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

By Peter K. 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 K. 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.

Union to Implement Safety Training Program

By Peter K. 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.”

Domestic Worker Bill of Rights Approved by State Legislature

By Peter K. 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 K. 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 K. 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.”

Overtime Wages: Personal Assistant To A Pop Star

By Peter K. Levine posted in Employment Law, Unpaid Overtime on September 13th, 2013

Available throughout each hour of the day

A onetime roommate and friend of Lady Gaga (listed in the litigation under her birth name – Stefani Germanotta) is claiming that she was cheated out of her overtime wages after serving as the pop star’s personal assistant for more than a year.

The judge, U.S. District Judge Paul Gardephe said both sides agree she was expected to be available as needed throughout each hour of each day. Gardephe ruled that Jennifer O’Neill’s “on-call” time potentially qualifies for overtime compensation.

Gardephe noted that lawyers said Lady Gaga and O’Neill frequently slept in the same bed while on tour because O’Neill was required to address Lady Gaga’s needs throughout the night, and thus never had her own hotel room.

“Every day is a work day for her, so every day is a work day for the rest of us,” she said. “There is no, ‘We’re going to stay in, we’re going to sleep.’ There is no, ‘Let’s put on sweatpants and go out to the movies and be girlfriends.’ It doesn’t work like that,” O’Neill said.

“You don’t get a schedule”

In her deposition testimony, Lady Gaga had testified: “You don’t get a schedule. You don’t get a schedule that is like you punch in and you can play … at your desk for four hours and then you punch out at the end of the day. This is when I need you, you’re available.”

O’Neill testified she was responsible for sometimes monitoring the singer’s email and telephone communications and for handling all her luggage – generally 20 bags – including clothing, accessories, makeup and toiletries. She was also responsible for making sure that “special food” was available at every location and for Gaga’s schedule.

She said she assisted with costume changes during performances and was responsible afterwards for arranging ice packs, tea and a shower, along with dinner and an exit from the venue.

The judge noted that the women met after Lady Gaga moved into O’Neill’s apartment building on the Lower East Side of Manhattan before 2008, when they became roommates and friends. O’Neill was offered a position as her personal assistant because they were friends and she had experience in the music industry, court papers said.

As with all cases, it will be up to a jury to decide whether Gaga’s demands left Jennifer O’Neill any personal time or whether she was on call 24 hours a day, seven days a week, as she is claiming.

Breastfeeding in the Workplace

By Peter K. Levine posted in Employment Law, Law on September 12th, 2013

Health professionals and public health officials promote breastfeeding to improve infant health. Breast milk contains antibodies that protect infants from bacteria and viruses. Breastfed children have fewer ear, respiratory and urinary tract infections and have diarrhea less often. Breastfeeding also provides long-term preventative effects for the mother, including an earlier return to pre-pregnancy weight and a reduced risk of pre-menopausal breast cancer and osteoporosis.

Fair Labor Standards Act (FLSA) requires breaks for mothers

It’s important for both employers and employees to be aware that the Fair Labor Standards Act (FLSA) requires breaks for mothers to express breast milk during the workday. Breastfeeding requires supportive environments, including workplaces.

A provision of the FLSA requires employers to provide a reasonable amount of break time, as well as a private and clean space to express milk as frequently as needed and wanted by a nursing mother, for up to one year following the birth of the child. Here are some other requirements:

– The space must be shielded from view and free from intrusion by coworkers or the public.
– The use of a bathroom is not an acceptable space to provide to nursing mothers expressing milk.
– Nursing employees must have access to this space each time they need to express milk.
– The frequency of breaks needed to express breast milk as well as the duration of each break depends on several factors and may vary.

The Labor Department’s Wage and Hour Division has published an employee rights card that outlines the FLSA’s basic requirements and break laws and also includes a list of resources where additional information can be found. It also includes a QR code that can be scanned with a smartphone and shares how to file a complaint with the division in case a woman feels her rights have been violated.

This year the Labor Department is celebrating the 75th anniversary of the Fair Labor Standards Act. The FLSA was passed in an effort to end oppressive child labor as well as establish minimum labor standards regarding workers’ “wages and hours.” The “nursing mothers” provision is just one way the FLSA has evolved over the decades to protect and strengthen an ever-changing and growing workforce.

Wrongfully Terminated Bus Driver Reinstated by the NLRB

By Peter K. Levine posted in Employment Law on September 9th, 2013

Still waiting for his back pay

A year ago, the National Labor Relations Board (NLRB) ordered Latino Express to reinstate driver Pedro Salgado with back pay and benefits after he was fired for trying to organize drivers at the Chicago-based bus company.

Salgado, who was unemployed for about a year, was reinstated as a driver at $14 an hour. But he’s still waiting for his back pay.

His case is among the more than 100 in which the NLRB ruled in favor of workers and unions but which remain in limbo as a result of company challenges of the NLRB’s authority.

The issue stems from an appellate court ruling that presidential appointments to the NLRB in 2012 were unconstitutional due to the fact they were made during a short Senate recess. In June, the U.S. Supreme Court agreed to review the lower court’s decision at the request of the Obama administration.
In the interim, companies have seized on the appellate court’s decision, stalling other apparent worker victories.

“There are forces in this country that don’t like the labor law and what it stands for but they know that it would be unpopular to attack workers’ rights directly, so instead of attacking workers’ rights directly, they attack the agency that protects workers’ rights, but the effect is the same, it hurts working people,” said Lynn Rhinehart, general counsel for the AFL-CIO.

Some Republicans have characterized the labor board under President Barack Obama as a rogue agency that has tried to obtain and hold onto power by issuing rules rather than just hearing disputes between labor and management.

The board has been led by Democrats since 2010, with no Republicans since December as the appointment process stalled amid a stalemate between the Obama administration and Congress. Last week, the Senate confirmed five members of the NLRB, including two Republicans. With these two new Republican members, the board will at least consider a business agenda, said Steve Bernstein, a labor attorney who represents management.

“For the first time in quite a while, you’ll have the prospect for real dissent,” Bernstein told Bloomberg News. “Dissents are very valuable for the courts on appeal, because they have an opportunity to perhaps gauge both sides of an issue more effectively.”

Unfortunately, experts expect the NLRB to only deal with cases going forward and not to revisit cases that are pending before the courts.

“Justice is not denied, but delayed, and that’s not acceptable,” said Leah Fried, a spokeswoman with the United Electrical, Radio and Machine Workers of America union.

Barista Fired for Eating Out of the Garbage: Wrongful Termination?

By Peter K. Levine posted in Employment Law, Law on September 6th, 2013

Starbuck’s policy claims it’s for health reasons

A Starbucks barista claims he was recently fired for eating one of the cafe’s famous breakfast sandwiches — out of the garbage.

Coulson Loptmann, 21, says his manager told him eating something from the trash is “considered stealing,” according to a report in Seattle-based alternative weekly The Stranger. Loptmann explained, however, the sandwich was expired and had already been marked out.

“It sounds ridiculous, but having bread and mustard and mayonnaise and some kind of meat and lettuce—it doesn’t sound expensive, but that adds up. … There were some days where I lived off of Starbucks food,” said Loptmann, who used to get a 30 percent discount and a few free coffees a day from Starbucks.

On the day he took the sandwich from the garbage, Loptmann said: “I hadn’t eaten all day and I was on a seven-hour shift.”

He didn’t think anyone at the company would have a problem with it but he was wrong.

A week later, his manager sat him down and told him she had found out about him taking the sandwich from the garbage and took the matter to human resources. He was then told: “they consider it stealing, and it’s against policy. So I’m sorry, but I have to terminate you.” Loptmann was fired on the spot.

Loptmann reports he made $9.94 an hour for 23 to 32 hours a week and brought in another $30 in tips — at most $348 before taxes and that he had asked for more hours, but did not receive them. He survives partly on food stamps because his paycheck isn’t always enough for him to buy food.

Eating marked-out food at Starbucks is against company policy — because it’s considered stealing, and for health reasons. “We don’t want our partners to consume something that could make them sick,” Starbucks spokesman Zach Hutson said.

Hutson confirmed Loptmann’s firing and said an employee wouldn’t normally be let go for a single violation of this policy, but Loptmann was let go in light of a history of “documented performance issues,” which he declined to specify.

Fast Food Workers Face A Tough Situation

The situation for fast food workers can be tough with little chance for advancement and 70 percent earn between $7.26 and $10.09 an hour.

“Not only are wages low in these industries, but you compound it with the fact that you’re not even getting full time hours and that contributes to the very high poverty rates that these workers experience,” said Tsedeye Gebreselassie, attorney at the National Employment Law Project. Many of the workers are forced into such government programs as food stamps and subsidized housing.

All this comes on the heels of a worker strike planned across the nation this month.

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