Author: Judy Greenwald

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EEOC Settles Seventh Day Adventist Religious Discrimination Suit

A Birmingham, Alabama-based manufacturing company has agreed to pay $25,000 to settle a religious discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission for allegedly refusing to hire a Seventh Day Adventist, the agency said.

The EEOC said late last month that when James Wright applied for employment with Altec Industries Inc.’s Burnsville, North Carolina, manufacturing facility, he said that as a Seventh Day Adventist, he could not work on his Sabbath, which runs from sundown Friday until sundown Saturday. The EEOC charged in its complaint that Altec decided not to hire him as a result, which it said violates Title VII of the Civil Rights Act of 1964.

In addition to paying the $25,000, under terms of the settlement, Altec also agreed to provide annual training on religious discrimination to all of its managers and supervisors at its Burnsville facility, among other actions.

Lynette A. Barnes, regional attorney for the EEOC’s Charlotte, North Carolina, district office said in a statement: “An employer cannot refuse to hire an applicant to avoid making a religious accommodation.

“Where there is a conflict between a religious belief and work rules, the law mandates that employers make a sincere effort to accommodate those beliefs, including at the application stage. We are pleased that the settlement with Altec provides injunctive relief that will benefit all the company’s employees and future applicants.”

A spokesman for Altec, which provides products and services to the electric utility, telecommunications and contractor markets, could not immediately be reached for comment.

Experts say religious discrimination claims in the workplace are expected to be a growing problem for employers.

Judy Greenwald writes for Business Insurance, a sister publication of Workforce Management. Comment below or email editors@workforce.com.

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Employer Not Obligated to Rehire Poor-Performing Worker Under USERRA: Court

An employer is not obligated under the Uniformed Services Employment and Reemployment Rights Act to rehire a returning veteran with a poor work performance who was terminated as part of a reduction in force, said an appellate court Dec. 5.

According to the ruling by the 8th U.S. Circuit Court of Appeals in St. Louis in Douglas Milhauser v. Minco Products Inc., Milhauser, a maintenance technician whose work performance was considered to be “inconsistent and sometimes poor,” was included among those terminated as part of a reduction in force at his Fridley, Minnesota-based firm. As a result, he was dismissed when he reported for work after his military service had concluded in June 2009.

Milhauser sued, charging the company with discrimination on the basis of military service and with failure to provide re-employment as required by USERRA. A jury ruled in Minco’s favor on both counts, and Milhauser appealed on the USERRA issue.

The appellate court said under USERRA, employees returning from military leave must be re-employed in the “position of employment in which they would have been employed” had their continuous employment not been interrupted by military service, which is known as the escalator principle.

“Milhauser asserts that termination cannot be a ‘position of employment’ under USERRA,” said the appellate court.

But a three-judge panel disagreed: “The jury’s finding that Milhauser’ s position of employment would have been termination had he not left for military service is entirely consistent with USERRA’s text and its implementing regulations,” said the court, in affirming the lower court’s judgment.”

“The Secretary of Labor’s regulations on USERRA confirm that the escalator principle may properly be applied to result in an employee’s termination … We accord considerable deference to the Secretary’s interpretation” because she is charged with implementing USERRA’s provisions, said the court, which also stated other courts’ rulings agree.

Experts have said complying with the broadly worded USERRA can be a challenge for employers.

Judy Greenwald writes for Business Insurance, a sister publication of Workforce Management. Comment below or email editors@workforce.com.

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Emergency Room Physician is Independent Contractor, Cannot Pursue Bias Claims: Court

A “balance of actors” indicate an emergency room physician was an independent contractor and not an employee, and she therefore cannot pursue her discrimination claims, said a federal appellate court in a ruling Wednesday.

Dr. Pooneh Hendi Glascock, a female physician of Iranian origin, had contracted with Cedar Rapids, Iowa-based Linn County Emergency Medicine P.C. to provide emergency medical services at Mercy Medical Center in 2007, according to the ruling in Pooneh Hendi Glascock v. Linn County Emergency Medicine P.C. by the 8th U.S. Circuit Court of Appeals in St. Louis.

The agreement with the physician group was to last one year and renewed for an additional year unless terminated by either party with 90 days’ notice. It provided Glascock would be offered an ownership position in the firm after one year of satisfactory performance and upon approval by a majority of the firm’s owners, said the ruling.

The firm provided professional liability insurance for Glascock, but no benefits or vacation pay. It guaranteed 15 shifts per month and an hourly rate of $130, among other provisions, but gave the physician group no “control or direction over the method or manner” in which she performed her professional services and duties, the ruling said.

Glascock charged that throughout her relationship with the group she was subjected to ongoing sexual harassment by other group physicians, including being called a “princess,” “cutie” and “babe,” as well as disparaging remarks about pregnancy. Group shareholders also allegedly made disparaging remarks about her national origin.

At the end of her first year, the clinic’s shareholders voted not to extend to her an ownership interest, but instead gave her a six-month probationary term. During the last week of her probationary term, she told the firm she was pregnant, and the shareholders subsequently voted to terminate her.

Glascock filed suit against the group under Title VII of the Civil Rights Act of 1964 and Iowa state law, charging discrimination on the basis of sex, pregnancy and national origin. A district court granted the group’s motion to dismiss the case.

“To determine whether a hired individual is an employee or an independent contractor, we primarily consider whether the hiring party was able to ‘control the manner and means by which a task is accomplished,'” said the 8th Circuit, in quoting the U.S. Supreme Court’s 1992 ruling in Nationwide Mutual Insurance Co. v. Darden.

Although evidence supporting the issue of control is “inconclusive” in this case, though, a number of factors in the Darden case “support a conclusion that Glascock was an independent contractor,” said a three-judge panel. Among these was that she received no benefits from the group, paid her own self-employment taxes and was licensed at her own expense.”

“Other factors which might favor employee status in this case are fewer in number and less in weight than those favoring independent contractor status,” said the court, in affirming the lower court’s ruling dismissing the case.

Judy Greenwald writes for Business Insurance, a sister publication of Workforce Management. Comment below or email editors@workforce.com.

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University of Virginia Whistle-Blower Gets $819,000 Jury Award

A federal jury in Charlottesville, Virginia, has awarded $819,000 to an academic whistle-blower who complained he was retaliated against after he complained his mentor at the University of Virginia had misappropriated National Institutes of Health Funds.

The jury verdict in favor of Weihua Huang was reached Oct. 12 and announced by Huang’s attorney Oct. 15.

In addition to the university, named as defendants in the False Claims Act litigation was Huang’s former mentor, Ming D. Li, and Bankole A. Johnson, chairman of the university’s psychiatry and neurobehavioral sciences department.

Huang claimed he was retaliated against after he complained about Li’s misuse of federal research grants for a project on the genetics of nicotine and addiction.

According to the original complaint, which was filed in in August 2011, Li submitted false status reports in connection with the project so that he and a laboratory assistant could devote more time to other research projects while drawing on the National Institute of Health project’s funding. When Huang complained of this, he was told his contract would not be renewed.

Huang’s law firm, the Employment Law Group, said in a statement a later ruling by the judge in the case, Norman K. Moon in the U.S. District Court for the Western District of Virginia, will determine whether there will be an additional award for lost future earnings or a requirement for Huang’s reinstatement.

A university spokesman said in a statement that the university is evaluating the case and will have no further comment.

Judy Greenwald writes for Business Insurance, a sister publication of Workforce Management. Comment below or email editors@workforce.com.

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Wal-Mart Settles Employee’s EEOC Disability Discrimination Lawsuit for $50,000

Wal-Mart Stores Inc. and one of its units has reached a $50,000 settlement of a disability discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission in which the retailer was charged with failing to accommodate a 22-year employee who suffers from cerebral palsy.

The EEOC said Wal-Mart fired Marcia Arney, a part-time clerk, from her position in its Carlsbad, New Mexico, store rather than trying to return her to her job after a medical leave related to her cerebral palsy. Arney had shown the store manager a note from her doctor requesting an accommodation involving periodic breaks off her feet, but the manager refused to return her to her job and instead demanded that she obtain a medical release with no restrictions, according to the EEOC’s statement.

“The EEOC alleges that the medical restriction could have easily been accommodated by the giant retailer. In fact, had the employer inquired further, it would have learned that her need for accommodation was temporary,” said the agency, which charged Wal-Mart with violating the Americans with Disabilities Act of 1990.

In addition to $50,000 in back pay and damages, provisions of the settlement with Bentonville, Arkansas-based Wal-Mart and its Wal-Mart Stores East L.P. unit include that Wal-Mart conduct annual live ADA training of management officials at its Carlsbad store.

Robert A. Canino, regional attorney for the EEOC’s Dallas district office, said in a statement, “Federal regulations explaining amendments to the (Americans with Disabilities Act) made it clear that many impairments, cerebral palsy among them, do not require a lengthy analysis to determine whether or not they are ‘substantially limiting,’ which is the standard for coverage. Employers who used to argue otherwise should get up to speed on the clarifications Congress made to the (Americans with Disabilities Act) to ensure that most people with disabilities will be covered.”

A Wal-Mart spokesman responded that this case involved a now-former local store manager who “was not fully in compliance with company policies.”

The spokesman said, “This was an unfortunate, isolated incident in our Carlsbad store and in no way reflects the manner in which we conduct business at our stores or treat our associates. Wal-Mart does not condone or tolerate discrimination of any type. We take it seriously any time allegations or questions are raised about our (Americans with Disabilities Act) compliance.”

Judy Greenwald writes for Business Insurance, a sister publication of Workforce Management. To comment, email editors@workforce.com.

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Home Depot Reaches Settlement in Firing of National Guardsman

The Justice Department has reached a $45,000 settlement with Home Depot Inc. to resolve charges it violated federal law when it terminated an Army National Guard soldier’s employment.

The DOJ said May 21 the Atlanta-based home improvement chain violated the Uniformed Services Employment and Reemployment Rights Act of 1994 when it terminated Brian Bailey, an Iraq War veteran, because of his military service obligations.

According to the Justice Department, Bailey was removed from his position as a department supervisor after Home Depot management officials at his Flagstaff, Arizona, store “openly expressed their displeasure” with his periodic job absences because of his military obligations, and indicated their desire to remove him from his position because of his absences.

Under terms of the settlement, in addition to giving Bailey $45,000 in monetary relief, Home Depot has made changes to its military leaves of absence policy. The settlement also mandates that Home Depot review its military leaves of absence policy with managers from the district where Bailey worked.

Thomas R. Perez, assistant attorney general for the DOJ’s civil rights division, said in a statement, “The department is pleased that we were able to work cooperatively with Home Depot to resolve this matter without the need for contested litigation.”

A Home Depot spokesman could not be reached for comment.

Judy Greenwald writes for Business Insurance, a sister publication of Workforce Management. To comment, email editors@workforce.com.

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76% of IT Decision-Makers Predict Cloud Applications Will Be Breached



More than three-quarters of information technology decision-makers predict their cloud applications are likely to be breached, according to a survey of 1,300 officials in 13 countries by Cisco Systems Inc.

According to the survey released May 15, 76 percent of IT decision-makers predict their cloud applications are likely to be breached, and 24 percent “believe the odds are better for them to be struck by lightning than have their cloud applications breached by an unwanted third party,” according to the survey report.

During the cloud migration process, data protection security was cited by 72 percent as the top network challenge or roadblock responsible for preventing a successful implementation of cloud services. This was followed by availability/reliability of cloud applications, cited by 67 percent; device-based security, cited by 66 percent; visibility and control of applications across the Wide Area Network, cited by 60 percent; and overall application performance, cited by 60 percent, according to San Jose, California-based Cisco.

Among other survey results, 39 percent said they would not trust their own personal information, such as medical records and Social Security numbers, with the cloud provider they are now using.

The survey also found that while only 5 percent of IT decision-makers have been able to migrate at least half of their total applications to the cloud, that is expected to increase to 20 percent by the end of this year.

Copies of the 2012 Cisco Global Cloud Networking Survey are available here.

At a recent risk manager panel, participants said products, such as cyber policies designed to address cloud computing risks, are too underdeveloped in terms of the industry’s comprehension of the underlying exposures to justify purchasing.

Judy Greenwald writes for Business Insurance, a sister publication of Workforce Management. To comment, email editors@workforce.com.

 

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Wal-Mart to Pay $4.8M in Back Wages for Fair Labor Standards Act Violations

Wal-Mart Stores Inc. has agreed to pay more than $4.8 million in back wages and damages to more than 4,500 employees nationwide after an investigation by the U.S. Department of Labor’s wage and hour division that found violations of the Fair Labor Standards Act’s overtime provisions, the agency said.

The Bentonville, Arkansas-based retailer also will pay an additional $463,815 in civil penalties, the agency said May 1.

The Labor Department said under terms of the settlement, Wal-Mart has agreed to pay all back wages the department determined are owed for violations in addition to paying liquidated damages to the employees and a penalty to the department.

It said the civil money penalties assessed stem from the violations’ repeat nature. The agency said Wal-Mart corrected its classification practices in 2007, and negotiations over the back pay issue have been ongoing since that time. A third-party administrator will disburse the payments to the affected employees, the DOL said.

Nancy J. Leppink, the wage and hour division’s deputy administrator, said in a statement: “Thanks to this resolution, thousands of employees will see money put back into their pockets that should have been there all along. The damages and penalties assessed in this case should put other employers on notice that they cannot avoid their obligations to their employees by inappropriately classifying their workers as exempt.”

Wal-Mart said in a statement, “When the issues resolved on May 1 were initially raised, we took them seriously and fully cooperated with the Department of Labor to make sure they were corrected in 2007. We adjusted our pay practices at the time and determined that back wages should be paid for the associates involved.”

Judy Greenwald writes for Business Insurance, a sister publication of Workforce Management. To comment, email editors@workforce.com.

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Coca-Cola Unit Sued for Alleged Racial Discrimination



The Coca-Cola Co.’s minority employees work in a “cesspool of racial discrimination,” says a lawsuit filed against a unit of the Atlanta-based beverage company.

David Alvarez et al. vs. Coca-Cola Refreshments USA Inc., which was filed in New York State Supreme Court in Queens on behalf of 16 current and former black and Hispanic workers, charges that an “endemic culture of racism” runs through the company’s management and supervisors at its New York bottling plans in Elmsford and Maspeth, New York. The suit was filed Jan. 3, but only publicized last week in the New York Daily News.

The lawsuit charges that the 16 plaintiffs “have suffered from the worst of its ills in terms of biased work assignments and allotment of hours, unfair discipline and retaliation, and a caustic work environment.”

It says black and Hispanic workers “are typically assigned to the most undesirable and physically dangerous positions, and to tasks that are outside of their job descriptions.

“Meanwhile, the managers contravene the established seniority system by giving better jobs and more overtime hours to workers with less seniority than minority workers.

“As several of the plaintiffs have found, opportunities for advancement and promotion within the company are routinely biased against minority workers. Finally, the truck drivers among the plaintiffs have had their hours unfairly limited and prevented from working overtime, while white drivers do not have to face these problems,” the lawsuit says.

The lawsuit also charged that plaintiffs who have complained have “faced swift retaliation from the white managers.”

The lawsuit seeks unspecified compensatory, emotional, psychological and punitive damages, lost compensation, front and back pay, injunctive relief, attorneys’ fees and any other damages permitted by law.

Commenting on the lawsuit, plaintiffs attorney Steve A. Morelli of the Law Office of Steven A. Morelli P.C. in Garden City, New York, said Coca-Cola’s hostile work environment is “clearly something that needs to be addressed.”

Coca-Cola issued a statement saying, “Where discrimination is alleged, we conduct a thorough investigation.”

It said it appears one of the allegations in the lawsuit refers to an employee who was terminated five years ago, and “other allegations were addressed and resolved even longer ago. Contrary to the allegations in the lawsuit, our investigation has not uncovered a culture of workplace discrimination. In fact, many minority associates have come forward to strongly disavow the allegations of discrimination contained in the lawsuit.”

“We have investigated, and will continue to investigate, all allegations of discrimination and harassment brought to our attention. We are confident that this matter will be resolved fairly and justly through the judicial system,” Coca-Cola said in the statement.

Judy Greenwald writes for Business Insurance, a sister publication of Workforce Management. To comment, email editors@workforce.com.

 

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FTC Warns Mobile App Marketers Providing Background Checks

The Federal Trade Commission has sent letters to marketers that the agency says may be providing criminal background information to employers through the marketers’ background screening applications—an activity the FTC says may violate the Fair Credit Reporting Act.

The letters, dated Jan. 25 but released Feb. 6, were sent to Boston-based eVerify Inc., marketer of the Police Records app; the Plainville, Conn., office of Fort Lauderdale, Fla.-based InfoPay Inc., marketer of the Criminal Pages app; and Vancouver, Wash. based Intelligator Inc., marketer of Background Checks, Criminal Records Search, Investigate and Locate Anyone, People Search and Investigator apps.

The FTC letter said under the Fair Credit Reporting Act, a company is a “consumer reporting agency” if it provides information relating to a person’s character, reputation or personal characteristics that is used for employment and other purposes. Therefore, the companies must comply with several different FCRA provisions.

The provisions include taking reasonable steps to ensure the “maximum possible accuracy” of the information provided, and notifying employers of their obligation to provide applicants with notice of any adverse action taken on the basis of such reports.

“At least one of your company’s mobile applications involves background screening reports that include criminal histories,” the FTC said in a sample letter it released.

“Employers are likely to use such criminal histories when screening job applicants. If you have reason to believe that your reports are being used for employment or other FCRA purposes, you and your customers who are using the reports for such purposes must comply with the FCRA. This is true even if you have a disclaimer on your website indicating that your reports should not be used for employment or other FCRA purposes.”

The letter further states, “We would evaluate many factors to determine if you had had a reason to believe that product is used for employment or other FCRA purposes, such as advertising placement and customer lists. At this time, we have not made a determination as to whether your company is violating the FCRA. However, we encourage you to review your mobile applications and your policies and procedures for compliance with the FCRA.”

EVerify General Manager Alon Cohen said the Police Record app was devised by an affiliate, not eVerify, and that the company’s attorney is working with the FTC on the issue.

Spokesmen for the other firms could not be reached for comment.

A report by law firm Littler Mendelson P.C. released late last year explains how an earlier report by the FTC, “40 Years of Experience with the Fair Credit Reporting Act: An FTC Staff Report with Summary of Interpretations,” illuminates areas of potential class action exposure for employers.

Judy Greenwald writes for Business Insurance, a sister publication of Workforce Management. To comment, email editors@workforce.com.

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