judge has ruled that New Prime, Inc., one the nation's largest trucking companies, violated federal law by discriminating against female truck driver applicants when it required that they be trained only by female trainers, the U.S. Equal Employment Opportunity Commission (EEOC). The court found that the company, which does business as Prime, allegedly engaged in discrimination by denying employment opportunities to women through its same-sex trainer policy. Prime adopted its policy after it was found in a previous EEOC lawsuit to have violated Title VII based upon the sexual harassment of one of its female driver trainees. Based on a discrimination charge filed by Deanna Roberts Clouse, the EEOC filed suit against Prime again. The EEOC charged that Prime's policy of assigning female trainees only to female trainers discriminated against Clouse and all other female applicants for truck driver trainee positions because of their sex. Because Prime had very few female trainers, this practice resulted in female trainees waiting extended periods of time, sometimes up to 18 months, for a female driver to become available, which resulted in most female drivers being denied employment. Male applicants were promptly assigned to male trainers.
The Los Angeles City Council has finalized a $26-million dollar settlement to end a lawsuit over a ban on lunchtime naps taken by sanitation-truck drivers. The settlement amount, approved on a 9-2 vote, resolves a class-action lawsuit involving nearly 1,100 sanitation workers who alleged said they were improperly barred from sleeping and engaging in other activities during their meal breaks. Sanitation officials had imposed the no-nap rule to avoid the bad publicity that would come if a resident, business owner or television news crew stumbled across a sleeping city employee. But lawyers for the drivers said the city, by limiting workers' mealtime activities, had impeded their ability to take a meal break.
A recent case, Riverside County Sheriff's Department v. Jan Stiglitz, serves as a reminder that employers must consistently enforce personnel policies and procedures, in particular those related to terminations. The case involves Kristy Drinkwater, a Correctional Deputy, who was terminated for allegedly falsifying time records in order to obtain compensation to which she was not entitled. She appealed her termination, arguing that the disciplinary action was disproportionate to her misconduct because other County Sheriff's Department (the "Department") employees who had falsified time records received lesser punishment. She then submitted a motion to hearing officer Jan Stiglitz for discovery of disciplinary records of other Department personnel who had been investigated or disciplined for similar misconduct. Stiglitz eventually ordered the Department to produce the requested records and the Department appealed. The case has made its way to the California Supreme Court.
Virginia-based Savi Technology, Inc., which specializes in providing sensor-based predictive analytic solutions that enable customers to track and monitor high value assets, has been sued by the Equal Employment Opportunity Commission for allegedly violating federal law when it rescinded a job offer after learning that a job candidate had recently given birth. According to the EEOC, after Christine Rowe successfully completed a telephone interview and an in-person interview, Savi Technology offered her the director of human resources position. However, the day after Savi Technology extended the job offer, Rowe advised the company vice president and general counsel, who was to be her direct supervisor, that she had recently given birth and had surgery related to her pregnancy. The next day, the vice president and general counsel allegedly informed Rowe that the job offer was rescinded.
A federal judge has rejected a $324.5 million settlement in a class action lawsuit filed by high-tech workers, which alleges that Google and Apple conspired with other technology companies to block top employees from taking better job offers. U.S. District Judge Lucy Koh rejected the settlement on the grounds that it is not enough to cover the damages done to the tech workers. According to Judge Koh, the workers are entitled to at least $380 million. Originally, the tech workers were seeking $3 billion in damages before settling for about 10 percent of that, which if it had been awarded in a trial, could have been tripled to $9 billion under U.S. antitrust law. Under a $9 billion award, the tech workers would have received an average of more than $140,000. Under the proposed $324.5 million settlement, Judge Koh estimated that after subtracting attorneys' fees and costs of $82 million, the workers would have received an average of $3,750; that amount "falls below the range of reasonableness" according to Koh.
MPW Industrial Services Inc., a provider of industrial cleaning and labor support services, has agreed to pay $37,500 to resolve a disability discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC). According to the EEOC, the company terminated Todd Semko, who was hired as a laborer, before his first day of work after it learned during a fitness-for-duty evaluation that he has an implanted Transcutaneous Electrical Nerve Stimulation (TENS) unit in his lower back for a back impairment. The EEOC charged that Semko was fired because a company occupational nurse feared he would not be able to charge the TENS unit at the worksite even though Semko explained that he did not need to charge the unit during working hours. Semko was not under any medical restrictions. The company did not request additional medical documentation from Semko's doctor, nor did the company explore providing a reasonable accommodation.
The National Labor Relations Board (NLRB) has ruled that Ralphs Grocery Company violated Section 8(a)(1) of the National Labor Relations Act (NLRA) by suspending and then terminating Vittorio Razi for his refusal to take a drug and alcohol test without union representation. The Board ruled that the reason for Razi's termination was "inextricably linked to his assertion of Weingarten rights." Razi refused to take the test because he wanted to consult with a union representative beforehand. Razi asked for representation and he attempted—unsuccessfully—to contact a representative by phone. Rather than wait to see if a representative would become available, Ralphs terminated Razi. Ralphs argued that Razi's refusal to take the drug and alcohol test was grounds for discipline because it constituted insubordination. However, the Board held this was "not a valid defense" because the drug and alcohol test triggered Razi's right to a Weingarten representative. According to the Board, since Razi's refusal to submit to the test without the presence of a union representative was an exercise of his Weingarten rights, his refusal could not lawfully be used against him.
- Employer Will Pay $80K for Alleged Retaliation
- DOL Proposes Rule Pertaining to Federal Contractors to “Combat Pay Discrimination”
- Employers May Require Exempt Employees to Use Accrued Vacation for Partial Day Absences
- NLRB Officials Ratify Actions Taken During Period Supreme Court Held Board Members Were Not Validly Appointed