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EEOC: Buffalo employee fired after standing up for hiring black worker

By Peter Levine posted in Discrimination, Employment Law, Law on September 29th, 2013

Production manager fired for hiring recommendation

According to a federal lawsuit, Myrna Peltonen, a production manager lost her job at Izza Bending Tube & Wire, a small industrial company for defending her recommendation that a temporary black worker be permanently hired after logging 500 hours with the company.

When the owner of the company, Scott Landgraf, rebuffed the recommendation, he punctuated his point with racist language, and also told Peltonen to let the worker go, alleges the suit filed by the Equal Employment Opportunity Commission (EEOC).

Peltonen was demoted to an office position and had her pay cut when she refused to let the worker go.

The worker, Randall L. Smith, “worked hard and deserved the opportunity for a full-time permanent position with benefits at Izza,” says Peltonen. “This case is about doing what is right and taking a stand against intolerance. Mr. Smith deserved better. Everyone at Izza deserved better.?”

Peltonen then also escalated to Creative Staffing Solutions, the temporary employment agency that placed Smith, about what Landgraf had said. She also told Smith.

The owner of the staffing agency, Rose Vaughn suggested to Smith that he be fired, and she then gave Izza a false reason for why Smith would not be working there anymore. The agency also stopped trying to find work for Smith.

Discrimination charge filed

Peltonen filed a discrimination charge with the EEOC a couple of weeks later. She was then fired from Izza after having been with the company for about 14 months.

The EEOC hopes to win back pay as well as force Izza to put in place an anti-retaliation policy that complies with federal law.
“Myrna Peltonen was a woman who felt she was just doing her job, and did not want to make a fuss,” says Jean Kamp, an associate regional attorney for the EEOC. ” But she felt that this was wrong and that she had to become involved. The EEOC will support such a woman as strongly as we can.”

Car Dealership Accused of Offensive and Hostile Work Environment

By Peter Levine posted in Discrimination, Employment Law, Law on September 27th, 2013

Council on American-Islamic Relations blames finance manager

The U.S. Equal Employment Opportunity Commission has accused Rizza Cadillac Inc. of violating federal law by allegedly encouraging a work environment that was hostile and offensive to Muslim and Arab sales employees Medhat Adawy, his son Adam, and Mohammed El-Hajjami when they worked from January 2007 to November 2009.

The Council on American-Islamic Relations (CAIR) spokesman Maryam Arain blamed Rizza Cadillac’s finance manager. Allegedly the dealership fired the Adawys in September 2009 and terminated El-Hajjami two months later. That same year the finance manager was promoted to general manager.

The EEOC claims managers at the dealership created a discriminatory work environment by using offensive slurs as well as mocking references to the Quran and the manner in which Muslims pray.

John C. Hendrickson, the EEOC’s regional attorney said, “Employers may not allow managers to repeatedly make offensive slurs and insults about an employee’s religion or national origin.

“Comments implying that all Muslims are terrorists cannot be excused or minimized by calling it mere ‘banter’ about a minority ethnicity or religion.

The EEOC stands ready to protect Muslim and Arab workers when they are subjected to such harassment.”

Rizza Cadillac failed to take prompt and effective measures…

John Rowe, director of the EEOC’s district office, said an investigation showed “Rizza Cadillac failed to take prompt and effective measures to stop and prevent this abusive misconduct, as they were required to do by federal law. Employees should be judged by their performance, not their religion or ethnicity.”

Harassment based on national origin or religion violates Title VII of the Civil Rights Act of 1964.
The commission filed suit in federal court after first attempting to reach a pre-litigation settlement through its conciliation process.

The lawsuit filed against the new car dealership seeks compensatory and punitive damages and requires the dealership to implement measures to prevent a recurrence of harassment as well as a permanent injunction against future discrimination.

Chicago restaurant accused of being “a hotbed of racism”

By Peter Levine posted in Discrimination, Employment Law, Law on September 26th, 2013

Since the 1970’s Alex Dana’s Rosebud restaurants have been comfortable places for diners seeking hearty Italian entrees. The company operates 10 sites in the Chicago area and employs more than 900 people.

But allegedly, according to a recently filed federal lawsuit by the Equal Employment Opportunity Commission (EEOC), Rosebud is also a hotbed of racism and discriminatory practices and has been since late 2009.

The EEOC claims the restaurant violated civil rights laws by refusing to hire blacks. It found during its investigation, most Rosebud restaurant  locations had no black employees. The EEOC charges that these discriminatory practices have occurred at the 10 current locations as well as three other locations that have been closed.

John Hendrickson, the regional attorney for the EEOC said the lawsuit seeks compensation for black applicants denied employment, a class of potentially hundreds of people.

Hendrickson alleges that based on interviews with numerous witnesses the restaurant uses slurs when talking about blacks, and also that Dana and other managers have expressed a preference not to hire African Americans. The EEOC claims it has tried “informal methods of conciliation, conference and persuasion” involving Rosebud, but to no avail.

Rosebud spokesman claims “zero tolerance” for discrimination

A spokesman for Rosebud sites the company’s “zero tolerance” policy for discrimination, saying it has cooperated with the EEOC. “We have provided them 32,000 job applications and copies of other documents,” the spokesman said. In a separate statement, a spokesperson said, “We consider it our mission to treat our employees as a family – with honesty and respect – and we are proud of our employment record and the diversity of our work force.”

The company states they have no reliable data on the racial composition of its work force. A spokesman said the reports are based on information employees provide voluntarily. Many do not fill out the form, he said.

Hendrickson said the company’s hiring record was so outrageous as to immediately suggest bias. “There are lame excuses and there are lamer excuses,” he said.

The EEOC has also accused Rosebud of violating federal law by failing to hold onto employment applications for at least a year and by not filing required annual reports with the agency before 2009. These annual reports are required of companies with more than 100 employees. They include information data on workers’ job categories, race, ethnicity and gender.

National Labor Relations Board Issues Another Social Media Decision

By Peter Levine posted in Employment Law, Law on September 25th, 2013

Social Media in the Spotlight Again

The National Labor Relations Board (NLRB) has issued another social media decision, finding that a Maryland ambulance company violated the National Labor Relations Act (NLRA).

An employee of the ambulance company posted a social media note on her Facebook wall indicating that she had been fired by the company. William Norvell, a current employee of the ambulance company posted a response on social media – that the former co-worker get a lawyer and take the company to court. He also later added that she “could contact the labor board.”

Someone turned over a printed copy of the posts to the ambulance company’s HR Director who, after consulting with the COO, decided to terminate Norvell.
The NLRB found that the termination violated the NLRA.

One of the basic foundations of employment law is this:

Thou shalt not take adverse action…

Thou shalt not take adverse action against an employee in response to the employee’s protected activity.

The law prohibits this. It’s called retaliation. You may not punish someone for doing what the law provides he may do.

Applied in this context, the former co-worker had a right to consult a lawyer as well as the right to contact “the labor board,” whether that meant the state Department of Labor or the Regional Office of the NLRB.

If her termination had been for lawful reasons, a lawyer would have told her so. Regardless, she had a right to investigate her legal rights either way.

In turn, Norvell had a right to suggest his former co-worker investigate those rights. Consequently, Norvell was engaging in protected legal activity for which he could not be punished.

Union to Implement Safety Training Program

By Peter Levine posted in Employment Law on September 24th, 2013

Seven people killed in rigging collapse

A settlement has been reached for a stagehands union that was fined $11,500 when seven people were killed during a Sugarland performance at the Indiana State Fair when the stage rigging collapsed onto the crowd on August 23, 2011.

In compliance with the agreement, the union must now work with the state department of labor to implement a new safety training program that includes fall protection and hazard identification training. This training will also be added to its apprenticeship program. It will be a required of each new union member that they complete the safety course.

The settlement was signed by Indiana’s deputy labor commissioner and the International Alliance of Theatrical Stage Employees Local 30’s business manager and absolves the union of the penalty.

IOSHA Fines for Serious Violations

The union was fined by the Indiana Occupational Safety and Health Administration in early 2012 after the IOSHA found three serious violations in addition to one non-serious violation in connection with the stage rigging accident. Those violations included the agency’s finding that the union failed to ensure “reasonably safe and healthful” work conditions that were free of hazards that could cause death or injuries.

Seven people were fatally injured when high winds caused the stage rigging as well as the stage roof to collapse and topple onto fans awaiting the concert. Stagehand Nathan Byrd was among these seven people, and several other stagehands were among the more than 40 people injured during the incident.

The union appealed IOSHA’s order, including the finding that the union, not the Indiana State Fair Commission, was the employer of the stagehands working the concert. The union contended that it only provided workers to the State Fair Commission and stage owner Mid-America Sound Corp.
Indiana Labor Commissioner Sean Keefer said that the agreement “creates a safer and more protected workplace for Indiana workers in the theater and stage business.”

John Baldwin, the union’s business manager, said that the settlement avoids litigation and is beneficial for the union. “We want to ensure that everybody’s trained and all the workplaces are safe,” Baldwin said. “It will help workers recognize hazards and make them able to look at things and see if there is a potential hazard that needs to be corrected.”

Major Retailer Loses in a Civil Rights Lawsuit

By Peter Levine posted in Discrimination, Employment Law, Law on September 23rd, 2013

Former employee claimed she was fired for wearing a hijab

Abercrombie & Fitch (ANF) has lost a civil rights lawsuit filed on behalf of a former employee who said she was fired for wearing a head scarf, also known as a hijab.

In late 2009, Umme-Hani Khan, then 19, started working at a Bay Area Hollister store. She wore a head scarf during her interview and regularly on the job but was allegedly fired four months later after a district manager visited the store.

Khan says she was approached by her manager and that the manager “Expressed concern about my hijab,” Khan said. “That’s when I felt like it was not appropriate, what they were saying.”

She was terminated after refusing to remove the hijab while at work. According to court documents the company offered her the job back eleven days later, as long as she did not wear the hijab. She declined the offer.
The manager and a corporate human resources director said the scarf violated the company dress code. At the crux of the issue is Abercrombie’s dress code.

Look Policy

Internally referred to as the “Look Policy,” the dress code includes a grooming guidebook for employees outlining everything from what they should wear to how they should style their hair while on the job.

In court, the Abercrombie argued that the hijab, worn by Muslim women as a sign of modesty, would negatively affect sales. The dress code goes to the “very heart of its business model” and that any deviation from it threatens its bottom line. But the judge said in writing “Abercrombie failed to offer any evidence from those four months showing a decline in sales.”

The U.S. Equal Employment Opportunity Commission filed the case on behalf of Khan in 2011. A California district judge ruled that the termination violated the portion of the Civil Rights Act that bars religious discrimination.

Use it or Lose it Vacation Policies in California

By Peter Levine posted in Employment Law on September 20th, 2013

Another form of wages

In California, vacation pay is considered to be another form of wages. Because they are considered wages, they cannot be taken away from an employee by any “use it or lose it” policy. However, California does not require that an employer provide its employees with either paid or unpaid vacation time.

If an employer does have an established policy, practice, or agreement to provide paid vacation, then certain restrictions are placed on the employer as to how it fulfills its obligation to provide vacation pay. Earned vacation time are considered wages, and accrue, or “vest”, as labor is performed. For example, if an employee is entitled to two weeks (10 work days) of vacation per year, after six months of work he or she will have earned five days of vacation. This type of pay accrues (adds up) as it is earned, and cannot be forfeited, even upon termination of employment, regardless of the reason for the termination.

In other states, employers have the right to set a date by which employees must take their accrued vacation. Employers can stipulate that employees who don’t take vacation by this date will forfeit the accumulated time-off. “Use it or lose it” policies should be clearly communicated to all employees in employment manuals and employees must be given a reasonable opportunity to use their time.

Plan your vacation time

Employees should make every effort to plan  time off well in advance to lessen the likelihood that they will not be able to use their time. Make every effort to cover your work if you need to take time off on short notice or as a deadline for using the time is approaching. If an employer requires you to work during a planned vacation period due to unforeseen work demands, negotiate with your supervisor for a carry-over of your time or some accommodation and ask them to put it in writing.

And, unless otherwise stipulated by a collective bargaining agreement, upon termination of employment all earned and unused vacation must be paid to the employee at his or her final rate of pay. Labor Code Section 227.3 The California Legislature, in order to ensure that vacation plans were fairly and equitably handled, provided that the Labor Commissioner was to “apply the principles of equity and fairness” in resolving vacation claims.

Domestic Worker Bill of Rights Approved by State Legislature

By Peter Levine posted in Employment Law, Unpaid Overtime on September 19th, 2013

Could mark a huge step forward for domestic worker rights

The California State Legislature has approved a bill, “AB-241,” also dubbed the Domestic Worker Bill of Rights, that could mark a huge step forward for domestic worker rights in the state and could make California the second state in the nation after New York to pass such a bill.

Introduced by Democratic Assembly member Tom Ammiano, the bill guarantees overtime pay for domestic workers who work more than nine hours per day or 45 hours per week.

“Growing up, I saw first-hand how hard domestic workers labor without basic worker protections that most of us take for granted,” said coauthor Senator Kevin de León in a press release about the passing. “My mother worked her fingers to the bone cleaning other people’s homes. I’m proud to be a coauthor for this long-overdue measure which will end the historic exclusion of this industry from overtime pay.”

The Senate has approved the bill with amendments 22-12, with the Assembly approving the changes shortly after. Governor Brown now has until October 13 to sign the bill.

Should Brown sign it, he will then convene a committee to review the success of the bill. Lawmakers will have three years to make it permanent.
Brown killed a similar bill last year, arguing that it would place an extra burden on employers, particularly with low-income, elderly or disabled individuals who need constant care.

Senate version focuses on overtime pay for workers

Initially AB-241 included other worker rights, such as meal breaks, sick days and workers’ compensation. The amended version created by the Senate focuses strictly on overtime pay.

“We obviously believe these workers should have all of these rights, but the overtime is by far the most important element we were looking for,” explained Ammiano Communications Director Carlos Alcalá. “We’re happy to go forward with the bill as it is.”

The bill has seen support across the state. In March, hundreds of housekeepers, child-care providers, as well as other domestic workers marched in protest of worker’s rights.

Ammiano’s office said that the bill “rights a historic wrong.”

“Senate passage of the Domestic Workers Bill of Rights is one more step in a movement to make sure these workers get the kind of labor protections they deserve,” wrote Ammiano. “This movement is taking place all over the country and won’t be over until domestic workers rights are spelled out in every state. When this bill gets final approval and signature, California will be a leader in that movement.”

CFPB receives complaints from workers receiving pay on debit cards

By Peter Levine posted in Employment Law, Law on September 18th, 2013

So-called payroll cards used in lieu of traditional pay methods

The Consumer Financial Protection Bureau (CFPB) has issued a bulletin as a result of recent complaints it has received from workers regarding receiving their pay on debit cards, or so-called payroll cards.

According to a 2011 survey done by Federal Deposit Insurance Corp. nearly 4 million U.S. households, or 3.2 percent, have someone who receives wages via a payroll card. The cards are often used by people who do not have bank accounts.

Complaints from workers received included fees for withdrawing cash and checking card balances. Critics of these cards are reporting that the high fees on the cards mean that some workers are essentially making less than minimum wage.

The agency said that by law workers must be able to choose how they receive their wages and that companies cannot require employees to receive their pay this way and that there must be other options. If they choose to be paid with payroll cards, they are entitled to various protections such as disclosure of fees.

McDonald’s challenged for use of payroll cards

A woman who worked at a McDonald’s in northeastern Pennsylvania recently filed a class-action lawsuit challenging the company’s use of payroll cards.
Attorneys for the restaurant owners have said the debit cards are “the functional equivalent” of cash or checks and that the employees consented to the method of payment.

The consumer agency states it has received reports of companies, especially in the retail and food-service industries, paying wages only through debit cards, rather than offering payment options. The agency said it has the authority to enforce the law against anyone in violation, including employers as well as the banks that issue payroll cards.

“The bureau intends to use its enforcement authority to stop violations before they grow into systemic problems,” it said. The CFPB is doing what it can to ensure that the companies comply with the consumer-protection laws for the employees.

Women’s Track Coach Alleges Discrimination

By Peter Levine posted in Discrimination, Employment Law on September 17th, 2013

Suspended for a Prior Relationship

Former Texas women’s track and field coach Bev Kearney, who alleged discrimination based on gender, race and retaliation in an official charge last spring, has not yet filed a lawsuit against the university but likely will within the next month. Coach Kearney won six national titles in track at UT.

Kearney was suspended when school officials discovered she had had a relationship with a student some ten years prior. Kearney alleges she was disciplined for an offense for which other coaches have not suffered similar discipline. Kearney resigned after she claims she was told by school officials they were prepared to fire her.

Case Depends on Similar Offenses

Her case will depend on the extent to which she can show other coaches or other staff members committed the same or similar offense and were then treated more leniently.

The employee must show 1) the comparator is truly comparable, and 2) the offense is the same or similar. And, her case has another twist. The fact she resigned adds another twist. The law recognizes that some situations are so intolerable that a person feels they must quit, but, the situation must be so bad that a person’s health is at stake, or the treatment is so degrading. Under Title VII, a person is not entitled to any remedies if s/he voluntarily quits.

There will surely be an issue regarding the extent to which her termination was truly imminent or likely.

After six months, an employee can ask the EEOC for permission to file suit. The 180-day anniversary of Kearney’s initial complaint with the Equal Employment Opportunity Commission and the Texas Workforce Commission has now passed. In that document, she said she was “subjected to a severely hostile work environment” and former coach intends to sue soon.

UT officials have said they disagree with the allegations in her claim of discrimination, but said they would review them “thoroughly.”

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