Johns Hopkins Settles Race Discrimination Case with U.S. Labor Department
The Applied Physics Laboratory at Johns Hopkins University will pay $359,253 to settle allegations of discrimination made by two Africa American women who were employed at its Laurel, Md. facility. An investigation by the U.S. Department of Labor's Office of Federal Contract Compliance Programs determined that the lab violated Executive Order 11246, which prohibits federal contractors from discriminating in employment on the basis of race or sex. OFCCP's investigation began in June 2010, after an African American woman filed a complaint alleging that she had been subjected to a hostile work environment at the APL. When she tried to pursue a complaint through the lab's own equal employment opportunity process, allegedly she was subjected to harassment and retaliation, and ultimately terminated. During its investigation, OFCCP received a second complaint from another African American woman alleging that she had been subjected to pay discrimination and a hostile work environment at the APL. OFCCP compliance officers found that the lab had allegedly discriminated against the two former employees on the basis of race. Read more here.
Former McDonald’s Workers Sue for Race and Sex Discrimination
Ten former McDonald's workers are suing the company and one of its franchisees, alleging racial and sexual discrimination, which allegedly occurred at three franchised restaurants in Virginia. The lawsuit includes claims that supervisors at the restaurants made statements such as "there are too many black people in the store" and used racial and ethnic slurs. The lawsuit also includes four defendants: McDonald's Corp., McDonald's USA LLC, franchise Soweva Co. and the franchise's owner, Michael Simon. According to the lawsuit, about 15 black workers were terminated May 12, including nine of the plaintiffs. "When they asked why they were being terminated, Soweva's owner told them that they were good workers, but they 'didn't fit the profile' of his organization," the lawsuit says. Further, according to the lawsuit, when some of the workers complained to McDonald's corporate offices, the company did not take action.The lawsuit comes a month after the National Labor Relations Board — in an unrelated matter — determined McDonald's and it franchisees could be considered jointly responsible for employment issues. Read more here.
EEOC Sues Ruby Tuesday for Alleged Sex Discrimination Against Men
International restaurant chain Ruby Tuesday, Inc. allegedly discriminated against male employees for temporary assignments to a Utah resort, the U.S. Equal Employment Opportunity Commission (EEOC) has charged in a lawsuit. According to the EEOC's suit, in the spring of 2013 Ruby Tuesday posted an internal announcement within a 10-state region for temporary summer positions in Park City, Utah with company-provided housing for those selected. Andrew Herrera, a Ruby Tuesday employee since 2005 in Corvallis, Oregon, wanted to apply because of the chance to earn more money in the resort town. However, the announcement stated that only females would be considered and Ruby Tuesday in fact selected only women for those summer jobs, supposedly from fears about housing employees of both genders together. Read more here.
Company Will Pay $119,612 For Allegedly Firing Delivery Driver Who Self-Reported Alcohol Abuse
A federal jury has found that Old Dominion Freight Line, Inc., a trucking company, committed disability discrimination for allegedly failing to accommodate a truck driver who self-reported alcohol abuse and then allegedly terminating him. According to the EEOC's suit, the former driver self-reported an alcohol problem under the company's "Open Door Policy" seeking assistance from Old Dominion. The driver and local management were unaware that the company had an unwritten policy of not allowing drivers who self-report alcohol abuse to return to driving. Although Old Dominion would not return the driver to a driving position, the company asserted that it accommodated the driver by offering him a part-time dock position at half the pay and no health benefits. Old Dominion later charged the driver with job abandonment and terminated him in June 2009. According to the EEOC, “To maintain a blanket policy that any driver who self-reports alcohol abuse could never return to driving -- with no individualized assessment to determine if the driver could safely be returned to driving -- violates the ADA." Read more here.
U.S. Supreme Court Rules in Favor of Government Whistleblower
The U.S. Supreme Court ruled that a former air marshal was not "specifically prohibited by law" for exposing information about the Transportation Security Administration’s (TSA) decision to reduce overnight flights for air marshals in 2003. The 7-2 decision, written by Chief Justice John Roberts, represents a rare court victory for government whistle-blowers. The case involved Robert MacLean, an air marshal who flew undercover and armed, as part of the U.S. government’s anti-terrorism efforts. When the TSA decided to reduce overnight flights for air marshals in 2003, MacLean leaked the news to MSNBC, which prompted congressional criticism before TSA reversed itself. When his identity was revealed three years later, MacLean was terminated for disclosing "sensitive security information," which violated TSA rules. A federal appeals court ultimately ruled that his disclosure did not violate a federal law, only an agency regulation, and the government appealed. Read more here.
Rare Protest Occurs During Supreme Court Session
A rare broke out in the Supreme Court on Wednesday as several protestors stood up and shouted what appeared to be comments criticizing the court's controversial 2010 Citizens United campaign finance decision. As court opened, Chief Justice John Roberts was preparing to announce the day's opinions when he was cut off by the first protestor who shouted "we are the 99 percent." Roberts then tried to joke "our second order of business today" until he was cut off by a second protestor. Read more here.
Obama Calls for Paid Sick Leave in State of the Union Address
In his recent State of the Union Address, President Obama, continued with his push for mandatory paid sick leave by asking Congress to adopt legislation similar to a new law in California, which requires employers to provide employees with a certain number of paid sick leave days per year (in California, the new law will require three days per year beginning July 1, 2015.) Obama called on federal lawmakers, as well as state and local officials, to adopt legislation granting millions of workers up to seven days of paid sick leave each year. Obama recently signed a presidential memorandum directing federal agencies to provide employees with up to six weeks of paid leave for parents with a new child. He also called on the Republican-led Congress to pass legislation giving federal employees another six weeks of compensated parental leave. Read more here.
U.S. Supreme Court Declines Review in California Arbitration Case
In a closely watched California case regarding the permissible scope of a mandatory workplace arbitration agreement containing a waiver of class actions, Iskanian v. CLS Transportation Los Angeles, LLC, S204032 (June 23, 2014), the U.S. Supreme Court has declined review of the California Supreme Court’s decision that the Federal Arbitration Act (FAA) preempts class action waivers as applicable to the Private Attorney General Act of 2004 (PAGA). As a result of this decision, in California, although mandatory arbitration agreements can still prohibit employees from bringing class actions against the employer, employees may still file representative “PAGA” actions, and an arbitration provision containing a waiver of such actions is not enforceable. A “PAGA” claim refers to a law in California that allows a private citizen to pursue civil penalties against an employer, on behalf of the State of California, for wage and hour violations, provided certain procedures are followed. Read the California Supreme Court decision here.
U.S. Supreme Court Hears Oral Argument on Whether EEOC’s Conciliatory Efforts Are Subject to Judicial Review
The U.S. Supreme Court recently heard oral argument on whether the U.S. Equal Employment Opportunity Commission’s (EEOC) pre-litigation conciliatory efforts are subject to judicial review. The U.S. Court of Appeals for the Seventh Circuit had held that the EEOC’s efforts in this regard are not subject to judicial review. The case involves Mach Mining, LLC, which was sued by the EEOC for allegedly violating Title VII, by failing to hire any female miners since beginning operations in 2006, despite obtaining applications from many highly qualified women. Mach Mining defended against these allegations by asserting that the EEOC did not adequately conciliate the matter before suing. The Seventh Circuit considered the case, ruling that Title VII conveys complete discretion to the EEOC for conciliation efforts. The Seventh Circuit thus ruled that employers cannot seek to dismiss EEOC lawsuits by arguing that the Commission inadequately "conciliated" before filing its lawsuit; subsequently, Mach Mining appealed to the U.S. Supreme Court. Read more here.
California Supreme Court Grants Petition for Review in UCL Case
The California Supreme Court has granted a petition for review in Solus Industrial Innovations v. Superior Court, on the issue of whether federal law preempts a district attorney from recovering civil penalties under California’s Unfair Competition Law (UCL) (Bus. & Prof. Code, § 17200 et seq.) due to an employer’s alleged violation of workplace safety standards. Solus argues that federal OSHA preempts any state law on workplace safety enforcement, which has not been specifically incorporated into the state workplace safety plan approved by the U.S. Secretary of Labor. The district attorney contends that once a state workplace safety plan has been approved by the Secretary, as California’s was, the state retains significant discretion to determine how it will enforce the safety standards. Solus manufactures plastics. In 2007, the company installed an electric water heater designed for residential use at its facility. Subsequently, the water heater exploded and two workers were killed. Cal-OSHA investigated, fined Solus, and referred the case to the district attorney for prosecution of company officials. The district attorney also brought a civil action for penalties. Solus argued federal OSHA preempts all workplace safety laws. Read more here.
California’s Governor Brown Appoints Kevin Kish as New Director of the DFEH
California’s Governor Brown has appointed Kevin Kish as the New Director of the Fair Employment and Housing Department (DFEH). Mr. Kish has been an adjunct professor of law at Loyola Law School, Los Angeles since 2012 and Director of the Employment Rights Project at Bet Tzedek Legal Services since 2008, where he was a Skadden fellow from 2006 to 2008 and a Bet Tzedek fellow from 2004 to 2005. He was a law clerk at the U.S. District Court, Middle District of Alabama from 2005 to 2006. Mr. Kish is a member of the American Bar Association, Los Angeles County Bar Association, and the California Employment Lawyers Association. He earned a Juris Doctor degree from Yale Law School. Read more here.
U.S. Supreme Court Agrees to Rule on Gay Marriage
The U.S. Supreme Court has accepted petitions for review on the issue of gay marriage from couples in Michigan, Kentucky, Tennessee and Ohio. The court’s ruling is likely to come in late June. Both sides urged the Supreme Court to resolve lower-court disagreement on gay marriage. Pro-marriage rulings by four federal appeals courts have helped triple the number of gay-marriage states since 2013. Read more here.
Minimum Wage Increases in 20 States
Effective January 2015, the minimum wage has increased in 20 states and the District of Columbia. For states such as Arkansas, Hawaii, Maryland, Nebraska, South Dakota, and West Virginia, this means that minimum-wage employees will make more than the federally mandated minimum of $7.25 an hour for the first time ever. A list of the states that have an increased minimum wage is available here.
U.S. House Exempts Emergency Service Volunteers From ACA 50-Employee Threshold
The U.S. House of Representatives voted 401-0 to exempt emergency service volunteers from the 50-employee threshold required under the Affordable Care Act (ACA), pursuant to legislation known as the “Protecting Volunteer Firefighters and Emergency Responders Act (H.R. 33). A similar measure was recently passed exempting veterans covered under TRICARE. Read more here.
Finding a New Job Among New Year’s Resolutions at Work
According to a survey by CareerBuilder, thirty percent of workers reported that they regularly search for job opportunities even though they’re currently employed, and 16 percent are determined to land a new position in 2015. Among workers ages 18 to 34, 23 percent expect to have a new job by year-end. The national survey included a representative sample of 3,056 workers across industries. Those who are most likely to change jobs in 2015 include: (1) Career-less: Half (52 percent) of workers feel like they just have a job, not a career; (2) Underemployed: 39 percent of workers feel underemployed; 31 percent of these workers plan to change jobs in 2015; (3) Undertrained: 22 percent are dissatisfied with training and learning opportunities in their firms; 35 percent of these workers plan to change jobs; (5) Overlooked: 23 percent feel overlooked for a promotion in their current job; 31 percent of these workers plan to change jobs; (6) Immobile: 26 percent are dissatisfied with career advancement opportunities in their firms; 37 percent of these workers plan to change jobs; (7) Underpaid: 41 percent didn’t receive a pay increase in 2014; 22 percent of these workers plan to change jobs. Read more here.
EEOC Chair Announces Task Force to Develop Strategies to Prevent Workplace Harassment
Workplace harassment is alleged in approximately 30 percent of all charges filed with the U.S. Equal Employment Opportunity Commission (EEOC), according to EEOC Chair Jenny R. Yang, who presided over the first commission meeting of her tenure today. Newly sworn in Commissioner Charlotte Burrows was present at the meeting, bringing the EEOC back to full strength of five commissioners. "The EEOC is working to leverage our resources to have a greater impact on the persistent problem of workplace harassment," said Yang. "By identifying underlying problems in workplaces and industries where we see recurring patterns of harassment, we are developing strategies that focus on targeted outreach and education as well as systemic enforcement to promote broader voluntary compliance." In the EEOC's Strategic Enforcement plan for FY2013-2016, the Commission recognized that an outreach campaign aimed at both educating employers and employees is an important strategy to deter future violations. "Preventing harassment from occurring in the first place is far preferable to remedying its consequences," according to Yang. Read more here.
“Probationary” Employees are Entitled to ADA Protection
A newly hired employee who is still under the employer’s probationary period is still entitled to protection under the Americans with Disabilities Act (ADA). In a recent case, EZEFLOW USA, a pipe fitting manufacturer located in New Castle, Pa., will pay $65,000 and provide equitable relief to resolve a federal disability discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC). U.S. Marine Corps veteran Adam Brant, who worked as a maintenance technician, requested six weeks of unpaid medical leave when he experienced seizures caused by service-related disabilities. EZEFLOW USA allegedly denied the request because Brant was still a probationary employee. Even though EZEFLOW USA maintains a policy of providing up to 26 weeks of paid leave to non-probationary employees, the company allegedly refused to provide Brant with unpaid leave as a reasonable accommodation. Read more here.
OSHA Orders Company to Reinstate Pilot
OSHA has ordered Air Methods Corp., to reinstate a pilot who was terminated allegedly because he refused to fly an aircraft that he believed was unsafe. In addition to reinstatement of the pilot, OSHA ordered the company to pay $158,000 in back wages and $8,500 in damages, and remove disciplinary information from the employee's personnel record. The company must also provide whistleblower rights information to all employees. Read more here.
Flight Attendants Sue United Airlines Seeking Reinstatement
Thirteen flight attendants terminated by United Airlines allegedly for refusing to fly from San Francisco to Hong Kong because of a security concern filed a federal complaint seeking reinstatement and other damages. According to the complaint, just prior to takeoff, crewmembers noticed the words "BYE BYE" and two faces drawn in oily residue on the plane's tail. Allegedly, although one face was smiling, the other appeared "devilish." The flight attendants allegedly refused to fly unless the more than 300 passengers were taken off the plane and it was searched for explosives. The flight was canceled for lack of crew. Subsequently, United terminated the flight attendants for insubordination. Christen David, a United spokeswoman, said all of the airline's and FAA's safety procedures were followed in the incident and that the plane was deemed "entirely safe to fly." United intends on vigorously defending the lawsuit. The flight attendants allege their termination violated a law which protects whistleblowers in the airline industry from retaliation for reporting air safety issues. Read more here.
U.S. House Passes Bill Exempting Certain Employees From the ACA
The U.S. House of Representatives has unanimously passed a bill designed to help veterans get jobs by exempting employees still covered by military-related insurance from the Affordable Care Act’s 50-employee employer mandate threshold. Read more here.
HR Practice Note: California’s Paid Sick Leave Posting Requirement in Effect
Effective January 1, 2015, California employers must comply with the Healthy Workplaces/Healthy Families Act of 2014's posting requirements regarding paid sick leave, which entitles eligible employees who have worked in California for 30 days to three days of paid sick leave per year. Specifically, the Act requires that employers post a notice regarding paid sick leave in a conspicuous place in the workplace. The Labor Commissioner has posted a sample notice, which is available here.
