Restaurant Allegedly Refused to Hire Older Workers
Ruby Tuesday, Inc. will pay $575,000 and provide equitable relief to settle a class age discrimination lawsuit filed by the U.S Equal Employment Opportunity Commission (EEOC).The EEOC alleged that Ruby Tuesday engaged in a pattern or practice of age discrimination against job applicants who were 40 years of age or older at six of the chain's restaurants located in West Mifflin, Greensburg, Altoona, Du Bois, and Indiana, Pa., and in Beachwood, Ohio, in violation of the Age Discrimination in Employment Act of 1967 (ADEA). According to the EEOC, the restaurant chain also failed to preserve employment records, including employment applications, as required by the ADEA and EEOC regulations. EEOC General Counsel David Lopez commented that, "This case demonstrates the agency's ongoing commitment to challenge discriminatory barriers to hiring…Vigorous law enforcement efforts on behalf of older workers are critical to the EEOC's mission to eradicate barriers to employment." Read More.
OSHA Launches Online Form for Whistleblower Complaints
Whistleblowers covered by one of 22 statutes administered by the U.S. Department of Labor's Occupational Safety and Health Administration (OSHA) will now be able to file complaints online. The online form will provide workers who have been retaliated against an additional way to reach out for OSHA assistance online. The new online form prompts employees to include basic whistleblower complaint information so they can be easily contacted for follow-up. Complaints are automatically routed to the appropriate regional whistleblower investigators. In addition, the complaint form can also be downloaded and submitted to the agency in hard-copy format by fax, mail or hand-delivery. The paper version is identical to the electronic version and requests the same information. Read More.
IRS Issues 2014 Standard Mileage Rates
The Internal Revenue Service (IRS) has issued the 2014 optional standard mileage rates used to calculate the deductible costs of operating an automobile for business, charitable, medical or moving purposes. Beginning on January 1, 2014, the standard mileage rates for the use of a car (also vans, pickups or panel trucks) are as follows: 56 cents per mile for business miles driven; 23.5 cents per mile driven for medical or moving purposes; and, 14 cents per mile driven in service of charitable organizations. The business, medical, and moving expense rates decrease one-half cent from the 2013 rates. The charitable rate is based on statute. The standard mileage rate for business is based on an annual study of the fixed and variable costs of operating a vehicle. The rate for medical and moving purposes is based on the variable costs. In California, according to the Division of Labor Standards Enforcement (DLSE) an employer’s obligation to reimburse an employee for business expenses related to the use of a vehicle is satisfied by using the IRS mileage rate. Read More.
Hospital Sued by EEOC for Disability Discrimination
Providence Hospital, a full-service hospital in Washington, D.C., has been sued by the Equal Employment Opportunity Commission (EEOC) for allegedly refusing to accommodate a disabled employee and then discharging her because of her disability. According to the EEOC's lawsuit, Louise McFadden, who worked as a medical assistant for Providence Hospital, suffered a disability-related injury. McFadden returned to work, and according to the EEOC, she was cleared to work full-time, but was told that she had to use a cane to ambulate. Allegedly, there were vacant positions at the hospital that McFadden could have been placed into as an accommodation for her disability; however, the EEOC alleges that Providence Hospital would not allow McFadden to return to work in any capacity until she received medical clearance to return to work without the use of a cane. McFadden was allegedly placed on medical leave and then discharged after her leave was exhausted. The EEOC charges that under the Americans with Disabilities Act (ADA), the hospital had an obligation to reassign McFadden to a vacant position that she could perform. Read More.
Employers Beware: Wage and Hour Claims are Costly!
Although many employers have not yet been sued for an alleged wage and hour violation, if it happens, it often is quite shocking for the employer. The claims are expensive to defend and can result in significant damages, payable of course by the employer. Further, many employers do not have Employment Practices Liability (EPL) insurance, and those who do have such coverage for employment related matters often mistakenly believe that their EPL policy provides coverage for wage and hour claims. Unfortunately, the majority of EPL policies exclude coverage for wage and hour claims, and when such coverage is available it is often only for defense costs. Thus, employers should check their EPL polices to determine whether or not coverage for wage and hour claims is offered and if not contact their insurance broker to discuss obtaining such coverage. All employers should have some form of EPL coverage in place to protect against the plethora of employment related claims that can arise from the workplace. Read More.
Grocery Store Allegedly Fired Employee Because of His Epilepsy
The Food Farmacy, Ltd. and J&T Enterprises, LLC, doing business as Foodworks, a chain of grocery stores in Connecticut, will pay $25,000 and furnish other relief to settle a disability discrimination lawsuit filed by the U.S Equal Employment Opportunity Commission (EEOC). According to the EEOC's suit, Foodworks allegedly asked disability-related questions of a class of applicants before offering them jobs. The questions included "Do you have any health problems?" on applications and asking applicants in interviews whether they had any health/ physical problems; whether they were on any medications; and if so, which medications. The EEOC also alleged that when an employee with epilepsy had a seizure at work, Foodworks fired the employee a few days after the seizure, despite the employee having performed his job successfully and presenting medical documentation indicating he was capable of returning to his normal work day. Read More.
Employer Allegedly Refused Employee’s Request to Bring Service Dog to Work
The U.S. Equal Employment Opportunity Commission (EEOC) filed suit against Direct Optical, Inc., a Michigan eyewear retailer, for allegedly discriminating against an optician because of her disabilities. The EEOC has charged that Direct Optical discriminated against Laurel Miller because of her disabilities -- generalized anxiety disorder, depression, and post-traumatic stress disorder -- when it denied her request to use her service dog at work. The complaint further alleges that Direct Optical terminated Miller because of her disability (including for minor performance issues that her service dog could have prevented), and in retaliation for her accommodation request. The EEOC is seeking injunctive relief prohibiting Direct Optical from discriminating against other employees with disabilities; equitable relief that provides equal opportunities for qualified employees with disabilities; lost wages; compensatory and punitive damages; and other relief. Read More.
Employee Allegedly Fired for Complaining About Treatment of Haitian Workers
Mountaire Farms, Inc., will pay $48,000 to settle a lawsuit for retaliation filed by the U.S. Equal Employment Opportunity Commission (EEOC). Mountaire Farms is an agricultural food processing company. According to the EEOC's lawsuit, Frantz Morette began working as a translator for a group of Haitian workers at Mountaire Farms' Lumber Bridge facility. The EEOC alleges that Morette complained repeatedly to his supervisors and the human resources department that the Haitian workers were being treated poorly by supervisors as compared to their non-Haitian coworkers. Morette told management that supervisors often refused to allow the Haitian workers to take bathroom breaks while allowing non-Haitian workers to do so and refused to provide the Haitian workers with the training necessary for the higher-paying jobs at the facility. The EEOC further alleges that Morette notified company managers that a supervisor was refusing to allow a Haitian worker to take a restroom break while allowing other non-Haitian workers to do so. A few days later, Morette was allegedly fired for his complaints. Read More.
Ninth Circuit Holds Oregon Employee Entitled to Health Benefits for Same-Sex Domestic Partner
The Executive Committee of the Ninth Circuit Judicial Council overturned the chief district judge’s opinion and order rescinding the back pay remedy provided to a former District of Oregon employee, Margaret Fonberg, who complained of discrimination based upon a denial of health benefits for the her same-sex domestic partner. The Executive Committee held that the United States Office of Personnel Management’s denial of health benefits constituted a deprivation of due process and equal protection because the employee and her partner were allegedly treated differently from similarly-situated opposite-sex partners who are allowed to marry and thereby gain spousal benefits under federal law. They also were allegedly treated unequally vis-à-vis same-sex couples in other states in the circuit, who may marry and thus gain benefits under United States v. Windsor, 133 S. Ct. 2675 (2013) (holding unconstitutional federal Defense of Marriage Act defining marriage as a legal union between a man and a woman). Read More.
California Appellate Court Finds for Employees Over Promised Retirement Bonus
Plaintiffs worked for West Coast Quartz Corporation (West Coast). Defendants were the owners of West Coast and were preparing to sell the company. Allegedly, they promised plaintiffs that if they continued to work for West Coast until the sale, they would be paid a bonus from the sale proceeds that would be sufficient for them to retire. Plaintiffs remained at West Coast for five years, rejecting job offers from other companies, and opportunities to move out of the area. When defendants sold West Coast for approximately $30 million, they did not pay plaintiffs the promised bonus. Plaintiffs filed suit for fraud and breach of contract, among other causes of action. Following the trial court sustaining defendants’ demurrer to their first amended complaint with leave to amend, plaintiffs opted to stand on the pleading. As a result, the trial court dismissed the first amended complaint and entered judgment in favor of defendants. Plaintiffs appealed and the California Court of Appeal, 6th District, reversed, ordering the defendants to answer the complaint. Read More.
NLRB Investigating Wal-Mart for Alleged Unlawful Treatment of Employees Who Were Protesting
The NLRB’s general counsel has advised that the NLRB has investigated charges against Wal-Mart regarding employee protests last year in 13 states, including California. According to the agency, the retailer unlawfully threatened employees with reprisal if they engaged in strikes on Black Friday, unlawfully disciplined workers who did in engage in those strikes and unlawfully treated employees in other stores in anticipation of them participating in strikes or other labor activities. The Black Friday protests last year spread to 100 cities, with 600 people turning out to a Wal-Mart in Paramount, California, to support workers. The NLRB found in favor of Wal-Mart in two instances, saying that Wal-Mart did lawfully tell non-employees to move from Wal-Mart property, and that it did not unlawfully change work schedules. The findings will become complaints if Wal-Mart does not settle with workers, and the company could be forced to award workers back pay and reinstate workers. Read More.
Study Suggests Online Searches of Job Applicants May Lead to Discriminatory Hiring Practices
More employers are conducting online searches of job applicants as part of the hiring process. Specifically, between 10% and a third of U.S. employers have searched social media sites for information on job applicants. These online screening searches may, however, result in discriminatory hiring practices. According to an article by the Wall Street Journal, an experiment conducted by Carnegie Mellon University involving dummy résumés and social-media profiles, found, as an example of religious discrimination, that job candidates whose online profiles indicated they were Muslim were less likely to be called for interviews than Christian applicants. The difference was pronounced in areas where more people identify themselves as conservative. In those areas, Christian applicants got callbacks 17% of the time, compared with about 2% for Muslims. Employers should exercise care when conducting online searches of job applicants because the employer cannot control for the information received about age, religion, sex, race, national origin, sexual orientation, etc. that an applicant could claim negatively impacted the hiring decision. Read More.
Employer Must Pay $302,000 to Resolve Whistleblower Lawsuit
Under terms of a consent judgment, a now defunct North Canton, Ohio-based company, Star Air Inc., and owner Robert R. Custer, will pay two Ohio truck drivers $302,000 to resolve a lawsuit filed by the U.S. Department of Labor (DOL) for allegedly terminating two of the company's drivers in violation of the 1982 Surface Transportation Assistance Act's whistleblower provisions. The drivers were terminated after one was stopped by West Virginia State Police and cited for: hauling an excess load without a commercial driver's license, operating an overweight trailer and driving without a logbook. The commercial vehicle also did not have the name of the company, its home base or its U.S. Department of Transportation number displayed. The driver who was cited informed another driver, who was also operating without the proper information displayed, and they refused to continue driving until these issues were resolved. Both were allegedly terminated as a result and subsequently filed complaints with the Occupational Safety and Health Administration (OSHA) alleging that Star Air had retaliated against them for their complaint. Read More.
OSHA Sends Reminder to Retailers About Crowd Management
Occupational Safety and Health Administration (OSHA) is encouraging retail employers to take precautions to prevent workplace injuries during major sales events, including Black Friday. OSHA sent letters to major retailers nationwide reminding them about the potential hazards involved with large crowds at retail stores during the holiday season when sales events attract a higher number of shoppers. Retailers are encouraged to use the safety guidelines provided in the OSHA fact sheet, "Crowd Management Safety Guidelines for Retailers," in addition to their own procedures. They were also reminded to maintain appropriate access to exit routes and ensure that exits are not blocked. Crowd management plans should, at least, include: (1) On-site trained security personnel or police officers; (2) Barricades or rope lines for pedestrians that do not start right in front of the store's entrance; (3) The implementation of crowd control measures well in advance of customers arriving at the store; (4) Emergency procedures in place to address potential dangers; (5) Methods for explaining approach and entrance procedures to the arriving public; (6) Not allowing additional customers to enter the store when it reaches its maximum occupancy level; (7) Not blocking or locking exit doors. The fact sheet is available here. Read More.
SEC Releases Annual Report on Dodd-Frank Whistleblower Program
Fiscal Year 2013 was a historic one for the Securities and Exchange Commission’s Office of the Whistleblower (“OWB”). During the fiscal year, the SEC paid four whistleblowers a total of $14,831,965. The program, which is administered through OWB, is now in its third year of operation. The program was designed to incentivize individuals to provide the SEC with specific, credible, and timely information about possible securities law violations. Under the program, individuals who voluntarily provide the SEC with original information that leads to a successful enforcement action resulting in monetary sanctions of over $1,000,000, may be eligible to receive an award equal to 10-30% of the monies collected by SEC. From the establishment of the whistleblower program in August 2011 until the end of Fiscal Year 2013, the SEC has received 6,573 tips and complaints from whistleblowers. In Fiscal Year 2013, the SEC made its largest whistleblower award to date, awarding over $14 million to a single whistleblower whose information led to an SEC enforcement action that recovered substantial investor funds. Read More.
Restaurant Owner Owes Over One Million Dollars in Unpaid Wages
Ji Li Zheng, the owner of the Century Buffet in Oakland, has been charged with 16 felony and misdemeanor counts alleging payroll tax fraud, workers’ compensation fraud, failure to pay the state-mandated minimum wage and overtime premium, and dissuading a witness. An investigation by the Alameda County District Attorney revealed that Zheng allegedly falsified the restaurant’s paperwork, including its audits, time sheets and payroll journals. Zheng allegedly reported that six to 12 employees worked at the restaurant, with total wages reported between $25,000 to $45,000 per quarter. However, allegedly there were 60 employees working at the buffet from 2010 until the investigation began. Workers also alleged that they worked 12 to13 hour shifts six days a week without rest or meal breaks. Most employees claimed they received monthly cash payments directly from Zheng. An audit revealed the total unpaid minimum wage to all employees totaled more than $520,000 and the total unpaid overtime was more than $550,000, in addition to over $191,000 as premium pay for no meal and rest periods provided. Read More.
NLRB Finds Merit in Charges Against Walmart
The National Labor Relations Board (NLRB) Office of the General Counsel (General Counsel) has investigated charges alleging that Walmart violated the rights of its employees as a result of activities surrounding employee protests. The General Counsel found merit in some of the charges and no merit in others, and has thus authorized complaints on certain alleged violations of the National Labor Relations Act (NLRA). If the parties cannot reach settlements in these cases, complaints will issue. The General Counsel found that some Walmart stores allegedly threatened, disciplined, and/or terminated employees for having engaged in legally protected strikes and protests. The General Counsel also found no merit to other alleged violations of the NLRA against Walmart, concluding that Walmart stores in California and Washington did not unlawfully change work schedules, disparately apply their policies, or otherwise coerce employees in retaliation for their exercise of statutory rights. Read More.
DOL Announces Rules to Update Regulations and Decrease Burden on Businesses
The U.S. Department of Labor announced four rules designed to reduce unnecessary burdens on employers by updating obsolete regulations. A rule from the Occupational Safety and Health Administration updates and streamlines the standards for the use of mechanical power presses while the remaining three rules from the Employment and Training Administration rescind outdated Foreign Labor Certification regulations for the H-2A, F-1 and H-1A programs. The new rules complement President Obama's executive order 13610 to modernize the regulatory system and reduce unjustified regulatory burdens. The OSHA rule revises the standard for mechanical power presses, which punch, form or assemble metal or other materials. Workers can be exposed to hand, finger or arm injuries — often resulting in amputation — if parts of a press are worn, damaged or not operating properly. The new rule will eliminate a requirement for employers to document mandatory weekly inspections of these presses while clarifying the responsibility of employers to perform and document required maintenance. Read More.
Employer's Refusal to Hire Sikh Applicant Because of Beard Resulted in Religious Discrimination Charge
As a recent case demonstrates, employers may not discriminate on the basis of an employee's or applicant's religion and, where appropriate, must provide reasonable accommodations to sincerely-held religious beliefs or practices, such as religious beliefs which require a beard. The case involves Tri-County Lexus. The company strictly enforced its dress code policy allegedly without granting reasonable religious accommodations, and refused to hire Gurpreet Kherha, a member of the Sikh faith, because of its policy. Kherha's religious beliefs require him to wear a beard, uncut hair and a turban. According to the Equal Employment Opportunity Commission (EEOC) Kherha applied for an available position as a sales associate, for which he was qualified. Tri-County Lexus requested, however, that Kherha shave his beard, and he refused to comply because of his religious beliefs. As a result, Tri-County Lexus denied him the job, the agency charged. Read More.
OSHA Schedules Meeting on Proposed Rule to Improve Tracking of Workplace Injuries and Illnesses
The Occupational Safety and Health Administration (OSHA) has scheduled a public meeting to allow interested parties to comment on the proposed rule to publish online an employer’s recordkeeping logs regarding workplace injuries and illnesses. OSHA's proposed rule amends its current recordkeeping regulations to add requirements for the electronic submission of injury and illness information employers are already required to keep under existing standards, Part 1904. The meeting will be held from 9 a.m. to 4:30 p.m., Thursday, Jan. 9, 2014, at the U.S. Department of Labor in Washington, D.C. Requests to attend or speak at the meeting may be submitted electronically at http://www.regulations.gov, the Federal Rulemaking Portal or by mail or facsimile. The deadline to request to attend the meeting as a speaker or observer is Friday, Dec. 13, 2013. See the Federal Register notice for more details. Read More.
EEOC Announces Settlement Involving Discrimination Against Over 100 Thai Farm Workers
The Equal Employment Opportunity Commission announced that Del Monte Fresh Produce, one of the country's leading producers of fresh fruit and vegetables, has agreed to settle a discrimination lawsuit filed by the EEOC in Hawaii against its Hawaii subsidiary. As part of the settlement, Del Monte Fresh Produce will pay $1.2 million to the Thai claimants. Del Monte Fresh Produce has also agreed to institute comprehensive protocols and accountability measures to ensure that all farm labor contractors that work with the company comply with anti-discrimination laws. This is the first effort of its kind for a farm to ensure farm labor contractor accountability for federal anti-discrimination laws. Among other things, Del Monte Fresh Produce has agreed to establish procedures to ensure that farm labor contractors (FLCs) disseminate policies and procedures prohibiting discrimination to their local work force and to H2-A guest workers in a language they understand. Read More.
