Would You Like Some Unlawful Hostility With Those Fries?

Employers know that the law does not require good manners in the workplace. However, at a certain point, it should be obvious that uncivil behavior is not merely “boorish,” but unlawful. Case in point, the EEOC’s recent lawsuit against MountainKing Potatoes. The EEOC claims that MountainKing created a hostile work environment by allowing managers to sexually harass female employees and unlawfully retaliated against those who complained about the sexual harassment. According to the lawsuit, managers repeatedly subjected women farmworkers to inappropriate sexual touching, comments, gestures and propositions. Then, when women complained about the mistreatment, the company punished them in various ways, including termination or assigning them to the least desirable assignments and workstations as retaliation.

A good rule of thumb for employers is to train your supervisors to treat workers with the same dignity, respect and civility that the supervisors would like their own friends and family members to be treated.

Nonprofits Must Obey the Same Anti-Discrimination Laws as For-Profit Businesses

The EEOC has announced a settlement of claims it asserted against Goodwill Industries. Yes, the same Goodwill Industries that provides job training, employment placement services, and other community-based programs for people who have disabilities.

In its lawsuit, the EEOC charged that Goodwill retaliated against a worker at one of its stores, by firing her after she testified on behalf of another Goodwill employee in a previous federal sex and age discrimination lawsuit. As you know, it is illegal under Title VII the Age Discrimination in Employment Act (ADEA) to discriminate against employees or applicants because of their participation as a witness in another person’s employment discrimination lawsuit. After the EEOC sued Goodwill in U.S. District Court for the Western District of Oklahoma, the parties eventually entered into a consent decree settling the suit. The decree requires Goodwill to take steps designed 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 paying $100,000 monetary award.

Light Duty and Pregnancy

We posted in the past about an employer’s obligation to provide “light duty” to a pregnant employee.   The new EEOC Pregnancy Guidelines clarify the EEOC’s position on this issue.  The Guidelines state that an employer is required to provide light duty under the Pregnancy Discrimination Act (PDA)  “if it provides light duty for employees who are not pregnant but who are similar in their ability or inability to work.  An employer may not treat pregnant workers differently from employees who are similar in their ability or inability to work based on the cause of their limitations. For example, an employer may not deny light duty to a pregnant employee based on a policy that limits light duty to employees with on-the-job injuries.”

Although the EEOC’s position on this issue is not law, courts often give deference to agency interpretations of the laws they enforce.  As a result, any employer who is covered by the PDA (15 or more employees), should be consider revising a light duty policy that solely provides light duty to employees with work related injuries.  http://www.eeoc.gov/laws/guidance/pregnancy_qa.cfm


$1.39 Bag of Chips Costs Employer $180,000

Walgreens fired an 18 year employee with a good track record because she ate a bag of potato chips without paying for them first.  When Walgreens investigated the incident, the employee explained that she ate the chips before paying because her blood sugar was low and she did not have time to pay before eating.  She was fired for the incident.  The EEOC sued Walgreens on the grounds that the employee was fired because of her disability.  Although not mentioned, the EEOC presumably also alleged that permitting a diabetic employee to eat something and pay for it later during a hypoglycemic attack is a reasonable accommodation.  The $1.39 bag of chips cost Walgreens $180,000.  http://www.eeoc.gov/eeoc/newsroom/release/7-2-14b.cfm



EEOC Lawsuit Shows that Employers Should Not Mess with an Effective Accommodation

The EEOC has initiated a lawsuit against Wal-Mart for disability discrimination. According to the allegations, intellectually disabled employee William Clark had successfully worked at a Wal-Mart store for 18 years. As a long-standing accommodation to Clark, Wal-Mart had given him written job assignments. The EEOC also alleges that the “accommodation had been the “key” to permitting Clark to successfully perform his job and meeting the company’s performance expectations. Wal-Mart then “just took away — with no good reason — an effective workplace accommodation of [the] intellectually disabled employee” and then fired him. Obviously, this is the action from which lawsuits are born. According to the EEOC, it now intends “to show that the company’s action was a particularly senseless violation of the Americans with Disabilities Act — an especially hurtful injustice — that Mr. Clark is entitled to full make whole relief and to punitive damages, and that the public interest requires strong injunctive measures to correct Wal-Mart’s practices.”

The takeaway? Don’t mess with an effective workplace accommodation.

Always think about the ADA when you grant Family Leave

An employer recently paid $1,350,000 to settle an EEOC lawsuit arising from the employer’s failure to consider ADA leave as accommodation for absent employees and employees who had exhausted their 12 weeks of FMLA leave. According to the EEOC, the employer fired employees who were not eligible for FMLA leave after being absent for a short time and fired employees who did not return to work after exhausting their 12 weeks of family leave.

This settlement is a reminder to employers to consider an employee’s potential right to leave as an accommodation whenever an employee cannot return to work upon expiration of their FMLA (or OFLA) leave, and to examine the reason for employee absences before terminating an employee for such absences.  Where an absence appears to be for a health condition that might qualify as a disability (whether or not the FMLA/OFLA applies), employers need to engage in the interactive process with the employee to determine if unpaid leave is a reasonable accommodation for that disability.


Who is Noel Canning?

Noel Canning is the name of Pepsi distributor who challenged a National Labor Relations Board (NLRB) decision concerning a collective bargaining agreement on the grounds that the NLRB lacked a quorum because 3 of the 5 board members had not been properly appointed.  On June 26, 2014, the U.S. Supreme Court decided that Noel Canning was right – the NLRB appointments were invalid because of how President Obama appointed the challenged Board members. The Supreme Court decision potentially impacts any actions taken by the NLRB during the time period that the  NLRB included improperly appointed members.

The decision is here: http://www.supremecourt.gov/opinions/13pdf/12-1281_bodg.pdf

An excellent explanation of the decision and its impact can be found here: http://www.fedregsadvisor.com/2014/06/26/scotus-holds-obama-made-unconstitutional-nlrb-recess-appointments-regulations-and-adjudications-at-risk/

Yet Another Independent Contractor vs. Employee Cautionary Tale

This week, the Ninth Circuit ruled that delivery drivers are employees, not independent contractors. In Ruiz v. Affinity Logistics Corp., 2014 U.S. App. LEXIS 11123 (9th Cir. 2014), the plaintiffs performed delivery services in for Affinity Logistics under contracts that expressly stated the drivers were independent contractors. The plaintiffs argued they were misclassified and brought claims for various employee benefits. The Ninth Circuit ruled that despite the contract terms to the contrary, and the fact that the plaintiffs formed their own corporate entities, paid for their own trucks, and could hire their own helpers, the plaintiffs were employees because Affinity Logistics sufficiently controlled the drivers’ workdays and work methods.

Once again, businesses must remember that if they want workers to be independent contractors, the workers must control the means and manner of how they perform their work. Here’s the decision: