Another Agricultural Employer in Trouble with the EEOC

by Elizabeth Semler

Are you seeing a pattern here? Yesterday, another agricultural employer settled an EEOC lawsuit for sexual harassment. This time for $650,000. In the case, a female employee was subject to seven years of demands for sex by her supervisor coupled with unwelcome physical contact. When the employee’s co-workers complained to management about sexual harassment, they were fired or forced out of their jobs.

The pattern is the result of the EEOC’s Strategic Enforcement Plan (SEP) which specifically includes “protecting vulnerable workers who may be less familiar with their rights under equal employment laws…”  The EEOC press release on the settlement makes clear that female agricultural workers are “vulnerable workers,” and we can anticipate continued focus by the EEOC on employment practices in the agricultural industry.  http://eeoc.gov/eeoc/newsroom/release/5-16-13.cfm

Employer Settles EEOC’s Genetic Information Discrimination Lawsuit

by Jeff Brecht

The Equal Employment Opportunity Commission (EEOC) has settled its first lawsuit alleging violations of the Genetic Information Nondiscrimination Act (GINA). Under GINA, it is illegal for employers with 15 or more employees to discriminate against employees or job applicants on the basis of genetic information. This means, among other things, employers (with limited exceptions) may not inquire about an individual’s genetic tests; genetic tests of an individual’s family members; or the existence of a disease or disorder in the individual’s family members.

In EEOC’s lawsuit, it claimed the employer Fabricut, Inc., violated GINA by asking an applicant, as part of a mandatory post-offer medical exam, about her family medical history, including the existence of heart disease, cancer, diabetes, arthritis, and mental illness. The EEOC also claimed Fabricut violated the Americans with Disabilities Act by refusing to hire the applicant based on Fabricut’s determination the applicant had carpal tunnel syndrome.

Pursuant to the consent decree, which the EEOC filed simultaneously with its lawsuit, Fabricut agreed to pay $50,000 and to take actions to prevent future discrimination.

The moral of this story? GINA was passed in 2008, and there is relatively little case law on this statute. Employers should be mindful of GINA’s prohibitions in order to avoid becoming a test case.

Here’s the EEOC’s press release on the settlement:

http://www.eeoc.gov/eeoc/newsroom/release/5-7-13b.cfm

Mental Health Provider’s Role in the ADA Reasonable Accommodation Process

by Elizabeth Semler

Yesterday, the EEOC issued formal guidelines on the role of mental health providers in an employee’s request for reasonable accommodation at work. Of particular interest is the EEOC’s explanation that a condition may be a disability if it makes “activities more difficult, uncomfortable, or time-consuming” for the employee compared to others, and that “a condition does not have to result in a high degree of functional limitation to be ‘substantially limiting’ under the ADA.” The EEOC also clarifies that if an employee’s symptoms come and go “what matters is how limiting they would be when present.”

The guidelines also explain how a mental health provider can help an employee get a reasonable accommodation by providing the employee-client with documentation of their condition and its associated functional limitations together with an explanation of how a requested accommodation would help. The EEOC specifies that helpful documentation would include: the providers professional qualifications and nature and length of relationship with the employee; the employee’s diagnosis; the employee’s functional limitations in the absence of treatment; an explanation of how the employee’s condition makes changes at work necessary; and, suggested accommodations.  For more details, the guidelines can be found here: http://www.eeoc.gov/eeoc/publications/ada_mental_health_provider.cfm

 

OR Agricultural Employer Settles Harassment and Retaliation Suit

by Elizabeth Semler

From the department of bad behavior comes news of a recent settlement between an Oregon onion grower and the EEOC. The complaint alleged that a female employee was subject to five years of verbal abuse by a male supervisor, requests for sexual favors and suggestions that she should submit to beatings by her husband. The supervisor also publicly encouraged the employee’s husband to kill the employee, which the husband attempted. The supervisor then blamed the employee for causing the husband’s arrest and fired her. The employee was then rehired, but laid off sooner than other employees, and was not rehired when the employer brought employees back to work.

The EEOC’s complaint alleged sexual harassment and retaliation. The employer paid $150,000 to settle the case and will be subject to various training and reporting requirements for the next three years. http://eeoc.gov/eeoc/newsroom/release/5-13-13a.cfm

A reminder that this type of behavior is improper and should not be permitted seems rhetorical. Nevertheless, the case reinforces the need for employers to educate employees (including supervisors) about prohibited behavior, and take action when they become aware that harassment or retaliation is occurring.

The Oregon Senate Does Not Want Employers to Have Access to Employee Social Media.

by Elizabeth Semler

Today the Oregon Senate passed House Bill 2654, which prohibits employers from requiring or requesting that employees or applicants provide access to personal social media accounts and prohibits employers from retaliating against employees and applicants for refusing to provide access to accounts.

We will continue to follow developments related to HB 2654. In the interim, the history of the bill can be found here:  http://gov.oregonlive.com/bill/2013/HB2654/

The current iteration of the bill is here: http://www.leg.state.or.us/13reg/measures/hb2600.dir/hb2654.b.html

DOL Provides Guidance and Updated Model COBRA Notice in Light of Health Care Reform

by Jeff Brecht

Beginning on January 1, 2014, employees of small businesses will have access to health care coverage through the Health Insurance Marketplace (Marketplace) pursuant to the Patient Protection and Affordable Care Act. The Affordable Care Act also creates a requirement that employer provide a notice to employees of coverage options available through the Marketplace.

The Department of Labor has published a “Technical Release” that provides “temporary” guidance regarding the notice requirement, including an explanation of what the DOL will consider compliance with the new notice requirement. The guidelines in the Technical Release will remain in effect until regulations are promulgated or the DOL makes available other guidance. For now, the temporary guidance is available here:

http://www.dol.gov/ebsa/newsroom/tr13-02.html

The DOL has also provided a “Model Notice to Employees of Coverage Options” which must be provided by FLSA covered employers to employees, regardless of plan enrollment status (if applicable) or of part-time or full-time status.

• Beginning on October 1, 2013, employers will be required to provide the notice to each new employee at the time of hiring.
• For 2014, the DOL will consider a notice to be provided at the time of hiring if the notice is provided within 14 days of an employee’s start date.
• For employees who are current employees before October 1, 2013, employers are required to provide the notice not later than October 1, 2013.

Here’s the DOL’s revised model notice:

http://www.dol.gov/ebsa/modelgeneralnotice.doc

And if you are want to see the DOL’s revisions, here’s a handy redlined version:

http://www.dol.gov/ebsa/modelelectionnoticeredline.doc

Employers Cannot Require Employees to Attend Religious Classes or Courses

by Elizabeth Semler

In late 2012, a dentist in Oregon ran afoul of the law when he threatened to fire an employee unless she attended a 3 day Scientology seminar. Last week, the EEOC sued a Florida employer (coincidentally owned by a doctor) for religious discrimination based on the employer’s requirement that employees attend courses that involved Scientology. Employees were required to spend a significant portion of their works days in courses that involved Scientology religious practices, and one employee was required to undergo a Scientology audit and “purification” treatment at the Church of Scientology. The employer also instructed employees to attend courses at the Church of Scientology. When two of the employees refused to participate, they were fired.

The EEOC sued the employer for subjecting the employees to a hostile environment and for disparate treatment based on religion. The case is currently pending in U.S. District Court for the Southern District of Florida. http://eeoc.gov/eeoc/newsroom/release/5-9-13.cfm

Regardless of the outcome of the case, employers need to be aware that coercing employees to participate in religious observance or practices, and firing them if they refuse, is against the law – regardless of the religion involved or the employer’s good faith beliefs.

Oregon HB 2950 Proposes to Amend OFLA to add Protected Bereavement Leave

by Elizabeth Semler

On May 7, 2013, the Oregon House held a Public Hearing on a proposed amendment to the Oregon Family Leave Act (OFLA) which would permit eligible employees to take up to 2 weeks of protected leave to deal with the death of a family member. Leave would be for an employee to: attend the funeral or alternative service of a family member; make arrangements necessitated by the death of a family member; or to grieve the death of a family member. Only employees otherwise eligible for OFLA leave would be entitled to take protected bereavement leave. Similarly, only employers covered by OFLA (generally with 25 or more employees) would be required to provide protected bereavement leave.

We will continue to follow the progress of HB 2950. OFLA, with the amendments proposed by HB 2950, can be found here: http://www.leg.state.or.us/13reg/measures/hb2900.dir/hb2950.a.html

Misclassification Costs Employer More than $1,000,000

by Elizabeth Semler

Yesterday, the Department of Labor announced a settlement by which an employer agreed to pay employees wrongly classified as independent contractors more than $1,000,000 representing back wages and liquidated damages. The employer provided cable, telephone and internet installation services to a local cable company. The employer classified some of the installers as employees while others, performing the same work, were classified as independent contractors. Further, the employer paid all workers based on the pieces of equipment they installed, and did not calculate an hourly rate or pay overtime based upon that hourly rate. The employer also failed to keep records of the number of hours worked and falsified payroll records to minimize the number of hours worked.

The settlement is a reminder that misclassification of employees as independent contractors can be costly. It also suggests that if an employer is going to use both employees and independent contractors to perform services, there should be obvious differences between what and how those services are performed.

http://www.dol.gov/opa/media/press/whd/WHD20130745.htm